Departments
White House official tells judge searching for missing emails too much work
by Jason Leopold
March 24, 2008
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.
“Even if 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 fronts.
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—and that she did not know whether emails were properly archived, conducted the internal probe.
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 chair 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 staffer I. Lewis "Scooter" Libby, who was convicted last year by federal grand 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” 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 it 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 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.”
---
Jason Leopold is the author of the National Bestseller, "News Junkie," a memoir. Visit www.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.
|
 |
Recent National Issues Articles
Help at last for air traffic controllers December 30, 2008 Dick Meister
Did Bush Sr. kill Kennedy and frame Nixon? December 28, 2008 David Swanson
Class is a dirty word December 27, 2008 Michael Parenti interviewed by Jason Miller
Dark prayer December 25, 2008 Robert C. Koehler
The pacifier tree December 18, 2008 Robert C. Koehler
Three Party Time! December 8, 2008 Christopher Bifani
With shot and shell or December 8, 2008 Mike Ferner
Women bringing new strength to unions December 6, 2008 Dick Meister
Redefining 'realism' December 5, 2008 Robert C. Koehler
As Congress lay dying December 2, 2008 David Swanson
Barry Bonds' grand adventure November 29, 2008 Dick Meister
You cannot pardon a crime you authorized November 28, 2008 David Swanson
The ghosts of Desert Storm November 28, 2008 Robert C. Koehler
Stacks of dead presidents or flesh and blood companions? November 23, 2008 Jason Miller interviewed by Robert Turnbull
History IS SCREAMING November 22, 2008 Robert C. Koehler
Scooter politics November 16, 2008 Christopher Bifani
What if labor opposed war? November 16, 2008 David Swanson
Hope and vision November 13, 2008 Robert C. Koehler
Open Veterans' Day letter to the president-elect November 13, 2008 James A. Lucas
Melissa Gragg and Jason Miller interview Derrick Jensen November 10, 2008 Melissa Gragg, Jason Miller and Derrick Jensen
Obama cabinet good and bad news November 9, 2008 David Swanson
How to treat a President-Elect November 9, 2008 David Swanson
Labor's high hopes November 7, 2008 Dick Meister
Let us shed tears of gratitude for this moment of grace. It will be brief. November 6, 2008 Mike Ferner
A paradigm shift in America's intellectual community November 6, 2008 Pablo Ouziel
Vigilante pals of Palin’s not so distant past October 28, 2008 Russ Bellant
Monitoring the new president October 19, 2008 Jim Lucas
ACORN's Response to Senator McCain's Smear Ad October 12, 2008 ACORN President Maude Hurd
Time to create the economy we want; multiple crises in the U.S. presents an opportunity for real change October 11, 2008 Kevin Zeese
It's the war crimes, Mickey October 11, 2008 David Swanson
ACORN is not the nut here October 11, 2008 David Swanson
Repeal Taft-Hartley! October 11, 2008 Dick Meister
One nation under capitalism: It’s time for a crucifixion October 7, 2008 Jason Miller
The Fed: The fox in America’s henhouse October 6, 2008 James Heddle
One nation under capitalism: it’s time for a Crucifixion October 4, 2008 Jason Miller
Power to the Cheaple! October 1, 2008 Christopher Bifani
Why the bailout vote may fail September 29, 2008 David Swanson
VFP lights the way September 7, 2008 Mike Ferner
Raiding democracy in St. Paul September 2, 2008 Kris Hermes, Coldsnap Legal Collective
It's Labor Day for great expectations August 27, 2008 Dick Meister
Civilian diplomacy August 14, 2008 Robert C. Koehler
My heroes of history August 12, 2008 Chuck Baldwin
Pelosi claims Republicans want impeachment August 6, 2008 David Swanson
President's job is to pardon August 5, 2008 David Swanson
Prosecuting Bush and Cheney August 4, 2008 David Swanson
America's second-class workers August 2, 2008 Dick Meister
Bush White House hides true scope of federal deficit August 1, 2008 Richard A. Viguerie
The religious right is AWOL from the real war July 23, 2008 Chuck Baldwin
American Samaritans July 22, 2008 David Swanson
How they'll try to bury impeachment and fail July 20, 2008 David Swanson
A summer of deadly heat July 18, 2008 Dick Meister
Bong photo means trouble bubbling for Olympic swimmer July 18, 2008 Tom Luffman
Murdering God: of shotguns, American capitalism, and moral expediency July 14, 2008 Jason Miller
Steel rain July 10, 2008 Robert C. Koehler
Rep. Virgil Goode swears he doesn't hate immigrants July 10, 2008 David Swanson
George W. Bush to speak at Monticello on July 4 July 1, 2008 David Swanson
Veterans For Peace deliver 23,000 impeachment petitions to House Judiciary Chair Conyers June 16, 2008 Mike Ferner
Obama debe aprender de la denuncia de mala conducta y de robo de elecciónes de Dennis Kucinich June 16, 2008 Bob Fitrakis & Harvey Wasserman
Antioch college alumni: university leaders should step down June 8, 2008 Laura Fathauer
Now what? June 7, 2008 Robert C. Koehler
Will McCain name torture ships for big donors? June 4, 2008 David Swanson
The watch list through the prism of global war on terrorism June 1, 2008 Ahmad Al-Akhras, Ph.D.
