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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.”

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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.

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