January 15, 2009 – Six days before the Bush administration’s term ends, a Justice Department attorney told a federal judge Wednesday that the White House found 14 million “missing” e-mails that for nearly two years were the subject of several lawsuits and congressional inquiries and widespread speculation that the documents were destroyed.
Helen Hong, an attorney in the Justice Department’s civil division, said the White House spent $10 million to locate the e-mails. She said the e-mails would be transferred to the National Archives and Records Administration, along with 300 million of other documents in accordance with the Presidential Records Act, immediately after President George W. Bush leaves office next Tuesday.
Hong’s disclosure was made hours after U.S. District Court Judge Henry Kennedy granted an emergency order to an historical research group that directed Bush administration officials to immediately search all White House workstations “and to collect and preserve all e-mails sent or received between March 2003 and October 2005.”
Citizens for Responsibility and Ethics in Washington (CREW) 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 e-mails from 2003 to 2005.
Hong, who appeared at a hearing Wednesday before Magistrate Judge John Facciola, explained that independent contractors hired by the White House found the missing e-mails by looking through 60,000 disaster backup tapes.
In a court filing Thursday that calls for the dismissal of the lawsuit, the Justice Department maintains that the 14 million e-mails were never actually “missing,” rather the e-mails were simply unaccounted for due to a “flawed and limited” internal review by the Office of Administration in 2005. The documents were retrieved, the Justice Department claims, “through a three-phased email recovery process.”
Still, Facciola said in a four-page opinion issued Thursday that e-mail searches were limited to offices subject to Federal Records Act preservation guidelines, while offices that adhere to the Presidential Records Act, which include the National Security Council, the Council of Economic Advisers, and the President’s Foreign Intelligence Advisory Board, were bypassed. Offices subject to the Federal Records Act include the Office of the Trade Representative, the Office of Management and Budget, the Office of Science and Technology Policy, the Council on Environmental Quality, and the Office of National Drug Control Policy.
In other words, e-mails, such as those sent and received by former White House political adviser Karl Rove, could still be unaccounted for.
The missing e-mail controversy first surfaced in January 2006 when Patrick Fitzgerald, the special prosecutor appointed to investigate the leak of Valerie Plame, 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.”
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.
On Feb. 6, 2006, the White House then turned over to Fitzgerald 250 pages of e-mails that it said it had “discovered.” The White House offered no official explanation concerning the circumstances regarding the sudden reappearance of the e-mails, nor comment on whether Fitzgerald’s allegations that the e-mails had not been automatically archived were true. At the time, a White House spokeswoman would only tell me that staffers had “discovered” the batch of documents during a search.
Nevertheless, on Thursday, the Justice Department offered up a highly technical explanation in its court filing Thursday on how the e-mails apparently fell into a virtual black hole during an internal review four years ago.
“The 2005 review attempted to identify the number of e-mail messages archived in .PST files by various Executive Office of the President (“EOP”) components for dates ranging between January 1, 2003 and August 10, 2005, and concluded that 702 component days between January 1, 2003 and August 10, 2005 had “low” message counts in the EOP email system, including 493 component days had zero message counts,” the DOJ’s court filing says.
“The [Office of the Chief Information Officer] discovered that the counting tool used for the 2005 review had a message count limit of 32,000 e-mail messages per day in a .PST file. But because large .PST files did contain more than 32,000 messages, the tool used for the 2005 review failed to “count” those messages and attribute them to components for specific days. Moreover, the 2005 review apparently relied on the name of the .PST file to allocate all of the individual e-mail messages contained within a file to the component named in the file.
“As a result of the technical limitations of the 2005 review, 14 million messages that existed in the EOP email system in 2005 were not counted in the 2005 review. Accordingly, the 2005 review presented inaccurate message counts, concluding that approximately 81 million messages existed in the EOP e-mail system in 2005 when, in fact, approximately 95 million e-mail messages were preserved in the EOP e-mail system. Those “14 million” messages were therefore never “missing,” but simply uncounted in the 2005 review.”
