Contempt for the Law

By Dan Froomkin
Special to washingtonpost.com
Thursday, January 17, 2008; 1:16 PM

There is much cause for outrage over the White House's brazen disregard for federal public records law, which may well have resulted in the destruction of millions of official e-mails. But today's focus on the recycling of backup tapes may actually be a bit of a red herring.

The law is clear that e-mails sent and received by anyone in the White House -- just like all official White House documents -- should be instantaneously and automatically archived.

So someone in the White House should have been making sure the law was being followed, and that all e-mails were indeed being properly stored for posterity.

That same someone also should have been making sure White House staffers weren't circumventing archive requirements by using outside e-mail addresses. But the White House legal counsel's office remained silent as top aides, including Karl Rove, fired off possibly hundreds of thousands of official-business e-mails from Republican National Committee accounts, where most data is routinely deleted after 30 days.

The matter in the news today relates not to those e-mails, but to as many as several million others -- these actually on the eop.gov accounts -- that seem to have vanished.

The best information we have about those e-mails comes from an Aug. 30, 2007 letter from House Oversight Committee Chairman Henry Waxman to White House Counsel Fred Fielding, outlining what congressional investigators had discovered so far.

"On May 29, 2007, Keith Roberts, the Deputy General Counsel of the White House Office of Administration, and Emmet Flood, Special Counsel to the President, briefed Committee staff on the White House e-mail system and the missing e-mails," Waxman wrote. "At the briefing, Mr. Roberts informed Committee staff that the White House had discovered in 2005 that an unknown number of e-mails may not have been preserved in the White House archive, as required by the Presidential Records Act. According to Mr. Roberts, the Office of the Chief Information Officer then conducted a review of the e-mail system to determine the scope of the potential loss. He said that this review apparently found some days with a very small number of preserved e-mails and some days with no e-mails preserved at all. He also stated that a report summarizing these findings had been presented to the White House Counsel's office.

"In addition, Mr. Roberts informed the Committee that an unidentified company working for the Information Assurance Directorate of the Office of the Chief Information Officer was responsible for daily audits of the e-mail system and the e-mail archiving process. Mr. Roberts was not able to explain why the daily audits conducted by this contractor failed to detect the problems in the archive system when they first began."

Waxman requested more information. He's still waiting.

As soon as White House officials determined that e-mails might be missing from the archives, it was their responsibility to launch a search-and-rescue mission. And they should have starting going through the emergency backup tapes -- which provide snapshots of the entire network at a given point in time and allow you to fish specific things out if need be.

But the White House took no immediate action. It only recently launched a full-scale investigation -- an investigation that is conveniently still underway.

And, as the White House explained in a court filing late Tuesday night, those backup tapes were regularly overwritten until October 2003.

It seems unconscionable that the tapes were not preserved. But the underlying failure -- the apparently complete disregard for the law -- is considerably more serious than that.

It took a federal court order for the White House to tell us even as much as it did on Tuesday. But the new filing raises many more questions than answers.

Hopefully, reporters and congressional investigators will be asking those questions with renewed ferocity in the days to come.

For background, see my April 12 column, Countless White House E-Mails Deleted, my June 19 column, Casual Lawbreaking at the White House, and my Nov. 13 column, Where Are the E-mails?

The Coverage

Elizabeth Williamson and Dan Eggen write in The Washington Post: "E-mail messages sent and received by White House personnel during the first three years of the Bush administration were routinely recorded on tapes that were 'recycled,' the White House's chief information officer said in a court filing this week.

"During the period in question, the Bush presidency faced some of its biggest controversies, including the Iraq war, the leak of former CIA officer Valerie Plame Wilson's name and the CIA's destruction of interrogation videotapes.

"White House spokesman Tony Fratto said he has no reason to believe any e-mails were deliberately destroyed.

"From 2001 to October 2003, the White House's practice was to use the same backup tape each day to copy new as well as old e-mails, he said, making it possible that some of those e-mails could still be recovered even from a tape that was repeatedly overwritten. 'We are continuing to analyze our systems,' Fratto said last night. . . .

"Two federal statutes require presidential communications, including e-mails involving senior White House aides, to be preserved for the nation's historical record, and some historians responded to the court disclosure yesterday by urging that the White House's actions be thoroughly probed.

"'There certainly could have been hugely important materials there . . . and of course they're not owned by President Bush or anybody in the administration, they're owned by the public,' said presidential historian and author Robert Dallek. 'Given how secretive this administration has been, it of course fans the flames and suspicions about what has been destroyed here. I hope we'll get an investigation.'"

Pete Yost writes for the Associated Press: "The White House started preserving backup tapes in October 2003, which would have been shortly after the start of the probe into who outed CIA operative Valerie Plame in July of that year.

"The backup tapes, which also contain electronic documents in addition to e-mail, are the last line of defense for saving electronic records. . . .

