Major development in CREW's lawsuit against the Bush Administration.

A White House declaration filed late last night in CREW v. EOP, CREW's lawsuit challenging the failure of the White House to preserve millions and millions of emails, makes the stunning admission that the White House failed to preserve ANY backup tapes for the period March 1, 2003 through May 22, 2003, a period of time during which the U.S. went to war in Iraq.

Previously disclosed documents by the House Oversight Committee had revealed that the White House also has no backup tapes for the period September 30, 2003, to October 6, 2003 -- a period that coincides with the Department of Justice opening up an investigation into the disclosure by top White House officials of Valerie Plame Wilson's covert identity.

Just as remarkably, the White House now argues that even with its own admission that critical backup tapes are missing, it should not be required to preserve ANY backup tapes because there is no evidence that any emails are missing. Of course, what the White House overlooks is that it has already told both the House Oversight Committee and Special Counsel Patrick Fitzgerald that critical White House emails are missing.

Below is the page of the declaration where the White House admits there are no backup tapes prior to May 23, 2003. The full declaration can be downloaded here.

Today’s hearing before the House Committee on Government Oversight and Reform revealed the extraordinary degree to which the White House has ignored, if not outright flouted, its record keeping obligations. Several key points bear emphasis: 

• The White House was told when it was planning the change to a new system (Microsoft Exchange) in 2001 that it would need a new electronic record keeping system because the system then in use (ARMS) was tied to Lotus Notes;
• In 2002, when the White House made the change to Microsoft/Exchange, it set up a temporary, stop-gap measure to preserve emails but it was never intended to be (nor is it) a substitute for an electronic record keeping system;
• In October 2005 the White House learned it had a big problem with millions of missing email;
• In 2007 the Archives told the White House the method it was using to store emails was not adequate; and
• To date, as CIO Theresa Payton admitted today, the White House has still not put in place an electronic record keeping system.

Moreover, despite the fact that the White House prepared a detailed analysis in late 2005 of the missing email problem with a plan of recovery, it has now decided to go back to the drawing board -- Theresa Payton announced a three-phase project to re-examine the missing email problem that has no realistic chance of being completed before this president leaves office.

At today’s hearing, two White House officials -- OA’s Director Alan Swendiman and OA’s CIO Theresa Payton – revealed, by their testimony, that the White House has no interest in addressing the record keeping problems that have plagued this administration. Instead it is hoping to run out the clock with its multi-phase diagnostic process, which at best will only confirm what we already know: millions of email are missing and the White House has a grossly inadequate method for preserving the historical records of this presidency, records that belong to the American public.

Rather than coming up with solutions to a clear problem, the White House officials were more interested in impugning the character of a former OA employee who had provided Chairman Waxman’s committee with pages and pages of detailed explanations of what happened and what the White House did or did not do about it.

We expect more from our public officials. Sadly, after today’s hearing we are no closer to finding out when the White House will put in place an electronic record keeping system and when it will restore the missing emails. 

The irony is not lost on us: after destroying detainee interrogation tapes, the CIA issues an order to all employees directing them to preserve all records on the issue. We wonder why they felt a need in the Order to point out that it was "not a request to produce records." Could it be that when they got a FOIA request for the tapes from the ACLU, which was a request to produce records, the agency did not see the need to preserve the requested records?

Here's the CIA "Employee Bulletin":

Efforts to gain access to the government’s records of now-convicted lobbyist Jack Abramoff’s visits to the White House and vice president’s residence took a new and curious turn recently when the Secret Service disclosed that it may have additional “Sensitive Security Records,” the existence of which it can neither confirm nor deny. The disclosure was made in a lawsuit brought by Judicial Watch challenging the failure of the Secret Service to fulfill the group’s Freedom of Information Act (“FOIA”) request for visitor logs of Mr. Abramoff’s White House visits. CREW also has a pending lawsuit for all visitor records of Mr. Abramoff and seven of his associates. 

The timeline of the Bush administration's tortuous tactics to avoid disclosing Abramoff's visits to the White House can be found here.

Nearly 19 months ago the government claimed it had records of only two visits by Mr. Abramoff, an astonishing claim given the statements of various White House officials acknowledging Mr. Abramoff’s presence at the White House for multiple social events. Since that time the government has submitted over 20 declarations in the three pending lawsuits seeking access to various White House visitor records, two of which CREW has brought. Pieced together, those declarations document multiple instances of newly discovered records after prior searches that Secret Service officials claimed were comprehensive and complete. Also documented are the purportedly “inadvertent” destruction of records by the Secret Service and vastly differing practices as to what the Secret Service retained after it provided copies of visitor records to the White House. Moreover, on at least two occasions, the White House has entered agreements relating to these records that were kept secret, even while litigation over the records was pending, and not disclosed until months later.

Additional legal tactics employed by the Bush White House include an abrupt change of position by the government on the status of Secret Service records of White House visits. Last fall for the first time the government claimed these records are the exclusive domain of the White House and therefore not subject to the FOIA. CREW is challenging that claim as well.

Perhaps they are following the tone set by this administration: if you don’t like the record you created, erase it. Yesterday, it was reported that Scott Bloch, the head of the Office of Special Counsel who himself is under investigation for improperly retaliating against employees and dismissing whistleblower cases with little or no examination, used an outside computer techie from “Geeks on Call” to do a “seven-level” wipe of his government computer hard drive. It just so happens that a “seven-level” wipe meets Defense Department security standards for making data impossible to recover.

Now we have learned that former Arkansas Governor and Republican presidential candidate Mike Huckabee has also been charged with destroying government-owned hard drives when he left office last January. As these incidents show, there is little or no effective enforcement of record-keeping requirements at either the state or federal level.

CREW has been dogging White House efforts to destroy administration records and most recently convinced a federal district court judge to issue a temporary restraining order against the White House for back-up copies of the millions of emails deleted from White House servers. The sad reality, however, is that if the electronic records have been successfully deleted there is little that can be done. In the case of the White House, we can hope that some back-up copies still exist; if not, efforts to hold White House officials accountable for their actions will be greatly impeded. CREW has already called on Congressman Henry Waxman, chair of the House Committee on Government Oversight and Reform, to consider amendments to the Presidential Records Act that would permit groups like CREW to sue to prevent an incumbent president from destroying his presidential records. As the most recent events make clear, even greater reforms are needed and, just as importantly, groups like the National Archives and Records Administration need to step up their oversight at the federal level.

At yesterday's hearing on misconduct at the General Services Administration before the House Committee on Oversight and Government Reform, some very revealing emails were disclosed that indicated further use by White House officials of RNC email accounts.

These emails accompanied a PowerPoint presentation prepared by the White House Office of Political Affairs targeting the most vulnerable democratic members of the House and Senate. The White House will undoubtedly continue to defend White House staffers' use of RNC email accounts as required by the Hatch Act, which allows certain White House staff to conduct political activities while at the White House but prohibits them from using government resources to do so.

Here’s the hitch, however -- if these materials were truly “political,” then GSA administrator Lurita Doan and others violated the Hatch Act when they allowed and participated directly in partisan political activity at GSA headquarters during working hours.