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Saturday, September 22, 2007

Rather v. CBS: Experts, "boardroom truth" versus "courtroom truth," and settlement values

A premise of the adversary system, as practiced in American civil courts, is that each opposing party, motivated by rational self-interest, will, through its advocates (and the witnesses they call and the evidence they present), make the strongest possible presentations for the propositions that support its case, and against the propositions that support its opponent's case. The system thereby relies on the parties' presumptively opposing self-interests, and the fair and open competition between them, to help promote goals like "truth" and "justice." Factor in a fair judge and jury, the awesome inherent power of cross-examination well performed, and the ability of both sides to compel the production of witnesses and documents via subpoena (both during pretrial discovery and at trial), and you have what is potentially (albeit not always in practice) the greatest engine for the development of the truth ever known to man.

The danger inherent in Dan Rather's new lawsuit against CBS, however, is that neither side's self-interests will necessarily be served by "truth." To the contrary, both sides are undoubtedly guilty of hiding things from the American public in the past, and both are likely to have compelling reasons to continue to hide things — not just from each other, but from the public — as pretrial discovery proceeds.

If, for example, CBS' overriding interest is to defeat Rather's lawsuit by using all the tools of the civil justice system to establish the absolute, objective truth to the satisfaction of a court and jury, then by the close of business today CBS' lawyers will already have at least have attempted to hire Joseph M. Newcomer, PhD as a consulting expert witness, and very likely ultimately as a testifying expert witness. Or if, as is entirely likely, Dr. Newcomer refuses to agree to be engaged by either side, they will nevertheless identify him in due course as a potential non-retained expert upon whose opinion testimony CBS expects to rely at trial.

If you followed Rathergate at all as it developed, you will probably recall Dr. Newcomer as having written these very straightforward words at the very beginning and end of his independent initial report on the so-called Killian Memos on September 12, 2004:

First off, before I start getting a lot of the wrong kind of mail: I am not a fan of George Bush. But I am even less a fan of attempts to commit fraud, and particularly by a complete and utter failure of those we entrust to ensure that if the news is at least accurate. I know it is asking far too much to expect the news to be unbiased. But the people involved should not actually lie to us, or promulgate lies created by hoaxers, through their own incompetence.

There has been a lot of activity on the Internet recently concerning the forged CBS documents. I do not even dignify this statement with the traditional weasel-word “alleged,” because it takes approximately 30 seconds for anyone who is knowledgeable in the history of electronic document production to recognize this whole collection is certainly a forgery, and approximately five minutes to prove to anyone technically competent that the documents are a forgery. I was able to replicate two of the documents within a few minutes. At time I am writing this, CBS is stonewalling. They were hoaxed, pure and simple.  CBS failed to exercise anything even approximately like due diligence. I am not sure what sort of "expert" they called in to authenticate the document, but anything I say about his qualifications to judge digital typography is likely to be considered libelous (no matter how true they are) and I would not say them in print in a public forum.

....

It is therefore my expert opinion that these documents are modern forgeries.

And in his original, where my ellipsis appears in this quote, you will find a fabulously detailed, well organized, and inherently credible explanation for how he came to that opinion, and what his qualifications are for doing so. He buttressed those conclusions with no less than ten detailed follow-up reports, the last of which is dated January 11, 2005. During the course of those follow-ups, Dr. Newcomer tackled and, in my opinion, thoroughly destroyed a contrary opinion from a Utah State professor named David Hailey, whose final and still wishy-washy conclusion was: "In the end, I am confident I have demonstrated the memos were typed, but I cannot support the argument they were typed on any specific machine." In other words, despite months of efforts and all his supposed expertise, Dr. Hailey could not duplicate the Killian Memos on any typewriter, anywhere. And Dr. Hailey's flailing efforts were by far the most persuasive attempt to even postulate a way in which the Killian Memos might have been genuine.

That's not to say that there aren't lots of other potential expert witnesses that both sides might consider engaging. But if CBS hired me tomorrow to defend it in Dan Rather's lawsuit (which it won't, although it did seem pretty happy the last time I represented CBS News before the Fifth Circuit some years ago), the very next phone number I'd dial would be Dr. Newcomer's. I've dealt with hundreds of expert witnesses and thousands of expert witness reports over the last 27 years of my commercial litigation practice, and every instinct in my body tells me I'd want CBS to have the benefit of Dr. Newcomer's expertise — just his honest, unshaded opinions, even though they make the entire "60 Minutes II" team look even less competent and more corrupt than CBS has ever yet admitted. I'd want that because I'd be gunning to establish "courtroom truth," not "boardroom truth."

*******

But there is a huge question whether CBS actually does want to take advantage of this splendid opportunity to prove in court, once and for all, that the documents Dan Rather was peddling to the American public were forgeries. It didn't press the Thornburgh-Boccardi Panel to come to a conclusion on that point — just like it didn't press the Panel to go bare-knuckled when it came to assessing Dan Rather's personal share of blame. Until now, CBS has only cared about "boardroom truth" — which often is, shall we say, a more malleable concept by its very nature.

And that's why Rather's case — as incredibly, stinkingly, appallingly, cosmically bogus as it is — nevertheless has some considerable settlement value: Not because CBS is likely to lose to Rather if the truth is confirmed in court, but because individual decision-makers within CBS may have overwhelming vested interests in ensuring that the facts are not thoroughly probed in court.

By failing to fire Rather for cause, by whitewashing his personal responsibility while only firing others, and by enabling the shattered fragments of his journalistic reputation to keep stumbling along for almost two more years before he finally staggered away from the Tiffany Network on his own two feet, CBS has put Dan Rather in a position from which he may very well be able to effectively blackmail the network into a settlement. Rather may be saying to CBS: "I'm going to show how righteous I was, and that you were wrong!" But what CBS may hear (and justly fear) is: "I'm going to make you show how corrupt I was, and that will necessarily also show that you were right there in that corrupt bed with me."

*******

Part of the settlement will be monetary. Rather had a seven-figure annual income as anchor, and so CBS is quite literally used to writing him checks in that order of magnitude, or perhaps the next one up. It's not like it's going to come out of any corporate officers' year-end bonus money anyway, is it? Rather implied at one point during his Thursday night appearance on "Larry King Live" that he's financing this lawsuit out of his own pocket, and he's probably paying his lawyers by the hour rather than through a contingent fee arrangement. His law firm, Chicago-based Sonnenschien Rath & Rosenthal, generally represents blue-chip corporate clients who pay by the hour. In his continuing derangement, Rather probably thinks his case is worth so much on its merits that it would be uneconomical for him to give away any significant fraction of it to his lawyers, and that he'd end up paying them less on an hourly-rate basis. And the sad, sad fact is that CBS is probably going to turn out to be so gutless and litigation gun-shy on this particular matter, he's probably right.

The actual sticking point is likely to be one of draftsmanship and face-saving: What will the negotiated press release say by way of apology? Because that's certainly a great deal of Gunga Dan's motivation here. And thus, as I wrote yesterday, CBS may already be taste-testing several varieties of crow-sandwich to see which ones it can tolerate that might also appease the Rather palate:

Dan Rather was and is a reporter of exceptional integrity and ability whom CBS was proud to have as the public face of CBS News for more than three decades. CBS sincerely regrets the possibility that anything it said or failed to say may have given rise to an inference or appearance of greater personal responsibility on the part of Mr. Rather for the broadcast in question than may or may not have been actually justifiable. CBS hereby reaffirms that it was never CBS' intention to "scapegoat" Mr. Rather, and regrets any words or deeds which might have given that impression. After a frank and professional airing of views, the parties have resolved all misunderstandings between them, and they have agreed to the immediate termination of all litigation on terms that both sides find satisfactory but about which, due to their mutual respect, both sides will refrain from any further comment.

