BeldarBlog

Help CBS News' Rathergate rogues line up for the scaffold

While driving the other night, I was listening to the fourth movement of Hector Berlioz' Symphonie Fantastique — an old favorite that I'd performed (in a transcription for military band) with the Longhorn Concert Band while I was in college.  This symphony is perhaps the most famous example of romantic "program music": 

Under the influence of opium (in the 1855 version), a young and sensitive artist (Berlioz himself), experiences a series of visions — the different movements of the symphony — in which his beloved figures as a theme, the idée fixe, which recurs in every movement, though each time in a different form.

The fourth movement, called "Marche au supplice," contains a rousing, self-confident, and indeed arrogant march — quintessentially French, and featuring the wonderfully ominous, repeated thirteen-stroke drumrolls of a public execution.  It was written to portray "the artist, led to execution for murdering his beloved," strutting defiantly along despite his impending and well-deserved doom.  Only after mounting the scaffold does he remember his beloved, however — represented by a short, sad solo clarinet passage sounding his beloved's theme — and then "the melody is abruptly cut off by the fall of the guillotine and the concluding uproar." 

Now why did this wonderfully evocative music make me suddenly think of — Dan Rather?

Today's Los Angeles Times includes an article by staff writer Elizabeth Jensen headlined "From a Who Did It to a Who'll Get It," with this subhead: "With careers in jeopardy, 'the knives have come out' at CBS News. Rather's job seems safe, but he's fighting to keep it." 

I suspect that my blogospheric friend Professor Stephen Bainbridge must have spat out a mouthful of excellent wine when he read these paragraphs:

And for conspiracy theorists who have speculated — with no proof — that Republican tricksters are behind the possibly fake documents, Thornburgh has a connection to Karl Rove, a longtime Bush strategist.

Rove, who denied this week to the Washington Times that he had anything to do with the documents falling into CBS' hands, worked on Thornburgh's unsuccessful campaign for a Pennsylvania Senate seat in 1991.

Well, yes, Rove and Thornburgh do indeed have a "connection" — one that ended up with Rove successfully suing the former Attorney General and winning a judgment for an unpaid $170,000 consulting fee (presumably plus costs, interest, and attorneys' fees).  As Professor Bainbridge has pointed out,

By all accounts, Thornburgh is an upright guy, so I'm inclined to give him the benefit of the doubt. It doesn't change the fact, however, that he has a perceived conflict of interest that will forever call into question his impartiality. CBS would have been better served to find somebody with no such [anti-Rove] taint.

(Personally, I'm satisfied with Thornburgh's appointment, and applaud CBS News for picking someone with the stature of a former Attorney General as the legal representative for the inquiry.  Let's just be glad that they didn't pick Ramsey Clark.)

The LAT article provides yet more information about who inside CBS News was involved in the Ra^thergate fiasco, and in what degree:

Whether or not Thornburgh is predisposed to blame Rather or CBS for the report, many inside the network nonetheless are questioning why Heyward was allowed to choose the panel along with CBS Chairman Leslie Moonves. [CBS News president Andrew] Heyward, they argued, could just as well end up taking the blame for oversight procedures that might have gone wrong in the reporting of the story.

How deeply Heyward got involved was unclear.

Rather, in an interview Monday with the Los Angeles Times, said it was difficult to pinpoint blame for the lapses, "given the number of people involved in this, directly involved in the news-gathering, vetting and approving."

"There were a lot of people, including myself," Rather said.

The New York Times reported that Rather had said he had specifically asked Heyward to have hands-on involvement in the story from the beginning.

Other executives have said Heyward wasn't present at any of the meetings where the decisions were made about whether to use the documents, with Betsy West, the division's senior vice president, overseeing the process instead. Genelius said that Heyward would have no comment.

"Dan and Andrew speak several times a day every day," Genelius said. "It is not contentious, and both of them are looking forward to having the panel report its findings. There will be full cooperation."

Friends and neighbors, the Ra^thergate scandal surpasses any previous shoddy episode in the history of American journalism.  NBC's "Dateline" making a GM pickup truck explode as a special-effects presentation wasn't remotely as wicked and corrupt, yet as NRO's Byron York reminds us, that scandal resulted in the forced departure of everyone from NBC News president Michael Gartner on down through the story's  executive producer, senior producer, segment producer, and on-air reporter.

The LAT article concludes by noting that

Rather's future may end up determined less by the outcome of the report than by the reaction of CBS' affiliates around the country, some of which have been urging CBS to make a change for some time in order to boost its third-place ratings.

A number of affiliates this week reported being inundated with calls and e-mails advocating getting rid of Rather, many of them the result of an organized campaign.

Oh yes, let's continue to nudge the affiliates.  You can write a free, uniquely personalized email to all of the roughly 200 CBS affiliates via this handy link at Rathergate.com.  Yes, the campaign is organized, but the specific message will be yours.

Strike up the Berlioz, I say!  Mr. Rather, that short, plaintive clarinet solo was your one-time beloved, the Muse of Journalistic Truth — and you and your cohort murdered her.  On to the scaffold with you all, I demand!  And let the guillotine do its bloody, very necessary work!

Republican congressional candidate compares opponent to Dan Rather

I don't know much about Texas Republican congressional candidate Louie Gohmert, but I'm hugely amused at his latest TV ad in his campaign against Democratic incumbent Max Sandlin:  "Seen  Max Sandlin's negative ads?  They've got more holes than a CBS News story by Dan Rather ...."   Per ABC News,

CBS spokeswoman Sandy Genelius said Friday the network would not comment on the ad....

Jim Dow, a spokesman for Sandlin, said the ad is "a juvenile and invalid comparison that folks don't really care about anyway. Voters in East Texas care about jobs, health care and integrity, not Dan Rather."

That's not exactly a ringing defense of Dan Rather from Congressman Sandlin, is it?  His spokesman did have the chutzpah to use the words "integrity" and "Dan Rather" in the same sentence, but as an example of contrasting concepts.  (Hat-tip Rathergate.)

Oh, what lawyer shall sue CBS on Burkett's behalf?

Tucked away on page A8 of today's WaPo is an article by Michael Dobbs entitled "Source for Rather Seeks New Lawyer, Might Sue CBS." 

Mr. Dobbs reports that CBS News' Ra^thergate source Bill Burkett is no longer being represented by attorney David Van Os, who "bowed out because he was involved in the initial negotiations with CBS and feels a conflict of interest."  Leaving aside any arguable appearance of impropriety from Mr. Van Os' heavy involvement in Texas Democratic Party politics and current candidacy for the Texas Supreme Court, Mr. Van Os certainly made the right decision if only based on the likelihood that he would be a material fact witness in any defamation case brought by Mr. Burkett (albeit one whose testimony might in significant part be shielded by his continuing attorney-client privilege obligations to his former client).

As for Mr. Burkett's current counsel,

[Gabe] Quintanilla said he is suffering from severe back problems and cannot handle the deluge of calls and messages in an incident that, he said, has generated more conspiracy theories than the "grassy knoll" did in the assassination of President John F. Kennedy.

A third lawyer, Lin Wood of Atlanta, who represented former Olympic Games security guard Richard Jewell in a successful defamation suit against several news organizations, said yesterday that he had declined a request from Quintanilla to take the Burkett case. Wood pleaded "time constraints" as well as his "high regard for CBS News."

"It appears highly questionable that he has a legitimate defamation claim" against CBS, said Wood, noting that his opinion was based on news reports about the case rather than privileged information. 

Texas, of course, is home to hundreds and hundreds of lawyers, including some of the most high-profile contingent-fee lawyers in the country, and it seems likely that Mr. Burkett may seek counsel who'd undertake his representation on that basis.  Although their terms are variable and subject to negotiation, such fee arrangements oftentimes include provisions under which the lawyer not only invests his time, but also the out-of-pocket expenses of litigation, with the hope of being repaid for either only out of whatever money is eventually recovered by way of judgment or settlement.  In contemplating the possibility of undertaking Mr. Burkett's representation, a prudent lawyer would assume that the case will require heavy investments of both time and money. 

