When CREW discovered in 2008 that millions of emails had gone missing from Bush White House servers – and that the administration had been aware of this problem since 2005 – CREW and the National Security Archive sued the White House and the National Archives and Records Administration (NARA), challenging their failure to take any action. Today, after a long-running legal battle to find the missing emails and institute a functioning archiving system, CREW and the NSA came to a settlement with the Obama White house.

The settlement terms dictate that a total of 94 days of missing emails will be restored and sent to NARA for preservation. These records will eventually be accessible to the public. The White House will also continue to provide CREW and the NSA with records that document:

• The causes of the email problem,
• The Bush White House’s response to that problem,
• The options the Bush White House considered for preserving electronic records, and
• A description of the current archiving system.

The Obama administration has already produced thousands of pages of documents relating to these issues, which CREW posts here for public review.

CREW writes analyses of these documents as we receive them, and so far has determined the Bush White House clearly lied about its knowledge of the problem and deliberately ignored the problem. We hope future documents released by the White House can answer some of the most pressing questions surrounding this affair:

• Why did then-White House Counsel Harriet Miers do nothing when the Office of Administration told her of this problem?
• Why did the Bush White House abandon its proposed solution system after spending millions of dollars to develop it?
• Did the missing email issue impact the Bush administration’s response to the DOJ’s investigation of the Valerie Plame Wilson leak?

Melanie Sloan, CREW’s executive director, lamented that we may never learn the full truth but thanked the Obama administration for living up to their promises of transparency:

We may never know exactly what happened to all the missing emails, and which Bush administration officials were involved in the coverup, but we do know the American public never got the full story. The Obama administration, which inherited the lawsuits and the dysfunctional White House email system, has done a terrific job straightening out the mess. Thanks to the Obama White House, a critical part of our nation’s missing history will be restored. This is yet another example of the administration living up to its promise of accountability and transparency.

Click here to read the terms of agreement (PDF).

CREW wants to know who from the health industry has been visiting the White House. That doesn't sound like a heavy lift, since we were promised transparency. But, the Obama administration has denied our request using the same arguments proferred by the Bush administration. That doesn't seem to fit the definition of transparency. And, we'll go to court to get the visitor records, just like we did during the Bush years. From the LA Times:

Citizens for Responsibility and Ethics in Washington sent a letter to the Secret Service asking about visits from 18 executives representing health insurers, drug makers, doctors and other players in the debate. The group wants the material in order to gauge the influence of those executives in crafting a new healthcare policy.

The Secret Service sent a reply stating that documents revealing the frequency of such visits were considered presidential records exempt from public disclosure laws. The agency also said it was advised by the Justice Department that the Secret Service was within its rights to withhold the information because of the "presidential communications privilege."

Citizens for Responsibility and Ethics said it would file suit against the Obama administration as early as today. The group already has sued the administration over its failure to release details about visits from coal industry executives.

A White House spokesman, Ben LaBolt, said, "We are reviewing our policy on access to visitor logs and related litigation.

As a candidate, President Obama vowed that in devising a healthcare bill he would invite in TV cameras -- specifically C-SPAN -- so that Americans could have a window into negotiations that normally play out behind closed doors.

Having promised transparency, the administration should be willing to disclose who it is consulting in shaping healthcare policy, said an attorney for the citizens' group. In its letter requesting the records, Citizens for Responsibility and Ethics asked about visits from Billy Tauzin, president of the Pharmaceutical Research and Manufacturers of America; Karen Ignagni, president of America's Health Insurance Plans; William Weldon, chairman and CEO of Johnson & Johnson; and J. James Rohack, president of the American Medical Assn., among others.

"It's extremely disappointing," said Anne Weismann, the group's chief counsel. Obama is relying on a legal argument that "continues one of the bad, anti-transparency, pro-secrecy approaches that the Bush administration had taken. And it seems completely at odds with the president's commitment . . . to bring a new level of transparency to his government."

Upon learning that Scooter Libby had been convicted of perjury, then-presidential candidate Barack Obama stated: “The conviction today underscores what happens when our foreign and national security policies are subverted by politics and ideology.  Leaks and innuendo in pursuit of a flawed policy lead to shameful episodes such as this.  It should never happen again.” 

That was then, this is now.

