The Experience of Dan Rather in 2004
Is Also Part of "A Street Fight for the
Presidency of These United States."
All
of this (from GOPBIAS.COM), and the Israeli connection details which
follow, are what The New York Times Company (Boston Globe), The
Washington Post Company (Newsweek),
[EXPOSURE OF FLAWED REPORT ON DAN RATHER IS NEXT SEGMENT]
Newhouse Advance Publications (The New Yorker, Parade, Vanity Fair,
which now has a puff piece on John Donald Imus Jr., of Jewish heritage,
the man who deserted his first wife and four daughters and, with a
chokehold on that Washington/New York/Boston media corridor is THE ONE
PERSON most responsible for that derelict duo IN OUR WHITE HOUSE!),
General Electric (NBC), Disney (ABC), Viacom (CBS), CNN/PBS/NPR should
be talking/writing about, but are not because of their mandatory pro-Israel, agenda-driven news management:
"I
strongly disagree with those who say his thirty-year-old military
service record doesn't matter any more. It has been a long time. But if
President Bush's service doesn't matter, then the suffering John McCain
endured doesn't matter. The service of Chuck Hagel, John Kerry, Bob
Kerry, Sam Johnson, Daniel Inouye, Bob Dole, George H. W. Bush, and
hundreds of thousands of others doesn't matter, either. The lost lives
honored on the Vietnam War Memorial doesn't matter. The on going loss
suffered by Max Cleland - the former senator from Georgia who lost
three limbs in Vietnam - doesn't matter.
If military service doesn't matter, then the brave men and women who lost their lives in Iraq and Afghanistan don't matter.
I
am old-fashioned enough to believe it all matters. The way individuals
conduct themselves when serving their nation is an insight into their
character, their commitment to the country, and their courage.
Sometimes that means having the courage to refuse to fight; sometimes
it means fighting a war against the war. Sometimes it means just
showing up. All those choices are reflections of what's inside people,
what they think is important, who they are at their core. And I can't
imagine that there is anything more important for us to know about the
person we elect as president.
And if George W. Bush did not
serve out his time according to the agreement that he signed, did not
offer this country the service intended by the training that he took
advantage of, then he has been dissembling, covering up, and just plain
lying throughout his public life. And that matters." - Mary Mapes Truth
and Duty - The Press, The President, and the Privilege of Power, page
40.
"There is nothing harder than doing the right thing." - Mary Mapes page 271.
The Flawed Report on Dan Rather
By
James C. Goodale (Adjunct Professor at Fordham Law School, is the
former Vice Chairman and General Counsel of The New York Times and
represented the newspaper in the Pentagon Papers case. He is
Host/Producer of the TV program The Digital Age. An earlier version of
the article in this issue appeared in the New York Law Journal. (April
2005)
Report of the Independent Review Panel on the September
8, 2004 60 Minutes Wednesday Segment "For the Record" Concerning
President Bush's Texas Air National Guard Service - by Dick Thornburgh and Louis D. Boccardi - January 5, 2005, 224 pp.
James C. Goodale responds -
"A
few weeks ago former Attorney General Richard Thornburgh and Louis
Boccardi, former head of the Associated Press, released their report on
Dan Rather's use of allegedly forged Texas Air National Guard (ANG)
documents covering President George W. Bush's military service. The
report, as is well known, excoriated CBS for the use of these documents
on its 60 Minutes Wednesday program on September 8, 2004. It is,
however, a flawed report. It should not be uncritically accepted, as it
has been by the press and by television commentators.
The report
concluded that CBS failed to hire appropriate experts to clearly verify
its statements and did not establish a "chain of custody" for the
documents. CBS, according to the report, rushed to judgment on the
basis of inadequate evidence, did not promptly acknowledge flaws in its
program, and broadcast a false and misleading report.
CBS did
rush to make inadequately verified allegations public and it was slow
in responding to criticism. The report's conclusions on the other
points are not, however, persuasive. Surprisingly, the panel was unable
to conclude whether the documents are forgeries or not. If the
documents are not forgeries, what is the reason for the report? The
answer is: to criticize the newsgathering practices of CBS, whether the
documents are authentic or not. As such, the report is less than fully
credible.
Lost in the commotion over the authenticity of the
documents is that the underlying facts of Rather's 60 Minutes report
are substantially true. Bush did not take the physical exam required of
all pilots; his superiors gave him the benefit of any doubt; he did
receive special treatment and Lieutenant Colonel Jerry Killian, Bush's
commanding officer, was unhappy with the loss of ANG's investment in
him when Bush informed Killian he was leaving for Alabama. Before the
broadcast, Mary Mapes, the CBS producer of the program, confirmed the
facts in the documents with retired Major General Bobby Hodges, who had
been Killian's superior in the ANG. Later Hodges told the panel he did
not think the documents were authentic, but did not disagree that the
facts were substantially correct.
