Court Orders Copies of White House E-mails

Bush administration has until Friday to explain why it can't preserve current e-mails and digital content.

19 Mar 2008 // A Federal judge has ordered the White House to stipulate by Friday why it can't create forensic copies of hard drives to preserve emails that may be at risk.

The order, issued Tuesday by the U.S. District Court for the District of Columbia, is a response to a suit filed last week by the National Security Archive.

The nonpartisan group had requested a temporary restraining order (TR0) last week that would require the Executive Office of the President (EOP) to stop any destruction or deletion of computing media -- a quarantine of every workstation within the EOP's domain. There is currently a similar TRO regarding White House backup tapes.

In the order Judge John M. Facciola described the Archive's request as a "draconian measure" that could bring EOP operations to a halt. Yet he clearly believes some email protection is needed.

"Rather than quarantining each workstation, a forensics copy of the data on that workstation can be created and preserved," he wrote, noting, however, that costs could prove substantial. That's why he's asked the EOP to show cause on why it can't create a forensic copy, and provide an affidavit of costs that would be incurred.

While the Archive did not get what it asked for, the organization is clearly happy with the court's quick response and order.

"We are pretty pleased. The court obviously recognizes a need to protect emails, and is giving the White House a chance to do the right thing," Meredith Fuchs, the Archive's general counsel, told InternetNews.com. Fuch's legal team must respond to the White House response by next Tuesday.

Specifically the court order focuses on any media that had been used, or is in use, by former or current White House employees at any time between March 2003 and October 2005.

Fuchs says the Archive is concerned about losing more e-mails than have already been lost due to improper archiving and lack of backup systems. In his order Judge John M. Facciola noted that e-mails in the cited time frame appear to have been lost.

Calls to the White House regarding the court order had not been returned as of press time. In earlier reports the White House Office of Administration had sought to dismiss the legal actions, and indicating missing e-mails may be recoverable. White House technical leaders have admitted in court depositions that potentially millions of e-mails from the past eight years have been erased.

Federal laws required White House e-mail to be viewed as part of the nation's historical record and preserved.

In its court filing last week the Archive took White House CIO Theresa Payton to task, stating her testimony about e-mail preservation to the court and separately to a House committee were contradictory. They have asked the court to conduct a new deposition

Also last week the Citizens for Responsibility and Ethics in Washington (CREW) asked the FBI to investigate whether White House officials obstructed justice by allegedly destroying documents related to the leak of CIA agent Valerie Plame Wilson's covert identity. There has been no response as yet from the federal enforcement agency.