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Who We Are »
Betsy Combier

Help Us to Continue to Help Others »
Email: betsy.combier@gmail.com

 
The E-Accountability Foundation announces the

'A for Accountability' Award

to those who are willing to whistleblow unjust, misleading, or false actions and claims of the politico-educational complex in order to bring about educational reform in favor of children of all races, intellectual ability and economic status. They ask questions that need to be asked, such as "where is the money?" and "Why does it have to be this way?" and they never give up. These people have withstood adversity and have held those who seem not to believe in honesty, integrity and compassion accountable for their actions. The winners of our "A" work to expose wrong-doing not for themselves, but for others - total strangers - for the "Greater Good"of the community and, by their actions, exemplify courage and self-less passion. They are parent advocates. We salute you.

Winners of the "A":

Johnnie Mae Allen
David Possner
Dee Alpert
Aaron Carr
Harris Lirtzman
Hipolito Colon
Larry Fisher
The Giraffe Project and Giraffe Heroes' Program
Jimmy Kilpatrick and George Scott
Zach Kopplin
Matthew LaClair
Wangari Maathai
Erich Martel
Steve Orel, in memoriam, Interversity, and The World of Opportunity
Marla Ruzicka, in Memoriam
Nancy Swan
Bob Witanek
Peyton Wolcott
[ More Details » ]
 
Obama's Justice Department Wants to Have the Court Dismiss the Bush E-mail Case
Two advocacy groups suing the Executive Office of the President say that large amounts of White House e-mail documenting Bush’s eight years in office may still be missing, and that the government must undertake an extensive recovery effort. They expressed disappointment that Obama’s Justice Department is continuing the Bush administration’s bid to get the lawsuits dismissed. Is this the new transparency?
          
Obama's DOJ Quietly Sought Dismissal of Missing E-Mails Lawsuit
Friday, 20 February 2009 22:21
By Jason Leopold
LINK

One day after he was sworn in as President of the United States and in the same week signing executive orders ushering in a new era of government transparency, Barack Obama’s Justice Department quietly filed a motion in federal court to dismiss a long-running lawsuit that sought to force the Bush administration to recover as many as 15 million missing White House e-mails.

In a legal briefs filed Jan. 21, the Justice Department admitted that a secretive restoration process implemented during George W. Bush’s last months in office was still incomplete, and that a bulk of the e-mails sent between 2003 and 2005 were deleted from servers in the Executive Office of the President and unrecoverable. The missing e-mails cover a time-frame that included the lead up to the Iraq war, a lawsuit involving the identities of individuals and corporations who advised Dick Cheney on energy policy and the leak by White House officials of covert CIA operative Valerie Plame’s identity.

But despite it all, the newly minted Obama administration said in court papers that the issue revolving around the missing e-mails is “moot” because some steps, however incomplete, have been taken by the Bush White House to preserve and restore missing e-mails, even though the work has been conducted under the cover of secrecy by an unknown outside contractor hired by Bush administration officials.

Now, one month after the Justice Department filed it’s motion to dismiss the lawsuit, the plaintiffs in the case, watchdog group Citizens for Responsibility and Ethics in Washington (CREW) and the National Security Archive, the historical project that operates out of George Washington University, have filed their responses to the Justice Department with a District Court judge. CREW and the National Security Archive sued the Bush administration two years ago alleging the White House violated the Presidential Records Act and Federal Records Act by not properly archiving e-mails from 2003 to 2005.

CREW said the Justice Department's motion to dismiss the lawsuit “is yet another gambit in a series of actions designed to avoid transparency and accountability by obscuring the fact the Bush White House did nothing for years about a serious email problem that left a gaping hole in our nation’s history.”

The group said because there has not been an accurate and truthful accounting of how the e-mails went missing in the first place, “we have no assurance the problem will not be repeated.”

“With the recovery process far from complete, defendants want to go no further,” CREW said in court papers filed Friday. “But the claims in this case are not moot, requiring the Court to deny defendants’ motion to dismiss.”

Further, "defendants have cast themselves as the proverbial fox guarding the henhouse door and argue in essence no outside involvement by [National Archives and Records Administration] or the attorney general is necessary because the White House -- the very entity that created the problem in the first place -- is comfortable with its analysis of and remedy for the missing email problem."