Just about makes you want to puke, huh? But that's how I think it's most likely to end — with a whimper, not a bang, and definitely outside the spotlights that would be focused on a public trial. Because for the civil justice system to establish the objective truth through a public trial, at least one side has to want the truth to come out. And when the side with the money really doesn't, those cases don't very often go to trial.

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UPDATE (Mon Sep 24 @ 9:39am): NYU Department of Journalism Associate Prof. Jay Rosen's post and comments (especially his in response to various of his readers) are clear-eyed and heartening to those of us who still want to believe in journalistic ethics. Highly recommended.

----------------------

Previous posts about Rather v. CBS, from oldest to most recent:

  1. Just tell me when I can get in line for tickets to attend the trial: Rather v. CBS
  2. Adjusting Mary Mapes' meds

Posted by Beldar at 01:48 AM in Law (2007) | Permalink

TrackBacks

Other weblog posts, if any, whose authors have linked to Rather v. CBS: Experts, "boardroom truth" versus "courtroom truth," and settlement values and sent a trackback ping are listed here:


» 2007.09.22 Politics and National Defense Roundup from Old War Dogs

Tracked on Sep 22, 2007 12:13:52 PM

» Dan Rather vs. CBS, cont'd from Overlawyered

Tracked on Sep 23, 2007 11:26:09 AM

Comments

(1) Mark Kraft made the following comment | Sep 22, 2007 7:49:41 AM | Permalink

Contrary to your opinion, I find nothing about Dan Rather's case to be bogus.

Really, the issue of the alleged/supposed counterfeits don't play into it, particularly. Instead, the issue is twofold:

1> Did CBS meet its contractual requirements to Dan Rather?
2> Did CBS knowingly use Dan Rather as a scapegoat, ignoring information they had at hand as to the degree of Rather's culpability, and/or basically organizing an inquiry with pre-set conclusions.

The fact is:

1> There is a substantial evidence that CBS failed to meet its contractual requirements to Dan Rather -- they were apparently supposed to hire him as a "full-time correspondent" for 60 Minutes II and 60 Minutes, but failed to do so.

AND

2> The evidence that Rather's lawsuit cites about CBS setting Rather up as a scapegoat is supported by investagative reports that date back to the time of his dismissal.

Anyone who is intellectually curious about the behind-the-scene machinations of CBS during the time of Rather's dismissal should read the article Dan Rather's Long Goodbye: Who Done it by Joe Hagan, from the New York Observer, published back in March 2005.

Hagan's article says a few very interesting things:

1> It confirms Dan Rather's claim that he sought -- or offered-- to hire a private investigator to verify the source of the documents and establish the provenance of the story. (CBS apparently denied this at the time.)

2> It also confirms that CBS' president turned down Rather's offer, and hired a private investigator, an Erik T. Rigler, an employee of the New York–based corporate investigative group Safir Rosetti, to determine the facts.

3> Several key players in the matter were highly critical of CBS' so-called independent investigation into the matter. Bill Burkett -- whether you believe/trust him or not -- referred to the panel as "nothing more than a corporate damage-control plan," and refused to deal with it, even though he may have justifiably felt burnt by Dan Rather and by the loss of his anonymity.

3> Most damning, Mr. Rigler -- CBS' own P.I. -- said on tape that Ms. Mason, the CBS News senior vice president, didn't want him reporting his findings to the panel, despite being originally instructed to do so. In a recorded conversation, he said that he'd consulted with her about questions the panel had asked him: "'You know, these people are asking a lot of questions about this. I'm not sure how I'm supposed to answer-so what's my role in all of this? Am I CBS's investigator or the commission's investigator?'"

Ms. Mason, he told Mr. Smith, "promptly chewed me out," saying explicitly: "You should never talk to those people!"

"I said, 'Wait a minute-you're the one that told me to call them!'" he recalled. "So it's like, I guess, a runaway grand jury or something like that."

Play that "runaway grand jury" claim in court, along with the other taped conversations at the time in which Mr. Rigler basically confirms the fundamental facts of the story, along with his opinion that CBS only hired him to claim due dilligence in the firings, in what was essentially a phony investigation where leads were ignored and facts were intentionally withheld from the factfinding panel, and you get a very different case indeed.

It seems likely that Dan Rather will be able to draw on these tapes as evidence. It also seems likely he will get the testimony of Mr. Rigler. That, plus a fairly clear breach of contract issue, makes this case a lot more than "bogus".

What strikes me as bogus is to dump all the burden of proof/truth for the accuracy of a news organization's reports on an anchorman who probably spends half his time going between one place on the globe and another. Dan Rather was part of a LARGE organization, and is hardly an expert in determining the provinance of a set of documents. Ultimately, he has to defer to the judgement of others.

But, even if enough of the blame could reasonably be put on his shoulders to justify his dismissal -- a matter I'm not really contesting -- the question still remains as to whether CBS fulfilled its contractual obligations to Mr. Rather, and whether CBS intentionally manipulated the situation to come to a predetermined conclusion, thereby intentionally damaging his reputation.

Well, there's a lot of indications that this is exactly what happened.

For this reason, I suspect that CBS will want to do what it can to settle this case. They could get stubborn and take it to court, thinking that they had every right to dismiss Mr. Rather, but it could prove very costly to what is left of their reputation.

(2) Looking Glass made the following comment | Sep 22, 2007 8:23:46 AM | Permalink

What reputation is there to save?

CBS News ratings are tanking even by the standards of modern news shows. NewsBusted off of NewsBusters.org claims that Telemundo has higher ratings.

Caveat: Newsbusted is a standup comedy routine.

Two interesting off-the-wall possibilities:

CBS News shuts down. The savings on Katie Couric's salary goes a long way toward Rather's settlement while undercutting the threat to CBS.

Second possibility: Cut Rather off at the knees by offering him his old anchorman job back. Keith Olbermann has blazed the trail for anchorman as shock-clown. We're talking the movie Network here.

Newcomer's site also has an excellent takedown of the Columbia Journalism Review.

(3) Mark Kraft made the following comment | Sep 22, 2007 10:34:46 AM | Permalink

I see nothing odd about saying that Telemundo has higher ratings. There is no "big three" anymore, when it comes to news -- cable has seen to that -- and Telemundo is practically the only Spanish-language option available to a very large minority in this country.

It stands to reason that if Telemundo is about as big as CBS News, then they're probably about as big as NBC or ABC... and in a few years, will probably be bigger than any of the above, and perhaps even bigger than Fox, assuming that consumers continue to get more choices on where they get their news.

Also, this post mentions:

"Dr. Newcomer tackled and, in my opinion, thoroughly destroyed a contrary opinion from a Utah State professor named David Hailey . . . with no less than ten detailed follow-up reports, the last of which is dated January 11, 2005."

Have you checked out the second study posted by Dr. David Hailey that "began in January 2005 and ended on December 3 of the same year"?

It's more recent than Dr. Newcomer's posts, and, perhaps most important, it relies upon unfaxed photocopies of the original documents, scanned at 9600 dpi.

If you read Dr. Newcomer's most recent critique regarding the documents, he said "the whole analysis of font wear is meaningless in terms of the CBS memos. They were faxed. Faxing reduces the character to 200dpi, black and white."

Well, Newcomer's immediate dismissal of establishing font wear as a kind of "typewriter fingerprint" flies right out the window, with the higher quality scans. And Dr. Hailey's latest document does, indeed, do a good job of establishing that there was font wear unique to a typewritten document, in addition to alignment issues that were more consistant with a typewriter than with a digital document.

I have to admit, up until now, I have tended to think that the documents were most likely forgeries -- quite possibly replications of documents that may have existed, but were either not available anymore or otherwise destroyed. Dr. Hailey's research, however, makes me think it likely that documents are, infact, legitimate.

Of note, he also suggests a way to prove it. Given that he's pretty well established font wear in the document, it's reasonable to assume that there are many, many other documents out there from the same Air Force National Guard unit that could be used to authenticate his findings and resolve the font issues once and for all.