Yesterday, in a U.S. District Courthouse a lawyer with the Obama administration’s Department of Justice argued that publicly releasing Vice President Cheney’s FBI interview, conducted as part of the government’s leak investigation, would serve no legitimate interests but instead just provide fodder for late-night talk shows and ammunition for Cheney’s political enemies.  Yes, this was the position of the Obama administration, now in its fourth month in office.  How quickly we forget.

Perhaps this should have come as no surprise.  After all, the same Justice Department filed a brief in the Supreme Court last month urging the Supreme Court not to accept Valerie and Joe Wilson’s civil lawsuit for review.  In language dismissive of any larger issues at stake, the government’s brief went even further than any arguments the Bush administration had made and characterized the Wilson’s factual allegations as “creative[] indeterminate pleading.”  What happened to the “shameful episode” from “leaks and innuendo in pursuit of a flawed policy” that candidate Obama spoke so eloquently about?

Sadly, this is becoming a recurrent theme of this administration.  From the Secret Service’s White House visitor logs to Vice President Cheney’s FBI interview, this administration is demonstrating we have yet to see real change we can believe in.

Nearly two years after CREW sued the Bush White House for both its refusal to restore the millions of missing White House emails and its failure to put in place an effective electronic record keeping system, the White House has finally released documents that support CREW’s allegations.

On Friday, CREW sent out a statement about the latest developments in our case against the White House to obtain missing emails.  We have been making progress in the courts with this case.

CREW filed its opposition to the White House's motion to dismiss CREW’s lawsuit challenging the failure of the White House to recover millions of missing emails and install an effective electronic archiving system. The White House is arguing that because it has re-examined the problem and restored a limited number of emails, CREW's claims should be dismissed. As CREW explained in its opposition, the latest White House analysis does not answer the fundamental questions of how many emails are missing, what caused the problem and whether it has been fixed.

What's odd is that we filed the suit against the Bush White House, but we're getting the same responses from the Bush administration.  

Anne Weismann, CREW's Chief Counsel, said: "

We are disappointed the new administration seems no more eager than the last to recover the missing emails and implement a system that adequately preserves records belonging to the American people.

This is a major, and disturbing, development.  CREW believes in transparency in government, which has been sadly lacking for the past eight years.  We've been told that transparency would be a hallmark of the Obama administration.  This development in the email case doesn't reflect that commitment.

The traditional media has picked up this story.  The first line from the Associated Press article captures the essence of what's happening:

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.

Two advocacy groups suing the Executive Office of the President say that large amounts of White House e-mail documenting Bush's eight years in office may still be missing, and that the government must undertake an extensive recovery effort. They expressed disappointment that Obama's Justice Department is continuing the Bush administration's bid to get the lawsuits dismissed.

During its first term, the Bush White House failed to install electronic record-keeping for e-mail when it switched to a new system, resulting in millions of messages that could not be found.

After eight long years of secrecy, on his first full day in office, President Obama issued several executive orders signaling a new era in government openness and accountability.  CREW has worked tirelessly to obtain vital information from the Bush administration.  Often, our efforts were blocked.  But, that can change.  We know which documents and records should be available.  Today, CREW called on the Obama administration to fulfill its commitment to transparency by releasing records withheld from public view by the Bush administration, specifically:

The Department of Justice should release documents related to the interview of former Vice President Cheney provided to the FBI as part of Special Counsel Patrick Fitzgerald’s investigation into the leak of Valerie Plame Wilson’s covert identity;

The Secret Service should release all requested White House visitor records and remove the veil of secrecy that currently surrounds the White House;

The White House should release all documents that explain why the Bush administration refused to act for years in the face of an internal report documenting the mysterious disappearance of millions of emails from White House servers;

The White House should release all documents that explain why the Bush administration refused to implement an effective electronic record keeping system in the face of evidence that its current system was an abysmal failure, notwithstanding the development of two other workable systems;

The White House should release documents requested by Congress that explain the full role of President Bush and his staff in the mass firings of U.S. Attorneys;

The Department of Homeland Security should release all documents explaining why the Bush administration decided to bypass property of Ray L. Hunt, a major contributor to the Bush presidential library, in its sitting decision for the border fence between the United States and Mexico;

The White House should release all documents of the Council on Environmental Quality related to the efforts of the Bush administration to distort scientific conclusions, warnings, and predictions on climate change.

