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“The 9/11 Commission Wants Internal Emails”

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I found something rather interesting in Scooter Libby’s notes for July 8, 2003 (here’s the transcription of his chickenscratch). At the tail end of a conversation about the 9/11 Commission (which may have taken place at the White House’s Senior Staff Meeting that morning), and at the beginning of more obsessive notes about Joe Wilson [on how these notes work, see the update below], Libby wrote:

9/11 Commission wants internal e-mails, mark-up drafts of President’s speech, materials for President’s discussions with Blair, etc.

Now, I have no idea what they wanted internal emails pertaining to–though the reference to a Bush speech and discussions with Blair indicates it was a speech about war, most likely the September 20, 2001 speech announcing his response to the 9/11 attacks. Though, the Commission briefly reviewed the early (2001) discussions about hitting Iraq, as well as Afghanistan, and Libby’s note appeared just one day before the Commission held a hearing on Al Qaeda’s relationship with other parts of the Arab world, including Iraq (Laura Mylroie even testified!).

But I find the mention interesting, given all the attention to the White House’s faulty email archiving system. Libby’s note presumably reflects discussions of the 9/11 Commission’s First Interim Report, released on the same day. In the report (and at the press conference accompanying it), Commission described the status of EOP’s document requests as follows:

First, the executive office of the president. The document requests have been filed with the executive office. Those documents cover every major part of the executive office of the presidency, including, of course, the National Security Council. We will not go into detail on the substance of these or other requests. We can say that we have received and are in the process of receiving access to a wide range of sensitive documents, and that to date no requested access has been denied. Many more documents are being requested. Conditions have been imposed, in some cases, with respect to our access to and usage of materials, and our discussions will continue.

Though the same interim report bragged that the Commission had received detainee interviews, and we know from Phillip Zelikow’s recent report on the CIA’s stonewalling regarding any tapes of detainee interrogations that as soon as June 2003, the CIA was withholding responsive materials.

Read more →

Two Reminders: Not an Agency and Search Terms

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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 →

Plame Investigation and Missing Emails: Analysis on Emails

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This is the post I promised, in which I’ll analyze what the timeline of the missing dates shows. As I said in that post, this exercise makes several assumptions, some of which clearly are not true:

  • It assumes all the missing emails have some tie to the Plame leak; we know this is not true because of the volume of email missing from offices uninvolved in the leak, and there is at least one period when no archive of OVP email exists for which I can think of no Plame leak correlation.
  • It assumes we’re seeing all the missing emails; we’re not. There’s a bunch of dates on which there is a very small amount of email archived, and if we were to do this analysis properly, we’d need to know those dates, too.
  • It assumes the email archives were destroyed deliberately to hide legally dubious acts. While that might be a fair assumption with this administration, we don’t know for sure that is true, so by trying to find correlations between missing emails and known events, we may end up imagining motivations on the part of the White House that didn’t exist.

So understand that this is as much a thought experiment as useful analysis. It basically tries to answer the question, "Assuming most of the WH and OVP email gaps during this period relate to the Plame investigation, why might the WH have been deleting archives? What were they trying to hide?"

Also, consider some limits about the content of the email. We’re assuming the email was dangerous enough to make it worthwhile to delete. Yet, given that Fitzgerald got at least 250 pages of the missing OVP emails (and presumably a similar amount of missing WH emails), one of the following must be true:

  • The emails were not damaging enough to support an indictment for anyone beyond Libby. Only one of these emails was ever even introduced at Libby’s trial–and it was nowhere near the most incriminating piece of evidence. So the emails Fitzgerald received, at least, either contain no smoking gun or he chose not to pursue the smoking gun. Read more →

Plame Investigation and Missing Emails Timeline

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Okay, what follows is an uber-timeline, matching the dates for which OVP and WH don’t have any email archives to the Plame investigation, as well as laying out further details on how the investigation proceeded over time. Before you read further, a couple of important comments:

  • It would be completely irresponsible to assume that the email losses are entirely related to the Plame investigation. The large number of emails missing from CEQ, CEA, OMB, and OTR shows that, even if the emails were disappeared deliberately (which is a big assumption), they were disappeared for a myriad of reasons, many of them completely unrelated to the Plame investigation. That’s part of the reason I did the Medicare Part D post–while that post, like this one, is completely speculative, it shows there may be any number of explanations for the missing emails.
  • This post relies on information about the investigation revealed during the Libby trial. With one exception (the WHIG subpoena), those materials cover only subpoenas to OVP. There are undoubtedly subpoenas to the White House that we don’t know about that may pertain to these dates.
  • Remember that, in addition to the days for which no email archives exist for a given office, there are a large number of days for which offices don’t have archives of all the emails (that is, days when an archive includes vastly fewer emails than the office would have sent). So this timeline probably leaves out a large number of days which might be interesting or pertinent, because some significant number of emails are missing from the archives.
  • Even if all the connections you could might draw from this timeline were valid, they still wouldn’t explain all the funkiness with email pertaining to the Plame investigation. It still doesn’t describe possible funkiness with the Rove-Hadley email, and the search terms used to find emails may have led to further funkiness.
  • I will do a speculative post on some of the connections we might draw (probably tomorrow or Monday, I’m toast). But understand that this whole examination is one big experiment, which has the potential of drawing completely bogus conclusions. By looking solely at two discrete events, we presume a connection between them that ignores the complexity of the White House, or even the sheer number of potential scandals! Read more →

Henry’s Dates: Two Data Points from the Plame Investigation

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Update: We’re getting increasingly strong confirmations that the missing emails were discovered as part of the Plame matter, such as this line the AP’s coverage of the story today:

The White House says the e-mail matter arose in October 2005 in connection with the Justice Department’s CIA leak probe.

