From the archive, originally posted by: [ spectre ]

http://www.truthout.org/docs_2006/041307A.shtml

Millions of White House Emails Missing
By Matt Renner  /  Friday 13 April 2007

A report Thursday details steps taken by the Bush administration
to intentionally subvert the mandatory archiving of official email.

The report, issued by the watch-dog group Citizens for
Responsibility and Ethics in Washington (CREW), entitled “WITHOUT A
TRACE: The Missing White House Emails and Violations of the
Presidential Records Act,” states that, “The White House has willfully
ignored evidence of a systematic problem with its internal email
archiving system,” resulting in the loss of approximately five million
emails. The report also states that, “Top Bush administration
officials have deliberately used outside email accounts to avoid
creating a record of their actions,” a charge that is being
investigated by Congress.

The Presidential Records Act requires presidents to preserve all
records that relate to the “activities, deliberations, decisions and
policies that reflect the performance of [the president’s]
constitutional, statutory, or other official or ceremonial duties….”

The report indicates that the Bush administration willfully
dismantled the email archiving system put in place by the Clinton
administration and did not replace it with an adequate method to keep
track of administration email, resulting in the loss of millions of
messages. A detailed plan to recover the lost messages was presented
to then-White House Counsel Harriet Miers, but was never acted upon.
This, along with the use of outside email addresses for official
business, could be criminal behavior in violation of the Presidential
Records Act.

Melanie Sloan, executive director of CREW said, “It’s clear that
the White House has been willfully violating the law – the only
question now is to what extent?”

According to CREW’s sources, the Office of Administration (OA) –
the office in charge of information technology and record-keeping
support for the president – discovered a massive failure of the White
House email archiving system in October 2005. Their analysis revealed
that during a two-and-a-half-year span, between March 2003 and October
2005, there were “hundreds of days in which emails were missing….”
The OA concluded that, in total, “over five million email messages
were missing.”

The report also states that two sources independently confirmed
that the Executive Office of the President (EOP) currently has “no
effective email records management system in place.” Currently, the
EOP archiving system simply takes emails en mass and saves them on a
hard-drive without sorting or organizing them. According to the
report, “This system does not have adequate safeguards in place to
ensure that stored messages are not modified or deleted; nor is there
any way to assess or audit the completeness of the stored messages.”

It is unknown what was contained in the missing emails, but during
this time frame the White House was presiding over the invasion of
Iraq and dealing with fall-out from investigations such as the
Abramoff corruption probe, the investigation into falsified pre-Iraq
war intelligence, and the grand jury investigation into the leaking of
covert CIA agent Valarie Plame Wilson’s identity.

As previously reported by Truthout, in a letter from January 2006,
Special Prosecutor Patrick Fitzgerald noted that his team had “learned
that not all email of the Office of the Vice President and the
Executive Office of President for certain time periods in 2003 was
preserved through the normal archiving process on the White House
computer system.” His letter was filed during the discovery phase of
the perjury and obstruction of justice trial against former vice
presidential staffer I. Lewis “Scooter” Libby.

According to Naomi Seligman Steiner, communications director for
CREW, the “Fitzgerald letter totally negates the White House response
that only emails from Republican National Committee (RNC) accounts
were not archived.”

In a press briefing Thursday, White House Spokesperson Dana Perino
said, “We have a policy in which any emails that are sent to somebody
like myself at an Executive Office of President or a White House email
address are archived and retained indefinitely, forever, so that we
always have those.”

The White House also said that in an attempt to comply with laws
that prevent White House staff from using tax payer-funded resources
for political campaigns, they “may not have preserved all emails that
deal with White House business.” On Thursday, Perino said, “We don’t
have an idea on the universe of the number of emails that were lost.”

Top White House officials have apparently been using the RNC email
system to conduct official business. The RNC had a policy of deleting
emails from their servers after 30 days. This policy was changed in
2004, but until recently, email users could manually delete emails
from their RNC accounts.

Chairman of the House Oversight and Governmental Reform Committee
Henry Waxman has been investigating the use of unofficial email
accounts by Bush administration officials. Thursday, his staff met
behind closed doors with RNC Counsel Rob Kelner to discuss the
situation. In a subsequent letter to Attorney General Alberto
Gonzales, Waxman said that the RNC has email archives dating back to
2004, but “has apparently destroyed all email records from White House
officials from 2001, 2002 and 2003.” Also, Waxman said that the RNC
only has archives for 35 of the 50 White House officials who had RNC
email accounts. “This means that the RNC appears to have no email
records for approximately 15 White House officials,” Waxman said.