Moreover, regardless of the results of CBS News' pending self-investigation, CBS News can be expected to defend itself tenaciously against any claim that it has harmed Mr. Burkett or his reputation.  That CBS News' performance in this debacle may have made it a journalistic disgrace and a national laughingstock does not make it an easy mark for a defamation case from one in Mr. Burkett's position.

And Mr. Burkett, intentionally or not, has made himself into a "public figure" at least since his allegations last spring about the purported systematic destruction of President Bush's military records from the Texas Air National Guard — meaning that to prevail against CBS News, he and his counsel would have to overcome the formidable "actual malice" hurdle imposed by New York Times Co. v. Sullivan. 

I think that a very strong case could be made by another potential defamation plaintiff — George W. Bush — that with respect to him, CBS News acted with both subjective malice and objectively reckless disregard for the falsity of its statements about him in particular.  For a variety of reasons, however, the principal target of CBS News' broadcasts is the least likely person to sue.  (Expert witnesses Linda James and Emily Will, retired Col. Buck Staudt, or other supporting members of the dramatis personae in CBS News' tragic comedy of errors are differently situated, and might have more attractive claims than Mr. Burkett.)

But from what's in the public domain now, I see little basis for supposing that a plausible case of "actual malice" could be made for CBS News' statements about Mr. Burkett.  Nor is it immediately obvious what, if anything, that CBS News has said about Mr. Burkett is false, and his reputation was hardly unsullied even before this fall's scandal regarding the forged Killian documents.  And Mr. Burkett's other possible claims besides those sounding in defamation law (and its offshoots, like "false light depiction") — invasion of privacy? breach of contract? — look no more promising to me than his potential defamation claims.

Mr. Burkett does have, of course, the alternative of retaining counsel on a regular hourly-rate plus expenses basis.  But those costs are likely to run into the tens and even hundreds of thousands of dollars in fairly short order in a case like this one.  Moreover, any legal team representing Mr. Burkett would be wise to include among its members someone with substantial expertise in criminal law — and such lawyers don't typically work on a contingent fee basis.

Representing Mr. Burkett would certainly confer collateral publicity on whatever lawyer undertook to represent him.  One must wonder, however, whether that publicity would be positive or negative.  And the bridges between Mr. Burkett and his former political soulmates on the Democratic side of the aisle seem to have been fairly crisply burnt by this point — with the fires having been lit from both sides roughly simultaneously.  The prospects of Mr. Burkett finding counsel to represent him on a pro bono publico basis seem remote.

Perhaps some prominent, clever, and entrepreneurial lawyer will see an angle that I'm missing and step forward as Mr. Burkett's champion.  But it's not hard to see why lawyers aren't swarming his porch with contingent fee contracts in hand at the moment.  Both opponents and supporters of the contingent fee system agree that it is driven, for better and sometimes for worse, by simple market economics as those principles intersect with the lawyer-participants' assessment of potentially valuable claims.  If it turns out that Mr. Burkett can't find counsel, that may reflect nothing more than a consensus among knowledgeable lawyer profit-maximizers that his claim is ultimately not worth filing.

A challenge to those who claim that the SwiftVets' allegations have been "debunked" or are "unsubstantiated"

My lawyer readers will immediately recognize this as an invitation to Kerry supporters to make a motion for partial summary judgment on the SwiftVets' claims.

This short paragraph from a New York Times article perfectly illustrates the liberal media's widespread characterization of the results to date of the SwiftVets' campaign (boldface added):

Swift Boat Veterans for Truth, which drew national attention with advertisements making unsubstantiated attacks against Mr. Kerry's military service, has less money and uses several strategies to stretch its dollars, said one of its leaders, John O'Neill.

To find a similar example from the blogosphere, one need look no farther than Andrew Sullivan's passing dismissal of the SwiftVets' campaign (boldface added):

As word spread, anti-Kerry forces sent in more money to the Swift Boat Veterans for truth website, allowing them to ramp up their ad efforts. And within a few days, the old media was forced to cover the claims extensively — even if much of their coverage amounted to a debunking.

As someone who's followed the SwiftVets' campaign closely — someone who's read Brinkley's Tour of Duty, O'Neill's Unfit for Command, and Kranish et al.'s John F. Kerry: The Complete Biography cover to cover, plus all of the mainstream media reports I could find on the internet and a goodly portion of what's appeared from both political sides of the blogosphere — I'm simply stunned to read these sorts of statements.

I can think of one major SwiftVets allegation on which they've arguably failed to offer more than circumstantial evidence — that Kerry "gamed the system" to get his medals. Kerry's stonewall — his refusal to sign Standard Form 180 and thereby release the documentation that should, if it exists, reveal still-hidden details like how he came to get his first Purple Heart — has been effective in keeping the SwiftVets from nailing down that point with direct evidence. Yet the circumstantial case is powerful — Kerry's commanding officer at the time, Skip Hibbard, says he refused to approve that Purple Heart in December 1968, yet Kerry showed up with the medal anyway in March 1969 in some as-yet-unexplained fashion.

I can think of other SwiftVets allegations on which there is directly competing evidence that requires the public to draw conclusions. For example, does one credit Adm. Bill Schachte's account of his first-hand knowledge of how Kerry received the trivial wound that led to his first Purple Heart, or does one credit Zaldonis' and Runyan's claims that Schachte wasn't aboard the skimmer? Which of the eyewitnesses does one choose to find credible on the question of whether Kerry was or wasn't under enemy fire when he plucked Rassmann from the Bay Hap River? Other allegations require an exercise of subjective judgment. For example, was Kerry's pursuit and dispatching of a single VC soldier sufficiently valorous to merit his Silver Star?

But on none of these issues I've just listed have the SwiftVets' allegations been "debunked" or proven "unsubstantiated." Andrew Sullivan or the NYT repeating over and over that they have been simply don't make them so. To employ the legal jargon of summary judgment proceedings, a rational factfinder could conclude from the evidence that the SwiftVets have produced on each of these allegations that, indeed, they're true. A trial judge who dismissed these allegations outright, without letting the factfinder (typically a jury) consider them, would certainly be reversed on appeal and told to let the jury do its work. They haven't, in lay terms, been "debunked" — but rather, they're fiercely disputed by competent evidence (some of it eyewitness, some of it circumstantial, some of it documentary).

Hence my challenge for the weekend to my readers — you're probably a minority, as these things go, but I know from my comments pages that you're out there — who may agree with the NYT or Mr. Sullivan:

Can you identify even one specific and material SwiftVets allegation that you believe to have been fully "debunked" or fully proven to be "unsubstantiated"?

Some ground rules for this challenge that I think are not unreasonable:

By "specific," I mean to exclude sweeping conclusions like "John Kerry wasn't as big a hero as he's made out." By material, I mean to exclude trivia like "the VC soldier John Kerry shot was in a uniform instead of in a loincloth." And I ask that if you're to make an honest effort to meet my challenge, you provide quotes and links, both to the SwiftVets' allegations and to the evidence that you offer to show debunking or lack of substantiation.

If you rely on documents — for example, Larry Thurlow's Bronze Star citation as support for the proposition that he and Kerry were under enemy fire after PCF 3 was struck by a mine — then to reach "debunked" status, you ought to show that there are no contrary eyewitness accounts to those documents, nor other contrary documents. Otherwise, you've merely established that a dispute exists — what lawyers would call a "genuine issue of fact" that must be resolved by a judgment call as to which side has the greater weight of the credible evidence.

Saying your side has the greater weight of the evidence isn't "debunking" or showing that something is "unsubstantiated," it's saying that your side ought to ultimately prevail on the factual dispute, and that's a very different kettle of fish. To use a converse example by way of illustration: I would argue that the "Christmas in Cambodia" story repeatedly told by Sen. Kerry has indeed been thoroughly debunked and proved unsubstantiated — that is, there simply is no credible evidence from which any rational factfinder could conclude that Kerry's claim to have spent Christmas 1968 several miles inside Cambodia, under friendly fire and on a secret mission, was truthful.

I of course reserve the right to offer a rebuttal, as will, I'm sure, my like-minded readers. But I'm genuinely curious about this, and will try to summarize the results of this challenge fairly in a new post sometime early next week.