"Two years ago, Special Counsel Patrick Fitzgerald first disclosed a White House e-mail problem, which the White House says it discovered in October 2005.

"'What has the White House been doing for two years?' said Tom Blanton, director of the National Security Archive, one of two groups suing the White House over the e-mail issue. 'The White House still doesn't seem to have a clue.'

"White House spokesman Tony Fratto said that 'as we have repeatedly stated, we do not know that there is actually a problem' with missing e-mail."

Anne Weismann, chief counsel for the other group suing the White House, Citizens for Responsibility and Ethics in Washington, "pointed to previous White House statements suggesting there was missing e-mail and to the fact that the White House is refusing to turn over numerous documents about the problem. . . .

"'It appears that the White House has now destroyed the evidence of its misconduct,' Weismann said.

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

Writing in Government Executive, Jill R. Aitoro provides some background on archiving obligations and notes: "By Feb. 1, the National Archives and Records Administration and the White House must provide congressional watchdogs with an update on preparations for the transition of all presidential records to the National Archives by January 2009."

Mark your calendars.

Back From the Middle East

Scott MacLeod writes for Time: "Seldom has an American President's visit left the region so underwhelmed, confirming Bush's huge unpopularity on the street and his sagging credibility among Arab leaders he counts as allies. Part of the problem was the Administration's increasingly mixed message, amplified by the intense media coverage of his trip. For example, in Dubai he gave what the White House billed as a landmark speech calling for 'democratic freedom in the Middle East.' But during his last stop in Sharm el-Sheikh Wednesday, he lauded President Hosni Mubarak as an experienced, valued strategic partner for regional peace and security and made no mention of Cairo's ongoing crackdown on opponents and critics -- and the continuing imprisonment of Mubarak's main opponent in the 2005 presidential election. . . .

"Commenting on the two main purposes of the tour, even the most liberal Arab press questioned the sincerity of Bush's efforts to establish a Palestinian state and criticized his campaign to pressure Iran over its nuclear program. On occasion, senior Arab officials contradicted or disputed Bush's pronouncements even before he left their countries. . . .

"Bush's efforts to rally an Arab coalition to isolate Iran in the Gulf seemed to fall flat. Only days after he visited Kuwait, liberated in 1991 by a coalition led by the President's father, Kuwaiti Foreign Minister Mohammed Sabah al-Salem al-Sabah was standing beside Iranian Foreign Minister Manouchehr Mottaki in Tehran, declaring: 'My country knows who is our friend and who is our enemy, and Iran is our friend.' . . .

"'We ought to be celebrating President George Bush's declaration that a Palestinian state is 'long overdue,'' said the Arab News in Jidda. 'It is impossible to feel any excitement about Bush's words, because no Palestinian, no Arab believes he will, or can, deliver. We have the Bush record with its damning testimony of failure and disaster. That is the reason for the skepticism and the cynicism.'"

USA Today's Richard Wolff reviews the highlights:

"Bush sought to advance Israeli-Palestinian peace talks by shuttling along the checkpoint-studded roads between Jerusalem and Ramallah. Even as he praised both sides for being willing to compromise, 11 members of the right-wing Yisrael Beitenu Party withdrew from the Israeli government to protest Prime Minister Ehud Olmert's handling of the peace negotiations, and Arab newspapers denounced Bush for refusing to push Israel on Jewish settlements.

"The president sought to unite the region against Iran by stressing that U.S. policy on Tehran had not changed despite a U.S. intelligence report that said Iran's nuclear program was shelved in 2003. Israel disputed the intelligence report and refused to rule out military action, while Saudi Arabia said it has no problems with Iran.

"Bush's lone policy speech promoted human rights reforms and democratization in the Middle East. On Wednesday here, he praised Egypt for helping to lead 'the freedom and justice movement' in the Middle East ? even though the nation has backtracked on reforms in the past few years.

"On oil prices, Bush failed to convince Saudi officials that supplies should be increased to drive down gas prices."

Ellen Knickmeyer writes in The Washington Post: "President Bush on Wednesday ended a Middle East tour that political activists saw as lacking the strong calls for democratization made earlier in his administration, disappointing those once encouraged by the statements of American leaders. . . .

"On Wednesday, after discussions with Egyptian President Hosni Mubarak at the Red Sea resort of Sharm el-Sheikh, Bush commended him for progress. 'You have taken steps toward economic openness . . . and political reforms,' Bush said.

"But Hisham Kassem, an Egyptian political activist who last year received a U.S. National Endowment for Democracy award, was left dispirited by Bush's tour. The year 2005 'was the best year in my life, politically . . . . Our hopes were way up there,' Kassem said. 'But -- it was just another story.'

"Anger grew in his voice. 'Bush, as far as American foreign policy vis-a-vis democracy, civil rights, is right back to square one,' Kassem added. 'This trip marks it.'"

