Judge wants White House email backups

A federal magistrate ordered the White House on Tuesday to reveal whether copies of possibly millions of missing e-mails are stored on computer backup tapes.

The order by U.S. Magistrate Judge John Facciola comes amid an effort by the White House to scuttle two lawsuits that could force the Executive Office of the President to recover any e-mail that has disappeared from computer servers where electronic documents are automatically archived.

Two federal laws require the White House to preserve all records including e-mail.

Facciola gave the White House five business days to report whether computer backup tapes contain e-mails written between 2003 and 2005.

The time period covers the Valerie Plame affair in which at least three presidential aides were found to have leaked Plame’s CIA identity to the news media.

“Do the back-ups contain the e-mails said to be missing?” Facciola asked.

In a four-page order, Facciola said he needs to know “if the missing e-mails are not on those back-ups.”

Facciola noted the importance of acting quickly since e-mails that might be retrievable from individual computer workstations in the White House “are increasingly likely to be deleted or overwritten with the passage of time.”

White House spokesman Tony Fratto declined comment while reviewing the magistrate’s order. In the past, the White House has said there could have been some e-mails that were not automatically archived because of a technical issue.

In their lawsuits, the National Security Archive and Citizens for Responsibility and Ethics in Washington suggest the e-mails were improperly deleted from White House computer servers. Over 5 million White House e-mails are missing, CREW alleged. Recently, the group said it has been told by reliable sources that the actual figure of missing e-mail is over 10 million.

Facciola’s court order “is going to force the White House to actually explain something about the situation and what they’ve done about the missing e-mails,” said Meredith Fuchs, general counsel at the National Security Archive.

In asking that the complaints be dismissed, the Bush administration says the president’s record keeping practices under the Presidential Records Act are not reviewable by the courts. Also, the Federal Records Act does not allow the far-reaching action the two private groups are demanding, the administration contends.

Two months ago, CREW obtained a court order directing the White House to preserve the backup tapes.

The Bush administration had offered to have the government file a sworn declaration stating that the White House is safeguarding all backup materials. Instead, Facciola recommended that the judge in the case, Henry Kennedy, issue a court order because “a declaration is not punishable by contempt. In other words, without such an order, destruction of the backup media would be without consequence.” Kennedy did as Facciola suggested.

The subject of missing White House e-mail arose early in 2006 when the prosecutor in the Plame investigation, Special Counsel Patrick Fitzgerald, disclosed that not all electronic message traffic of the EOP and the office of Vice President Dick Cheney “for certain time periods in 2003” was preserved through the normal archiving process.


  1. Jim C

    Cynyhia Mckinney , shes not exactly simon pure either . Give me a viable third party ( liberal that is ) and I’m there . But at this moment in time there simply isn’t one . The way I look at it partner , is that if you vote for someone that has no chance you might as well vote for the opposition , same result , think Nader . The republicans didn’t support Ralph for nothing , they understand what splitting the vote does . I can guarantee I’m as liberal as anyone on these boards , but I’m also pragmatic . We sorely need to elect a democrat this year . While I may not be happy with the nominee , I would rather hold my nose and vote for the democrat than shoot myself in the foot and take a chance on more knuckle dragging supreme court picks .

  2. ekaton

    I’m just so frustrated with the whole system I could scream and fly upside down into a waterspout.

    — Kent Shaw

  3. Jim C

    Believe me , I feel your pain . The idea of having a choice between Hillary ( I’m almost a republican ) or Obama ( I want to make nice with the fascists ) makes me queasy too . But , I’m focused on the supreme court and either one would probably make reasonable picks . So , I have some extra clothepins if you’d like to borrow one . Sometimes you just have to look at the big picture and make the best of the hand your dealt .

  4. Flapsaddle

    Please explain this statement:

    She will have full authority over the Constitution and we all will suffer the consequences.

    As I understand our Constitution, the Executive, like the other branches of the federal government, are delegated certain specific powers; they are subject to its authority, not the other way around. Exactly what authority over the Constitution would Mrs. Clinton have?


    T. J. Flapsaddle

  5. Sandra Price

    Since when did federal laws enter into the White House? Can you even imagine what Clinton will do to abuse this power? She will have full authority over the Constitution and we all will suffer the consequences.

  6. jyakubow

    It’s not like we aren’t already suffering the consequences, so what will be the difference?


  7. ekaton


    If you like George Bush you will LOVE Hillary Clinton. Do not expect a repeal of the patriot act or any of W’s executive orders. Do not expect the return of habeas corpus. Do not expect repeal of the military commisions act. Do not expect repeal of HR1955. DO expect more and more of the same in “hillary’s village”. DO expect more and more “free trade agreements”.

