White House recycling could mean e-mails lost

WASHINGTON -- Two years ago this month, Special Counsel Patrick Fitzgerald revealed a tantalizing piece of information in the CIA leak probe. The White House had an e-mail system problem.

On Wednesday, the problem got much bigger when the White House disclosed for the first time it had taped over its backup tapes. Not just e-mail either. But all electronic documents.

Before October 2003, the White House policy was to recycle backup tapes, possibly erasing saved electronic communications at a time when at least three presidential aides were talking about leaking the CIA identity of Valerie Plame to the news media.

"It appears that the White House has now destroyed the evidence of its misconduct," said Anne Weismann, the chief counsel for Citizens for Responsibility and Ethics in Washington.

The number of missing e-mails is over 10 million, says the group, which has taken the Executive Office of the President to court in the issue.

White House spokesman Tony Fratto said, "There is no basis to say that the White House has destroyed any evidence or engaged in any misconduct."

But for two years, the White House has resisted revealing details of the e-mail matter and disclosed information now only because of a federal court order, meeting by minutes a deadline of midnight Tuesday imposed by a U.S. magistrate.

Fitzgerald had good reason to want White House e-mail in the months before he revealed the problem. The prosecutor was preparing to seek an indictment against Vice President Dick Cheney's chief of staff and was contemplating whether to do the same regarding presidential political adviser Karl Rove.

In recent months, Fitzgerald's office has repeatedly declined to comment about the emerging information regarding the e-mail controversy.

Did the White House tell Fitzgerald at the time it had recycled backup tapes until the last three months of 2003? Did the White House tell Fitzgerald the volume of possibly missing e-mail might be huge? Fitzgerald's office will not say.

Aside from what Fitzgerald's office was told or not told, if e-mails are gone forever the White House might have violated two laws requiring preservation of documents that fall into the categories of federal records or presidential records. There are no criminal sanctions for violating either of the laws.

In the private sector, "recycling is a perfectly fine practice as long as you don't have a duty to preserve information," said Michele Lange, director, legal technologies, at Kroll Ontrack of Minneapolis, Minn. The company, among other specialties, recovers lost e-mail for companies and law firms. Kroll Ontrack has no connection to the White House e-mail controversy.

The latest disclosures come in a White House aide's seven-page sworn statement filed in U.S. District Court. The statement says that:

--Before October 2003, the White House recycled backup tapes, a step that reversed a policy of preservation put in place in the last year of the Clinton administration.

--The White House began saving all backup tapes in October 2003, a time marked by the beginning of the Justice Department's CIA leak probe.

--An unidentified employee who has since left the White House created a chart showing that some components of the Executive Office of the President were missing e-mails from White House computer servers on certain dates in 2003-2005.

--The White House Office of Administration has serious reservations about the reliability of the chart and the White House is conducting an independent assessment to determine "whether there may be anomalies" in the amount of e-mail.

On that last point, Weismann, of the private Citizens for Responsibility and Ethics in Washington, says that according to the group's sources, the White House conducted a detailed analysis of the missing e-mail problem two years ago and prepared multiple charts and assessments along with a plan for recovering missing e-mail.

"Those records evidence a clear problem with e-mail that is no longer on White House computer servers, not a mere possibility of 'anomalies' as the White House now claims," said Weismann.

Regarding the recycling of backup tapes, the sworn statement by Theresa Payton, chief information officer at the White House Office of Administration, did not say how early in the Bush administration the practice began.

Another private group suing the White House in the e-mail controversy sees the White House's conduct as odd.

"They changed their practice in 2003 to start saving the backups, but four-and-a-half years later they still have not yet figured out whether or what e-mails were deleted," commented Meredith Fuchs, general counsel of the National Security Archive.

"What has the White House been doing for two years?" asked Tom Blanton, director of the National Security Archive. "Two years after the special prosecutor publicly identified the problem, the White House still doesn't seem to have a clue."

On the recycling issue, Fratto, the White House spokesman, said that despite the practice, some tapes should contain e-mails from before October 2003.

"Of course the disaster recovery backup tapes were, at one time, recycled," said Fratto. "However, since October 2003, the Office of Administration has retained and preserved its disaster recovery tapes. The disaster recovery system is set up to regularly back up everything on the network for the Executive Office of the President."

The Clinton White House halted recycling of backup tapes in March 2000, when it was discovered that some e-mail from the office of Vice President Al Gore was not preserved.