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The Latest Ploy to Avoid Federal and Presidential Records Act, FOIA

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As if the AP and the Administration weren’t already enjoying a contentious relationship, today it details the Administration’s use of second, secret emails.

Some of President Barack Obama’s political appointees, including the secretary for Health and Human Services, are using secret government email accounts they say are necessary to prevent their inboxes from being overwhelmed with unwanted messages, according to a review by The Associated Press.

The scope of using the secret accounts across government remains a mystery: Most U.S. agencies have failed to turn over lists of political appointees’ email addresses, which the AP sought under the Freedom of Information Act more than three months ago. The Labor Department initially asked the AP to pay more than $1 million for its email addresses.

[snip]

Google can’t find any reference on the Internet to the secret address for HHS Secretary Kathleen Sebelius. Congressional oversight committees told the AP they were unfamiliar with the non-public government addresses identified so far by the AP.

Ten agencies have not yet turned over lists of email addresses, including the Environmental Protection Agency; the Pentagon; and the departments of Veterans Affairs, Transportation, Treasury, Justice, Housing and Urban Development, Homeland Security, Commerce and Agriculture. All have said they are working on a response to the AP.

Now, the Administration claims people are doing this just to cut down on clutter in their email boxes. But thus far, it appears that the second emails aren’t being turned over under FOIAs or, if they are, aren’t being identified as belonging to the principal.

And so we move into another chapter of the Executive Branch hiding or deleting emails to avoid transparency, which of course goes back to Poppy Bush’s efforts to hide PROFS notes as part of the Iran-Contra coverup. The National Security Archive’s timeline, of course, misses the several efforts under the Bush Administration to either delete massive amounts of emails, particularly those from sensitive days of the CIA Leak Investigation, and the political staff’s use of RNC email addresses to take emails entirely out of Presidential Records Act retention.

This is getting tiresome: we’re going on 5 presidential administrations now that have played games with emails, a tedious series of efforts to avoid transparency.

Maybe it’s time for Congress to put some real teeth onto laws requiring the President to retain such records?

Remember Scooter Libby’s Lost Emails?

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Turns out they’re still lost.

When we last heard from Libby’s lost emails, CREW and National Security Archive had reached a settlement with the White House to restore 33 days worth of email and examine 21 days of low volume email to see whether prior restorations had really worked (among other things).

I’m still reading through the documents to figure out what has happened since (aside from Libby’s emails still being lost–but then, that’s not news). The eye-popping takeaway is that, for the 21 days of emails supposedly restored, 83% of the emails weren’t restored:

As documented [in a report from Microsoft included in CREW’s available documents] the comparison of the two data sets–one containing emails previously identified as the archival email records of the Bush administration for the 21 days in question and one containing emails extracted from backup tapes for those 21 days–revealed a huge discrepancy between the two. Specifically, 190,819 email messages on the backup tapes were not found in the archival set of email messages. Conversely, 31,819 emails contained in the archival set were not found on the backup tapes for those same days. In other words, 83% of the universe of known emails for those days were not archived and would not be available today but for actions of CREW and the Archive and the resulting restoration project.

Now, the discrepancy, to me, is even more interesting than the sheer numbers involved. It suggests that two totally different sets of emails were captured in the multiple archiving processes. Which suggests a great deal of emails may have been tampered with between the time they were written and archived. (Though I await the tech wonks to explain this in more depth).

And then there’s this bit.

[On May 10, 2006], the estimated cost for one of [the options for restoring White House email]–restoring all dates of low volume email for EOP components–was $2,414.221 [sic]. The Bush White House did not pursue this option, and instead hired multiple contractors to perform various costly analyses aimed at winnowing down the number of days that arguable could be considered as statistically low volume.

In other words, rather than spend what now looks like a pittance (less than $2.5 million) to restore everything, the Bush White House instead spent even more money paying consultants to argue that not all these days needed to be restored. And that decision was taken, of course, at a time when Libby’s case was in discovery and any indictment of Rove had just been declined. And, presumably, Patrick Fitzgerald still may have had lingering suspicions that Libby and Judy (if not Novak) were emailing back and forth about outing Plame.

But really, none of this is suspicious at all.

Meanwhile, CREW just recently started this whole process over again to get John Yoo’s missing torture emails.

Does no one else see the pattern here?

Darrell Issa’s Burning Concern about White House Emails? Not So Hot…

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Last Thursday, Darrell Issa wrote an urgent letter to Greg Craig, expressing concern about reports that White House staffers, in the days after Bush left the White House IT system in perma-crash mode, were temporarily resorting to Gmail.

