The Bush administration has five business days to answer lingering questions about the backup copies of millions of missing White House e-mails.
Covering more than a two-year period between 2003 and 2005, the missing e-mails came to light as part of congressional inquiries into the White House's firing of U.S. attorneys.
The White House contends the missing e-mails are preserved on backup tapes, but the Bush administration has yet to produce the tapes. The Executive Office of the President is already under a court order to preserve the backup copies.
Magistrate John Facciola of the U.S. District Court for the District of Columbia added to that legal burden Jan. 8 by ordering the EOP to answer questions about whether the backups are identifiable by the period of time they cover or by data they contain, whether they contain e-mails created between 2003 and 2005, and whether they contain the missing e-mails.
In his order, Facciola said that information about the missing e-mails is "time sensitive" since stored copies "are increasingly likely to be deleted or overridden with the passage of time."
The magistrate's order is part of a series of complex legal maneuvers between the White House and the National Security Archive, an independent nongovernmental research institute and library located at George Washington University, and Citizens for Responsibility and Ethics in Washington, or CREW.
"To date, the White House has evaded answering questions about whether it permanently destroyed over five million e-mails about issues such as Hurricane Katrina, the firing of United States Attorneys and the exposure of Valerie Plame's identity as a CIA agent," Meredith Fuchs, the National Security Archive's general counsel, said in a statement. "This order will force the Executive Office of the President to tell the public whether it really erased key records of the nation's history or whether it has made any effort to preserve the information."
At press time, the White House did respond to requests for comment on the order.
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The White House admits the e-mails are missing and that in 2002 it abandoned the electronic records management system put in place by the Clinton administration. The Presidential Records Act requires that all White House e-mail be saved.
In an April 16, 2007, briefing, White House press secretary Dana Perino said, "I'm not taking issue with [CREW's] conclusions at this point. But I also will tell you that the technical folks that we've spoken to in the preliminary discussions [indicated] that if there had been an inadvertent human error or a technical problem … it wouldn't have been intentional and … there are ways that we can try to gather those [e-mails] if need be."
Perino also said, "I think there are backup tapes; there are different ways in order to go back and find e-mails."
CREW originally filed a Freedom of Information Act request with the White House Office of Administration March 29, 2007, for records on the missing e-mails. When the office refused to turn over the information, CREW sued the White House May 23 for the information. The organization also released a report on the missing e-mails based on information obtained from two confidential sources. Following up on CREW's information, the National Security Archive also sued the White House Sept. 5.
The National Security Archive and CREW have subsequently consolidated their legal actions against the White House to force disclosure of the missing e-mails. The House Committee on Oversight and Government Reform is also seeking additional information on the missing e-mails.
"The White House has known for a number of years the e-mails were missing and refused to do anything about it," Anne Weisman, chief counsel for CREW, told eWEEK in September. "It appears they are trying to run out the clock. We've had no indication of cooperation from them."