Thursday, September 09, 2004
Burden now on CBS to authenticate its documents, lest it become a co-conspirator in fraud
In modern civil trial practice, authentication of documents — proving up that they are genuine, that they are what they purport to be, that signatures are authentic, that photocopies are identical to the original versions from which they were made, and the like — is rarely an issue. In twenty-four years of active civil trial practice, I'd guestimate that I've had occasion to challenge, on any basis, the authenticity of only a tiny fraction of one percent of the documents I've dealt with — and I'm talking quite literally about millions of pages of documents. And I've never yet had occasion to hire a forensic documents examiner.
Indeed, it's now common practice in both state and federal courts that documents will be conclusively presumed to be authentic, and not subject to objection for failure to prove up their authenticity, unless the party opposing a document's admission into evidence on that basis has challenged it before the trial. (See, for example, Local Rule 44.1 of the United States District Courts for the Southern District of Texas.) The goal, of course, is to streamline trials and avoid wasting the time of the judge, jury, and parties, in going through rote steps of authenticating each document in the overwhelming majority of instances when no party seriously disputes the document's authenticity.
But if a timely objection is made, it's still the burden of the proponent of a document — the party who relies on that document and wants it to be admitted into evidence and considered to have credible weight — to prove up its authenticity.
The blogosphere has aggressively — and persuasively — challenged the authenticity of the four documents produced by CBS News in its "60 Minutes II" program last night that purport to bear on President Bush's National Guard service in 1972-1973. The arguments raised to cast doubt on those documents' authenticity have multiplied throughout the day. I won't attempt to marshall those arguments here, but refer you to the updates to my post from last night and the many links provided there. Probably the best single source compiling those arguments is a thread on the Power Line blog that already has over 300 trackbacks to it evidencing links from other bloggers, now supplemented by at least three new threads for breaking developments.
Either in logic or in law, the burden is squarely on CBS News to respond to those arguments — and to do so immediately. So far, there's no credible suggestion that CBS News has been actively complicit in forgery, as opposed to unwitting (and witless) dupes who've passed on forged documents given to CBS News by others who, at present, remain unidentified. But with every minute that passes without a substantive response by CBS News, their involvement in the fraud grows — and yes, at some point in the very near future, they will become co-conspirators in any fraud by virtue of their deliberate cover-up.
I speak in an ethical, logical, moral, and practical sense in terming CBS News and Dan Rather as potential "co-conspirators," not a legal one. But their obligation is nevertheless clear and indisputable. This problem cannot be ignored, nor postponed. And let me be clear: I'm not insisting that CBS News concede that the documents are forged. But I'm insisting — and the rest of the mainstream media, and indeed all of America, should insist — that CBS respond to these objections in detail, now.
Update (Thu Sep 9 @ 9:10pm): InstaPundit passes on a media contact's report that "ABC'S Nightline [is] doing the forgeries tonight, and their experts say most likely forgeries. CBS had serious meetings this evening over this." If there's anything that might help overcome the mainstream media's torpor and intrinsic bias, it might be competitive pressure from within (and from without from sources like the blogosphere and talk radio). Let's see how good a job ABC does — heck, they could do far worse than to simply read aloud from some blogs!
But! Kevin Drum reports:
For what it's worth, I spoke to someone a few minutes ago who's familiar with how the documents were vetted, and the bottom line is that CBS is very, very confident that the memos are genuine. They believe that (a) their sources are rock solid, (b) the provenance of the documents is well established, and (c) the appearance of the documents matches the appearance of other documents created at the same place and time. In addition, people who knew Killian well have confirmed that the memos are genuine.
Update (Thu Sep 9 @ 10:20pm): WaPo's ubiquitous Michael Dobbs is questioning the CBS docs on the front page of tomorrow's edition. (That's great, but — Mr. Dobbs, shouldn't you be working on the missing documents from Kerry's private archives and records? My favorite WaPoian, Howard Kurtz, is listed as collaborating.) WaPo generally references "several independent experts," and quotes two experts, including Dr. Phil Bouffard, whose opinions were first developed at the request of, and quoted in, INDC Journal. As for CBS' position, per WaPo:
A senior CBS official, who asked not to be named because CBS managers did not want to go beyond their official statement, named one of the network's sources as retired Maj. Gen. Bobby W. Hodges, the immediate superior of the documents' alleged author, Lt. Col. Jerry B. Killian. He said that a CBS reporter read the documents to Hodges over the phone, and that Hodges replied that "these are the things that Killian had expressed to me at the time." ...
In a telephone interview from her Texas home, Killian's widow, Marjorie Connell, described the records as "a farce," saying she was with her husband until the day he died in 1984 and he did not "keep files." She said her husband considered Bush "an excellent pilot."
"I don't think there were any documents. He was not a paper person," she said, adding that she was "livid" at CBS. A CBS reporter contacted her briefly before Wednesday night's broadcasts, she said, but did not ask her to authenticate the records....
CBS officials insisted that the network had done due diligence in checking out the authenticity of the documents with independent experts over six weeks. The senior CBS official said the network had talked to four typewriting and handwriting experts "who put our concerns to rest" and confirmed the authenticity of Killian's signature.
I see. And what 1972-era typewriter did those experts say could have generated these documents, CBS? That would be a good place to start in putting our concerns to rest. Or — you could just tell us where ya got 'em, eh?
