Login HereSince you have been following the White House e-mail story, I thought you would be interested in the latest government filing. Striking that they failed to respond to the court's specific questions. Even though they are engaged in a major project trying to find hundreds of days worth of e-mail, they still don't scknowledge that they have a problem.
Moreover, there are some things that simply are not credible in Ms. Payton's declaration. For instance, she claims that EOP replaces 1/3 of their computers each year and so there are not likely to be any around from 2003-2005. Yet, she also says EOP has no record of which computers were replaced and when. How do they know they are not replacing the same 1/3 each year if there is no record.
Ms. Fuchs has a knack for the understatement when she muses that "there are some things that simply are not credible", both as to Theresa Payton's statements and the government's position as a whole. In a sick kind of way, you almost have to marvel at the intestinal fortitude of the Bushies to so ferociously and completely yank the chain of every court they come in contact with. Whatever the people and their Congress want, whatever the courts demand, the answer from the Bush Brigade is always "nope". The audacity of nope.
Here is the EOP (Government) Response pleading filed yesterday (3/21/08), and Here is the sworn declaration in support thereof filed by everybody's favorite technical guru, Theresa Payton.
As you will recall, CREW and NSA had applied for an Order To Show Cause, which was granted by Judge Facciola with a return deadline of yesterday. In a nutshell, the Administration has responded that it has destroyed most all of the hard drives that could contain the missing emails and therefore "it would be fruitless to undertake an e-mail recovery plan that the court proposed." I know you all are as shocked as I am at this turn of events (insert appropriate Condiliar Rice bewilderment phrase here).
It appears that there is some new information, or at least expansion of previous information and positions, in the EOP response pleading and, more importantly, the latest Declaration of Theresa Payton. I will be very interested to see what our local tech experts have to say about this, and how they, from a practical standpoint, think Judge Facciola and the Court should respond as to orders and sanctions. My quick take is that it sure was cavalier of Bushco to keep on destroying hard drives and computers with all this information on them when they have been on notice, both from the Presidential Records Act and Pat Fitzgerald's inquiries, that they had a legal duty to preserve evidence and records and that the emails were an important issue. But they willfully destroyed anyway.
Legal Disclaimer: As I was a little tough on my Bay State friends yesterday in Trash Talk, I wanted to honor them by posting the video to the song that kept running through my mind as I was drafting this. That would be "Hard Driving Man" by one of Beantown's best, The J. Geils Band. Unfortunately, I can find no authentic videos by J. Geils, probably because it is a pretty old song. I did find the attached video by a cover band that isn't too bad on sound and music, although the video quality is a tad shaky. J. Geils is one of the best live concert bands ever; Boston can be proud of these boys.
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As you can tell, I’m no techie nor legal tender, but your “Audacity
of Nope” needs to be copyrighted…. Wonderful…
beat me to it, baystate. when i read that i pictured the little trademark symbol.
‘audacity of nope’ trademark bmaz, 3/22/08.
all hail.
I think Judge Facciola and the Court should make them hand over all the hard drives, the servers and the backup tapes/files that the White House possesses. Just copy everything, and read it.
In my checkered past I administered a small network. People were always moving their computers, downloading unauthorized stuff, uploading stuff that was out of date . . . stuff. It was next to impossible to audit exactly who had what, where. Now there are much more sophisticated networking tools, however, I am willing to bet that there is some one, some where in the White House who knows how to put up a good firewall to defeat the audit tools, and that that person knows how to hide things behind the firewall. I’d also be willing to bet that that person makes mistakes from time to time, referencing stuff that was at one time behind the firewall. Remember how Emptywheel thought that Cheney, Addington, and a few others used a separate network to communicate? Find all the White House machines, copy them outright, and see whether the phantom network exists, and whether or not the firewall Freddy makes mistakes.
You know, that is kind of my thought too. I wonder if there isn’t some computer in there that isn’t used all that much and might have a whole bunch of stuff tucked away on the hard drive, maybe even hidden in those goofy data type files that Mad Dog, WO, Raynes etc. are always talking about (pst?) so that the current user doesn’t even know what he/she has. I still am a little stupified that none of this appears to have been addressed by Fitzgerald any more completely than it was. If I were him, the second I requested a bunch of email and was told “gee, we can’t find much in the way of that, it must be lost”, I think I would have been finding out exactly what it was that they did, in fact, have and making forensic copies and demanding preservation of all remaining evidence. In fairness, this is the White House and there are a lot of implications, and he may have made some actions that were discreet and that we just don’t know about; but still…..
Man, ew’s curse must be spreading. Every time I go out of town, something breaks on the missing emails. I just back from a week at “the happiest place on earth” and self-imposed partial news blackout. I have a couple of quick comments on the government’s latest:
1. As I understand it, the OCIO does not maintain a detailed historical log or other record tracking the precise user or location history of any given EOP computer workstation.
