Sign up for The Media Today, CJRâs daily newsletter.
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 Houseâs 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 predecessorâs 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 superiorsâ 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 Houseâs emergency backup tapes. While the nature of the problemâhow can you count things that are missing?âhas 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 historyânot all of it so favorable, in retrospect, to the Bush administrationâwas 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 presidentâs 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 reportâs conclusions, the chances of further restoration, and what we know about the Obama administrationâs e-mail archiving procedures.
Whatâs the analogy for what happened here if we were talking about paper files?
Letâs 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 paperâtheyâre not organized in any way. You canât tell what comes from a presidential record, what comes from a federal agency, what itâs about.
Itâs maybe a little worse. Itâs a closet with a hole in the floor, where ten or twenty percent slips out.
Thatâs right. The other thing about it is that it would be an unlocked closet door. Itâs possible that someone in the four years reached into the closet, took out a handful and put them in the shredder. We donât know. Nobody can certify that things didnât 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 donât know. The number may ultimately not be knowable, as unsatisfying as it is. If they were never captured in the first instance, we just donât 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 wasnât 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: âIf you do X, there will be problems.â And they went ahead and did X. âIf you do Y, there will be problems.â And they went ahead and did Y.
Thereâs a difference between an e-mail thatâs unarchived and one thatâs totally lost.
Thatâs right. But you could say for all practical purposes unarchived e-mails are lostâbecause if they donât have it in their archive, itâs not accessible.
One of the things that I think the Bush White House used to try to defend their actions was to say âWell, we came in and we found all these additional e-mails.â But if they existed on backup tapesâand they arenât all on backup tapesâwell, theyâre not accessible. Theyâre not part of the archive.
Through the limited restoration project that was done [by the Obama White House], we discovered that there most definitely were e-mails on backup tapes that were not part of the archive. Those are now part of the archive of e-mail records for the Bush White House.
Isnât the National Archives required to present as full a record as they can? Is there any possibility that more e-mails could come to light once theyâre in the Bush library?
We have a hole, and everybody knows we have a hole: there definitely are more e-mails on those backup tapes, and I would have hoped that NARA would view this as a sufficient priority that theyâd push on their own. But so far they havenât.
Itâs a question of money. Our hope would be that we could convince Congress or someone to appropriate money for this. Thatâs why we wanted to make sure the Archives kept the backup tapes. And itâs still a hope, but the story doesnât attract the same attention that it did. Everyone has moved on.
The fact of the matter is that if the Bush administration had done a full restoration from the backup tapes at the outset it would have ended up costing them less. And that was the recommendation that the Office of Administration had made. And it never happened.
The White House knew they had a big problem on their hands in 2005. How did you find out about it?
We found out about it because we had someone, essentially a whistleblower, come and tell us. It seemed sort of incredible: that the White House had discovered that many millions of e-mails were missing?
Then we had another source come to us and say the same thing. And at that point, it seemed reliable enough to put it out there. I will admit I had some trepidation. I was waiting for the White House to say this is totally wrong. And they didnât!
When our first report went public, they admitted it. They might have quibbled with the numbers, and they certainly tried to make CREW and our motives an issueâas opposed to their own conductâbut there was no flat out denial. Then Waxmanâs committee got involved and they got access to the actual documentation.
How else did information come out?
When the Obama administration came in, there was an interest in settling the lawsuit. We said any settlement had to have three key components: there has to be some restoration of missing e-mail, we have to have assurances that the White House is now using an appropriate system, and we need documentation because we think the public needs to know the story. So we got tens of thousands of documents from the White House as part of our settlement.
What were the grounds for your lawsuit?
We were arguing that the failure of the White House to preserve and restore the missing e-mails was a violation of the Federal Records Act.
There are components of the White House that produce federal recordsâlike the Council on Environmental Quality, for example. And there are components that create presidential records. The courts have said that private groups cannot sue for the same problems with presidential records. And normally that would have precluded this lawsuit.
A bunch of different administrations have been sued over this issue. The Clinton administration was sued, and they set up a system that maintained federal and presidential records separately. When Bush got in and scrapped that system, they didnât maintain them separately. They just dumped them all together.
It was a problem legally for them, but it helped us. That gave us a basis to go in and say, âWell, weâre suing over the federal records.â Since they couldnât differentiate between them, when they did restoration they had to restore both. I think itâs the greatest irony.
Huh. If they had gone ahead and fixed the system for the federal records, would there be anything that anyone could do about them not having an adequate system for presidential records?
No. The bottom line is that if the Bush White House had chosen to say, âWe donât want to put in a good system for presidential records,â Iâm not sure there was anything we could have done.
And thatâs a big problem. We have been pushing for legislative changes, amendments to both the Federal Records Act and the Presidential Records Act. There has been legislation that has been proposedâand that I think is getting some renewed interestâthat would require the Archives to certify that the White House system meets requirements for presidential records.
