Where oh where has that e-mail gone?

From the Spring 2008 issue of The News Media & The Law, page 16.

When all is said and done, the Bush administration could emerge from the still-evolving White House e-mail scandal politically embarrassed but legally unscathed.

While individual members may still one day be investigated for obstructing justice or other such crimes related to the scandal, the worst punishment the administration itself will likely face is an order to implement a better archiving system.

And for some critics of the current system, that’s just fine.

“If they do that, it will be a tremendous victory,” said Meredith Fuchs, general counsel for the National Security Archive, a nonprofit group based in Washington, D.C.

The Archive and another Washington-based nonprofit watchdog group — Citizens for Responsibility and Ethics in Washington (CREW) — have filed lawsuits that were ultimately consolidated and aim to compel the White House to install a comprehensive e-mail archiving system and also to potentially recover millions of lost messages.

The White House’s e-mail archiving policies — or lack thereof — became a hot-button political issue in the wake of Bush administration scandals related to the alleged politically motivated firings of U.S. attorneys, the leak that lead to the public outing of former CIA operative Valerie Plame and connections to convicted former lobbyist Jack Abramoff.

After federal investigators requested e-mails that could reveal the scandals’ origins, the White House was forced to admit that it has not been able to locate backup copies for hundreds of days worth of e-mail messages produced between 2003 and 2005.

In addition, the White House revealed that more than 80 high-ranking officials, including then-senior political adviser Karl Rove, had subverted archiving attempts by using e-mail accounts provided by the Republican National Committee prior to 2006. The RNC has since acknowledged that those e-mails have been deleted and otherwise refused the House Oversight Committee’s request to restore them from backup tapes.

Even as CREW and the Archive’s lawsuit has gained traction through judicial orders that have forced the White House’s Office of Administration to reveal intraoffice rationale related to the e-mail system, an inescapable reality is that Jan. 20, 2009 isn’t far away.

“Basically what they’re trying to do is run out the clock and have this administration end,” Fuchs said. “At that point, it’s going to be too late to do anything.”

How it all started

White House e-mail archiving controversies did not begin with the Bush administration.

In 1994, the National Archives and Records Administration released new rules that required federal agencies to treat electronic mail messages like other government records — preserved as required under federal records statutes and subject to the Freedom of Information Act.

Former Washington Post reporter Scott Armstrong, who founded the National Security Archive, a repository for unclassified national security information, sued the government on the last day of the Reagan administration in January 1989 after learning that e-mail messages were being systematically destroyed.

He continued his suit to preserve administration records through the Bush and Clinton administrations.

The 1994 Archives rules reflected the findings of the federal district court and the U.S. Court of Appeals in Washington (D.C. Cir.) in cases brought by Armstrong, that electronic communications systems clearly contain records that must be managed, safeguarded and reviewed for appropriate preservation.

However, while Armstrong’s suits sought White House records, the Archives rules apply to all federal agencies.

Under the direction of Rep. Dan Burton (R-Ind.) in 2000, the then-Republican controlled House Committee on Oversight and Government Reform looked into whether the Clinton administration had deliberately erased official e-mail.

While the investigation found no wrongdoing by the administration, strange glitches in the archiving system, including one that blocked the preservation of e-mails that started with the letter “D,” were fixed in the aftermath.

When Bush took office in 2001, the White House archived its e-mails using “Lotus Notes” software in a process known as the “Automatic Records Management System,” said Anne Weismann, CREW’s general counsel. The Bush White House decided to switch that system in 2002 to software that did not inherently include a reliable archiving function, Weismann said.

According to an ongoing investigation by the House Oversight Committee, the White House began working on a new e-mail archiving system in 2003, going so far as to award contracts to Booz Allen Hamilton and Unisys to design and implement a new system.

That effort was abandoned in the fall of 2006, the committee reported. The committee, now chaired by California Democratic Rep. Henry Waxman, issued a memorandum of findings during a February hearing stating that the administration had received numerous NARA requests in April and May of 2007 asking the White House to assess its e-mail archiving problems and disclose exactly how many e-mail messages have been lost.

Over the past year, the White House has effectively ignored NARA recommendations on the subject, according to committee reports.

In his statement during the February hearing, Waxman wondered aloud why the White House purposely scrapped the old system used by the Clinton administration.

“There’s an old saying — if it ain’t broke, don’t fix it — but that’s exactly what the Bush White House did to the automated record system,” according to a transcript of Waxman’s statement. “It intentionally dismantled an effective system and replaced it with a primitive alternative that just didn’t work.”

The White House press office did not return a call for comment.

Statutorily speaking

The Presidential Records Act of 1978 mandates that the White House “take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of [the president’s] constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as presidential records.”

Enforcing that statutory directive is tricky, however, as the act does not include a private right of action for noncompliance.

Weismann said the lack of an enforcement mechanism within the act is in part due to constitutional separation of powers concerns, but also a “short-sighted” naivety by Congress when the act was passed.

“I think the expectation was that presidents would obey the law,” Weismann said. “But they hadn’t met George.”

In April, Waxman was joined by Reps. William Lacy Clay (D-Mo.) and Paul W. Hodes (D-N.H.) in introducing legislation that would direct the NARA to put forth better standards for archiving White House e-mail and agency electronic records.

While a joint statement released by the three congressman said the White House and federal agencies would be required to file communications more consistently in electronic as opposed to hard-copy format, CREW was sharply critical of the bill as “anemic and fail[ing] to make the substantial changes necessary to bring the federal government into the 21st century.”

In the meantime, the Archive-CREW lawsuit has focused on archiving provisions in the Federal Records Act, which governs the management and preservation of records created by federal agencies and authorizes a private right of action following noncompliance.

In attempting to make the case that the administration has willfully ignored opportunities to improve the archiving system, CREW filed a Freedom of Information Act request in April 2007 to obtain the Office of Administration’s in-house documents discussing archiving analyses, risk assessments and missing e-mail cataloguing compiled by the office.

The Archive followed up in September with a lawsuit that specifically cited the FRA and Administrative Procedure Act in pushing the administration to recover deleted e-mails and properly archive them.

The most recent stumbling block for the consolidated suit, however, has been the White House Office of Administration’s insistence that it is not, in fact, a federal agency — and therefore not subject to FOIA’s document disclosure requirements.

As of late April, CREW was awaiting the office’s response to a District of Columbia federal judge’s order that it provide all documents that led to this self-appraisal.