According to Waxman’s letter, the RNC had special email procedures
for Special Assistant to the President Karl Rove. According to Kelner,
the RNC does not have any archived emails prior to 2005 for Mr. Rove.
This, despite the reports that Rove uses his RNC account for the
majority of his correspondence. Waxman said that Kelner “did not give
any explanation for the emails missing from Mr. Rove’s account, but he
did acknowledge that one possible explanation is that Mr. Rove
personally deleted his emails from the RNC server.” According to the
letter, the RNC instituted a special policy for Rove’s emails some
time in 2005 that prevented him from being able to delete his emails
from the RNC server.

Steve Aftergood, the director of the Federation of American
Scientists Project on Government Secrecy, called this “an electric
situation and we are all just waiting to see where the lightning
strikes.” He also said that, “This is a challenge to Congress to get
to the bottom of this,” referring to the missing emails. According to
Aftergood, under the Presidential Records Act, the National Archives
has “a clear legal obligation to preserve and protect historical
records.” The National Archives did not return phone calls for
comment.

Matt Renner is a reporter for Truthout.

http://www.motherjones.com/washington_dispatch/2007/03/white_house_emails.html

The Emails the White House Doesn’t Want You to See

Washington Dispatch: The U.S Attorney firings provide more evidence of
the Bush administration avoiding its own email system (and
accountability, posterity, prosecution).

By Daniel Schulman  /  March 30, 2007

On February 6, 2003, lobbyist Jack Abramoff sent an email to his
former executive assistant Susan Ralston, who had since gone on to
work for Karl Rove, requesting that she pass along an important
message to her boss. A Louisiana Indian tribe, the Jena band of
Choctaws, was seeking to acquire land for a casino, a project at odds
with the interests of Abramoff’s tribal clients who feared it would
siphon business from their own gaming establishments. Abramoff wanted
Rove to intercede and “to get some quiet message from the WH [White
House] that this is absurd.” After Ralston agreed to pass along word,
Abramoff replied to thank her. But he slipped up.

Instead of responding to an email account administered by the
Republican National Committee (sralston [at] georgewbush [dot] com) as he had
intended, he sent the message to Ralston’s White House address. The
following day Abramoff was alerted to his error by a colleague, Kevin
Ring, who’d spoken to a White House official to whom Abramoff’s
request had been forwarded. “She said it is better to not put this
stuff in writing in their email system because it might actually limit
what they can do to help us, especially since there could be lawsuits,
etc.,” Ring wrote. Abramoff responded swiftly: “Dammit. It was sent to
Susan on her rnc [Republican National Committee] pager and was not
supposed to go into the WH system.”

The significance of this intriguing exchange, which was among
thousands of emails reviewed by investigators for the House Government
Reform Committee as part of an extensive investigation into Abramoff,
might have gone unrecognized had it not been for another scandal, this
one involving the abrupt firings of eight U.S. Attorneys. As the
controversy intensified in early March and hearings were held, the
Department of Justice was forced to release thousands of documents,
including email exchanges between Alberto Gonzales’ chief of staff
Kyle Sampson, who resigned in mid-March, and Rove deputy J. Scott
Jennings.

Here too was evidence that White House officials were conducting
business using RNC email accounts, domains such as gwb43.com and
rnchq.org. But why? For one, as Abramoff was attempting to do, it is a
way of bypassing the White House server and skirting its automatic
archiving function, insuring that potentially damaging or
incriminating emails will not be preserved for posterity by the
National Archives, or worse, come to light through the efforts of a
federal prosecutor or congressional investigator. In a March 15 letter
to Henry Waxman’s Government Reform Committee, the watchdog group
Citizens for Responsibility and Ethics in Washington noted that this
practice might violate the 1978 Presidential Records Act, which
governs how the papers of presidents and their staffs are to be
preserved, and urged an investigation. “This refreshed our memory
about what we’d seen in the Abramoff emails,” says one Waxman aide.

A little over a week later, Waxman’s Committee fired off its own
letters to Mike Duncan, chairman of the Republican National Committee,
and Marc Racicot, the former chair of the president’s reelection
committee, demanding that they preserve White House emails on their
organization’s servers “because of their potential relevance to
congressional investigations”-“multiple” investigations the letter
stressed. “The e-mail exchanges reviewed by the Committee provide
evidence that in some instances, White House officials were using the
nongovernmental accounts specifically to avoid creating a record of
the communications.” (According to the Waxman aide, Duncan and Racicot
have yet to respond.)

