Working Thread: John Yoo’s Emails

At Rosalind’s request, I’m putting up this working thread on the emails that OLC just turned over to CREW.

There’s nothing all that exciting there because this search did not include “paper or electronic documents of Mr. Yoo available elsewhere in the Department.” Like on the classified servers.

I’m actually on strike until I get a non-Scribd copy (you can download a zipped file–thanks to MadDog–here). Why do NGOs insist on putting stuff on the increasingly unworkable Scribd?

But if you happen to LIKE Scribd, here are the emails.

Remember Scooter Libby’s Lost Emails?

Turns out they’re still lost.

When we last heard from Libby’s lost emails, CREW and National Security Archive had reached a settlement with the White House to restore 33 days worth of email and examine 21 days of low volume email to see whether prior restorations had really worked (among other things).

I’m still reading through the documents to figure out what has happened since (aside from Libby’s emails still being lost–but then, that’s not news). The eye-popping takeaway is that, for the 21 days of emails supposedly restored, 83% of the emails weren’t restored:

As documented [in a report from Microsoft included in CREW’s available documents] the comparison of the two data sets–one containing emails previously identified as the archival email records of the Bush administration for the 21 days in question and one containing emails extracted from backup tapes for those 21 days–revealed a huge discrepancy between the two. Specifically, 190,819 email messages on the backup tapes were not found in the archival set of email messages. Conversely, 31,819 emails contained in the archival set were not found on the backup tapes for those same days. In other words, 83% of the universe of known emails for those days were not archived and would not be available today but for actions of CREW and the Archive and the resulting restoration project.

Now, the discrepancy, to me, is even more interesting than the sheer numbers involved. It suggests that two totally different sets of emails were captured in the multiple archiving processes. Which suggests a great deal of emails may have been tampered with between the time they were written and archived. (Though I await the tech wonks to explain this in more depth).

And then there’s this bit.

[On May 10, 2006], the estimated cost for one of [the options for restoring White House email]–restoring all dates of low volume email for EOP components–was $2,414.221 [sic]. The Bush White House did not pursue this option, and instead hired multiple contractors to perform various costly analyses aimed at winnowing down the number of days that arguable could be considered as statistically low volume.

In other words, rather than spend what now looks like a pittance (less than $2.5 million) to restore everything, the Bush White House instead spent even more money paying consultants to argue that not all these days needed to be restored. And that decision was taken, of course, at a time when Libby’s case was in discovery and any indictment of Rove had just been declined. And, presumably, Patrick Fitzgerald still may have had lingering suspicions that Libby and Judy (if not Novak) were emailing back and forth about outing Plame.

But really, none of this is suspicious at all.

Meanwhile, CREW just recently started this whole process over again to get John Yoo’s missing torture emails.

Does no one else see the pattern here?

CREW: Obama and Greg Craig Stand with the Dead-Enders

This morning, I noted that the January 21 filing supporting Bush’s crazy notions about email might well be the work of Dead-Enders. We know Dead-Enders submitted a brief in another suit naming the President as defendant during the week of the inauguration. And DOJ has added a new lawyer to the team, suggesting it intends to continue the litigation. 

From CREW, one of the plaintiffs in the email suit, we’ve got confirmation that the Obama White House intends to continue the litigation. 

Recognizing the incoming Obama administration may not have had an opportunity to fully evaluate the merits of the motion to dismiss, even though it was filed on behalf of the Executive Office of the President, one of the named defendants, on January 21, we waited several weeks before reaching out to the White House to suggest they consider withdrawing their motion. The response from the White House, on the afternoon of February 20 (the day our brief was due) was that we should go ahead and file. Thus, at least at this point, the new administration has indicated quite clearly it plans to continue litigating this issue.  

The lack of confirmed appointees at the Justice Department does not suggest this is an interim position, given that the White House is the defendant here with a fully-staffed White House Counsel’s Office. As for the change in DOJ counsel, it is simply the result of the trial attorney previously assigned to the case departing DOJ for a detail (in the White House Counsel’s Office). 

The CREW argument that this is not an interim position doesn’t hold much weight, given the al-Haramain example (the President is also the defendant in that suit and their stance has changed since the January 22 filing). 

But, for the moment, it does say that Greg Craig is not only continuing Bush’s legislation, but he’s hiring one of the DOJ Dead-Enders that got us to this point. We’re not going to get very far if Greg Craig sees fit to hire the Dead-Enders into the White House.

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. Read more

Disappearing White House Emails Timeline

Jeff kicked my arse on a timing related issue yesterday, so I thought I better lay out the disappearing White House email timing all nice and neat like. Much of the detail on emails relies on some very cool work Jeff did on the emails.

I’ll move this over into a permanent timeline after you guys tell me what I’m missing (Jeff, I’m looking at you).

February 26, 2001: Gonzales informs White House staff they must preserve their email.

April 2001: GAO report on problems with ARMS and emails from the VP’s office in the Clinton Administration.

June 4, 2001: Bush announces plan to name CIO to manage and monitor email.

2001, unknown date: Susan Ralston prints off Rove email in response to Enron inquiry, gives that email to Alberto Gonzales, presumably alerting him to Rove’s use of RNC servers for official emails.

Late 2001 to early 2002: White House deactivates ARMS system put in place by Clinton Administration to archive emails.

Between 2002 and 2003: White House converts from Lotus Notes to Microsoft Exchange.

