New details emerge in missing White House emails case
By Jason Leopold
Online Journal Contributing Writer
Aug 6, 2008, 00:12
The Bush administration may have already hired an outside
contractor to search individual computers for tens of thousands of missing emails
that disappeared between 2003 and 2005.
But information technology experts conducting the search
apparently have been told not to try and locate hundreds of thousands of
missing emails from March 2003 to September 2003, a crucial timeframe that
encompasses the start of the Iraq war, and the leak of covert CIA operative
Valerie Plame Wilson.
The government watchdog group, Citizens for Responsibility
and Ethics in Washington, one of two organizations that sued the White House
last year in hopes of forcing the administration to preserve its emails and
recover emails lost between 2003 and 2005, disclosed the new details in a recent
Anne Weismann, chief counsel of CREW, said in an interview last
week that she learned through her own sources that the White House completed
the second phase of a restoration project to recover lost emails.
�CREW has learned that the White House has now completed its
analysis of the missing email problem and confirmed that email is missing for
as many as 225 days,� says a statement posted on CREW�s website Weismann
confirmed. �In addition, the White House is about to begin selecting, or has
already selected, a contractor to restore the missing email, although it is
CREW�s understanding that the White House does not intend to use backup tapes
predating October 2003.
�It has already been established that emails for the Office
of the Vice President are missing for a critical week in September 2003, when
the Department of Justice opened an investigation into the leak of Valerie
Plame Wilson�s convert CIA identity. Despite the obvious relevance of these new
facts to the lawsuit, the White House has refused CREW�s request that is advise
the court of these events and bring transparency to the process.�
Senior administration officials disclosed Valerie Plame
Wilson�s identity to several journalists in early summer 2003, leading to its
publication in a July 14, 2003, article by right-wing columnist Robert Novak.
However, it was not until September 2003 that a CIA
complaint to the Justice Department sparked a criminal investigation into the
identity of the leakers.
The email controversy first surfaced in January 2006 when
Patrick Fitzgerald, the special prosecutor appointed to investigate the Plame
Wilson leak, said in a court filing, following the indictment of Vice President
Dick Cheney�s former Chief of Staff I. Lewis Scooter Libby, that 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.�
In October of 2005, the Office of Administration discovered
that White House emails had not been archived in accordance with the
Presidential Records Act. The Office of Administration had briefed former White
House Counsel Harriet Miers about the lost emails. It�s documents and email
correspondence related to these behind-the-scenes discussions that CREW was
hoping to obtain with a FOIA request.
Miers is said to have immediately informed Fitzgerald about
the issue. Fitzgerald had been investigating White House officials� role in the
Plame leak and subpoenaed White House emails sent in 2003. Fitzgerald stated in
a 2006 court filing that some emails in the Office of the President and Vice
President had not been turned over to federal investigators working on the leak
An internal investigation by officials in the Office of
Administration concluded that emails from the office of Vice President Dick
Cheney between Sept. 30, 2003, and Oct. 6, 2003 were lost and unrecoverable.
That was the week when the Justice Department launched an
investigation into the Plame leak and set a deadline for Bush administration
officials to turn over documents and emails containing any reference to Plame
Wilson 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 when emails
could not be located in either Cheney�s office or the Executive Office of the
Weisman said Tuesday that CREW is seeking a status
conference to �address the new facts of the case.�
Theresa Payton, the Office of Administration�s chief
information officer, would not return calls for comment.
�Frankly, I think it�s pretty clear that the White House doesn�t
want to acknowledge that, yes, �we have missing email,�� Weismann said.
Earlier this year, Payton filed an affidavit with U.S.
Magistrate John Facciaola stating that every three years the White House
destroyed its hard drives �in order to run updated software, reduce ongoing
maintenance, and enhance security assurance.�
�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.
At the time, Facciola, who has been hearing arguments in the
case, had ordered the Bush administration to show cause why the Executive
Office of the President should not be compelled to immediately undertake a
process to locate missing emails.
Payton responded that doing so would not only be daunting
and expensive, but ordering the White House to search hard drives was beyond
the court�s authority.
On Tuesday, Facciola issued a motion rejecting that argument
and affirmed his earlier decision that called upon the Executive Office of the
President to search individual workstations used between March 2003 and October
2005 and preserve any emails located on those workstations or on portable media
used by EOP employees.
It is unclear how Tuesday�s order by Facciola fits into new
allegations made by CREW that the White House would not attempt to recover emails
that went missing prior to October 2003. Without indicating that he was aware
of the new allegations by CREW, Facciola said he would advise Judge Henry H.
Kennedy, who referred the case to the magistrate in March for a recommendation,
to order the White House to recover the lost emails.
�We are pleased that despite the White House�s plea for
reconsideration, the Magistrate Judge stood his ground and recommended that the
White House be ordered to locate and preserve emails that may be missing from
backup tapes but were saved on individual workstations and portable media
devices,� said Sheila Shadmand, an attorney with the National Security Archive
�Each of the Judge�s recent rulings in our favor has brought us one step closer
to ensuring that the documentary history of this Administration is not forever
Facciola denied a request by George Washington University�s
National Security Archive, a co-plaintiff with CREW in the case, to grant a
motion seeking an �emergency court-supervised� deposition of Payton who CREW
and the National Security Archive allege has made false statements about the
extent of the missing emails during testimony before Congress and in documents
filed with the court.
In the affidavit she filed with Facciola in January, Payton
said she was unaware if emails from the Executive Office of the President and
the Office of the Vice President had been properly archived.
But documents obtained in February by Congressman Henry
Waxman, the chairman of the House Oversight and Government Reform Committee,
showed that officials in Payton�s office advised her that there were more than
400 days between March 2003 and October 2005 where emails could not be located
in either the Office of the Vice President or the Executive Office of the
President or on backup tapes.
Payton then admitted in March that the White House
�recycled� its computer back-up tapes until October 2003, which makes it much
more difficult to retrieve emails.
CREW filed a federal court motion that 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 on Jan. 15
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.�
In his order Tuesday, Facciola said he �cannot recommend the
taking of depositions sought� and said the �central focus� should be recovering
the missing emails.
�The allegedly misleading and false statements were made in
response to the Court�s attempt to determine �whether the missing emails are
contained on the back-ups preserved pursuant to Judge [Henry] Kennedy�s order,�
Facciola said. �As discussed above in greater detail, the Court has now
determined that not all emails sent or received during the relevant time period
are contained on the back-up tapes. Compelling the deposition of Ms. Payton
would therefore provide no remedial benefit and is thus unavailable here as a
Leopold is the author of �News Junkie,� a memoir. Visit
for a preview. His new website is The
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