Steven Aftergood, the director of the Federation of American
Scientists’ project on government secrecy, says the use of RNC email
accounts is interesting for another reason. “It shows how closely
intertwined the White House is with its partisan allies,” he says.
“The fact that the White House and the RNC are working hand in hand
and White House officials are using RNC emails is itself remarkable.”
He added, “Iran-Contra is getting invoked a lot these days and this
may be another parallel, where the famous White House emails were
recovered even after they were deleted from the White House server.
People may have learned that lesson.”

Oliver North certainly did. Back in 1986, when most people had not
even heard of email and the government’s email system was still known
as PROFS (Professional Office System), he and John Poindexter
attempted to purge their hard drives of electronic communications
related to Iran-Contra. (“We all sincerely believed that when we send
a PROFS message to another party and pressed the button ‘delete’ that
it was gone forever. Wow, were we wrong,” North later remarked after
his incriminating messages were resurrected.)

In 1993 then-National Archivist Don Wilson inked a secret agreement
with George H.W. Bush in the final hours of his presidency giving him
sole control over his administration’s computer records. (Wilson went
on to become the executive director of Bush’s presidential library; a
federal court later declared their agreement unconstitutional.) Years
later, with the embattled Clinton administration faced with numerous
allegations of impropriety, including charges that it had illegally
obtained FBI files on prominent Republicans for political purposes-
this controversy became known as Filegate-a White House whistleblower
came forward claiming that the administration had suppressed 100,000
emails related to ongoing investigations. Sheryl Hall, who helped to
supervise the computer system in the Clinton White House, reported
being told by a colleague that “if the contents of these e-mails
became known, that there would be different outcomes to these
scandals, as the e-mails were incriminating and could cause people to
go to jail.” Congressional Republicans, then in the majority, cast the
alleged cover-up as a worse scandal than Watergate, concluding in a
report by the House Government Reform Committee that “the e-mail
matter can fairly be called the most significant obstruction of
congressional investigations in U.S. history.” (Democrats, led by
Henry Waxman, fired back with their own report, which noted, among
other things, that “this Committee has a long history of making
unsubstantiated allegations.”)

In general, past administrations, Democratic and Republican, have
chafed at the prospect of turning over their records, per the
Presidential Records Act, says Bruce Montgomery, the director of the
University of Colorado at Boulder’s archives and an expert on
presidential papers. “No president since Carter, who signed the
Presidential Records Act into law, has looked kindly on that statute.
Carter did not want the Presidential Records Act to apply to him. The
Carter Justice Department saw it as a breach of the separation of
powers.” In 1985, a young lawyer working in the Reagan White House
questioned the constitutionality of the law in a memo to his boss,
White House counsel Fred Fielding, who is currently reprising that
role in the Bush administration. That lawyer, John Glover Roberts Jr.,
who we know as Chief Justice Roberts, noted that the “existence of the
Act serves to burden the full and frank exchange of advice.” That
advice, he argued, “is protected by the constitutionally based
doctrine of executive privilege.” He fretted, however, that it was too
early to mount a constitutional challenge. That would have to wait
until 2001, when, after the 12-year waiting period outlined in the
law, the first batch of Reagan-era documents would be released.

When that moment arrived, scarcely a year into President Bush’s first
term, the president signed a controversial executive order that, among
other things, claims broad authority to review and block the release
of presidential papers and extends executive privilege to the heirs of
the officeholder and to the Vice President. The order was met with
outrage by archivists and historians, some of whom argue that this
statute effectively gives the administration the power to write its
own history. “This is very much pre-Nixon in the sense that they want
presidents and their families to control what people see and what they
cannot see, what history they can write and what history they cannot
write,” says Montgomery, the presidential papers expert. “They want to
manage their own historical legacy.”

John Carlin, the former governor of Kansas who served as the national
archivist from 1995 to 2005, says the administration’s expansion of
executive privilege “was probably the major issue where we as an
agency disagreed with the White House.” Carlin, who was asked to
resign from the National Archives in December 2003 by then-White House
counsel Alberto Gonzales, no explanation given, says his agency was
granted ample opportunity to object to the directive, but, in the end,
“We said our piece and they made their decision.”

The president’s executive order has long been the subject of bi-
partisan concern in Congress and, in March, legislation passed the
House that would essentially revoke it. But even before the measure
could come to a vote, the White House issued a veto threat, writing in
a Statement of Administration Policy that “executive privilege is not
subject to Congressional regulation, but rather arises directly from
the Constitution itself.”