March 2003: Starting date of period during which White House has incomplete archives for emails.

July 11, 2003: Rove writes Hadley email immediately after his call with Matt Cooper.

September 26, 2003: DOJ starts an investigation into Plame leak.

September 29, 2003, morning: Scottie McClellan claims ignorance of a DOJ investigation into the leak.

September 29, 2003, evening: John Ashcroft informs Alberto Gonzales of investigation.

September 30, 2003, morning: Alberto Gonzales informs White House staff of investigation.

September 30, 2003, 6:15 PM: Alberto Gonzales informs White House what to retain.

October 2003 (unknown date): White House CIO stops "recycling" backup tapes.

October 1, 2003: Mayfield to Martin email passing on transcript from that day’s Press Gaggle; the email was not apparently turned over until February 2006, presumably among the emails "not archived properly."

October 2, 2003: DOJ requests White House turn over materials relating to Wilson, his Niger trip, Novak, Royce, and Phelps.

October 3, 2003: Gonzales informs White House to turn over materials by October 7.

October 5, 2003: Date on which Martin to Fleischer email printed out, apparently by Martin. It was originally written on July 7, 2003 and contained OVP talking points on Wilson for Fleischer to use in his press briefing, including the words, "Niger" and "Joe Wilson." Probably turned over to DOJ on October 9, 2003.

October 7, 2003: Reporter asks Scottie McClellan whether White House officials have to turn over emails they’ve deleted.

Q No, I understand that. I’m just saying how would this work? Let’s say I remember — I’m an official, I remember sending some email about this, but I’ve long since deleted it. How —


Q I just want to be clear, though, the White House is obligated to provide emails that may have been deleted by the individual but are still archived by the White House —

MR. McCLELLAN: Look back — it said what is in the possession of, I believe, in the White House, the employees and staff.

October 13, 2003: Date on which July 11, 2003 Martin to Michael Anton email printed out. The email was apparently discovered in a search of OVP files by "OVP RM." It mentions "Niger" and "Wilson."

November 25, 2003: Per Hubris, date on which Rove aide B.J. Goergen prints out Rove-Hadley email (eventually turned over on October 14, 2004). The email mentions "Cooper" and Niger."

November 26, 2003: Oldest Rove email preserved by RNC.

February 2, 2004: Addington drafts a letter to Keith Roberts, Acting General Counsel, Office of Administration, listing the new terms for a search of the OVP domain. If "Joe Wilson" or "Niger" were mentioned in the October 1 gaggle, the October 1 Martin to Mayfield email should have been found in this search.

February 11, 2004: Date on which June 11, 2003 Martin to Mayfield email printed out. The email was apparently discovered in a search of OVP files by "OVP RM." It mentions "Pincus" and "Niger."

February 11, 2004: Date on which July 11, 2003 Martin and Cooper email exchange printed out. The email was apparently discovered in search of OVP files by "OVP RM." It mentions "Cooper" and "Niger." Cooper’s initial email was printed out, probably on July 11 or 12, though it has no date; Libby wrote notes on it on how he would respond to Cooper.

March 2004: FBI begins probe into Abramoff scandal.

March 24, 2004: Fitzgerald asks Libby about email, suggesting Fitzgerald was surprised by the lack of email he received as evidence.

Q. You’re not big on e-mail I take it?

A. No. Not in this job. I was in my prior job.

May 8, 2004: Date on which Abramoff-Susan Ralston email using the RNC server printed out by Greenberg-Traurig. This may have been the first public indication that White House employees (Ralston) were using the RNC server to bypass the more public White House server.

June 2004: Senate Indian Affairs Committee issues its first subpoena in its investigation into Abramoff scandal.

August 2004: In response to "unspecified legal inquiries," RNC stops its automatic email destruction policy. Read more

The White House Response on Backup Tapes

Hey, what do you know? The White House still sufficiently recognizes the third branch of government to respond to a judge’s request regarding all its lost emails. And as I suspected, the answer to whether or not the back-up tapes for White House emails include the emails not properly archived between March 2003 and October 2005 is, partly, "no." As the CIO of the Office of Administration, Theresa Payton, explains, the White House recycled its backup tapes up until October 2003, so it would not have any missing emails from March 2003 (the beginning of the period when the emails started going missing) and October 2003 (the period when the OA stopped recycling its backup tapes).

Prior to October 2003 and continuing through 2005 and to the present, this office has regularly created back-up tapes for the EOP Network, which includes the system’s email servers. Consistent with industry best practices relating to tape media management for disaster recovery back-up systems, these tapes were recycled prior to October 2003. In October 2003, this office began preserving and storing all back-up tapes and continues to do so.

But watch how Payton pretends that this doesn’t mean the White House might be missing a chunk of emails.

For that reason [the post-October 2003 preservation of backup tapes], emails sent or received in the 2003-2005 time period should be contained on existing back-up tapes.


…in view of this office’s practice in the 2003-2005 time period of regularly creating back-up tapes for the EOP Network, which includes servers containing emails, and in view of this office’s practice of preserving all such back-up tapes from October 2003 to the present, the back-up tapes should contain substantially all the emails sent or received in the 2003-2005 time period.

As everyone who has read this can understand clearly, Payton’s statement doesn’t mean what it says. Rather, it is an admission that the White House may well be missing emails written or received between March 2003 and October 2003.

Such a misleading response is only one of the ways in which this response is disingenuous. Read more