As we enter the final months of the Bush administration, secrecy has been a dominant and consistent theme.  CREW knows that firsthand.  We've been trying for years to pry information that should be public from the Bush administration.  The Political Animal at the Baltimore City Paper expounds on the subject:

Lawsuits by the nonprofit Citizens for Responsibility and Ethics in Washington forced the disclosure of a letter from a lawyer for Vice President Dick Cheney that instructed the Secret Service to destroy any evidence of lists of people who visited Cheney at his residence next to the Naval Observatory. At the same time, reporters who attempted to find out when and how many times now-convicted felon Jack Abramoff visited the White House were stonewalled with vague and general answers, first denying the lobbyist visited, then claiming he was just one of many people the president saw, and then maintaining a concerted effort to hide any photographic evidence that the president ever met with the influence peddler. By the time photographs leaked out, the news media's attention had since moved on to other things, and the outrage that might have come out of it was muted.

The Bushies again unveiled this tactic, to gum a story to death, last week, after a federal judge gave the administration three days to produce evidence about what happened to millions of e-mails that were supposed to have been archived 2003 to 2005, during the start of the war in Iraq all the way through the response to Hurricane Katrina. Last Friday, the administration, in a sworn declaration, said that old hard drives are thrown away, and that some but not all of the information on them is moved over to new computer storage.

When the final book is written on the Bush administration, its policy on information could be summed up like this: They hid it, they denied it, and then they threw it away.

The latest revelation in the ongoing effort to find missing White House emails was dropped late Friday: 

Older White House computer hard drives have been destroyed, the White House told a federal court yesterday, and some, but not necessarily all, of the data on those hard drives was moved to new ones.

The White House revealed the information about how it handles its computers in an effort to convince a federal magistrate that it would be fruitless to undertake a plan proposed by the court to recover millions of possibly missing e-mails from 2003 to 2005.

It would be costly and time-consuming for the White House to institute an e-mail retrieval program that entails pulling data off each individual workstation, the White House said in a sworn declaration filed with U.S. Magistrate Judge John Facciola.

The MoJo Blog examined the rulings in the cases against the White House over missing emails and the steps the Bush administration is supposed to be taking to preserve its emails.   CREW's Anne Weismann interprets the latest court actions to mean that the judge doesn't think the orders to preserve the emails have gone far enough:

Facciola's ruling indicates that he takes the plaintiffs' concerns seriously and understands that time is of the essence, since every day that goes by makes it increasingly likely that potentially recoverable email data will be permanently lost. If Facciola does order copies made, it will mean that "while the clock is ticking [the emails] are not going to disappear," explains Meredith Fuchs, the NSA's General Counsel.

There is already a court order that asks the administration to preserve emails, but it's now "pretty clear that the court seems concerned that in fact the original preservation order doesn't go far enough," Anne Weismann, CREW's Chief Counsel, told me this afternoon.

CREW has been engaged in an ongoing lawsuit against the Bush administration over missing White House emails. Last month, a Federal judge issued an order allowing CREW to conduct limited discovery in that case Today, ABC News reports on another e-mail case involving the White House -- and another court order:

The White House has three days to explain why it shouldn't be required to copy its computer hard drives to ensure no further e-mails are lost, a federal judge ordered Tuesday.

Already, e-mails between March and October 2003 appear to have been lost, Judge John M. Facciola noted, because they were improperly archived and no backup copies exist. That period includes the U.S. invasion of Iraq.

E-mails by White House staff are considered part of the nation's historical record, and federal law requires they be preserved. The White House has admitted that potentially millions of e-mails from the past eight years have been erased, although it has provided conflicting accounts on how many may still exist on backup tapes.

The order, issued Tuesday morning by a federal magistrate judge in Washington, D.C., comes in a case brought against the Bush administration by the National Security Archive, a nonpartisan group affiliated with George Washington University.

The group filed suit in September 2007, seeking to force the White House to restore missing e-mails and institute an adequate archiving system.

Judge Facciola rejected as "draconian" a proposal by the Archive that would have forced the White House to quarantine every computer workstation it had. Instead, Facciola proposed the White House make a "forensic copy" of all preservable data on every computer that could have been used by an employee between 2003 and 2005, the period in question.

You can't tell Congress one thing and a court another thing. That doesn't work in our system. The truth matters. And, CREW is determined to get to the truth -- even against the Bush administration:

A private group told a federal court Thursday the Bush administration made apparently false and misleading statements in court about the White House e-mail controversy.

The group asked the judge to demand an explanation regarding alleged inconsistencies between testimony at a congressional hearing last week and what the White House told a federal court in January.

"This evidence demonstrates defendants' blatant disregard for the truth and the processes of this court," Citizens for Responsibility and Ethics in Washington told U.S. District Judge Henry Kennedy in court papers.

CREW wants the judge to compel the Executive Office of the President to explain why it should not be held in contempt of court.

In a sworn declaration, White House official Theresa Payton told the court on Jan. 16 that "substantially all" e-mails from 2003 to 2005 should be contained on back-up computer tapes.

However, at a hearing of the House Oversight and Government Reform Committee on Feb. 26, the panel's Democrats released a White House document that called that claim into question.

Anne Weismann's posted an excellent analysis of the House Oversight and Government Reform Committee's hearing on yesterday the serious email problems at the White House. 

