In April 2007, Citizens for Responsibility and Ethics in Washington told the world that the White House had failed to comply with its legal obligation to properly retain and archive e-mail records. The revelation came after the Abramoff scandal revealed that some officials were using private e-mail accounts to conduct official business, but this was something different: CREW alleged that at least five million e-mails had been lost due to the White House’s failure to implement a comprehensive e-mail archiving system.
That report kicked off a long-running saga, driven by investigations by Representative Henry Waxman and lawsuits from National Security Archive, the George Washington University-based records watchdog, and CREW. The Obama administration settled the cases in December 2009, agreeing to release documents that recorded their predecessor’s response to the crisis. From these tens of thousands of pages of documents, CREW produced what should be the final word on the issue, a fifty-plus page report which was released last month.
CREW was originally alerted to the problem from whistleblowers, who told of their superiors’ disinterest in efforts to grasp the full extent of the problem, to propose solutions, and to archive what stray e-mails could be found scatted across various computers or on the White House’s emergency backup tapes. While the nature of the problem—how can you count things that are missing?—has obscured the full extent of any data loss, a White House internal analysis from 2006, before the problem went public, showed that there were 473 days where a component of the White House registered not a single archived e-mail. Another 229 days had abnormally low numbers of archived e-mails.
While some of these messages were subsequently archived, the missing days included periods of time where history—not all of it so favorable, in retrospect, to the Bush administration—was being made, including the period surrounding the Valerie Plame Wilson investigation.
Most e-mails at the White House are governed by the Presidential Records Act, a post-Nixon law requiring outgoing presidents to turn over their documents to the National Archives and Records Administration (NARA), where they can remain out of public view for up to twelve years. Other e-mails at the White House that are less closely connected to the president’s executive powers are governed by the Federal Records Act, and more open to the public.
CJR spoke with Anne Weissman, who oversaw federal information law litigation as a high-ranking Justice Department lawyer before joining CREW as a senior counsel, about the report’s conclusions, the chances of further restoration, and what we know about the Obama administration’s e-mail archiving procedures.
What’s the analogy for what happened here if we were talking about paper files?
Let’s imagine you keep your paper files, but all you do is open a closet door and throw them in. So four years later, you open the closet and you have a pile up to the ceiling. Stacks and stacks of paper—they’re not organized in any way. You can’t tell what comes from a presidential record, what comes from a federal agency, what it’s about.
It’s maybe a little worse. It’s a closet with a hole in the floor, where ten or twenty percent slips out.
That’s right. The other thing about it is that it would be an unlocked closet door. It’s possible that someone in the four years reached into the closet, took out a handful and put them in the shredder. We don’t know. Nobody can certify that things didn’t go missing, because the system was open to access by others.
So how many e-mails were lost?
We know a significant portion were. Was it one million, was it ten million? We just don’t know. The number may ultimately not be knowable, as unsatisfying as it is. If they were never captured in the first instance, we just don’t have a record of them anywhere.
Initially we focused so much on the number, because it was such a big number, and it suggested that the problem wasn’t just some small computer error. But as we dug into it and read thousands of pages of documents, what was more striking was that there were a series of missteps that the Bush White House made, and they were told over a period of many years that there were problems: “If you do X, there will be problems.” And they went ahead and did X. “If you do Y, there will be problems.” And they went ahead and did Y.
There’s a difference between an e-mail that’s unarchived and one that’s totally lost.
That’s right. But you could say for all practical purposes unarchived e-mails are lost—because if they don’t have it in their archive, it’s not accessible.