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

Update (Mon Oct 18 @ 10:40am): It's no one's fault in particular unless my own, but the comments to this post have kept coming in. Every time I'd try to take a day to write a summary of the responses to my challenge, in would come four or five new comments. Today I printed out this post to have a hard-copy handy for cross-referencing as I worked on the long-promised summary, and it ran to 154 printed pages. So: By fiat, the challenge is closed. If you have something else to say, you'll need to do it in comments on another post.

Kerry's no Ike

In 1952, the incumbent President was not running for re-election, but the nation seemed bogged down in a frustrating war on the Korean peninsula — one that had see-sawed from near hopelessness around the Pusan pocket, to what might be termed "catastrophic success" after MacArthur's Inchon landing and American troops' advance almost to the Yalu River, to a humiliating retreat from the Chosin Reservoir after Red Chinese troops poured across their borders, and into a bloody stalemate along the 38th Parallel.  America had suffered almost 37,000 KIAs in the first three years of fighting in Korea; the new President would have to decide between withdrawal, continuing the stalemate, escalation (possibly including use of atomic weapons), or some other course of action.

Late in the campaign, on October 24, 1952, the Republican candidate delivered a speech in Detroit that Tom Wicker describes thusly in his 2002 short biography, Dwight D. Eisenhower (bracketed portions, italics, and elipses in original; at page 16):

In earlier years, [Eisenhower] had seemed to support President Truman's "police action" in Korea and also had approved Truman's decision to fire Eisenhower's old boss, General Douglas MacArthur.  Now, however, Eisenhower declared that immediately after the election, he would "concentrate on the job of ending the Korean war.... [T]hat job requires a personal trip to Korea.  I shall make that trip .... I shall go to Korea."

Ike the inexperienced campaigner had made one of the decisive strokes in American political history.  He carefully had not said what he would do about Korea, other than to see the war for himself, thus establishing at the outset his characteristic policy of "keeping his options open."  But from the hero of World War II, less than two weeks before the election, his mere pledge to "go to Korea" all but finished Stevenson and the Democrats.  Even Harry Truman, the old in-fighter in the White House, could only cry "politics" — but to little avail.

Fifty-two years later, the Democratic candidate for President is basing his campaign on the premise that America is again in a bungled military stalemate (despite the vastly shorter timeframe, one-thirty-seventh of the fatal casualties, and absence of a threat that the conflict will escalate into global nuclear war).  Like Eisenhower, John Kerry asks the American public to trust him — essentially on faith — to somehow "fix things."

Americans felt that they knew Dwight David Eisenhower — that they'd seen him tested, and liked what they'd seen, when he commanded Allied forces in Europe in their defeat of Nazi Germany.  He was elected with 55 percent of the popular vote and a 442/89 electoral college margin.  The North Koreans and their Chinese and Russian patrons rapidly backed down from their previous negotiating positions — perhaps because they thought Eisenhower would use nukes, perhaps because they knew he'd never tolerate years of stalemated conventional war — and on July 27, 1953, barely six months after Eisenhower's inauguration, an armistice was signed under the shelter of which South Korea has enjoyed a half-century of peace, liberty, and economic expansion.  Yes, there's still unfinished business on the Korean peninsula today, and the threat posed by the North Koreans is a grave one that will confront whoever wins the 2004 presidential election.  But the enormous trust conferred by the American electorate upon Eisenhower in 1952 would seem, by almost anyone's evaluation today, to have been well justified in hindsight.

The questions today, then, are these:  Do Americans, and does the world, think as highly of John Kerry's resolution and leadership abilities as they did of Dwight Eisenhower's in 1952?  Will our friends feel the same confidence in his word?  Will our enemies feel the same fear of his war-leading abilities?  Has Sen. Kerry earned, by his career accomplishments, the degree of trust that Americans gave Ike to fulfill a vague and open-ended promise of such critical importance?  Like Ike did, Sen. Kerry promises a change in course, without much detail.  American voters were willing to accept that promise, and that lack of detail, from Eisenhower.  But does John Kerry inspire that kind of blind faith, and can it be justified?

To ask that question is very nearly to answer it.  Behind the catchiest slogan in American political history — "I like Ike!" — was a profound and hard-earned trust and admiration.  Eisenhower had already won a war when he asked us to trust him.  He'd masterfully handled one of the most difficult military and political challenges of world history — benefiting, perhaps, from being "misunderestimated" at first, but ultimately winning world-wide respect and admiration.  John Kerry, by contrast, offers up a three-month combat tour as a junior officer that he bailed out of at his first opportunity, plus a consistent senatorial history as an opponent of the use of American military force, an undercutter of its and our intelligence community's strength, and a gratuitous insulter of America's best and most consistent friends abroad.

When John Kerry says, "Trust me and I'll fix things in Iraq and with the Global War on Terror" — what possible basis can you have to give him that trust, other than a faith so blind that it has become genuinely reckless?

Begging for snarky captions

Two-fer!  Sen. Kerry's apparently in a great mood this week, despite his head cold.

The camera just loves this guy, doesn't it?

Bonus points if you can write one snarky caption that fits both pix, but don't let that inhibit your creativity in coming up with separate ones.

Judicial Watch appeals Adm. Route's dismissal of its complaint

The echos haven't faded away, but I think the fat lady has basically already sung on Judicial Watch's challenge to John Kerry's medals.

When I was a law clerk for a judge on the United States Court of Appeals for the Fifth Circuit, one of my regular duties was to review, and advise my judge upon, pending petitions for rehearing en banc.  Then as now, each appeal in the Fifth Circuit was normally heard by a three-judge panel selected at random.  Before asking the US Supreme Court to overturn the Fifth Circuit's ruling, however, the losing side before the three-judge panel had the opportunity to petition the full Fifth Circuit — all of the judges acting collectively, "sitting en banc" — to overturn the panel's decision.  Statistically, the odds of success on a motion for rehearing en banc were slim indeed, but the procedure did give the losing side another "bite at the apple," and their odds of persuading the Supreme Court to even hear their case would be even slimmer.

In one of the most common types of petition for rehearing en banc, the losing side would attack the panel's written decision for failing to address specifically and negate every single argument that the losing side had presented to the three-judge panel.  "We raised thirty-two different points of appeal in our initial brief," these petitions would typically read, "and the panel's written opinion only discusses twenty-seven of those points!"  In the vast majority of cases, however, the unaddressed points — upon closer examination (which was partly my job) — would turn out to have been the weakest arguments anyway.  (Most of the time, in fact, they were arguments that a confident and focused lawyer would have left on his own cutting-room floor to begin with.)  The judges of the Fifth Circuit necessarily operated with a high degree of trust in one another — and their trust included a highly justified working presumption that no serious and substantive argument was likely to have been ignored altogether by all three judges who'd participated in a given panel decision.  Instead, almost all of the cases that were accepted for review by the full Fifth Circuit, sitting en banc, involved serious legal issues that had been squarely and explicitly addressed by the three-judge panel and that, for whatever reason, a majority of the full court believed should be reconsidered.

On Thursday, September 23rd, with an accompanying press release, Judicial Watch filed its appeal from the September 17th decision of the Naval Inspector General, Vice Admiral Ronald A. Route, to dismiss without further investigation Judicial Watch's complaint requesting an investigation into Sen. John Kerry's medals.  It is a competent piece of lawyering, but unfortunately it reads to me all too much like one of the petitions for rehearing en banc that I've described above.  There's a quality of sputtering indignation — "How could Adm. Route have failed to talk about the Combat 'V' on Kerry's Silver Star?!?" and "Where's Adm. Route's citation of regulations to show that Adm. Zumwalt had authority to award one without the Secretary of the Navy's involvement?!?" (my paraphrases, not quotes) — that may indeed have been unavoidable for want of better arguments, but that is still unlikely to be very effective.  There's simply no due process requirement that a decisionmaker address each and every argument made by a litigant/complaintant in the degree of detail that the litigant/complaintant might desire; and the decisionmaker's failure to do so, by itself, is unlikely to impress a reviewing authority who begins with a predisposition to believe that the decisionmaker has given all of those arguments their due consideration.

