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The White House acknowledged in a court filing last night that it no longer has backup tapes of email from between March 1 and May 22, 2003, a period that includes the beginning of the Iraq war.

Yesterday’s filing (PDF) is the latest development in the ongoing White House emails lawsuit, in which two non-profits, Citizens for Responsibility and Ethics in Washington (CREW) and the National Security Archive (NSA), are suing to force the administration to recover any missing emails and institute a more effective email archiving system. (For the full story on the missing emails, check out our missing White House emails index.) The filing comes on the heels of several seemingly contradictory statements by administration officials about whether the allegedly missing emails are available on backup tapes. The court had asked the administration to clear up the confusion by clearly stating which backup tapes it does and does not have for the period between March 2003 and October 2005.

In their filing, administration officials claim they have 438 backup tapes for the period between May 23, 2003 and September 29, 2003. The White House stopped its foolish policy of recycling backup tapes in early October 2003, so all the backup tapes made after that date are supposedly preserved—some 60,000 of them. But even the emergency recovery backup tapes the White House does have are far from a fool-proof source for recovering missing emails. Any email that arrived and was deleted in between backups wouldn’t be preserved, since backup tapes take a digital “picture” of the data on a drive at a given time. And while that problem applies to all the backups, it’s especially concerning for the period between May 23 and September 29, 2003, for which the White House says it has 438 backup tapes. That is a low number of backup tapes per day for an entity as large as the Executive Office of the President, so backups may not have been made for all offices in the EOP on all days during that time. Even if backups were made every day for every component of the EOP, emails could still escape archiving if they were sent, received, and deleted in between backups.

All this doesn’t even begin to address the period between March 1 and May 22, for which we now know for certain that no backup tapes exist. In an email to the press earlier today, Meredith Fuchs, the general counsel for the National Security Archive, wrote:

It seems clear now that the e-mail backups are spotty and that there is no guarantee that there are backup tapes for all of EOP during the period of concern, March 2003-October 2005. There are no tapes from earlier than May 23, 2003. So, anything deleted from the EOP network prior to May 23, 2003 (particularly between March 2003 and may 23, 2003) is missing from the back-up tapes.

The plaintiffs are hoping that the judge will issue a ruling forcing the White House to copy email archive .pst files from all sorts of electronic sources, including hard drives and portable devices, in an attempt to insure no more emails go missing. The administration’s admission that its backup tape library is incomplete may be the justification the judge needs to do just that. A ruling is expected soon, but Fuchs told me she’s worried it will all be for naught. “Here we are two and a half years after they realized there was a problem and they are not in a position to say whether anything is missing or not,” Fuchs says. “I honestly think they are just trying to run out the clock, and then it’s a huge mess. Maybe the court’s going to act quickly and we’ll get better preservation. That’s what we’ll hope for at this point.”