We learned today that CREW has survived an effort to dismiss our case against the Bush administration over missing White House emails. DC District Court Judge Henry Kennedy upheld lawsuits brought by CREW and the National Security Archive challenging the White House’s failure to properly store and recover millions of emails.  Background on the case, which we filed in , can be found here.

CREW's Melanie Sloan issued this statement:

The Court has rejected the administration’s argument and upheld CREW’s right to sue the White House for failing to comply with the Federal Records Act. The White House, which values secrecy above nearly all else, finally will be held accountable for the millions of missing emails. This is a huge victory for government transparency and the American people.

More from the Wall Street Journal:

A federal judge on Monday ruled against the Bush administration in a court battle over the White House's problem-plagued email system.

U.S. District Judge Henry Kennedy said two private groups may pursue their case as they press the administration to recover millions of possibly missing electronic messages.

Judge 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 Bush administration had argued that the courts didn't have the power to order the White House to retrieve any missing emails.

A document obtained by the Associated Press in August says the White House is missing as many as 225 days of email dating back to 2003.

The nine-page outline of the White House's email problems invites companies to bid on a project to recover the missing electronic messages. The White House hasn't said whether it has hired a contractor.

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

The Bush administration's missing email saga continues.  CREW's Anne Weismann has it figured out -- the Bush White House wants to run out the clock and keep the public from seeing what are the public records of George Bush's presidency.

 The White House is missing as many as 225 days of e-mail dating back to 2003 and there is little if any likelihood a recovery effort will be completed by the time the Bush administration leaves office, according to an internal White House draft document obtained by The Associated Press.

The nine-page outline of the White House's e-mail problems invites companies to bid on a project to recover the missing electronic messages.

The work would be carried out through April 19, 2009, according to the Office of Administration request for contractors' proposals, which was dated June 20.

Last week, the White House declined to comment on the document.

On Wednesday, the White House refused to talk about internal White House contracting procedures, but said the information is "outdated and seriously inaccurate." It would not elaborate. The White House also declined to say whether it has hired a contractor for the work yet.

"With an eye on the clock, the White House continues to drag its feet and do everything possible to postpone public access to the records of this presidency," said Anne Weismann, chief counsel to Citizens for Responsibility and Ethics in Washington, a private watchdog group.

Yesterday, CREW reported that the Bush administration admitted that it failed to preserve ANY backup tapes for the period March 1, 2003 through May 22, 2003, a period of time during which the U.S. went to war in Iraq.

Today, the Washington Post reported on the stunning admission -- and its implications: 

The Bush administration has not found disaster recovery files for White House e-mails from a three-month time period in 2003, according to court documents filed this week, raising the possibility that messages sent before and after the invasion of Iraq may never be recovered.

The White House chief information officer, Theresa Payton, said in a sworn declaration that the White House has identified more than 400 computer backup tapes from March through September of 2003 but that the earliest recorded file was dated May 23 of that year.

That period was one of the most crucial of the Bush presidency. The United States launched the invasion of Iraq on March 20, 2003, and President Bush declared the end of major combat operations on May 1.

Payton and other officials said that older e-mails could still be contained on the tapes because of the way the files are dated.

The administration also said it is still searching computer archives for e-mails that have been filed in the wrong "digital drawer." In addition, Payton and other officials have said that any e-mails missing from the White House archiving system might still be available on disaster recovery tapes.

But that did not satisfy an advocacy group suing the administration for e-mail records.

"We're talking about the White House, and documentation of our history that may be lost," said Anne Weismann, chief counsel for Citizens for Responsibility and Ethics in Washington. Administration officials had acknowledged last year that thousands of e-mails might be missing from White House servers, but the administration has shifted course in recent months to arguing there is still no clear evidence of a problem. A White House spokesman declined to comment yesterday.

Major development in CREW's lawsuit against the Bush Administration.

A White House declaration filed late last night in CREW v. EOP, CREW's lawsuit challenging the failure of the White House to preserve millions and millions of emails, makes the stunning admission that the White House failed to preserve ANY backup tapes for the period March 1, 2003 through May 22, 2003, a period of time during which the U.S. went to war in Iraq.

Previously disclosed documents by the House Oversight Committee had revealed that the White House also has no backup tapes for the period September 30, 2003, to October 6, 2003 -- a period that coincides with the Department of Justice opening up an investigation into the disclosure by top White House officials of Valerie Plame Wilson's covert identity.

Just as remarkably, the White House now argues that even with its own admission that critical backup tapes are missing, it should not be required to preserve ANY backup tapes because there is no evidence that any emails are missing. Of course, what the White House overlooks is that it has already told both the House Oversight Committee and Special Counsel Patrick Fitzgerald that critical White House emails are missing.

Below is the page of the declaration where the White House admits there are no backup tapes prior to May 23, 2003. The full declaration can be downloaded here.

Major development in CREW's lawsuit against the White House Office of Administration. 

Following an on-the-record conference call on March 28, 2008, District Court Judge Colleen Kollar-Kotelly issued an Order on March 30, 2008 in CREW v. Office of Administration, ordering the Office of Administration (OA), a White House component, to produce documents and information related to its decision that it is no longer an agency subject to the Freedom of Information Act (FOIA). 

Judge Kollar-Kotelly agreed with CREW that documents showing when OA determined it was no longer subject to the FOIA and the Federal Records Act are relevant to determining whether OA is an agency and therefore is required to respond fully to CREW's request for documents relating to OA's discovery in the fall of 2005 of millions of e-mails on White House servers.

The documents can be found here. 

