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Thursday morning I submitted a diary, Judge Indicates Move Against White House Re: Emails calling attention to a federal magistrate’s request to all parties involved in the firings of nine U.S. Attorneys earlier in the year for input into his decision-making process regarding White House electronic communications routed through RNC servers.

Well, I'm thoroughly pleased... in fact, I can barely contain my unadulterated bliss, to now report that the judge has officially rendered his decision. (and, the White House is not pleased.)

A U.S. magistrate on Friday rejected arguments by the Bush administration and urged a federal judge to order the White House to preserve copies of all its e-mails. (my emphasis)

U.S. Magistrate Judge John M. Facciola has decided to hold out the contempt-of-court citation in order to ensure that White House personnel save backups of electronic messages that may have been deleted. Traces of all keystroke activities and electronic communiqués remain on respective computer hard-drives unless and until the hard-drive is replaced or otherwise rendered inoperable.

I found the follow-up story over at  

Justice Department lawyers offered to have the government file a sworn declaration stating that the White House Office of Administration is safeguarding all backup materials.

"Unlike a court order, a declaration is not punishable by contempt," the magistrate wrote. "In other words, without such an order, destruction of the backup media would be without consequences."

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.

Facciola’s report to the judge stems from a controversy dating back nearly two years over missing White House e-mails. An ethics advocacy group says the White House has deleted millions of e-mails and the private organization is suing the Executive Office of the President in an attempt to force the government to reconstruct any lost messages from backup tapes.

The group is CREW, Citizens for Responsibility and Ethics in Washington, an intrepid group of democracy advocates who’ve managed to maintain a significant presence in D.C. as the proverbial thorn in the Bush regime’s institutional derriere. The wielder of that raspy thorn is none other than Executive Director of CREW, Melanie Sloan.

From the CREW website:

Melanie Sloan serves as CREW's Executive Director. Prior to starting CREW, she served as an Assistant United States Attorney in the District of Columbia where, from 1998-2003, she successfully tried cases before dozens of judges and juries. Before becoming a prosecutor, Ms. Sloan served as Minority Counsel for the U.S. House of Representatives Judiciary Committee, working for Ranking Member John Conyers (D-MI) and specializing in criminal justice issues.

Ms. Sloan and CREW are fierce advocates for good democratic government and the rule of law and Constitution, and they deserve the respect and gratitude of all Americans for their indefatigable advocacy against the elements of tyranny within the Bush regime on a day-to-day basis. They hold the front lines so We the People are still afforded at least a semblance of civil liberties in an era of retrogression not seen in America for a century or more. Magistrate Facciola and other likeminded judges, and brave organizations like CREW and others, have quietly and legally waged all-out war against those powers-that-be that continue to tear down the foundation of our legal system every single day.

Through our rants and diatribes, we bloggers often lament about the reticence of the populace to do something; anything; to speak out vociferously against the injustices perpetrated against us by the Bush regime. We ask ourselves where are the statesmen; the protectors of democracy?

Ms. Sloan and her CREW are some of those protectors.

Back to the article:  

The group, Citizens for Responsibility and Ethics in Washington, says it has been unable to get assurances from the White House that all backup tapes will be preserved. Nor is it clear whether some backup tapes have already been destroyed, or recycled, resulting in taping over messages that were already there.

The Federal Records Act and the Presidential Records Act require that all e-mails be saved.

White House seeks declaration over order.

In a hearing before Facciola on Wednesday, the Justice Department argued strenuously against the course of action the magistrate ended up taking.

Facciola proposed a broadly worded order directing the Executive Office of the President to preserve copies of e-mails "presently in their possession or under their custody or control."

Judge Facciola also deserves props and respect. In this day and age, the judicial system is sorely lacking of constitutionalists. Of course, I’m really talking about the genuine variety of which there seems to be a shortage, and not the Rudi Giuliani preferred bizarre world "strict constructionists" which is really conservative code for executive branch enablers, and those judges who would gladly tear "privacy issues" clear out of the U.S. Constitution.

This all started back in early 2006 when Special Counsel Patrick Fitzgerald raised the possibility that communication records he sought in the CIA leak investigation involving the outing of ex-CIA operative Valerie Plame’s name could be missing because of an email archiving "problem" at the White House.

In reality, the only problem occurred when Fitzgerald demanded the communications from the White House.

Amid the controversy over the firing of U.S. attorneys earlier this year, the issue of the emails once again took center stage, the same RNC servers facilitating those communications as did the emails and text messages concerning the Plame outing.

According to case fillings, an indeterminate number of emails were lost by the White House.

Ms. Sloan, obviously satisfied by Judge Facciola’s ruling, commented that the judge:

"... is not leaving them any wiggle room. He would require them to preserve copies of e-mails no matter how they are kept — on backup tapes, DVDs, disks, in whatever form, and prohibit them from keeping them in some way that makes it difficult to use them."

White House spokesman Tony Fratto declined to comment.

Remember, no data is ever completely gone from a computer hard-drive. It can be encrypted, it can be "wiped" many times, but those methods just make it more difficult for techs and geeks to retrieve it. But, not impossible; data never really disappears beyond saving.

Unless the hard-drives containing all the data from the emails in question were utterly destroyed beyond salvaging, those emails remain.

Please, show Melanie Sloan some appreciation by contacting her; thanking her and the whole CREW organization. Please Donate if you can.

There are statesmen and women left in America. We must support them at every opportunity.

SO, have you been nice to a lawyer today? (we're gonna need 'em)


Originally posted to markthshark on Sun Oct 21, 2007 at 02:29 PM PDT.

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