White House official tells judge searching for missing emails too much work
By Jason Leopold
Online Journal Contributing Writer
Mar 24, 2008, 00:56
The White House�s chief information officer said the Bush
administration should not be compelled to search for millions of emails on
individual computers and hard drives that may have been lost between 2003 and
2005 because it would be too expensive and require hundreds of hours of work,
according to a filing the White House made with a federal court late Friday.
Friday�s court filing by the White House came in response to
an order issued by U.S. Magistrate Judge John Facciola last week demanding that
the White House show cause why it should not be ordered to create and preserve
a �forensic copy� of emails from individual hard drives. Facciola entered the
order in part because the White House admitted that it did not preserve back-up
tapes prior to October 2003.
Citizens for Responsibility and Ethics in Washington and
George Washington University�s National Security Archive sued the Bush
administration last year alleging the White House violated the Presidential
Records Act by not archiving emails sent and received between 2003 and 2005.
In documents filed with Faciolla Friday, Theresa Payton, the
chief information officer at the White House Office of Administration, said the
White House routinely destroyed its hard drives every three years �in order to
run updated software, reduce ongoing maintenance, and enhance security
assurance. So its unlikely that any lost emails would be retrieved anyway.
�When workstations are at the end of their lifecycle and
retired . . . under the refresh program, the hard drives are generally sent
offsite to another government entity for physical destruction in accordance
with Department of Defense guidelines,� states Payton�s sworn affidavit filed
with Facciola late Friday.
�And even if some older computer workstations were in use,
finding them and copying their hard drives with the hope that the residual data
contains relevant e-mail information would create an �awfully expensive needle
to justify searching a haystack,�� a separate court filing the White House made Friday says.
computer workstations used during the relevant time period are identifiable and
locatable, making 'forensic copies' (as that term is defined by the Court) of
the workstations that may or may not contain residual data of emails would
impose a significant burden on OA,� added Payton�s affidavit. �As I understand
it, an Order requiring defendants to make a copy of all active data on
workstations containing profiles from the relevant time period would require
hundreds of hours of work by . . . staff and management personnel. Such an
effort would inevitably divert significant resources from the [Office of the
Chief Administration Officer] functions and projects relating to core
administration operations. The precise duration of the procurement process, as
well as costs associated with that process, are not presently knowable, but
they must be expected to be substantial given the sensitivity and significance
of such a project.�
But putting that aside, Payton said, there is simply no
evidence to back up allegations made in a lawsuit filed by two government
watchdog groups that claim the White House has lost as many as 10 million
emails -- some of which are said to coincide with dates involving the leak of
covert CIA operative Valerie Plame Wilson as well as the buildup to the
invasion of Iraq. Payton said that since the watchdog groups� claims are
unsupported the White House should not be forced to undertake a �draconian�
process of having to search for emails.
�Put simply, plaintiff cannot justify its request that [the
Office of the Chief Information Officer] and [Executive Office of the
President] . . . incur significant time and resource expense on the mere
possibility (however unlikely) that some useful material may be restored,� the
White House�s filing states. �Because the allegation of missing e-mail from
archives is unconfirmed, because the allegation of missing e-mails from back-up
tapes is conjectural, and because the computer workstations are unlikely to
house significant, if any, relevant material the costs of a forensic copy
process would far outweigh any speculative benefits.�
That line of reasoning appears contradictory on several
First, an internal investigation undertaken by officials in
Payton�s office concluded that computer experts could not locate a single email
from the office of Vice President Dick Cheney between September 30, 2003 and
October 6, 2003 -- the week when the Department of Justice launched an
investigation into the Plame Wilson leak and set a deadline for administration
officials to turn over documents and emails to federal investigators that
contained any reference to her or her husband, former Ambassador Joseph Wilson.
Additionally, Office of Administration staffers said there
were at least 400 other days between March 2003 and October 2005 where emails
could not be located in either Cheney�s office or the Executive Office of the
President. Finally, Payton admitted in January that the White House �recycled�
its computer back-up tapes until October 2003, which makes it much more
difficult to retrieve emails.
Payton maintains that while emails may have been deleted or
�recycled� they can still be recovered.
At a hearing last month before the House Oversight and
Government Reform Committee, Payton said she felt "very comfortable"
that her office would be successful in recovering lost emails from
"disaster recovery backup tapes." However, her office has so far not
attempted to recover the electronic communications.
The internal investigation conducted by more than a dozen
staffers in Payton�s office showed that there were at least 473 days of missing
emails led CREW to file a federal court motion earlier this month asking that
Payton be held in civil contempt for knowingly submitting false, misleading,
and incomplete testimony in an affidavit filed with a federal court in January.
In her sworn affidavit filed January 15, Payton said one
employee in the Office of Administration, Steve McDevitt, who worked with
Payton from 2002 to 2006, conducted the internal probe and that she did not
know whether emails were properly archived.