The MoJo Blog took a look at the revelation from late last week that the White House destroyed computer hard drives.  CREW is suing the White House Office of Administration over missing emails.  Our counsel, Anne Weismann wrote a post about the 'extraordinary degree to which the White House has ignored, if not outright flouted, its record keeping obligations."  The MoJo Blog's analysis confirms Anne's analysis:

When computers are replaced, it is fairly standard practice to destroy the hard drives of the old computers, particularly if they contain confidential information (as the White House hard drives almost certainly did). But it is almost unheard of for a hard drive to be destroyed if no backup of the data it contains exists. The White House is required by law to preserve all federal records, a category that includes much of its internal email correspondence.

This is an important point: destroying hard drives is common practice; permanently destroying data is another matter. It's highly unusual. If the White House knew there was even a chance that the hard drives were the last repositories of the missing emails, it must have realized it might be irrevocably destroying data it was compelled to preserve.

It's likely the White House knew of problems with its archiving system while it engaged in its normal practice of replacing computers. As Mother Jones reported last month, the National Archives and Records Administration (NARA) told the White House on January 6, 2004 that it was "operating at risk by not capturing and storing messages outside the email system." Documents released at a House oversight committee hearing last month reveal that the White House knew of a "critical security issue" with the archiving system in 2005. And a 15-person team of administration employees created a report in 2005 that pointed to some 700 days for which there was a suspiciously low amount of archived email (for about 400 of those days there was no archived email at all). On April 13, 2007, Dana Perino, the White House Press Secretary, said "I wouldn't rule out that there were a potential 5 million e-mails lost."

It's pretty clear White House officials knew there might be a problem with missing emails as early as 2004. But the "refresh" program continued. (A similar program to "recycle" backup tapes was stopped in October 2003—but only after the backup tapes for March-October 2003 had already been overwritten). Since it would be obvious to any IT professional (of which the White House has many) that the hard drives being erased were a potential source for recovering missing emails, any good faith effort to recover that information and ensure no more was lost would include a temporary halt to the "refresh" program. That didn't happen.

The latest revelation in the ongoing effort to find missing White House emails was dropped late Friday: 

Older White House computer hard drives have been destroyed, the White House told a federal court yesterday, and some, but not necessarily all, of the data on those hard drives was moved to new ones.

The White House revealed the information about how it handles its computers in an effort to convince a federal magistrate that it would be fruitless to undertake a plan proposed by the court to recover millions of possibly missing e-mails from 2003 to 2005.

It would be costly and time-consuming for the White House to institute an e-mail retrieval program that entails pulling data off each individual workstation, the White House said in a sworn declaration filed with U.S. Magistrate Judge John Facciola.

Another development in CREW's lawsuit against the Bush administration over missing White House emails.  This is important:  Key facts are conspicuously missing from the White House declaration filed with the Court.

CREW filed a reply brief in support of its motion to show cause why a number of White House officials should not be held in contempt in CREW v. EOP. CREW has requested that the Court hold the defendants in civil contempt based on their filing a false, misleading and incomplete sworn declaration to answer four questions posed by the Court.  The documents in the case can be found here.

In response, the White House argued in part that it met its obligations simply by the filing of a declaration and that any falsehoods were "wholly irrelevant" to the Court's four questions, aimed at determining whether the preservation order should be broadened.

CREW once again pointed out that the White House's response that the back-up copies are complete and should contain all the missing emails is demonstrably false. CREW also noted its understanding that back-up tapes created prior to October 21, 2003, are not readable and therefore could not be used to find OVP email in response to a subpoena from Special Counsel Patrick Fitzgerald.

These facts are also conspicuously missing from the White House declaration filed with the Court.

The MoJo Blog examined the rulings in the cases against the White House over missing emails and the steps the Bush administration is supposed to be taking to preserve its emails.   CREW's Anne Weismann interprets the latest court actions to mean that the judge doesn't think the orders to preserve the emails have gone far enough:

Facciola's ruling indicates that he takes the plaintiffs' concerns seriously and understands that time is of the essence, since every day that goes by makes it increasingly likely that potentially recoverable email data will be permanently lost. If Facciola does order copies made, it will mean that "while the clock is ticking [the emails] are not going to disappear," explains Meredith Fuchs, the NSA's General Counsel.

There is already a court order that asks the administration to preserve emails, but it's now "pretty clear that the court seems concerned that in fact the original preservation order doesn't go far enough," Anne Weismann, CREW's Chief Counsel, told me this afternoon.

CREW has been engaged in an ongoing lawsuit against the Bush administration over missing White House emails. Last month, a Federal judge issued an order allowing CREW to conduct limited discovery in that case Today, ABC News reports on another e-mail case involving the White House -- and another court order:

The White House has three days to explain why it shouldn't be required to copy its computer hard drives to ensure no further e-mails are lost, a federal judge ordered Tuesday.

Already, e-mails between March and October 2003 appear to have been lost, Judge John M. Facciola noted, because they were improperly archived and no backup copies exist. That period includes the U.S. invasion of Iraq.

E-mails by White House staff are considered part of the nation's historical record, and federal law requires they be preserved. The White House has admitted that potentially millions of e-mails from the past eight years have been erased, although it has provided conflicting accounts on how many may still exist on backup tapes.

The order, issued Tuesday morning by a federal magistrate judge in Washington, D.C., comes in a case brought against the Bush administration by the National Security Archive, a nonpartisan group affiliated with George Washington University.

The group filed suit in September 2007, seeking to force the White House to restore missing e-mails and institute an adequate archiving system.

Judge Facciola rejected as "draconian" a proposal by the Archive that would have forced the White House to quarantine every computer workstation it had. Instead, Facciola proposed the White House make a "forensic copy" of all preservable data on every computer that could have been used by an employee between 2003 and 2005, the period in question.