It's not necessary for Hailey to definitively say what font or what typewriter was used... only to show that it appears to be the same typewriter, using the same font as one we know was used by the unit at that time.

Ultimately, this whole matter should have nothing to do with politics, and everything to do with the truth. Dan Rather may very well feel driven to see this case go to trial in order to reveal his truth to the public. The man is most likely quite wealthy, and has already stated that most of the $70M he is sueing for will be donated to journalistic organizations... so perhaps he has a much stronger case than any of us could suspect and feels compelled to go to trial. He's obviously taken his time in going to trial. Anyone want to place odds on whether he's done his homework or not?

He's going to take a lot of flak from people who think they know everything they need to know, based on faxed, pixelated copies of a few old documents, and what CBS' "experts" have told them, but if he has used his considerable abilities to investigate the loose leads, and has reached some pretty convincing conclusions, this could be very interesting indeed.

He told Larry King the other night that he wasn't convinced that the documents were forgeries. For most of America, that sounds like crazytalk... unless, of course, he knows something that other people don't.

Dan Rather may, very well, have a big ego and the need to be right, but I, for one, am not about to assume that he is an idiot.

(4) clarice made the following comment | Sep 22, 2007 11:17:35 AM | Permalink

Just a reminder of what CBS would not want highlighted.
link

(5) clarice made the following comment | Sep 22, 2007 11:22:12 AM | Permalink

CBS clown show
Corrected link.

(6) Jim Treacher made the following comment | Sep 22, 2007 11:51:23 AM | Permalink

He told Larry King the other night that he wasn't convinced that the documents were forgeries. For most of America, that sounds like crazytalk... unless, of course, he knows something that other people don't.

Well, there's a first time for everything! He may very well be right, if he can prove Bill Gates has invented a time machine.

(7) Bill Faith made the following comment | Sep 22, 2007 12:00:51 PM | Permalink

You might get a chuckle out of something that was first posted on American Thinker back in the fall of '04 and more recently at Old War Dogs:

The Road Less Graveled
(A down home message for Dan Rather in the colorful Texas idiom he so loves)

Y’all know what we all been thinkin’ out here in Texas, Dan, since you started all this foolishness? We think y’all been pissin’ down our necks an’ tellin’ us it’s rain for so long that you boys done got to believin’ it yourselves. Heck, we think maybe you been back East so long you got yourself thinkin’ us folks out here couldn’t hit sand if we fell off our horses; couldn’t hit water if we fell outta the boat. Danged if you ain’t been treatin’ us like you think we got squirrels swimmin’ in our gene pools or sumthin.’ You need to remind yourself that a tree don’t ever get too big for a short dog to lift his leg on, Dan.

Bout them documents bein’ genuine; well, hells-bells, Danny Boy, Grannie’s glasses are so thick, when she looks at a bare wall she see’s folks wavin’ at her, an’ even she can tell them memos are bout as phony as hips on a rattlesnake. We’re startin’ to think your brain done got harder than a woodpecker’s lips if you can’t see that. As far as that story bout George an’ his National Guard duty, looks to us like you’re tryin’ to put wheels on a cow an’ call it a dairy truck. Then you go pokin’ up her butt hopin’ you’re gonna find ice cream. Besides, ever time you durn fools put that picture of young George in his flyboy outfit on the TeeVee, ol’ Jane Fonda loses another herd of her Vagina Voters. Hell, Charlene says that sweet boy’s purtier than my new tangerine metalflake bass boat.

Well, Danny, you still ain’t lost all your redneck habits; you boys took one pickup load to the dump an’ come back with two. Dadgummit, Dan, where you gittin’ all this stuff? You been callin’ some kinda mystery numbers that ol’ boy, whatsisname, Kenneth, is bringin’ you offa bathroom walls at truck stops? Somethin’ you oughta be worryin’ about, Danny Boy: you know how the boys say when you go on a hunt always make sure to save a round for your huntin’ guide? Like if he don’t find nuthin’ else for you to shoot? You suppose any a them rich, fancy-shmancy, New York dudes you work for ever been on a hunt and heard that, Dan, hmmm?

You know how you always been fond a sayin’ you feel like a long tailed cat in a room full a rockin’ chairs? Well, seems to us like you’re startin’ to look more like the ground floor tenant in a two-story outhouse. Yeah, for sure you ain’t lookin’ like the tallest hog at the trough no more. Why, we bet you got yourself wired so tight right now that if we stuck a chunk a coal up your butt it’d come out a diamond in about five minutes. Last time we seen you on TeeVee your smile looked like Charlene’s little ol’ chihuahua dog that time he bit down on one a them ol’ yeller-jacket wasps; you know, kinda like that look a feller gets when he squats with his spurs on.

An’ about your boss, that city slicker fella, Johnnie Klein, the one said somethin’ bout all us sittin’ out here in our long johns? Well we’re gonna give him some advice so good he can take it out back an’ bury it in a Mason jar. You see, the fact is, Danny Boy, now that all us earthworms is gittin’ guns, you big birds is gonna have to be more careful bout where you’re peckin.’ Somebody needs to tell that dude, Klein, that his cage may still be turnin’ but his squirrel’s done died. Course, maybe the boy can’t help hisself; it might run in the family, you know, generic. We heard tell when he was born his ol’ momma carried the little feller around upside down for a whole year wonderin’ why he only had one eye.

Yeah them ol’ boys up there at Power Line done gone an’ slapped you dudes nekkid an’ hid your clothes. Them blogger cats watched you fellers jump in that ol’ litter box an’ they just flat covered you up, quicker ‘n slicker than WD 40 on a doorknob. Yeah you boys done gone skinny dippin’ in a pond full a snappin’ turtles. Looks like them broadcastin’ geniuses at CBS done let them yeller-dog Democrats talk you inta sellin’ your mule so you could buy a plow. When you crawled into the sack with little Miss McCauliffe you done got yourself a real ugly bed partner there, Dan, like a real three-bagger, I mean. You know the drill: one bag over her head, one over yours and one over the dog’s so’s at least he’ll have some respect for you come mornin.’

Before all y’all up there at CBS go tryin’ to saddle up another hog for a quarter horse race, you need to think about this: us ol’ boys out here know a keyboard ain’t where you hang the pickup keys and a byte ain’t what Bubba’s pit bull did to Cousin Billy; we know modem ain’t what we did when the weeds got up to the porch and digital ain’t countin’ on our fingers, least not any more. Yeah, we done got ourselves a dog in this fight, a bloggin’ pit bull, Dan Boy, an’ he’s justa slobberin’ for another big ol’ bite of Liberal blubber butt. Didn’t your ol’ daddy ever tell you that you ain’t never gonna be the brightest bulb on the tree if you go huntin’ bobcats with a BB gun?

But cheer up, Dan, maybe one a these days all you pointy-headed, liberal, media fellers will see the light. Course, seein’s where y’all seem to be keepin’ them pointy heads, it’ll prob’ly be one a them there things the doctors use.

Whatcha call ‘em, proctoscopes?

Russ Vaughn,
A Texan

P.S. Charlene says to tell you don’t even think about comin’ back to Texas. Way folks out here feel, you’d have to tie a pork chop around your neck just to get a dog to play with you. Well, and maybe Mollie Ivins.

(8) Looking Glass made the following comment | Sep 22, 2007 12:03:38 PM | Permalink

Treacherous: "Prove I'm Not Queen of the Space Unicorns"

(9) Bill Faith made the following comment | Sep 22, 2007 12:04:27 PM | Permalink

I guess I should have mentioned that I'm the webmaster at Old War Dogs and have Russ's permission to pass on anything of his that's posted there.

