The Bush administration may have already hired an outside contractor to search individual computers for tens of thousands of missing e-mails that disappeared between 2003 and 2005.
But information technology experts conducting the search apparently have been told not to try and locate hundreds of thousands of missing e-mails from March 2003 to September 2003, a crucial timeframe that encompasses the start of the Iraq war, and the leak of covert CIA operative Valerie Plame Wilson.
The government watchdog group, Citizens for Responsibility and Ethics in Washington, one of two organizations that sued the White House last year in hopes of forcing the administration to preserve its e-mails and recover e-mails lost between 2003 and 2005, disclosed the new details in a court filing last week.
Anne Weismann, chief counsel of CREW, said in an interview Tuesday that she learned through her own sources that the White House completed the second phase of a restoration project to recover lost e-mails.
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“CREW has learned that the White House has now completed its analysis of the missing email problem and confirmed that email is missing for as many as 225 days,” says a statement posted on CREW’s website Weismann confirmed. “In addition, the White House is about to begin selecting, or has already selected, a contractor to restore the missing email, although it is CREW's understanding that the White House does not intend to use backup tapes predating October 2003.
“It has already been established that e-mails for the Office of the Vice President are missing for a critical week in September 2003, when the Department of Justice opened an investigation into the leak of Valerie Plame Wilson's convert CIA identity. Despite the obvious relevance of these new facts to the lawsuit, the White House has refused CREW's request that is advise the Court of these events and bring transparency to the process.”
Senior administration officials disclosed Valerie Plame Wilson’s identity to several journalists in early summer 2003, leading to its publication in a July 14, 2003, article by right-wing columnist Robert Novak.
However, it was not until September 2003 that a CIA complaint to the Justice Department sparked a criminal investigation into the identity of the leakers.
The email controversy first surfaced in January 2006 when Patrick Fitzgerald, the special prosecutor appointed to investigate the leak Plame Wilson leak, said in a court filing following the indictment of Vice President Dick Cheney’s former Chief of Staff I. Lewis Scooter Libby that 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."
In October of 2005, the Office of Administration discovered that White House e-mails had not been archived in accordance with the Presidential Records Act. The Office of Administration had briefed former White House Counsel Harriet Miers about the lost e-mails. It’s documents and email correspondence related to these behind-the-scenes discussions that CREW was hoping to obtain with a FOIA request.
Miers is said to have immediately informed Fitzgerald about the issue. Fitzgerald had been investigating White House officials’ role in the Plame leak and subpoenaed White House e-mails sent in 2003. Fitzgerald stated in a 2006 court filing that some e-mails in the Office of the President and Vice President had not been turned over to federal investigators working on the leak probe.
An internal investigation by officials in the Office of Administration 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.
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.
Weisman said Tuesday that CREW is seeking a status conference to “address the new facts of the case.”
Theresa Payton, the Office of Administration’s chief information officer, would not return calls for comment.
“Frankly, I think it’s pretty clear that the White House doesn’t want to acknowledge that, yes, ‘we have missing email,’” Weismann said.
Earlier this year, Payton filed an affidavit with U.S. Magistrate John Facciaola stating that every three years the White House destroyed its hard drives “in order to run updated software, reduce ongoing maintenance, and enhance security assurance.”
“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.
At the time, Facciola, who has been hearing arguments in the case, had ordered the Bush administration to show cause why the Executive Office of the President should not be compelled to immediately undertake a process to locate missing e-mails.
Payton responded that doing so would not only be daunting and expensive, but ordering the White House to search hard drives was beyond the court’s authority.
On Tuesday, Facciola issued a motion rejecting that argument and affirmed his earlier decision that called upon the Executive Office of the President to search individual workstations used between March 2003 and October 2005 and preserve any e-mails located on those workstations or on portable media used by EOP employees.
It is unclear how Tuesday’s order by Facciola fits into new allegations made by CREW that the White House would not attempt to recover e-mails that went missing prior to October 2003. Without indicating that he was aware of the new allegations by CREW, Facciola said he would advise Judge Henry H. Kennedy, who referred the case to the magistrate in March for a recommendation, to order the White House to recover the lost e-mails.
“We are pleased that despite the White House's plea for reconsideration, the Magistrate Judge stood his ground and recommended that the White House be ordered to locate and preserve e-mails that may be missing from backup tapes but were saved on individual workstations and portable media devices,” said Sheila Shadmand, an attorney with the National Security Archive “Each of the Judge's recent rulings in our favor has brought us one step closer to ensuring that the documentary history of this Administration is not forever lost.”
Facciola denied a request by George Washington University’s National Security Archive, a co-plaintiff with CREW in the case, to grant a motion seeking an “emergency court-supervised” deposition of Payton who CREW and the National Security Archive allege has made false statements about the extent of the missing e-mails during testimony before Congress and in documents filed with the court.
In the affidavit she filed with Facciola in January, Payton said she was unaware if e-mails from the Executive Office of the President and the Office of the Vice President had been properly archived.
But documents obtained in February by Congressman Henry Waxman, the chairman of the House Oversight and Government Reform Committee, showed that officials in Payton’s office advised her that there were more than 400 days between March 2003 and October 2005 where e-mails could not be located in either the Office of the Vice President or the Executive Office of the President or on backup tapes.
Payton then admitted in March that the White House “recycled” its computer back-up tapes until October 2003, which makes it much more difficult to retrieve e-mails.
CREW filed a federal court motion that 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 on Jan. 15
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.”
In his order Tuesday, Facciola said he “cannot recommend the taking of depositions sought” and said the “central focus” should be recovering the missing e-mails.
“The allegedly misleading and false statements were made in response to the Court’s attempt to determine “whether the missing e-mails are contained on the back-ups preserved pursuant to Judge [Henry] Kennedy’s order,” Facciola said. “As discussed above in greater detail, the Court has now determined that not all e-mails sent or received during the relevant time period are contained on the back-up tapes. Compelling the deposition of Ms. Payton would therefore provide no remedial benefit and is thus unavailable here as a sanction.”
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