E-mail case continues with Obama

The legal battle over the Bush administration’s alleged failure to archive millions of e-mail messages has spilled over into the Obama administration, as the Justice Department continues to argue that the ongoing litigation should be dismissed.

The Justice Department, which represents the current presidential administration in court, filed a motion to dismiss the court case against the Executive Office of the President the day after the presidential inauguration, Jan. 21, on the grounds that the administration’s e-mail restore recovery efforts has been sufficient. Citizens for Responsibility and Ethics in Washington (CREW) and George Washington University’s National Security Archive, the groups that sued the government in September 2007, argued against dismissal in a court motion filed Feb. 20.

The groups allege the Bush administration violated the Federal Records Act (FRA) by not recovering, restoring and preserving electronic communications, and by establishing an electronic records management system that complies with that law. The allegedly missing messages are from a period that includes the invasion of Iraq, key developments in the Valerie Plame leak investigation and the government's response to Hurricane Katrina.

Those groups argued the government’s recovery efforts had not been sufficient. CREW said in a statement that the government hasn’t yet given details that are central to the litigation such as the number of e-mail messages that are missing, the cause of the problem and whether it has been remedied.

“Hiding behind technical jargon and theoretical constructs, defendants attempt to obscure three basic facts: we still do not know how many e-mails are missing; we still do not know the source of the problem that caused e-mails to be missing in the first place; and we still do not know if the problem has been fixed,” CREW argued.

Tom Blanton, the Archive’s director said in a statement that the “White House e-mail presents a high-level test of the new Obama openness policies, and so far, the grade is at best an incomplete.”

“President Obama on day one ordered the government to become more transparent, but the Justice Department apparently never got the message, and that same day tried to dismiss the very litigation that has brought some accountability to the White House e-mail system,” said Blanton.

U.S. District Court Judge Henry Kennedy denied a separate motion to dismiss the case last November, clearing the way for the consolidated lawsuit to continue. The groups suing want the court to compel the restoration of e-mail messages they say are missing before the messages become unrecoverable and to establish an “adequate electronic records management system” for preserving White House e-mail messages.

In the motion to dismiss filed in January, government lawyers argued the case should now be dismissed because the administration had taken undertaken sufficient action to restore e-mail messages from back-up tapes and met requirements under the FRA.

“Millions of dollars, countless hours and productive results of an extensive e-mail restore process, however, prove plaintiffs’ allegation untrue,” government lawyers said in the court filing Jan. 21.