The case of the missing e-mail
A federal magistrate judge on Thursday chastised the Bush administration for failing to fully answer questions related to a long-running dispute over missing White House emails. The White House is facing lawsuits from two public interest groups, Citizens for Responsibilty and Ethics in Washington and the National Security Archive at George Washington University, demanding that the White House restore the missing e-mails and put in place systems to prevent further e-mail losses. Administration officials were ordered to provide detailed information about the burdens involved in taking immediate actions to preserve copies of hard drive, tapes, and other media that may contain copies of the missing e-mails.
The ongoing dispute spotlights a part of the executive branch that doesn't often get much attention: its e-mail system. Two laws govern the retention of executive branch documents. The Federal Record Act requires the head of each federal agency to ensure that documents related to that agency's official business be preserved for federal archives. The Watergate-era Presidential Records Act augmented the FRA framework by specifically requiring the president to preserve documents related to the performance of his official duties. A 1993 court decision held that these laws applied to electronic records, including e-mails, which means that the president has an obligation to ensure that the e-mails of senior executive branch officials are preserved.
In 1994, the Clinton administration reacted to the previous year's court decision by rolling out an automated e-mail-archiving system to work with the Lotus-Notes-based e-mail software that was in use at the time. The system automatically categorized e-mails based on the requirements of the FRA and PRA, and it included safeguards to ensure that e-mails were not deliberately or unintentionally altered or deleted.
The Bush White House "upgrades" the e-mail system
When the Bush administration took office, it decided to replace the Lotus Notes-based e-mail system used under the Clinton Administration with Microsoft Outlook and Exchange. The transition broke compatibility with the old archiving system, and the White House IT shop did not immediately have a new one to put in its place.
Instead, the White House has instituted a comically primitive system called "journaling," in which (to quote from a recent Congressional report) "a White House staffer or contractor would collect from a 'journal' e-mail folder in the Microsoft Exchange system copies of e-mails sent and received by White House employees." These would be manually named and saved as ".pst" files on White House servers.
One of the more vocal critics of the White House's e-mail-retention policies is Steven McDevitt, who was a senior official in the White House IT shop from September 2002 until he left in disgust in October 2006. He points out what would be obvious to anyone with IT experience: the system wasn't especially reliable or tamper-proof.
From this...
In detailed testimony to the House Committee on Oversight and Government Reform, he detailed the "journaling" system's flaws. Because the archiving process was conducted manually and in an ad hoc fashion, human error could easily lead to the inadvertent omission of e-mails that are required to be preserved under federal law. Files were "scattered across various servers" on the network of the Executive Office of the President, and there "was no consistently applied naming convention" for the files. It's hardly surprising that things tended to get lost.
Even more troubling, due to a lack of redundancy and proper access controls, anyone with access to the White House servers could have tampered with or deleted the e-mails in the archives. And without adequate logging facilities, there might be no way to determine who might have tampered with the files or what might have been changed.
...to this
These deficiencies were repeatedly brought to the attention of White House systems administrators. In 2002 and 2003, they attempted to retrofit the old, Lotus Notes-based archiving system to work with the new Exchange-based e-mail system. When this effort failed, they awarded a contract to Booz Allen Hamilton to design a new system and to Unisys to implement it. According to McDevitt, the new system was set up and configured during 2005 and was "ready to go live" in August 2006. But the White House CIO, Theresa Payton, reportedly aborted the project in late 2006, citing perceived inadequacies with the system's performance and its ability segregate official presidential correspondence from political or personal materials. McDervitt resigned in protest soon afterwards.
Payton claims that the White House is working on yet another archiving system. But until it's completed—and it's now looking increasingly unlikely that it will be operational before the end of the administration—the White House will lack an automated system for complying with the requirements of federal law.
An elephant never forgets?
Due to the lack of a reliable archiving scheme, thousands of e-mails appear to have been lost, perhaps irretrievably. A 2005 analysis performed by McDevitt (while he was still on the White House Staff) found over 700 days with e-mails apparently missing from the "journaling" archives, including 12 days in which all e-mails from the president's immediate office were missing, and 16 days when all e-mails from the Vice President's office were missing. The White House Office of Administration has estimated that between 2003 and 2005, at least five million e-mails have been lost. Some of those may be recoverable from backup tapes, but in the absence of adequate logging features, there is no way to be sure all of the e-mails have been recovered.