Update (Thu Sep 9 @ 11:20pm): The local ABC affiliate in Houston, KTRK-13, is leading its broadcast with a local expert concluding the CBS docs are fake. Should have a great audience too, given that the Colts-Pats game was a thriller to the last seconds. Includes an interview with Killian's son, consistent with the ABC website and WaPo accounts from him. Harris County Dem Party spokesman calls for Bush Administration to investigate the forged documents!!! Amazing! Now on to the "Texans for Truth" — its people won't talk to KTRK, and the group is funded by a sitcom writer from "Seinfeld." Now a quick mention of the SwiftVets, then the latest ABC News poll showing Dubya with a 9-point lead. Simply amazing — I'm rubbing my eyes at this whole broadcast. Yes, this is Bush Country, but I'm wondering if Karl Rove sprayed some sort of "skeptic gas" into KTRK's studio.
Update (Fri Sep 10 @ 12:30am): I don't think I've ever seen Ted Koppel so pleased with himself. I thought from the lead-in that ABC's "Nightline" was going to bury the CBS documents scandal altogether in another mushy piece about "negative campaigning." When they switched to Ted's opening on-camera lines, he gave an elaborate feint:
At times, it is the sleaziest, the slimiest, the nastiest and most destructive element in American politics. The rest of the time, it's just brutal and manipulative. At all times in the hands of its most skilled operatives, it is devastatingly effective, and will probably determine who sits in the White House for the next four years.
What they call it is almost as deceptive in its tone as what its operatives do — "opposition research." What a musty, reassuringly academic phrase that is. "Opposition research." What could be more reasonable, after all, than researching your opponent's record for weaknesses, inconsistencies, outright lies if you're lucky? It has been raised to the level of a dark science involving not just what to reveal, but how, and when.
But then out came the stiletto, as the camera zoomed in (boldface mine throughout):
Above all else, though, the story cannot be a complete fabrication. It can be thirty years old, it can be one item out of context. But it has to contain at least a kernel of truth.
My old friend Dan Rather, for example, had himself a peach of a story on "60 Minutes" last night, raising more questions about the President's record in the Texas Air National Guard. Just so there's no misunderstanding, if someone had dropped that story in my lap and we'd been able to confirm it through our own sources, you would have seen it on "Nightline."
I have absolutely no idea how Dan got the story, but you have to believe that the Kerry Campaign was awfully pleased that he did.
Except that today, questions are being raised about the accuracy of one key element in the story.
Woof! My paraphrase, with the subtext: By strong implication, there was not a "kernel of truth" in the CBS story on the documents. Nor any decent reporting, because it was "dropped in [Rather's] lap." ABC would have confirmed it through "our own sources" — and by implication, Rather and CBS News didn't. Where, oh where, did it come from? Dunno, but (implicit snort and snicker) Kerry was awfully pleased.
Friends and neighbors, this is what passes for glee among network correspondents.
The follow-up reporting on the documents was adequate, if tepid. Unnamed "conservative websites" were credited with first picking up on the discrepancies in the documents, but there weren't the usual snarky remarks about the blogosphere. However, a far more convincing case for the CBS documents can be made — and in the blogosphere, has already been made — simply from the face of the documents, ordinary citizens' experience with typewriters and word processors and memos, a few undisputed facts, and some common sense. The fact that Col. Killian's widow and son are doubtful is nice, but frankly, not terribly persuasive on its own to me — icing, not cake.
But other than repeating CBS' increasingly lame-looking defense that it subjected the documents to "independent experts," there was nothing in the "Nightline" story to suggest that these documents are anything other than forgeries. And if Koppel and his staff weren't convinced, that stiletto would've likely stayed in Koppel's pocket, rather than finding its place between his "good friend" Dan Rather's ribs.
Finally for tonight: The extremely unreliable, frequently badly wrong, but oftentimes entertaining Prowler column in The American Spectator claims to have heard from unnamed inside sources at ABC and a rival news program inside CBS that the documents were handed over to "60 Minutes" weeks ago; that even "60 Minutes" insiders had doubts about their provenance; and that they came directly from the Kerry campaign. I am extremely skeptical about this, and if I had to bet, would bet that at least the last part is wrong. I emphatically do not vouch for the Prowler or endorse its reporting or methods. Obviously, though, folks can't help speculating along these lines; and there's always the possibility that even a blind and ugly pig may have found a genuine acorn here. CBS has some serious 'splainin' to do. And if in fact the Kerry campaign is innocent of any complicity — which I'm still inclined to believe is the case, because I just can't believe they'd be that stupid — it should join in calls for CBS to come clean, ASAP, if only to put unfounded speculation to rest.
Update (Fri Sep 10 @ OMG-I-should-be-asleep): Even the NYT is beginning to pile on; I suspect the online version of this already has more detailed skepticism than will appear in the print version.
A senior executive at CBS said said, "We are convinced our source who got the documents had access to them and we trust the source.'' He added, "Can we produce the typewriter they came from in 1972 or 1973? Obviously not.''
The executive said the documents had been "vetted as thoroughly as possible.''
"We did have a number of experts,'' he said, adding that the producers also showed the documents to numerous people who worked with Colonel Killian and who said the memos were consistent with what he thought and representative of the sorts of documents he produced back then.
"It would be unbelievable for a forger to have written documents that could so closely reflect what the people closest to Killian said,'' he said, "that this is his tone of voice, what he thought back then, this is the situation back then. It would be a little odd to think that these things could have just surfaced.''