Judicial Watch was wise to tone down its initial rhetoric — the appeal letter doesn't include the offensive phrase "whitewash," for instance, that Judicial Watch used in their press release immediately after Adm. Route's decision.  And I stress that Adm. Route's decision does not, and ought not, preclude further public argument on these subjects, notwithstanding Adm. Route's refusal to convene a more thorough investigation that would address their merits in a formal proceeding.  But I continue to expect that Secretary of the Navy Gordon R. England is likely to reject Judicial Watch's appeal and affirm Adm. Route's exercise of discretion.

NYT bungles description of Kerry's 1970 Paris meeting, and publishes a Brinkley gaffe

Jodi Wilgoren's article entitled "Truth Be Told, the Vietnam Cross-Fire Hurts Kerry More" on September 24, 2004, in the NYT's Washington/Campaign section, contains this statement:

Mr. Kerry's nemesis, Swift Boat Veterans for Truth, is spending $1.3 million in five swing states with a spot accusing him of meeting with the enemy in Paris — a reference to his trip to the Paris peace talks, where he met with both sides.

As I wrote at considerable length on Tuesday, Kerry didn't meet with "both sides," but rather with representatives of both enemy participants at the Paris peace talks, the North Vietnamese government and the Viet Cong.  Ms. Wilgoren's article is also misleading in referring to this as merely an accusation by the SwiftVets.  It's not a disputed accusation, it's something that Kerry admitted — and arguably, bragged about — in his 1971 testimony before the Fulbright Committee.  And unsurprisingly, the Times continues to ignore the possibility that Kerry made at least one further Paris trip in late 1971, as pro-Kerry antiwar-movement historian Gerald Nicosia continues to insist despite the Kerry campaign's denials.

The same article contains this surprising statement by authorized Kerry biographer Douglas Brinkley:

"Every American now knows that there's something really screwy about George Bush and the National Guard, and they know that John Kerry was not the war hero we thought he was," said Douglas Brinkley, the historian and author of a friendly biography of Mr. Kerry's war years, acknowledging that Mr. Kerry's opponents had succeeded in raising questions about his service.

"It's kind of neutralized itself, just by tiring everybody out," Mr. Brinkley said.

Within hours, the Kerry campaign published a press release from Mr. Brinkley to respin this quote:

Author and historian, Douglas Brinkley, issued the following statement to correct a report by the New York Times today:

"A story in the September 24 New York Times leaves the false impression that I think John Kerry was not 'the war hero we thought he was.' Nothing could be further from the truth. He was a great American fighting man in Vietnam and deserved all of his medals. Over the past year I have vigorously defended Kerry's military record and will continue to do so.

"My comment was meant to be about the political consequences of the anti-Kerry Swift boat attacks vs. the anti-Bush National Guard ones. I was speaking about public perceptions not my personal beliefs."

Paid for by Kerry-Edwards 2004, Inc.

I appreciate the frank attribution on this press release; but it ought to also appear on Brinkley's book, Tour of Duty, and perhaps also be tattooed on Mr. Brinkley's forehead to help keep him in sync with the party line.

Update (Sat Sep 25 @ 2:12am):  Not content to get it wrong once, the NYT repeats its error:

Mr. Kerry has said he visited the Vietnam peace talks and discussed the status of prisoners of war with both sides.

That's not what he said in 1971, and not what he did in 1970.  Apparently the Times recognizes that a junior officer in the Naval Reserves meeting with the nation's enemies (plural) in wartime is hard to spin in a favorable way.  So they're just going to misrepresent the actual facts, repeatedly.  If you disapprove, feel free to email the Times "public editor," Mr. Daniel Okrent (politely, please).

Needs a snarky caption

This is one of the Senator's better recent photos, but still definitely snark-worthy. 

Per Reuters:  "Democratic presidential nominee John Kerry visits with children at the Angel Sprouts Academy daycare center in Orlando, Florida, September 22, 2004." But we can do better than that caption, can't we?

Burkett blames CBS News, Dubya, and the blogosphere

According to CNN, based on its email interview with CBS News' controversial source Bill Burkett, Mr. Burkett blames Dubya for the blogospheric storm over Ra^thergate:

Burkett also accused the White House of using the blog community to launch a "kill the messenger campaign" against him after the documents were made public.

Nor, in Mr. Burkett's view, did CBS News stonewall and bloviate hard enough during the storm:

"The coordinated attacks against the documents, then against me, which CBS did nothing to deflect or defend, and then against Dan Rather and CBS producer Mary Mapes have not been against the validity of the documents, but rather as an attack against anything being considered at all," he said.

But CBS News — truthseekers that they are — did, apparently, actively encourage Mr. Burkett to remain silent and not "out" himself as their source prior to last weekend:

[Burkett's wife,] Nicki Burkett said CBS News "asked us not to respond publicly in our own defense from the time we turned over the documents" until last Saturday, when a network vice president informed them that CBS no longer had any obligation to them.

Does Burkett have a sense of humor?

Burkett also said "the central part of my agreement with CBS was that they use their massive and superlative abilities to authenticate and verify the documents prior to broadcast in order that I and my source not have to be identified."

"CBS came to me, I did not go to them," he said. "It was in no interest of mine to be involved with this. Certainly as a source, I demanded confidentiality both for myself and my source."

Meanwhile, the Fort Worth Star-Telegram's Jack Douglas, in an article distributed by Knight-Ridder, reports from his own interview with Mr. Burkett that he claims not only that CBS News put the Kerry campaign into contact with him, but that Kerry campaign official Joe Lockhart vigorously sought copies of the documents  [update: the strike-throughs above and below are based on the Star-Telegram having issued a correction; see below — Beldar]:

He said, however, that during the meeting in which he gave the memos to CBS, he was also told by a producer that his phone number would be passed on to Kerry adviser Joe Lockhart.

"I was absolutely and clearly told that that was as far as anyone could go without crossing the line of (journalistic) ethics," Burkett said.

During a single phone conversation with Lockhart, Burkett said he suggested a "couple of concepts on what I thought (Kerry) had to do" to beat Bush. In return, he said, Lockhart tried to "convince me as to why I should give them the documents."

In case you've forgotten, on Monday Mr. Lockhart admitted to having called Mr. Burkett at the suggestion of CBS News producer Mary Mapes, but told a different story than Mr. Burkett's telling now:

Earlier, Lockhart said he thanked Burkett for his advice after a three- to four-minute call, and that he does not recall talking to Burkett about Bush's Guard records. "It's baseless to say the Kerry campaign had anything to do with this," he said.

Later, Lockhart said he was sure he had not talked to Burkett about the Guard documents.

And according to the what he told the Star-Telegram's Douglas, Mr. Burkett thinks CBS News is setting him up to be the "fall guy" through artful editing:

Burkett said he agreed to a taped interview with Rather on Monday as suspicion about the memos mounted, putting the network's reputation at stake. He said key portions of the interview were never aired.

"He snipped it apart to cover them," he said. "That's all that that evening news was — to find a fall guy. And it was me."

He added, "By his action and inaction, Dan Rather ruined my reputation in front of 70 million people."

I'm guessing that various dictionaries are competing vigorously over the right to publish Mr. Burkett's picture next to their next editions' entries for the term "loose cannon."  But for tonight, I have nothing else to say on the subject — check with me tomorrow, after I've finished my regular morning videoconference with Karl Rove and gotten my instructions on how to play this.

Update (Fri Sep 24 @5:08pm): The strike-throughs above are based upon the Star-Telegram having today issued a correction to its original story that reads:

This article has been corrected from the version published in the newspaper and online Friday morning to reflect that Bill Burkett was referring to conversations with CBS when he said, "They tried to convince me as to why I should give them the documents." The earlier version incorrectly reported that he had discussed the documents with Joe Lockhart of the Kerry campaign.

I've also changed the original title of this post to remove the ending, "— and disputes Lockhart."

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.

