David Gewirtz | BIO
Editor-in-Chief, ZATZ Publishing
The Bush White House email story just gets weirder and weirder. In his inauguration speech, President Barack Obama told us, "The time has come to set aside childish things." Within the United States Government, apparently old habits die hard.
Apparently, even though the Bush administration is now out of office, the Bush administration's legal team responded late last week to a federal judge's emergency order as if they were still representing the Executive Office of the President.
For those keeping track, this was just a few days after telling the Judge there was no "there is no distinct entity known as the 'Executive Office of the President'."
Making matters more surreal, the lawyers sent a notice of "compliance" to Judge Facciola's emergency orders that didn't actually comply with a single one of Judge Facciola's orders. Plus they responded to Judge Facciola's emergency order to preserve the outgoing President's records before he left office days after President Bush left office.
Let's do the time warp
Last week, I wrote about Federal Court Magistrate Judge John Facciola's emergency preservation order, instructing the then Bush White House to preserve email messages and turn them over to the National Archives.
Shortly, after, Justice Department attorney Helen C. Hong, then under the signature of Assistant Attorney General Gregory G. Katsas, speaking for the Bush administration, pretty much told the judge complying with the emergency order wasn't going happen, it doesn't need to happen, and Facciola had no right to issue the order anyway.
Now, however, we have a most interesting "Notice of Compliance", still from Helen Hong, but this time under the signature of Acting Assistant Attorney General Michael F. Hertz. What makes this document most interesting is its date: January 22, 2009 - two days after America changed administrations.
Here's what we're looking at. The attorney working for the old President is apparently still employed by the Justice Department, but now under new President.
Meanwhile, that attorney, who now works for the new President, is still working the case of the old President, even though President Bush is out of office. She's still working the case for the old Executive Office of the President, even though there's now a new Executive Office of the President.
Still with me?
These are not the records you're looking for
While President Bush was still President, Judge Facciola set out a long list of what he wanted preserved and how. Although the then White House responded days before he left office with an almost complete refusal to comply, here we now have a "DEFENDANTS' SECOND NOTICE OF COMPLIANCE".
The main document is five pages long, consisting mostly of declarations about the size of files sent to the National Archives and how, due to either their size, complexity, or "sensitive information that could be disclosed in many of the file names", can't be provided to the court.
The file names were too sensitive? Really? Was there a file named "ListOfSecretAgentsDoNotRead.txt"?
What was provided to the court by the vestigial Bush administration was an inventory of backup tapes. Not an inventory of what was on the tapes. Just a list of tapes.
Imagine you have a pile of hundreds of movie DVDs and you give each DVD a number. Then, upon being asked for an inventory, you provide just that list of numbers. You don't provide the names of the movies, a list of scenes, or information about any of the extras that usually come with DVDs. All you provide is a pile of numbers from which no useful information can be ascertained.
This is pretty much what the Bush administration lawyer (who now seemingly works for the Obama administration Justice Department) did. She returned a list of tapes, with no detail about what's on each tape.
The Judge had instructed the Executive Office of the then-President to "identify with reasonable specificity and by number or other specification the contents of the tape or media, i.e. '#1234 Backup Tape October 1, 2003' or 'Flash drive of e-mails' followed by the work station number or the work station user's name."
Nowhere in the documents returned to the Judge is any information about what's on the tapes, and certainly no details on whose email was backed up on those tapes or other media. There are a few line items listing dates, but they're 2006, 2007, and 2008. There's absolutely nothing listed from the 2002-2004 period we're all curious about.
Fundamentally, there's not enough information provided in the "DEFENDANTS' SECOND NOTICE OF COMPLIANCE" to tell if any of the email messages that constitute "the most fundamental and useful contemporary records of the recent history of the President's office." were actually preserved.
Legal specific vs. technical specific
Even though Judge Facciola clearly didn't get back from Hong information with the granularity he requested, he probably wasn't as specific in his instructions as he could have been.
He instructed the Bush administration attorneys to "identify with reasonable specificity" the various media contents. Judge Facciola did give some examples of what he wanted. But his order didn't provide a technical specification detailed enough prevent any disclosure "wiggle-room". Taking advantage of this, the defendants did not provide the level of information needed to allow the Judge confirm all Presidential records had, in fact, been transfered to NARA.
A useful technical specification probably should have asked for a listing of every file by name on every tape and disk and server, and other backup or other media not mentioned. It should have specified that each originating machine be identified, not only by code name, but by basic configuration.
It should have specified that originating machines be identified, also by spec and configuration and each user machine workstation should have had its own data table, complete with who used the machine during what periods. This is not as hard as it might seem, since the Windows server network keeps track of users and passwords, and often keeps a record of the system policy for each machine.
Further, for files that contain information containing records or data objects (like PST files with email messages or database files with many related lines of data), a disclosure spec should include a listing of each file and a list of all the records contained within. That listing should probably be provided in an Excel spreadsheet if relatively small or a machine readable file (of a specified, defined file format) if particularly large.
Finally, there's no reason to accept any response that tells you there's too much information. Helen Hong specifically cited a 6 terabyte database provided to NARA. It would be just as easy to copy that onto a few large hard drives and provide them to the Judge as well.
After all, with 1 terabyte external hard drives running as low as $124.00 at Wal-Mart, it can't be all that difficult to transfer the files and provide them to the Judge.
There are a lot of remaining open questions in this case. For example, who's now the defendant? Previously, it was the Executive Office of the President. Is it still?
Or is the defendant now the future The George W. Bush Presidential Center, the nearly half a billion dollar library being built for the 43rd President on the campus of Southern Methodist University in Dallas? Or is the defendant now Mr. Bush himself?
Does Ms. Hong now act on behalf of the Obama administration Justice Department or is she representing some vestige of the Bush administation?
Ms. Hong reports approximately 70,000 "disaster recovery back up tapes" were transfered to the National Archives, along with "26,000 copies of disaster recovery back-up tapes created for potential restoration projects".
She also says "The Office of Administration ('OA') also transferred a 6 terabyte database containing a list of every file contained on each one of the copied 26,000 disaster recovery back up tapes."
But are these lists of files or are these the full and complete record of email traffic that took place under Presdient Bush? Do these meet the requirements of the Presidential Records Act and the Federal Records Act?
Since even the file names were supposedly too sensitive for someone as high up in our government as a federal court judge, we may never really know.