The people "closest to Killian"? Like, umm, his wife and son, who you obviously didn't get the documents from, or bother to check with? Then there's this strange bit that I'd like to get more information about:
CBS News executives also produced a document released earlier by the White House about Mr. Bush's service that was clearly from a typewriter and had a superscript "th'' in it. CBS said it proved that some typewriters did indeed have superscript keys. But the characters were hard to make out after so much reproducing of the document, a problem, the CBS News official acknowledged, with the documents in the initial "60 Minutes'' program; those documents were not originals and have been copied repeatedly.
What document is that, CBS? Are you sure you're not pointing to a document that the White House released after you faxed it to them?
Update (Fri Sep 10 @ 8:45am): The Chicago Sun-Times has up an article by Thomas Lipscomb and the New York Post an article by John Podheretz on Rathergate. With respect to the former, InstaPundit notes that what's interesting "is that it treats Power Line and other blogs as just another news source." Mr. Lipscomb, however, is identified not as a Sun-Times reporter, but as "chairman of the Center for the Digital Future in New York," and you may recognize his name as the columnist leading the Sun-Times' efforts in looking into the technical improprieties in Sen. Kerry's medals — so it's no surprise that he's tuned into the blogosphere. Prof. Reynolds also links to and quotes from a cached version of the Prowler column I linked last night — which, I repeat, should be viewed with extreme skepticism by any fairminded (but rumor- and gossip-hungry) reader.
NRO's Byron York, who was helping break this story in the mainstream media (ver. 1.5) yesterday on Fox News with Brit Hume, has his own column up now as well, which notes some of the many contextual nonsequiturs in the CBS documents just as military memos. This long thread on the SwiftVets' bulletin board (on its off-topic "Gedunk and Scuttlebutt" forum, mind you, for neither the SwiftVets nor this loosely-affiliated bulletin board are organized for the purpose of promoting Bush's candidacy or even discussing him, as opposed to exposing Sen. Kerry's unfitness for command) shows how internet-savy non-bloggers were nevertheless cooperating with, and working in parallel to, what the "organized blogosphere" (heh!) was doing yesterday; because of that forum's heavy readership and participation by folks with military backgrounds, it also has quite a bit of interesting analysis of the contextual oddities of the CBS docs. Ditto blogger Donald Sensing's excellent post.
And Power Line has a short take on Koppel's performance last night, a DNC email seeking to take advantage of the CBS documents, and a collection of mainstream media links that asks the $64,000 question, "Whence the memos?"
Finally, readers who wish to send polite but pointed feedback to CBS News encouraging them to —
- reveal their source,
- disclose the names and full opinions of the "experts" upon whom they relied, and
- offer their written responses to the many, many objections raised to the documents' authenticity
— are encouraged to do so via this link. Remember, rants and profanity gets your message trash-canned. Your own brief, non-cut-and-pasted, rational arguments and observations — plus, perhaps, "I'm thinking of writing to your advertisers" — are more likely to get your feedback noticed.
Other weblog posts, if any, whose authors have linked to Burden now on CBS to authenticate its documents, lest it become a co-conspirator in fraud and sent a trackback ping are listed here:
» The Burden of Proof from Ryne McClaren: A Weblog
Tracked on Sep 10, 2004 12:00:54 AM
» CBS Not Complicit? from Random Observations
Tracked on Sep 10, 2004 12:48:19 AM
» Fisking the AP from Posse Incitatus
Tracked on Sep 10, 2004 9:32:53 AM
» CBS documents faked? from Duthie on...
Tracked on Sep 10, 2004 9:46:53 AM
» CBS NEWS -- from PRESTOPUNDIT -- "Kerry in Cambodia" Wall-to-Wall Coverage
Tracked on Sep 10, 2004 10:02:57 AM
» CBS NEWS -- from PRESTOPUNDIT -- "Kerry in Cambodia" Wall-to-Wall Coverage
Tracked on Sep 10, 2004 10:12:42 AM
» Memo to Dan Rather from The Interocitor
Tracked on Sep 10, 2004 10:36:08 AM
» Fisking the AP from Posse Incitatus
Tracked on Sep 10, 2004 12:27:10 PM
» Rathergate: Beldar's About-Face from Random Observations
Tracked on Sep 16, 2004 9:25:40 AM
» Rathergate: Beldar's About-Face from Random Observations
Tracked on Sep 16, 2004 9:31:18 AM
(1) Todd made the following comment | Sep 9, 2004 9:25:51 PM | Permalink
According to Instapundit, ABC's Nightline will be covering the forgeries tonight and their experts say the docs are most likely forgeries as well. If the forgeries are connected to the Kerry Campaign in any way it would be too good to be true. Clearly, that would be par for the course for those sleezeballs, but even these dunderheads can't be that dumb. Or can they?
In other news, the Vice-Chairman of the Kerry Campaign said that George Bush is a bad guy. Quick, get the cameras and start 'em rolling!
ABC online has also picked up the story. The documents used by CBS to corroborate Kerry fund-raiser Ben Barnes' story look to be incredibly poorly conceived forgeries. And they somehow passed CBS' rigorous fact-checking department, which apparently consists of Mr. Magoo and the late Ray Charles.
"Independent document examiner Sandra Ramsey Lines said the memos looked like they had been produced on a computer using Microsoft Word software, which wasn't available when the documents were supposedly written in 1972 and 1973."
(3) Todd made the following comment | Sep 9, 2004 9:53:38 PM | Permalink
NBC has also reported the story. Looks like CBS is doing damage control and looking for a way out. I suspect that CBS' "rock solid" sources are Terry McAuliffe and Ben Barnes.