    — Kent Shaw

  8. Jim C

    I just want to know why they haven’t been ordered to turn the damn things over ? This stupid kubiki dance is getting old . Did you destroy them yet ? No not yet . Are you sure ? Yeah . Do you swear ? Uh huh . How about now ? No not yet . You sure ? Yeah . and on , and on , enough already .

  9. Caine

    Everyone that works in the IT field knows that at one point the email was backed up. Even the most rudimentary companies keep backups of all data. Most keep that data for many months, and some of the more conservative companies keep this data for years. So, I think they do have the data.

    Being as they most likely do have the tapes, the next question is, will the administration admit they have them and will they turn them over? I believe they will not turn over any data and they will not be forced to either. This administration answers to no one!

  10. ekaton

    The guys to subpoena are the IT systems administrators. They are low level white house employees and wouldn’t dare refuse to appear if subpoenaed. They would know where the skeletons are buried… er… where the backups are and what they contain.

    — Kent Shaw

  11. Steve Horn

    “Facciola gave the White House five business days to report whether computer backup tapes contain e-mails written between 2003 and 2005.”

    – as an IT project manager I agree with Caine that all companies keep backups of emails and other transactions and data, however, tapes can get “lost”, sometimes they can be “recycled” and used, again, to backup data, after a certain period of time. I suspect that the Whitehouse will release a backup schedule showing that, while these tapes may have held the desired backups at some point in time, that since that time they’ve been recycled for other backups OR that some misadventure had befallen them.

    The item they should be checking for is not tape, which is a magenetic media that can be overwritten or re-formatted, but non-volatile media, such as archives to DVD (archives to NV media is a common practice for critical information).

    Of course, chances are that the data, if it still exists, has been encrypted for security purposes, if so the encryption keys would be required to actually access the information on the tapes. If that’s the case then I suspect that the tapes will be released to the judge, to satisfy his request, but the release of the encryption keys will be blocked due to national security needs …… breaking said encryption key, while possible, will take more than a couple of days (if the person who wrote the encryption software is worth his/her salt).



  12. ekaton

    ” … that since that time they’ve been recycled for other backups OR that some misadventure had befallen them.”

    Oh? Like a fire in the vice president’s utility closet in his office?

    — Kent Shaw

  13. Sandra Price

    I agree Steve. The documents are somewhere hidden carefully away from prying eyes. Those hard drives are backed up by disks or tapes and then filed away in fire proof cabinets. I would love to know who received cc’s when an email was sent or received. If the White House refuses to present the missing emails, an arrest should be made to both the President and Vice President. If we don’t do this now it will open tyranny to future Presidents.

  14. Steve Horn

    Sandra –

    Bingo – this isn’t like the magnetic tape used to make Nixon’s (in)famous record of phone conversations where there’s only the original.
    Somewhere in Cyberland these records exist (even if only on the NSA’s “Carnivore” system!) –
    Now, getting access to them, that’s another issue in and of itself.


  15. JudyB

    Don’t count on having the missing e-mails produced…Bush and his secretive criminal staff of goons will never allow it! I am sure copies of the missing e-mails exist, but getting them in the hands of the courts will be nothing short of miraculous.
    I put NOTHING past what steps Bush will take (or has already taken) to prevent them from surfacing!

  16. Donnat

    I agree with JudyB, not a single email will surface during this administration and probably never. This is a bunch that comes to the door, says ‘no’ and slams it and nobody has the courage to knock again, or more appropriately, to kick the door down and drag their criminal butts to Gitmo. I still hope and pray it will be Obama or Clinton’s first act in Jan. 2009.

  17. Jim C

    Well , you can bet whatever is going on they are doing all they can behind the scenes to either eliminate or alter anything incriminating . As far as those of you that are going on how awful Hillary would be . I can just about guarantee she would be a breath of fresh air compared to what we’ve had inflicted on us for the last seven years . I’m no fan of hers , mainly because she’s to conservative for my taste , I’m for either Kucinich or Edwards . But , get real , she’s not evil incarnate , what we have now is . I’m not exactly sure what she’s actually done to induce all of this doom and gloom hand wringing . I’m sure I’ve been aware of her as long as most of you and she’s done nothing to merit this . No , she wouldn’t be my pick , but if she gets the nomination I will vote for her . She is head and shoulders above anything the other side has to offer and that includes uncle fruitcake , turn the corporations loose like wolves on a flock Ron Paul . I have faith that if nothing else she would nominate decent supreme court justices and that alone makes my choice easy . Who knows , she might not be all that bad , but we shall see . Its still a long time until election day .

  18. ekaton

    I won’t vote for a republican or a democrat. I don’t care if either party nominates Mohandas Ghandi. Both are corrupt beyond salvage. I’m voting for Cynthia McKinney, or whomever the Green Party nominates.

    — Kent Shaw