updated 10/19/2007 7:53:50 PM ET 2007-10-19T23:53:50

A U.S. magistrate on Friday rejected arguments by the Bush administration and urged a federal judge to order the White House to preserve copies of all its e-mails.

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U.S. Magistrate Judge John M. Facciola said it is necessary to hold out the threat of a contempt-of-court citation to ensure that White House personnel safeguard backup tapes of electronic messages that may have been deleted.

Justice Department lawyers offered to have the government file a sworn declaration stating that the White House Office of Administration is safeguarding all backup materials.

“Unlike a court order, a declaration is not punishable by contempt,” the magistrate wrote. “In other words, without such an order, destruction of the backup media would be without consequences.”

Whether to issue the order is up to U.S. District Judge Henry Kennedy. The Bush administration has 10 days to say why Kennedy should not order preservation of electronic communications by White House officials and aides. Kennedy had referred the issue to the magistrate for a recommendation.

Facciola’s report to the judge stems from a controversy dating back nearly two years over missing White House e-mails. An ethics advocacy group says the White House has deleted millions of e-mails and the private organization is suing the Executive Office of the President in an attempt to force the government to reconstruct any lost messages from backup tapes.

The group, Citizens for Responsibility and Ethics in Washington, says it has been unable to get assurances from the White House that all backup tapes will be preserved. Nor is it clear whether some backup tapes have already been destroyed, or recycled, resulting in taping over messages that were already there.

The Federal Records Act and the President Records Act require that all e-mails be saved.

White House seeks declaration over order
In a hearing before Facciola on Wednesday, the Justice Department argued strenuously against the course of action the magistrate ended up taking.

Facciola proposed a broadly worded order directing the Executive Office of the President to preserve copies of e-mails “presently in their possession or under their custody or control.”

In early 2006, special counsel Patrick Fitzgerald raised the possibility that records sought in the CIA leak investigation involving the outing of Valerie Plame could be missing because of an e-mail archiving problem at the White House.

The issue arose again early this year amid the controversy over the firing of U.S. attorneys. Aides to Bush improperly used Republican Party-sponsored e-mail accounts for official business. An undetermined number of e-mails were lost.

Melanie Sloan, CREW’s executive director, said the magistrate “is not leaving them any wiggle room. He would require them to preserve copies of e-mails no matter how they are kept — on backup tapes, DVDs, disks, in whatever form, and prohibit them from keeping them in some way that makes it difficult to use them.”

White House spokesman Tony Fratto declined to comment.

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