By: Jason Leopold, Vice News, 2/25/16
Former US Attorney General Eric Holder is a huge fan of NBA hall of famer Kareem Abdul-Jabbar.
So much so that Holder used Abdul-Jabbar’s birth name, Lew Alcindor, as an alias for his official Department of Justice (DOJ) email account, raising more questions about the email practices of top Obama administration officials, and about the ability of US government agencies to track down correspondence in response to Freedom of Information Act (FOIA) requests.
The Lew Alcindor revelation was made in a February 16 letter that DOJ sent to VICE News and Ryan Shapiro, a historian and doctoral candidate at the Massachusetts Institute of Technology who specializes in national security research.
“For your information,” the letter said, “e-mails in the enclosed documents which use the account name ‘Lew Alcindor’ denote e-mails to or from former Attorney General Holder.”
The letter was part of about 500 pages of heavily redacted emails and other documents given to VICE News and Shapiro in response to a FOIA lawsuit filed in late 2014. The documents show that Justice Department officials sent emails to Lew Alcindor regarding calls from lawmakers for a federal investigation into claims that CIA personnel spied on Senate staffers while the Senate was drafting a report about the CIA’s torture program. Holder’s name does not appear anywhere in his Lew Alcindor email account.
The responses from Lew Alcindor, notably one about Senator Ron Wyden’s demand that the DOJ “reopen” an investigation into the CIA after the agency’s own internal watchdog upheld the spying allegations, are virtually all redacted. DOJ declined to launch a criminal probe into the matter, claiming there was insufficient evidence. (Earlier this month, Wyden confronted CIA Director John Brennan about the spying incident and tried to get him to acknowledge it was improper and would not happen again.)
Other documents center around messages sent to the DOJ by David Grannis, the former staff director of the Senate Intelligence Committee, about authorizing Senate staffers to return to a secure facility leased by the CIA so they could finish fact-checking and writing the torture report. Grannis brings up the DOJ’s subsequent “odd” request, communicated to Grannis through the CIA, that Senate staffers “receive a security refresher beforehand, highlighting especially the computer system’s audit feature.”
“Can you cast any light on what DOJ personnel meant by this, or why they said it? Seems odd for DOJ to get involved in the security procedures between the Agency and the Committee, so I wanted to make sure we understood DOJ’s recommendation,” Grannis wrote, suggesting that the DOJ gave credence to CIA claims that Senate staffers inappropriately gained access to a coveted internal CIA document that sparked CIA spying.
There are vast swaths of redacting black ink throughout the emails — including DOJ’s response to Grannis.
Last March, a week after the New York Times revealed that Democratic presidential candidate Hillary Clinton exclusively used a private email account to conduct official business while she was Secretary of State, Holder’s chief spokesman, Brian Fallon, disclosed that his boss had used three different aliases — all of which had a usdoj.gov domain — during his tenure as the nation’s top law enforcement official.
Fallon made the disclosure less than a week before he announced that he would serve as lead press secretary for Clinton’s presidential campaign. Fallon identified two of the email accounts Holder previously used, but they weren’t the names of any known living person. Fallon declined to identify Holder’s third email alias other than to say that it was “based” on an athlete. (Before leaving the DOJ in April 2015, Holder had still been using the Lew Alcindor email address.)
Fallon, who exchanged many of the emails in the cache with Lew Alcindor, explained the rationale for the practice: to combat spam and to avoid being inundated with correspondence from the public.
A Justice Department spokesman told VICE News there was nothing improper or legally questionable about Holder using the identity of a living person for his email account. Nor was it in any way an attempt, he said, to thwart FOIA or the Federal Records Act, which requires government agencies to preserve federal records. DOJ officials who handle FOIA requests and congressional inquiries, the spokesman said, knew of Holder’s email aliases.
Yet DOJ and many other federal agencies, the State Department and FBI in particular, have been harshly criticized (including by VICE News) for poorly performing searches meant to capture emails from officials who use their true identities. Experts in FOIA law said Holder’s Lew Alcindor identity calls into question the ability of FOIA staff to locate all emails from an official who uses an alias.
