By Jason Leopold
The Public Record
Thursday, July 10, 2008
On Wednesday, just as the Senate passed sweeping new legislation to modernize a 30 year old federal surveillance law, President Bush signaled that he would swiftly veto a bill approved by the House earlier in the day that would overhaul the Presidential and Federal Records Act to ensure emails and other government documents are preserved in the age of the Internet.
The measure was passed by a vote of 286-137, more than a year after several Senate and House investigations discovered that the Bush administration apparently purged millions of emails and that dozens of administration officials used email accounts maintained by the Republican National Committee to conduct official White House business in what appeared to be a violation of the Presidential Records Act.
The government watchdog groups Citizens for Responsibility and Ethics in Washington and George Washington University’s National Security Archive sued the Bush administration last year alleging the White House violated the Presidential Records Act by not archiving emails sent and received between 2003 and 2005.
The Bush administration, in threatening to veto the legislation, said that the bill is "an excessive and inappropriate intrusion" into the work of the executive branch and its staff.
In a statement, the White House said the Electronic Message Preservation Act would "upset the delicate separation of powers" created in the 1978 Presidential Records Act, a law drafted in response to the widespread abuse of federal records during the Nixon administration. The Presidential Records Act states that the records of a President, his immediate staff and specific areas of the Executive Office of the President belong to the United States, not to the individual President or his staff.
The act further states that the President must "take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as presidential records pursuant to the requirements of this section and other provisions of law."
The White House’s position on the legislation is remarkable considering that lawmakers just approved controversial legislation Wednesday that authorizes President Bush to direct the National Security Agency to peer into emails of average American citizens if he believes they have terrorist ties, an extraordinary move that civil liberties groups and constitutionalists said shreds the Fourth Amendment.
The statement also underscores the White House's position that the president is entitled to broad executive powers and attempts by Congress to rein in that authority is unconstitutional.
Questions About Missing Emails First Surfaced During ‘Plame-Gate’
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 a court filing following 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 emails 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 emails. It’s documents and email correspondence related to these behind-the-scenes discussions that CREW was hoping to obtain with a FOIA request.
Miers is said to have immediately informed Special Prosecutor Patrick Fitzgerald about the issue. Fitzgerald had been investigating White House officials’ role in the leak of covert CIA operative Valerie Plame and subpoenaed White House emails sent in 2003. Fitzgerald stated in a 2006 court filing that some emails 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 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 and October 2005 when e-mails could not be located in either Cheney’s office or the Executive Office of the President.