In a sharply worded response to the position taken by Obama’s Justice Department, Archive director Tom Balnton said, “President Obama on Day One ordered the government to become more transparent, but the Justice Department apparently never got the message, and that same day tried to dismiss the very litigation that has brought some accountability to the White House e-mail system.”

“Justice could have pulled back from that first misstep but they have not,” Blanton added. “The White House e-mail presents a high-level test of the new Obama openness policies, and so far, the grade is at best an incomplete.”

In a 46-page opposition to the Justice Department’s motion to dismiss filed Friday, the National Security Archive said “as a matter of law, this issue must be resolved on the basis of a full record through summary judgment or a trial on the merits.”

“Defendants’ Second Motion to Dismiss is a last-ditch attempt to keep the facts of this case from seeing the light of day,” the Archive’s court filing says. “This Court has held that the Archive’s Complaint adequately alleges that records are at risk of destruction. The Archive is entitled to develop these allegations and, if it wins on the merits, is entitled to judicial relief compelling the agency action that to this day is still withheld: referral of this matter to the Attorney General.”

In its motion filed Friday, the Archive said the White House “inexplicably selected for restoration e-mails from only a portion of the days that they themselves acknowledge have deleted e-mails; the White House did not conduct an analysis or restoration for the entire period during which emails are alleged to have been deleted; the White House excluded key periods from their analysis and restoration effort allegedly because of the migration from Lotus Notes to Microsoft Exchange; the White House relied on a statistical analysis for its estimation of whether emails were missing that used as a starting point, the quantity of email on the very servers that the White House now acknowledges were incomplete; and the White House has provided no evidence that any of the problems that led to the loss, mislabeling, and misallocation of emails have been corrected.

Six days before Obama’s Justice Department filed a motion to dismiss the lawsuit, Helen Hong, a DOJ attorney, told a federal judge presiding over the case that the White House spent $10 million to locate the e-mails. She claimed the e-mails would be transferred to the National Archives and Records Administration, along with 300 million of other documents in accordance with the Presidential Records Act, immediately after President George W. Bush left office. As such, Hong asked the court to dismiss the case.

Hong's disclosure was made hours after U.S. District Court Judge Henry Kennedy granted an emergency order to the National Security Archive that directed Bush administration officials to immediately search all White House workstations "and to collect and preserve all e-mails sent or received between March 2003 and October 2005.”

Hong had also explained that independent contractors hired by the White House found the missing e-mails by looking through 60,000 disaster backup tapes.

In a mid-January court filing that sought dismissal of the lawsuit, the Justice Department claimed that the 14 million e-mails were never actually "missing," rather the e-mails were simply unaccounted for due to a "flawed and limited" internal review by the Office of Administration in 2005. The documents were retrieved, the Justice Department claims, "through a three-phased email recovery process."

The Justice Department offered up a highly technical explanation in its court filing on why the e-mails were unaccounted for during the internal review four years ago. Previously, Payton and White House press secretary Dana Perino have blamed the loss of the e-mails on the administration’s transition from Lotus Notes to Microsoft Outlook.

"The 2005 review attempted to identify the number of e-mail messages archived in .PST files by various Executive Office of the President (“EOP”) components for dates ranging between January 1, 2003 and August 10, 2005, and concluded that 702 component days between January 1, 2003 and August 10, 2005 had “low” message counts in the EOP email system, including 493 component days had zero message counts," the DOJ's court filing says.

"The [Office of the Chief Information Officer] discovered that the counting tool used for the 2005 review had a message count limit of 32,000 e-mail messages per day in a .PST file. But because large .PST files did contain more than 32,000 messages, the tool used for the 2005 review failed to “count” those messages and attribute them to components for specific days. Moreover, the 2005 review apparently relied on the name of the .PST file to allocate all of the individual e-mail messages contained within a file to the component named in the file.

"As a result of the technical limitations of the 2005 review, 14 million messages that existed in the EOP email system in 2005 were not counted in the 2005 review. Accordingly, the 2005 review presented inaccurate message counts, concluding that approximately 81 million messages existed in the EOP e-mail system in 2005 when, in fact, approximately 95 million e-mail messages were preserved in the EOP e-mail system. Those “14 million” messages were therefore never “missing,” but simply uncounted in the 2005 review."