CREW’s executive director Melanie Sloan said today:

Signing an executive order signaling openness is one thing, actually releasing documents is another. This the perfect opportunity for the Obama administration to back up its words with concrete action.

Yesterday, Magistrate Judge John Facciola ordered the White House to search the entire Executive Office of the President (EOP) and the Office of Administration (OA) to collect and preserve all emails sent or received between March 2003 and October 2005. The order further directs the White House to collect and preserve all materials that could be relevant to CREW’s lawsuit and prohibits their transfer to the Archives without the Court’s permission. CREW sued EOP and OA over a year ago after learning that millions of emails had gone missing from White House servers.   The decision and related materials can be found here.

The Associated Press captured the tenor of the Federal Magistrate's decision:

A federal court tore into the Bush White House on Thursday over the issue of millions of apparently missing e-mails, saying the administration failed in its obligation to safeguard all electronic messages.

In a four-page opinion, Magistrate Judge John Facciola said the White House is ignoring the court's instructions to search a full range of locations for all electronic messages that may be missing.

The Executive Office of the President, the magistrate said, is limiting its search to offices subject to the requirements of the Federal Records Act, while sidestepping offices subject to the preservation requirements of the Presidential Records Act.

There is a profound societal interest as well as a legal obligation to preserve all records and "the importance of preserving the e-mails cannot be exaggerated," Facciola wrote.

Yesterday’s ruling was issued in response to CREW’s request for a preservation order given the upcoming presidential transition and the expected transfer of these records to the National Archives. CREW’s chief counsel Anne Weismann said:

We are gratified the Court recognized that unless these materials are preserved, the country faces the loss of historic records of national importance. Even once a new administration takes office, CREW will continue seeking to hold the Bush administration accountable for its role in the disappearance of the 14 million emails.

First, the claim from the Department of Justice:

A Justice Department lawyer told a federal judge yesterday that the Bush administration will meet its legal requirement to transfer e-mails to the National Archives after spending more than $10 million to locate 14 million e-mails reported missing four years ago from White House computer files.

Civil division trial lawyer Helen H. Hong made the disclosure at a court hearing provoked by a 2007 lawsuit filed by outside groups to ensure that politically significant records created by the White House are not destroyed or removed before President Bush leaves office at noon on Tuesday. She said the department plans to argue in a court filing this week that the administration's successful recent search renders the lawsuit moot.

Then, the response from CREW:

Her remarks prompted Anne Weisman, the counsel for one of two plaintiffs in the lawsuit, Citizens for Responsibility and Ethics in Washington (CREW), to say, "I'll believe it when I see it." (emphasis added) Weisman said she hoped the administration's efforts to recover the e-mails can be verified by an independent expert, noting that officials have repeatedly declined to detail the procedures they used. She also said questions persist about whether backup tapes still existed for all of the days for which e-mails were reported missing.

The New York Times reports on CREW's latest victory for transparency in a case against the Bush administration:

Before they leave their offices next week, White House employees must allow their computers to be searched, and they must turn over any devices that may contain some of the possibly millions of e-mail messages that have apparently disappeared, a Federal District Court judge ordered Wednesday.

That trove of e-mail messages, dated from March 2003 to October 2005, has been the subject of continuing litigation by groups seeking to preserve the electronic communications of White House officials during a period that encompassed the beginning of the war in Iraq and a federal inquiry into the leak of the identity of Valerie Wilson, the former C.I.A. officer.

The court order, issued by Judge Henry H. Kennedy Jr. of the United States District Court for the District of Columbia, directs officials in the Executive Office of the President to scour employees’ computers for the e-mail messages and gather portable storage devices that may contain the data.

Two groups, the National Security Archive, a research institute at George Washington University, and Citizens for Responsibility and Ethics in Washington, a nonprofit organization, have led the effort to preserve the messages.

Last night, Rachel Maddow discussed CREW's new report, Revolving Door,  a first-ever comprehensive look into the activities of 24 members of President Bush’s cabinet, which demonstrates that the “revolving door” in Washington remains open.  After leaving their government positions, many of Bush's cabinet members joined the ranks of the companies they once regulated where they are highly compensated. In many instances, they have helped their new employers obtain lucrative government grants and contracts: