Judge Rules Against White House In E-mail Case

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By Pete Yost

A federal judge on Monday ruled against the Bush administration in a court battle over the White House's problem-plagued e-mail system. With two-and-a-half months remaining before the Bush administration leaves office, U.S. District Judge Henry Kennedy ruled that two private groups may pursue their case as they press the government to recover millions of possibly missing electronic messages.

Kennedy rejected the government's request to throw out the lawsuits filed by Citizens for Responsibility and Ethics in Washington and the National Security Archive.

The government had argued that the courts did not have the authority to order the White House to retrieve any missing e-mails.

Kennedy, an appointee of President Clinton, said the two private groups seek precisely the relief outlined in the Federal Records Act and upheld in a previous case by the U.S. Court of Appeals for the District of Columbia Circuit.

CREW and the National Security Archive want a court order directing the archivist of the United States to initiate action through the attorney general to restore deleted e-mails.

Meredith Fuchs, the National Security Archive's general counsel, said that because of the ruling, a court order directing the White House to preserve 65,000 computer backup tapes remains in place.

Fuchs said that when the Bush administration surrenders its records to the government on Jan. 20, the incoming administration of Barack Obama can "do the right thing here and clean up this mess by ensuring that any missing e-mails are restored from computer backup tapes."

A White House document obtained by The Associated Press in August says the White House is missing as many as 225 days of e-mail dating to 2003.

The nine-page draft document about the White House's e-mail problems invites companies to bid on a project to recover missing electronic messages. The end date for the work was listed as April 19, 2009. The White House has not said whether it has hired a contractor.

CREW executive director Melanie Sloan called the court ruling "a clear victory for the American people. The Executive Office of the President does have to answer for the missing e-mail."

White House spokesman Scott Stanzel said the opinion is under review and that presidential aides are conferring with the Justice Department about the next steps in the case.

Sheila Shadmand, a Washington lawyer representing the National Security Archive, said the ruling enables protection of records "before they get carted off or destroyed as the current administration packs its bags to leave."

In February, a former White House computer expert told Congress the White House had no complete inventory of e-mail files, that there was no automatic system to ensure that e-mail was archived and preserved, and that until mid-2005 the e-mail system had serious security flaws.

Researchers at the National Security Archive disseminate historical materials to the public. CREW argued that the Bush administration is harming the private organization's efforts to gain future access to important historical documents that would shed light on the conduct of public officials.