Following the broadcast,
Marian Carr Knox, who was Killian's secretary at the time, confirmed
the facts of the broadcast, saying, "There's no doubt in my mind that
[the] information is correct." When the panel cross-examined Knox she
seemed less certain of what she had told Rather but she did not
contradict any of the broadcast. Since the broadcast, no one has come
forward to say the program was untruthful.
--------------------------------------------------------------------------------
The
panel attacks the four experts CBS hired to authenticate the documents.
One of the four, James Pierce, concluded that the signatures on the
documents were authentic and that there was no reason to believe the
documents were not genuine. Such conclusions are common for document
examiners. A second, Marcel Matley, also concluded that the signatures
were genuine.
The other two experts had reser-vations about the
documents. One, Emily Will, said that from the documents made available
to her, she did not think the signatures matched; the other, Linda
James, stated that she could not authenticate the documents without the
originals. The report asserts that CBS should not have relied on Matley
and Pierce. It should have known, according to the panel, that copies
of documents, which these were, can rarely be authenticated. A copied
document can only be authenticated when compared to the original. There
were no originals. Matley, for his part, continues to disagree with the
panel's view and has demanded that it correct the eighteen places in
the report where he believes he has been libeled.
Mr. Pierce had
said that the signatures were authentic and he has never modified his
conclusion. The panel never interviewed him. If the panel never talked
to the one expert upon whom CBS principally relied, how could it
determine whether he was credible?
Moreover, if lawyers know how
to hire appropriate experts even if journalists don't, why didn't the
panel, which was backed by a huge law firm, hire its own experts to
determine the authenticity of the documents? One suspects that if the
panel had done so, it would have ended up with some experts saying the
documents were reliable, others not sure. And that would have put the
panel back where CBS was.
The report criticizes CBS for not
being able to present evidence of a "chain of custody" for the
documents. Since the CBS source, Lieutenant Colonel Bill Burkett, only
had a copy of the documents, CBS, the panel said, should have known
where this copy came from, or, indeed, the source of the originals.
Burkett later confessed he had lied about his alleged source, George
Conn, whom CBS clearly should have taken more pains to reach. After the
program had been broadcast, Burkett said he received the documents from
a woman named Lucy Ramirez.
For seized drugs to be introduced
into evidence, a lawyer must prove who had the drugs from the time they
were seized--that is the "chain of custody." While such proof is
relevant in the courtroom, it is often irrelevant for journalists. Few
stories based on documents would ever be written if that were the
standard.
One of the greatest concerns facing The New York Times
in publishing the Pentagon Papers was their authenticity. A major fear
was that the papers had been forged by an antiwar group. If a strict
standard of "chain of custody" had been applied to the Times's
possession of the Pentagon Papers, this standard would have made the
story unpublishable. It would have required a call to the Department of
Defense or the Rand Corporation, known to have custody of the
originals. Such a call would have brought the FBI to the Times's door
in a second.
--------------------------------------------------------------------------------
Apart
from consulting forensic experts when it is appropriate, what
journalists do when they receive copies of documents is to make
judgments about the source and the contents of what they have. Are they
consistent with known facts? Is it logical to assume such documents
exist?
Dan Rather apparently asked few such questions. According
to the panel, he knew little about the background of the charges he
broadcast and depended on the reporting and research of the program's
producer, Mary Mapes. To determine the documents' authenticity, she
made what the panel described as a "meshing" analysis.
Mapes
submitted to the panel a forty-page statement setting out this
analysis. It showed how the events described in the documents
corresponded with known facts about the President's Air National Guard
service. The panel said it agreed with some of this meshing analysis
but not all. The panel did not attach this meshing analysis to the
report. It did, however, attach over seven hundred pages of other
exhibits to it.
I have seen Mary Mapes's statement, and it is
persuasive within the limits she set. She established a chronology of
events drawn from eight official Bush documents she obtained through a
Freedom of Information Act request she had made in 1999 and 2000, when
she first became interested in the story. She then tried to match the
six Killian documents with that chronology and concluded that they "fit
like a glove."
Three of the six documents did fit well, the
panel conceded. Two of them covered Killian's refusal to rate Bush's
performance. The third reflected Killian's conversation with Bush in
which he reminded him of the ANG's investment in him. Of the other
three, the panel thought one "may not mesh," and another did "not mesh
well." Another, not used by Mapes, did not mesh "at all."
