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Congress to Bush: You've Lost Mail

By Dan Froomkin
Special to washingtonpost.com
Wednesday, February 27, 2008; 1:30 PM

The Bush White House has made a mockery of the Presidential Records Act and its requirement that official White House records -- including e-mails -- be preserved for posterity.

At a congressional hearing yesterday, it became clear for the first time that top White House officials knowingly adopted a new e-mail system in 2002 that was riddled with technical problems that not only risked data loss but could easily be exploited by those who wished to keep their e-mails from public scrutiny. We've known for a while that a lot of White House e-mails, by some accounts numbering in the millions, are missing and have possibly been erased. Yesterday's discovery raises the question of whether that happened by accident -- or by design. And the White House's unhurried approach to addressing the problem is hardly reassuring.

Similarly, we already knew that Karl Rove and many of his colleagues routinely used Republican National Committee e-mail accounts for official business over a period of years, thereby avoiding any archiving process whatsoever. But House Oversight and Government Reform Committee Chairman Henry Waxman made the startling announcement yesterday that the RNC has not tried -- and has no intention of trying -- to restore any of those e-mails.

In addition to the many detailed questions prompted by yesterday's hearing, there is one overarching issue: Can White House officials coast all the way to Jan. 20 without being exposed in such a way that the press and the public take full notice of what they've done?

At least when it comes to the e-mail scandal, there are signs they can. The coverage today was muted at best.

Reason to Be Suspicious

Here is the report from the Democratic committee staff issued yesterday. Its main bullet points:

-- "The White House has not had a reliable system for preserving White House e-mails since 2002, when the White House made the decision to stop using the Automatic Records Management System (ARMS) used by the Clinton White House." This despite repeated warnings to that effect from technologists inside the White House and from officials at the National Archives.

-- "Until mid-2005, the system that the White House used for preserving e-mails had serious security flaws." This meant that White House aides could potentially have viewed, changed and/or erased their own or others' ostensibly secure e-mail archives.

-- "The White House has refused to cooperate with efforts by the National Archives to ensure the preservation of White House e-mails."

-- "The process of recovering missing e-mails from RNC servers and White House back-up tapes has not begun."

At yesterday's hearing, two officials from the White House's Office of Administration expressed confidence that the e-mails were not really missing. They said that all e-mails should have been captured by the ad hoc "journaling system" adopted after the White House changed e-mail programs. And they insisted that, in the worst-case scenario, they could always get the missing e-mails off their backup tapes.

But an anecdote in the report belies that confidence. There's been exactly one previous attempt to find and restore missing e-mails. It took place in late 2005 and early 2006, after special counsel Patrick J. Fitzgerald subpoenaed the White House for e-mails related to the leak of Valerie Plame's identity. White House officials found that several days' worth of e-mails from the vice president's office were missing in their entirety. After several failed attempts, officials did finally manage to find some e-mails, there's no reason to believe they found all of them.

From the House report: "The difficulties the White House encountered in recovering e-mails for Special Counsel Patrick Fitzgerald . . . undermine its claim that the journaling system was adequate. According to documents provided and shown to the Committee, the journaling archive system contained no e-mails from the Office of the Vice President for important dates: September 30, 2003, to October 6,2003.

"In an effort to recover the e-mails, the White House restored backup tapes for these days. These backup tapes also contained no journaled e-mails or .pst files for those dates for the Office of the Vice President. The only e-mails that could be recovered and provided to the Special Counsel were e-mails that the White House was able to restore from the personal email accounts of officials in the Vice President's office."

The White House team eventually "recovered 17,956 e-mails from these individual mailboxes on the backup tape and used these as their basis to search for e-mails responsive to the Special Counsel's request," the report says.

But consider this fact: "A restoration of personal mailboxes from a backup tape does not recover any e-mails deleted by the user before the backup tape was made."

The backup tape the White House used to restore the e-mails was a snapshot taken fully two weeks after the gap in question.

Also consider that according to Steven McDevitt, a former White House computer technician, until mid-2005 "the file servers and the file directories used to store the retained email . . . were accessible by everyone on the EOP network." McDevitt said the "potential impact" of this security flaw was that there was "[n]o verification that data retained has not been modified."

Here are the written responses from McDevitt to questions from the committee, and a series of other supporting documents provided to the committee by the White House and the archives.

Here are the prepared texts of opening statements by Alan R. Swendiman, director of the Office of Administration, Theresa Payton, the White House's chief information officer, and Allen Weinstein, the archivist of the United States.

Blogger emptywheel liveblogged the contentious hearing.

The Coverage

Dan Eggen writes in The Washington Post: "After promising last year to search its computers for tens of thousands of e-mails sent by White House officials, the Republican National Committee has informed a House committee that it no longer plans to retrieve the communications by restoring computer backup tapes, the panel's chairman said yesterday.

