The motion, filed by the Justice Department on January 21, just after the inauguration, sought to dismiss the White House e-mail litigation even while admitting that a secretive restoration process was still not finished. Yesterday the Archive responded to that motion.
“We had hoped the new administration would give a hard look at whether to allow the defense of the Bush Administration’s loss of millions of White House e-mails to proceed on its current course,” commented Sheila Shadmand, a Jones Day partner and counsel for the Archive. “This second motion to dismiss is similar to the one the court already denied months ago – and it admits they have not even completed the restoration project they apparently have been conducting under wraps.”
|Citizens for Responsibility and Ethics (CREW) in Washington have also formally filed an opposition.|
Anne Weismann, CREW's Chief Counsel, stated: "We are disappointed the new administration seems no more eager than the last to recover the missing emails and implement a system that adequately preserves records belonging to the American people."
The Archive’s Director, Tom Blanton, commented, “President Obama on Day One ordered the government to become more transparent, but the Justice Department apparently never got the message, and that same day tried to dismiss the very litigation that has brought some accountability to the White House e-mail system. Justice could have pulled back from that first misstep but they have not. The White House e-mail presents a high-level test of the new Obama openness policies, and so far, the grade is at best an incomplete.”
The independent counsel investigating the Valerie Plame/Scooter Libby case first exposed the problem of missing White House e-mail in a court filing in January 2006, citing whole days of zero archived e-mail from Vice President Cheney’s office. Bush White House statements initially admitted that as many as 5 million e-mails were missing, then subsequently denied any problem. The most recent briefing makes clear that a far larger number of emails were effectively lost because they were mislabeled or misallocated and required extensive technical work to be found, while still additional emails were completely missing from the EOP server.
The National Security Archive filed its lawsuit on September 5, 2007 against the Executive Office of the President (EOP) and the National Archives (NARA), seeking to preserve and restore missing White House e-mails. A virtually identical lawsuit filed subsequently by Citizens for Responsibility and Ethics in Washington (CREW) has been consolidated with the Archive's lawsuit. A chronology of the litigation is available here.
Yesterday, February 20, was the deadline for formal response from the plaintiffs to the government’s January 21, 2009 motion to dismiss. The January 21 government motion conceded that many days of e-mails written in 2003 through 2005 had been deleted from the Executive Office of the President (EOP) servers, that these deleted emails had to be restored from backup tapes, and that millions of emails had been mislabeled and miscategorized in the White House system, rendering them undetectable without a significant effort by the White House technology staff. The defendants, relying on the declaration of someone who has worked in the White House for only 4 months, claimed e-mails have been restored and the issue is now moot.
The Archive’s opposition filed yesterday disputes those claims pointing out:
* The White House motion acknowledges that the restoration effort is not complete;
* The White House inexplicably selected for restoration e-mails from only a portion of the days that they themselves acknowledge have deleted e-mails;
* The White House did not conduct an analysis or restoration for the entire period during which emails are alleged to have been deleted;
* The White House excluded key periods from their analysis and restoration effort allegedly because of the migration from Lotus Notes to Microsoft Exchange;
* The White House relied on a statistical analysis for its estimation of whether emails were missing that used as a starting point, the quantity of email on the very servers that the White House now acknowledges were incomplete; and
* The White House has provided no evidence that any of the problems that led to the loss, mislabeling, and misallocation of emails have been corrected.
A chronology of the litigation is available here.
The National Security Archives