That’s either a lie or IT incompetence bordering on malfeasance. There are lots of COTS (government lingo for Commercial Off-The-Shelf) tools that allow sysadmins to do this. Asset management was a problem that was solved 20 years ago.
2. The OCIO is, however, able to remotely query computer workstations
currently in use on the EOP Network to detect technical characteristics from which it may infer generally how long a particular workstation has been available for use in the EOP, and whether it may have been used before October 2005. The query process is time consuming and labor intensive and even then the results of the query process will be
difficult to use to identify the user history of that particular computer workstation.
Any reasonably competent sysadmin should be able to script this in a day or two. If they want to hire me, I’ll take a couple of days vacation and handle it for them, but I’m pretty sure the MS guys they have could do it better and faster than I could.
Welcome home. And just exactly where is the “happiest place on earth”? Disneyland? I know McCain has been telling us it is Iraq, but I am betting that is not what you were referring to.
It seems Ms. Payton is answering to a higher authority in this second declaration, carefully remaining illustratively within bounds prescribed by her trial attorney Helen H. Hong. For example, Payton provides the gloss that an effort entailing “hundreds of hours of work by OCIO staff and management personnel”. If stockholders and retirees were driving this action and the barriers to following the records preservation laws for the presidency were instead, say, corporate disclaimers by Enron that it could not find the offshore entities’ books of accounting, the politics of the mesh would be such that the administration would show considerable alacrity in responding positively to a judge’s order that only ‘forensic’ copies would satisfy the rules for archiving the executive’s daily records. Doubtless, at this very moment, 4th branch is engaging in colloquies with the likes of pricewaterhouseCoopers, which sometimes serves as a rescue team for companies in international imbroglios. Both of the government documents provided Friday March 21, 2008 to the court of judge Facciola are carefully parsed evasions of some basic demands the judge asserted three days prior. I think CREW-NRA might appreciate how accurate their motion was by the government’s response at p7 which comes as close to one of this administration’s favorite ploys as it can by citing the circuit’s precedent in Dorfmann v. Boozer 1969; the government attempts to warn the judge about something that sounds a lot like whether CREW-NRA have standing to engage his service in this matter, or, in the response’s words …power to issue such preliminary injunctions “should be sparingly exercised,…
Communications and IT law are a lot more subtle than this scattered government response; I trust some readers who have visited here before to provide some of the tech insight, as well.
When will the courts (not the bought and paid for courts of course) call BULL SHIT and start jailing these prigs for contempt! The niceties of laws are a joke to them and like all bullies, must be forced to comply.
That would be DisneyWorld, which I enjoyed with my wife and younger children (and about a million other Texans on spring break).
Btw, you should tell CREW and the National Security Archives to suggest to the judge that making a forensic copy of the WH Exchange Servers would be a good idea.
More goodies from Theresa “Sgt. Schultz” Payton:
Although there may be exceptions, it is expected then, that the vast majority of computer workstations used during the relevant time period would have been replaced approximately every three years in connection with this refresh program.
Is there any content to that statement? I’ll send that one to Scott Adams (the Dilbert guy). He loves weasel words.
bmaz, I would like to concur with those above on “the audacity of nope”. That was a stroke of genius : )
It also says it all really. BushCo will continue to tell the rest of the planet to go Cheney themselves until someone holds them accountable by impeaching/prosecuting these people. IIRC from our earlier discussions, contempt of court is a relative slap on the wrist compared to the penalties for the underlying crimes. They will keep failing to produce any documents until someone goes to jail. Just another day for BushCo. They’ve kept it up for 7 years, and I still have yet to see any of them face any serious consequences for their conduct. It’s no wonder they continue the stupid, incompetent, it’s-just-too-damn-hard-to-do-my-job act…
Jeebus, most businesses do better than this. Where I work, IT comes through several times a year and checks the asset tags on the computers - if one gets moved without IT knowing about it beforehand, the sh*t comes down. They leave via IT and the company salvage program - and I’d bet that they don’t go out the door without the tags being checked carefully.
If the WH doesn’t do that, it’s something else for the incompetence (criminal type) list, especially since they’ve known for at least three years that this was an issue, and that the e-mails would be called for by one or another court.
Didn’t anyone in this administration print out and save emails, if only as a CYA? Where are they?
‘Twas most clever!
But, I’m thinking they were on the planes with the nukes out of North Dakota. They do not exist.
Here is a story about “Property of D.C. Office of Tax and Revenue” (servers) found next next to a commercial trash compactor in a Northwest Washington alley. There is fire in an ‘electrical closet’ in Cheney’s office. Unfortunately there are lots of ways for data to go ‘out the door’ besides being overwritten so many times it is indecipherable.
