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Prior to this one, I’ve written two diaries expounding upon the so-called "millions of missing emails" that the White House reportedly lost. They're here and here. Both dealt with U.S. Magistrate Judge John Facciola’s input into a ruling that the White House should preserve all emails. This is a followup diary.

The judge is back, and unfortunately for the Bush regime, he’s as cantankerous as ever.

The ruling by U.S. Magistrate Judge John Facciola comes during an intense effort by the White House to avoid two lawsuits that could force the Executive Office of the President to recover any e-mail that happened to "disappear" from White House computer servers where electronic documents, by law, are automatically archived.

Judge Facciola gave the White House five-business days to report whether computer backup tapes contain emails from the 2003-2005 period when at least three presidential aides were found to have leaked the name of CIA operative Valerie Plame to the news media. Two federal laws are in possible violation.

Yahoo! News has the encouraging story:

"Do the back-ups contain the e-mails said to be missing?" Facciola asked.

In a four-page order, Facciola said he needs to know "if the missing e-mails are not on those back-ups."

Facciola noted the importance of acting quickly since e-mails that might be retrievable from individual computer workstations in the White House "are increasingly likely to be deleted or overwritten with the passage of time."

White House spokesman Tony Fratto declined comment while reviewing the magistrate's order. In the past, the White House has said there could have been some e-mails that were not automatically archived because of a technical issue.

In their lawsuits, the National Security Archiv and Citizens for Responsibility and Ethics in Washington suggest the e-mails were improperly deleted from White House computer servers. Over 5 million White House e-mails are missing, CREW alleged. Recently, the group said it has been told by reliable sources that the actual figure of missing e-mail is over 10 million.

Meredith Fuchs, general counsel at the National Security Archives commented that Facciola’s court order "is going to force the White House to actually explain something about the situation and what they’ve done about the missing emails."

In support of the Bush regime’s request that the court complaints be dismissed, White House officials say the president’s record keeping practices under the Presidential Records Act are not reviewable by the courts. They also contend that the second of two germane federal laws, the Federal Records Act does not allow the far-reaching action the two private groups are now demanding.

The Bush administration had offered to have the government file a sworn declaration stating that the White House is safeguarding all backup materials. Instead, Facciola recommended that the judge in the case, Henry Kennedy, issue a court order because "a declaration is not punishable by contempt. In other words, without such an order, destruction of the backup media would be without consequence." Kennedy did as Facciola suggested.

The subject of missing White House e-mail arose early in 2006 when the prosecutor in the Plame investigation, Special Counsel Patrick Fitzgerald, disclosed that not all electronic message traffic of the EOP and the office of Vice President Dick Cheney "for certain time periods in 2003" was preserved through the normal archiving process.

This is a great sign. Kennedy didn’t cave in after all. I was having my doubts after that last court date when the Judge seemed predisposed to deferring to the White House. The judge had alluded to ruling in favor of the White House back in November, but apparently was bolstered by Magistrate Facciola’s advice and judgment on the matter. He did the right thing. They both did the right thing. They followed the law. Too bad, the White House hadn’t thought of that concept.

Instead, the dreaded ghost of scandals past has decided to pay Bush & company a visit. Maybe the ghost will show the decider guy a grim vision of the future.

You go judge!

Peace

Originally posted to markthshark on Wed Jan 09, 2008 at 03:58 AM PST.

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