CREW has been involved with several federal and presidential records lawsuits and has done an extensive study of this issue.  With that background, today, we asked Rep. Edolphus Towns (D-NY), chairman of the House Committee on Oversight and Govt. Reform, to make significant changes to HR 1387, the Electronic Message Preservation Act. The proposed legislation would amend both the Federal Records Act (FRA) and the Presidential Records Act (PRA) to address shortcomings with both statutes.

As CREW’s letter, which can be found here, outlines, the proposed amendments -- identical to the legislation proposed by the Committee last session -- fail to address critical issues and loopholes in the existing laws. There are no effective enforcement mechanisms to ensure agencies preserve electronic records or to force the lackadaisical National Archives and Records Administration (NARA) to do its job of ensuring preservation of those records. Further, despite well-documented problems with presidential record keeping, the proposed legislation fails to provide any effective check against a president or vice president who flouts their PRA responsibilities.

Melanie Sloan said:

As recent events demonstrate, Congress clearly needs to amend the FRA and the PRA to protect our nation’s history. The Bush administration proved that without strong, comprehensive record keeping laws, records that rightfully belong to the American people may be permanently lost, preventing us from fully understanding our nation’s past.  Unfortunately, as written the Electronic Message Preservation Act is not that legislation. We urge the committee to revise and strengthen this bill before moving it any further.

Based on our experiences, CREW recommends:

First, amending the legislation to establish effective enforcement mechanisms as well as specific penalties for non-compliance with the FRA. As currently written, the FRA penalizes only the unlawful removal or destruction of records and neither that law nor the proposed legislation provides any penalties for an agency’s failure to comply with all other requirements of the FRA.

Second, agencies should have two, not four, years to establish electronic records keeping systems. The four-year time frame fails to take into account currently available records management software and the many years agencies already have had to figure out how to manage their electronic records.

Third, the legislation should create comprehensive benchmarks for agencies in the areas of training, education, and compliance. Numerous Government Accountability Office reports have identified these as gaps in the way agencies manage their electronic records, but HR 1387 does nothing to address these critical issues.

Finally, Congress must elevate the importance of electronic record keeping within agencies and ensure that NARA and the archivist take on a more pro-active role by requiring top agency officials to take responsibility for managing records.

The PRA should be amended to include specific penalties for a president’s failure to implement an effective system to manage and preserve electronic presidential records and to provide non-governmental organizations like CREW the right to sue to enforce compliance. The creation of such a private right of action would help ensure significant historical records are preserved for future generations.

CREW's Anne Weismann talked to reporter Keith Thomson about the missing White House emails and the comparison to Watergate.  Mr. Thomson wrote it up at Huffington Post:

Perhaps the most frequently-asked question about Watergate is: "How could the conspirators have been so foolish, gabbing away even though they knew the tape recorder was on?" The answer: They were human, and, as such, erred.

Anne Weisman, chief counsel for the non-profit Citizens for Responsibility and Ethics in Washington, compared the infamous gap in the Nixon-Haldeman Oval Office tape to the 14 million White House e-mails from March 2003 to October 2005 that were missing during the investigation of the Valerie Plame CIA leak, when they might have yielded a smoking gun.

"The Watergate Tapes had an eighteen-and-a-half minute gap where [Nixon secretary] Rosemary Woods did whatever she did," Weisman told me. "We're talking here about a gap of at least fourteen million e-mails."

A question is asked and CREW's Anne Weismann provides the answer:

Over at TPM, Josh and David have been mulling the significance of the executive order, issued today by President Obama, concerning the Presidential Records Act. Could it apply retroactively to previous administrations, making it easier to pry loose records that the Bush White House has fought to keep secret?

According to Anne Weismann, a lawyer for Citizens for Responsibility and Ethics in Washington, the tentative answer is yes.

More of Anne's response to TPM:

As a result, Weismann told TPMmuckraker, the order could affect any case in which the White House has claimed executive privilege over presidential (or, to be clear, vice presidential) records. Most important, it would subject those claims to review by the Justice Department. "It does have the potential to impact ongoing litigation," she said.

Weismann specifically cited the ongoing legal fight between the House Judiciary committee and the Bush White House, over documents relating to the US Attorney firings. Among other documents, Congress has been seeking a key memo written by a White House counsel, which might shed light on White House involvement in the firings.

Weismann told TPMmuckraker that that the order likely would not affect a lawsuit she had been working on, on behalf of CREW, which sought to compel Dick Cheney's office to hand over all his records to the National Archives. On Monday a judge declined to order Cheney to do so. Weismann said that case turned on an interpretation of the Presidential Records Act itself, rather than on a claim of executive privilege.