(10) Looking Glass made the following comment | Sep 22, 2007 12:17:21 PM | Permalink

The Throbbing Memo

(11) p.lukasiak made the following comment | Sep 22, 2007 3:43:07 PM | Permalink

Of note, he also suggests a way to prove it. Given that he's pretty well established font wear in the document, it's reasonable to assume that there are many, many other documents out there from the same Air Force National Guard unit that could be used to authenticate his findings and resolve the font issues once and for all.

Unfortunately, there is no reason to suspect that these documents were typed at a TexANG facility. They are definitely not official documents -- rather they would be part of a personal file kept by Killian.

every member of the military is strongly encouraged to maintain their own personal files of all documents concerning their military career -- and this includes maintaining "CYA" files and "memos to self" when one is ordered to do something that is questionable.

One aspect of Bush's own military records is that while there is no question that Bush was "AWOL" (in the colloquial sense), Killian appears to have attempted to insulate himself from the efforts of Hodges and Staudt to cover for Bush. Killian's name does not appear on any papers concerning Bush's attempt to scam his way out of his training obligation by tranferring to a unit that he was completely ineligible for. And rather than attempt to cover for Bush, Killian signed the "not rated" OER.

This circumstantial evidence strongly suggests that Killian wanted to disassociate himself from the Bush problem --- and creating the kinds of documents that make up the "Killian memos" would play an important role in protecting himself if/when questions were raised.

The key here is that in protecting himself with these kinds of documents, killian would be assigning blame to his superiors, so its unlikely that he would have kept these kinds of documents with his official files -- or even typed them (or had them typed) at his base.

(12) antimedia made the following comment | Sep 22, 2007 4:33:50 PM | Permalink

It's amazing to me the number of people who continue to fantasize about this story.

Bush was never AWOL, and the records of his service clearly prove that. Only someone completely ignorant of National Guard procedures and recordkeeping, or someone stedfastly unwilling to stare the truth in the eye could think that.

As far as the disputed memos go, Killian's own secretary said they were forgeries, and she ought to know. She also said, "I didn't type them."

Furthermore, Killian's own wife said he couldn't type, so, IF he was going to type a CYA memo, the secretary would have been the one to type it. Add to that the fact that Killian's wife said that he "admired" Bush, and the theory that Killian typed a "CYA" memo becomes even more implausible.

You can wish the memos were genuine til you're blue in the face, but that won't make the fact that they were forgeries go away.

Trust me, Dan Rather knows that and so does Mary Mapes. They just refuse to accept the fact that they were beaten into submission by a "bunch of amateurs" in their pajamas.

(13) antimedia made the following comment | Sep 22, 2007 4:55:34 PM | Permalink

Mark, I am not a document expert and therefore am not qualified to judge Dr. Hailey's analysis of the documents. However, I think you should have pointed out that, at a maximum, Dr. Hailey has determined that the documents were typed, not written on a word processing system. (I can't say if he's done that or not, but I'll take his word for it.)

However, he also says this

I cannot say whether the memos are authentic. Nor can I say for certain that they were
produced in Press Roman, although most of the evidence indicates they probably were (or in a derivative) . But I can say that they were not done in TNR, and I am totally persuaded they were typed.
So what the Dr. has proven (if he has) is that the documents weren't written in Times New Roman. That's it. That's a long way from your conclusion that Dr. Hailey's research "makes me think it likely that documents are, infact, legitimate".

If the documents were typed, that proves nothing about their authenticity nor does it address the manifold other evidence that attests to their falsity.

(14) p.lukasiak made the following comment | Sep 22, 2007 5:06:24 PM | Permalink

Bush was never AWOL, and the records of his service clearly prove that. Only someone completely ignorant of National Guard procedures and recordkeeping, or someone stedfastly unwilling to stare the truth in the eye could think that.

Puh-leez. Bush was never "AWOL", but only in the technical sense -- and only because the Air Reserve Forces had administrative means of dealing with Reservists and Guardsmen who stopped showing up for duty, and didn't need to use the Uniform Code of Military Justice to discipline bums like Bush.

But the bottom line is that

1) Bush was required by Federal Law and Regulation to show up for at least 90% of his scheduled unit training, and Bush failed to do so -- in a very big way-- for two years running.

2) Bush was required to maintain his qualifications for his assigned job -- and as a fighter pilot, that included maintaining flight status. Bush did not have the option to NOT be qualified for his assigned job -- he did not have the option to skip his annual physical. The requirement for Bush to get that physical was effectively a standing order. Bush's failure to show up for his physical as required represents a conscious and deliberate violation of a standing order.

As far as the disputed memos go, Killian's own secretary said they were forgeries, and she ought to know. She also said, "I didn't type them."

Knox never said the memos were forgeries. She only said that she did not recall typing them.

Add to that the fact that Killian's wife said that he "admired" Bush, and the theory that Killian typed a "CYA" memo becomes even more implausible.

if Killian "admired" Bush in 1972-73, why didn't Killian sign off on Bush's (bogus) transfer request? Why did Killian send out the "not observed" OER on the first day that he could? Why did Killian not respond to the Air Force's demand -- in response to that OER -- that he get Bush's training info from the unit that Bush supposedly trained with in Alabama, and submit an OER based on that information?

Bush was a complete screw up from May 1972 onward, and as his commanding officer Killian was directly responsible for Bush's actions. Unless you want to accuse Killian of being corrupt and/or incompetent, you need to deal with the fact that in all likeihood he would have taken steps to protect himself from the fallout of Bush's dereliction of duty -- and that would include keeping a CYA file.

This doesn't mean that the memos are authentic... all it means is that either you say that Killian was corrupt/incompetent, or that there were probably documents created by Killian to cover his butt -- because no honest, competent officer would allow himself to be put in the position that Bush and Hodges put him in without doing something to protect himself.

(15) p.lukasiak made the following comment | Sep 22, 2007 5:14:49 PM | Permalink

If the documents were typed, that proves nothing about their authenticity nor does it address the manifold other evidence that attests to their falsity.

with all due respect, if it could be determined that the documents were typed, the supposedly "manifold" evidence wouldn't mean squat. I mean, sure you can talk about things like the "wrong" abbreviation being used -- but if you think that these kinds of errors "prove" forgery, then a whole lot of the "official" documents are forged. For instance, on the transfer request form signed by Bush in May 2004, his job code is listed wrong...TWICE. And on his discharge form, the zip code for Harvard is wrong. And there are lots of other anomolies on other documents.

In other words, these kind of anomolies on documents that aren't even represented as "official" documents are not indicative of forgery.

(16) antimedia made the following comment | Sep 22, 2007 5:38:30 PM | Permalink

This is a ridiculous waste of time, because you obviously don't care about the truth. The fact is that Bush was credited with more than the required hours of training for every year he served.

As a vet myself, I can assure you that you cannot be a little AWOL. You either are or you're not. Bush never was. The known documents prove that conclusively, and your beating and flailing about to claim otherwise is a waste of time.

Knox stated that "[the documents] are not real" to the Dallas Morning News. She further stated "I did not type these". You can spin that any way you want, but a rational person would say that Ms. Knox identified the documents as forgeries. Indeed that is the precise headline that USA Today used in the September 15, 2004 edition - "Secretary: Memos are forgeries".

Gesticulate all you want. The ball is in your court.

The rest of your claims are equally as bogus, but I won't waste any more time addressing them. Your entire argument is based on a house constructed of lies designed to fool the uninformed.

I am not one of those.

(17) Sav made the following comment | Sep 22, 2007 5:54:42 PM | Permalink

I mean, sure you can talk about things like the "wrong" abbreviation being used -- but if you think that these kinds of errors "prove" forgery, then a whole lot of the "official" documents are forged.

How about the fact that Killian's signatures on the CBS copies were completely different than than his real signature? That not matter either?