But the archivist would have no ability to compel the White House to do anything. Congress has been really afraid of the constitutional issue lurking in the background: if you have legislation that directly limits or controls how a president manages his or her presidential records, that this is going to run afoul of the constitution.
The argument I make in response to that is that I think that if all you are doing in legislation is requiring that the system have certain functions consistent with archival practice, I donât think thatâs unconstitutional.
Why did this problem happen? It seems hard to believe that they preferred Microsoft Exchange so much that it was worth scrapping the Clinton administrationâs system [ARMS, the Automatic Records Managements System] that worked with Lotus Notes.
Based on my review of the documents, I think they had a patent disregard for their record-keeping obligations. It just wasnât a priority for them. Clearly the technical people within the White House understood that practices they were pursuing were not in compliance with their legal obligations, and kept telling them that.
Itâs understandable that they donât want to continue ARMS, because Lotus Notes is not the preferred system for many people and organizations. I donât think thereâs anything alarming about that. They try to tinker with ARMS to see if it can preserve electronic records created in Microsoft Exchange. And they canât get it to work.
So their people tell them you really canât go through with this migration if you donât have a system in place, and they ignore it. And then they come up with a new system and they scrap that.
Thatâs the ECRMS [Electronic Communications Records Management System].
To me, one of the most troubling things they did was their very, very, last minute decision to scrap the ECRMS after they had spent millions of dollars and years in developing it, and for reasons that just arenât credible. Even the Archives did not accept them as credible.
What was their explanation?
Well, part of it was that it didnât separate federal and presidential records, completely ignoring the fact that was a decision they had made early on.
But was that the right decision?
No. I think they are required to, and NARA would certainly say they are required to. If you donât keep them separate, I donât see how you can comply with your legal obligations for the two different kinds of records.
So when they made this incorrect decision, by the time it was 2007 and ECRMS was ready to go up, in your view it was too late to worry about it even if it was a bad decision?
But I donât know what it would have taken to correct that. What I canât figure out by looking at the documents was that right up until the moment they scrapped it, they were going ahead, full steam. The documentation we did get did not really offer a coherent explanation that lots of people would agree and say âThat makes sense, they should have abandoned it.â
Now what my source had told meâand not surprisingly I didnât see any confirmation of this in the documentsâwas what troubled people was its search capabilities, that it could do a Google-like search. As it was described to me, there was a briefing to describe how ECRMS would work, and the White House Counsel was present, and others, and the sense that this person got was that when they saw how effective it was in searching, coincidentally that was when the decision was made not to pursue it. So this person presumed from that, that that was a motivation. Obviously thatâs a much more sinister explanation.
Bottom line, what your source suggested was the problem with ECRMS was that it would have worked too well.
The other thing they said was that it wasnât going to be ready in time for a presidential transition. And NARA didnât agree with that either. So they held out for another system that never got implemented by the time they left office.
What didnât you get access to?
The body of documents that we did not get access toâand never will, Iâm sureâis whatever communications there were with White House counselâs office. The documents support that they were definitely involved and kept abreast of what was going on.
They would have to beâthe counsel would have to know how they were meeting their records requirements.
Right. But we do know if you look at the chronology that there were certainly recommendations that were made to White House counselâs office and then nothing happened. So one inference that I think is perfectly legitimate is that the counselâs office is the one that killed it. But I donât know.
You didnât get those because they were presidential records. Wonât those be public in twelve years?
That should be the case.
What was NARAâs ability to oversee this system?
It was totally at the good graces of the White House, and the White House froze them out for long periods of time. And there was nothing NARA could do. Some of these documents really expressed NARAâs frustration. The big overriding issue for NARA is always the transitionâwhen a new president comes in, NARA starts planning almost immediately for the transition to the next one because itâs such an humongous undertaking. NARA really needed to get information about the systems so they could start planning. And they just werenât getting that information. They didnât know about the problem until our report came out, and theyâre kind of blown off by the White House.
So even though NARA is the agency thatâs going to end up holding these records, and processing them, and figuring out a way to get them to the public, thereâs no requirement that the White House works hand in hand with them to make sure they are coming in a format thatâs going to work.
I assume the assumption from Congress is that the president wants to preserve history, and that the president wants to do the right thing. The problem is when you get a president that is not doing the right thingâthey have no ability to compel otherwise.
One of the more salacious parts of the story is the Libby e-mails. The White Houseâs archives contained no or few e-mails from certain days requested by special counsel Patrick Fitzgerald in his investigation of the Plame leak. In the report you say there are âtantalizing tidbits⌠that suggest more nefarious conduct.” Itâs the records recording the response to Fitzgeraldâs request that are missing.
