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General News    H2'ed 8/1/08

New Details Emerge in Missing White House Emails Case

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Theresa Payton, the Office of Administration’s chief information officer, would not return calls for comment.

“Frankly, I think it’s pretty clear that the White House doesn’t want to acknowledge that, yes, ‘we have missing email,’” Weismann said.

Earlier this year, Payton filed an affidavit with U.S. Magistrate John Facciaola 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.

At the time, Facciola, who has been hearing arguments in the case, had ordered the Bush administration to show cause why the Executive Office of the President should not be compelled to immediately undertake a process to locate missing e-mails.

Payton responded that doing so would not only be daunting and expensive, but ordering the White House to search hard drives was beyond the court’s authority.

On Tuesday, Facciola issued a motion rejecting that argument and affirmed his earlier decision that called upon the Executive Office of the President to search individual workstations used between March 2003 and October 2005 and preserve any e-mails located on those workstations or on portable media used by EOP employees.

It is unclear how Tuesday’s order by Facciola fits into new allegations made by CREW that the White House would not attempt to recover e-mails that went missing prior to October 2003. Without indicating that he was aware of the new allegations by CREW, Facciola said he would advise Judge Henry H. Kennedy, who referred the case to the magistrate in March for a recommendation, to order the White House to recover the lost e-mails.

“We are pleased that despite the White House's plea for reconsideration, the Magistrate Judge stood his ground and recommended that the White House be ordered to locate and preserve e-mails that may be missing from backup tapes but were saved on individual workstations and portable media devices,” said Sheila Shadmand, an attorney with the National Security Archive. “Each of the Judge's recent rulings in our favor has brought us one step closer to ensuring that the documentary history of this Administration is not forever lost.”

Facciola denied a request by George Washington University’s National Security Archive, a co-plaintiff with CREW in the case, to grant a motion seeking an “emergency court-supervised” deposition of Payton who CREW and the National Security Archive allege has made false statements about the extent of the missing e-mails during testimony before Congress and in documents filed with the court.

In the affidavit she filed with Facciola in January, Payton said she was unaware if e-mails from the Executive Office of the President and the Office of the Vice President had been properly archived.

But documents obtained in February by Congressman Henry Waxman, the chairman of the House Oversight and Government Reform Committee, showed that officials in Payton’s office advised her that there were more than 400 days between March 2003 and October 2005 where e-mails could not be located in either the Office of the Vice President or the Executive Office of the President or on backup tapes.

Payton then admitted in March that the White House “recycled” its computer back-up tapes until October 2003, which makes it much more difficult to retrieve e-mails.

CREW filed a federal court motion that month asking that Payton be held in civil contempt for knowingly submitting false, misleading and incomplete testimony in an affidavit filed with a federal court on Jan. 15

CREW said Payton’s responses in her affidavit are “false and appear designed to mislead the court into believing that both discovery and any additional interim relief are unnecessary.”

In his order Tuesday, Facciola said he “cannot recommend the taking of depositions sought” and said the “central focus” should be recovering the missing e-mails.

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Jason Leopold is Deputy Managing Editor of Truthout.org and the founding editor of the online investigative news magazine The Public Record, http://www.pubrecord.org. He is the author of the National Bestseller, "News Junkie," a memoir. Visit (more...)
 
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