Thursday, September 23, 2004
CBS News and Dan Rather did not make a "good faith error"
Every law student learns during his first year of law school a pithy old legal definition of the term "good faith" — "honesty of intention and freedom from circumstances which ought to put the holder upon inquiry."
It's a term used throughout the law and in many different contexts, but always with both a subjective component, unique to the individual being inquired about and dependent upon his state of mind (honesty), and an objective component, governed not by the individual's state of mind, but by whether a reasonable person in the same circumstances would have been alerted to a problem.
Thus, for instance, Justice Harlan, writing for the United States Supreme Court in an admiralty case, The Kate, 164 U.S. 458, 468 (1896), had occasion to quote Justice Clifford's opinion from an even earlier case, The Lulu, 10 Wall. 192, 202-03, 77 U.S. 192 (1869), on the subjects of "good faith" and the circumstances that prevent it from being claimed as an excuse:
[A] party to a transaction, where his rights are liable to be injuriously affected by notice, cannot willfully shut his eyes to the means of knowledge which he knows are at hand, and thereby escape the consequences which would flow from the notice if it had been actually received; or, in other words, the general rule is that knowledge of such facts and circumstances as are sufficient to put a party upon inquiry, and to show that, if he had exercised due diligence, he would have ascertained the truth of the case, is equivalent to actual notice of the matter in respect to which the inquiry ought to have been made.
If one has ignored red flags in the circumstances that would have alerted a reasonable person to a problem, he cannot thereafter claim to have acted in "good faith." Nor, of course, can he claim to have acted in "good faith" if he had actual, subjective knowledge of the problem.
From Dan Rather's statement about the use of the forged Killian memos (boldface added):
Now, after extensive additional interviews, I no longer have the confidence in these documents that would allow us to continue vouching for them journalistically. I find we have been misled on the key question of how our source for the documents came into possession of these papers. That, combined with some of the questions that have been raised in public and in the press, leads me to a point where — if I knew then what I know now — I would not have gone ahead with the story as it was aired, and I certainly would not have used the documents in question.
But we did use the documents. We made a mistake in judgment, and for that I am sorry. It was an error that was made, however, in good faith and in the spirit of trying to carry on a CBS News tradition of investigative reporting without fear or favoritism.
Not only Mr. Rather, but also CBS News itself has repeated this claim of making a "good faith error" (boldface added):
This was an error made in good faith as we tried to carry on the CBS News tradition of asking tough questions and investigating reports, but it was a mistake.
But this was not an error made in good faith — not as that term is known in law, or in journalism, or in common English. Indeed, a previous version of the Society of Professional Journalist's Code of Ethics noted that "[g]ood faith with the public is the foundation of all worthy journalism," and that "[t]here is no excuse for inaccuracies or lack of thoroughness."
CBS News, "60 Minutes II," and Dan Rather used the Killian documents despite numerous and obvious indicia that they weren't authentic — including express warnings from the very experts whom they had consulted on the question of the documents' authenticity. No reasonable journalist, nor any reasonable person, would have ignored those warnings. Moreover, CBS News and Mr. Rather continued to assert the documents' authenticity for a full week while concealing the identity of their confidential source — a known crank with an axe to grind against President Bush — and while continuing to insist that their confidential source was "unimpeachable." They insisted that they had confidence in the documents' "chain of custody"; they belittled anyone and everyone who questioned the documents' authenticity, including their own experts; and they've yet to issue a decent retraction or apology.
Dan Rather and CBS News did not merely "willfully shut [their] eyes to the means of knowledge which [they knew were] at hand" — as would have been true had they recklessly failed to consult any experts whatsoever — but indeed, they shut their eyes to the knowledge their own experts were serving up. And as such, they cannot claim now to be excused, in whole or in part, by virtue of having acted "in good faith" — for they cannot satisfy either the subjective or objective part of that term's definition.
Simply put, for CBS News and Dan Rather to claim now that they made a "good faith error" is itself a knowing lie — an act of bad faith from any objective standpoint, and indeed even from their own subjective standpoint regardless of how self-deluding Mr. Rather and the other responsible individuals at CBS News have been or continue to be.
Other weblog posts, if any, whose authors have linked to CBS News and Dan Rather did not make a "good faith error" and sent a trackback ping are listed here:
» Joey The Pooh from La Shawn Barber's Corner
Tracked on Sep 24, 2004 7:34:05 AM
» Beldar Agrees: Rather Acted in Bad Faith from Patterico's Pontifications
Tracked on Sep 24, 2004 7:48:16 PM
See my latest post about Lockhart involvement latest news. also at INDC
Once again you are spot on.
Good on ya, Beldar.
Beldar tells everyone what they already knew... but better.
(3) Amphipolis made the following comment | Sep 24, 2004 7:33:27 AM | Permalink
I think that to Rather and CBS News, "Good Faith" simply means that they thought going with the story was a good thing to do. They acknowledge no objective standard to judge their actions other than what they think is right at the time.
There is no "reasonable person" available whose opinion matters to them.
I think it is evident that CBS only exercized what they thought was *sufficient* diligence to be able to argue good faith, and no more. To thoroughly pursue authentication and chain of custody issues any farther would have led them to the find the problems that have since been discovered, and I suspect they wanted to avoid that. Rather believed in the story, and wasn't interested in opposing information.