There is also a question about White House staff using private email accounts to conduct business.  For example, Karl Rove used a private email account from the Republican National Committee (RNC) "most of the time."   Those emails used to conduct official government business should be part of the public record. We were led to believe that the RNC was spending vast sums to find Rove's missing emails.  Not anymore.  Yesterday, we learned that the RNC will not even try to find missing White House emails: 

After promising last year to search its computers for tens of thousands of e-mails sent by White House officials, the Republican National Committee has informed a House committee that it no longer plans to retrieve the communications by restoring computer backup tapes, the panel's chairman said yesterday.

The move increases the likelihood that an untold number of RNC e-mails dealing with official White House business during the first term of the Bush administration -- including many sent or received by former presidential adviser Karl Rove -- will never be recovered, said House Democrats and public records advocates.

The RNC had previously told the House Oversight and Government Reform Committee that it was attempting to restore e-mails from 2001 to 2003, when the RNC had a policy of purging all e-mails, including those to and from White House officials, after 30 days. But Chairman Henry A. Waxman (D-Calif.) disclosed during a hearing yesterday that the RNC has now said it "has no intention of trying to restore the missing White House e-mails."

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 Board, the blog of the NY Times Editorial Board, asks a question: Are there missing White House e-mails or not?  Noting that the Bush administration has provided different answers to that question, The Board explains why it is an important question that needs answer:

The stakes are substantial. White House archives, including messages about sensitive policy discussions, are required by law to be preserved for historians and for possible legal demands. The reported gaps involve 473 days in a 20-month period from 2003 to 2005.

Citizens for Responsibility and Ethics in Washington, a private watchdog group suing over the administration’s e-mail policies, is questioning in court whether revealing and embarrassing documents may have been destroyed. The White House now insists that there are no missing e-mails. Unfortunately, it says, separate backup tapes, which should also contain the disputed gaps, may have been recycled at a certain point and taped over.

The White House’s rebuff of its own high-level briefing from last fall is hardly the end of the matter. CREW, which is suing over the e-mails, has called on Attorney General Michael Mukasey to appoint a special counsel to investigate. And the House government affairs committee is planning on holding a hearing later this month to try to get to the bottom of the matter.

We suppose that there could be some innocent explanation for all of this, but it has at least a whiff of Watergate. Back then, of course, all that went missing was 18 1/2 minutes of audio tape. Now, it appears to be 10 million e-mails. The Bush administration may have a lot more to hide — or it could simply be a testament to the proliferation of incriminating information in an age of e-mail.

Yesterday, CREW sent a letter to Attorney General Michael Mukasey requesting the appointment of a special prosecutor to investigate the millions of missing White House e-mails. The Associated Press picked up the story:

An advocacy group on Monday sought a criminal probe of the White House over millions of possibly missing e-mails, saying someone may have deliberately deleted them to conceal involvement in a potential crime.

In a letter to Attorney General Michael Mukasey, Citizens for Responsibility and Ethics in Washington said the White House also may have violated two federal record-keeping laws, including the Federal Records Act, which carries criminal sanctions for unlawful destruction.

CREW, which is suing the Executive Office of the President, said over 10 million e-mails from March 2003 to October 2005 are missing. The period coincides with the runup to the Iraq invasion and the leaking by at least three top White House aides of the CIA identity of Valerie Plame.

The White House referred questions on the letter to the Justice Department, which declined immediate comment.

Today, CREW sent a letter to Attorney General Michael B. Mukasey asking that he appoint a special counsel to investigate the disappearance of millions of White House emails.  The letter and our accompanying exhibits can be found here. 

Specifically, CREW asked for an investigation into whether the White House violated federal record-keeping laws by knowingly failing to preserve and restore millions of emails and by deliberately failing to use an effective and appropriate record-keeping system for the preservation of federal and presidential electronic records. The White House is subject to two sets of federal laws governing how it must maintain and preserve its records, the Federal Records Act (FRA) and the Presidential Records Act (PRA).

When we sent the letter to the Attorney General, Melanie Sloan made this statement:

The importance and historical significance of the missing emails makes it imperative that an impartial special counsel be appointed without delay to investigate the disappearance of these records.  The missing emails do not belong to the Bush administration, but to the American people. The Attorney General should take action to protect the right of future generations to look back and understand the role of White House officials in critical events.

On January 15th, in a court filing submitted in response to CREW v. Executive Office of the President, the White House admitted destroying back-up copies of some of its emails. Over 10 million emails are missing from between March 2003 and October 2005 and the White House stated that up until October of 2003, back-up tapes containing the only copies of some of the missing emails were recycled.

This means that there likely are no back-up copies of emails deleted during the period of March 2003 through October 2003, the time during which top White House officials leaked the covert identity of Valerie Plame Wilson and the Justice Department began a criminal investigation into the leak. The White House has offered no explanation as to why the emails were deleted, how many were actually lost and why it never acted to recover any of the missing emails, despite having been presented with a recovery plan by its own Office of Administration.

After filing this court document, the White House deputy press secretary Tony Fratto denied that there were, in fact, any missing emails. As a result, House Oversight and Government Reform Committee Chairman Henry A. Waxman (D-CA), released a letter stating that the White House had informed committee staff that there were 473 days for which no emails were stored for one or more of the White House offices.

Given that White House officials may have deliberately deleted emails to cover up involvement in a potential crime, the need for a criminal investigation is clear.   But it is equally apparent that the Department of Justice does not have the requisite independence to conduct such a probe.

As a result, CREW is requesting that the Attorney General appoint a special counsel.  It is imperative.