WO, MadDog did a nice post about Sherpa and Documentum a few days ago but I am not finding it; it addressed the issue of erasure logging, as well.
I remember reading back in the late DOS/Early Windows period (early 90s) about the Christian Coalition (One of the few nice things I read about them) and how they leased their computers and replaced them every 18 months. The difference was that they only had around 120 or so and they replaced them all at once, so everybody had the same hardware and software. Seems to me the need for replacements is much slower these days. I thought the 18-month period was pretty reasonable back then, but I brought a computer in 2001 and haven’t yet seen the need to replace it. Replace computers every three years? Seems kind of excessive.
And as a sailor, no frikkin’ way would we replace an item like a computer without extensive documentation! EVERYTHING had to be documented and explained if the documents didn’t match the equipment! I was the Admin RPPO for my ship about 1993-1995. I handled supplies of all kinds for the Yeomen & the Personnelmen. Old equipment must be recycled, new equipment must be purchased through extensive procedures. No way these guys just purchased expensive items like computers without specifications and receipts!
I had to chuckle at this sentence out of Payton’w declaration:
Yeah. Of course. Because you are always running the latest and greatest email management software (okay, maybe not eh?) and your security is so impressive (okay, not so much on that either, since the system was completely open to thousands of people for a long time). Really, these people are just like trained monkeys that spew out any BS that comes to mind with no compunction as to how ridiculous it appears.
Friar WO, I found the Sherpa and Documentum information MadDog posted a few days ago there. Mostly it works from Payton’s first declaration plus the ocio Email Archive Process Risk Mitigation discussion document ocio submitted archived on Waxman’s site dated October 2005; the MadDog post includes the links.
What would a court do with Al Capone, who’d repeatedly told the court he was still making and selling whiskey in 1929 (four years before it was legal)? That he acknowledged he’d been told to declare all his income and pay the appropriate tax, but admitted to the court he had done neither and then laughed at it?
Cite the president for contempt for failing to comply with its prior orders and conclude that the president had violated and was in continuing, knowing violation of the PRA. The district court knows that this DOJ will send him a horse’s head in bed before it enforces the rule of law over an edict from our papally infallible president. What else is it to do?
If it is to enforce the law, it’s only option seems to be to authorize some sort of special master and insert him or her into the bowels of the White House’s digital infrastructure to develop a detailed plan to ensure compliance with applicable statutes.
That creates a potential stand-off as constitutionally frought as the White House’s unconstitutional stone-walling of Congress’ investigative authority. That requires Congress’ support in a political pissing contest. How does Congress find the backbone to do that when it won’t enforce its own subpoenas?
It is funny, isn’t it? (Well, if you’re a masochist, I guess.) They have to keep losing everything so that they can update to save and protect everything better.
The thinking behind replacing one-third of your PC inventory every year is five-fold,
1. three years is a good length of time for useful life of a PC so your equipment is 1, 2 or 3 years old but not older.
2. three years fits well when financing with a lease
3. it allows you to keep only three images of the standard workstation
4. turnover project is one-third of your PC base not the whole inventory.
5. you don’t have to go back for funding authorization, it’s automatic.
That said, either a leasing company or IT would HAVE TO keep track of the serial number or asset tag in order to execute the strategy. I bet the White House IT actually does have the practice but it is astonishing that they assert no record of when the PCs were acquired, which is the other side of when the old ones were replaced.
On another note. Peter Wolf, the lead singer of J Geils Band and former radio jockey, hangs out around Boston. When there is a good band at the Orpheum, you’re sure to see him pull up in a nice, with a pretty girl on his arm and duck into the sounds truck to hang with the road crew for a few… minutes.
Helen Hong and her running buddy Tamra Moore maybe should learn some basic stuff:
In one of my cases, the FBI took a forensic image of 13 servers and heaven knows how many workstations. Outside contractor? My foot.
An understatement. This crowd shows a remarkable sophistication in computer skills when it comes to their own projects. They can tell within seconds whether I’m a registered RRRepublican and thus allowed entry into a “public” speech by el president or George Bush. Had there been a system inadequacy that their in-house staff could not fix, such as Karl not being able to read an earlier e-mail to Sara Taylor about an upcoming meeting with Jack Abramoff, they wouldn’t have hesitated a nanosecond to outsource the fix.
This crowd would also not have connected hundreds of computers and not been able to locate one used by a neocon who had fallen from the faith, and was “misusing” it by, oh, say copying communications onto a pen drive and slipping them to a Congressional staffer or the NY Times.
So, “a lie” would be my first thought.
“Replacement” seems irrelevent is the data on the drives should have been copied to comply with archival or records retention purposes. Companies, of course, replace computers all the time, but don’t lose the data on individual ones.
My reply to Ms. Hong would be a Cheneyish, “So?”
‘audacity of nope’—the mendacity of dopes.