"The move increases the likelihood that an untold number of RNC e-mails dealing with official White House business during the first term of the Bush administration -- including many sent or received by former presidential adviser Karl Rove -- will never be recovered, said House Democrats and public records advocates.

"The RNC had previously told the House Oversight and Government Reform Committee that it was attempting to restore e-mails from 2001 to 2003, when the RNC had a policy of purging all e-mails, including those to and from White House officials, after 30 days. But Chairman Henry A. Waxman (D-Calif.) disclosed during a hearing yesterday that the RNC has now said it 'has no intention of trying to restore the missing White House e-mails.'

"'The result is a potentially enormous gap in the historical record,' Waxman said, including the buildup to the Iraq war. . . .

"Administration officials have acknowledged that Rove and many other White House officials routinely used RNC accounts for government business, despite rules requiring that they conduct such business through official communications channels. The RNC deleted all e-mails until 2004, when it exempted White House officials from its e-mail purging policy.

"About 80 White House aides used RNC accounts for official government business, committee staff members said. Rove, for example, sent or received 140,000 e-mails on RNC servers from 2002 to 2007, and more than half involved official '.gov' accounts, the panel has said."

Pete Yost writes for the Associated Press: "A computer expert who worked at the White House provided the first inside look at its e-mail system Tuesday, calling it a 'primitive' setup that created a high risk that data would be lost.

"Steven McDevitt's written statements, placed on the public record at a congressional hearing, asserted that a study by White House technical staff in October 2005 turned up an estimated 1,000 days on which e-mail was missing. . . .

"[T]he White House defended the Bush administration's handling of its electronic messages.

"'We are very energized about getting to the bottom of this,' testified Theresa Payton, chief information officer at the White House Office of Administration.

"'This is a form of sandbagging,' replied Oversight Committee Chairman Henry Waxman, D-Calif., who pointed out that by the time the White House fixes its e-mail problems, 'you'll be out of office.'"

Daniel Schulman blogs for Mother Jones: "Since as early as 2004, the National Archives has warned the White House that its system for preserving email records was inadequate -- and that some of those emails may not have been archived at all, but the Bush administration has been slow to remedy the problem."

Roy Mark of eWeek called yesterday hearing a "partisan political catfight."

And indeed, as Alexis Fabbri writes for the Washington Internet Daily, "members clashed along party lines over whether the National Archives can or should be able to get e-mails from top White House officials, including Karl Rove, who as presidential staff chief used Republican National Committee e-mail accounts for official business. . . .

"Rep. Darrell Issa, R-Calif., . . . asked Weinstein if the Archive is 'keeping YouTube stuff on the president, things that show up on the Internet?' Issa didn't let Weinstein answer. Waxman 'thinks that he should have Karl Rove's every thinking . . . like a peeping tom,' Issa said. 'Do you capture every utterance of the president?' The archivist indicated that the answer was 'No.' It's 'very clear' that the RNC e-mails cover Rove's 'non-official activities . . . related to fundraising . . . maybe strategizing how the party could have kept the majority,' Issa said. It wouldn't be fair to make the Committee cover a costly recovery effort with its funds. 'The Chairman clearly wants to know what Karl Rove did . . . even if it wasn't official business,' he said. . . .

"Alan Swendiman, director of the White House Office of Administration, 'can't control what individuals do on their own' regarding e-mail, he told the committee. The White House counsel's office 'has taken steps' and letters have gone out to former White House staffers regarding their e- mail accounts, Swendiman said. Swendiman was unable to be specific about the contents of the letters, he said. . . .

"'If the e-mails are truly missing, it's the White House's responsibility to restore them,' [Weinstein] said. The Presidential Records Act is 'incredibly important' and those e-mails and other records 'belong to the American people,' he said.

"But no one is helping the Archivist collect e-mails from RNC accounts, Weinstein said."

Anne Broache writes for CNET News: "Republican Ranking Member Tom Davis (R-Va.) said the White House has said it has since reduced the number of days' worth of missing e-mails from 473 to 202 after discovering that those messages had been filed 'in the wrong digital drawer' as part of a switch from the Lotus Notes to Microsoft Exchange e-mail system in 2002."

FISA Watch

Eric Lichtblau writes in the New York Times: "All last week, intelligence officials fielded calls from nervous lawyers for the country's phone companies. With a wiretapping law allowed to lapse in Congress, they were no longer certain what they were supposed to do when the government came to them with a wiretapping order, administration officials said.

"'They're raising questions, and they're saying, "Look, we've got an expired piece of legislation," ' recounted a senior administration official who was involved in the conversations. 'It's not crystal clear.'

"President Bush and his senior aides have been warning for the last 10 days that the country was left more vulnerable by the expiration of the surveillance law on Feb. 16, and said last week that the government had already lost valuable counterterrorism intelligence because of Congressional inaction.

