Two Reminders: Not an Agency and Search Terms

We’ve had a bit of discussion whether the White House has lost all its email because of some nefariousness–or because of rank incompetence. I’m still not claiming to know the answer to that question. But there are two data points I want to remind everyone of.

First, remember that the White House all of a sudden decided that the Office of Administration was no longer an agency at precisely the time when CREW started asking questions about the disappearing emails.

The Justice Department said Tuesday that records about missing White House e-mails are not subject to public disclosure, the latest effort by the Bush administration to expand the boundaries of government secrecy.

Administration lawyers detailed the legal position in a lawsuit trying to force the White House Office of Administration to reveal what it knows about the disappearance of White House e-mails.

They did so to support a claim that OA was not subject to FOIA, and therefore they could tell CREW to go Cheney itself. This, in spite of the fact that OA had FOIA materials on its website and responded to over 60 FOIA requests the previous year! (They tried to fix that little problem by throwing their website down the memory hole, though they have since recanted grudgingly, still claiming that they’re not subject to FOIA, but retaining the proof that they’re subject to FOIA on their website to comply with the Presidential Records Act.)

The argument is reminiscent of Cheney’s Pixie Dust argument, in which rewrote an Executive Order after the fact, also claiming he was not an agency, so as to claim he didn’t have to tell anyone about his classification and declassification activities. Dick also apparently used this logic to explain how he insta-declassified a CIA spy’s identity so he could out that spy to Judy Miller.

You see, this Administration does use such arguments for nefarious purposes.

The other data point to keep in mind, regarding the White House use of emails, is the RNC’s attempts to hide damaging emails by use of rather silly search terms.

… the RNC counsel has proposed to limit the Committee’s request by using narrow "search terms" to identify e-mails relevant to the Committee’s investigation. On Monday, RNC counsel proposed eight search terms, such as ‘political briefing," "Hatch Act," and "2008." While the "search term" approach was offered in good faith by the RNC counsel, it presents some serious problems. For example, the search terms proposed by the RNC would not have located a January 19,2007, e-mail from an official in Karl Rove’s office to an official at the General Services Administration transmitting a copy of PowerPoint slides prepared by the White House that list the top 20 Democratic targets in 2008. That e-mail read: "Please do not email this out or let people see it. It is a close hold and we’re not supposed to be emailing it around."

Shorter Mike Duncan: Honest, I’m sure if Scott Jennings or Karl Rove used the RNC emails to hide their illegal political activities, they would have labeled their emails, "Hatch Act Violation." That’s just the kind of nice guys they are. Though maybe you should also include the search term, "super double secret background." I hear that’s what Rove uses when he illegally leaks the name of a CIA NOC.

As I pointed out last week, David Addington at least tried similar tactics when proposing search terms relating to the Plame investigation.

Neither of these data points proves the emails are missing for nefarious reasons. But it does suggest there’s a pattern of behavior.

68 replies
  1. MadDog says:

    While the “search term” approach was offered in good faith by the RNC counsel…

    Hmmm…faith-based searching. Yup, that ought to do it.

    Kinda like this Administration’s faith-based records management:

    White House technology officials proposed two different records-management systems as ARMS replacements in 2003 and 2004, but neither was adopted, according to administration documents submitted in court filings. White House spokesman Scott Stanzel would not comment on why ARMS was eliminated.

    If Scott were to comment, would he tell the truth that Junya and Deadeye had decided even before taking the oath of office, that there would be no fingerprints left behind?

    Shorter Junya: “Yeppers, ya’ll can trust mah memory. Ah nevah forget nuthin’. Cocaine, what cocaine? Drunk drivin’? Ah don’t remember gettin’ in no car. Ya’ll must be thinkin’ of Jebby…or mebbe Ma.”

  2. billinturkey says:

    a) Isn’t the use of RNC email addresses to circumvent the Presiential Records Act enough of a data-point here? Or does it cut both ways – why bother with that trick if yr being hinky about archiving?

    b)Don’t people get fired for incompetence in the USA? We Euros are always being told that that’s what makes your economy so much leaner and more efficient…

    I’m disinclined to believe the inefficiency story unless someone lost their job. Talk about the ’soft bigotry of low expectations’….

    • phred says:

      Don’t people get fired for incompetence in the USA?

      Not always, but sometimes they do need to spend more time with their families ; )

    • JohnJ says:

      b)Don’t people get fired for incompetence in the USA? We Euros are always being told that that’s what makes your economy so much leaner and more efficient…

      Yeah, but nobody said WHO would be fired! (That was way too easy).

