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Tuesday, March 18, 2008

Judge orders White House to show cause in email case

By Rebecca Carr | Tuesday, March 18, 2008, 05:35 PM

The legal struggle to uncover what happened to millions of missing White House e-mails intensified today.

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U.S. Magistrate Judge John M. Facciola ordered the White House to prove by Friday why its executive office should not be forced by the court to create and preserve what is known as a “forensic copy” of any data storage used between March 2003 and October 2005.

At issue is a civil lawsuit filed by the National Security Archive at George Washington University and the watchdog group Citizens for Responsibility and Ethics in Washington.

The lawsuit seeks to force the White House and National Archive and Records Administration to take steps to preserve and restore the missing White House e-mails. The missing e-mails cover a period history when the country was at war in Iraq and the administration was under fire for leaking the identity of CIA agent Valerie Plame to the media.

Federal law prohibits the destruction of e-mails and other presidential records.

“The court’s order may bring us closer to protecting the missing e-mails,” said Meredith Fuchs, general counsel at the National Security Archive. “I suppose the White House’s inconsistencies and reversals on the facts are making the court as uneasy as we are.”

Forensic copies of the hard drives would preserve e-mails that may be available on individual work stations, but that are not present on the Executive office’s back-up tapes. Those tapes were recycled prior to October 2003, so e-mails between March 2003 and October 2003 may not be on any of the existing back-up tapes.

Fuchs finds it “perplexing” that the White House would need to be ordered by a federal judge to “take responsible steps to preserve records.”

White House spokeswoman Dana Perino has previousy confirmed the loss of an undetermined number of e-mails. Estimates range as high as 10 million.

The House Government Oversight Committee held a hearing last month to investigate what happened to the e-mails and why White House Office of Administration Chief Information Officer Theresa Payton’s sworn declaration about the e-mails conflicts with other White House statements.

At that hearing, White House officials representatives testified that the White House has depended on “an ad hoc, stop-gap method of archiving emails that was never intended nor suited to be a permanent system,” Fuchs said.

An internal report released at the hearing from the White House office of administration found that “standard operating procedures for e-mail management do not exist.” The report warned that “lost or misplaced e-mail archives may result in an inability to meet statutory requirements.”

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