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Hearing weighed for McCaleb's e-mail destruction
Wednesday, May 11, 2005

Neal McCaleb on the day he announced his resignation as assistant secretary for Indian affairs. November 21, 2002.

Neal McCaleb resigned as head of the Bureau of Indian Affairs more than two years ago but his past may come back to haunt him in the Cobell v. Norton trust fund lawsuit.

When he announced his retirement on November 21, 2002, McCaleb blamed the "contentious" nature of the lawsuit. "Unfortunately, the litigation has taken first priority in too many activities, thus distracting attention from the other important goals that could provide more long-term benefits for Indian Country," he said in a statement.

McCaleb left that environment behind when he resigned a month later. But with information technology the current focus of the case, he may once again be drawn back into the debate for his role in destroying e-mail documents in potential violation of court orders.

U.S. District Judge Royce Lamberth raised the matter last week during the evidentiary hearing into the Interior Department's computer systems. He said he still hadn't decided whether to hold McCaleb in contempt for destroying trust records.

"He testified nobody ever told him about any of those things, so he never knew that he couldn't erase his e-mail," Lamberth said on May 3. "He testified. The Secretary testified to the contrary, that she had told him, and he said she was lying."

To clear up the apparent disconnect, Lamberth suggested he might have to hold yet another evidentiary hearing. "He shortly after that resigned, so I haven't taken any further action yet," the judge said.

McCaleb's e-mail incident first came to light only a month before he announced his resignation and was a major factor in his decision to leave. In October 2002, government lawyers disclosed that he erased his electronic communications for a period of 10 months despite court orders and internal policy to the contrary.

McCaleb chalked it up to a "misunderstanding" and said his executive assistant at the time was supposed to be keeping copies of his correspondence, which included figures on the amounts of money going in and out of Indian trust fund accounts.

But in a court deposition, the assistant refuted McCaleb's characterization of events. And he later testified that he was never specifically instructed to preserve his e-mails or, for that matter, about his duties as a trustee to individual Indians and tribal governments.

A court investigator later accused McCaleb of lying about the affair. "The special master's investigation revealed that, not only did the former Assistant Secretary-Indian Affairs delete individual Indian trust records in derogation of a myriad of legal and trust principles but, when his actions came to light, fabricated a story that attempted to blame others for his misdeeds," Alan Balaran, who has since left the case, wrote in a January 2003 report.

By then, as Lamberth noted last week, McCaleb was already gone from the department. However, whether he can still be held accountable is open for debate.

The incident was raised in the context of the potential destruction of information related to the "penetration" tests of DOI's computer systems. Lamberth is concerned that Internet Security Systems (http://www.iss.net), a firm hired to test the systems, may be destroying documents with Interior's knowledge and acquiescence.

The Cobell plaintiffs have sought an order to prevent that from happening. But John Warshawsky, a Department of Justice lawyer, said one wasn't necessary because ISS documents are not trust documents.

"The bottom line," he said, "is that penetration testing documents are not documents relating to Indian money trust funds or individual Indian trust assets."

The order may or not be an issue because ISS employees who conducted the tests appear to have preserved vital information, including drafts of their reports to the Interior Department's Inspector General.

"You really are the perfect pack rat, aren't you?" Lamberth told Scott Miles, an ISS employee who testified that he was able to hack into the Bureau of Land Management and gain access to Indian trust data. "I like that. It makes him a great resource."

Special Report:
OF THE SPECIAL MASTER REGARDING THE DELETION OF INDIVIDUAL INDIAN TRUST INFORMATION BY FORMER ASSISTANT SECRETARY-INDIAN AFFAIRS NEAL MCCALEB (January 24, 2003)

Relevant Documents:
Dan DuBray E-mail to Aurene Martin | Jean Maybee Notes | Neal McCaleb Draft Declaration (October 19, 2002) | Neal McCaleb Final Declaration (November 19, 2002)

Relevant Links:
Indian Trust, Department of Interior - http://www.doi.gov/indiantrust
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm
Trust Reform, NCAI - http://www.ncai.org/main/pages/
issues/other_issues/trust_reform.asp