In an order issued today, the U. S. District Court for the District of Columbia directed the Executive Office of the President (EOP) to show cause why it should not be ordered to create and preserve a forensic copy of any data storage media in use between March 2003 and October 2005 within the EOP. The order comes in a lawsuit brought by the non-governmental National Security Archive seeking to force the EOP and the National Archives and Records Administration to take steps to preserve and restore missing White House e-mails. Defendants must file a sworn declaration by March 21, 2008.
Reports of missing e-mails emerged in 2006 in the investigation into the leak of Valerie Plame's identity by Cheney aide Scooter Libby, and were renewed in April 2007, when White House spokeswoman Dana Perino confirmed the e-mails were missing. After White House Office of Administration [OA] Chief Information Officer Theresa Payton filed a sworn declaration in the Archive's lawsuit that appeared to conflict with statements that White House representatives had made to the House Oversight and Government Reform Committee, the Committee called a hearing.
At that February 26 hearing, OA representatives testified that after months spent working with the National Archives to develop a new e-mail archiving system for White House e-mails to replace the one used by the Clinton White House, the decision was made in February 2007 to scrap the new system. Since that time, the White House has depended on an ad hoc, stop-gap method of archiving emails that was never intended nor is suited to be a permanent system. As a National Archives official commented in November 2007, "I refer to it as a 'message collection system' even though we all understand that it hardly qualifies as a 'system' by the usual IT definition." In fact, an internal OA report that was released at the hearing indicated that "standard operating procedures for email management do not exist," and warned that "lost or misplaced email archives may result in an inability to meet statutory requirements."
Forensic copies of the hard drives would preserve e-mails that may be available on individual work stations, but that are not present on the EOP's back-up tapes. Those back-up tapes were recycled prior to October 2003, so e-mails between March 2003 and October 2003 may not be on any of the existing tapes. In addition, there were indications at the hearing that the back-ups that have been saved as of October 2003 may not contain complete collections of the e-mails thereafter.
Speaking of the court decision, Meredith Fuchs, the Archive's General Counsel, said, "The Court's order may bring us closer to protecting the missing e-mails. I suppose the White House's inconsistencies and reversals on the facts are making the court as uneasy as we are. Why the White House needs a court order to take responsible steps to preserve records as required by law is perplexing."
"Perplexing" is a very polite term.