By the way . . . if all these people knew exactly what Killian was thinking and what was going on and so forth, why the hell didn't CBS just put them on camera? Sounds like a load of crap to me.
(Sorry I missed your update Beldar re: Instapundit or I wouldn't have written my first post.)
(4) Todd made the following comment | Sep 9, 2004 10:02:19 PM | Permalink
Now Killians's widow is quoted on ABC News as saying she doesn't think he wrote the documents, that he'd be turning over in his grave at the thought of a fellow guardsman being pilloried over this and that Killian thought highly of Bush. Even if the documents are somehow authenticated, this story has blown up in the Dems' face. Maybe Ben Barnes can come on and say he personally saw Killian type them up. (The fact that Killian didn't type according to his wife shouldn't matter much to Ben.)
Sorry for the exessive posting on this topic but I am absolutely thrilled with the MSM getting its ass handed to it. I hope they have zero credibility after this.
(5) Fredrik Nyman made the following comment | Sep 9, 2004 10:09:58 PM | Permalink
It should be noted that 60 Minutes and Don Hewitt aren't strangers to committing fraud (word used in the same sense as Beldar did).
I keep wondering just how much of this stuff the MSM has been doing over the years, and what kind of impact it has had on voting patterns and public perception of the issues. It's a scary thought.
(6) Polaris made the following comment | Sep 9, 2004 10:26:10 PM | Permalink
I agree with Fredrik. I try to view the news with skepical eyes, but I still wonder just how much outright fraud has been shovelled at me over the years. It seems as though any time I pick at and look into a story, it falls apart (at least as reported by the MSM).
Beldar, you state above that you don't believe Rather is a co-conspirator. I wonder why. After all, if the 'mistakes' of the MSM, and CBS in particular, were distributed randomly along political lines everyone would assume they were duped. However, the reality is the duping always occurs in one direction. The AP 'booing' story springs to mind.
Game theory suggests people sometimes act with the full knowledge of what another actor will do, without communicating the intent to act so. Antitrust theory suggests this activity might be illegal. I'm posting from memory and don't have the books in front of me so I'll argue by example.
Gas station A always posts its price at 6am every morning. Gas station B, in plain view of A, posts its price at 6:15am every morning. Without communication between the parties collusion can be proven if the prices posted are uncompetitive. A violation of Sherman can be found.
The intent to act to further a conspiracy, sans direct communication, can rise to the level of criminality. So, why would Rather be a dupe instead of a co-conspirator?
Somewhat disjointed but it's late. Sorry.
Birkel, you're right there could be a deliberate conspiracy without express and overt communication. But before one could draw the necessary inferences, one would still have to conclude that Rather and CBS News knew the documents were forgeries. As much as I dislike and distrust Rather, I can't claim to have seen anything yet which suggests that to be true.
(9) Polaris made the following comment | Sep 9, 2004 10:58:31 PM | Permalink
I agree with Beldar. I put this up to partisan bias of the worst possible kind along with intellectual laziness. That's bad enough for a professional jouralist of Rather's standing, believe me. [I note that Drudge is reporting that CBS has launched an internal investigation:
It is the combination of laziness and bias that is the real killer. I think that Rather accepted the docs as genuine because he wanted to believe they were genuine.
Forgery by Typewriter
I'd have a good laugh too if Dan Rather got punk'd, but the wingnuttery belief that the proportional fonts were Bill Gates's invention is hilarious.
But, in any case, CBS more than stands by their case.
-Atrios 10:59 PM
(11) ARW3A made the following comment | Sep 9, 2004 11:34:05 PM | Permalink
It took the blogosphere less than 1/2 a day to determine these were obvious fakes.
Do you really think CBS is so incompetent that they couldn't have figured it out? They may be biased but they're not stupid.
C'mon...they new or never asked. And btw, if they didn't ask then it means they were afraid to.
"Birkel, you're right — there could be a deliberate conspiracy without express and overt communication." (Beldar, from above)
Let's start with the first half of this quote. I like seeing you write it. And... I knew I was. I actually taught the economics of government regulation at the University of Michigan, AA, as a grad student instructor a few years ago, while in law school. ;)
"But before one could draw the necessary inferences, one would still have to conclude that Rather and CBS News knew the documents were forgeries" (Beldar, from above)
Why? My example of lockstep price movements (without overt communication) and Rather's lockstep support of Democratic positions (without overt communication) are similar. One would assume that as a matter of chance Rather would get it wrong in favor of the Republicans once, unless he is acting consciously and purposefully. That is exactly the type of evidence that could be used in a Sherman Antitrust case.
That's why I used the gas station example, a classic from the texts. The government CAN shift the burden of proof of collusion based on the statistical improbability of always erring in the same direction as another party. Perhaps you don't like that inference, but that does not mean it's wrong either.
At a bare minimum the burden of proof has shifted but I might file a motion for a summary judgment against Rather.
I can't believe I stayed up to watch Nightline just to hear them criticize Rather. SWEET!!
(13) MaDr made the following comment | Sep 10, 2004 12:46:12 AM | Permalink
You guys are great! I'm still chuckling.
"they somehow passed CBS' rigorous fact-checking department, which apparently consists of Mr. Magoo and the late Ray Charles."
"I suspect that CBS' "rock solid" sources are Terry McAuliffe and Ben Barnes."
"Maybe Ben Barnes can come on and say he personally saw Killian type them up."
