White House records and the big chill

From the Fall 2008 issue of The News Media & The Law, page 8.

More than any administration in recent history, George W. Bush leaves a legacy of destruction of electronic White House documents that has put significant holes in the historical record of his presidency.

When Bush took office in 2001 there was a system in place for managing White House e-mail the Automated Records Management System, better known by its militaristic-sounding acronym, ARMS.

During the course of its first year, the Bush administration dismantled ARMS, and changed what had been a more public-friendly culture in the White House. A key event was the 2001 memo from then Attorney General John Ashcroft that promised agencies the Justice Department would defend them in court if they refused to release information under the Freedom of Information Act if there were any “sound legal basis” for withholding the information.

Under Attorney General Janet Reno, agencies were told to withhold information when discretion allowed only if there was “foreseeable harm” in disclosure.

But the change in e-mail archiving systems under Bush had a much more tangible effect on open government thousands of e-mail messages produced by the administration could be missing forever. A legal battle has ensued, as several watchdog groups have responded with lawsuits, and historians are calling on Congress to take action.

All of this troubles academics and transparency advocates alike, both in looking back at the past eight years and in peering ahead at the changes a new administration must make if it wants to preserve records.

“It presents a serious obstacle to historians and ordinary citizens seeking to understand the course of events and the actions and motivations of those who participated in them,” Mark Agrast, a fellow at the Center for American Progress, wrote in a recent column.

Gaps in the record

The dispute over the missing e-mails can be traced back to the White House’s initial decision in late 2001 to stop using ARMS the Clinton records management system before its own system was up and running.

The Presidential Records Act mandates the White House keep records such as e-mail in some fashion. But the Bush administration’s system for doing so was never fully implemented. That meant messages the system was required to preserve were lost: The tapes used to archive the system in case of emergency were recycled, meaning the earliest backup tape available is from May 23, 2003.

Thus, millions of staff e-mail messages from those sent by assistants in the White House Office of Administration to messages exchanged between much higher-level officials were not backed up, and, unless they were saved otherwise, no record of them exists.

There is a gap in the timeline of White House e-mail messages beginning on Jan. 3, 2003, according to The National Security Archive, which is a plaintiff in a lawsuit against the White House over the missing messages. By the White House’s own count, Agrast said, e-mail messages are missing from more than 700 days over the course of 18 months. There are at least a dozen days with no e-mail records at all from the president’s immediate office.

“On any given day there are thousands of decisions that take place,” Agrast said. Those missing e-mail messages include “almost certainly elements related to the Iraq war, decisions to go to war.”

As Bush leaves office and there is more opportunity to examine the records his administration left behind, the problem may turn out even worse than it seems, he said: “The gaps will become more apparent and more troublesome as time goes on.”

For its part, the administration has at different times come down on both sides of the question of whether any records are missing. In April 2007, White House spokeswoman Dana Perino told reporters, “I wouldn’t rule out there were a potential 5 million e-mails lost.”

Eight months later, her colleague, spokesman Tony Fratto, said at a White House press conference that there was “no reason to believe that there is any data missing at all.”

In court filings, the White House has said back-up tapes exist for the period between 2003 and 2005, and any e-mail messages on the White House servers when the tapes were made thus would have been archived. But many people following the issue, including Magistrate Judge John M. Facciola, who handled the case, have pointed out that means messages deleted from the system before 2003 are gone.

Even if the missing e-mail was not troubling in itself, the gaps amount to a hole in the historical record one that could become more glaring as time goes on.

“It’s really a concern, broadly speaking, that the loss of millions of email messages leaves a very a large gap in the historical record over this period,” Agrast said, and is troubling “not only to historians but to ordinary individuals who want to understand” key historical events.

In filling that gap, Agrast said, “One of the big problems is we’ll have to rely on self-serving recollections books written by former White House aides.”

Those books are gripping (or not), but he said they don’t provide a reliable historical perspective: “That’s the problem we’re really talking about the removal or disappearance of original documentation.”

Agrast is careful not to say the missing e-mail is the result of ill motives on the part of the Bush administration. Anne Weismann, general counsel for Citizens for Responsibility and Ethics in Washington, which is also part of ongoing litigation surrounding the e-mail, agreed the problem cannot simply be placed at the door of the White House.

“I think what everybody has to deal with more and more is how ubiquitous e-mail is,” Weismann said. “On the one hand, it’s especially valuable to groups like ours … because it offers such a unique and detailed view of what has happened. But for the same reason I think there’s a natural hesitancy … to have it all out there.”

Beyond the missing e-mail messages, senior White House staff members have also been criticized for their frequent use of Republican National Committee e-mail addresses to conduct official White House business, thereby sidestepping any question of public records.

At least 88 officials had the political e-mail accounts, but 51 of those accounts were not archived creating yet another gap in the historical record.

Beyond the Bush administration

In a lawsuit against the White House, the National Security Archive argued the Bush administration’s e-mail maintenance practices may have violated the Presidential Records Act. That law was passed in the wake of Watergate and Richard Nixon’s apparent destruction of White House documents.

The Act requires the president to “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.”

Implementing that law in 1978 was challenging enough, Agrast said. But as technology has changed the way the world communicates and governments operate, the volume of records to be preserved has grown exponentially.

Agrast said if the next administration is conscientious about transparency, there are several ways it could reverse the legacy of its predecessors.

For starters, he said, the new president should issue a directive on the preservation of records, enhance training for staff and implement improved standards for preservation and, ultimately, disclosure.

Agrast and others would also like to see a repeal of Executive Order 13233, which Bush issued in 2001 and now governs presidential records. That order allows family members of a dead president to prevent the release of his papers a provision many open government advocates find troubling.

In December 2001, then-White House counsel Alberto Gonzales defended the executive order in a letter to The Washington Post: “But repeal might be difficult, given the administration’s legacy. Its inclination toward secrecy has permeated the civil service ranks. “What was different about this administration is that past administrations always respected the line between career and political” people, Weismann said. “This administration has so infiltrated the career level.”

That means even some of the people making day-to-day bureaucratic decisions, who will hold their jobs long after Bush leaves office, are politically tied to him.

Another problem Weismann pointed to is the limited role for third parties in Presidential Records Act lawsuits, which makes it tough for outside groups such as CREW to police the preservation of records.

In part, she explained, that’s because “Congress never really contemplated an administration that would so ignore its record keeping obligations.” But ultimately, “the government has to come to terms with this technology.”