Obama’s Justice Department appears to have taken the Bush administration on its word that a good faith effort has been made to restore missing e-mails, according to CREW’s 24-page motion arguing against having the case dismissed.

“One day after the Bush administration ended, defendants filed a motion to dismiss that reflects an incredibly cynical and narrow view of defendants’ obligations under the Federal Records Act (“FRA”),” the watchdog group’s court filing says. “According to defendants, because they have taken some action -- no matter how flawed, incomplete or limited -- the first four counts of plaintiffs’ complaints are now moot. Hiding behind technical jargon and theoretical constructs, defendants attempt to obscure three basic facts: we still do not know how many emails are missing; we still do not know the source of the problem that caused emails to be missing in the first place; and we still do not know if the problem has been fixed.

“That is because rather than measure what is missing and compare that to what they have to answer the relevant questions of which emails are missing and why, defendants adopted an approach seemingly designed exclusively to undermine the results of OA’s earlier analysis. Toward that end defendants made certain assumptions not grounded in fact, employed an abstract, highly restrictive theoretical methodology to identify missing emails while ignoring the full inventory of actual emails contained on the backup tapes, and inexplicably decided to restore missing emails from less than 50 percent of the days even the most recent analysis identified as missing significant numbers of emails. Not surprisingly, defendants have not and cannot say they now have a complete set of emails from the Bush presidency.”

Sheila Shadmand, an attorney for the Archive, said she hoped the Obama administration “would give a hard look at whether to allow the defense of the Bush Administration’s loss of millions of White House e-mails to proceed on its current course.”

Despite assurances by Hong that "missing" e-mails have been recovered, David Gewirtz, an expert on e-mail, and the author of the book Where Have All the Emails Gone? has advised the incoming administration of President-elect Barack Obama to treat White House computers left behind "like crime scene evidence."

"What must happen is this: each computer your team finds in the White House and the (Executive Office of the President) must be treated as evidence," Gewirtz wrote in an open letter to Obama in the magazine Outlook Power prior to Obama's swearing in Jan. 20. " Each machine must be cataloged and then removed for forensic examination. Under no circumstances should anyone on your team boot up any of those machines or use them."

Last Updated on Saturday, 21 February 2009 14:26

Obama Justice Department Misses Opportunity for Transparency;
Stays the Course in Defense of Archive Suit About Lost Bush White House E-mail

Archive Opposes Government Motion that Shows E-Mail Restoration Still Is Not Complete, Three Years After Independent Counsel Exposed Missing Cheney E-Mail

LINK

For more information contact:
Meredith Fuchs/Tom Blanton - 202/994-7000
Sheila L. Shadmand (Jones Day) - 202/879-3939

Washington, D.C., February 21, 2009 - The Justice Department this week missed the opportunity to bring transparency to the controversy over deleted White House e-mail from the Bush administration by allowing briefing to continue on a motion that had been developed by the Bush Administration.

The motion, filed by the Justice Department on January 21, just after the inauguration, sought to dismiss the White House e-mail litigation even while admitting that a secretive restoration process was still not finished. Yesterday the Archive responded to that motion.

“We had hoped the new administration would give a hard look at whether to allow the defense of the Bush Administration’s loss of millions of White House e-mails to proceed on its current course,” commented Sheila Shadmand, a Jones Day partner and counsel for the Archive. “This second motion to dismiss is similar to the one the court already denied months ago – and it admits they have not even completed the restoration project they apparently have been conducting under wraps.”

The Archive’s Director, Tom Blanton, commented, “President Obama on Day One ordered the government to become more transparent, but the Justice Department apparently never got the message, and that same day tried to dismiss the very litigation that has brought some accountability to the White House e-mail system. Justice could have pulled back from that first misstep but they have not. The White House e-mail presents a high-level test of the new Obama openness policies, and so far, the grade is at best an incomplete.”