"I'd have a good laugh too if Dan Rather got punk'd" - somehow I don't believe this one.
Sorry for taking up space, but these are really good.
(14) Heavy B made the following comment | Sep 10, 2004 1:04:34 AM | Permalink
Average Joe says: I read the CBS coverage this morning and assuming the docs were legit and thought to myself, "Nothing new or surprising here, I hope the Bush team ignores it and sticks to their message, prosecute the war in Iraq and Afghanistan, tighten domestic security, encourage economic growth, etc.
I was stunned by the blatant bias of recent AP economic opinion passed off as analysis (Leigh Strope 8/17/04) and campaign propaganda (Bush supporters boo Clinton's hospitalization) but this is surreal.
Still, I'm guessing some damage is irreversibly done. Even if CBS retracts, they won't do so in a way that completely communicates to all the people who heard the original BS broadcast. Then again, my fellow Americans are a hardy, intuitive bunch...
(15) Heavy B made the following comment | Sep 10, 2004 1:17:48 AM | Permalink
Just now 11:15 on the west coast so Nightline isn't on yet. BUT, checking the csbnews.com website, I see that they are still carrying the story based on the documents but the links to the documents themselves seem to be toast. I hope INDC or Powerline has copies posted. Looks like they are going to bury the evidence and stick with the lie. What a surprise.
Heavy B, let's be charitable and hypothesize instead that they've concluded that the documents may not be genuine hence that they need to be taken down pending further investigation and that a carefully worded explanation will soon appear, along with a repost of the documents that clearly labels them as fakes. That would be the ethical thing to do.
I have a feeling CBS News may develop a serious new regard for ethics (at least for a while) with Koppel and WaPo breathing down their necks. That, of course, would be a very good thing™.
Birkel: If the object of the conspiracy is defined as knowingly spreading false, forged documents, then to share in the mens rea, CBS would've had to have known. Arguably they could be held responsible ethically, morally, if not legally, but maybe even legally under a lower "reckless disregard" or "gross negligence" standard, if for example (as the probably untrustworthy Prowler column suggests) someone at CBS raised questions about the provenance and/or the oddities of the documents.
My top-of-the-head recollection without having done any specific research on this topic is that in general civil conspiracy law (at least as it's defined in Texas, but I suspect elsewhere too), there has to be a meeting of the minds (perhaps implicit and without over communication, per your conscious parallelism example) and at least one overt act by one member of the conspiracy in an attempt (whether successful or not) to accomplish a legal end through improper means, or an improper end through legal means. "Improper" here, at least in a civil law concept, could include something tortious (e.g., conversion, tortious interference with contract, tortious inducement to breach fiduciary duty). But if the impropriety is from fraud, I'd think there'd still have to be actual subjective knowledge of falsity on the part of at least one conspirator; perhaps constructive or imputed knowledge, or reckless disregard, could suffice for the others, at least in a civil context.
It's all hypothetical, although an interesting one I'd agree (at least to us law wonks). There's no general legal claim on the part of the public even if CBS has defrauded its members no change in position in detrimental reliance, for one thing, and arguably reliance on the mainstream media would be unreasonable as a matter of fact here. No damages, no duty. Maybe also a nonjusticiable political question. A lawsuit would get booted out on 12(b)(6) or its state-court equivalent, I suspect.
Now, Bush might have a defamation claim and hey, with luck, John Edwards might be looking for some new contingent fee business come next January. You could probably make a case that the source of the documents were co-conspirators with CBS to defame Bush, and this might survive a summary judgment motion on New York Times v. Sullivan "reckless disregard" as to CBS News. But I wouldn't hold my breath waiting for Dubya to file that suit.
(17) Polaris made the following comment | Sep 10, 2004 2:19:11 AM | Permalink
I won't pretend to understand the legalese (not being a lawyer), but I don't think Bush has to file that suit. When it becomes generally known (as it will) that the documents are forgeries, I think most reasonable voters will draw the obvious conclusion anyway (and look for yet another drop in Kerry support).
Like Heavy B, I didn't think the story mattered much last night. It didn't seem like that big a story, unless CBS had uncovered something which strongly suggested that Bush's honorable discharge was highly inappropriate.
But now I'm intrigued. I'm not necessarily saying it's important, and I'm not necesarily saying it isn't, but it's interesting. Consider: if one or more of the documents are forgeries -- and I'm pretty convinced by now that at least one is -- then somebody had to forge them. Who might have done this, and why? And how did they get the documents to CBS with a credible explanation for how they acquired them? Much of this can probably only be answered with help from CBS.
Perhaps more puzzling, why didn't they forge a more interesting scandal? For heaven's sake, if you're going to rob a bank, you don't hand the teller a note demanding "three dollars in small, unmarked bills or I'll stab you with my pen." Moby suggested some vaguely interesting (if simple) lies quite some time ago, and more recently Susan Estrich had some. Why not borrow some of theirs? Did the forger(s) think that because the SwiftVets got traction with their story, that this Bush story would be equally serious, even though Bush has been running a campaign based on the 21st century rather than the mid-20th?
The story has become confusing to me, and interesting as a result. I'll be staying tuned.
(19) Polaris made the following comment | Sep 10, 2004 3:12:11 AM | Permalink
Did the forger(s) think that because the SwiftVets got traction with their story, that this Bush story would be equally serious, even though Bush has been running a campaign based on the 21st century rather than the mid-20th?