Dear Mr. Craig:

Last month, several media outlets reported the existence of Gmail accounts issued to incoming members of the White House staff.[1] According to Politico, Deputy Press Secretary Bill Burton was "rocking three BlackBerrys . . . one for his Gmail, one for the transition and one for the White House."[2]

As you know, any e-mail sent or received by White House officials may be subject to retention under the Presidential Records Act (PRA).[3]

[snip]

The challenges posed by retaining e-mail as required under the PRA have proved vexing for the last two White Houses. You may recall the extraordinary problems the Clinton White House had with its e-mail archiving system.[6] Such problems have led to costly expenditures of taxpayer dollars. For example, earlier this month it was disclosed that the Bush White House reportedly spent "more than $10 million to locate 14 million e-mails reported missing."[7] These e-mails were restored after a costly search of approximately 60,000 back-up server tapes.[8]

In order to prevent similar taxpayer-funded e-mail restoration projects, it is incumbent that the new White House implement policies and processes to minimize the risk of losing e-mail subject to the Presidential Records Act. 

I ask that you answer the following questions for the Committee by March 4, 2009. 

One day after Issa sent that urgent letter calling for strict adherence to the Presidential Records Act, the National Security Archive and CREW announced that the Obama Administration would not deviate from Bush’s legal strategy on lost White House emails, which was basically to argue that the Federal Records Act requires only that an agency found to have allowed destruction of Federal Records must initiate efforts to restore those records. Neither a court nor an NGO can force an agency to completely restore records, Bush (and now Obama) argued, they can only order an agency to initiate attempts to restore them.

This administrative scheme is exclusive; a court cannot itself order the recovery or retrieval of records that may have been removed or destroyed, but must instead rely on the detailed processes set forth in the FRA and initiated by the agency heads, Archivist and Attorney General. See Armstrong, 924 F.2d at 294 Read more →

CREW: Obama and Greg Craig Stand with the Dead-Enders

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This morning, I noted that the January 21 filing supporting Bush’s crazy notions about email might well be the work of Dead-Enders. We know Dead-Enders submitted a brief in another suit naming the President as defendant during the week of the inauguration. And DOJ has added a new lawyer to the team, suggesting it intends to continue the litigation. 

From CREW, one of the plaintiffs in the email suit, we’ve got confirmation that the Obama White House intends to continue the litigation. 

Recognizing the incoming Obama administration may not have had an opportunity to fully evaluate the merits of the motion to dismiss, even though it was filed on behalf of the Executive Office of the President, one of the named defendants, on January 21, we waited several weeks before reaching out to the White House to suggest they consider withdrawing their motion. The response from the White House, on the afternoon of February 20 (the day our brief was due) was that we should go ahead and file. Thus, at least at this point, the new administration has indicated quite clearly it plans to continue litigating this issue.  

The lack of confirmed appointees at the Justice Department does not suggest this is an interim position, given that the White House is the defendant here with a fully-staffed White House Counsel’s Office. As for the change in DOJ counsel, it is simply the result of the trial attorney previously assigned to the case departing DOJ for a detail (in the White House Counsel’s Office). 

The CREW argument that this is not an interim position doesn’t hold much weight, given the al-Haramain example (the President is also the defendant in that suit and their stance has changed since the January 22 filing). 

But, for the moment, it does say that Greg Craig is not only continuing Bush’s legislation, but he’s hiring one of the DOJ Dead-Enders that got us to this point. We’re not going to get very far if Greg Craig sees fit to hire the Dead-Enders into the White House.

Inauguration Week Was a Busy Week for Dead-Enders

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A number of you have pointed to this story describing the "Obama" Administration support for the Bush Administration refusal to reconstruct Dick Cheney’s emails.

The Obama administration, siding with former President George W. Bush, is trying to kill a lawsuit that seeks to recover what could be millions of missing White House e-mails.

That claim is based on a January 21 motion to dismiss much of the National Security Archive suit against the Bush Administration, basically arguing that the only thing an NGO–and the Courts–can do is order the Administration to start restoring emails; they don’t have the grounds to force them to actually restore all the emails.

Check the date on that filing carefully.

January 21, of course, was Obama’s first full day in office, well before Eric Holder was sworn in as Attorney General. Heck, it was well before Obama’s team even got the email working at the White House themselves. And even, in a supreme bit of irony, it was the very same day when Obama signed an Executive Order saying incumbent Presidents, and not former ones, get to control the Presidential records of that former President.

January 21 was also just one day before the "Obama" Administration submitted a filing in the al-Haramain case that completely supported Bush’s unitary executive claims. Curiously, though, when the Obama Administration submitted another al-Haramain filing later in February, it adopted a significantly different strategy than they had in that January 22 filing. In other words, we know that the January 22 al-Haramain filing was indeed Dead-Enders submitting Bush’s strategy under Obama’s name; that strategy has since been changed.