(18) antimedia made the following comment | Sep 22, 2007 6:10:21 PM | Permalink

Manifold other evidence - the documents were not typed on the standard TANG stationary; two contemporaneous witnesses stated unequivocally that Killian admired Bush and never would have written such a document; the only contemporaneous witness to claim that the documents reflected Killian's true feelings stated, just days before, that "she had no firsthand knowledge of Bush's time with the Texas Air National Guard". Her claims about Killian's feelings are offset by her clear bias, in writing against Bush and her clear statements that the documents were "not real" and were "not typed by her", the only secretary Killian had at the time; there were numerous other errors in the documents that were not of a typographical nature and indicated that the memos were written by someone unfamiliar with TANG at the time that Bush served, one of the contemporaneous witnesses stated unequivocally that the documents were forgeries.

You don't need typesetting and font evidence to determine the documents were forgeries. Those were merely the icing on an already-rotten cake.

None of this, of course, would persuade you, because your mind is already made up.

(19) p.lukasiak made the following comment | Sep 22, 2007 6:23:15 PM | Permalink

This is a ridiculous waste of time, because you obviously don't care about the truth. The fact is that Bush was credited with more than the required hours of training for every year he served.

having spent about six months gathering and examining the contemporaneous laws, regulations, and Air Force policies and procedure manuals relevant to Bush's service, I can say without fear of contradiction that you don't know what you are talking about. (even Albert Lloyd, the guy who told the 'big lie' about 50 points, admits that wasn't true now.)

Now, you can take my word for it, or you can read about the statutory basis for Bush's requirements

link

then read about the relevant Federal regulations promulgated pursuant to those statutes....

link

and then read how those regulations became the specific policies and procedures that Bush was subject to -- specifically with regard to "attendance"...

link

Then, you can read how to interpret the payroll records from that period....

link

and the 'points' records as well...

link

then you can access copies of Bush's military records from wherever you like, compare the payroll and points records to the relevant laws, regulations, policies and procedure, and explain why you think I'm wrong.

(20) p.lukasiak made the following comment | Sep 22, 2007 6:27:00 PM | Permalink

How about the fact that Killian's signatures on the CBS copies were completely different than than his real signature? That not matter either?

geez, the one thing that Mapes actually did verify with an expert was the authenticity of the signatures (that's what Marcel Matley did -- oh, btw, I was the person that provided CBS with a full list of the Bush military records on which Killian's signature appeared)

(21) antimedia made the following comment | Sep 22, 2007 6:34:53 PM | Permalink

I forgot to mention one of the most damning pieces of evidence. One memo supposedly written by Killian begins "Staudt has obviously pressured Hodges more about Bush". At the time the memo was supposedly written (as established by the date on the supposed memo) Staudt had been retired for over eighteen months and had no influence over or contact with Hodges or anyone else in TANG according to an officer who served at the time. (CBS' claims to the contrary without proof notwithstanding.)

(22) Sav made the following comment | Sep 22, 2007 6:41:51 PM | Permalink

the one thing that Mapes actually did verify with an expert was the authenticity of the signatures (that's what Marcel Matley did --

I hate to tell you this, but Mr. Matley's opinions were laughed at by every legitimate document examiner within earshot. Matley isn't even a document examiner himself.

Even a novice can see the sigs don't match.

(23) antimedia made the following comment | Sep 22, 2007 6:59:50 PM | Permalink

Because lies must be refuted, I will respond one more time. You citation of regulations is meaningless and designed to obfuscate. The truth is Bush fulfilled his obligations and exceeded them every year that he was in the Guard.

May-68 to May-69

Minimum Annual Requirement - 50

ANG Points Earned by Lt. Bush - 253

May-69 to May-70

Minimum Annual Requirement - 50

ANG Points Earned by Lt. Bush - 340

May-70 to May-71

Minimum Annual Requirement - 50

ANG Points Earned by Lt. Bush - 137

May-71 to May-72

Minimum Annual Requirement - 50

ANG Points Earned by Lt. Bush -112

May-72 to May-73

Minimum Annual Requirement - 50

ANG Points Earned by Lt. Bush - 56

Jun -73 to Jul-73

Minimum Annual Requirement - 50

ANG Points Earned by Lt. Bush - 56

Unlike you, I never set out to prove Bush lied or didn't lie. I simply sought the truth. The truth is, Bush did not receive special treatment to get in the Guard, served honorably, including two years of active duty, fulfilled his Guard obligations completely and was honorably discharged from the service.

Thousands of words of argument and obfuscation will not change the facts one iota.

(24) p.lukasiak made the following comment | Sep 22, 2007 7:01:51 PM | Permalink

As a vet myself, I can assure you that you cannot be a little AWOL. You either are or you're not. Bush never was.

I'll try and explain it to you in a simplified version

1) Under federal law, as a draft-deferred National Guardsman, Bush was required to assemble and train with his unit 48 times each fiscal year (plus be on active duty 15 days a year.) This law authorized that regulations be promulgated pursuant to the law.

2) The regulations promulgated allowed National Guardsmen to miss (and not make up) no more than 10% (i.e. no more than 4) of the required training periods each fiscal year.

3) Under Federal law and regulation, a draft deferred obliger who failed to perform the required training had "Failed to Satisfactorily Participate". And under the laws/regulations, when a draft deferred obliger Failed to Satisfactorily Participate, he was required to be placed on active duty for up to 2 years (2 years less the amount of time spent on active duty as a reservist.)

4) In FY 1971-72, Bush missed (and did not make up) 8 of 48 scheduled training periods. In FY 1972-73, Bush missed (and did not make up) 12 of 48 scheduled training periods.

5) In addition to not showing up for the minimal number of training periods during FY 1972-73, during that year Bush was credited with performing substitute training well outside the permissable timeframe allowed for substitute training for scheduled training periods for (IIRC) an additional 12 periods.

6) During FY 73-74, Bush was credited with only 12 periods of required training, 8 (IIRC) of which were substitute training periods that were outside of the timeframe that limited substitute training.

Now, this ignores the fact that as someone who was designated a fighter pilot, Bush was required to perform an addition flight training each quarter (I think it was 12 hours each quarter). And it ignores the fact that the whole point of this training was to maintain Bush's readiness to perform the job that he was assigned -- i.e. F102 pilot -- but since Bush had lost his flight certification, most of the time when he was credited with training, he was not doing so in a way that fulfilled other requirements established by law, regulation, and Air Force policies.

In other word, you don't have a clue. I do.

(25) Beldar made the following comment | Sep 22, 2007 7:10:30 PM | Permalink

p.lukasiak, thanks for your comments and all the links back to your blog. Tell ya what: Bring me a video of anyone producing a replica of even one of the Killian Memos on any typewriter that's even arguably as close as what anyone in the world can do using Microsoft Word, and I'll let you have the exclusive use of my blog for a month, okay? (And in fact, if you can do that, you won't need my blog, because you'll immediately find yourself a hero of interests who can offer more bandwidth and public attention than I can ever offer you.)

Until then, I'd rather my comments section for this post not become, in effect, a duplicate of your blog. I'm not above a little cross-promotion myself, but when I've linked more than about three times back to my own blog on someone else's comments, I begin to feel like I might be outwearing my welcome, and that if people are that interested in what I'm saying, they'll find their own way here without my posting a dozen links. I'm not trying to run you off, I'm just asking that you be discrete. (And if you do feel obliged to leave further links, please use .html so I don't have to re-edit your comments. Thanks.)

As for Dr. Hailey, I would very much enjoy seeing him examined or cross-examined, and his opinions and in particular his methodology put up against Dr. Newcomer's. The point of this post, of course, is that no such competition of opinions is likely to occur in the courtroom as a result of Rather's lawsuit because neither he nor CBS is really motivated to try to prove that the documents are or are not genuine.