Yes, I think that's exactly the mistake the Democrats made either themselves or their surrogates. Even now they really, truly don't understand what the SBVT is all about....many take it as an article of faith that the SBVT is just an arm of the Bush campaign and that it is just another Rove inspired dirty trick.
Thus I think they expect to see exactly the same thing (or did). You see that with the name "Texans for Truth" and their "we are founded by small donations" statements.
I agree to the extent that nobody in the public would have standing in this case. (However, the estate of LtCol Killian might have a claim. Certainly he's not a public figure.)
But, in the court of public opinion (which is a bit of an ephemeral concept for sure) I think the standard is lower than that needed to survive Rule 12(b)(6). As you say, and thanks for reminding me of the correct term, conscious parallelism is plenty for the public to determine the smell test has failed.
But, what about a claim by the estate of LtCol Killian? That would be interesting. CBS News certainly has the requisite deep pockets. They'd settle a claim quickly to stem the embarrassment, me thinks.
As one who had the privilege and duty of representing CBS News in a defamation case back in 1983, I can vouch for the fact that they are emphatically not an easy mark, and are in fact inclined to fight such cases as a matter of principle even when it may not make economic sense, from a short-run perspective, to do so. And they hire excellent lawyers. My predecessor on the case I handled for CBS, from whom I took the case over on appeal after he was appointed to a state district court judgeship, was the now-just-retired Texas Supreme Court Chief Justice Tom Phillips. (CBS is no longer an existing, nor a very likely, client of mine or my current firm.)
I doubt that CBS' reporting here damaged Col. Killian's family in their own capacities mention of them has only come up in the debunking, and nothing shameful or inflammatory or harmful to their reputations has come out of that. My vague recollection is that under the laws of most states, dead people and their estates can't sue for reputation injuries either. I agree that Col. Killian was probably not a "public figure" who'd trigger the New York Times v. Sullivan actual malice standard, meaning a case on his behalf would face a lower threshold for success. But in any event, it would be hard to show how Col. Killian's reputation (or his business or property) were harmed, even assuming that CBS' reporting was false; he's not alleged to have disobeyed any orders.
No, it's Bush who's been damaged, if anyone but I can hardly think of anyone less likely as a practical matter to pursue such a lawsuit.
(22) GT made the following comment | Sep 10, 2004 8:50:11 AM | Permalink
Well these have been an interesting 24 hours.
I still don't know what to think but I suspect we will find soon enough.
Some points. I'll start with the biggest one (IMO).
If the documnets were true what did they prove? Only what Killian thought at the time.
But according to the WP (quoting CBS) there is an actual witness tha confirms that Killian in fact said those things way back when. He is Maj Hodges, Killian's boss, and described as a Republican who does not want to hurt Bush.
This is pretty big, for several reasons. If Hodges did, in fact, confirm what the documents say, even if he cannot confirm the documents themselves, then the debate about the forgery becomes much less important. There is a real live witness to all of this!
Of course someone will have to talk with Hodges and find out what he said, exactly.
In turn this raises a lot of questions. If they are forgeries whoever did them knew there was truth behind it (assuming the Hodges story pans out). Who could that be?
(23) Amphipolis made the following comment | Sep 10, 2004 9:06:49 AM | Permalink
Rather is not just carrying water for the Kerry campaign. He is falling on his sword for the Kerry campaign.
(24) Sandy P made the following comment | Sep 10, 2004 9:20:51 AM | Permalink
Why would a Lt. Col. type his own memos?
Someone already tracked down his personnel chief who said it didn't sound like him.
(25) sligobob made the following comment | Sep 10, 2004 9:30:59 AM | Permalink
I laughed out loud at your play on "Rathergate" with a superscript "th." (Update at 8:45 am) Brilliant.
(26) J_Crater made the following comment | Sep 10, 2004 9:34:29 AM | Permalink
I find the irony of creating "Donald Segretti" inspired documents dated 1972 to be just too much. And your RatherGate, with the th superscripted, just added to the irony.
I figure whoever is responsible wasn't in grade school by 1972.
(27) MaDr made the following comment | Sep 10, 2004 9:41:51 AM | Permalink
There's a few possible problems with Hodges' recollections. Other documents and Killian's son portray Bush as an excellent pilot, and the son says his father really thought a lot of Bush. Hodges can't be reached - that might imply something. This could be the killer though - seems a Hodges contributed $250 to Howard Dean. An identity match is currently underway.
(28) GT made the following comment | Sep 10, 2004 9:51:28 AM | Permalink
That's fine. I have no idea if Hodges is being truthful or not. My point is that there is live witness to all of this.
The interesting thing in the press reaction is the media v. media dynamic. Sure, the major media is biased, and hates Bush, and would bend over backwards to get Kerry elected. But given a chance to punk a bunch of fellow journalists, even the most biased news organization can scarcely resist the urge.
(30) Todd made the following comment | Sep 10, 2004 9:55:49 AM | Permalink
GT, nice to see you back with your latest spin.
If all we're going on is Hodges' allegedly saying, "Yeah, that's what Jerry told me," then why is that any better than Killian's wife saying, "Jerry thought that Bush was great"? Your hero has nothing to gain from this and, if it's linked to a Democratic operative, we're looking at Dukakis II.
(31) jack white made the following comment | Sep 10, 2004 10:02:27 AM | Permalink
Dan Rather will burn his source beyond recognition and then mine another new and unexplored story: Bush's alleged cocaine use. I'm sure the fine folks at CBS have Spanish translators working as we type to determine if the bills of sale, with Bogota addresses, signed personally by Pablo Escobar, and found in a dumpster near Camp David back in '91, are authentic. Heck, Sydney Blumenthal and Chris Lehane said they were, and Danny Boy talked over the phone with a good source who had a really thick Columbian accent. Who needs document examiners when they have ol' Ma Bell to do the work for them?
