Bush Looks to His (Secret) Legacy

On Wednesday, just as the Senate passed sweeping new legislation to modernize a 30 year old federal surveillance law, President Bush signaled that he would swiftly veto a bill approved by the House earlier in the day that would overhaul the Presidential and Federal Records Act to ensure emails and other government documents are preserved in the age of the Internet.

The measure was passed by a vote of 286-137, more than a year after several Senate and House investigations discovered that the Bush administration apparently purged millions of emails and that dozens of administration officials used email accounts maintained by the Republican National Committee to conduct official White House business in what appeared to be a violation of the Presidential Records Act.

The government watchdog groups Citizens for Responsibility and Ethics in Washington 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 emails sent and received between 2003 and 2005.

The Bush administration, in threatening to veto the legislation, said that 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 and that such records are maintained as presidential records pursuant to the requirements of this section and other provisions of law."

The White House’s position on the legislation is remarkable considering that lawmakers just approved controversial legislation Wednesday that authorizes President Bush to direct the National Security Agency to peer into emails of average American citizens if he believes they have terrorist ties, an extraordinary move that civil liberties groups and constitutionalists said shreds the Fourth Amendment.

The statement also underscores the White House's position that the president is entitled to broad executive powers and attempts by Congress to rein in that authority is unconstitutional.

Questions About Missing Emails First Surfaced During ‘Plame-Gate’

The email controversy first surfaced in January 2006 when Patrick Fitzgerald, the special prosecutor appointed to investigate the leak of covert CIA operative Valerie Plame Wilson, 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 emails 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 emails. 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 Special Prosecutor Patrick Fitzgerald about the issue. Fitzgerald had been investigating White House officials’ role in the leak of covert CIA operative Valerie Plame and subpoenaed White House emails sent in 2003. Fitzgerald stated in a 2006 court filing that some emails 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.

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. ‘

In a sworn affidavit Payton filed in federal court in March related to CREW’s lawsuit against the Office of the President, she said the White House destroyed its hard drives every three years “in order to run updated software, reduce ongoing maintenance, and enhance security assurance. So its unlikely that any lost emails would be retrieved anyway.

“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.

Legislation Would Reduce Abuses

Congressman Henry Waxman, the California Democrat who sponsored the bill, said a radical overhaul of the way federal and presidential records are preserved is sorely needed in light of revelations that former White House political adviser Karl Rove conducted more than 90 percent of White House business via an RNC email account going as far back as 2001 and 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's committee has spent considerable time investigating the loss of White House email.

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

"That investigation found that many of the email exchanges between Jack Abramoff and White House officials were conducted via nongovernmental email accounts," Waxman said in letters sent to the RNC and the Bush/Cheney 2004 Campaign in March 2007. "In at least one case, the emails indicate that these nonofficial accounts were being used because 'to put this stuff in writing in their [sic] email system ... might actually limit what they can do to help us.' The Abramoff investigation found that in multiple instances, Susan Ralston, Karl Rove's executive assistant, exchanged emails with Jack Abramoff regarding official government business while using accounts maintained by the Republican National Committee and the Bush/Cheney 2004 campaign."

Before she started working for Rove, Ralston worked as Abramoff's executive assistant.

Furthermore, Waxman said, "the investigation also found that Barry Jackson, deputy assistant to the president and deputy to the senior adviser, used a "georgewbush.com" email account to communicate with Neil Volz, an Abramoff associate who has been convicted of public corruption charges."

Waxman said that in certain cases White House officials were using alternative email accounts to avoid creating an automatic paper trail of their communications about hot-button political issues.

"In one case, Mr. Abramoff sent Ms. Ralston an email on her RNC account asking her to 'pass on to Karl that Interior is about to approve a gaming compact ... for a tribe which is an anathema to all our supporters'" and requesting "some quiet message from WH that this is absurd," Waxman wrote, quoting from the Ralston and Abramoff email exchange. "This email was forwarded to Jennifer Farley in the White House Office of Intergovernmental Affairs, who apparently then warned one of Abramoff s associates about the dangers of leaving a record of their communications. According to an email Mr. Abramoff received from his associate Kevin Ring: Your email to Susan was forwarded to Ruben Barrales and on to Jen Farley, who read it to me last night. I don't know what to think about this, but she said it is better not to put this stuff in writing in their email system because it might actually limit what they can do to help us, especially since there could be lawsuits, etc. ... Just letting you know what she said.'"

Abramoff responded to that exchange, according to Waxman, writing in an email, "Dammit. It was sent to Susan on her rnc pager and was not supposed to go into the WH system."

Congressman, John Dingell, D-Mich., agreed, and pointed out that many of the missing White House emails coincide with some of the Bush administration's biggest scandals, depriving the public an historical accounting of an already secretive administration.

