The Bush administration's terrible luck with finding documents

The administration's claim that it lost potentially thousands of e-mails relating to the U.S. attorneys scandal is merely the latest in a series of similar incidents.

Published April 12, 2007 3:14PM (EDT)

(Updated below - Update II - Update III - Update IV - Update V - Update VI)

I feel -- in this vaguely intuitive sort of way -- as though there is some kind of a pattern buried within this set of facts, but as much as I search, I just can't quite figure out what it might be:

New York Times, today:

Political advisers to President Bush may have improperly used their Republican National Committee e-mail accounts to conduct official government business, and some communications that are required to be preserved under federal law may be lost as a result, White House officials said Wednesday. . .

As a result, Mr. Stanzel said, "some official e-mails have potentially been lost." He said Mr. Bush had told the White House counsel's office "to do everything practical to retrieve potentially lost messages."

The Politico, March 24, 2007:

In DOJ documents that were publicly posted by the House Judiciary Committee, there is a gap from mid-November to early December in e-mails and other memos, which was a critical period as the White House and Justice Department reviewed, then approved, which U.S. attorneys would be fired while also developing a political and communications strategy for countering any fallout from the firings.

Newsweek, February 28, 2007:

A federal judge ruled today that suspected Al Qaeda operative Jose Padilla is mentally competent. . . . But the ruling by U.S. Judge Marcia Cooke in Miami leaves open what may be more intriguing questions than those surrounding the defendant's mental health: what happened to a crucial video recording of Padilla being interrogated in a U.S. military brig that has mysteriously disappeared?

The disclosure that the Pentagon had lost a potentially important piece of evidence in one of the U.S. government's highest-profile terrorism cases was met with claims of incredulity by some defense lawyers and human-rights groups monitoring the case. "This is the kind of thing you hear when you're litigating cases in Egypt or Morocco or Karachi," said John Sifton, a lawyer with Human Rights Watch, one of a number of groups that has criticized the U.S. government's treatment of Padilla. "It is simply not credible that they would have lost this tape. The administration has shown repeatedly they are more interested in covering up abuses than getting to the bottom of whether people were abused."

Alicia Valle, a spokeswoman for the U.S. Attorney's Office in Miama, said in an e-mail to NEWSWEEK that the missing DVD was "of the last interrogation of Padilla while in military custody." She further added that a lawyer for DIA had advised the court "that an exhaustive search was conducted but the [DVD] could not be located."

NPR, June 24, 2004:

Key documents are missing from the batch of newly declassified documents the White House released this week on its policies on torture and the treatment of prisoners, critics say. Absent are any memos to and from the FBI and CIA and any documents dated after April 2003. No documents address the State Department's concern over the Bush administration's interpretation of the Geneva Conventions.

USA Today, May 24, 2004:

The Pentagon sought Sunday to explain why some 2,000 pages were missing from a congressional copy of a classified report detailing the alleged acts of abuse by soldiers against Iraqi inmates at Abu Ghraib prison. . . . .

[Pentagon spokesman Lawrence Di Rita] was responding to a Time magazine report Sunday that about 2,000 of the report's 6,000 pages submitted to the Senate Armed Services Committee were missing. The report by Maj. Gen. Antonio Taguba consists of a declassified summary and about 6,000 pages of classified annexes, including statements from witnesses, prison guards and military intelligence officials.

Associated Press, September 5, 2004:

Documents that should have been written to explain gaps in President Bush's Texas Air National Guard service are missing from the military records released about his service in 1972 and 1973, according to regulations and outside experts.

For example, Air National Guard regulations at the time required commanders to write an investigative report for the Air Force when Bush missed his annual medical exam in 1972. The regulations also required commanders to confirm in writing that Bush received counseling after missing five months of drills.

No such records have been made public and the government told The Associated Press in response to a Freedom of Information Act lawsuit that it has released all records it can find.

And that is to say nothing of all of the extraordinary and unprecedented steps taken by the administration to justify the concealment of documents and other information -- efforts which, when successful, have made it unnecessary to claim that the documents were lost. But don't worry; it's all to protect us, all for our own good. There is simply no reason for us to know what our Leaders are doing.

UPDATE: Newsweek, March 1, 2006:

[Federal Emergency Management Agency Michael] Brown's comments about the president surfaced in a transcript of an Aug. 29, 2005, videoconference call produced by Bush administration officials today after they initially told Congress that no such document existed. . . .

Administration and congressional officials said that the administration provided congressional investigators earlier this year with official transcripts of the daily noon FEMA conference calls conducted before, during and after Katrina. But the administration initially told Congress that the transcript for the Aug. 29 call -- the call congressional investigators were most curious about, given that it occurred as the hurricane was actually battering the Gulf Coastb

"Everybody has been looking for that transcript," former FEMA chief Michael Brown said Wednesday.