      Didn’t chimpy run 3 businesses into the ground before he was propped up promoted? I am sure lots of people lost their jobs for his incompetence.

      Ok. I’m done, back to the subject

  3. rapt says:

    EW, your last line, “Neither of these data points proves the emails are missing for nefarious reasons. But it does suggest there’s a pattern of behavior.”

    WRT this and other legalese used here, most of us know with or without the “proof.” Call it intuition – Karl behavior, including smirks, is proof enough. (Not a lawyer thank God.)

  4. BayStateLibrul says:

    Does the fact that no one was fired be a clue also.
    If you fuck-up archiving, for most folks, heads roll.

    • emptywheel says:

      Actually, remember that Payton said that the person who reported that there were 5 million emails missing no longer works for the CIO. Which suggests to me someone was fired–for busting the missing email gig.

      • phred says:

        True, but in one of those filings you linked to on the previous thread CREW mentions that the CIO would not approve any of the plans drawn up to replace ARMS either. I’m guessing like everything else, BushCo was slow walking any kind of archiving system in order to make sure things would not be recorded. Also, I noticed that the archivist is named as a defendant in the CREW filing. Is the archivist a political appointee with each new administration? If so, and given the adversarial nature of 4 Presidents (dating back to Reagan) with maintaining archives, perhaps the archivist position should not be a Presidential appointee, but a permanent civil service slot.

        • phred says:

          It looks like it. And he’s now VP of Security Solutions at Bell Labs (Alcatel-Lucent). Incompetence has its rewards I guess.

        • emptywheel says:

          No. The timing is off. Whoever it is would have had to be there in November 2005 (Carlos left in February). Though we’re not necessarily looking for the CIO herself–could be the person who did the work.

          Though I do wonder whether the CIO position went unfilled from the time Carlos left until Payton arrived, over a year?

          • phred says:

            What are you referring to specifically with November 2005? From BSL’s link, Carlos was CIO for 2.5 years before leaving in Feb. 2005. So he would have been there during the critical period of March 2003 when ARMS was evidently dismantled and nothing took its place AND the backup tapes were recycled during the March-October period of that year. Seems to me he’s the one that got the ball rolling, even if he wasn’t necessarily the one to report the missing emails.

            • emptywheel says:

              See the original reference @8. I was talking about the person who did the analysis, after discovering in November 2005 that there were chunks of emails missing, who is no longer at CIO. So all we know is that the person was there in November 2005, is now gone, and is more honest than Payton.

    • phred says:

      Heck, they won’t even tell Congress who was responsible. If they had nothing to hide and it was your garden variety incompetence, they would not have hesitated to let them testify.

      What I like about this whole thing is the consistency of BushCo. Every time they get caught with their pants down they trot out the “who knew???” excuse. Whether it was 9-11, who could have possibly foreseen (the intelligence agencies) or Katrina, who would have imagined (Clinton-era FEMA, the Army Corps of Engineers and the National Weather Service), and now the missing emails (with Dana Perino’s maybe 5 million, but it was just a technical glitch, who knew???) — we now know these very issues have been front and center topics of discussion and litigation for about 20 years (thanks MadDog & bmaz). So much for the who knew defense…

  5. bobschacht says:

    “. . .the White House has lost all its email because of some nefariousness–or because of rank incompetence. “

    Do we have to choose? I would want the option, “all of the above.”

    Bob in HI

    • fatmex says:

      Nefariousness and rank incompetence are not mutually exclusive, especially here. In fact, with these bunch of morons, it can’t possibly be.

  6. bobschacht says:

    Does the fact that no one was fired be a clue also.
    If you fuck-up archiving, for most folks, heads roll.

    But the M.O. in this administration is that if you screw up, you get a pat on the back and a promotion. Except if there is a great public outcry, as with Brownie @ FEMA.

    Bob in HI

    • billinturkey says:

      But the M.O. in this administration is that if you screw up, you get a pat on the back and a promotion.

      So maybe we should do an FOIA request to look at any suspicious promotions (not entirely a joke, that.)

  7. JimWhite says:

    Not to go all paranoid or anything, but Glenn just put up a FISA post. Salon was working perfectly all day, but now, not so much.

  8. bmaz says:

    Hey whats up with Terrell Owensom Brady? Another publicity hound prima donna athlete in a walking boot milking an injury before the big game?

    • Neil says:

      If Eli wins a week from Sunday, that’d be two Mannings with Super Bowl rings in consecutive Super Bowls.