We don’t–yet–have proof that the January 21 email filing was another case of a Dead-Ender submitting legal briefs in Obama’s name.  But there are two interesting details that suggest this might be the case. First, the ubiquitous Michael Hertz was–as he was on the al-Haramain case and just about everything else we’ve hated "Obama’s DOJ" doing–the senior official listed on the January 21 filing.

More interestingly, DOJ submitted a notice of appearance for Carlotta Poter Wells, a new lawyer to the government’s email team, about a week after this filing (though still before Holder was sworn in on Ferbuary 3). Read more →

January 23, 2006

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Sorry. I’m afraid Waxman has me hooked on these damn email documents.

But I wanted to point out a curious bit of timing. I’m working on a mega-timeline, but note this mini-timeline:

January 20, 2006: McDevitt and friends determine that there are gaps where the missing emails should be.

January 23, 2006: Fitzgerald informs Libby’s lawyers "via Telefax and regular mail" that:

In an abundance of caution, we advise you that we have learned that not all email of the Office of Vice President and the Executive Office of President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system.

January 23, 2006, 11:18 AM: McDevitt writes Susan Crippen,

Someone needs to fill in some of the blanks.

January 23, 2006, 1:19 PM: Crippen responds,

SIS has "filled in" the blanks.

January 24, 2006: Someone in the White House writes a document claiming to have found the missing emails.

According to a document dated just four days later that was shown to Committee staff, but not provided to them, the White House team recovercd 17,956 e-mails from these individual mailboxes on the backup tape and used these as their basis to search for e-mails responsive to the Special Counsel’s request.

January 31, 2006: Fitzgerald’s letter entered into PACER, alerting the press and DFH bloggers to the missing emails.

February 2, 2006: Addington prints off email for discovery.

February 6, 2006: Fitzgerald receives "missing" emails.

February 11, 2006: Dick shoots an old man in the face.

Okay, okay, I just included Dick’s lawyer-hunting for fun (though I have long believed the revelation of Cheney’s NIE cover story and the missing emails contributed to his carelessness that day).

But does anyone else find it odd that the WH "found" the missing emails the day after Libby’s lawyers learned that news of them would imminently become public?

SIS has “filled in” the blanks

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fill-in-the-blanks.jpg

I gotta say, Steven McNevitt and his colleagues appear pretty skeptical that all of the OVP emails responsive to Fitzgerald’s subpoenas were actually recovered.

I noted yesterday that there had been two parallel attempts to recover the OVP email missing from the period when Libby and Cheney invented their cover story for having leaked Valerie Plame’s identity. Page 43-46 of the Additional Materials is the documentation from McDevitt’s attempt to reconstruct the emails. It consists of a plan developed on November 28, 2005 to reconstruct the emails, with updates from January 20, 2006 describing the results of that attempt.

The environment information gathering activities were successfully completed. As a result, it was determined that the Exchange server used to support the OVP mailboxes was [redacted] and the Journal Mailbox server that was used durring the target period was OVP_JOURNAL.

[snip]

Analysis of the files contained on the file server that were used to store .PST files during the target period was performed and no messages were found that filled the gap of missing messages for the target period.

[snip]

The server that contained the journal mailboxes for the target period was successfully restored, This was from a backup that was performed on 10/21/2003. The journal mailboxes were examined and no messages for the target period were present in the joumal mailbox.

[snip]

The Exchange server that contained the OVP mailboxes for the target period was restored from a backup that was performed on 10/21/2003. OA Human Resources produced a list of active OVP staff for the target period. This list was reviewed and confirmed by OVP.

The Exchange server that contained the OVP mailboxes was restored. This was from a backup that was performed on 10/21/2003. The email from the target period was extracted from each of the 70 OVP mailboxes and copied to a .PST file. [my emphasis]

In response to this report, on January 23, 2006 McDevitt writes a group of people who had worked on the restoration attempt and the larger missing email problem.

Someone needs to fill in some of the blanks.

Susan Crippen responds just two hours later.

SIS has "filled in" the blanks.

We know from the Committee report that a White House team wrote a document one day later–on January 24–claiming to have recovered 17,956 emails from the email backup tapes.

Read more →

What They Didn’t Want McDevitt To Talk About…

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Man, the documents released in the Oversight Document Dump will really make you queasy. They include:

Here’s a post on why the documents are astounding, wrt the Plame investigation. And here’s my liveblog on there hearing.

In the hearing there was quite a spat over whether Waxman could introduce the interrogatory above into the record (led by the inimitable Darrel Issa). In spite of the fact that they had spent an hour and the half on the phone with McDevitt, Republicans complained that they hadn’t had a chance to cross-examine him.

Here’s Tom Davis’ complaint about Waxman’s motion to enter the interrogatories.

McDevitt responded to interrogatories, he replied with 25 pages of answers. We spoke with McDevitt on Sunday afternoon. Reluctant to give testimony on the record. Our staff made it clear we want to examine him on the record. Personal investment in various technologies. We remain skeptical of the content of his interrogatories.

