White House tape reuse raises possibility that some e-mails are gone

~ Backup tapes are the last line of defense for saving electronic records

WASHINGTON -- The White House acknowledges recycling backup computer tapes of e-mail, a practice that may have wiped out many electronic messages from the early years of the Bush administration, including some pertaining to the CIA leak case.

The disclosure about recycled backup tapes came minutes before midnight Tuesday under a court-ordered deadline that forced the White House to reveal information it previously had refused to provide.

Before October 2003, the White House recycled its backup tapes "consistent with industry best practices," according to a sworn statement by a White House aide. The White House started preserving backup tapes in October 2003, which would have been shortly after the start of the probe into who outed CIA operative Valerie Plame in July of that year.

The backup tapes, which also contain electronic documents in addition to e-mail, are the last line of defense for saving electronic records.

Separately, the White House says it is still unable to address the question of how many e-mails are missing from White House servers, or whether any are missing.

The White House "does not know if any e-mails were not properly preserved in the archiving process" from 2003 to 2005, said the statement by Theresa Payton, chief information officer for the White House Office of Administration. She said the White House continues its efforts to find out and that an assessment will be completed in the "near term."

Two years ago, special counsel Patrick Fitzgerald first disclosed a White House e-mail problem, which the White House says it discovered in October 2005.

"What has the White House been doing for two years?" said Tom Blanton, director of the National Security Archive, one of two groups suing the White House over the e-mail issue. "The White House still doesn't seem to have a clue."

White House spokesman Tony Fratto said that "as we have repeatedly stated, we do not know that there is actually a problem" with missing e-mail.

That drew immediate challenges from the other group suing the White House, Citizens for Responsibility and Ethics in Washington.

CREW's lawsuit alleges that 5 million White House e-mails are missing, and the group said recently that its sources now say the total is more than 10 million. CREW's chief counsel, Anne Weismann, pointed to previous White House statements suggesting there was missing e-mail and to the fact that the White House is refusing to turn over numerous documents about the problem.

"Why have they retreated from their earlier acknowledgments that e-mails are, in fact, missing?" asked Weismann.

If e-mails were not saved on computer servers and copies were overwritten on backup tapes, the White House might have violated two laws requiring preservation of documents that fall into the categories of federal records or presidential records.

Experience in the private sector has shown that "backup tapes are a treasure trove for investigators and when you recycle those tapes, you are disposing of e-mails," said Michele Lange, director, legal technologies, at Kroll Ontrack of Minneapolis, Minn. Lange's firm, among other specialties, recovers lost e-mail for companies and law firms. Lange's company has no connection to the White House e-mail controversy.

Among the e-mails that could be lost are messages swapped by any White House officials involved in discussions about leaking Plame's identity.

"It appears that the White House has now destroyed the evidence of its misconduct," Weismann said.

Fratto, the White House spokesman, said that "there is no basis to say that the White House has destroyed any evidence or engaged in any misconduct."

Fratto said that despite the recycling, some tapes should contain e-mails from before October 2003.

"Of course the disaster recovery backup tapes were, at one time, recycled," said Fratto. "However, since October 2003, the Office of Administration has retained and preserved its disaster recovery tapes. The disaster recovery system is set up to regularly back up everything on the network for the Executive Office of the president at the time of each backup."

"If the backup tapes have been erased or taped over or recycled, it's hard to imagine where we will find copies of many lost e-mails," said Meredith Fuchs, general counsel to the National Security Archive.

Weismann said that the White House declaration raises more questions than it answers, specifically the likelihood that for a very significant period of time -- March 2003 to October 2003 -- the White House recycled its backup tapes.

"As a result there may be no way to recover the missing e-mails from a period in which the U.S. decided to go to war with Iraq, White House officials leaked the identity of Valerie Plame and the Justice Department started a criminal investigation of the White House," said Weismann.

The sworn statement by Payton did not say how early in the Bush administration the recycling of backup computer tapes began.