Van Odell debates Del Sandusky re Kerry's Bronze Star

Unfortunately, it's pretty rare to hear any of the Swiftee eyewitnesses from Kerry's Bronze Star action — the Rassmann rescue on the Bay Hap River after Dick Pees' PCF 3 was hit by a command-detonated mine on March 13, 1969 — debate each other one-on-one.  But here's a link (hat-tip PrestoPundit) to a talk radio program that's worth listening to,  despite Florida radio station WTWB-AM 1570 host Lynne Breidenbach's failure to get the participants' names right, her failure to ask the follow-up questions I would have loved to have asked, and her preference for talking about Kerry's post-war activism instead of the events on 13Mar69.

Sandusky and Odell were both there — Sandusky as the helmsman aboard Kerry's PCF 94, Odell as the twin .50-caliber gunner atop Jack Chenowith's PCF 23.  Sandusky continued to insists that there was incoming enemy fire; Odell continued to insist that there wasn't.  To support his claim that there was incoming enemy fire, Sandusky referred to records showing damage to PCF 94; Odell pointed out that those records referred to damage which PCF 94 had sustained on the previous day, and that PCF 94 actually ended up being the boat that towed the striken PCF 3 to safety.   Sandusky pointed to Larry Thurlow's Bronze Star citation that refers to enemy fire; Odell explained that Thurlow has insisted that his citation language wasn't written by him and that he's stated that if his own Bronze Star depended on being under enemy fire, he didn't deserve that medal.  And as always, Sandusky had no explanation for how the Swift Boats could have survived the supposed "5000 meters" of heavy enemy fire from both banks without any of the boats or their crew being hit during the hour-plus time it took to rescue and medevac out PCF 3's injured crew and rig it for towing to safety.  Odell said he saw Kerry as he was being transferred from his own boat to another for evacuation for medical treatment, and saw no blood on his uniform.

Odell mentioned that yet another eyewitness, Bob Hornberger (probably "Robert Eugene Hornberger," whom Swiftboats.net lists as a GMG2 on PCF 3), has recently stated that there was no incoming enemy fire.  Mr. Hornberger was the subject of an August 7, 2004, article in the Augusta Chronicle entitled "Veteran Questions Kerry's War-Hero Credentials," which includes this paragraph:

Again, Hornberger has no first-hand knowledge of Kerry's war actions. But he does question reports about them. Pulling someone from the water? "We all did that. I was pulled from the water. I pulled men from the water. I didn't get a medal for it."

I suspect that Mr. Hornberger does indeed have first-hand knowledge of the events on 13Mar69, although I'm unsure whether Mr. Odell was correct in the radio show in placing him aboard LTJG Droz' PCF 43.  Does anyone have a link to any more information about Mr. Hornberger?

Needs no snarky caption

Photo accompanying NYT article entitled "Kerry in a Struggle for a Democratic Base: Women," from Sen. Kerry's appearance on Tuesday on "Live With Regis and Kelly":

Displaying the same sensitive diplomacy as Sen. Kerry has shown toward America's allies in the Global War on Terror, here's what a Kerry pollster has to say (boldface added):

Diane Feldman, a pollster for the Kerry campaign, said she did not accept that Mr. Kerry was losing among women and insisted that the campaign's own polling showed Mr. Kerry winning among women.

Ms. Feldman would not disclose the campaign's numbers but said they showed Mr. Kerry's standing with women "below what we would expect in exit polls on Election Day, and we have room for growth." She added, "we're winning them, but not by as much as we will." She said she was confident of that prediction because women traditionally were late deciders.

Gee, Ms. Feldman — while you're at it, why don't you throw in that they can't drive worth a dang either?  Sheesh!

Oh, well, maybe this one caption:  "Kelly?  Kelly?  Won't you clap for me at least once, Kelly?  Like this?"

I'm sure you can do better.  The comments are open, have at 'em.  (Just keep it non-profane/non-sexually oriented, please; I know the one you're thinking of.)

CBS News admits Mapes "violated policy" in putting Burkett in contact with Lockhart

Oh, the MSM's long knives in Ra^thergate haven't been sheathed yet.  But Wednesday's NYT suggests that CBS News is feeding Mary Mapes to them first, hoping that her sacrificial blood will appease the other media deities:

CBS News said yesterday that the producer of its flawed report about President Bush's National Guard service violated network policy by putting a source in touch with a top aide to Senator John Kerry.

"It is obviously against CBS News standards and those of every other reputable news organization to be associated with any political agenda," the network said in a statement....

Privately, network officials said they were caught off guard on Monday when Joe Lockhart, a senior adviser to Mr. Kerry, told reporters that he had spoken to Bill Burkett, the source for the questionable documents, at the behest of Ms. Mapes.

Yes, they're shocked!  Shocked!  A violation of CBS News' hitherto sacred standards!  But is poor Mary to be the only victim?

Some colleagues expressed worry that Ms. Mapes would be a scapegoat and that others, like Mr. Rather; Betsy West, a CBS News senior vice president; and the CBS News president, Andrew Heyward, would not be held accountable.

Let's hope Mary has lots of company in the employment line.  (Hat-tip Carnivorous Conservative.)

Update (Wed Sep 23 @ 8:05am):  LAT gets its knives bloody again today too, as part of which (elipsis in original):

CBS News is expected today to announce an independent panel to review actions by the "CBS Evening News" and "60 Minutes" teams that produced the Sept. 8 report on Bush's Guard service. It would include at least one expert in journalism and another in law, people familiar with the situation said.

In an indication of how deep concern about the issue has become at the network, Chairman Leslie Moonves commented for the first time Tuesday. He said that while CBS News "has a long tradition of responsible journalism … it's clear that something went seriously wrong with the process" in the production of the National Guard story.

I'm pretty sure they won't be calling me as their expert on matters legal.  (Hat-tip to Hugh Hewitt.)

SwiftVets' sixth ad focuses on Kerry's Paris meeting (or meetings) with America's enemies — Did he "betray his country"?

I. What the new SwiftVets ad says

According to Fox News, the SwiftVets organization

has made its largest media buy yet of the presidential campaign. It has put $1.2 million behind a new ad that attacks the candidate's 1970 meeting in Paris with members of two North Vietnamese delegations. The ads, which will be launched Wednesday, will run on broadcast affiliates in the battleground states of Pennsylvania, Ohio, West Virginia, Nevada and New Mexico.

The ad can be viewed in multiple streaming video formats from the page on the SwiftVets' website that collects all their other ads.  Here's the script from the ad, titled (somewhat strangely, to my mind) "Friends":

Opens with: Footage of Jane Fonda.  Cuts to: Stills of Kerry, protesters, then Kerry testifying.  Cuts to: Fonda at a press conference

Announcer: "Even before Jane Fonda went to Hanoi to meet with the enemy and mock America, John Kerry secretly met with enemy leaders in Paris. Though we were still at war and Americans were being held in North Vietnamese prison camps. Then, he returned and accused American troops of committing war crimes on a daily basis. Eventually Jane Fonda apologized for her activities, but John Kerry refuses to. In a time of war, can America trust a man who betrayed his country?"

Obviously, in a short television ad, the SwiftVets could not include many factual details, but this advertisement will inevitably encourage more extended debate on the underlying questions: 

What are the facts about Kerry's meeting(s) with the enemy, and what laws may he arguably have broken?  Did John Kerry, while still an officer in the U.S. Naval Reserve, "betray his country"?

(Warning: this is another one of Beldar's long-winded™ and link- and quote-filled diatribes; proceed at your own risk.)

II. Fox News' brief summary

Fox News' brief summary of the historical record on Kerry's Paris trip(s) is a fair introduction to these broader subjects:

The Kerry campaign has acknowledged that Kerry traveled to Paris in 1970 with his then new wife, Julia Thorne. Kerry's campaign said the meetings were not part of any negotiation with the enemy but were part of Kerry's fact-finding efforts relating to the war and ways to win the release of U.S. prisoners of war.

Historian Gerald Nicosia has told FOX News that Kerry made a second trip to Paris in 1971 for many of the same reasons Kerry's campaign has cited for the 1970 trip. Kerry's camp denies a Kerry meeting with the North Vietnamese in the summer of 1971.

