The measure passed the House, 286-137, on Wednesday, after
congressional investigations revealed that the Bush administration
apparently purged millions of e-mails and that dozens of administration
officials used e-mail accounts maintained by the Republican National
Committee to conduct official White House business and thus evade
federal records laws.
Watchdog groups -- Citizens for
Responsibility and Ethics, and George Washington University’s National
Security Archive -- sued the administration last year alleging the
White House violated the Presidential Records Act by not archiving
e-mails sent and received between 2003 and 2005.
The Bush
administration, in threatening to veto the legislation, said the bill
is "an excessive and inappropriate intrusion" into the work of the
Executive Branch and its staff.
In a statement, the White House
said the Electronic Message Preservation Act would "upset the delicate
separation of powers" created in the 1978 Presidential Records Act, a
law drafted in response to the widespread abuse of federal records
during the Nixon administration.
The Presidential Records Act
states that the records of a President, his immediate staff and
specific areas of the Executive Office of the President belong to the
United States, not to the individual President or his staff.
The
act further states that the President must "take all such steps as may
be necessary to assure that the activities, deliberations, decisions,
and policies that reflect the performance of his constitutional,
statutory, or other official or ceremonial duties are adequately
documented."
By coincidence, Bush issued his veto threat –
against this legislative “intrusion” into the handling of his internal
records – on the same day that Congress gave final approval to a law
granting Bush broader authority to intercept e-mail and other
electronic communications by American citizens.
Bush, who signed
that legislation into law on Thursday, said his new spying powers were
necessary to keep an eye on international communications between people
in the United States and foreigners suspected of terrorist ties.
However, critics say the warrantless wiretaps shred the Fourth
Amendment's protections against unreasonable searches and seizures.
Expanded Secrecy
Since
taking office in January 2001, Bush has sought to limit the public
right to see historical records from past presidents, including his
father. In one of his first acts, Bush delayed the scheduled release of
documents from the Reagan and first Bush administrations.
After
the 9/11 attacks, Bush expanded this secrecy by requiring that releases
of historical White House documents must get approval from the current
President and the former President or his heirs.
Bush’s veto
threat also underscores his position that the President is entitled to
broad executive powers and attempts by Congress to rein in that
authority are unconstitutional.
The e-mail controversy first
surfaced in January 2006 when Patrick Fitzgerald, the special
prosecutor appointed to investigate the leak of covert CIA operative
Valerie Plame Wilson’s identity, said he "learned that not all e-mail
of the Office of the Vice President and the Executive Office of the
President for certain time periods in 2003 was preserved through the
normal archiving process on the White House computer system."
An
internal investigation by officials in the Office of Administration had
concluded that e-mails from the office of Vice President Dick Cheney
between Sept. 30, 2003, and Oct. 6, 2003, were lost and unrecoverable.
That
was the week when the Justice Department launched an investigation into
the Plame leak and set a deadline for Bush administration officials to
turn over documents and e-mails containing any reference to Plame
Wilson or her husband, former Ambassador Joseph Wilson, who had angered
the White House by criticizing Bush’s case for invading Iraq.
Additionally,
Office of Administration staffers said there were at least 400 other
days between March 2003 and October 2005 when e-mails could not be
located in either Cheney’s office or the Executive Office of the
President.
Theresa Payton, the Office of Administration’s chief
information officer, admitted in January that the White House
“recycled” its computer back-up tapes until October 2003, making it
much more difficult to retrieve e-mails. ‘
Legislation Would Reduce Abuses
Rep.
Henry Waxman, D-California, said the new House-passed bill also
addressed the administration’s conduct of official business through
non-governmental e-mail.
Waxman noted that former White House
political adviser Karl Rove conducted more than 90 percent of his White
House business via an RNC e-mail account going as far back as 2001 and
that those records were apparently destroyed.
- "Despite the
importance of these records, serious deficiencies exist in the way
e-mails are preserved, both by the White House and federal agencies,"
said Waxman, who heads the House Oversight and Government Reform
Committee.
Waxman said the Oversight Committee first discovered
administration officials were using nongovernmental e-mail accounts
during its investigation into disgraced lobbyist Jack Abramoff and his
contacts with the White House.
Rep. John Dingell, D-Michigan,
said many of the missing White House e-mails coincide with some of the
Bush administration's biggest scandals, depriving the public a
historical accounting of an already secretive administration.
- "Whether
it is Vice President Cheney's secret Energy Task Force meetings or the
cover-up of the outing of Valerie Plame, the Bush administration has
gone to extraordinary lengths to conduct its affairs in secret and to
hide key documents from those investigating wrongdoing," Dingell said.
The
House bill, which now heads to the Senate, calls upon the Archivist of
the United States to develop a plan to capture, manage and preserve
White House and federal agencies' e-mails and requires the archivist to
certify whether the White House has complied with management of
electronic communications.
Susan Cooper, a spokeswoman for the
National Archives, said in an interview that her agency does not have
the power to force the White House to comply with the Presidential
Records Act.
- “The key thing to remember about presidential
records is that it doesn’t become ours until the end of the
administration,” Cooper said. “The National Archives does not have any
say or legal input until the end of a President’s term. It’s up to the
President to decide how he manages his records.
- “However,
federal records are a different story. We have input into that
immediately. If we believe a federal agency is violating the Federal
Records Act we will write a letter to the agency and ask for an
explanation and if necessary we will refer the case to the Justice
Department.”
In May 2007, Allen Weinstein, Archivist of the
United States, said the National Archives wrote a letter to the White
House when reports about the extent of the missing e-mails began to
surface.
- “Because the [Executive Office of the President]
e-mail system contains records governed under both the Presidential
Records Act and Federal Records Act, on May 6, 2007, the National
Archives sent a standard letter to [Alan R. Swendiman] the Director of
the Office of Administration requesting a report on the allegations of
unauthorized destruction of Federal records,” Weinstein told the House
Oversight Committee last month.
The White House criticized
Waxman’s legislation as "vague" and said the US. Archivist would be
provided with "substantial leeway to establish standards that could
impose significant costs and burdens on an incumbent administration,
which could interfere with a President's ability to carry out his or
her constitutional and statutory responsibilities"
David
Gewirtz, an expert on e-mail and the author of the book Where Have All
the Emails Gone?, said the legislation is a good first step but the
fact that it would take at least five years to fully implement an
electronic document preservation program is troubling.
- "White
House e-mail is very problematic," Gewirtz said. “What offends me as an
IT professional is that none of these problems are insurmountable. In
fact, most of them are easy to solve. What's worse: not a single
private-sector CIO [chief information officer] would be allowed to get
away with negligence on this massive scale.”
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