      BUT would that make Eli a better quarterback than Payton, having won his first in a much shorter period of time, and would that make the Giants better than the Colts… or would we have to hear the Indy fans bitch about how they woulda coulda shoulda beat the Bolts and coulda beat the Giants, even though the Pats couldn’t?

      But seriosuly, don’t you think the recent previous Pats Giants matchup is a HUGE confidence booster for the Giants? In addition, the coaching advantage in game plan – ing that usually goes to Belichick is minimized – after all, how many ways can you stop your opponent’s strengths? And that’s what he does, take away the opponent’s strength and force them to beat you with plan B.

    • watercarrier4diogenes says:

      From the link maro2 provided @28:

      Solari also pointed to the disaster recovery and continuity-of-operations systems his team put in as a “tremendous achievement.”
      “If there was some bad thing to happen, we could continue to operate,” he said. “We’ve really revitalized the culture of IT at the EOP.”

      Either 1) eh, not so much Carlos or
      2) so here’s the emergency, Carlos, how do we go about accessing these ‘lost’ chilluns?

  9. Howl says:

    “Pattern of behavior” is one way of describing it. Another way would be to say that it smells. Real bad.

  10. maryo2 says:

    From the PDF in 30 above, it is odd that the CIO is not mentioned by name in the report. Even the CIO’s response came from someone other than the CIO; it came from “the Associate Counsel to the President.”

    “Agency Comments and Our Evaluation –
    In oral comments on a draft of this report, the Associate Counsel to the President stated that EOP’s CIO was satisfied with the substance of the report and that the White House had no substantive comments. The Associate Counsel provided additional information on EOP agencies and offices. We have incorporated this information into the report as appropriate.”

  11. maryo2 says:

    CIO position was created by GW Bush in 2002. The first guy served a short time. If in February 2005, Solari had been CIO for 2.5 years, then he started in August 2002. If he was acting CIO for four months prior to August 2002, then he started the job in April 2002. (I don’t know who preceded or followed him as CIO.)

    From link in 28 above:
    “In 2002, the White House, in the form of the Office of Administration, beckoned Solari. The George W. Bush Administration had established the position of chief information officer (CIO) in the Executive Office of the President (EOP). The first holder of the job, a friend, hired him as the deputy. When the friend was promoted, he said, ” ‘Guess what? I think you could do this job’,” remembered Solari. “I said,’sure. ‘ ” He was the acting CIO for four months until it became official. “

    • bmaz says:

      Wow! I am impressed! Glen Fine, He’s so fine, he blows my mind! Hey Glen! Man, this is lightning quick governmental efficiency in action eh? Give me his materials, some Red Bull and some fast food and i can have a more scathing and better report out by Thursday morning. If he has his stuff, knows it should be scathing, why three months to write it? What the hell has he been doing? What about some indictments? What about some impeachment? This is another bullshit sandbag job wasting more of our time. The congress will need to another two or three months to evaluate it, then they will be busy passing a resolution that Puxatony Phil is a patriotic American groundhog or some similar insipid crap and, then, viola, it is election season……. Get the picture?

  12. BlueStateRedHead says:

    signif Other says I have been unclear.

    That’s Glen Fine, IG DOJ, who is said to be a fine man, not Glenn Greenwald. Also fine, but not that Fine.

  13. Hans says:

    Why doesn’t this selective loss of official emails at multiple government offices, Agencies or not, strongly suggest specific efforts to obstruct justice and hide illegalities? Surely some IT front-person will again appear and testify in Congress to nothing of substance. It’s another example of crimes so large (implicating people in the White House) and so widespread that no one wants to prosecute it?

  14. perris says:

    you know, I pointed out on a thread downstairs that it doesn’t matter much if the administration “deleted” the emails or even used the hardrive for other information, most of the data is still recoverable and the courst should get the hardrive even if the administrations claims are innocent (they are not)

  15. bell says:

    even if someone found a guilty party over the e mails worst thing that would happen is some sort of fitzgerald on it… the dem congress is spineless.

  16. Sedgequill says:

    If all the missing data, including metadata, has been sucked into the military-industrial complex, the slogging will be very tough. Congress had better come full bore with compulsory process. Fear of “constitutional crisis” won’t come across as a worthy excuse for rolling over, even a few years from now.

  17. masaccio says:

    What exactly is archiving? Does it mean something more than keeping the record? Maybe like labeling it so it can be found? Eliminating all the duplicates, including keeping only one copy of a chain, the last one? Storing them for easy searches?

    • readerOfTeaLeaves says:

      Backups = short term.
      Archives = long term; a much more complicated set of issues are involved.

