The White House has acknowledged recycling its backup computer tapes of e-mail before October 2003, raising the possibility that many electronic messages — including those pertaining to the CIA leak case — have been taped over and are gone forever.
The disclosure came minutes before midnight Tuesday under a court-ordered deadline that forced the White House to reveal information it has previously refused to provide.
Among the e-mails that could be lost are messages swapped by any White House officials involved in discussions about leaking the identity of CIA officer Valerie Plame.
Before October 2003, the White House recycled its backup tapes "consistent with industry best practices," according to a sworn statement by a White House aide.
Backup tapes are the last line of defense for saving electronic records.
Separately, the statement reveals the extent to which the White House is apparently unable to answer how many e-mails are missing from White House servers.
The White House "does not know if any e-mails were not properly preserved in the archiving process," said the statement by Theresa Payton, chief information officer for the White House Office of Administration. "We are continuing our efforts," said Payton, whose staff is responsible for the White House e-mail system.
If the e-mails were not saved, the White House might have violated two laws requiring preservation of documents that fall into the categories of federal records or presidential records.
White House spokesman Tony Fratto said that "there is no basis to say that the White House has destroyed any evidence or engaged in any misconduct."
Fratto said that despite the recycling, some tapes should contain e-mails from before October 2003.
"Of course the disaster recovery backup tapes were, at one time, recycled," said Fratto. "However, since October 2003, the Office of Administration has retained and preserved its disaster recovery tapes. The disaster recovery system is set up to regularly back up everything on the network for the Executive Office of the president at the time of each backup."
The recycling of backup tapes by the Bush White House represents a reversal in policy from the final year of the Clinton administration. The Clinton White House halted recycling of backup tapes in March 2000, when it was discovered that some e-mail from the office of Vice President Al Gore was not preserved.
The seven-page document filed in U.S. District Court says the White House in October 2003 "began preserving and storing all backup tapes and continues to do so." Payton said this means that e-mails sent or received in the 2003-2005 time period should be contained on existing backup tapes.
The period of 2003 and 2005 is the time frame at issue in lawsuits seeking information about possibly millions of missing e-mails at the Bush White House.
Payton's sworn statement was filed in response to a federal court order last week in lawsuits by two private groups, Citizens for Responsibility and Ethics in Washington and the National Security Archive.
The lawsuits allege that millions of e-mails are missing from White House servers. The recycling of backup tapes leaves doubt whether any missing e-mails will be recoverable.
"If the backup tapes have been erased or taped over or recycled, it's hard to imagine where we will find copies of many lost e-mails," said Meredith Fuchs, general counsel to the National Security Archive, said in an interview Wednesday.
"It appears that the White House has now destroyed the evidence of its misconduct," said Anne Weismann, the chief counsel for CREW, the other private group that sued.
"The White House declaration raises more questions than it answers, specifically the likelihood that for a very significant period of time — March 2003 to October 2003 — the White House recycled its backup tapes," said Weismann.
"As a result there may be no way to recover the missing e-mails from a period in which the U.S. decided to go to war with Iraq, White House officials leaked the identity of Valerie Plame and the Justice Department started a criminal investigation of the White House," the lawyer said.
The sworn statement by Payton did not say how early in the Bush administration the recycling of backup computer tapes began. The statement does not say why the White House stopped recycling backup tapes in October 2003.
Two years ago, Special Counsel Patrick Fitzgerald first disclosed a White House e-mail problem.
On Wednesday, Fratto, the White House spokesman, said, "We do not know that there is actually a problem" with missing e-mail. The White House to date has been unable to replicate the findings of an unidentified former employee who concluded that certain EOP components were missing e-mails on certain dates in the 2003-2005 time period, Payton's sworn statement says.
Tom Blanton, director of the National Security Archive, asked "What has the White House been doing for two years? Two years after the special prosecutor publicly identified the problem, the White House still doesn't seem to have a clue."