Watchdog Groups in Settlement Talks With White House Over Missing Bush-Era E-Mails

By Jason Leopold

Two watchdog groups that sued the Bush administration over the loss of 14 million e-mails filed court papers seeking a stay of their lawsuit while they negotiate a  settlement with the Obama administration to resolve the matter.

“There is good cause to grant this motion and stay the case, as the parties have already begun to engage in discussions to resolve the issues raised in these cases through settlement, and more time is needed to conduct these discussions,” says the motion filed by Jones Day, the attorneys who represent George Washington University’s National Security Archive in their lawsuit filed against the Bush administration. “The interests of justice will be furthered by allowing the parties ample time to discuss the possible resolution of these cases without further litigation.”

Anne Weismann, chief counsel for Citizens for Responsibility and Ethics in Washington (CREW), one of the plaintiffs in the lawsuit against the Bush White House, said she was “pleased the [Obama] administration is willing to work with us to find a resolution to this lawsuit outside of litigation. 

“Hopefully through this process we can finally learn what happened to the millions of missing emails from the Bush administration and restore for the American public their rightful legacy,” Weismann added.

Settlement talks in the long-running legal battle come two months after President Barack Obama’s Justice Department quietly filed a court motion asking a federal court judge to dismiss the case.

Obama’s Justice Department sought the dismissal one day after Obama was sworn in as President of the United States and in the same week that he signed executive orders ushering in a new era of government transparency

In a legal brief filed January 21, the Justice Department admitted that a secretive restoration process implemented during George W. Bush’s last months in office was still incomplete, and that a bulk of the emails sent between 2003 and 2005 were deleted from servers in the Executive Office of the President and unrecoverable.

A Justice Department attorney said issues revolving around the missing emails were “moot” because some steps, however incomplete, were taken by the Bush White House to preserve and restore missing emails, even though the work was conducted under the cover of secrecy by an unknown outside contractor hired by Bush administration officials.

The missing emails cover a time-frame that included the lead up to the Iraq war, a lawsuit involving the identities of individuals and corporations who advised Dick Cheney on energy policy and the leak by White House officials of covert CIA operative Valerie Plame’s identity.

National Security Archive and CREW fired back in sharply worded press releases and in court papers in February, saying the Obama administration’s position on the matter was no different than George W. Bush’s.

“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 email system,” National Security Archive director Tom Balnton said at the time.

“Justice could have pulled back from that first misstep but they have not,” Blanton added. “The White House email presents a high-level test of the new Obama openness policies, and so far, the grade is at best an incomplete.”

CREW said the Obama administration’s attempt to dismiss the lawsuit “is yet another gambit in a series of actions designed to avoid transparency and accountability by obscuring the fact the Bush White House did nothing for years about a serious email problem that left a gaping hole in our nation’s history.”

The group said because there has not been an accurate and truthful accounting of how the emails went missing in the first place, “we have no assurance the problem will not be repeated.”

CREW and the National Security Archive sued the Executive Office of the President two years ago alleging the Bush administration violated the Presidential Records Act and Federal Records Act by not properly archiving emails from 2003 to 2005.

It’s unknown when the parties entered into settlement talks or what the plaintiffs expect in return for suspending litigation. The two-page motion filed by National Security Archive asks the court for a stay “in order to provide ample opportunity to explore whether the issues raised…may be resolved through settlement rather than continued litigation.”

“The parties have agreed to withdraw all pending motions and/or discovery requests, without prejudice to renew them,” the motion to stay says.

However, “the parties have agreed that any party may dissolve the stay by filing a substantive motion or otherwise seeking the court’s assistance.”

Court papers state that a joint status report on the settlement talks will be filed in three months and every three months thereafter to advise the court on how the negotiations are proceeding.

The email controversy first surfaced in January 2006 when Patrick Fitzgerald, the special prosecutor appointed to investigate the leak of covert CIA operative Valerie Plame Wilson, said in court papers after the indictment of Vice President Dick Cheney’s former Chief of Staff I. Lewis Scooter Libby that he “learned that not all email of the Office of the Vice President and the Executive Office of the President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system.”

In October of 2005, the Office of Administration discovered that White House e-mails had not been archived in accordance with the Presidential Records Act. The Office of Administration had briefed former White House Counsel Harriet Miers about the lost e-mails.

Miers is said to have immediately informed Fitzgerald about the issue. Fitzgerald had been investigating White House officials’ role in the Plame leak and subpoenaed White House e-mails sent in 2003. Fitzgerald stated in a 2006 court filing that some e-mails in the Office of the President and Vice President had not been turned over to federal investigators working on the leak probe.

An internal investigation by officials in the Office of Administration concluded that e-mails from the office of Vice President Dick Cheney between Sept. 30, 2003, and Oct. 6, 2003 were lost and unrecoverable.

That was the week when the Justice Department launched an investigation into the Plame-Wilson leak and set a deadline for Bush administration officials to turn over documents and e-mails containing any reference to Plame Wilson or her husband, former Ambassador Joseph Wilson.

Additionally, Office of Administration staffers said there were at least 400 other days between March 2003-the month the U.S. Invaded Iraq-and October 2005 when e-mails could not be located in either Cheney’s office or the Executive Office of the President.

Last year, Theresa Payton, the Office of Administration’s chief information officer filed an affidavit with a federal court judge stating that every three years the White House destroyed its hard drives “in order to run updated software, reduce ongoing maintenance, and enhance security assurance.”

“When workstations are at the end of their lifecycle and retired… under the refresh program, the hard drives are generally sent offsite to another government entity for physical destruction in accordance with Department of Defense guidelines,” states Payton’s sworn affidavit.

In January, just before the Bush administration’s term ended, Helen Hong, a DOJ attorney, told the judge presiding over the case that the White House spent $10 million to locate the missing emails.
Hong explained that independent contractors hired by the White House found the missing emails by looking through 60,000 disaster backup tapes.

She said the 14 million emails were never actually “missing,” rather the emails were simply unaccounted for due to a “flawed and limited” internal review by the Office of Administration in 2005. The documents were retrieved, the Justice Department claimed in a highly technical explanation, “through a three-phased email recovery process.”

Previously, Payton and White House press secretary Dana Perino have blamed the loss of the emails on the administration’s transition from Lotus Notes to Microsoft Outlook.

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