Presumably, yes. Justice calls Alberto Gonzales and says âWeâre going to need your records, weâre doing an investigation, and you guys need to preserve.â
One wonders what was going on. The idea that after being toldâand maybe they suspected it, but having it confirmedâthat Justice was doing an actual criminal investigation, that there would have been no e-mails in the vice presidentâs office is not believable.
They couldnât find them. And they went to backup tapes, and they were not on backup tapes for the OVP [Office of the Vice President]. So then someone came up with the idea of looking at the backup tapes that have the individual mailboxes of individual OVP employees. Now thatâs where I think in my mind one of the most curious and suspect things happens, which is when they put together the list of boxes to be recovered, somehow Libbyâs name isnât on it.
The report offers some potentially innocent explanations for how he was left off the list. Libby had this weird statusâhe was technically a Bush employee detailed to Cheney, and not an OVP employee.
But he was! He had this dual status. Itâs just hard to fathom how the list could have gone through White House Counselâs office for them to sign off on and they wouldnât have said âYou know, you really should have Libby on this.â
So do we know if Fitzgerald noticed that he didnât get e-mails from Libby from this period?
No, we donât. I assume there were some e-mails from Libby that were in other peopleâs e-mails that he got. And we know from a letter that Fitzgerald sent to Libbyâs counsel and that Fitzgerald made public that he had been told by the White House that they had some e-mail problems.
My source told me that one of the things that was so curious was that White House Counselâs office prepared rigorously for the meeting where they were going to tell Fitzgeraldâs people about this problem, and that they were surprised and relieved when they got no pushback from him.
So your settlement required them to got back and look again for those days.
Yeah, and we donât know what they found, because they are all presidential records.
So how do you know about the quality of compliance with the settlement? It goes into a twelve-year box at the Archives, right?
Youâre right, and we donât. NARA was monitoring compliance, and they have the responsibility to ensure the widest collection possible. We have to count on NARA and the assumption that the Obama administration has no interest in not seeing the broadest preservation possible.
Some people are mistakenâthey think we actually got the e-mails. We donât have the e-mails, and we wonât get them for some time. They are presidential records of Bush that are with NARA as part of the Bush collection.
Part of your settlement allowed you and your co-plaintiffs, the National Security Archive, to pick what days to recover.
The Obama administration didnât have any vested interest in any particular days, and they were open to us saying âThese are days we are interested in.â We were very interested in the Valerie Plame Wilson investigation. Beyond those we looked at a spreadsheet the Obama White House provided us of days with low e-mail volume for each component and picked the lowest days that had not been designated for restoration.
During the Bush Years, the Office of Administration began to assert, that like most other White House components, that it was not subject to Freedom of Information Act requests, a decision that was upheld in court. Is that a sideline from that case?
Well⌠Iâll tell you, and you can judge. When we understood from our source that OA had done analysis of the problem, one of the first things we did was file a FOIA request. The OA initially accepted the request, and said it was going to be a while. We went into the court for a preliminary injunction, and we worked with the court on a timetable to do production. And then, just at the point that they were supposed to identify exemptions they were claiming, they came in with the legal position that they were no longer an agency subject to FOIA.
The OA and Justice would sayâand there is some documentation of thisâthat this was an issue that had been on the table before. And yet I think the timing is very interesting. Ultimately, as it turned out the documentation we wanted we got we got through Waxmanâs committee or the settlement.
So the court ended up agreeing that OA wasnât subject to FOIA, but you still got the documents. But thatâs kind of extraordinary. Not every document that OA has is going to become the subject of a congressional investigation or a White House settlement.
Exactly. And as an aside, a group of us early on in this administration sent a letter to the White House counsel asking on their own discretion that they go back to the practice of every other administration before Bush. And theyâve ignored it. But it does seem consistent with their transparency policy. Itâs hard to argue that there are some really good internal reasons not to, given that it functioned from its creation as a FOIA agency until just a few years ago.
What do we know about how the Obama administration is handling the challenge of archiving their e-mails?
We had lengthy negotiations with the White House, and NARA was included because they were a party to our lawsuit. Iâve never heard from NARA that they werenât happy with it. All of the information weâve gotten tells us that they are complying with their record keeping obligations. It preserves electronic records electronically in a very state of the art, tamperproof way. It segregates presidential from federal records. And they have built in a lot of checks and balances to make sure that systems are working. I think the Obama White House was already on this course, and there was an added incentive that this would also be a basis of settling the lawsuit.
We got access to a lot of underlying documentation that covered what they were doing that we werenât allowed to make public, because of legitimate concerns about protecting the system. The Obama administration did put together a description for public consumption.
This interview has been condensed and edited for continuity and clarity.
Has America ever needed a media defender more than now? Help us by joining CJR today.