What I want to know is this: when is the court going to prosecute the Bush Admin for destroying evidence? Isn’t that a fair charge against their behavior? And don’t we all have “legal standing” to press that charge?
I replace the hardware, sort of, when things wear out. That’s why I now have three computers, all of which actually run … and no two of them run under the same operating system. (Vintages: 1991 with a major upgrade in 1995, 2003, 2007; the 1997 machine died for real, but parts of it linger on.)
The judge has to hire a computer consultant to refute these liars
and then lock ‘em up for conspiracy…
Like how much? Say, for instance, as much as was spent on three senior AUSAs, other career level AUSA staff, a team of field level FBI and IRS agents, months of wiretapping and document acquisition, and who knows how much personal surveillance, expended over more than a year, to catch Eliot Spitzer shagging a call girl with his own money (a local New York misdemeanor offense not even within the Federal jurisdiction)? Would it really be that much??? Yeah, I guess we could never afford anything like that….
a preservation order would be a good idea at this point, for starters.
The judge would probably have a tough time making the WH hand over the hard drives. If he ordered them turned over, the WH would claim that this would disrupt the daily function of the executive branch, blah blah blah.
But what the judge could do, is order federal marshalls to find and copy each hard drive in the executive branch. literally send an IT guy and a marshall all around the white house and their offices, with one of those nice IT carts, picking up people’s computers, copying the hard drive, and then returning the comp.
probably would be a good idea to inventory and search the place, especially certain offices.
Dagnabbit, late to the party and all the cookies are gone. *g*
In any event, I’ll jump in here with a couple thoughts:
1. WO at # 5 - Ditto and double bullshit on Chief Idiot Officer Theresa Payton!
The White House Office of Administration is running Microsoft’s MOM product (Microsoft Operations Manager) which has as one of its zillion features, an ability to properly audit, track, inventory and characterize each and every single PC on the OA network down to the ittiest, bittiest hardware component.
For those not techies, you can peruse a high-level description of MOM (now renamed as Systems Center Operation Manager ’cause Microsoft was the butt of too many MOM jokes) here.
Chief Idiot Officer is either lying or totally technically incompetent to hold her position when she says:
The MOM product is totally automated and runs as a hands-free agent on client PCs to document all the hardware and software bits and bytes and automatically sends all that info back to the MOM server(s).
The only time consumed would be reading the fookin’ management reports that MOM also automatically generates.
Perhaps Chief Idiot Officer Theresa Payton was referring to how much time is consumed by rolling her eyes ’cause that’s the only physical activity she’d be doing.
2. Neil at # 22 - Yup, most computer leasing organizations use a 3 year lease, so this sounds like the typical PC lease deal. Many corporations lease rather than purchase their PCs because:
a. A “cost of money” decision that is entirely done by one’s Finance division.
b. Depreciation rules favor leasing versus buying if the “cost of money” ration is also in your favor.
c. Leasing means you don’t get stuck with old assets that you now own, and are now pretty much worthless.
The “erased server” and “erased backup tapes” excuses are BS. I work in information security, and if the court or Congress wants white-house e-mails, it is important to keep in mind copies of every email sent and received are stored on the source and destination workstations. If this were treated like an actual criminal case, every involved system should be seized by the authorities. And erased information on hard drives and tapes, and even overwritten information on hard drives and tapes, can be recovered.
I don’t know why law enforcement puts up with this situation - every system involved in these felonies should be seized as evidence immediately.
My thoughts exactly. Many offices budget to replace individual computers on a regular schedule, but the contents of the employee’s old computer are always transferred to the new model. Add to this the legal mandate of White House record retention and massive file loss can only be intentional.
That would work, and it really doesn’t take that long if the computer has a firewire or high speed usb ports.
increasingly absurd, makes the toenails curl. there are just so many things so very wrong with all this. but snafu, par for the 43 course.
the legal and techno input here are fascinating, and hopefully the good judge will finally do something with all your wisdom.
but i’m just wondering.
isn’t it a bit odd that this explanation is trotted out now, after all this time? i mean, if this is a standard procedure as payton implies, and it’s as old as, well, as old as the very emails the judge is after, then why are they just now offering this little tidbit up as one of their many, endless excuses?
this doesn’t just fail the laugh test, it descends into scary pathetic. sorta like that that jon lovitz character, tommy flannagan: “yeah, that’s the ticket.”
hard to tell if it’s just raw insolence, or possibly desperation.
Us techies call upon our resident Legal Eagles to translate this legalese please:
Is my reading of this correct in that Deadeye is again asserting that he is a 4th branch of government, and that any suit against the EOP cannot be inclusive of Deadeye’s OVP 4th branch?
I missed (or more likely just forgot, I blame it on Mickey and Friends… uh ok, did you know that the Rose and Crown in Epcot serves Guinness and Boddington’s on draft?) that they’re using MOM.