Laura Sheehan, a spokeswoman for the National Archives and Records Administration (NARA), said the email alias practice appears to be fairly common among agency heads in large government departments.
“There is no prohibition against it, so long as they can be linked to the actual name,” Sheehan said.
A few years ago, the former head of the Environmental Protection Agency (EPA), Lisa Jackson, came under fire from conservative lawmakers and open government advocates — and was accused of attempting to thwart open records requests and federal records retention laws — after it was revealed that she used the email alias Richard Windsor when conducting official business. An inspector general review into the practice concluded that EPA lacks “internal controls to ensure the identification and preservation of records when using private and alias email accounts for conducting government business.” The disclosure lead NARA to issue policy guidance to the heads of federal agencies on email management, which say:
Agencies must ensure that the name of an individual employee is linked with each account in order to comply with FOIA, discovery, and the requirement to transfer permanent email records… to NARA. In most cases, this requires the full name or readily identifiable nickname that is maintained on a distribution list.
In a Q&A with the Washington Post shortly thereafter, NARA’s chief records officer, Paul Wester Jr., said that while there is no prohibition against using email aliases, the practice makes it difficult to locate and turn over records in response to FOIA requests, and NARA does not condone it.
“We’ve been pretty clear with agencies it is not a good practice to follow, and we don’t recommend that they authorize the use of personal e-mail accounts or alias accounts to conduct their business,” Wester said. “There’s a higher probability the emails wouldn’t be documented properly with their broader record keeping systems.”
Anne Weismann, the executive director of good government group Campaign for Accountability, and an expert on FOIA, told VICE News that even though the DOJ has acknowledged that Holder used an email alias, and that DOJ’s FOIA staff is aware, “it still raises a question about whether the agency is properly documenting its work and preserving records under the Federal Records Act.”
“Will members of the public reviewing the records of Eric Holder’s tenure as [attorney general] understand emails purporting to be from ‘Lew Alcindor’ are actually from him?” Weismann said. “An investigation clearly is warranted.”
Several years ago, Weismann inquired with the DOJ about the number of email accounts associated with Holder and his deputies. The DOJ responded to her inquiry by saying Holder’s email address does not use his name.
“This protects his privacy and security and allows him to conduct official business efficiently via e-mail,” DOJ attorney Vanessa Brinkman wrote in a September 30, 2013 letter addressed to Weismann. (Brinkmann also signed the February 16 letter turned over to VICE News and Shapiro.)
Holder, who returned to his old law firm Covington after he left the DOJ, did not return a call for comment.
A DOJ spokesman said Attorney General Loretta Lynch uses an official DOJ email address to conduct government business, but “to help guard against security risks, the Attorney General does not use her given name in the handle of her email address.”
Douglas Cox, a law professor with the City University of New York School of Law whose research focuses on the intersection of information policy and national security, said he believes there is a “legitimate problem” with alias emails, “especially in the way agencies appear to be administering them.”
“Agencies are unnecessarily creating risks of undermining FOIA responses, subpoena responses, and discovery disclosures,” Cox said. “I also think alias emails are inconsistent with the letter and spirit of the federal record keeping laws.”
Cox said he understands why Holder would want to avoid being spammed and receiving unsolicited emails from the public, “but I don’t see what the justification would be for not configuring [firstname.lastname@example.org] so [Holder’s] actual name appears in internal emails.”
“Is there some reason why the identity of the sender has to be masked internally? And if so, then they must be tightly controlling who knows the alias, which in turn invites, if not guarantees, FOIA and record keeping problems,” Cox said. “When you consider the possibility, if not likelihood based on what we know, that alias emails are common practice among high-ranking officials across dozens of agencies, the risk of undermining FOIA searches and discovery requests within the various agencies approaches certainty.”
Meanwhile, Abdul-Jabbar, who legally changed his name in 1971, was unaware that Holder used his birth name for his official government email account. A spokeswoman for the former Los Angeles Lakers great declined to comment about the issue. Last year, Abdul-Jabbar interviewed Holder for a documentary he is producing on race. And in an interview with Politico around the same time, Holder said he idolized Abdul-Jabbar growing up and that the basketball legend had become a friend.