Unfortunately, although I've skimmed portions of a library copy of Nicosia's 2001 book, Home to War: A History of the Vietnam Veterans' Movement, I don't have a copy of my own and didn't photocopy the relevant pages about Kerry or other Vietnam Veterans Against the War members meeting with enemy representatives in Paris.  But Nicosia's book, and subsequent writings in the Los Angeles Times on the subject, are discussed below in part VII of this post.

III. The Holzer & Holzer analysis of the relevant
laws and the Navy Department's rejection of
Judicial Watch's complaint

Although it doesn't contain a very meaty discussion of the facts of Kerry's Paris trip(s), the most thorough analysis of the relevant criminal statutes prohibiting trafficking directly with the enemy, and of the cases interpreting those statutes, is in a passionately anti-Kerry article in FrontPageMag.com by Brooklyn Law School Professor Emeritus Henry Mark Holzer and author-attorney Erika Holzer.  I've not independently studied the cases they cited.  The two statutes they discuss, however, are 10 U.S.C. § 904 (from the Uniform Code of Military Justice) —

Any person who —

(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or

(2) without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly;

shall suffer death or such other punishment as a court-martial or military commission may direct.

— and 18 U.S.C. § 953:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both....

Of course, in each of the precedents from these statutes discussed by the Holzers, there had been a full-blown criminal trial, and the essential elements of the crimes charged were proved beyond a reasonable doubt.  While their discussion of the statutes and interpreting precedents is useful, their discussion — as I suspect, if pressed, they'd admit — falls necessarily short of a thorough analysis of how those statutes might apply to Kerry's Paris meeting(s) (and perhaps his subsequent conduct, if it was pursuant to an agreement or quid pro quo reached there). 

We do know (from Nicosia's FOIA request results) that the FBI was digging around about Kerry's and his comrades' Paris trips.  Yet no indictment was ever filed — which I interpret not as a lack of zeal on the part of the FBI or the Nixon administration DoJ, but rather simply as a lack of sufficient evidence gathered then that could have supported an indictment (much less a conviction).  There simply is not now, and never has been, enough factual detail for anyone to conclude yet, or even assert yet with prosecutorial confidence, that what Kerry did in Paris actually satisfied all of the essential elements of these crimes as defined — and of course, the only "conclusive conclusion" would be one reached by a court martial or criminal proceeding.  The title of the Holzers' article — "John Kerry, Criminal" — is thus metaphorical and speculative at best. 

But neither is there detail in the public record that would exonerate Kerry of these temporally distant crimes.  While Kerry enjoys a constitutional presumption of innocence unless and until there's a conviction, the absense of an indictment isn't itself affirmative proof of innocence — and doesn't end the public discussion.  (Insert semi-obligatory O.J. Simpson comparisons here if you wish.) 

These two statutes were among the bases for Judicial Watch's original and supplemental complaints to the DoD and the Navy Department, calling for an investigation and the possible stripping of Sen. Kerry's medals.  However, the Naval Inspector General, Vice Admiral Ronald A. Route, in a one-page letter to Judicial Watch last Friday, September 17th, refused to initiate such an investigation.  With respect to Judicial Watch's (and implicitly the Holzers') allegations that Kerry had violated these statutes, Adm. Route wrote in pertinent part:

Our review also considered the fact that Senator Kerry's post-active duty activities were public and that military and civilian officials were aware of his actions at the time.

I recently blogged in considerable detail about Adm. Route's decision, and with respect to this aspect I wrote:

What we still don't know — and what neither military or civilian officials knew at the time — is what actually transpired in those meetings, or even how many such meetings took place!

Then and now, Kerry has been carefully vague in describing those meetings, characterizing them as "fact-finding" expeditions.... That [Kerry and his VVAW comrades] have succeeded in keeping the details of their negotiations, and their agreements (if any), secret for so long is hardly a reason to assert that those details were known long ago.

Here again, however, I must concede that even if not supported by persuasive reasoning, Inspector General Route is probably the authority within the military structure who has the discretionary authority to decide whether this is something the Navy Department wishes to pursue. And clearly, he has exercised that discretion against any further investigation.

Thus, the odds of even administrative proceedings in the Navy Department on these allegations are now extremely remote, and the odds of an actual criminal proceeding are essentially nil.  Indeed, the Kerry campaign, and probably too its sycophants in the mainstream media, will portray Adm. Route's ruling as a "pre-buttal" of the sixth SwiftVets ad in attempting to dismiss it out of hand.

I disagree, however.  Adm. Route's rulings, to use a bit of lawyer-speak, weren't "on the merits," but rather represented a procedural refusal to delve into the underlying questions.  And those underlying questions therefore remain genuinely unanswered — whether likely to result in current consequences or not, what did Kerry do in Paris, and did it break either of these laws?

IV. Kerry's Fulbright Committee testimony

So what did happen in Paris?  As is typically the case, the starting point for all accusations against John Kerry remains — John Kerry.

Kerry acknowledged in his famous testimony before the Senate Foreign Relations Committe (chaired by Sen. J. William Fulbright (D-Ark.)) on April 22, 1971, that he'd met with enemy representatives in Paris, and that in so doing, he'd been on the "borderline" of violating section 953 (at .pdf file pp. 13-14; hyperlink and bracketed portions added):

The Chairman: The congress cannot directly under our system negotiate a cease-fire or anything of this kind. Under our constitutional system we can advice the President. We have to persuade the President of the urgency of taking this action. Now we have certain ways in which to proceed. We can, of course, express ourselves in a resolution or we can pass an act which directly affects appropriations which is the most concrete positive way the Congress can express itself.

But Congress has no capacity under our system to go out and negotiate a cease-fire. We have to persuade the Executive to do this for the country.

Mr. Kerry: Mr. Chairman, I realize that full well as a study [sic — probably should be "student"] of political science. I realize that we cannot negotiate treaties and I realize that even my visits in Paris, precedents had been set by Senator [Eugene J.] McCarthy [(D-Minn.)] and others, in a sense are on the borderline of private individuals negotiating, et cetera. I understand these things. But what I am saying is that I believe that there is a mood in this country which I know you are aware of and you have been one of the strongest critics of this war for the longest time. But I think if we can talk in this legislative body about filibustering for porkbarrel programs, then we should start now to talk about filibustering for the saving of lives and of our country.

Kerry had not yet started law school when he gave this testimony, but it seems relatively clear that he was already studying section 953 and uncomfortable about the possibility that he might have arguably violated it.  He was already referring here to "visits" (plural), for whatever that's worth.  But his sentence structure has begun to slip (as compared to most of the rest of his testimony).  From the "et cetera" in particular — and in general from the abrupt dropping of the subject without going into any details whatsoever about the "visits" or what he'd learned about our enemies (who elsewhere in this speech he was so eager to expound upon and about) — it looks to me like Kerry suddenly realized that he was skating on thin ice, and wisely decided to change the subject before he focused anyone else's attention on this subject.

V. Biographer Brinkley's contributions

As to what authorized Kerry biographer Douglas Brinkley has to say about Kerry and the long-running Paris peace talks in Tour of Duty: John Kerry and the Vietnam War:  First he quotes Kerry at the start of his Swift Boats service in late 1968, as the Swiftees were switching from coastal patrols to patroling the inland rivers and canals that would take the battle to the enemy as part of Operation Sealords (page 137):

"You might say I was conflicted," he confessed.  "On the one hand, I wanted the Paris peace talks to end the war.  On the other hand, I had trained to fight, and I wanted to."

Then in 1971, after he'd left active duty with the Navy (but was still in the Naval Reserve) and shortly after his televised debate with John O'Neill on The Dick Cavett Show (page 403):

Led by Patricia Hardy of Los Angeles, [wives of POWs] charged Kerry with using antiwar issues to further his political career.  When a Boston Globe reporter caught up with Kerry, he was saddened that these angry wives had taken issue with him.  It hurt.  But he kept to his point.  "What bothers me most is that action must be taken now in the Paris peace talks," Kerry stated.  "We need a date set, for total withdrawal from Vietnam."