It’s increasingly clear that Payton’s job is to stay uninformed so that she call file these bs statements.
Agree with you, and #25.
#5 - “Asset Management is a problem that was solved 20 years ago” … on what planet? Desktop Asset management is still a bitch. Most organizations know what they have, some organizations know who has what, very few organizations can tell you they trail of who had what during any given period of time.
As I understand it EOP isn’t that huge a place. 1000 PCs? I don’t think you need the whole damn disk, you just need the PST file. Some people just don’t delete stuff. You have to think somebody who was cc’d on something regarding US Attorney situation, or god knows what else from Rove or whoever has a smoking gun. They can’t run a script to copy those back to a server? They are big files, but for gods sake this is doable.
Jeez if someone suspected a democrat of having porn on their computer this would be done in a heartbeat.
What a great analogy…
I’ve been seeing more and more companies move to a 4 or even 5 year refresh at least on desktops over the past couple of years (laptops are still have a shorter cycle). This mostly because Hardware Technology has been ahead of software technology.
You also have to take a look at what your users are doing. I have to think that EOP does not have a whole bunch of users running complex engineering applications, or querying huge databases (they just e-mail nsa for that stuff) that would push the envelope on software. They probably send e-mail and create the occasional word or powerpoint document.
Their egos could be driving them to a shorter refresh.
LOL! Say howdy to Minnie!
I think it is becoming clearer by the minute that a hiring call went out for the CIO (Chief Idiot Officer) position at the WH OA. The job description must’ve been something like this:
What you say is true…however, unless the government has changed the depreciation schedules (and they may have, I’m no tax expert but just a wee techie *g*), the 3 year lease squeezes the most out of things.
Yup! I’d imagine that most WH users could get by with “kiddie PCs” for the little amount of actual computing they do.
I’ll just say this:
Ask any government contractor who’s using computers paid for by the feds. They better be able to tell you exactly where those computers are and have been from the time they were delivered until they are disposed of. Is it too much to expect the freaking WH do as much?
Never late to the party; it’s always open here, even when mom’s on vacation and somebody’s feeding bmaz cookies and milk while we play.
The claims of this system’s features are so off the wall, they sound like outright lies or they describe a system intentionally archaic and unfit for what the taxpayer would regard as its intended purpose.
In which case, I should think the court should not only make forensic copies of disks on all identifiable machines, PDA’s etc., which might contain “presidential records”. It should also copy system settings and history, etc. Did the administrator(s), for example, turn off some of the standard features you describe? Is that why the White House can’t be more responsive. Is this data readily available and the White House is lying about it. If so, we are in uncharted territory even for Nixon.
One more waste of taxpayer funds in order to cover the Enron President’s trail.
In Cheney’s version of CEO Land, none of the rules apply to him. (A species not unknown in the private sector.)
The refresh rate for IT equipment probably meets two objectives: cover for “mislaying” data the administration wants lost to the public; the ego trip of having whatever they want because they want it.
As is abundantly clear, in this administration’s mismanagement of the entire federal government, it doesn’t consider the efficient use of taxpayer funds except when it wants to say “No”.
Yeah I do remember from my days at a major defense contractor (12 or so years ago so I may be out of date) you had to fill out a form every time GFE (Government Furnished Equipment) was moved. That didn’t stop us from losing track of lots of stuff (including tooling).
I also think GFE at a contractor is a different than government equipment at a Government office. The government puts alot more scrutiny on its contractors than it does on itself. (That may not be saying much).
I don’t think it is the classic “Fourth Branch” argument. I will have to plow through a couple of pleadings to be certain, but it looks like they are positing that CREW/NSA did not name the OVP as a party defendant and that the OVP is not part of the EOP, therefore the court does not have subject matter interest as to any hardware, data or whatever under the auspices of the OVP. Actually, I guess that is kind of a Fourth Branch argument isn’t it; that OVP is a separate entity from EOP? Kind of odd that they keep using what they have discovered as existing, and not existing, in relation to “red letter days” for the OVP as support for their argument that there is no reason to believe they have lost anything; and then turn face and argue that OVP isn’t part of this suit and is irrelevant.
Not just from this one part, but the whole response pleading is one of the bigger legal circle jerks I have seen in a while. Abbott and Costello could pretty much plug it into their “Who’s On First” routine. Jeebus. And I renew my question about the what the relative cost that the evidence gathering requested here would be compared to those for the massive Spitzer panty sniffing exercise.