That explanation contradicts previous assertions by White House Chief Information Officer Theresa Payton who had claimed the administration “recycled” its computer back-up tapes and, as a result, the e-mails could not be recovered.
Previously, Payton and White House press secretary Dana Perino have blamed the loss of the e-mails on the administration’s transition from Lotus Notes to Microsoft Outlook.
Additionally, Payton said in a sworn affidavit in early 2008 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. Attempts to force the White House to try and recover “missing” e-mails would “yield marginal benefits at best, while imposing substantial burdens and disruptions.”
David Gewirtz, an expert on e-mail, and the author of the book Where Have All the Emails Gone? said he finds the contradictions between Payton’s testimony and the Justice Department’s response “quite curious.”
“It does seem odd that the [Office of the Chief Information Officer’s] “counting tool” had a 16-bit limit, but one important lesson is to never underestimate the possibility of software to be badly designed,” Gewirtz said. “Given that the messages apparently were stored in .PST files, the fidelity of the message data is clearly in question. I don’t think we’ll really know whether everything’s in order until every single message is deliberately and systematically exported from the rotting .PST files and imported into a solid, reliable, and well-designed archiving database management system.”
Meredith Fuchs, an attorney with George Washington University’s National Security Archives, also doubted the veracity of the administration’s claims.
“From the beginning, the White House has changed it’s story from ‘emails are missing’ to ‘23 million emails were found’ and back to ‘no emails are missing.’ The truth is, neither we nor the public knows what was going on, nor can we verify the White House’s efforts because they continue to conduct themselves under a veil of secrecy,” Fuchs said.
Anne Weismann, chief counsel of CREW, agreed. Weismann said she is troubled by the lack of transparency on the part of the Bush administration regarding the process apparently undertaken to recover e-mails and the disclosure by the administration five days before the end of Bush’s presidency that “missing” e-mails have suddenly been found.
“I think they are clearly manipulating the timing they are manipulating the facts,” Weismann said. “If they had done everything the law required them to do they would be transparent. And to date they have offered vague representations of counsel that they have met their obligations, which is not good enough. At the end of the day it still remains the case that [the White House] was told they had this massive problem and they did nothing. And that doesn’t change. They did it a little late in the game. It wasn’t until they were sued that they took action.”
Weismann added: “Even once a new administration takes office, CREW will continue seeking to hold the Bush administration accountable for its role in the disappearance of the 14 million emails.”
Hong’s claims that outside contractors were hired to recover the “missing’ e-mails was a concern CREW first raised last August.
It was then that CREW disclosed in a court filing that the administration hired an outside contractor to search individual computers for tens of thousands of missing e-mails that disappeared between 2003 and 2005.
But according to the group’s court filing, information technology experts hired to conduct the search apparently were told not to try and locate hundreds of thousands of e-mails from March 2003 to September 2003 that were missing, a crucial timeframe that encompasses the start of the Iraq war, and the leak of covert CIA operative Valerie Plame Wilson.
“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,” according to CREW’s August 2008 statement on the matter. “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 covert 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.
Hong, the Justice Department attorney, did not say in court Wednesday what timeframe is covered by the discovery of the 14 million e-mails. She only said that the White House had met its obligation as required under the Presidential Records Act in locating the electronic communications.
The 2005 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. The timeframe also coincided with litigation surrounding the release of documents related to Cheney’s National Energy Task Force meetings.
Now, if pertinent e-mails White House related to the Plame leak are included in the 14 million that were recovered, they will not be available for the public to view for at least five years in accordance with Freedom of Information Act rules governing presidential records. That would certainly call into question the integrity of Fitzgerald’s probe.
Despite assurances by Hong that “missing” e-mails have been recovered, Gewirtz has advised the incoming administration of President-elect Barack Obama to treat White House computers left behind “like crime scene evidence.”
“What must happen is this: each computer your team finds in the White House and the [Executive Office of the President] must be treated as evidence,” Gewirtz wrote in an open letter to Obama in the magazine Outlook Power. “Each machine must be cataloged and then removed for forensic examination. Under no circumstances should anyone on your team boot up any of those machines or use them.”