In this context, the news that at least some White House officials are
using alternate email accounts to avoid creating an official record of
their communications seems to fit a broader pattern. But in many ways,
says Steven Hensen, the past president of the Society of American
Archivists and the technical director of Duke University’s archives,
this practice seems “a bit more devious.” “It clearly looks like an
attempt to conceal official business,” he says.

Asked about the use of RNC email accounts during a press briefing on
March 27, White House spokesperson Dana Perino played down this
unusual practice. “What I know-I checked into this-is that certain
White House officials and staff members who have responsibilities that
straddle both worlds, that have responsibilities in communication,
regularly interface with political organizations, do have a separate
email account for those political communications. That is entirely
appropriate, especially when you think of it in this case, that the
practice is in place and followed precisely to avoid any inadvertent
violations of what is called the Hatch Act…. Under an abundance of
caution so that they don’t violate the Hatch Act, they have these
separate emails.” She added that “people are encouraged, on official
White House business, to use their official White House accounts.”

The Hatch Act prohibits federal employees from engaging in political
activity while on the job. But, according to two lawyers I spoke with,
both of them well versed in the details of that law, this rationale
doesn’t entirely hold water. A lawyer who works for the Office of
Special Counsel, the agency charged with investigating Hatch Act
violations, told me that Senate-confirmed presidential appointees as
well as staffers whose salaries are paid from an appropriation for the
Executive Office of the President are exempt from some of the
strictures of that law and are allowed to engage in political
activity. (No federal employee, however, is allowed to fundraise on
the job, or solicit or discourage the political activity of people
with business before their agencies.) And even if they weren’t exempt,
simply using a non-government email account wouldn’t make any
difference, the lawyer explained. “Using my personal account or some
other email account that’s not a federal email account would not
remove me from the prohibition if I’m still either on duty or in a
federal building.”

Perino’s explanation doesn’t hold up on another level as well. Since
the administration has been so insistent that the eight fired U.S.
attorneys were let go for performance rather than political reasons,
how to explain why Rove aide J. Scott Jennings was using his
“political” email account to push for Tim Griffin, a former Rove aide,
to take over Bud Cummins’ job as the U.S. Attorney for the Eastern
District of Arkansas? “The statements from the White House so far have
been rather confusing,” says the Waxman aide. “Very odd.”

While some White House officials may legitimately be using RNC-issued
laptops and BlackBerrys to conduct party business, it’s clear that
others are taking pains to use alternate email accounts simply to keep
their communications from becoming public record. In 2004, U.S. News &
World Report noted, in a three-sentence item, that many White House
aides had begun using Web-based email in order to avoid the White
House system. “I don’t want my E-mail made public,” one White House
“insider” told the magazine. “It’s Yahoo!, baby,” another said.

In the Clinton White House, according to an official staff manual
circa 1997, there was a strict prohibition against using anything but
the official system. In addition, a 2000 directive to White House
staff states that “the system designated for EOP [Executive Office of
the President] mail… is to be used exclusively for E-mail
communications within the EOP Complex and with outside parties. Other
applications (e.g., commercial E-mail services) may not be used to
send or receive E-mail.”

Whether or not the use of non-governmental email accounts ultimately
breaches the Presidential Records Act, it virtually assures an
incomplete historical record of the Bush presidency. “The only way
accurate history can be written is if the full records are available
to evaluate,” says John Carlin, the former national archivist, who did
not want to weigh in directly on the current controversy. “Records
undergird a democracy.”

But the email controversy may be of significance not only to
historians who will pour over the Bush papers in years to come, but to
others who are working to provide present-day accountability. Indeed,
among other people, these revelations could be of particular interest
to a certain federal prosecutor who recently won the conviction of the
Vice President’s former chief of staff, I. Lewis Libby, on charges of
obstructing an investigation into the leak of Valerie Wilson’s
identity. Contained in the lengthy docket of U.S.A. v. Libby is a
January 23, 2006 letter from special prosecutor Patrick Fitzgerald to
Libby’s defense team, who were then jousting over classified
discovery. In it, Fitzgerald advises Libby’s attorneys, “in an
abundance of caution,” that “we have learned that not all email of the
Office of 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.” Though the
prosecution later received an additional 250 pages of records from the
vice president’s office, it remains unclear what the true nature of
this archiving problem was or whether Fitzgerald received all of the
documents that may have been relevant to his investigation.
(Fitzgerald’s office declined to comment after being provided with a
detailed request.) Perhaps Fitzgerald, along with other investigators
who have sought White House records, was looking in the wrong place.
He may want to check the RNC’s servers.

{Daniel Schulman is an Investigative Reporter at Mother Jones.}