What I see shaping into the comments could be a set of policies. In our private company workstation replacement policy is fairly freewheeling; we have 1000s of seats, and supplying a little more RAM in a pretty much identical replacement box is facile, and IT people often authorize it instantaneously. Suppose MZM assisted with the equipment recycling, but, as some commenters observe, there might be a few among the 2,500 seats that opted to keep their machines; or, eg, the political architect’s office might like to have 15 machines, mostly with continuity. Given the issue with portability of pst files and some people’s penchant for saving messages for reference purposes, the likely worry is that even with a 3-year recycle horizon some VIPs or stickInTheMuds declare their favorite machine will be exempt from the recycle. I read the cite about OVP two ways; one as suggested that no way is that office going to comply, as it is actually somewhere Bradbury and Coffin defined it as in between the executive and capitol hill; but also I read it as saying there was one email responsive to the court demand. I agree about the political egoes commentary, having worked in quasipolitical settings with nice computers for convenience everywhere and the latest tech toys. And I think we are perceiving Payton’s second declaration as even more revealing than the first one the CIO filed because the script the legal people are asking her to respond to is more awkward to complete authentically. So I see a delaying action now in the dealings with the court in the crewNra matter, but also a delay in the upgrade from the Notes environment to Exchange precisely because of the information-preservation shyness that is legion in this administration.
bmaz, did you see this Scott Horton post today:
John, I think you make a crucial point here!
Regardless of all the to-ing and fro-ing about the technical stuff, what is really going on here is equivalent in basketball to “holding the ball” until the clock expires.
The OA’s latest declaration seemingly says “We’re too busy doing our day jobs to worry about missing emails. Who cares? Move along, there’s nothing here to see.”
Since there is no penalty for failure wrt PRA, the defense’s object against this suit is to continually whine that nothing is wrong, nothing can be done if there is something wrong, and finally, you’re trying to make us do our job and we don’t want to.
It will be interesting to see how much patience is left with the Judge. Is more “deference” coming or will the Judge finally kick some Administration ass?
bmaz,
The original complaint was brought under the FRA:
This is an action under the Administrative Procedure Act (“APA”) and the Federal Records Act (“FRA”) challenging as contrary to law the defendants’ knowing failure to recover, restore and preserve millions of electronic communications created and/or received within the White House.
The VP’s immediate staff’s email is covered by the PRA (Presidential Records Act)
Maybe I’m missing something really simple here. Maybe not. Please help.
The goverment’s filings repeatedly invoke “EOP FRA components.” I have not seen the government, nor CREW, nor the NS Archive use this terminology before.
Am I to read that both the Government’s filing as well as the Payton declaration is only addressing EOP components that fall under the Federal Records Act?
The FRA is distinct and very different from the PRA. And aside from disqualifying OVP from the investigation (and a mention of the PRA twice in that regard) - no where else does PRA or “Presidential Records Act” appear.
Am I missing something here? Are they playing word games?
This is absolutely right.
The real crux of all this lies in the reasoning behind cancelling ECRMS:
1. The system would require l8 months to ingest the existing backlog of messages in the Microsoft Xchange system. We pointed out that that would still have Ieft time to complete before transition if it had worked out properly. Ms. Payton indicated that the normal types of delays associated with implementing such a system would have prevented completion in time for transition.
2. The system offered users no option to distinguish between Presidential record and political or personal materials. This would result in a large amount of inappropriate material being transferred to NARA intermixed with the Presidential records.
The first reason is total BS as the NARA folks pointed out. The second is the real reason and should be translated thusly:
The system offers users no option to scrub their email of evidence of federal crimes.
Yep that is what I kind of figured out as I was writing the preceding comment and why I changed course right in the middle of it. I should have erased and started over, but got lazy and just kind of changed in the middle. It is amazingly inconsistent and duplicitous the way they in one breath trot out 4th Branch and in the next rely on findings from the OVP search to say everything is hunky dory.
It does seem like a Fourth Branch argument. It’s hard to imagine anyone before 2001 arguing that the virtually “responsibility-free” vice presidency was anything but the appendix of the president and the EOP. The argument seems devoid of legal basis; it seems to be based purely on the personal power Cheney has over the Goopers and the government, which is a function of his power over the Shrub.
No competent president, cognizant of the Constitution and his need for authority to perform his job, would tolerate Cheney or his spurious claims. No court should accept his claims.
I hope the resident Legal Eagles chime in here, but from a layperson’s perspective, I’m guessing that the lawsuit could only be filed via claims against violation of the FRA.
It may be that the PRA offers no such standing for suit to a party like either CREW or the National Security Archive.
Now with the FRA, how is it exactly that the OVP is not part of the EOP? I know how Deadeye makes this argument, but what say the Judiciary?
Re item two, it’s not a problem unique to this administration, except insofar as this one has subordinated all governmental functions to partisan ones. Their unspoken argument is that everything they do is Party business, not presidential business; therefore, they need save nuthin’.
Without saying, I’m assuming that most are familiar with the differences between Presidential Records and Federal Records.
In the most general terms, messages that would be transmitted on WHO.EOP.GOV or OVP.EOP.GOV would be Presidential Records.
