Watchdog groups press Obama DOJ on Bush e-mails

The National Security Archive and the watchdog group Citizens for Responsibility and Ethics in Washington were disappointed when, just a day after the inauguration, the government moved for dismissal of long-running litigation over millions of lost Bush-era e-mails. In a response brief filed Friday, the Archive blasted White House claims that recovery was under control as based on "untested scraps of evidence," and urged a federal court to compel archivists to request the intervention of the Attorney General under the Federal Records Act. The watchdog groups filed suit under the FRA after learning that problems with the White House e-mail journaling system had led to the loss of some 5 million messages between 2003 and 2005. The law makes the preservation of all such official communications mandatory. In January, the government argued that suit had been rendered moot thanks to the preservation of backup tapes that will permit the eventual restoration of almost all the lost data. Not good enough, say lawyers for the watchdog groups, because the restoration process is still ungoing, and the risk of the loss of records remains. The law, their brief argues, is clear about the required remedy: the White House and National Archives must call on the Attorney General to step in to ensure compliance with the statute. Moreover, they claim that the evidence provided to establish that the danger of deletion has passed is inadequate—and that the attempt to establish mootness at this late date amounts to little more than a bit of legal slight of hand, because it asks the court to preemptively resolve the very question that would be at issue in any decision on the merits of the case.