A White House official unexpectedly e-mailed the transcript to NEWSWEEK earlier today Wednesday morning -- initially without explaining that it was the missing transcript. Two officials familiar with congressional investigations said that the document was turned over to Capitol Hill investigators Tuesday night. Administration officials told both Congress and NEWSWEEK that FEMA officials in Atlanta had taped the Aug. 29 conference call by aiming a video camera at a TV screen rather than following the usual recording procedure. The videotape was subsequently discovered and transcribed.

While the newly discovered transcript does provide new evidence of initial presidential engagement in the Katrina crisis and of conflicting information about the state of New Orleans levees on Aug. 29, it also exposes some contradictions in previous administration explanations about the role of the White House and top officials in handling the crisis.

I suppose the defense for Bush followers who want to claim that all of this is completely innocent is "extreme ineptitude."

UPDATE II: Via email, reader SB adds this very recent incident to the list -- Washington Post, April 3, 2007:

A secret FBI intelligence unit helped detain a group of war protesters in a downtown Washington parking garage in April 2002 and interrogated some of them on videotape about their political and religious beliefs, newly uncovered documents and interviews show.

For years, law enforcement authorities suggested it never happened. The FBI and D.C. police said they had no records of such an incident. And police told a federal court that no FBI agents were present when officers arrested more than 20 protesters that afternoon for trespassing; police viewed them as suspicious for milling around the parking garage entrance.

But a civil lawsuit, filed by the protesters, recently unearthed D.C. police logs that confirm the FBI's role in the incident.

Every story uses almost verbtaim language, because the conduct they are describing is, in each case, almost exactly the same.

UPDATE III: New York Sun, February 2, 2006:

The White House failed to archive some e-mails in accordance with normal procedures in 2003, according to a letter from a special prosecutor investigating the leak of a CIA operative's identity.

The prosecutor, Patrick Fitzgerald, disclosed the failure last week to defense attorneys for a former White House official, I. Lewis Libby, who is facing perjury and obstruction of justice charges in the probe.

"We advise you that we have learned that not all e-mail of the Office of 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," Mr. Fitzgerald wrote in the January 23 letter, which was filed in federal court on Tuesday.

Associated Press, February 24, 2006:

The defense was told that the White House had recently located and turned over about 250 pages of e-mails from the vice president's office. Fitzgerald, in a letter last month to the defense, had cautioned Libby's lawyers that some e-mails might be missing because the White House's archiving system had failed.

The White House's continuous and repeated failure to preserve e-mail communications in accordance with the law has been publicly discussed for some time now, and has arisen in multiple contexts. This is the discussion which Wolf Blitzer had on CNN with Jeffrey Toobin -- on February 1, 2006 -- about the Fitzgerald letter noting those missing emails (h/t Media Matters):

BLITZER: Let's get some legal analysis now on this new development. Joining us on the phone is our senior legal analyst Jeffrey Toobin. Potentially, how significant or insignificant is this development?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: I think you have to say it raises questions. Why were these documents destroyed outside the normal course? Who knew about it? Who ordered it? What kind of documents were there? All these questions may have entirely innocent answers, but we don't know what any of the answers are at this point.

BLITZER: Because when I hear a story like this, it hearkens back, I remember, of course, some of those missing tapes during Watergate and the Nixon White House that evidence may have been destroyed. This may be totally, totally overreaching. There may be a simple explanation, but the fact that the prosecutor writes this letter saying what happened to this -- to these e-mails, that raises certain questions.

TOOBIN: And certainly the Iran-Contra affair was based almost entirely on electronic messages, so-called prof notes sent between Oliver North and colleagues. They have been crucial evidence in all White House investigations. What happened to them? A lot of things get destroyed in the normal course of business. Why were the normal procedures not followed? As you point out, could be completely innocent. But we just don't know.

BLITZER: How normal is it for e-mail to be destroyed in the normal course of business over at the White House?

TOOBIN: A question I don't have the answer to, but presumably the special prosecutor is going to be looking into that question right now.

BLITZER: Jeff Toobin, thanks very much.

The administration -- which has made its contempt for all forms of oversight as clear as can be, and which has engaged in every possible effort to block scrutiny of its conduct -- obviously simply decided that, despite all of these controversies, and despite their legal obligations, they would keep ensuring that highly relevant e-mails continued to disappear, or would simply break the law by using e-mail systems that did not preserve their communications, including communications relating to ongoing investigations. What other reasonable conclusion is possible in light of these facts?

UPDATE IV: Anonymous Liberal notes the perspective which any litigator (assuming they are speaking honestly, rather than with the intent to defend the administration) would have of this matter:

As an attorney who deals with subpoenas and requests for electronic documents on a regular basis, I can tell you that if a private entity--particularly one subject to legally mandated record keeping requirements--were to inform government investigators seeking such documents that they had been "mishandled" and were now "lost," that entity would immediately find itself in a world of hurt and would be lucky if it survived the aftermath.

No amount of talking would be enough to convince the authorities that there was an innocent explanation for the missing documents. They would be absolutely convinced that the "mishandled" documents were intentionally destroyed in order to cover up wrongdoing.