      Backup is generally done by techies.
      Archives require records management skills, plus attention to detail and a very well structured process. The objective of an archive is to label, store, keep, and retrieve the most valuable information on a topic, or representing a specific subject, so that the information is available for future generations. Some archives are private; others are open to the public.

      Think of backup as a way to reduce risk losing data that is relevant to your current workflow.
      Backups are so important that most software now ‘autosaves’ to ensure that a recent copy is always on your hard drive. To safeguard against the chances that your computer will crash and leave you unable to access your work, many businesses back up files (daily) to a server, or to other media (external hard drive; CD-Rom; DVD). That way, a recent ‘backup copy’ is always at hand. That does not make a simple backup the same as an archived copy.

      Archives are to be kept permanently.
      Items in an archive (including email and computer files) must be correctly titled, catalogued, and safely stored in a respository that can keep them in good condition. Creating and administering archives requires good records management skills.

      Archives are more funky than librarianship; archivists have to create structure where none previously exists. Then they have to make that structure clear, and usable, to a wide range of people — from attorneys, to genealogists, to historians, to accountants, to researchers… archives are a unique field. (I’ve used archives for research and am a huge fan of archives; they have things you’ll never find anywhere else.)

      However, we’ve seen on these threads that the WH, DOD, and OVP spent in excess of $250 million — and that doesn’t even mention the CIA or Homeland Security budgets. For that much money, they should have ALL emails from all dates and all employees.

      I’ll bet the US National Archives would swoon if they ever got 1/10th of such a sum!

      • Rayne says:

        Another excellent overview, that.

        But I’ll also point out that if all information is digital, there does not need to be an entirely separate system for backups and archives. A single point could send all records to backup, while sending a copy to an archive system at the same time. The difference is the tagging process; backups are temporal and locational (as in which device, whether users’ or servers), while archives are content-based and organized by the same. All three components are features of any email (what time created, on what device by which user and stored to which device, as well as the metadata and data created). The archive doesn’t take into consideration the device issue, but timing, creator, receiver, message are key (to some extent, there is not as much a need for structure created by archivists as much as a system that is flexible enough to suss out the data-creators’ intents as well as the future data-retrievers’ needs). Backups are more concerned with data integrity; did this bit here get fully replicated over there? These drivers are not the same, but not necessarily exclusive, either.

        • phred says:

          I agree with you in part about the idea that backups and archives don’t need to be much different when the information is in electronic form. However, the very nature of the long-term storage of information in an archive smacks up against the brick wall of rapidly changing technology, both in terms of hardware and software, when trying to cope with archives. It is an enormous problem and one we ought not to brush off too casually.

          For example, 20 years ago I worked with some researchers who had boxes and boxes of punch cards that they either needed to throw away (hence destroying their archive) or reload onto a computer to then re-save them on magnetic tape (to preserve their archive). Since then, newer long-term storage technologies have come and gone. Another example is the effort to preserve early software (particularly games) now that the early hardware is gone. Do you rewrite the code to run on the new hardware or do you use a software package to emulate the old hardware?

          Archiving has lots of technical complications. This is all largely beside the point in this discussion of what the Executive Branch has been up to, but since massacio was asking about the difference between backups and archives, I just wanted to mention it. For the most part, a backup is intended to permit the restoration of files to the hardware/software system you are currently using. An archivist needs to figure out how to maintain records indefinitely, which is why they place so much emphasis on hardware/software independence.

          • Rayne says:

            You just explained the rationale for open source versus proprietary standards, with the difference between backup and archival needs. Proprietary standards are not always backwards compatible; wonder if that ever figured in the migration between Lotus Notes and Exchange…

            • phred says:

              Agreed, but even in open source you will still have challenges related to hardware (e.g., 8-bit, 32-bit, 64-bit architectures) and evolving software (e.g., new and improved flavors of operating systems (Linux, Debian, Ubuntu), compilers (Fortran, F77, F95), etc.). Even in a fully open source world, these problems will persist. I think they are surmountable, but they require careful planning and thought to avoid massive problems down the road.

              • readerOfTeaLeaves says:

                They do, indeed.
                That’s another reason that two technologies/approaches are fundamentally altering the ways in which we use, tag, store, retrieve, and link information:

                1. Adobe (Acrobat) Reader,
                2. Open Source software and databases.

                And I put them in order for a reason; no sense setting up a dB if there’s nothing to put in there.

                Archives are labor intensive, and generally underfunded. But invaluable.