Gee that's a funny GI Bill June 1, 2008 David Swanson
The flip side of glory May 29, 2008 Robert C. Koehler
Indictment and trial of Bush and Cheney May 27, 2008 David Swanson
Gravediggers of the world unite! Capitalism must die... May 17, 2008 Jason Miller
The penta-pundits May 16, 2008 Robert C. Koehler
Conyers tells Bush Iran attack = Impeachment May 14, 2008 John Conyers, Jr.
Long night sitting-in May 14, 2008 Bruce K. Gagnon, http://www.space4peace.org
Apology denied May 9, 2008 Robert C. Koehler
The possible future May 3, 2008 Robert C. Koehler
Desiree Fairooz was convicted today for calling out Condi May 2, 2008 DC Indymedia
Truth wreckage April 25, 2008 Robert C. Koehler
Jesus knows a camel when he sees one: We are NOT passing through the eye of that needle, America... April 7, 2008 Jason Miller
Granny D says Bush guilty of treason, urges people to scare Congress into ending occupation April 6, 2008 Doris "Granny D" Haddock
A tale of three men: Pete, Norman, and Bill - More from the take back America conference April 4, 2008 Joan Brunwasser
We're sitting in at the House Judiciary Committee Office right now April 3, 2008 David Swanson
Antioch College Alumni Outraged at University's Rejection of Bid; Vow to Continue to Fight and to Support "Nonstop Antioch" March 29, 2008 Antiochians.org
White House official tells judge searching for missing emails too much work March 24, 2008 Jason Leopold
An honor long due: Cesar Chavez March 24, 2008 Dick Meister
How an unwanted guardianship cost a firefighter his freedom and his fortune March 22, 2008 Bob Fitrakis and Harvey Wasserman
Will the Fourth Amendment be replaced by the Foreign Intelligence Surveillance Act? March 18, 2008 Pete Johnson
Nonviolent blockade of IRS headquarters March 17, 2008 Frida Berrigan
National Lawyers Guild calls on Congress to override Bush veto of Intelligence Authorization bill March 12, 2008 Marjorie Cohn
Free Press reporter at Cleveland's Obama-Clinton debate March 1, 2008 David S. Lewis, National Affairs Editor
"Torture Memo" author used health care statute to form legal basis for waterboarding February 22, 2008 Jason Leopold
How sick of it are you? February 20, 2008 Mike Ferner
Non-electoral activism in a presidential election year February 18, 2008 Ted Glick
Rep. Leonard Boswell signs onto Cheney impeachment February 18, 2008 David Swanson
Taibbi gets it halfway right February 10, 2008 David Swanson
Can your town ban the military from recruiting anyone under 18? February 8, 2008 David Swanson
How Obama could create a long-term Democratic majority February 3, 2008 Paul Rogat Loeb
One of key SOTU lies was a rerun January 31, 2008 David Swanson
Rep. Nadler holds hearing on state secrets January 30, 2008 Shin Inouye
State of Union came with a signing statement January 30, 2008 David Swanson
One Bush left behind January 29, 2008 Greg Palast
The Iowa Caucus is decadent and depraved January 28, 2008 David S. Lewis
No war, no warming, round two January 28, 2008 Ted Glick
Road to impeachment and peace runs through Cleveland January 28, 2008 David Swanson
No more investigations please January 26, 2008 David Swanson
Does Hillary Clinton cross ethical lines? January 26, 2008 Paul Rogat Loeb
Martin Luther King, Jr.: his day and today January 21, 2008 Joan Brunwasser
What MLK said about change January 16, 2008 David Swanson
Washington state Senator introduces resolution exhorting Congress to Impeach Cheney and Bush January 13, 2008 David Swanson
The speech McCain should give January 13, 2008 David Swanson
To Nancy, with all due respect January 12, 2008 David Swanson
Bangor (Maine) Daily News first major newspaper to editorialize in favor of impeaching Cheney January 10, 2008 Bangor Daily News
Protesting torture in front of the CIA January 10, 2008 Washington Peace Center
ACLU of Florida calls for impeachment hearings for Bush and Cheney January 7, 2008 David Swanson
Remembering the separation of powers January 6, 2008 David Swanson
Rep. Mike Michaud writes strong letter to Conyers calling for Cheney impeachment hearings January 4, 2008 Michael H. Michaud
Peace activists occupy Huckabee's Iowa campaign: "Who Would Jesus Bomb?" January 1, 2008 Mike Ferner
Could Obama & Edwards team up in the caucuses? January 1, 2008 Paul Rogat Loeb
Ron Paul in 2008? Just say no to Dr. No January 1, 2008 Jason Miller
Read National Issues Articles by Year: 2013 2012 2011 2010 2009 2008 2007 2006 2005 2004 2003 2002 2001 2000 |