Watchdog groups -- Citizens for Responsibility and Ethics, and George Washington University’s National Security Archive -- sued the administration last year alleging the White House violated the Presidential Records Act by not archiving e-mails sent and received between 2003 and 2005.

The Bush administration, in threatening to veto the legislation, said the bill is "an excessive and inappropriate intrusion" into the work of the Executive Branch and its staff.

In a statement, the White House said the Electronic Message Preservation Act would "upset the delicate separation of powers" created in the 1978 Presidential Records Act, a law drafted in response to the widespread abuse of federal records during the Nixon administration.

The Presidential Records Act states that the records of a President, his immediate staff and specific areas of the Executive Office of the President belong to the United States, not to the individual President or his staff.

The act further states that the President must "take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented."

By coincidence, Bush issued his veto threat – against this legislative “intrusion” into the handling of his internal records – on the same day that Congress gave final approval to a law granting Bush broader authority to intercept e-mail and other electronic communications by American citizens.

Bush, who signed that legislation into law on Thursday, said his new spying powers were necessary to keep an eye on international communications between people in the United States and foreigners suspected of terrorist ties. However, critics say the warrantless wiretaps shred the Fourth Amendment's protections against unreasonable searches and seizures.

Expanded Secrecy

Since taking office in January 2001, Bush has sought to limit the public’s right to see historical records from past presidents, including his father. In one of his first acts, Bush delayed the scheduled release of documents from the Reagan and first Bush administrations.

After the 9/11 attacks, Bush expanded this secrecy by requiring that releases of historical White House documents must get approval from the current President and the former President or his heirs.

Bush’s veto threat also underscores his position that the President is entitled to broad executive powers and attempts by Congress to rein in that authority are unconstitutional.

The e-mail controversy first surfaced in January 2006 when Patrick Fitzgerald, the special prosecutor appointed to investigate the leak of covert CIA operative Valerie Plame Wilson’s identity, said he "learned that not all e-mail 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."

An internal investigation by officials in the Office of Administration had concluded that e-mails 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 e-mails containing any reference to Plame Wilson or her husband, former Ambassador Joseph Wilson, who had angered the White House by criticizing Bush’s case for invading Iraq.

Additionally, Office of Administration staffers said there were at least 400 other days between March 2003 and October 2005 when e-mails could not be located in either Cheney’s office or the Executive Office of the President.

Theresa Payton, the Office of Administration’s chief information officer, admitted in January that the White House “recycled” its computer back-up tapes until October 2003, making it much more difficult to retrieve e-mails. ‘
 
Legislation Would Reduce Abuses

Rep. Henry Waxman, D-California, said the new House-passed bill also addressed the administration’s conduct of official business through non-governmental e-mail.

Waxman noted that former White House political adviser Karl Rove conducted more than 90 percent of his White House business via an RNC e-mail account going as far back as 2001 and that those records were apparently destroyed.

"Despite the importance of these records, serious deficiencies exist in the way e-mails are preserved, both by the White House and federal agencies," said Waxman, who heads the House Oversight and Government Reform Committee.

Waxman said the Oversight Committee first discovered administration officials were using nongovernmental e-mail accounts during its investigation into disgraced lobbyist Jack Abramoff and his contacts with the White House.

Rep. John Dingell, D-Michigan, said many of the missing White House e-mails coincide with some of the Bush administration's biggest scandals, depriving the public a historical accounting of an already secretive administration.

"Whether it is Vice President Cheney's secret Energy Task Force meetings or the cover-up of the outing of Valerie Plame, the Bush administration has gone to extraordinary lengths to conduct its affairs in secret and to hide key documents from those investigating wrongdoing," Dingell said.

The House bill, which now heads to the Senate, calls upon the Archivist of the United States to develop a plan to capture, manage and preserve White House and federal agencies' e-mails and requires the archivist to certify whether the White House has complied with management of electronic communications.

Susan Cooper, a spokeswoman for the National Archives, said in an interview that her agency does not have the power to force the White House to comply with the Presidential Records Act.

“The key thing to remember about presidential records is that it doesn’t become ours until the end of the administration,” Cooper said. “The National Archives does not have any say or legal input until the end of a President’s term. It’s up to the President to decide how he manages his records.

“However, federal records are a different story. We have input into that immediately. If we believe a federal agency is violating the Federal Records Act we will write a letter to the agency and ask for an explanation and if necessary we will refer the case to the Justice Department.”

In May 2007, Allen Weinstein, Archivist of the United States, said the National Archives wrote a letter to the White House when reports about the extent of the missing e-mails began to surface.

“Because the [Executive Office of the President] e-mail system contains records governed under both the Presidential Records Act and Federal Records Act, on May 6, 2007, the National Archives sent a standard letter to [Alan R. Swendiman] the Director of the Office of Administration requesting a report on the allegations of unauthorized destruction of Federal records,” Weinstein told the House Oversight Committee last month.

The White House criticized Waxman’s legislation as "vague" and said the US. Archivist would be provided with "substantial leeway to establish standards that could impose significant costs and burdens on an incumbent administration, which could interfere with a President's ability to carry out his or her constitutional and statutory responsibilities"

David Gewirtz, an expert on e-mail and the author of the book Where Have All the Emails Gone?, said the legislation is a good first step but the fact that it would take at least five years to fully implement an electronic document preservation program is troubling.

"White House e-mail is very problematic," Gewirtz said. “What offends me as an IT professional is that none of these problems are insurmountable. In fact, most of them are easy to solve. What's worse: not a single private-sector CIO [chief information officer] would be allowed to get away with negligence on this massive scale.”
 

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