Rather will resign over disgust with the American public after it fails to heed his warnings in November. You can take that check to the bank and cash it, Mary Lou.
Shell-shocked??? More like caught.
If CBS really did a thorough investigation of the documents, why aren't they able to release the results immediately?
Why can't they simply provide their expert typologists report where they tracked down which typewriters in use by the TANG were able to use a proportional font and a superscripted th?
Where is their comparison of other documents that have nothing to do with Bush also written by the LTC around the same time?
Why can't they provide the chain of possession of the documents in question?
Since they haven't, I'm forced to conclude that there was no thorough examination of the documents.
Also, the forgery wouldn't have been detected in before the rise of the internet. Not because of bloggers or skeptics, but because the documents wouldn't have been released to the public before. They might have been flashed up on the TV briefly, and then never seen again. And if the White House did dispute the authenticity, well, that would be just what you would expect, and by the time it was resolved, the election would be long over.
(33) ed made the following comment | Sep 10, 2004 10:16:30 AM | Permalink
"What document is that, CBS? Are you sure you're not pointing to a document that the White House released after you faxed it to them?"
What is being discussed was pointed out by Joshua Marshall in the following PDF file:
If you open the PDF file, go to page 3 and look at the "4Sep68" line you will see a very small, but NOT superscripted, "th".
Since we're looking at a copy of a copy of a copy in a PDF file it's nearly impossible to determine the actual origin of this. Frankly it could easily be a preprinted line for a very standardized form. Or it could just as easily be a preprinted *stamp*. Especially since all other versions of "th" on that page are normal sized.
Hope this helps.
Beldar, couldn't the value of the documents he did have be devalued? If he kept some actual documents in his possession couldn't one argue they have been diminished in value because people will question their veracity?
Proving damages would certainly be difficult. The value of his life story/documents was probably low before this event. And of course the value is probably greater now. Lots of motions to overcome but still if you get it to a jury...
See this scan from Atrios for an example of what the IBM Executive could do. It looks better than most typewriters, but I dunno, it still doesn't look quite right enough. Burden of proof still now on CBS, as Beldar says.
(36) rocat made the following comment | Sep 10, 2004 11:05:43 AM | Permalink
I think you're right about the (non)possibility of Bush suing.
What about CBS shareholders and/or affiliates, though? If CBS News becomes the joke they are working so hard to be, the people with a financial stake in the corporation would certainly be harmed.
(37) Mr Vee made the following comment | Sep 10, 2004 11:06:34 AM | Permalink
"If you open the PDF file, go to page 3 and look at the "4Sep68" line you will see a very small, but NOT superscripted, "th".
Since we're looking at a copy of a copy of a copy in a PDF file it's nearly impossible to determine the actual origin of this. Frankly it could easily be a preprinted line for a very standardized form. Or it could just as easily be a preprinted *stamp*. Especially since all other versions of "th" on that page are normal sized."
There are two problems with this. One the "th" is not superscripted and two and more importantly, those are not proportional fonts used in that document. You can count up each character and see that they lineup with the line above it. For example 'Total' on line 4 and 'Pilot' on line 5 match up perfectly even though on a proportional font system 'Pilot' would take up less space.
It also looks like that might have been written in as a correction.
Finally it appears to me to be a dead giveaway in the CBS documents that in certain instances there is a noticeable gap of one space between the number and the 'th' and 'st'. This is exactly what one would do if it was trying to get around Word's 'auto-format' function.
There is also the issue of the Bush's discharge request. The response is signed by Killian with a radically different signature, and typed with a standard non-proportional font.
CBS needs to produce the originals. Since they were supposedly simply memos to the file, they should be available since there'd be no reason for copies. As Beldar said, enough things are wrong enough that the ball is in CBS' court.
(38) digitalbrownshirt made the following comment | Sep 10, 2004 11:12:14 AM | Permalink
Here's a take on why anyone associated with the Kerry campaign would pull such a profoundly stupid stunt; one virtually designed to be detected. Perhaps it was the intent to be detected. Terry McCauliffe is probably more loyal to the Clintons than to Kerry. What better way to help Hillary in her 2008 bid for the presidency than to see that Kerry was not running for a second term. Such a stunt would have to be carefully calibrated to assure that it did only enough damage to weaken Kerry, not terminate him. Perhaps Rather was part of the deal. It would certainly explain such an uncharacteristic lapse in professionalism. If so, look for him to stonewall on ever revealing the sources.
(39) RC made the following comment | Sep 10, 2004 11:34:49 AM | Permalink
The one indisputable fact is that no typewriter...ever...has been able to kern.
Kerning is the nesting of letters like TO, if you notice, the t overlaps the beginning of the o. This is a pecularity of computer generated documents. The forged CBS documents all have kerning of letters and are quite simply fakes.
It will be fascinating to watch this play out...where did the documents come from? (teehee)
(40) R C Dean made the following comment | Sep 10, 2004 11:43:45 AM | Permalink
If Hodges did, in fact, confirm what the documents say, even if he cannot confirm the documents themselves, then the debate about the forgery becomes much less important.
Well, no, because the question of who forged the documents, why, and why CBS ran with them are unaffected by whether they guy who was supposed to write them (but didn't) could have written them (even though he didn't).
