Image: Rep. Henry Waxman
Lauren Victoria Burke  /  ASSOCIATED PRESS
Rep. Henry Waxman, D-Calif. is shown in this 2006 file photo on Capitol Hill in Washington. Waxman said a White House spokesman's statements Thursday in the controversy over missing e-mail conflict with what congressional staffers were told four months ago.
updated 1/18/2008 3:09:54 AM ET 2008-01-18T08:09:54

The chairman of a House committee said a White House spokesman's statements Thursday in the controversy over missing e-mail conflict with what congressional staffers were told four months ago.

Rep. Henry Waxman, D-Calif., scheduled a hearing and challenged the White House to explain spokesman Tony Fratto's remark that "we have absolutely no reason to believe that any e-mails are missing."

The White House provided information indicating 473 days for which various units in the Executive Office of the President had no archived e-mails, wrote Waxman, head of the House Committee on Oversight and Government Reform.

Asked to testify on Feb. 15 are White House counsel Fred Fielding; Alan Swendiman, director of the White House Office of Administration; and Allen Weinstein, archivist of the United States.

Waxman called the hearing after Fratto tried to tamp down a growing e-mail controversy by dismissing suggestions that millions of electronic messages are missing from the early days of the Bush administration.

Fratto's comments shifted away from White House statements last spring that expressed uncertainty over whether the allegations were true or not.

The latest round of questions began Wednesday when the White House, under a court order to disclose, was forced to admit that it had undercut its last line of defense for preserving any missing electronic messages by recycling its backup tapes -- taping over its previously backed-up electronic documents, raising the possibility that some e-mail was erased.

On the offensive
In response, the White House went on the offensive.

"We have no reason to believe that there is any data missing at all" from White House computer servers, said Fratto. "And we've certainly found no evidence of any data missing." The court filing about recycling of backup tapes also stated that the White House is undertaking an independent assessment to whether any e-mail is missing.

Fratto's comments also shifted away from what the White House apparently told the prosecutor overseeing the CIA leak investigation two years ago.

In January 2006, Special Counsel Patrick Fitzgerald reported 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."

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The White House says the e-mail matter arose in October 2005 in connection with the CIA leak probe. Fitzgerald revealed it to the public three months later in preparations for the trial of Vice President Dick Cheney's former chief of staff, I. Lewis "Scooter" Libby, who was later convicted of four felonies in the Valerie Plame affair. President Bush commuted Libby's 30-month prison term.

Regarding allegations of missing e-mails, the White House tried to bolster its position by casting doubt on a chart created by a former White House employee that suggested there is a large amount of missing e-mail.

"We tried to reconstruct some of the work" in the chart and "could not authenticate the correctness of the data," said Fratto. "We have no evidence and we have no way of showing that any e-mail at all are missing."

In response, one of the private groups suing the White House over the issue noted that the chart is one of 3,470 pages including spreadsheets and related documents that may be responsive to the issue of missing e-mail and which the Bush administration refuses to make public.

Best practice?
Also, in a briefing for congressional investigators last May, two White House lawyers said a review of the e-mail system had apparently found some days with a very small number of preserved e-mails and some days with no e-mails preserved at all, according to an account of the briefing by Waxman, chairman of the House Government Oversight and Reform Committee.

Regarding the disclosure that backup tapes had been recycled, the sworn declaration by Theresa Payton defended the White House's conduct by saying that recycling backup tapes was "consistent with industry best practices."

An e-mail technology expert disagreed.

"The best practice is to archive and store everything in a system that's searchable for e-mail and kept in an orderly and organized way," said Rurik Bradbury, vice president of strategy for Intermedia, which runs e-mail systems for a quarter of a million companies.

"In the financial industry and the accounting and law fields, there are federal and industry regulations which require them to keep all e-mail for a period of many years in a separate archive, and that archive has to be searchable," said Bradbury.

Requirements for industry and government are different, with stringent requirements for preservation of federal and presidential records. The Federal Records Act contains criminal penalties of up to three years in prison for destruction of government documents.

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