The independent counsel investigating the Valerie Plame/Scooter Libby case first exposed the problem of missing White House e-mail in a court filing in January 2006, citing whole days of zero archived e-mail from Vice President Cheney’s office. Bush White House statements initially admitted that as many as 5 million e-mails were missing, then subsequently denied any problem. The most recent briefing makes clear that a far larger number of emails were effectively lost because they were mislabeled or misallocated and required extensive technical work to be found, while still additional emails were completely missing from the EOP server.
The National Security Archive filed its lawsuit on September 5, 2007 against the Executive Office of the President (EOP) and the National Archives (NARA), seeking to preserve and restore missing White House e-mails. A virtually identical lawsuit filed subsequently by Citizens for Responsibility and Ethics in Washington (CREW) has been consolidated with the Archive's lawsuit. A chronology of the litigation is available here.

Yesterday, February 20, was the deadline for formal response from the plaintiffs to the government’s January 21, 2009 motion to dismiss. The January 21 government motion conceded that many days of e-mails written in 2003 through 2005 had been deleted from the Executive Office of the President (EOP) servers, that these deleted emails had to be restored from backup tapes, and that millions of emails had been mislabeled and miscategorized in the White House system, rendering them undetectable without a significant effort by the White House technology staff. The defendants, relying on the declaration of someone who has worked in the White House for only 4 months, claimed e-mails have been restored and the issue is now moot.

The Archive’s opposition filed yesterday disputes those claims pointing out:

* The White House motion acknowledges that the restoration effort is not complete;
* The White House inexplicably selected for restoration e-mails from only a portion of the days that they themselves acknowledge have deleted e-mails;
* The White House did not conduct an analysis or restoration for the entire period during which emails are alleged to have been deleted;
* The White House excluded key periods from their analysis and restoration effort allegedly because of the migration from Lotus Notes to Microsoft Exchange;
* The White House relied on a statistical analysis for its estimation of whether emails were missing that used as a starting point, the quantity of email on the very servers that the White House now acknowledges were incomplete; and
* The White House has provided no evidence that any of the problems that led to the loss, mislabeling, and misallocation of emails have been corrected.

Obama’s Justice Department tries to kill e-mail case
By Associated Press, Saturday, February 21, 2009
LINK

WASHINGTON - The Obama administration, siding with former President George W. Bush, is trying to kill a lawsuit that seeks to recover what could be millions of missing White House e-mails.

Two advocacy groups suing the Executive Office of the President say that large amounts of White House e-mail documenting Bush’s eight years in office may still be missing, and that the government must undertake an extensive recovery effort. They expressed disappointment that Obama’s Justice Department is continuing the Bush administration’s bid to get the lawsuits dismissed.

During its first term, the Bush White House failed to install electronic record-keeping for e-mail when it switched to a new system, resulting in millions of messages that could not be found.

The Bush White House discovered the problem in 2005 and rejected a proposed solution.

Recently, the Bush White House said it had located 14 million e-mails that were misplaced and that the White House had restored hundreds of thousands of other e-mails from computer backup tapes.

The steps the White House took are inadequate, one of the two groups, the National Security Archive, told a federal judge in court papers filed Friday.

"We do not know how many more e-mails could be restored but have not been, because defendants have not looked," the National Security Archive said in the court papers.

"The new administration seems no more eager than the last" to deal with the issue, said Anne Weismann, chief counsel for Citizens for Responsibility and Ethics in Washington, the other group that sued the EOP.

The Executive Office of the President includes the president’s immediate staff and many White House offices and agencies.

Tom Blanton, director of the National Security Archive, noted that President Barack Obama on his first full day in office called for greater transparency in government.

The Justice Department "apparently never got the message" from Obama, Blanton said.

The department defends the government when it is sued.

Obama fails his first test on civil liberties and accountability -- resoundingly and disgracefully

Secret Guarding: The new secrecy doctrine so secret you don't even know about it

White House: Millions of e-mails may be missing
LINK

Story Highlights
• NEW: White House spokeswoman says 5 million official e-mails may be missing
• White House admits it should have kept e-mails on private GOP system
• Chairman of Senate Judiciary Committee doubts e-mails are deleted
• Committee investigating whether U.S. attorneys' firings were politically motivated

WASHINGTON (CNN) -- Millions of White House e-mails may be missing, White House spokeswoman Dana Perino acknowledged Friday.

"I wouldn't rule out that there were a potential 5 million e-mails lost," Perino told reporters.

The administration was already facing sharp questions about whether top presidential advisers including Karl Rove improperly used Republican National Committee e-mail that the White House said later disappeared.