But Waxman pointed out that the reason McDevitt was unwilling to testify was because the White House had very sharply limited his testimony.

Waxman: Jan 30, McDevitt, scheduled interview, WH contacted him, told him not to discuss with the committee. McDevitt emailed, based on WH, there’s practically nothing I’m authorized to discuss. Given limitations placed by WH Counsel, he said it didn’t make sense to come in for interview. Majority and Minority sent him questions. He responded in writing. WH had chance to review those answers, cleared them without redactions. AFTER they got the answers, minority wanted to speak with him in person. Majority went to some length to accommodate them. Sunday night, Minority and Majority called to see whether he would come in for deposition. Answered 1.5 hours of questions from Minority. Minority now says it’s unfair to use any information bc they didn’t get oppty to question him. If Minority has a beef with anyone, it should be WH Counsel’s office.

In other words, Fred Fielding tried his damndest to prevent McDevitt from giving detailed testimony.

Which is why the areas of his interrogatory that hint at what the White House doesn’t want him to testify about are so interesting. McDevitt begins to get squirrely about answering questions when they ask him about meetings he had with Harriet Miers.

Read more →

No Wonder Fitzgerald Never Officially Closed His Investigation

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There were actually a number of notable revelations in today’s oversight hearing on the missing emails, supplemented by the report released by the committee. For example, the hearing made it clear that the National Archives has been trying to get some answers about where the missing emails went since May 2007, to no avail. And that even as late as fall 2006–a year after the White House had discovered the missing emails–the White House did not reveal the missing emails to the National Archives.

Similarly, the hearing revealed that as of yesterday, the White House has done nothing to start retrieving the missing RNC emails.

Most alarming, though, are two details that may explain why Fitzgerald never formally closed his investigation. It’s still not clear he has all the missing emails.

First, the hearing and the report revealed that until 2005, the email "archives" were available to anyone within EOP.

Until mid-2005, the system that the White House used for preserving e-mails had serious security flaws. According to Mr. McDevitt, "ln mid-2005 … a critical security issue was identified and corrected. During this period it was discovered that the file servers and the file directories used to store the retained email … were accessible by everyone on the EOP network." Mr. McDevitt informed the Committee that the "potential impact" of this security flaw was that there was "[n]o verification that data retained has not been modified."

To understand why this is important, consider the famous Rove-Hadley email recording Matt Cooper’s call. The email said,

Matt Cooper called to give me a heads-up that he’s got a welfare reform story coming, When he finished his brief heads-up he immediately launched into Niger. Isn’t this damaging? Hasn’t the president been hurt? I didn’t take the bait, but I said if I were him I wouldn’t get Time far out in front on this.

The email has been puzzling on two levels. First, why wasn’t it discovered? Since the trial, there are some potential explanations for this, not least that the White House may have searched on "Matthew Cooper" and "Joe Wilson" but not "Matt Cooper." Read more →

Waxman Hearing on White House Emails

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Available here.

We’re having a fight already. Waxman moved to enter the report of Steven McDevitt into the record. This is the guy who reported that all the emails were missing. Apparently, from 2002-2006, he was responsible for managing White House system.

Waxman says we’re going to vote to put McDevitt’s testimony into the record.

Waxman: If it ain’t broke, don’t fix it. But that’s what WH did. Dismantled a functioning system and replaced it with something inadequate. Initiated its own study of missing emails in 2005, but now dismisses its own work as incompetent.

Davis: Committee is entitled to getting the emails. It’s the characterizations which we differ in opinion. 2002-2006 he was responsible for managing system. In his opinion 400 days of emails went missing. We learned that many of these were misfiled. McDevitt responded to interrogatories, he replied with 25 pages of answers. We spoke with McDevitt on Sunday afternoon. Reluctant to give testimony on the record. Our staff made it clear we want to examine him on the record. Personal investment in various technologies. We remain skeptical of the content of his interrogatories. White House says technical flaws in the 2005 search. 473 day gap reduced to 202. WH restoration effort continues and should continue.

Waxman: Jan 30, McDevitt, scheduled interview, WH contacted him, told him not to discuss with the committee. McDevitt emailed, based on WH, there’s practically nothing I’m authorized to discuss. Given limitations placed by WH Counsel, he said it didn’t make sense to come in for interview. Majority and Minority sent him questions. He responded in writing. WH had chance to review those answers, cleared them without redactions. AFTER they got the answers, minority wanted to speak with him in person. Majority went to some length to accommodate them. Sunday night, Minority and Majority called to see whether he would come in for deposition. Answered 1.5 hours of questions from Minority. Minority now says it’s unfair to use any information bc they didn’t get oppty to question him. If Minority has a beef with anyone, it should be WH Counsel’s office.

Read more →