"But as a practical matter, the issue is less about harm that has actually been done than about the prospect that such harm will be done because of uncertainty in the government and the telecommunications industry over what is now allowed, officials involved in the discussions say.

"Even with the law lapsed, intelligence officials continue to be able to put wiretaps on terrorism and espionage suspects under directives that were approved before the expiration of the six-month law, the Protect America Act, which gave the government a freer hand in deciding whom to wiretap without court approval.

"Theoretically, intelligence officials would have to revert to older -- and, they say, more cumbersome -- legal standards if they were now to stumble onto a new terrorist group that was not covered by a previous wiretapping order. But that has not happened since the surveillance law expired, administration officials said. . . .

"Democrats have been arguing for days that the administration has exaggerated the actual national security harm.

"A group of former intelligence officials chimed in Tuesday in a letter to Mike McConnell, the director of national intelligence. The administration's recent comments about wiretapping tools 'have distorted rather than enhanced' the debate over the law, said the letter, signed by Rand Beers, Richard A. Clarke, Lt. Gen. Donald L. Kerrick, retired, and Suzanne E. Spaulding, all of whom have served in senior intelligence capacities in recent years."

Here's the transcript of yesterday's press briefing by two anonymous administration officials. More on that tomorrow.

Housing Watch

Edmund L. Andrews writes in the New York Times: "President Bush sided with banks and mortgage lenders on Tuesday, threatening to veto a bill being offered by Senate Democrats that would give more bargaining power to homeowners who face foreclosure.

"Opening what is likely to be an intense political battle in the deepening mortgage crisis, the White House said it strongly opposed the bill, which would let bankruptcy court judges modify the terms of a mortgage as part of the restructuring of a debt in a bankruptcy filing.

"Supporters of the legislation say it could prevent as many as 600,000 home foreclosures affecting people who took out tickler or other complicated mortgages and now face steep increases in interest rates and monthly payments.

"Consumer and civil rights groups argue that the change in bankruptcy law would provide the surest way of helping families renegotiate mortgages that have been bundled into complex securities and sold to investors.

"But mortgage lenders, and the Wall Street firms that purchased the loans, have mounted a campaign against the bill, saying it would send a chilling message to investors and lead to higher borrowing costs in the future."

David Cho and Lyndsey Layton write in The Washington Post that the most controversial issue is Sen. Richard J. Durbin's proposal, "which would allow bankruptcy judges to cut the interest rates of housing loans to the prime rate plus a 'reasonable' premium for homeowners who cannot afford their subprime mortgages or other nontraditional loans.

"This would reduce payments and allow them to keep their homes after emerging from bankruptcy.

"Durbin said his proposal would extend to homeowners the same kind of protections that already apply to family farms, vacation condos and yachts.

"'If I go into bankruptcy, a court can renegotiate the terms on my vacation condo but is prohibited from renegotiating the terms on my home,' said Durbin, whose plan is backed by labor and civil rights groups, AARP and credit unions. 'It makes no sense whatsoever.'"

Iraq Watch

David Herszenhorn writes in the New York Times: "Undeterred by President Bush and Senator John McCain proudly pointing to progress in Iraq, Congressional Democrats are trying to mount new lines of attack against the administration's war policies.

"In a shift from last year's failed legislative efforts to force a reduction of troops, the Democrats' new approach is aimed primarily at framing the issue for the November elections by focusing on the financial cost of military operations and on the war's implications for the nation's troubled economy.

"With the fifth anniversary of the war fast approaching, the Democrats, citing testimony by the Pentagon's own commanders, are also emphasizing the strain on the armed forces. In addition the Democrats contend that the war against terrorism should be waged primarily in Afghanistan and Pakistan, not Iraq. . . .

"'We have to send a message here,' said Senator Jack Reed of Rhode Island, a West Point graduate and former Army paratrooper who has emerged as one of the Democrats' most authoritative voices on the war.

"'We have to have a long-term sustainable strategy; 140,000 troops is not sustainable in the longer term,' he said."

Torture Watch

Jonathan Turley writes in a USA Today op-ed about "the twisted testimony given this month by Steven Bradbury, the acting chief of the Justice Department's Office of Legal Counsel and one of the central figures in the Bush torture controversy. While it received relatively little attention, Bradbury not only acknowledged a formal program of waterboarding, he also casually distinguished President Bush's approach from historical models such as waterboarding by the Spanish Inquisition. Though Bradbury insisted that the 'only thing in common is, I think, the use of water,' he omitted that other common denominator: pain. Indeed, the primary difference appears to be that the administration rejected water ingestion rather than water saturation to cause the pain. It turns out that the administration thought seriously about its own style of waterboarding and opted for a Khmer Rouge style over the Spanish style.