(41) ed made the following comment | Sep 10, 2004 11:52:15 AM | Permalink
"Finally it appears to me to be a dead giveaway in the CBS documents that in certain instances there is a noticeable gap of one space between the number and the 'th' and 'st'. This is exactly what one would do if it was trying to get around Word's 'auto-format' function."
Interesting. That's been pointed out before but it hadn't really seeped in. The difference in style between the documents points to either one person or more than one person being involved in the creation of these documents.
If it's one person then this person learned from one forgery to the next, but then didn't go back and rework an earlier forgery to incorporate any lessons learned.
If it's more than one person then these documents were forged separately and only brought together when submitted to CBS.
Either way it definitely points to a concerted effort rather than something done either as a joke or by mistake.
Well. This'll keep me laughing through the weekend. :)
(42) GT made the following comment | Sep 10, 2004 1:26:12 PM | Permalink
That's a separate debate. Important, but separate.
(43) Sherman made the following comment | Sep 10, 2004 3:23:28 PM | Permalink
"...But with every minute that passes without a substantive response by CBS News, their involvement in the fraud grows — and yes, at some point in the very near future, they will become co-conspirators in any fraud by virtue of their deliberate cover-up."
I'm no lawyer, but I'm sure that the running of a story that refers to documents that are later deemed to be forgeries does not constitute fraud on the part of the news agencies. Perhaps if one were able to prove a deliberate cover-up; however, the Whitehouse did release them after having a chance to view them and I would imagine that agents of the president, being the subject of the fraud, signing off on such a thing would reasonably free CBS of any suspicion of a deliberate cover-up.
As I've said, I'm not a lawyer, but I know that intent is a factor in criminal law. I don't believe one could prove intent in this case any more than they could in the forged Nigeria/yellowcake documents and the sixteen words in the State of the Union stiuation.
Am I wrong, Beldar?
(44) geoffg made the following comment | Sep 10, 2004 4:42:35 PM | Permalink
Isn't the forgery of military forms a felony offense? So, independent of any libel suits in civil courts, this is surely a criminal matter, to be investigated by the appropriate authorities.
Shouldn't CBS be forced to disclose their sources of this criminal activity?
(45) geoffg made the following comment | Sep 10, 2004 5:02:02 PM | Permalink
Microsoft did not and has not claimed to have invented proportional spacing. They do however have a copyright on the Times NEW Roman font, dating to sometime after 1980.
(46) jack white made the following comment | Sep 10, 2004 6:42:18 PM | Permalink
Dan Rather just did what was discernible even to Joe Six-Pack: he covered up. Even his voice and body language came across as deceptive. What could have been a simple disaster has become a fatal blow to the MSM.
This story only will be corrected when CBS begins to experience financial consequences--something most of us thought all along. The correction will include the revelation of the Kerry-related source who provided the forgeries.
Again, it is time to stop romaticizing the MSM. It lies. Only now, it isn't just those of us who watch for such activity who know it. All know it. This is the last campaign in which the MSM will be the most influential information source. And they know it.
Finally, Beldar, once upon a time I dabbled in the black arts. Isn't this one of those rare cases where the Best Evidence Rule would apply? Rather, by his own admission, said the originals provided to CBS had been distorted by multiple copying. As a result, wouldn't the BER require production of the originals for testing?
Mr. White, you're exactly right. If this were a question of authenticating the documents for their admissibility in a court proceeding, this would indeed be one of the rare instances in which "Best Evidence Rule!" would be an apt objection. "Best" need not mean "original" if no original exists; but when authentication is a contested issue and there's an earlier-generation photocopy, it must be produced by its proponent upon demand.
(48) jack white made the following comment | Sep 11, 2004 12:16:08 AM | Permalink
<<"Best" need not mean "original" if no original exists; but when authentication is a contested issue and there's an earlier-generation photocopy, it must be produced by its proponent upon demand.>>
Very precise, Mr. Beldar.
And when you consider the obviously nervous verdict of "preponderance of the evidence" by the legally illterate Msg. Rather tonight, these "original" copies are unlikely to be forthcoming.
And like all of us, Mr. Beldar, I assume "originals" exist. Otherwise? Well, like Paris, we will always have the "supporting evidence" Msg. Rather mentioned. What does that comprise? At last account, this is essentially a witness who knew the proponent about three decades ago. When the memos were repeated over the telephone, this long-forgotten associate said he assumed the documents were "hand-written."
As this former dabbler in the Black Arts would note, "res ipsa loquitor". It's been so long that may be "loquitur," but for everyone else, that means the thing speaks for itself. And boy does it.
And as a card-carrying redneck would add, "there's catchin' before hanging, and Mr. Rather's pinned against the tree."
(49) evlpawl made the following comment | Sep 11, 2004 5:27:33 PM | Permalink
Who has standing to sue?
If that signature is forged, then somebody was Impersonating an Officer, and the Military has no sense of humor about that.
(50) Doug made the following comment | Sep 13, 2004 7:53:46 PM | Permalink
If CBS were to admit that the documents were forgeries, it would have no grounds for protecting its sources.
In fact, CBS would have a positive obligation to do everything in its power to expose the malefactors behind the forgeries.
If the trail led back to the Kerry campaign, president Bush's reelection would be assured. Dan Rather has been at pains to derogate those who are interested in where the documents came from. This sounds suspiciously like Rather is concerned about what a revelation of his sources might mean.
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