And that is particularly true if -- as is true for the Bush administration -- the party claiming to have "lost" or "mishandled" such key evidence had a long history of making such claims repeatedly with the effect of blocking investigations. And the presumption of corrupt intent would be stronger still if, as in the case of the Bush administration, one of the party's highest officials was recently found guilty of multiple counts of obstruction of justice and false statements for lying to FBI investigators and to a federal grand jury.

A.L. also notes that as a result of the "missing" emails in the Plame matter, "the White House's dual email system was almost surely the subject of intense discussion in early 2004." Thus, efforts to circumvent that system by deleting other emails and using RNC email systems were almost surely intentional.

In fact, the D.C. Circuit Court of Appeals ruled long ago, in the 1994 case of Armstrong v. Executive Office of the President (summary here), that the White House was required by the Federal Records Act to preserve all of its communications via e-mail (other than "presidential records"). And this April 7, 2000 article from the Christian Science Monitor -- detailing the Clinton White House's extensive efforts to preserve all -- demonstrates that the legal obligation to preserve White House emails has been a much-discussed topic in Washington for years:

In fact, whenever a White House staffer clicks "send," a message reminds them that a copy of their missive is being sent to records management.

When it comes to saving e-mails, the White House is held to a higher standard than the private sector, and even Congress.

Companies that have a policy of saving e-mails usually do so only for three to six months, according to records-management consultants. Many companies consider them the same as phone calls, and don't archive them unless they are equal in weight to a written communication.

But the White House is different. It saves its records for posterity. After President Clinton vacates his office next January, at least 30 million stored e-mails will be deposited with the National Archives, an unfathomable mountain of data ranging from "how about lunch?" to speech drafts, to perhaps more juicy communications. . . .

The White House, on the other hand, installed an e-mail archiving system in July 1994, after a court ruled that electronic records must be preserved in the same way as federal records. It was such a novel concept at the time that it had to be custom-built.

Rove and company were well-aware of their legal obligations to preserve their communications, and were equally aware that using their White House emails to communicate would result in such preservation. This lengthy record by the Bush administration of finding ways to "lose" key documents relevant to investigations and judicial proceedings ought to leave little doubt about the corrupt intent motivating this behavior.

UPDATE V: The Washington Post, December 18, 2003 (h/t AJ):

Hundreds of videotapes that federal prison officials had claimed were destroyed show that foreign nationals held at a New York detention facility after the Sept. 11, 2001, attacks were victims of physical and verbal abuse by guards, the Justice Department's inspector general said yesterday. . .

A report issued by Fine in June found "a pattern of physical and verbal abuse" at the Brooklyn detention facility's Special Housing Unit, where 84 of the men picked up after the Sept. 11 attacks were held. But investigators said then that firm conclusions on abuse were impossible in many cases because of the lack of videotapes, which prison administrators said at the time had been destroyed.

A federal dragnet after the Sept. 11 attacks resulted in the detention of more than 1,200 foreign nationals, including 762 people who were the focus of Fine's original probe. Most were of Arab or South Asian descent and were held on immigration violations under a directive from Attorney General John D. Ashcroft while authorities attempted to determine whether they were connected to the attack or to terrorist groups. None was ever charged with terrorism-related crimes, however.

Many of the incidents of abuse were confirmed when investigators viewed more than 300 videotapes recorded from October to November 2001 that showed detainees being moved around the facility and within their cells, investigators said. . . .

The tapes eventually located in August had not been included on inventory sheets provided by the prison and were held in a storage room that also had not been disclosed to investigators, the report said. Many tapes from the period are still missing, and there are unexplained gaps the ones that were found, the report shows.

Incidents like this get reported piecemeal, in isolation, by our national press, but the clear implications are almost never realized and/or explained.

This administration does not believe it is subject to oversight or the rule of law. They hate investigations and scrutiny and do everything possible -- legal and illegal -- to block them. Let us emphasize that Lewis Libby -- Dick Cheney's most trusted advisor who, after Bush, Cheney and Rove, was the most powerful figure in the White House and one of the most powerful individuals in our entire government for five years -- was just found guilty of multiple counts of perjury and obstruction of justice: first by a Republican, Bush-appointed prosecutor who indicted him, then by 12 carefully selected American citizens who were unanimous about his guilt in attempting to thwart a federal investigation into the administration's conduct.

And when that happened, the only debate it prompted among Bush followers was whether Libby should be pardoned now or later, with most demanding a pardon immediately. This is what they do and who they are. They affirmatively believe in lying and destroying evidence and obstructing investigations in order to conceal their behavior. They believe that anything they do is, by definition, good and right, and therefore there is never anything wrong with attempts to hide it or even misleading the country about what they did.

It should not be necessary to explain why those are profound problems, and why the media's reporting on these matters ought to reflect just how serious these scandals are.

UPDATE VI: On CNN tonight, Jack Cafferty took this post and used it as the basis for his commentary, and did a great job with it, featuring the key parts of virtually every incident listed here. C&L has the video here.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

MORE FROM Glenn Greenwald

Related Topics ------------------------------------------