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.

Earlier this week, the House of Representatives adopted new rules for the session, which included a provision to keep open the case to compel testimony of Harriet Miers and Josh Bolten over the firings of US Attorneys.  Now, the House leadership has gone to court in an effort to preserve access to records at the bottom of the controversy surrounding the firings of those US Attorneys:

The new Congress on Thursday asked a federal judge to force the Bush White House to keep documents on the controversial firings of nine federal prosecutors instead of turning them over to the National Archives.

Congressional Democrats have been fighting in court to get the documents from the administration for months, and they want to make sure they don't disappear into the National Archives. They asked U.S. District Judge John Bates to order the administration to leave the documents at the White House in the custody of President-elect Barack Obama's aides in case the information is needed.

Justice Department lawyers argued that the White House is required to turn the material over to the National Archives.

We learned today that CREW has survived an effort to dismiss our case against the Bush administration over missing White House emails. DC District Court Judge Henry Kennedy upheld lawsuits brought by CREW and the National Security Archive challenging the White House’s failure to properly store and recover millions of emails.  Background on the case, which we filed in , can be found here.

CREW's Melanie Sloan issued this statement:

The Court has rejected the administration’s argument and upheld CREW’s right to sue the White House for failing to comply with the Federal Records Act. The White House, which values secrecy above nearly all else, finally will be held accountable for the millions of missing emails. This is a huge victory for government transparency and the American people.

More from the Wall Street Journal:

A federal judge on Monday ruled against the Bush administration in a court battle over the White House's problem-plagued email system.

U.S. District Judge Henry Kennedy said two private groups may pursue their case as they press the administration to recover millions of possibly missing electronic messages.

Judge Kennedy rejected the government's request to throw out the lawsuits filed by Citizens for Responsibility and Ethics in Washington and the National Security Archive.

The Bush administration had argued that the courts didn't have the power to order the White House to retrieve any missing emails.

A document obtained by the Associated Press in August says the White House is missing as many as 225 days of email dating back to 2003.

The nine-page outline of the White House's email problems invites companies to bid on a project to recover the missing electronic messages. The White House hasn't said whether it has hired a contractor.

CREW executive director Melanie Sloan called the ruling "a clear victory for the American people. The Executive Office of the President does have to answer for the missing email."

There was an important development in our lawsuit against Vice President Dick Cheney over the weekend.   We had a victory in our effort to conduct a deposition of Cheney's Chief of Staff, David Addington, which the Bush administration is trying desperately to prevent.

Yesterday District Court Judge Colleen Kollar-Kotelly issued a 26-page opinion denying the request of the vice president and the Office of the Vice President for a stay of her discovery order while the U.S. Court of Appeals for the D.C. Circuit considers their mandamus petition. 

Judge Kollar-Kotelly authorized CREW to take the depositions of David Addington and NARA official Nancy Smith to try to answer the question of whether the vice president truly is preserving all categories of records covered by the Presidential Records Act.  On the eve of the first deposition, the White House filed an emergency petition for a writ of mandamus in the D.C. Circuit.  By this form of extraordinary relief, the White House is asking the appellate court to order the district court to vacate the discovery order, which the White House claims will intrude into constitutionally-protected areas of the vice president. 

The district court refused to stay the discovery while the mandamus petition is pending, reasoning that the White House defendants have no likelihood of success on the merits of their petition.   Judge Kollar-Kotelly especially took issue with the factual representations made by the White House defendants in the D.C. Circuit, , noting that they “contain content that bears no resemblance to what has actually transpired in this case.”  Although she denied the stay, Judge Kollar-Kotelly suspended the depositions to give the Court of Appeals time to address the stay motion now before that court.

Last week, the judge in CREW's lawsuit against Vice President Dick Cheney approved our request to take the depositions of David Addington, Vice President Cheney's chief of staff.

On the eve of that deposition, Vice President Cheney and the other defendants filed an emergency petition for a writ of mandamus with the U.S. Court of Appeals for the D.C. Circuit.

Mandamus is an extraordinary remedy and defendants seek it here to have the D.C. Circuit intrude directly into the district court litigation by demanding that the district court judge vacate her discovery orders. The petition is based on a claim that the discovery authorized by the district court raises serious separation of powers concerns merely because the deponent is David Addington.

Anne Weismann, CREW’s chief counsel, said:

The White House, having failed to convince the Court that it is saving all that the Presidential Records Act required, is now attempting to stop any further fact-finding in order to prevent the plaintiffs, the court and the American people from learning the truth.