The latest comments were a response to a new report from a liberal watchdog group, Citizens for Responsibility and Ethics in Washington (CREW), alleging that over a two-year period official White House e-mail traffic for hundreds of days has vanished -- in possible violation of the federal Presidential Records Act. (Watch CREW's comments on the missing messagesVideo)

"This story is really now a two-part issue," CREW's Melanie Sloan told CNN. "First there's the use of the RNC e-mail server that's inappropriate by White House officials and secondly we've also learned that there were between March of 2003 and October of 2005 apparently over 5 million e-mail that were not preserved and these are e-mail on the regular White House server."

Perino stressed there's no indication the e-mails were intentionally lost, but she was careful not to dispute the outside group's allegations. "I'm not taking issue with their conclusions at this point," Perino said. "We're checking into them. There are 1,700 people in the Executive Office of the President."
White House: 'We screwed up'

Perino's disclosure about the White House e-mail comes a day after she admitted that the White House "screwed up" by not requiring e-mails from Republican Party and campaign accounts to be saved and was also trying to recover those e-mails.

Perino said 22 aides in the political arm of the president's office use party or campaign e-mail accounts, which were issued to separate official business from political work. Some of those accounts were used to discuss the December firings of eight federal prosecutors, a shake-up that has triggered a spreading controversy on Capitol Hill.

Congressional investigators have questioned whether White House aides used e-mail accounts from the Republican Party and President Bush's re-election campaign for official government business to avoid scrutiny of those dealings.

Sen. Patrick Leahy, the chairman of the Senate Judiciary Committee, accused the White House of trying to hide messages on the Republican Party system related to the firing of the U.S. attorneys, which has stirred up a hornet's nest on Capitol Hill.

"You can't erase e-mails, not today," said Leahy, D-Vermont. "They've gone through too many servers. They can't say they've been lost. That's like saying, 'The dog ate my homework.' " (Watch Leahy compare e-mails to Nixon tapesVideo)

Leahy said the e-mails would have remained on party or campaign computer servers, and he compared the situation to the famous 18½-minute gap in one of the Watergate tapes.

"They're there," he said. "They know they're there, and we'll subpoena them, if necessary, and we'll have them."

Perino told reporters that the e-mails from those accounts should have been saved, but said policy has not kept pace with technology. She said computer experts were trying to retrieve any records that have been deleted.

"We screwed up, and we're trying to fix it," she told reporters.
E-mails sought by special prosecutor also missing

Patrick Fitzgerald, the special prosecutor in the CIA leak case, disclosed last year that some White House e-mails in 2003 were not saved as standard procedure dictated.

In a January 23, 2006, letter to the defense team of former White House aide I. Lewis "Scooter" Libby, Fitzgerald wrote: "We advise you that we have learned that not all e-mail of the Office of Vice President and the Executive Office of President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system."

Robert Luskin, personal attorney for Rove, told CNN Friday that he "has no reason to doubt" Fitzgerald's assertion that some White House e-mail was missing.

"You're quite right," Luskin said in a telephone interview. "There was a gap there."

Democrats charge this raises questions about whether the public has gotten the full story on everything from the CIA leak case to the fired U.S. attorneys controversy.

"The biggest problem here is really that here is a White House that is deliberately violating an existing statute that requires them to preserve all records," said Sloan. "And we have significant evidence now both from the RNC e-mail and the White House e-mail that are missing that the White House was using every means possible to avoid complying with the law."

Luskin said it was "foolish speculation" for CREW -- which serves as counsel to former ambassador Joe Wilson and his wife, Valerie Plame, in a private suit against Rove and other Bush officials -- to suggest that the gap in White House e-mail helped Rove avoid indictment in the CIA leak case. Luskin said Fitzgerald told him that Rove was cleared in the case because he "did nothing wrong."

Luskin added that until this month, Rove believed his RNC e-mail was being archived and did nothing wrong.

"Rove has always understood from very early on in the Bush administration that RNC and campaign e-mail were being archived," said Luskin. "He was absolutely unaware until very, very recently that any e-mails were lost. And he never asked that e-mails be deleted or asked for the authority to delete e-mails."

CNN's Ed Henry and Lisa Goddard contributed to this report.

 
© 2003 The E-Accountability Foundation