The expression "plausible deniability" comes to mind.
The problem for CBS is that a) they (as in Rather and Mapes) were not sophisticated enough to realize that the fraudulent nature of the documents would be easily apparent to so many people (via the blogoshpere) and b) information spreads so quickly via the net.
I suspect that Rather (and Mapes) saw pretty early that the docs were fakes, but Rather made the call to brazen his way through it all. It only needed to hold up long enough to swing voters away from Bush, and no longer. If things went awry, they would have their "plausible deniability" and the legacy American media establishment for a backstop.
He never has sported a hefty clue bat, and this story was no exception.
(5) AMac made the following comment | Sep 24, 2004 8:27:55 AM | Permalink
In one important respect, your post is too kind on Rather and CBS. You said,
>Moreover, CBS News and Mr. Rather continued to assert the documents' authenticity for a full week...
The use of the past tense implies that CBS and Rather have now acknowledged the inauthenticity of the memos. This is not so. In his apology on Monday's CBS Evening News, Rather retracted the portion of the "60 Minutes" charges that were based on the memos, because he now isn't sure of their sourcing. He did not acknowledge that the memos are forged, and in an interview the next day (Tue 9/21), Rather re-stated his contention that they are genuine. Rather is attempting to finesse the fact that--as far as the truth of their charges--the provenance of the forgeries is irrelevant.
Joseph Newcomer posted his expert proof that the Killian memos are certain forgeries on 9/11. To my knowledge, Newcomer has not been credibly challenged. To my knowledge, CBS continues to pretend that Newcomer's proof doesn't exist.
Thus, as of 9/24, neither Rather nor CBS News has acknowledged that the Killian memos are not "authentic" because they are certain forgeries. Rather (and CBS News) are saying, sotto voce, that the authentic Killian memos are unusable because of chain-of-custody issues.
(6) jag made the following comment | Sep 24, 2004 8:41:44 AM | Permalink
The only "good faith" Rather had was the faith he had that airing a vicious smear story would damage the reputation of a candidate he opposed.
As you aptly point out, no reasonable person would have ever continued with that story given the dubious character of EVERY person and "document" they presented to make their case.
Barnes: A corrupt, partisan, admitted liar.
Burkett: A very troubled guy.
Documents: Transparent, conveniently obtained, forgeries.
Not even an idiot would have trouble seeing the problems here. Rather isn't that stupid so it is clear he went forward with reckless malice in his heart.
(7) Dimsdale made the following comment | Sep 24, 2004 9:12:19 AM | Permalink
While I agree that due diligence is the linchpin of Rather's and CBS's problem, I think it goes far beyond that.
The wholesale way that CBS ignored all the experts, witnesses, family members and good commonsense or necessary journalistic skepticism, reveals them for what they are: shills for Kerry. This is bolstered by their complete and utter dismissal of the Swiftees as a viable news story, simply because it reflects badly on their preferred candidate. There is no way they can justify that action on journalist grounds. It has far more validity, be it sworn statements or official documents, than the Bush ANG story ever dreamt of having.
I believe that Rather was gambling that the sudden release of these forgeries (note the miniscule amount of time they gave the White House to review and comment on the issue) would elicit a response or misstatement from the WH or the President himself that would give the fabricated documents validity. You can see plain evidence for this in Rather's continued attempt to say "it isn't the forgeries, it it the questions they ask. With all due respect, Mr. President, answer the questions." That was a clear, last ditch attempt to make the fake story the story, not the forged documents. Too bad Rather bet wrong.
Add to that CBS's persistence in pursuing a story every poll says nobody cares about (Mike Barnicle, serial fabricator himself, on Imus this morning: "five years on a story like this is not reporting, it is a mania."), and you have a news organization that has sold out to the Kerry campaign. The links to Joe Lockhart, and his laughable explanations, are the icing on the cake.
If nothing else, this puts the rest of the MSM on notice that their acts of political manipulation will no longer be tolerated and can no longer be hidden from the public by the editorial staff at a handful of liberally tilted newspapers. Is it a coincidence that all the reported incidents of journalistic malfeasance (Jayson Blair, the USA Today fabrications, Mike Barnicle, Rather etc.) occur at well known liberal media outlets?
I don't beleive in coincidences.
Our work has just begun.
I think Dan Rather is stupid, jag. This whole thing is a joke, even cursory checking would have shown numerous problems beyond the word processing tell tales.
The order to take a flight physical two months early is against regulations, and the authority given, "AFM 35-13" is bogus. Click on my url to see why.
(9) David Blue made the following comment | Sep 24, 2004 9:25:52 AM | Permalink
Beldar, both you and AMac seem clearly correct in a moral sense, and I can see (because you explain things clearly for us non-experts - thanks!) that your point is legally relevant. But is AMac's point also legally relevant? After an absence of good faith is established (by ordinary and now I learn by legal standards), what difference does the character of the continuing stonewall make?
(10) Assistant Village Idiot made the following comment | Sep 24, 2004 9:28:47 PM | Permalink
I think even Amphipolis and jag give Rather credit for more precision than he deserves -- though I think they get the spirit of it right. I don't think "good faith" means anything in Rather's statement; it's just a sort of vague, well, like, I'm-a-nice-guy thing to say, y'know? It sounds more meaningful than saying "I meant well," but it has less heft to it than even that bland statement. It's reflexive babbling.
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