The failure to keep detailed records has had serious political consequences. When Special Counsel Patrick Fitzgerald sought e-mails from Vice President Cheney's office from early October 2003, the White House was unable to produce the e-mails from the "journaling" archive system, and was forced to retrieve e-mails from the desktop computers of individual staffers in the Vice President's office. There is no way of knowing if key e-mails had already been deleted from those computers.
As if that weren't bad enough, there is also evidence that some senior Bush administration officials have taken to using non-government e-mail accounts as a way to skirt the requirements of federal law. For example, the National Journal has reported that while Karl Rove was working in the White House, he used an outside account provided by the Republican party for "about 95 percent" of his correspondence. Indeed, Democrats on the House Committee on Oversight and Government Reform estimate that 88 senior White House officials had e-mail accounts with the Republican party or the Bush re-election campaign, and many officials used them extensively.
Until recently, the Republican National Committee had a policy of deleting e-mails after 30 days. As a result, few of the e-mails sent or received by Bush administration officials from those accounts during the the president's first term have been preserved. And there is good reason to suspect that a significant number of those e-mails related to government business. For example, of the 674,000 messages the RNC does still have on its servers, more than a third were sent to or received from .gov addresses. If Rove or other senior officials were conducting official government business with those RNC email accounts, they likely violated federal law.
The administration stonewalls
A growing number of parties, both inside and outside the government, have begun pressuring the Bush administration to restore those e-mails that can be recovered from backup tapes and to implement a real archival system like the one that existed during the Clinton years. Thus far, the White House has been unresponsive.
Citizens for Responsibility and Ethics in Washington, a DC-based public interest group, filed a lawsuit last May seeking records related to the lost e-mails. In early September, the National Security Archive at George Washington University filed a lawsuit seeking to compel the White House to restore what e-mails they could from backups, and to implement an improved process for archiving e-mails in the future. CREW filed a virtually identical lawsuit later in the month.
Meanwhile, the National Archives, the government agency that will be responsible for preserving records of the Bush years after President Bush leaves office, has been pressuring the Bush Administration since early 2006 to clean up the problems with its e-mail systems. Repeated messages from the Archives during the course of 2007 went unheeded, as the White House continued to show little interest in recovering old messages from backup tapes. The Archives had good reason to be worried. It will be much harder to recover the information after key Bush administration personnel have left. The change of administrations is always a busy time for federal archivists, but it will be especially challenging if the archivists themselves are forced to attempt to recover the emails from backup tapes and employee computers themselves.
The Bush administration's foot-dragging has also attracted the attention of Congress. The House Committee on Oversight and Government Reform has been investigating the missing e-mails, and held a hearing on the subject in February. The committee's staff released a detailed report on the White House's e-mail issues in conjunction with the hearing. In April, Rep. Henry Waxman (D-CA), the chairman of the committee, unveiled legislation that would give the Archivist of the United States authority to establish record-retention standards and certify whether those standards were being followed by the White House and federal agencies.
It's difficult to be sure how much of this reflects incompetence on the part of the White House's IT shop and how much of it is deliberate obstructionism. But if there is obstructionism involved, it certainly would be consistent with the administration's broader philosophy of executive power. The administration has chafed at external oversight and shown a tendency to come up with dubious legal justifications for ignoring laws it doesn't agree with. It has also taken executive branch secrecy to a new level, asserting executive privilege in response to any effort to investigate White House activities. No doubt, the same administration officials who believe the president can authorize warrantless wiretapping without the legally-required court oversight also believe the president can ignore e-mail retention laws if they conflict with presidential prerogatives.
And unfortunately, with the clock running out on this administration, its looking increasingly likely that the administration will not face serious consequences for its failure to follow the law. There may be little we can do about it other than elect a new president who has greater respect for the rule of law and ensure there are tougher rules in place to ensure that the next administration's official correspondence is better preserved, whether the next president wants it to be or not.
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