Brinkley's book, which frequently cites Nicosia's Home to War with regard to Kerry's antiwar activities, reports that Kerry married Julia Stimson Thorne in Bay Shore, Long Island, on May 23, 1970, and that they honeymooned in Jamaica (ToD pages 340-41).  Strangely, however — given that Brinkley is the only historian, biographer, or reporter who's had (at least supposedly) unfettered access to (at least supposedly) all of Kerry's own war notes, journals, diaries, correspondence, and military records — Brinkley's book says nothing about Kerry ever meeting with representatives of the North Vietnamese government or Viet Cong in Paris, either in 1970 or 1971.

VI.  Kranish & Healey's reporting for the Boston Globe

 

On March 25, 2004, the Boston Globe's Michael Kranish and Patrick Healey wrote an article on Kerry's 1970 Paris meeting:

In a question-and-answer session before a Senate committee in 1971, John F. Kerry, who was a leading antiwar activist at the time, asserted that 200,000 Vietnamese per year were being "murdered by the United States of America" and said he had gone to Paris and "talked with both delegations at the peace talks" and met with communist representatives.

Kerry, now the presumptive Democratic presidential nominee, yesterday confirmed through a spokesman that he did go to Paris and talked privately with a leading communist representative. But the spokesman played down the extent of Kerry's role and said Kerry did not engage in negotiations.

The Kranish and Healey article gives these further details:

After their May 1970 marriage, Kerry traveled to Paris with his wife, Julia Thorne, on a private trip, Meehan said. Kerry did not go to Paris with the intention of meeting with participants in the peace talks or involving himself in the negotiations, Meehan added, saying that while there Kerry had his brief meeting with Binh, which included members of both delegations to the peace talks.

As Kerry runs for president, he is finding that many of his statements and activities over the last 33 years are drawing new attention. Last year, the Globe published White House transcripts of discussions about Kerry by President Nixon in the Oval Office. More recently, the Los Angeles Times focused on FBI surveillance reports, obtained by historian Gerald Nicosia, in which the FBI monitored meetings of the Vietnam Veterans Against the War, a group that Kerry led in 1971.

Indeed, there may be a tie between Kerry's statement before the Senate committee and the interest of the FBI in his activities. One FBI report provided to the Globe by Nicosia shows that the government was monitoring whether Kerry planned to go to Paris again. Kerry was "planning to travel to Paris, France ... for talks with North Vietnamese peace delegation," said the report, dated Nov. 11, 1971.

After describing Kerry's reference (quoted above) to section 953 in his Fulbright Committee testimony, Kranish & Healey wrote:

Kerry's statement dealt with the question of whether he was trying to negotiate in Paris as a private citizen and was thus on that "borderline" of what was allowable. A US law forbids citizens from negotiating with foreign governments on matters such as peace treaties. Meehan said Kerry was not negotiating.

"Senator Kerry had no role whatsoever in the Paris peace talks or negotiations," Meehan said in his statement. "He did not engage in any negotiations and did not attend any session of the talks. Prior to his Senate testimony, he went to Paris on a private trip, where he had one brief meeting with Madam Binh and others. In an effort to find facts, he learned the status of the peace talks from their point of view and about any progress in resolving the conflict, particularly as it related to the fate of the POWs."

Kerry's suggestion before the Senate committee that there be an immediate pullout led to questions about whether such a move would endanger the lives of South Vietnamese allies.

Kerry responded that "this obviously is the most difficult question of all, but I think that at this point the United States is not really in a position to consider the happiness of those people as pertains to the army in our withdrawal." If the United States did not withdraw, Kerry said, then US bombing would continue, and "the war will continue. So what I am saying is that yes, there will be some recrimination but far, far less than the 200,000 a year who are murdered by the United States of America ...."

Meehan, asked to explain Kerry's comment, said: "During a very emotionally charged time in American history, Senator Kerry was testifying against a failed policy, which resulted in the killing of hundreds of thousands of people. That policy resulted in one of the highest civilian casualty rate in the history of war. In answering Senator [George D.] Aiken's question about the consequences of an American withdrawal and potential additional bloodbath, Senator Kerry used a word he deems inappropriate.

"Senator Kerry never suggested or believed and absolutely rejects the idea that the word applied to service of the American soldiers in Vietnam. While opposed to the failed policy, Senator Kerry insisted that Americans must never confuse the war with the warriors."

Although not published until April 27, 2004 — over a month after Kranish & Healey's Boston Globe article — the Kerry biography by Kranish et al., John F. Kerry: The Complete Biography By The Boston Globe Reporters Who Know Him Best, contains no reference to Kerry's Paris meeting(s).  Perhaps the book, based largely on a series of Boston Globe articles from June 2003, was already too close to publication.  On the other hand, the book (at pp. 124-25) manages to tell the story of Kerry's Fulbright Committee testimony without mentioning one of Kerry's most infamous lines — that he was testifying to atrocities that were "not isolated incidents but crimes committed on a day-to-day basis with the full awareness of officers at all levels of command" — and dutifully repeats the Kerry campaign's disingenuous arguments that Kerry was only purporting to describe statements about atrocities that had been made at the so-called "Winter Soldier hearings" some months earlier in Detroit.

VII.  The allegations in O'Neill's Unfit for Command

John O'Neill's Unfit for Command: Swift Boat Veterans Speak Out Against John Kerry has quite a bit to say about Kerry's meetings, and they would probably point to it as the primary source material for the sixth SwiftVets ad — although it draws heavily on Nicosia's book and the Kranish & Healey article.  Beginning at page 126:

In June 1971, Lo [sic — should be "Le"] Duc Tho arrived in Paris to join the North Vietnamese Communist delegation to the peace talks.  His arrival marked a change in the Communists' approach to advancing their goals through negotiation.  [Le] Duc Tho was, with Ho Chi Minh, one of the original founders of the Communist Party of Indochina and one of North Vietnam's chief strategists.

He arrived to join a comrade, Madame Nguyen Thi Binh .... Madame Binh was recognized as the Viet Cong delegate to the conference.

On July 1, 1971, within days of [Le] Duc Tho's arrival, Madame Binh advanced a new seven-point proposal to end the war.  Central to this plan was a cleverly crafted provision offering to set a date for the return of U.S. POWs in exchange for the Americans' setting a date for complete, unilateral military withdrawal from Vietnam.  In other words, America could have its POWs back only if we agreed that we lost, then surrendered, and then set a date to leave.

O'Neill's book then runs through the substance of the Kranish & Healey article's reporting, and then picks up thusly (at page 127):

On July 22, 1971 [some three weeks after Madame Binh's proposal], Kerry called a press conference in Washington, D.C.  Speaking on behalf of the VVAW, Kerry openly urged President Nixon to accept Madame Binh's seven-point plan.

After discussing the obvious reasons why the Nixon administration rejected Madame Binh's plan, O'Neill describes section 953, and then continues (at page 129):

There is no public record of what Kerry discussed with the Vietnamese Communists in Paris in 1970.  Kerry's presidential campaign has refused to provide any detailed account of the discussion, nor has the campaign answered questions regarding who set up the meeting.  There must have been contact between Kerry or his representatives and the representatives of the Vietnamese Communists.  Which Communists assisted Kerry in arranging his meeting with Madame Binh, and why?

... [I]t is hard to find any disagreement whatsoever between Kerry's words and actions as a leader of theVVAW and those of the Hanoi and Viet Cong leadership.  Had Madame Binh herself been permitted to appear at the July 22, 1971, press conference instead of John Kerry, the most noticeable difference in the argument presented might have been the absence of a Boston accent.