CREW said Payton�s responses in her affidavit are �false and
appear designed to mislead the court into believing that both discovery and any
additional interim relief are unnecessary.�
Documents obtained by Henry Waxman, the chairman of the
House Oversight and Government Reform Committee, show that Payton�s office
advised former White House counsel Harriet Miers in late 2003 or early 2004
about the administration�s failure to archive emails. Miers is said to have
immediately informed Special Prosecutor Patrick Fitzgerald, who at the time was
investigating the leak of Plame Wilson�s undercover CIA status. Fitzgerald had
subpoenaed White House emails sent in 2003. However, according to CREW,
Fitzgerald's staff was briefed before a complete audit of the email records
could be taken and was therefore unaware of how extensive the problem was.
In a story I first reported in February 2006, the White
House turned over 250 pages of emails to Fitzgerald it said it �discovered�
following a court document Fitzgerald filed in January 2006 in US District
Court in Washington, DC, that said he "learned that not all email of the
Office of the Vice President and the Executive Office of the President for
certain time periods in 2003 was preserved through the normal archiving process
on the White House computer system."
That document was filed during the discovery phase of the
perjury and obstruction of justice trial against former vice presidential Chief
of Staff I. Lewis "Scooter" Libby, who was convicted last year by a
federal jury of perjury and obstruction of justice.
The White House offered no official explanation concerning
the circumstances regarding the sudden reappearance of the emails it had turned
over to Fitzgerald on February 6, 2006, or if there had been any truth to
Fitzgerald's allegations the emails had not been automatically archived. At the
time, a White House spokeswoman would only tell me that staffers had
"discovered" the batch of documents during a search.
It is possibly that the missing emails could simply be the
result of poor management.
David Gewirtz, a former computer science professor who also
used to be employed as the product management director for Symantec and held
the title of "Godfather" at Apple Computer, Inc., has written more
than 600 articles about email and recently published a book, "Where Have
All the Emails Gone,� which is the definitive account about the circumstances
that led to the loss of administration emails.
In an interview, Gewirtz said emails suddenly disappeared at
a time when the White House had switched its email over from Lotus Notes to
Microsoft Exchange, an issue in and of itself the author finds suspicious.
"Why did they migrate at this time? The country was
getting ready for war," noted Gewirtz, who said he has spoken to Senate
and House staffers probing the loss of White House emails. "It doesn't
make sense that you would want to yank out your communications structure when
you're building up toward war. It's crucial for our government to have
qualified communications at a critical juncture. It's just mind bogglingly
questionable that the White House would change its communication structure at
that time period. Why did they need to do it then? It certainly provides a lot
of plausible deniability for when emails are scrutinized."
"Another plausible reason, and this is the conspiracy
theory, if you yank out an email system there goes your compliance with the
Presidential Records act and there's the 'my dog ate it' excuse," Gewirtz
said. "There's really no net loss other than a PR loss."
Gewirtz said his biggest concern about the loss of White
House emails is the national security implications.
"There's a separate server for political activity. The
server is not located or managed by security experts," Gewirtz said.
"Emails are sent by White House staffers using an unsecured server.
Hundreds of millions of emails are sent through the open Internet. An email
message sent by a low level political employee says where the president is
traveling. That can be seen by anyone and can put the president at risk. It's
something of a disturbing experience talking to Washington politicians.
Technical issue takes a back seat based on what the political goal is. The
potential loss through homeland security is pretty profound."
Still, that not a single email could be recovered from Cheney�s
office between September 30, 2003, and October 6, 2003, the very week when
federal investigators began their probe into the Plame Wilson leak and enjoined
all White House staffers to turn over documents referencing Plame Wilson and
her husband, raises suspicions. And it calls into question the integrity of
Fitzgerald�s probe and suggests that he may not have obtained all of the
evidence related to White House officials� role in the leak.
Anne Weismann, chief counsel for CREW, agreed. In an email
exchange with me, she said she believes there �are unanswered questions about
what the special counsel knew, particularly as to scope of email problem.�
"We wrote Fitzgerald a letter last April after we broke
the story of significant volume of missing White House emails, suggesting that
he reopen investigation,� Weismann said. �To date, we have heard nothing. We
have also written to Attorney General Michael Mukasey requesting that he
appoint a special prosecutor to investigate and likewise have heard nothing.�
Leopold is the author of the National Bestseller, "News Junkie," a
memoir. Visit newsjunkiebook.com
for a preview. He is also a two-time winner of the Project Censored award, most
recently in 2007, for an investigative story related to Halliburton's work in
Iran. He was recently named the recipient of the Military Religious Freedom
Foundation�s Thomas Jefferson Award for a series of stories he wrote that
exposed how soldiers in Iraq and Afghanistan have been pressured to accept
fundamentalist Christianity. Leopold is working on a new nonprofit online
publication, expected to launch soon.
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