INSIDER INTERVIEW

Friday, November 7, 2008 8:40 AM

Bush E-Mail Records Could Be Lost To History

Since the presidential transition from Ronald Reagan to George H.W. Bush, George Washington University's National Security Archive has been a watchdog of federal e-mail preservation policies. Most recently the archive, which manages a library of security documents, joined a lawsuit that seeks to hold the George W. Bush White House and the National Archives and Records Administration accountable for backing up and cataloging electronic records, which must be preserved under the Federal Records Act and the Presidential Records Act.

NationalJournal.com's Theresa Poulson spoke with Meredith Fuchs, the general counsel to the National Security Archive, before the election about the risks of the upcoming transition and the organization's expectations for the next president. Edited excerpts follow. Visit the archives page for more Insider Interviews.

Q: Why did the National Security Archive get involved with the lawsuit?

Fuchs: What happened when the Bush administration came in is that they scrapped the e-mail archiving system [established under the Clinton administration].... and they didn't replace it. They actually did develop a replacement in consultation with National Archives, but they made the decision not to install it. So, for the eight years of the Bush administration, there is no archive of the e-mails that were sent or received within the White House....

This issue first came to light, at least to our knowledge, during the investigation and the trial of "Scooter" Libby, who was the vice presidential aide who was prosecuted for disclosing that Valerie Plame was a CIA agent.... During that case, the prosecutors told Libby's defense lawyers that certain records in the office of the vice president, e-mail records, were just missing, and they didn't have copies of them to provide. So we were aware of that, and then several months later, an organization called [Citizens for Responsibility and Ethics in Washington], actually based on information they got from a confidential source, issued a report saying that it's not just some e-mails in the office of the vice president, it was, in fact, potentially 5 million e-mails from throughout the White House and the executive office of the president. And once we heard about that, that's when we filed our suit.

Q: Is it true that Vice President Dick Cheney marked some of his e-mails as classified by placing stamps in the subject line of e-mails?

Fuchs: There's a couple of issues relating specifically to Vice President Cheney and the office of the vice president. It's our understanding that the vice president's office came up with stamps that said "treat record as classified." Or as "secured compartmentalized information." Now, classification is not sort of just a generic term, it's actually a term of art that refers to classification according to the standards that have been established by the president in an executive order. The executive order is 12958. Things that do not meet the standards of the executive order should not be labeled as classified. So it was improper to label some of those things, at least, as classified. And the problem is that once you label it as classified, it makes it far more unlikely it's ever going to be released, because it's going to require significant additional significant review to determine if it's really classified or not....

Another problem in the vice president's office is that this particular vice president has taken the position, first, that his office is not bound by the executive order and classification because he's not actually part of the executive branch.... Because the vice president has take the position that he's not part of the executive branch, it's questionable about whether records from the office of the vice president and from the vice president himself will actually be turned over to the National Archives on January 20th at the end of this administration. And if the vice president does not turn over those records, that would be fairly unprecedented. He would be treating them as his own personal records and not as records of the American public. That's a really troubling possibility.

Q: There was a recent federal court decision that required Cheney to save the backup tapes of his e-mails. Do you think that this will increase the likelihood of preserving those records?

Fuchs: Yes, obviously, we think it's great the courts have said that these records shouldn't be destroyed. But the courts have not resolved the substance of these issues.... If the courts don't take slightly stronger actions in terms of making sure those records are preserved -- and in the case of the White House e-mails, they actually have to restore the records from backup tapes in order for them to at all be accessible....

We have grave concerns that they're not going to be accessible. So some of that's because what happened in the White House, and some of that is because we're concerned that the National Archives may not be completely prepared to handle this transition.... There was a GAO report issued a couple of weeks ago, which expresses real concern that the National Archives might not be ready to receive all of these records.

Q: Looking ahead to the incoming administration, what are some of the things that you would like to see done in the new White House to ensure that these records are preserved?

Fuchs: The first thing is, we would like the new president to state up front and clearly that he is committed to preserving the historical record, the documents, presidential decision-making. That's something that we feel like the Bush administration has not wanted to do. And it's sort of apparent, from many of the decisions they've made along the way, that preserving the historical record is not a priority for them....

We would also like the president to revoke an executive order that was issued by President Bush that altered the way the Presidential Records Act works. President Bush's executive order created some new constitutional privileges for former vice presidents and also for the families of former presidents [that allows the vice president to stop the release of records if it's possible those records might have vice presidential privilege issues]. And so those privileges, we don't think are justified under the law.

Q: Barack Obama has promised to put a technology czar in the White House. Do you think that this might help with electronic record-keeping?

Fuchs: I think that having people who are a little more visionary about technology would be a very, very useful thing. I think that a lot of government officials still are in a paper mindset, and when we talk to people at the various agencies, records managers, in some cases they recognize this as a real challenge, but in some cases they don't buy it. They don't really accept that we're moving to an all-electronic environment. So I really do think it's critical -- and it's not just because of the open government, and transparency and accountability concerns that my organization cares about. This is really important for continuity of government, and for effectiveness of the government....

It would be great if there was someone in the executive branch who makes a priority of this, but I think Congress has to act as well, because we often hear things like, "There's no technology to do this," "We haven't solved this problem," but I have confidence that our private industry will come forth with solutions if Congress mandates it, and I really think it's time for Congress to do that.