Court May Move Against White House

By Pete Yost
The Associated Press

Wednesday 17 October 2007

A U.S. magistrate indicated Wednesday that a federal court may order the Bush administration to preserve copies of all White House e-mails, a move that a government lawyer argued strongly against.

U.S. Magistrate John M. Facciola asked Justice Department attorneys and a private group for suggested wording on a proposed court order in a lawsuit stemming from problems with the White House e-mail system.

Citizens for Responsibility and Ethics in Washington sued the Executive Office of the President last month, demanding that any e-mails lost from White House computer servers be restored from computer backup tapes.

In the weeks since the group filed its lawsuit, the private organization says it has been unable to get assurances from the government that all White House backup tapes containing copies of e-mails will be preserved. The group, known by the acronym CREW, also says it has been unable to get assurances that the White House is using the backup tapes only once.

Facciola made clear that he is concerned.

Can the government provide assurances that the White House backup tapes of its e-mails have not been "obliterated and recycled?" asked Facciola.

CREW is trying to make sure the e-mail copies are being preserved so that the lawsuit "does not become an academic exercise," said Facciola.

"The Office of Administration is not recycling backup tapes," Justice Department attorney Helen Hong told the judge.

In response, CREW attorney Anne Weismann said the group is concerned about past practices by the Executive Office of the President and private contractors who might have handled backup tapes.

"I don't know how the White House defendants could have been made it more clear," Hong said. She said the administration's position is that there is no need for a court order. She offered to have the administration provide a sworn declaration of what it is preserving.

Facciola adjourned court for 20 minutes, asking the two sides to try to work out wording on an agreement of what has been preserved. After the attorneys said they were at an impasse, Facciola suggested the requirements for a court order had been met.

The Federal Records Act and the President Records Act require that all White House e-mail be preserved.

The lawsuit by CREW last month is similar to one filed earlier by the National Security Archive, a private group advocating public disclosure of government secrets.

The first indication of a problem with the White House e-mail system came nearly two years ago when special counsel Patrick Fitzgerald raised the possibility that records sought in the CIA leak investigation involving the outing of Valerie Plame could be missing because of an e-mail archiving problem.

The issue arose again early this year amid the controversy over the firing of U.S. attorneys. Aides to Bush improperly used Republican Party-sponsored e-mail accounts for official business and an undetermined number of e-mails were lost.

Ultimately, the e-mails will be important years from now to historians delving into the inner workings of the Bush administration.

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