Clash Over White House Tapes Speeds Toward a Court Ruling

Two days before President Bush took office, a researcher discovered that the new Administration planned to erase computer backup tapes containing thousands of messages sent by “electronic mail” throughout the White House of departing President Ronald Reagan.

The report alarmed groups representing historians and reporters, who for decades have been able to go to the National Archives and plow through memos, letters and other records of past Administrations, gaining valuable insight into how policies were formed and carried out.

The groups knew that some E-mail tapes already had been shown to carry incriminating messages between former National Security Adviser John M. Poindexter and his aide, Oliver L. North, in the Iran-Contra scandal.

Fearing that much more treasure was about to vanish in this new electronic age, one group immediately filed suit and won a temporary order preserving many tapes. That ignited a far-reaching clash between researchers and the Bush Administration that is finally coming to a head Friday in federal court.

At stake is not only past tapes but present ones, which are being regularly erased before unknown numbers of messages can be printed out and saved for the National Archives.

“We are probably losing fascinating snatches of things that provide illumination and point you in new directions,” laments Robert J. Donovan, who has written histories of former Presidents Harry S. Truman, Dwight D. Eisenhower and John F. Kennedy.

BACKGROUND: The Federal Records Act requires that “all books, papers, maps, photographs, machine readable materials” dealing with government “policies, decisions, procedures, operations” be preserved for the National Archives.

In 1978, Congress made clear that the law applied to presidential records, including “electronic or mechanical recordations.” The move blocked an attempt by former President Richard M. Nixon to control--and theoretically destroy--all tapes of conversations between him and his staff that had led to his resignation in the Watergate scandal.

When the Iran-Contra affair broke in 1987, investigators searched White House computer tapes for messages involving Poindexter, North and other White House aides. The aides thought they had erased the messages--but many were preserved on backup memory tapes.

One message that has been made public concerned a 1986 meeting at which North later admitted he lied to a group of congressmen about his support of the Nicaraguan Contras. A Poindexter aide reported by E-mail that “session was success,” with North saying that he “gave no military advice” to the Contras. Poindexter forwarded the note to North, attaching an E-mail message of his own that said: “Well done.”

ISSUES: “The Administration would call those two words a mere telephone message slip,” and not a record that must be preserved, says Thomas Blanton, head of the National Security Archive, a research center that filed the pending suit. “But a historian would say those words give the whole picture of suborning testimony to Congress,” he added.

The plaintiffs contend that the records preservation law clearly covers E-mail and that the head archivist has sole authority to determine which White House messages should be kept for posterity.

Justice Department attorneys respond that a White House manual--leaving it to aides to decide which E-mail should be printed out for safekeeping--is sufficient to comply with the law. Most of the messages are personal or trivial anyway, the attorneys contend.

The plaintiffs have asked U.S. District Judge Charles Richey to order the Administration to turn over a large sampling of E-mail from the Reagan years so he can determine whether it--and, by extension, much subsequent E-mail--should be preserved. Richey is expected to rule on the request Friday.