Judge orders White House to clarify whether or not missing e-mails are recoverable
Nick Langewis
Published: Thursday April 24, 2008

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Today, Magistrate Judge John M. Facciola of the U.S. District Court ordered the White House to once and for all provide "precise information" about its e-mail system.

The order stems from a lawsuit by the National Security Archive, filed on September 5, 2007 against the Executive Office of the President and the National Archives and Records Administration, claiming that a possible 5-to-10 million e-mails were either improperly preserved as Presidential records, as required by law, or lost entirely.

House Judiciary Committee chairman Sen. Patrick Leahy (D-VT), in a 2007 address, called such a breach of record-keeping requirements reminiscent of the "18-minute gap" in the infamous Nixon White House tapes, subpoenaed during the Watergate scandal.

The "missing" e-mails cover a 473-day period, which includes the date of CIA agent Valerie Plame's outing and a string of U.S. Attorney firings widely believed to have been politically motivated. The White House was ordered to preserve all known e-mail records in November of 2007.

"This ruling is a major victory for accountability at the White House," said Tom Blanton, National Security Archive director. "We have seen delay after delay, and constantly changing stories, none of which come up to the standards that are required by law."

Between late 2001 and early 2002, the Automated Records Management System (ARMS), put in place by the Clinton Administration to store e-mail records, was dismantled, with the Bush Administration proposing a switch to ECRMS, or the Electronic Communications Records Management System. In the meantime, a temporary procedure of manually archiving each staffer's records was put in place.

E-mails began to disappear on January 3, 2003, and ECRMS was ultimately never put in place. Backup tapes were re-used until October of 2003.

Says the Archive's General Counsel Meredith Fuchs: "The Court is reacting to the inconsistencies in the White House statements: e-mail are lost one day, the next they are not; e-mails are recoverable, then they are not; backup media is saved, then it is not.

"What worries us is that time is passing there are only 8 more months until this administration leaves office and if nothing is done soon not only could the e-mails disappear for good, but the federal records that are commingled with the presidential records could get swept away and become inaccessible for the next 12 years."