I swear it's like déjà vu all over again.
Back in October, I wrote two diaries here and here about the efforts of a magistrate judge and a government ethics watchdog group to hold the Bush regime accountable for the millions of White House emails that mysteriously conveniently disappeared from the servers. To be honest, I had forgotten all about the case -- brought by one, Melanie Sloan, intrepid litigator for legal watchdog group Citizens for Responsibility and Ethics in Washington (CREW) -- one tenacious group of government ethics hawks.
At the time, I wrote about U.S. Magistrate Judge John M. Facciola, who was called in on the CREW case by U.S. District Judge Henry Kennedy to recommend a course of action.
Since October, I must admit that this case has been a veritable enigma for a layman such as myself to follow. I perused court filings on a couple of occasions after writing about it to no avail. But, now it’s back; and unfortunately, it seems as if the case has been stuck in a state of suspended animation for the past five months. It literally seems like it hasn’t progressed at all. We’re back at the same place we were before only, perhaps in a little better position this go around... I think.
This from my October 21, 2007 diary:
Whether to issue the order is up to U.S. District Judge Henry Kennedy. The Bush administration has 10 days to say why Kennedy should not order preservation of electronic communications by White House officials and aides. Kennedy had referred the issue to the magistrate for a recommendation.
Now, compare that with this quote from Tuesday’s Mother Jones article:
A federal judge told the Bush administration today that it has three days to give him a good reason why he shouldn't order the White House to make copies of every computer hard drive in the Executive Office of the President (EOP).
Judge John M. Facciola's ruling (PDF) is a major victory for two Washington non-profits, the National Security Archive (NSA) and Citizens for Responsibility and Ethics in Washington (CREW), who have been battling the administration in court to ensure the preservation of missing White House emails.
The emails, which could number in the millions, are from between 2003 and 2005 and could include information about the runup to the war in Iraq and the outing of Valerie Plame Wilson as a covert CIA agent. (Need to catch up? Read our full coverage of the missing White House emails story.)
In another victory for the plaintiffs, the Judge noted the fact, reported by Mother Jones in January but largely ignored in the mainstream press, that the White House's regular 'recycling' of email backup tapes prior to October 2003 indicates that emails between March and October 2003 are probably not preserved anywhere. This contradicts what Theresa Payton, the White House Office of Administration's (OA) Chief Information Officer, said in January when she claimed that "substantially all" the missing emails would be preserved on backup tapes (PDF).
From the Judge's order:
It is nevertheless true that if e-mails have not been properly archived as plaintiffs allege, and copies of those e-mails do not exist on back-up tapes, then the obliteration of data upon which those e-mails may be reconstructed threatens the plaintiffs with irreparable harm. This appears to be the case for any e-mails that were not properly archived between March 2003 and October 2003, during which time no back-up tapes exist. [Emphasis added.]
Apparently, Facciola’s ruling means he’s taking this case very seriously and that time has become a factor. Every single day that passes makes it more likely that recoverable emails will be lost for good, and if Judge Facciola orders copies made, it’ll mean that while the clock is ticking the emails won’t disappear.
The White House has indicated that it "fully intends to comply" with Facciola's order, which means it’ll probably try to delay their execution of Facciola’s order, concluding [erroneously] that it wouldn’t be wise; too costly to make copies of every hard drive in the EOP. Experts will be brought in to argue the cost, and the judge will have to weigh the potential "irreparable harm" to the plaintiff's interests against the price tag of his proposed measure.
General Counsel for the NSA Meredith Fuchs offered this:
"We still don't know what the court's going to do at the end of the day," Fuchs says.
Ultimately, even if the White House complies with Judge Facciola’s order – and, it’s not at all clear that they would – the case does not end there. CREW wants more. They want to force the White House to start using a better archiving system.
One National Archives official stated [That the current archiving system] "hardly qualifies as a ‘system’ by the usual IT definition." And, an internal White House memo that the House Oversight Committee released stated that the: "[S]tandard operating procedures for email management do not exist," and cautioned that "lost or misplaced email archives may result in an inability to meet statutory requirements."
In truth, with only ten months left in office, It’s likely to take divine intervention to move the outgoing Bush regime to replace the current email archiving system. As per their usual [criminal] modus operandi, right after taking office, White House IT goons chucked Clinton’s adequate Lotus-based archiving system just as quickly as they threw out his counterterrorism strategy.
They did make a half-assed attempt with one system.
The Electronic Communications Records Management System (ECRMS) was scrapped in 2006, and since then the current ad-hoc system, which relied for a long time on manual backups of data and the creation of extremely large, unstable .pst files, has been used in the absence of a dedicated archiving system. It's not clear that any replacement has been proposed or is in the works.
Of course it’s not clear. The only thing clear regarding the Bush crime family is that they will continue to operate their international criminal machine with impunity until they leave office. In their latest reincarnation, they started out eight years ago as an illegitimate regime; operated as a rogue government for seven and a half lonnnnnnnnngg years, and will leave office as the most crime-ridden regime in history. THAT’S WHAT IS CLEAR.
Of course, we could always... Impede, impeach and imprison.
Nah, we’d need a Congress interested in holding this scofflaw Executive branch accountable to manage that.
One can always dream...
Peace