I promised I would consider the significance of the dates of missing email archives wrt the Plame investigation. But first of all, I wanted to look at two data points to establish what these dates offer us. As a reminder, here are the dates for which an entire White House office is missing email archives.

For the White House Office: December 17, 2003, December 20, 2003, December 21, 2003, January 9, 2004, January 10, 2004, January 11, 2004, January 29, 2004, February 1, 2004, February 2, 2004, February 3, 2004, February 7, 2004, and February 8, 2004.

For the Office of the Vice President: September 12, 2003, October 1, 2003, October 2, 2003, October 3, 2003, October 5, 2003, January 29, 2004, January 30, 2004, January 31, 2004, February 7, 2004, February 8, 2004, February 15, 2005, February 16, 2005, February 17, 2005, May 21, 2005, May 22, 2005, May 23, 2005.

The first, more simple data point I want to look at is the Mayfield-Martin email exchange that took place on October 1, 2003, but which wasn’t printed out until February 2, 2006. When Jeff first saw the date and the Bates number on the email exchange, he concluded that the email was probably one of the 250 pages worth of emails turned over to Patrick Fitzgerald on February 6, 2006–the emails that had not been archived properly. (Incidentally, we’ve only got two pages of the email, but it was apparently 13 pages when printed out, so presumably that leaves 237 more pages of emails that weren’t discovered in earlier searches.)

Waxman’s list appears to validate Jeff’s conclusion: October 1 is indeed one of the days for which there were no OVP email archives.

Furthermore, the rest of the emails submitted as trial exhibits reinforce this argument. There’s an October 1 email from Laura Mylroie to Mayfield passing on an awful Cliff May’s "Valerie wasn’t covert" column–but that email was printed out on October 1, kept in a file, then turned over as a hard copy. All other emails introduced as evidence come from earlier–when there are no complete days without email archives.

So Waxman’s list explains the very limited set of emails entered into evidence at the trial. It does not, however, explain the other big email anomaly from the investigation, the seeming non-discovery of the Rove-Hadley email until Rove turned it over when he testified in October 2004. After all, the email was written on July 11, 2003, well before the earliest complete day when there was no archived White House email. So even though the White House was reusing all their backup tapes (so therefore there is no backup file of emails form July 11), there was still an archive of emails from that period, as the presence of emails from Cathie Martin written on July 11, but discovered in February 2004, apparently from the archived copy, shows.

That leaves several possibilities:

The email was turned over, and the prosecution team just never realized what it was. I still think this is unlikely, since the FBI was focusing on Rove from early on, was focusing on Time from early on, and Fitzgerald’s willingness to let Cooper limit his first testimony appearance to his conversation with Libby, which suggests he didn’t know about the Rove-Cooper conversation at all.

The email was sent to and from RNC email addresses, and was destroyed by the RNC’s "document retention" policy of purging all emails every 30 days, but the email remained on Rove’s computer, but not Hadley’s. Here’s what Rob Kelner told Waxman about the RNC email retention practice.

According to Mr. Kelner, the RNC had a policy, which the RNC called a "document retention" policy, that purged all e-mails from RNC e-mail accounts and the RNC server that were more than 30 days old. Read more →

Henry’s Dates: Medicare Part D

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One of the reasons it was so unwise for Tony Fratto to open his big fat mouth today regarding the White House habit of losing emails is because it offered Waxman an excuse to make previously unreleased information publicly available–an excuse Waxman was not about to turn down. Waxman released a chunk of dates for which offices in the White House have no archived email (note, this list does not appear to include all of the dates for which there is no email, nor does it include dates for which the email volume is smaller than it should be).

For the White House Office: December 17, 2003, December 20, 2003, December 21, 2003, January 9, 2004, January 10, 2004, January 11, 2004, January 29, 2004, February 1, 2004, February 2, 2004, February 3, 2004, February 7, 2004, and February 8, 2004.

For the Office of the Vice President: September 12, 2003, October 1, 2003, October 2, 2003, October 3, 2003, October 5, 2003, January 29, 2004, January 30, 2004, January 31, 2004, February 7, 2004, February 8, 2004, February 15, 2005, February 16, 2005, February 17, 2005, May 21, 2005, May 22, 2005, May 23, 2005.

For the Council on Environmental Quality: 81 days, including the entire period between November 1, 2003 through January 11, 2004.

For the Council of Economic Advisers: 103 days, including the entire period between November 2, 2003 through January 11, 2004.

For the Office of Management and Budget: 59 days, including the entire period between November 1, 2003 through December 9, 2003.

For the U.S. Trade Representative: 73 days, including the entire period between February 11, 2004 through April 18, 2004.

And as a good weedy blogger, I thought this a wonderful opportunity to try to figure out any significance for the dates.

I’m going to go back and look out how the dates for the WH and OVP correlate with the Plame investigation. But for now, I’d like to raise one red flag regarding the dates as it pertains to the missing email: All the emails from OMB for the period covering the lead-up to and immediate aftermath of the passage of Medicare Part D are gone. Read more →

Disappearing White House Emails Timeline

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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 —

[snip]

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

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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.

[snip]

…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 →