"Whether it is Vice President Cheney's secret Energy Task Force meetings or the coverup 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 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' emails and requires the archivist to certify whether the White House has complied with management of electronic communications.

The Congressional Budget Office estimated that it would cost about $155 million to implement the program over the next five years.

Agencies Still Print-and-File Emails

Michael Smallberg, who works for the Project for Government Oversight (POGO), a watchdog group that is a strong supporter of Waxman's bill, said the legislation "would direct the National Archives to require federal agencies to preserve their electronic communications in a standardized electronic format."

"Right now, many agencies simply “print and file” their electronic records, which might be acceptable except for the fact that so many records have a nasty tendency to disappear, " Smallberg wrote in a blog post published on POGO's website.

Indeed, the Government Accountability Office issued a report last month that said four federal agencies it had monitored do not have a system in place to preserve emails. The agencies the GAO reviewed simply rely print-and-file systems to preserve their email records, meaning the documents can easily be destroyed or lost.

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

“One thing you have to remember 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 emails began to surface.

“Because the [Executive Office of the Presdient] email 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 in sworn testimony last month. “While we have not received a written reply to the May 6 letter, we have been diligent in requesting an update on the status of the White House's review of these allegations and the possibility of missing Federal and Presidential emails, the White House has responded regularly that its review is still continuing. Furthermore, we have made our views clear, both to the White House and to this Committee, that, in the event emails are determined to be missing, it would be the responsibility of the White House to locate and restore all the emails, probably from the backup tapes, and that such a project needs to begin as soon as possible.”

Oversight Given to Archivist

Still, the White House criticized Waxman’s legislation as "vague" and said the U.S. 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.”

Gewirtz said emails suddenly disappeared at a time when the White House had switched its email over from Lotus Notes to Microsoft Exchange, an issue the author finds suspicious.

“Why did they migrate at this time? The country was getting ready for war,” noted Gewirtz, who said he has spoken to Senate and House staffers probing the loss of White House emails. “It doesn’t make sense that you would want to yank out your communications structure when you’re building up toward war. It’s crucial for our government to have qualified communications at a critical juncture. It’s just mind bogglingly questionable that the White House would change its communication structure at that time period. Why did they need to do it then? It certainly provides a lot of plausible deniability for when emails are scrutinized.”

Court Grants Stay

Late Tuesday, U.S. District Court Judge Colleen Kollar-Kotelly granted CREW's request for a stay pending appeal against the White House Office of Administration, the agency responsible for preserving emails. CREW is seeking documents under the Freedom of Information Act regarding the White House's loss of millions of emails from White House servers.

Last month, Kollar-Kotelly had ruled last month that the Office of Administration is not an agency subject to FOIA provisions.

The Judge’s ruling said the Office of Administration does not “exercise substantial independent authority” and therefore was not an agency subject to FOIA.

“The Court finds that [Office of Administration] has a self-contained structure and that it is not as close to the President operationally as other EOP components that have been found not to be agencies,” the judge’s ruling states. “The Court finds that the nature of [the Office of Administration’s] delegation of authority from the President dispositively establishes that it is not an agency subject to the FOIA.”

In May 2007, CREW sued the Office of Administration for records regarding missing White House e-mails and the office’s analysis of how widespread the problem was. Initially, the Office of Administration had agreed to turn over some records to CREW, but then abruptly backtracked, concluding that it wasn’t an “agency” subject to the FOIA.

However, the Office of Administration functioned as an agency and processed FOIA requests until August 2007. The White House’s website identified the Office of Administration as an agency and even listed instructions on how to file FOIA requests for Office of Administration documents. The office has responded to FOIA requests since its creation in 1978 by the former President Jimmy Carter.

CREW filed an appeal but the Justice Department lawyers had argued that a stay was unnecessary because they had assured CREW that the records would be preserved. Kollar-Kotelly, however, rejected that argument.

CREW is concerned that even if the court of appeals rules in CREW’s favor and finds that the Office of Administration is an agency subject to FOIA, meaning that its records must be produced to CREW, once the records are transferred to the Archivist they will be difficult to recover.

Although CREW had asked that Office of Administration to maintain control of these records past the end of the Bush administration, the court ruled only that if the appeal is not resolved by January 5, 2009, CREW may renew its motion for a stay addressing the impact of the transition on the requested records.

Anne Weismann, chief counsel of CREW said the ruling is "an important step in holding the White House accountable by ensuring that the records regarding the millions of missing emails are preserved.

“These records belong not to the president, but to the American people. The public deserves an explanation of what happened to the missing emails, and CREW will continue to fight to get that explanation."

Jason Leopold launched a new online investigative news magazine, The Public Record.

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