Mr. Kraft: Thanks for your comments, too. You're entitled, of course, to your own opinions about Rather's sanity, integrity, thoroughness, etc. If he's been secretly directing an army of competent investigators to prepare for his case, that's strikingly well concealed in his public appearances or in the complaint his lawyer has drafted, but you'll be entitled to point the finger and laugh at us skeptics when and if he ever produces them in court.

We do agree that there are probably grounds to criticize the work and results of the Thornburgh-Boccardi Panel. I don't mean to impugn the integrity of those who participated in it, but at best, it was an exercise in developing what I've described here as "boardroom truth." It also lacked the basic elements of the adversary process in the civil justice system — no subpoena power, no opposing advocates.

(26) antimedia made the following comment | Sep 22, 2007 7:11:18 PM | Permalink

Your site is really irritating. You make reference to documents but provide no links to them so someone can verify your claims.

One example, from your points page - you state, in note 11 "One of the first thing a member of the US Military is told is to create their own personal “202 file” and maintain their own record of service in the Armed Forces, in case questions arose."

You provide no proof of this. Furthermore, I served 6 years in the Navy contemporaneous to Bush's service in TANG, and I can testify with certainty that I was never told any such thing, never heard of a "202 file" and don't know anyone, of the many vets I associate with, who has.

It appears you either made that up or heard it from someone and took it to be true without bothering to do any research.

Have you ever served in any branch of the US military?

(27) Mark Kraft made the following comment | Sep 22, 2007 7:18:24 PM | Permalink

"what the Dr. has proven (if he has) is that the documents weren't written in Times New Roman. That's it."

No, he shows more than that.

If you read the accompanying document on Hailey's website, he also seems to have shown that the signature was signed using a pen, on top of a typewritten document, and that the ball of the pen interacted with the typed text underneath the signature, changing course slightly during the penstroke. This effect only happens with typed documents.

As a result, the authenticity of Killian's signature becomes much more important.

As for the concerns of Killian's secretary -- who was 86-years-old when asked about the documents -- it's entirely possible that she didn't type the document.

What she said, specifically, was:

“I know that I didn’t type them. . . However, the information in those is correct.”

“Did or did not Lt. Bush take a physical as ordered by Col. Killian,” Rather asked Knox.

“The last time, no he didn’t,” said Knox. “It was a big no-no to not follow orders. And I can’t remember anyone refusing to. Now for instance, with the physical, every officer knew that before his birthday he was supposed to have that flying physical. Once in a while they might be late, but there would be a good excuse for it and let the commander know and try to set up a date for a make-up. If they did not take that physical, they were off flying status until they did.”

Did Knox ever hear Killian talk about this, or did he write memos about Bush not taking the physical?

“He was upset about it. That was one of the reasons why he wrote a memo directing him to go take the physical,” said Knox. “I’m going to say this, but it seems to me that Bush felt that he was above reproach.”

So, while Killian could've created the document after the fact, assuming he had the right paper, etc., it does make me think it likely that the documents are legitimate, and quite possible that he typed them himself. If they were authentic documents, officially stored, it would also help to explain the chain of provinance from Killian to Burkett.

There are also some issues brought up by Hailey as to spacing between lines, etc. that would be consistant with the document not being typed by a professional typist. Hailey cites that the typist had a fractional carriage return in the document, and that the paper was aligned slightly crooked in the typewriter, for instance.

So, all the more reason for there to be a very thorough review and comparison with other documents typed and signed in the past by Killian. That, ultimately, is how the validity of this document can be convincingly confirmed or refuted. It would also help explain a few of the questions that people have had until now, including the superscript "th" that was cited so much in the past.

The fact that up until now, there haven't been ANY comparative documents and signatures for the public to examine, and that people are working from crappy faxed copies scanned at low-res when there are high-quality scans out there doesn't really impress me, especially when some of the strongest arguments about the document being unverifiable are based on the fact that people were originally working with a crappy, pixelated copy.

How can the public play a useful role in establishing the validity of these documents, when they lack the materials to do so? The best that any of us can say right now is "I don't know for sure."

That's why I think Rather's statement about him feeling that the document could be real sticks out, because he very well might have the necessary materials to establish the document's validity. Perhaps he and his people have done the time-consuming work necessary, gathering other documents from Killian and comparing them to show that the questioned documents are entirely consistant. If they can show numerous examples of a font wear "fingerprint" that links the Killian documents to other documents created on the same typewriter, that could be pretty compelling in a courtroom.

Lastly, I would note what Dr. Hailey says in his findings:

"Subsequent to my first report, Mary Mapes and Mike Smith (former CBS employees, fired along with Rather) gave me the opportunity to scan and examine unfaxed photocopies of the same memos. The following pages highlight my findings over the past, approximately 14 months..."

So, here we have a documents expert who was given unprecidented access to much higher-quality documents, with the blessing of Rather's collegues. He writes a summary of his final report, completed in Dec. 2006.

The final report was hundreds of pages long, with very detailed findings, and yet what does he supply the public? (Answer: An overview, with enough info to show that the documents were probably typed, but not the high-quality scan, needed to contradict his findings.)

In other words, Dan Rather and friends have locked in a huge advantage to making their case for the moment, and the public has been forced back into the peanut gallery. And, if it was Rather's intent to go to trial, who can blame him, if it helps to show that CBS dropped the ball and used him as a scapegoat?

(28) p.lukasiak made the following comment | Sep 22, 2007 7:26:35 PM | Permalink

"The truth is Bush fulfilled his obligations and exceeded them every year that he was in the Guard."

I hate to break it to you, but there was no such thing as a "50 point training requirement" for Bush. I defy you to cite a contemporaneous law, regulation, or policy/procedure citing such a requirement.

I'd be happy to explain what the whole "50 points" thing is about once you've read the information concerning the laws, regulations, policies and procedures I've already cited.

But to give you some idea of how COMPLETELY ridiculous your "proof" is, here is the document that you say shows that Bush got 56 points from "June 73 to July 73".

link

a few things...

1) the actual "beginning" date of this document is May 27, 1973. The "ending" date for this document is "September 15, 1973".

2) The total number of points earned on this document is 40. The total number of "retirement points" is 38.

3) There are two reasons why "56" is the wrong answer...

a) The source of the number "56" was Albert Lloyd. Lloyd took 19 points for active duty and 16 points for inactive duty (those training periods referred to about) and 15 "gratuitous" points, and declared that it added up to 56 points. It doesn't. It adds up to 50.

b) Bush received only 5 gratuitous points... and because he was placed in an "Inactive Status" effective September 15, 1973, he was NOT ELIGIBLE TO EARN TIME TOWARD ADDITIONAL GRATUITOUS POINTS FROM THAT DAY ON. (Look at the top right of the document). This is the last points record in Bush's file....and it was produced on January 30,1974. Even if Bush was restored to "active status" sometime after Jan. 30 (records indicate that this happened at some point prior to May 26, 1974, but don't say when) Bush could not get to 50 points because gratuitous points were prorated...and the maximum was 15 per year -- and Bush needed all 15 to get to 50.

In other words, your source is so stupid that it didn't even pick up an obvious addition error, let alone have the FIRST CLUE what the Bush was actually required to do.

(29) antimedia made the following comment | Sep 22, 2007 7:30:01 PM | Permalink

Mark, Killian, per his wife, did not type.

(30) Beldar made the following comment | Sep 22, 2007 7:37:21 PM | Permalink

p.lukasiak: E-mail me if you want to discuss making further comments here. In the meantime, use your own blog.

(31) Jim Treacher made the following comment | Sep 22, 2007 7:37:23 PM | Permalink

Lukasiak is as hilarious as ever! Great stuff.

(32) Beldar made the following comment | Sep 22, 2007 7:45:36 PM | Permalink

Folks: The topic is Rather's lawsuit against CBS. I don't mind that veering back into a discussion of the Killian Memos. But I don't want to get into a re-run here of the 2004 election debate over Bush's TANG service in general.