  18. jdmckay says:

    FWIW, I’ve been reviewing tech & legal aspects of ARMS this evening. The parsing you quote from WH/RNC for resisting disclosure compares unfavorably to Clinton’s claims, such as they were.

    From what I can gather, there was no implication by whistleblowers or anyone else that Clinton or staff had anything to do w/ARMS backup problems: it seems it was contractor/IT staff error, some of it (IMO) quite… stupid.

    However, there’s evidence that once they discovered problems, they were “less than forthcoming”. In particular, Rep Burton expressed outrage over allegedly lost Lewinski email. This after all they could find (apparently not disputed) was turned over to Ken Starr. This account…

    Missing White House E-Mail: A Whistleblowing Case Study
    Edward F. Gehringer
    North Carolina State University


    The Justice Department responded to the hearings by immediately launching a criminal
    investigation of the White House’s actions. At issue was the White House’s response when
    officials learned in 1998 that an archive had not been kept. “The core of this is we may have
    subpoenas issued that were not fully complied with and people who may have been threatened
    with retaliation to hide it,” said a Justice Department official. “It’s not the kind of thing you
    should take lightly. And we don’t” [6].

    Later, the White House briefly raised the possibility of using executive privilege to sidetrack a
    further investigation into the missing e-mail. On May 2, 2000, they sent the House Government
    Reform Committee a one-page list of documents that they declined to turn over because of
    executive privilege. Among them were discussions between White House lawyers and computer
    staffers, which were said to fall under attorney-client privilege [13]. After Chairman Burton
    dashed off an angry reply, the White House backed down the next day and turned over the
    documents sought by the committee [14].

    What a contrast. And it seems Bill’s DOJ took the high road as well.

    Has Mukasey weighed in on this yet? Maybe Henry ought to send him a letter.

  19. Mary says:

    35 – his scathing reports never seem to actually flat out say that people commited criminal acts, though (like all the NSL lawbreaking that he seemed to chalk up to bad karma without any referrals for criminal action for misuse. They are like Leahy’s ’stern letters’ written with lots of words, many of more than one syllable, but never really nailing the board to the wall. We’ll see on this one, but I’m not expecting more than strong tsking.

    We have open and notorious violations of FISA on a massive scale and open and notorious torture conducted – both under the solicitations and auspices of DOJ, and there isn’t even a strong AHEM from the IG. Really, if not one person at DOJ can bother to summon up their inner Frankenstein’s Monster and say, “torture – bad” then I’m shaken in my belief that they will do the right thing on just about anything else in the world.

  20. Neil says:

    Scottish Haggis and Ted Kennedy team up to draft State Secrets Protection Act, whereby shit stain jodi gets her wish… although I don’t think this is exactly what she has in mind:

    The State Secrets Protection Act we are introducing responds to this need by creating a civil version of CIPA. The Act provides guidance to the federal courts in handling assertions of the privilege in civil cases, and it restores checks and balances to this crucial area of law by placing constraints on the application of state secrets doctrine. The Act will strengthen our national security by requiring judges to protect all state secrets from disclosure, and it will strengthen the rule of law by preventing misuse of the privilege and enabling more litigants to achieve justice in court.


    • bmaz says:

      Again the Old Lion voices reason. Not perfect, but a darn fine start. I predict that not one Republican will vote for this; even the Haggis will screw it in the end. Crikey, it is too good to even get to the floor with the Republicans and Hanoi Harry Reid around.

  21. gargoyle2008 says:

    JodiDog being lamblasted over at the original emptywheel site for standing up for Bush on Bush as illegal immigrant post…hate to see an innocent troll get rolled in broad daylight!

  22. TheraP says:

    Given the role of Addington in perhaps disappearing the emails, I think we should call him “Subtractington.”

  23. Palli says:

    Sadly, the upshot to all this Capitol Hill inactivity, or ineffectual activity, to defend our constitutional laws and require commonsense methods of open government just makes me believe that this is the way most of our elected representatives want government to be conducted. The slow progress toward true American democracy has been halted. Uncorrected illegal behavior becomes acceptable for others to practice also.

  24. Neil says:

    The Emails that Dick Cheney Deleted
    Harper’s Magazine by Scott Horton
    January 22, 2008

    …The missing Cheney emails fit a pattern that suggests intentional rather than accidental destruction. They all occur on days on which, considering contemporaneous press reports, the Vice President or his staff members were in the news and would likely have been communicating on the subjects relating to the press coverage. The most persistent themes are the outing of Valerie Plame and Cheney’s secret dealings with a group of oil and gas executives who were directly influencing national energy policy. The Empty Wheel has some excellent analysis of these points.

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