Steven Lee Myers writes in the New York Times that Bush "spoke passionately at times about the birth of liberty and justice in countries that restrict them and the role of women in societies that still largely sequester them.

"And yet he avoided public disputes with monarchical leaders widely accused of limiting freedoms as he sought Arab support for the peace talks between the Israelis and Palestinians, the war in Iraq, diplomatic efforts to isolate Iran and easing the strain on the American economy caused by high oil prices."

Dion Nissenbaum writes for McClatchy Newspapers: "It didn't take long for President Bush's ambitious Middle East peace initiative to collide with a sobering reality. . . .

"Six days after Bush personally appealed for his support, conservative Israeli lawmaker Avigdor Lieberman abandoned Prime Minister Ehud Olmert's coalition government on Wednesday.

"'All negotiations based on territory for peace are a fateful error, an incomprehensible mistake,' Lieberman said Wednesday.

"Wednesday also was the second straight day of stepped-up Israeli military operations in the West Bank and Gaza Strip, which began hours after Israeli and Palestinian peace negotiators began their first substantive round of peace talks."

Newsweek's Michael Hirsh found it hard to distinguish between Bush and Alysheba, the aging Derby and Preakness winning horse that King Abdullah of Saudi Arabia paraded around his farm outside Riyadh.

"Like Bush, Alysheba was the scion of a proud lineage (in the stallion's case, the famed Alydar). And like Bush, the 24-year-old bay was still proud but more than a little broken down--in the horse's case, so far past his prime he looked swaybacked.

"There's one big difference, of course. Alysheba has long since given up on winning (in fact, he's not even used for stud anymore). George W. Bush, with just 12 months to go before he's put out to pasture, still thinks he can win the big ones: a Mideast peace deal, an Iranian surrender on nukes, a functioning Iraqi government."

Iraq Watch

The New York Times editorial board writes: "President Bush is discussing a new agreement with Baghdad that would govern the deployment of American troops in Iraq. With so many Americans adamant about bringing our forces home as soon as possible, a sentiment we strongly share, Mr. Bush must not be allowed to tie the hands of his successor and ensure the country's continued involvement in an open-ended war. . . .

"Mr. Bush is rushing to complete a deal before he leaves office in January 2009. That is just as reckless and irresponsible as most of his decisions regarding Iraq. America's interests demand that his successor has maximum flexibility to plot a course, which we hope includes a quick and orderly withdrawal of troops.

"One way to ensure that flexibility is to make sure that Congress approves any deal with Iraq, as leading Democrats, including Senator Hillary Rodham Clinton, are insisting. The time for Congressional intervention is now."

Stimulus Watch

Jonathan Weisman and Jeffrey H. Birnbaum write in The Washington Post: "A rush by President Bush and Democratic leaders to assemble an economic stimulus package to stave off a recession is being complicated by a potentially debilitating brew of presidential politics, ideological differences and special interest lobbying. . . .

"Republican contenders and GOP leaders are warning the White House not to compromise too much with Democrats on an economic stimulus they are not even sure is warranted."

Sheryl Gay Stolberg writes in the New York Times: "As President Bush weighs a stimulus package to jump-start the sagging economy, a debate has broken out inside the White House over how hard to push Congress to make Mr. Bush's tax cuts permanent -- a priority for the president, but one that Democrats say would kill the plan before it is even considered.

"On one side, according to people familiar with the deliberations, is a powerful group of pragmatists, including Henry M. Paulson Jr., the treasury secretary; Joshua B. Bolten, the White House chief of staff; and Ed Gillespie, counselor to Mr. Bush. They argue that the need for a stimulus is urgent, but have expressed concern that the administration may have to scale back its ambitions for permanent tax cuts to get a package through Congress.

"On the other side, these people say, are staunch economic conservatives like Keith B. Hennessey, the new director of Mr. Bush's National Economic Council. They have reservations about the need for an economic rescue package and maintain that if the White House proposes one, it should use the plan as leverage to press lawmakers into making the tax cuts permanent.....

"Vice President Dick Cheney has also been a strong supporter of the tax cuts, although it is not clear what role he is playing in the current debate."

Maura Reynolds and Richard Simon write in the Los Angeles Times that "senior congressional Republicans said Wednesday they would put aside demands to make President Bush's tax cuts permanent if that was what it took to get quick action on a stimulus package."

Reynold and Simon also write: "Some Republicans acknowledged that the emerging shape of the stimulus legislation made it more likely that the president -- who mentions the issue at every opportunity -- would not get his tax cuts extended before he left office."

Torture Tapes Watch

Walter Pincus and Joby Warrick write in The Washington Post: "The CIA's destruction of videotapes containing harsh interrogations of detainees at secret prisons drew bipartisan criticism from House lawmakers who attended a closed hearing yesterday at which the agency's acting general counsel testified about the matter.