Federal Records are more the domain of the Agencies.
This memo from the Clinton era distinguishes between “Presidential Records” and “Federal Records”, quoting:
versus Federal Records defined (the memo notes a different memo from D Watkins and B Overton not included in CREWs scan, but which read, heh…)
Now we know that Cheney and OVP could have nothing to do with “Federal Records” since he considers himself and his office “not an Agency.”
But back to the original point, Government and Payton are talking Federal Records…. But Federal Records are not the ones that are missing… Presidential Records are missing.
Now that everyone’s chewed on this, I’ll comment on the part of the post *I* know something about: the music. What a surprise to find this song here! I was just playing this record the other day… the first two J. Geils albums were the best, and my impression is that a lot of the country missed them. Such a shame, especially when the songs the whole country did hear, once the band went commercial, were ones like “Freeze Frame” and “Centerfold” (yeech) — you’d have no idea from that stuff what a great, great band they were.
This tribute band’s a hoot, too — the singer’s definitely got a lot of the Wolf-isms down, and the harp player makes a valiant effort to play Magic Dick’s lines note for note — gotta give him credit for trying. And I might be imagining things, but there were moments during the “jam” that I think I recognized from the live version of this that came out on Full House (I never owned that one and haven’t heard it in over 30 years)…
Anyway, bmaz, thanks for the apology. I’m a Californian but as a native of Massachusetts I did wonder a bit about the trash-talking thing. I told myself it was just a sports thing (also not my area), but the acknowledgment was nice. OK, I’ll go back to lurking now…
That’s not entirely correct. The subject of the lawsuit are the “Federal Records” that are missing. That includes OMB, CEQ, and other components within the OA.
There are indeed “Presidential Records” missing, but they are not the subject of this lawsuit.
I say Amen!
I raised this exact point at FDL a few months ago on some thread, and for reasons that still puzzle me people rushed in to tell me to “read Jane Hamsher’s book” and I looked for it, and found something about her early days trying to break into the movie production business so I read the chapter on Amazon. It had nothing to do with the emails and Fitz’s turning tail.
The gist from people seemed to be that I was unfairly criticizing Pat Fitz–which wasn’t my intention at all. My intention was to fairly criticize Fitz, and criticize him significantly for not nailing the major people responsible for the Plame leak.
When I found out that Marcy had written a book, I went to the bookstore immediately and was glad to find a copy–it goes without saying if she writes a book–I want to get my hands on it. But I still felt Fitz came up way short.
I have simply never understood (call me dense and not capable of grasping nuances) how Pat Fitz let Luskey and anyone else deter him from doing a scintilla of the investigation he has done on Tony Rezko, Conrad Black, and the “EBay Art Scam selling rich people Fake Picassos and other works of art” Homeboys–the next Fitz Production in the ND Chicgao.
I’ll say it. Pat Fitz screwed up. He should have nailed Rove, Cheney and Bush. He turned tail and backed down. There should have been nothing in the way of stopping him from sending Rove to prison and he dropped the ball like a passive wussie on Rove and the emails that couuld have nailed them.
I want someone to show me how that didn’t happen. I hope to be enlightened.
I think someone pointed out on threads a month ago that Payton was uniquely qualified for that job — as she was in the CIO seat at Bank of America when they lost about 10 million customer records when a magnetic tape got lost (in the mail).
I’m sure the White House just knew they had to have her.
Thanks for the clarification.
So we’re not even “on the trail” of e-mail sent (or lost) by anyone within WHO (White House Office) nor OVP since, by definition, they do not create Federal Records - they create only Presidential Records.
We might be able to establish what OA does with its records (since theoretically they could create Federal Records) and then draw a construct on what might have happened in WHO, but, again, we’re not even talking about e-mail from Rove and the WH staff. We’re talking about email from career staff in OA, etc.
…and the requisite hard drives that might have contained “Federal Records.”
Also no commentary contained in the Govt or Payton declaration on hard drives that might have contained Presidential Records at one time since that’s not the subject of the case, right? We’re not one step closer to understanding what happened those drives, right?
Well, since they are all intermingled, figuring out the answer for the “Federal Records” would answer the questions about “Presidential Records”. It’s up to Waxman to track down the answers for the “Presidential Records”.
Thank you.
So, final question. Here’s Payton:
So here we’re only talking about “computer workstations used by EOP Federal Records Act (FRA) component employees” and we learn that hard drives formerly assigned to FRA component employees are destroyed.
However, no mention of PRA component employees hard drives. For all we know, the PRA component employees hard drives could be sitting on a shelf behind Ms. Payton’s desk.
And, as far as I’m concerned, the whole spat, natch, the whole issue, is over preservation of the Pres. records.
Bmaz, did you see for EOP FRA components would require OCIO to outsource the project to a third-party vendor.