"For civil libertarians, it was like having the Inquisition's Tomas de Torquemada calmly testifying on '10 charming facts about torture.' Yet, while members of Congress are falling over themselves this month to demand criminal charges in the scandal over performance-enhancing drugs in baseball, there is a conspicuous silence in the wake of Bradbury's torture tour de force. . . .

"After Bradbury's useful primer on torture, the only uncertain thing about waterboarding is not the program but any remaining principles in Congress. If Mukasey refuses to fulfill his oath and investigate a criminal torture program, Congress has the power to investigate these crimes and demand a special prosecutor. Regardless of whether we like our waterboarding with a Latin or Asian flare, it remains torture, and torture remains a crime -- not a question of style. We just need someone in Congress who can see -- and act on -- the difference."

Warming to Limits?

James Kanter and Andrew C. Revkin write in the New York Times: "A senior White House official on Tuesday outlined a new tactic aimed at convincing a skeptical Europe that the Bush administration would support a meaningful agreement to limit global warming.

"The official, James L. Connaughton, chairman of the White House Council on Environmental Quality, said the United States could accept a binding treaty if it included mandatory steps by China and other big developing countries as well.

"An acceptable pact, he said, would have all the world's economic powerhouses, established or emerging, agree to a long-term goal for deep cuts in greenhouse gas emissions at some point, and commit to take measurable, verifiable steps domestically in the short term. . . .

"'We would have an interest in joining an internationally binding agreement as long as China and India are also legally bound.'"

But, as Kanter and Revkin explain: "That is a very big condition, particularly because the major developing countries have insisted that they have the right to expand their economies -- and emissions -- so long as the emissions did not approach the much higher per-capita emissions rates that are the norm in the world's industrialized powers."

EPA Watch

David Whitney writes for McClatchy Newspapers: "Sen. Barbara Boxer released internal Environmental Protection Agency documents Tuesday that add to her suspicion that the White House directed the agency's rejection of California's tough fuel-standards waiver. . . .

"The denial has stalled plans by California and at least 16 other states to enact vehicle emission standards tougher than federal law in an effort to curb carbon-dioxide emissions, blamed for global warming.

"EPA Administrator Stephen Johnson said in December when he rejected California's request that since the effects of global warming weren't confined to the state, its release from the less stringent Clean Air Act requirements wasn't appropriate. He said that toughened vehicle-mileage standards enacted last year would achieve similar results.

"But documents obtained by congressional investigators have revealed disagreements within the agency over the waiver, with professional staff members saying that California had a legitimate claim and the EPA probably would lose a lawsuit filed by the state if the waiver were denied.

"In congressional hearings, Johnson has testified that he alone made the decision. But Boxer said the new documents showed that Johnson went to the White House last May 1 with briefing papers supporting California's position.

"'A funny thing happened on the way to the White House,' she said."

Bush's Slide Show

Ben Feller writes for the Associated Press: "Almost any proud traveler has said it upon returning home: Hey, want to see the pictures from my trip?

"Sure, President Bush. Fire up the slideshow.

"In a rare presidential show-and-tell, Bush spent almost 30 minutes Tuesday narrating images from his five-country journey across Africa. . . .

"'Without a doubt, this was the most exciting, exhilarating, uplifting trip I've taken since I've been the president,' Bush told hundreds of guests at a hotel ballroom.

"That, in perspective, is quite a statement.

"Bush has ranged all over the globe as president: India and Pakistan, Singapore and Vietnam, France and Ireland, Japan and China, Chile and Colombia, on and on. He has met U.S. troops in Iraq and Afghanistan, the pope in Vatican City, the queen in England, Mideast leaders in the holy land."

Here's the slide show and here are Bush's remarks.

Bush's Lament

Ken Herman blogs for Cox News: "In an interview today, President Bush lamented his inability to garner favor among African-Americans. He blames himself. He blames politics. He says Republicans have to find a way to attract blacks.

"The comments came in an Oval Office interview with April Ryan, White House correspondent for American Urban Radio Networks, an operation with broad reach in black communities around the nation. . . .

"'I guess people get images in their mind in the political world where they just don't get to know a person's heart. I'm sure it's my fault that I wasn't able to go into some African-American communities and share my heart,' Bush said.

"'Secondly, I am a Republican and there is a suspicion of being a Republican. You hear, 'Aw, Bush is a Republican. He doesn't care about us.' And I understand that. And our party has to do a better job of making sure our policies are viewed as hopeful policies. I guess that's the reason why,' he said."

For some background, see my column from Sept. 13, 2005: Was Kanye West Right?

AFP reports that in the same interview, Bush denied that the economy was in recession or would go into one. "We're not in a recession, I don't think we will go in a recession. We're in a slowdown, and there's a difference," Bush said.

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