Nor will I tolerate trolls who engage in personal attacks and cross-promote other blog sites, especially after they've been warned and have then proceeded to ignore that warning within the space of about fifteen minutes.

Thanks. — The Proprietor

(33) Jim Treacher made the following comment | Sep 22, 2007 7:45:42 PM | Permalink

That's why I think Rather's statement about him feeling that the document could be real sticks out, because he very well might have the necessary materials to establish the document's validity.

Yeah, like a magic wand.

(34) Carol Herman made the following comment | Sep 22, 2007 8:46:19 PM | Permalink

This is just further proof that the elites on the left are cannibals. And, they eat each other.

That's why it feels as if Dan Rather came out of left field.

In order to go after C-BS; which elevated, thru Murphy's Law, this turd, as far as he could go;

Refuses to see the mischief he created.

But, on the PLUS side, Dan Rather, in October 2004, boosted Bush's re-election to such an extent, Bush gained an additional 4-million votes.

Which crapped on all the "steal" plans the media was counting on producing on election night.

Few, here, may remember. But Bush went to sleep that night, without Kerry calling in to concede.

And, I remember the games played "IF" Ohio falls to Kerry, column. Which was a joke.

On the other hand? Drudge called it hours before the media pundits.

And, I stayed awake long enough, to see Carville, in disgust (1:00 AM Pacifi), saying to Bagala. "Give it up. Bush won."

Dan Rather was never much of a talent; but to do this to C-BS? It's like reading about the "first wife" who was destroying her husband's car, where he was a NASCAR racer.

Gives new meaning to "All In The Family."

This crap, and their Code Pinko hangers on; aren't winning.

Someday, at some point in time, a talent like Mel Brooks will bring us the musical.

(35) Beldar made the following comment | Sep 22, 2007 8:49:26 PM | Permalink

From Mr. Lukasiak, in response to my invitation that he email me:

From: "plukasiak@******.net"
To: beldar@beldar.org
Sent: Saturday, September 22, 2007 7:56:34 PM
Subject: beldarblog

Beldar....

You posted your "don't post here anymore" thing while I was composing my response about antimedia's "points" comment. Below is my response to what you wrote....

paul lukasiak

***************

Beldar...
point taken. Unfortunately, there aren't many subjects that I know backward and forward, and when someone makes demonstrably false statements regarding Bush's military career, i tend to correct them.

BTAIM, my site isn't a blog. It hasn't been updated in a couple of years. Its just the fruits of 6 months (plus) of research on Bush's military records. I'm not trying to promote it -- I don't take ads, and even when I was being offered money to support the site, I refused. (nobody owns ME dammit! ;) )

As to your challenge -- I'm actually an agnostic about the Killian memos. I don't care if they are real or not, because even if they are real all they do is fill in a few details in a narrative for which all the crucial facts have already been established. And lets face it, even if I found the 35 year old typewriter they were created on, creating another copy wouldn't prove the Killian memos were genuine. (I mean, if I actually came up with that typewriter, I'd just be accused of being the forger. I've already been accused of that without the typewriter!) ;)

****************

in other words, I agreed to your terms immediately upon seeing them, but you jumped the gun, and didn't say the FIRST WORD to the idiots who are posting falsehoods that I'm responding to. Maybe at some point, you'll stop being such an ideological a**hole, and try and learn from people who have opinions that differ from yours. p

My reply:

Mr. Lukasiak:

You wrote, "Maybe at some point, you'll stop being such an ideological a**hole, and try and learn from people who have opinions that differ from yours."

I might. But I won't likely pay for bandwidth to support people who call me an "ideological a**hole." [my redactions, per my prissy PG-rated blog policies]

- Beldar

Nice thing about the internet is, just about anyone can play, and everyone controls his own webspace. This is mine.

(36) Mark Kraft made the following comment | Sep 23, 2007 1:58:38 AM | Permalink

"This is just further proof that the elites on the left are cannibals. And, they eat each other."

...as opposed to the elites on the right, who march on in lockstep like lemmings to the cliff?

Frankly, I think it's insulting to try to sum this whole issue up as left/right. And, if there is anything we've seen in the dying days of the Bush administration, it's that plenty of former neocon sympathizers and Bush supporters also "eat their own."

As Beldar suggested, this matter very much revolves around various types of truth. There's the boardroom truth, the truth that will be established if things go to court... and, of course, the truth of what actually happened.

Chances are if we looked closely enough, we'd find plenty of people whose effluence was highly aeromatic. Dan Rather. CBS. The President. The story's source. Politicians, pundits, and CEOs trying to smear people and influence the factfinding process. the "impartial" review board at CBS. The CBS go-betweens with that review board, who very well might of treated the review board like mushrooms (i.e. fed them bullshit and kept them in the dark.) So-called online "experts" who drew conclusions, slandered, hyped, and perhaps even played games of omission and digital trickery-pokery to shape the data to a preset conclusion.

... or how about all of the above?!

Dan Rather could very well win -- or successfully settle -- this case, and still have made some bad mistakes. He could be considered "liberal", or he could equally be considered a critical, cynical journalist. He can be considered a skilled professional with a strong background in journalism -- I consider him as such -- while equally being considered guilty of letting shoddy work slip through the cracks... a statement I also tend to agree with.

Dan Rather could've been absolutely, positively correct about the validity of his story and even about the validity of the documents, and still have made a mistake by going forward with them in the way that he did, without any kind of CYA qualifications as to the validity of the documents.

We seem to expect absolute certainty from the news and what they report, but how realistic is that expectation? If the only thing that could be reported were the facts we could all agree on, what kind of news would be left to report? Throw out 90% of what the president says. Throw out Lewinsky's blue dress. Throw out reports that cigarettes can cause cancer. Throw out Winston Churchill's "paranoid", "shrill" warnings about Nazi Germany's secret rearmament. Is that really what we want?

Personally, I view the Rather matter not as some kind of liberal conspiracy, but more a matter of the Peter Principle in action. Can any of you point out a single major network anchor who always gets it right?

At a certain point, an anchorperson is like an astronaut strapped to the top of a rocket. Sure, they can switch off autopilot and take the helm, but there is usually hell to pay for doing so, and frankly, the system usually works best without their intervention... but sometimes it doesn't.

Even now, with the benefit of hindsight and the critical observations of hundreds of thousands of people, none of us can show with any certainty what the truth of the matter is... so, why should we necessarily fault Rather for not bucking "the experts", especially when we don't know how someone else at CBS represented the expert's opinions when they passed along the information to him?

In any event, even if we did know the truth of the matter, it may be largely tangental to the trial at hand.

We're all at the mercy of yet another fundamentally flawed system -- the legal system -- to arrive at the truth of the matter, and although "legal truth" doesn't equal absolute truth, in large part due to pandering, bias, what we are shown, what we would like to believe, and what never makes the light of day, we have to hope that it serves the greater good.

Frankly, the same thing could just as easily be said about journalism.

(37) Sav made the following comment | Sep 23, 2007 2:10:19 AM | Permalink

Personally, I view the Rather matter not as some kind of liberal conspiracy, but more a matter of the Peter Principle in action. Can any of you point out a single major network anchor who always gets it right?

Please.

I hope it doesn't bother Beldar if I respond to this, but are you going to suggest that had a similar thing happened to John Kerry via Fox News that the left wouldn't have gone apes**t? Give. Me. A. Break.

(38) Sav made the following comment | Sep 23, 2007 2:14:42 AM | Permalink

Incidentally, when initially challenged, instead of checking out the complaints to see if he had his facts right, Rather dismissed them and personally attacked those who pointed them out. That's not an unbiased professional, that's a partisan hack.

(39) Sav made the following comment | Sep 23, 2007 2:17:07 AM | Permalink

Getting back to the topic, I'm really disappointed that this likely won't go to trial. Airing both Rather and CBS' dirty laundry in this affair would've made my year.