"Intelligence committee Chairman Silvestre Reyes (D-Tex.) said afterward that he remained convinced that the CIA did not meet its obligation to fully inform congressional overseers about the tapes and their destruction."

One anonymous source present at the hearing told The Post "that White House officials did not seem as involved 'as they might have or should have been' in 2005 decision making about the tapes."

Padilla's Complaint

The Washington Post editorial board urges Congress to investigate Jose Padilla's allegations that he was tortured while being held as an enemy combatant for years: "Congress has launched an investigation of the destruction of CIA tapes that allegedly depicted two al-Qaeda suspects undergoing harsh interrogation. Lawmakers have an even greater interest in determining whether a U.S. citizen was tortured on U.S. soil and, if Mr. Padilla is telling the truth, in ensuring that it never happens again."

Bush v. Whales

Marc Kaufman writes in The Washington Post: "The White House has exempted the Navy from two major environmental laws in an effort to free the service from a federal court's decision limiting the Navy's use of sonar in training exercises.

"Environmentalists who had sued successfully to limit the Navy's use of loud, mid-frequency sonar -- which can be harmful to whales and other marine mammals -- said yesterday that the exemptions were unprecedented and could lead to a larger legal battle over the extent to which the military has to obey environmental laws.

"In a court filing Tuesday, government lawyers said President Bush had determined that allowing the use of mid-frequency sonar in ongoing exercises off Southern California was 'essential to national security' and of 'paramount interest to the United States.'

"Based on that, the documents said, Bush issued the order exempting the Navy from provisions of the Coastal Zone Management Act, and the White House Council on Environmental Quality granted the Navy a waiver from the National Environmental Protection Act."

Kenneth R. Weiss writes in the Los Angeles Times: "The battle pits concerns over injuries to marine mammals against troop readiness and national security. But with Bush's latest action, it took on overtones of a struggle between the administrative and judicial branches of government."

Bush does not "have the legal power to overturn a federal court order. So Justice Department lawyers followed his move with legal papers asking the federal courts to remove the order, which was a preliminary injunction that imposed an array of restrictions on the use of sonar, including its shutdown when marine mammals ventured within 2,200 yards of sonar devices."

Here is competing information on sonar and whales from the Natural Resources Defense Council and the Navy.

Pocket Veto Redux

David M. Herszenhorn writes in the New York Times: "The House on Wednesday approved a sweeping $696 billion military policy measure after revising a single provision in the 1,300-page bill that had prompted a surprise veto by President Bush.

"Mr. Bush had strongly supported the original bill, which included pay raises for the military and was approved by wide margins in both the House and the Senate. But he vetoed it last month after the Iraqi government raised objections to a provision allowing American victims of state-sponsored terrorism under Saddam Hussein to sue and to collect judgments by seizing foreign assets in the United States.

"The Iraqis had threatened to withdraw $25 billion from American banks if the president signed the measure."

Megan Scully writes for Congress Daily: "House leaders had been weighing whether to hold a veto override vote to publicly challenge the White House's assertions that its actions constituted a pocket veto, an absolute rejection that cannot be overturned by Congress.

"Ultimately, lawmakers opted to avert a constitutional showdown with the White House over the bill."

Karl Rove Watch

Ralph Z. Hallow writes in the Washington Times: "Karl Rove yesterday reprised one of his favorite post-September 11 campaign themes for Republicans, saying Democrats have an outdated -- but not unpatriotic -- view of national security." Rove was speaking at a Republican National Committee gathering.

Sam Youngman writes in The Hill: "Rove, the man President Bush called 'the architect,' might have retired from the White House, he is clearly still very much engaged in the day-to-day mechanics of the presidential contests on both sides. . . .

"The Bush confidant also trotted out one of the lines of attack the RNC has already been working feverishly against [Hillary] Clinton, questioning why she and former President Bill Clinton will not release records from their time in the White House. This, according to Rove, 'raises legitimate questions about what she's hiding.'"

Faiz Shakir writes for ThinkProgress.org: "As the subject of a contempt resolution for hiding documents, Rove is hardly one to talk. Just last month, the Senate Judiciary Committee voted 12-7 to approve a contempt citation against Rove for withholding information relating to the firing of U.S. attorneys."

May Wedding

David Caplan and Sandra Sobieraj-Westfall write for People: "Jenna Bush and her fiancé Henry Hager will marry in a ceremony on May 10, two sources confirm to People.

"One of the sources says the wedding will be held at the president's ranch in Crawford, Texas.

"'It's going to be a small wedding,' the source tells PEOPLE, adding that Jenna has already selected her bridesmaids."

Cartoon Watch

Steve Sack, John Sherffius, Mike Keefe and MStreeter on Bush's trip; Joel Pett on Bush's new motto.

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