2d Decl. ¶ 7. That process would likely trigger a potentially lengthy and costly procurement
process.1 See id. ¶ 7.”>this from dday at Digby’s place? Looks like people are figuring out that the “North Fork Bank SAR” story is toast, like we said here the first day.
I think people said EW’s book, Pete. Anatomy of Deceit.
thought off the wall:
Could the judge cite Peyton for contempt in not producing the EOP emails and throw her in jail until they are produced?
Should have finished reading your comment, Pete. Maybe someday Patrick Fitzgerald will be called to testify before congress by someone curious about the same issues? I hope this whole sorry administration won’t be forgotten by the 111th congress.
IANAL, but I’m going to take a stab at FRA vs PRA thingees.
If one were to assume for the sake of argument that certainly the NARA is an “agency” as defined by the FRA, and further that the OA is also an “agency” as defined by the FRA, then one could bring a lawsuit against both the NARA and OA that they are missing “records” that they are custodians of.
The OA is a “custodian” of the EOP’s emails, regardless of whether the topics of those emails are Federal or Presidential records.
In fact, one could argue that it is unknown whether the topics of the missing emails were communications with other Federal agencies (definitely covered under FRA) or whether they were Presidential communications because said records/emails are missing, so we don’t know what topics were covered.
If one viewed the lawsuit in this way, it would seem to be a “backdoor” or a “bootstrap” way of validly sueing for redress under FRA (and btw, the PRA apparently offers no such mechanism for redress).
The defendants cannot argue that the missing emails were only PRA communications because of the very fact that the topics of the missing emails are unknown.
In any event, as “custodians” of these missing records, and as “agencies” under FRA, both the NARA and OA are legally liable for their care and custody.
Kinda of neat way that CREW and NS Archives found to worm their way into the EOP’s doings. And it seems that the Judge is buying their arguments thusfar.
Wow, terrible linkage. Try this one.
Someone said Jane’s book but I think they just mistyped or got confused–that set me looking for it and I was still glad to find it. I’m still reading EW’s book, and I might have missed some more recent comments by EW or others here but I still am mystified as to why Fitz didn’t drive Rove and Cheney into the ground. I would have done my damndest. I haven’t found anything to explain it to me, no matter how many times Rove kept going back to the Grand Jury and Luskie waited outside the door.
By the way the bullshit where Bush and Cheney were interviewed in the White House was a joke. There very human asses should have been dragged into a grand jury room like anyone else.
A lot brighter people have been beat up in front of grand juries.
I want to remind you what Mukasey has been sitting on.
He’s been sitting on the interviews Fitz did of Cheney and Bush in the Plame investigation among scores of other items. Why don’t we have it in our hands? We sure as hell paid for it and all they’re salaries.
“Camel’s nose” they call it, I think.
Wasn’t the WH earlier trying to argue that OA was not an Agency, or was that just for FOIA purposes?
Hey; welcome and feel free to join in the fun here anytime. I first got Full House on an 8 track tape probably in 1973 or so, and have been way into J. Geils ever since. I still think that Full House, along with Get Yer Ya Yas out by the Stones, may be the two best live albums ever. As to the Trash Talk, heh, yeah we get after each other pretty good sometimes, but it is among friends and in good fun.
Methinks you are correct.
All in all, bmaz’s references to Abbott and Costello are more and more apropos. Who’s on first, indeed!
What type casts a political agenda in the Spitzer case for me is this simple logic. Even if the conspiracy theorists (and I’m proud to be among them here that Garcia brought some of his illegal manuevers from DHS ICE into SDNY) let’s say that the SARS/FinCen mechanism ID’d Spitzer. As Bmaz and many have pointed out, this became the ID of a guy in search of a crime.
I find articles like U.S. Defends Tough Tactics on Spitzer in Friday’s NYT on the government’s rationale in this case simply not credible. Boyd M. Johnson III, who runs the Public Corruption Unit began this investigation in 2006. He has had ten times more time than anyone needs to realize he has no criminal case against Spitzer. People singing Mann Act aren’t in contact with reality. It’s not prosecuted absent a predator or a slavery/forced prostitution ring.
People who say the Public Corruption unit SDNY on the Spitzer case are operating independently without Mukasey and ten times more people than you ever want to realize are being paid at Main Justice aren’t all over this case have the same lack of contact with reality.
Johnson hasn’t twitched a finger without direction from Main Justice in this case. I think they look consumately stupid in the waste of resources and the ratio of DOJ and FBI personnel in Manhatten who are johns far exceeds the number of escort services who are prosecuted by state or federal law enforcement in SDNY or any other area of the U.S.
Grand jury testimony is super ultra secret, I thought. Seemed to me like Fitz tried his best to get Rove, knew he was lying, but couldn’t prove it. He wasn’t going to take his to court on a maybe. Lawyers?