(40) Beldar made the following comment | Sep 23, 2007 3:34:36 AM | Permalink

Mr. Kraft, what Rather and his team did was not remotely close to a good-faith mistake. They deliberately chose to ignore, and then to suppress, very emphatic warnings from the very experts they had hired to examine the documents. It is not unreasonable to expect better than that from network news teams.

(41) Looking Glass made the following comment | Sep 23, 2007 6:00:03 AM | Permalink

Two final questions on the topic.

1. What's the next substantive action we can expect and when?

2. What affect would the possible coordination of the of the story with the Democratic "Fortunate Son" anti-Bush campaign have on the case?

(42) Mark Kraft made the following comment | Sep 23, 2007 8:39:21 AM | Permalink

"are you going to suggest that had a similar thing happened to John Kerry via Fox News that the left wouldn't have gone apes**t?"

But didn't it? Swift boat, anyone?!

While the "swift boating" controversy was funded/astroturfed by established rightwing politicos, the Air National Guard issue grew out of documents leaked to the press. Now, if you ask me whether the timing of leaking those documents was political, well... I suspect it was. That said, such considerations shouldn't effect what the media reports and when it reports it.

"what Rather and his team did was not remotely close to a good-faith mistake. They deliberately chose to ignore, and then to suppress, very emphatic warnings from the very experts they had hired to examine the documents."

If you look at the timeline, you'll see that the CBS story came out on Sept. 8, 2004, a CBS statement saying that the story was accurate based upon a "preponderence of the evidence" -- along with a supporting statement by Rather -- came out on Sept. 10. Later on September 10, Rather mentioned the name of one of the experts who authenticated the documents.

As early as the next day, experts used for authentication were coming forward, hedging their bets as to the authenticity of the documents, in some cases providing more detail about their concerns than they originally supplied CBS. Within 8 days from the original blog reports, Rather retracted the story.

So, in that context, can you clearly show that "Rather

    AND
his team. . . deliberately chose to ignore, and then to suppress, very emphatic warnings from the very experts they had hired to examine the documents"?

In other words, are you absolutely certain -- and can provide evidence to show -- that Rather deliberately ignored the issue, instead of perhaps relying too strongly on the assurances of the story's producer... and that Rather tried to surpress his experts?

Your original statement regarding Rather's personal, intentional culpability -- for that is the matter at state in this trial -- seems pretty extreme, under the circumstances, and I don't see the proof of it in the timeline. What you claim as "deliberately (ignoring) and (surpressing)" could very easily be a case of an anchorman who unwisely relied too much on the assurances of others.

This may seem like a legal splitting of hairs, but the distinction is important, especially if Rather aims to show that he was largely out of the loop, and that all the shots were basically called by others.

In the days and weeks following the start of the controversy, it would've been a fairly understandable thing for CBS and Dan Rather to point out his involvement with the various aspects of the story.

But how much of that is windowdressing on the part of the news organizations themselves? In Britain right now, there is a media controversy regarding "noddies", where major anchors are being criticized for being filmed nodding and asking questions to interviews they didn't personally do and couldn't personally attend. The defense of at least one of these anchors are that this is -- and has been -- a pretty standard practice for a long time.

It's obvious why this is done. It's not to bring us better news. It's to package every story that is done with the "branding" and "credibility" that networks build up around these newsanchors.

But let's be honest. Network television is largely a show... a charade... and anchormen and women mostly just read the news. They are, to a very significant extent, there to deflect attention away from the inner workings of the organizations that stand behind them and call most of the shots.

I wouldn't be surprised if the reality of the situation is that Dan Rather had such a busy schedule that his oversight was cursory at best. If he participated in any major coverup, I would suggest that the biggest one was one was that he helped perpetuate the notion that network anchors are somehow omniscient, informed individuals who spend their time off camera rolling up their sleeves and getting down to work, rather than flying out to make a speech here, make an obligatory appearance before corporate investors, do an interview, record promo segments for a handful of affiliate stations, and catch the red eye to Paris in time for tomorrow night's remote broadcast, followed by an awards ceremony and cocktails.

The days of Edward R. Murrow are dead. Long live Katie Couric.

(43) davod made the following comment | Sep 23, 2007 9:43:51 AM | Permalink

Is it a coincidence that this comes up just as another Clinton fundraising scandal is coming to light. What better way to change the subject.

(44) dave made the following comment | Sep 23, 2007 9:58:23 AM | Permalink

Dr. Hailey -- that's a blast from the past. Late one night while all this was going on, Hailey shows up at Wizbang and made all sorts of bizarre comments. And yes it was verified that it was him. I have no idea if those posts would be relevant in any litigation, but maybe Wizbang should contact CBS if Rather intends to call him as a witness?

(45) Looking Glass made the following comment | Sep 23, 2007 11:23:15 AM | Permalink

dave,

The only thing that could possibly make this better would be Dr. Newcomer crushing Hailey's latest like he did all of Hailey's previous efforts.

It's too much to hope for, of course. Hailey's no longer worth anyone's time. As Dr. Newcomer said "All told, the work of Dr. David Hailey Jr. is very poor."

(46) antimedia made the following comment | Sep 23, 2007 12:13:23 PM | Permalink

Mark writes

"are you going to suggest that had a similar thing happened to John Kerry via Fox News that the left wouldn't have gone apes**t?"

But didn't it? Swift boat, anyone?!

While the "swift boating" controversy was funded/astroturfed by established rightwing politicos, the Air National Guard issue grew out of documents leaked to the press. Now, if you ask me whether the timing of leaking those documents was political, well... I suspect it was. That said, such considerations shouldn't effect what the media reports and when it reports it.

Now this is what I would call a willing suspension of disbelief.

From the beginning the Bush Guard story was pushed by well-heeled Texas Democrats, spoon-fed to a media all too willing to believe them. (And I'm not referring to the Presidential elections. This story began long before Bush ran for President the first time, as we Texans know all to well.)

A grassroots effort it was not.

The Swift boat controversy, OTOH, began when a bunch of Kerry's shipmates were appalled by his use of his carefully constructed hero story, which they knew to be false, to promote his Presidential campaign. The "well established rightwing politicos" weren't even involved until long after guys like me had dumped every dime they could afford into the Swift boat vets' coffers to keep them afloat.

In fact, the Swift boat vets would have gone away six months before the controversy fully flowered had Kerry simply met with them and addressed their concerns. Even though they held a press conference in April, the media ignored them until John O'Neill's book came out in August and things really heated up.

IOW, you have both stories exactly backwards.

I'm not surprised, though. You come across as very reasoned and cautious, but underneath you desperately want the Bush Guard story to be true and the Swift vets story to be false. That becomes quite obvious when reading your arguments.

(47) Charlie made the following comment | Sep 23, 2007 12:13:24 PM | Permalink

Long time reader, occasional poster.

This topic brings out the Truthers in another form.

With thanks to Hillary, to believe the memos were not forgeries requires a "willingness to suspend disbelief".

But on the topic of this suit, I believe it will never see the courtroom, as I believe it can only be embarrassing to both sides in what would come out. That being said, I would be right behind Beldar in line for a seat.

(48) Jim Treacher made the following comment | Sep 23, 2007 12:56:25 PM | Permalink

This topic brings out the Truthers in another form.

Same form, different conspiracy theories.

(49) antimedia made the following comment | Sep 23, 2007 1:22:02 PM | Permalink

I suspect that we will hear little to nothing about the case until the announcement that the parties have settled and the details of the settlement are secret.

(50) Kent made the following comment | Sep 23, 2007 3:07:23 PM | Permalink

I agree that there will be a settlement and the details will be kept completely confidential.

This whole affair reminds me of divorce back in the days when you had to show cause. Spouses wishing to divorce would collude in ways that made a mockery of the adversarial system.

(This is the one argument in favor of no-fault divorce I'm willing to give much weight to.)

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