The
panel's approach to the document in which Killian ordered Bush to take
the physical exam illustrates how it dealt with Mapes's submis-sion.
Mapes believed this document was authentic for two reasons. First, it
"meshed": the dates in it matched the dates of earlier physicals taken
by Bush, the addresses on the document were correct, and the Air Force
regulations were correctly cited. Second, Matley said the signature on
the document was Killian's, and Hodges and Knox confirmed the
document's contents.
The panel challenged Mapes's claim on the
basis of its talks with three officers who had served in the ANG at the
same time as the President. They said it was not customary to "order"
an officer to take a physical. For this reason the panel concluded the
document "does not mesh well."
The officers' statements, of
course, do not disprove the claim that Killian ordered Bush to take a
physical; nor do they exclude the possibility that there was a custom
of which they had no knowledge. The panel's reasoning on this document
is not particularly persuasive, nor is its reasoning persuasive about
why the other documents did not perfectly mesh. In the end, even the
panel, without saying so explicitly, has to concede the accuracy of
Mapes's statement that "there is nothing in the official Bush records
that would rule out the authenticity of the Killian documents."
--------------------------------------------------------------------------------
A
major weakness of the report is that neither Mapes nor Rather was
offered a chance to cross-examine the people the panel interviewed. In
fact, the panel never even told them whom it was talking to. The panel
did not tell Mapes or Rather, for example, that it was talking to the
three officers I have mentioned; nor did it give them an opportunity to
show that the officers were Bush supporters or even friends of
Bush-which Mapes believes to be the case.
Nor is the panel
convincing when it says that telephone contact between Mapes and a
member of the Kerry campaign was "highly inappropriate." Mapes made a
call to the Kerry campaign office after Burkett told her that he wanted
to speak to the campaign about strategy to counter the "Swift Boat
Veterans for Truth." At that point, Mapes had only some of the
documents and she needed the rest. She telephoned Kerry campaign
headquarters to get the phone number of Joe Lockhart, a senior adviser
to the campaign. By the time she talked to Lockhart, she said, she had
received all the documents. Lockhart eventually telephoned Burkett but
testified to the panel that he had "said very little during the call
and the subject of documents never came up." In effect, Mapes traded
access to the campaign for access to the documents. She did not turn
over the documents to the campaign before the broadcast. Investigative
reporters must be wily in getting their stories and what Mapes did does
not seem reprehensible.
Perhaps the least credible part of the
report is its decision to label parts of Dan Rather's program false and
misleading, even though those parts were not directly related to the
documents. For example, it concluded that one interview, which implied
that "President Bush was in the TexANG to avoid service in Vietnam,"
was inaccurate and misleading because there were other sources who
would say the President wanted to serve in Vietnam.
The panel
said a flight instructor had told Mapes that Bush "did want to go to
Vietnam but others went first." Mapes may not have believed this
statement, and she would have had good grounds for being skeptical
about it. It was well known at the time that joining a National Guard
unit such as the ANG was one of the best ways to avoid going to
Vietnam. And no one has disputed why Bush joined. It is hard to believe
he changed his mind afterward. But even if he did, it has no bearing on
his initial decision to join the Guard.
The panel also labeled
as "misleading" Dan Rather's interview with the then speaker of the
Texas House, Ben Barnes, who made a call to get George Bush in the
Guard. Why is this misleading? Because, the panel said, CBS has no
proof that the person who received the call was influenced by it. Can
the panel be serious about this? Should CBS not have reported this call?
--------------------------------------------------------------------------------
The
CBS report reads as if it were written by lawyers for lawyers,
notwithstanding the fact that Mr. Boccardi is a journalist. The report,
it may be noted, is signed not only by Boccardi and Thornburgh but by
seven other lawyers in Mr. Thornburgh's law firm. The report might well
have been better if it had been written by journalists for journalists
and the public. The report convincingly points out that CBS moved too
quickly in airing the broadcast and too slowly in discovering that its
source would change his story about how and from whom he got the
documents. Those are fair and telling comments. But they take up little
more than 25 percent of the report.
The rest of the report,
which is directed to the newsgathering process of CBS, is flawed. The
panel was unable to decide whether the documents were authentic or not.
It didn't hire its own experts. It didn't interview the principal
expert for CBS. It all but ignored an important argument for
authenticating the documents-"meshing." It did not allow
cross-examination. It introduced a standard for document authentication
very difficult for news organizations to meet-"chain of custody"-and,
lastly, it characterized parts of the broadcast as false, misleading,
or both, in a way that is close to nonsensical. One is tempted to say
that the report has as many flaws as the flaws it believes it has found
in Dan Rather's CBS broadcast."
March 10, 2005 The New York Review of Books