Unfit for Command goes on to discuss (at pp. 130-31) an FBI confidential surveillance report dated November 11, 1971, which "indicates that the FBI was monitoring Kerry to see if he planned another trip to Paris to meet with the Communist delegations."  Other FBI reports discuss multiple trips to Paris to meet with the Communists that were undertaken by Kerry's cohorts in the VVAW, including the radical Al Hubbard (who was eventually exposed as not being a Vietnam veteran at all after having falsely claimed to have been wounded as a combat pilot there).  As for whether Kerry himself made another trip (at page 135; hyperlink to Lexis/Nexis download and bracketed page reference added):

There is also good reason to believe that prior to the Kansas City [VVAW] meeting in November 1971, Kerry himself had made a second trip to Paris to meet with the Vietnamese Communists.  Evidence for this comes from Gerald Nicosia, a very pro-VVAW and pro-Kerry historian ....  Writing in the Los Angeles Times on May 24, 2004, Nicosia noted [page 5 of .pdf file], "Kerry's public image was perhaps tarnished most in 1971 by his attempts to hasten the return of American POWs.  The files record that Kerry made a second trip to Paris that summer to learn how the North Vietnamese might release prisoners."

VIII. Beldar's take

The sixth SwiftVets' ad is careful not to use the word "treason," and neither it nor O'Neill's book accuses Kerry in so many words of that crime or of violating statutes like 18 U.S.C. § 923.  From their point of view as veterans who were still fighting in Vietnam while Kerry was urging an immediate and unilateral withdrawal, they are certainly entitled to assert, however, that Kerry's actions — even if there were no substantive agreements reached at his Paris meeting(s) and it was "pure coincidence" that Kerry ended up endorsing unreservedly Madame Binh's "seven-point peace plan — nevertheless "betrayed his country."  That is a moral value judgment, not a legal conclusion — and obviously it's one that Kerry's supporters, and probably many undecided voters, will reject outright.

From a purely political standpoint, however, I believe that this latest ad — whether its viewers join in or reject the SwiftVets' judgment — will be another effective blow to Kerry's candidacy.  As with his medal-throwing incident and the words he spoke before the Fulbright Committee, Kerry's Paris trip(s) have long been known to those who've carefully studied his history — but I strongly suspect that a substantial portion of the American public has remained unaware of that part of his antiwar activist history.

As for my own reaction:  Again, I fully respect the SwiftVets' right to draw their own judgments, based on their service and their sacrifices, which neither I nor most Americans ever directly shared.  With no disrespect to them, however, from my own admittedly cushy perspective, "betrayal" is still a stronger word than I would yet feel comfortable using, and it conveys a more damning moral  judgment than I am yet comfortable making.  Although the circumstantial evidence is powerful, it still requires the drawing of an inference to conclude that there was an express quid pro quo or agreement between Kerry and his VVAW comrades and the North Vietnamese and Viet Cong representatives in Paris.  Kerry's resolute silence on all the details of his discussions, what was actually discussed, how and through whom the meeting(s) were arranged also cuts against him, and in favor of drawing the factual inference of a quid pro quo and the moral conclusion of "betrayal."

But in the absence of more facts — which, frankly, seem unlikely to be developed unless Sen. Kerry has a sudden change of heart, or other eyewitnesses step forward — I personally will continue to withhold judgment on the ultimate question of "betrayal." 

I have no hesitation, however, in agreeing that even in what Sen. Kerry has admitted, his actions in meeting even once with our nation's enemies during wartime, while the uniform of a Naval Reserve officer still hung in his closet, showed a profound foolishness — not a casual or trivial mistake in judgment by a callow youth, but a reprehensible misjudgment by a young man then already in his late 20s who ought to have known far better.  I'd think better of him now if he admitted that, and apologized.  But I'm not holding my breath waiting for that to happen.

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

Update (Wed Sep 23 @ 2:05am):  Wednesday's WaPo has the Kerry camp's first reaction to the sixth ad, which is to blast the "secret" allegation — pointing out that Kerry admitted the contact in his Fulbright Committee testimony.  Well, yes — after the fact.  That doesn't mean it wasn't a "secret" trip at the time he made it, though, and as far as I know, it was. 

It's also pretty funny that WaPo quotes Brinkley — who, as I mentioned above, doesn't mention the Paris trip(s) in any of his copious writing about Kerry's antiwar activism.  Apparently it was a secret to him, too. 

Although there is that (nervous) reference to Paris in Kerry's Fulbright Committee testimony, it's certainly fair to say that Kerry hasn't gone out of his way to publicize the meeting.  For example, according to Google's search function, there are five references to the word "Paris" on the official Kerry website, none of them about the meeting.  "Le Duc Tho" draws zip, as does "Nguyen Thi Binh."  Neither name is in the index of Brinkley's book; ditto the Kranish book's index.  I'm pretty sure I didn't hear either of those names mentioned at the Democratic National Convention, either.  And of course, the Kerry website also doesn't mention that Kerry repeatedly called Ho Chi Minh "the George Washington of Vietnam" during his antiwar days either, as Nicosia's LAT article notes (pp. 3-4 of the .pdf). 

This WaPo article another marks another appearance of the "evil WaPo twin" — the incredibly biased or fact-challenged one — as the concluding paragraph shows:

Some of the [SwiftVets'] assertions were refuted, and several links between it and President Bush's campaign subsequently came to light. But the media storm created by the ad put Kerry and his campaign on the defensive.

Gee, I'd like to see the backup for that "refuted" claim, and I'd like to see even the same limited degree of objectivity that poor Nick Kristof displayed in admitting that the SwiftVets have at least scored some service aces (Christmas in Cambodia) and have proved Kerry to be a serial exaggerator about his war record.  WaPo could say, I suppose, "We've decided to believe the eyewitnesses who say there was enemy fire incoming on the Bronze Star, and disbelieve the ones who say there wasn't, and we just think all the VC were really, really bad shots to miss everyone and the boats during the hour and a half they were dead in the water rescuing PCF 3's crewmen and setting it up for a tow."  But I suspect staff writer Paul Farhi knows even less about the details of Kerry's war record, and the SwiftVets' claims, than even Mr. Kristof.  Mr. Farhi should maybe read what his colleague Michael Dobbs has written; Dobbs at least acknowledges that the Bronze Star comes down to a swearing match over enemy fire, and that Kerry's stonewalling on his military records that might support other SwiftVets claims.

But best of all is WaPo's quote of John O'Neill (boldface added):

In an interview yesterday, John O'Neill, an organizer of the Swift boat group and co-author of the anti-Kerry book "Unfit for Command," said it would be "unprecedented" for a future commander in chief to have met with enemy leaders. "It would be like an American today meeting with the heads of al Qaeda," he said.

I agree with Jim Geraghty's take on O'Neill's quote:

Team Kerry better have a good defense to refute that talking point, because if that one sentence comparison breaks through the media static and gets into voter's heads, Kerry will make Walter Mondale look like Bill Clinton.

The evil twin must not have thought of that.

Nicosia also repeated his insistence about the second (1971) trip to CNS News in a June 2004 story.  And although I didn't notice it before, Nicosia's LAT article (page 2 of the .pdf) pegs the 1970 trip as being in May "with his new wife" — they must not have spent much time in Jamaica if they were married on May 23rd and were in Paris with Madame Binh before the month was out.

Finally, from an April 24, 2004, article in the New York Times re the 1970 trip (at page 2 of the .pdf file):

Two weeks later, he married Julia Thorne, and on a trip to Europe with his new bride, Mr. Kerry, the 26-year-old ex-lieutenant took a taxicab from Paris to a suburban villa. The son of a diplomat, Mr. Kerry had managed to arrange a private meeting with North Vietnamese and Vietcong emissaries to the peace talks.

He says he does not remember who else was in the room except for Nguyen Thi Binh, the Vietcong spokeswoman in Paris, who was then bedeviling the Nixon administration by issuing peace proposals it considered little more than propaganda.

''It's not a big deal,'' he says now. ''People were dropping in. It was a regular sort of deal.'' Senator Eugene J. McCarthy had visited Paris months earlier, and other officials often sat in with the Vietnamese and held news conferences afterward.

Mr. Kerry said he considered it a fact-finding mission. The talks had been stalemated for months. Still on the table was a year-old Vietcong initiative that included an offer to release American prisoners of war when American forces pulled out.

Mr. Kerry recalled ''testing what I thought the lay of the land was'' in the meeting. ''Not that you take their word for their word, but because you sort of put the pieces of the puzzle together.''

Asked why the Vietnamese would meet with a 26-year-old, Mr. Kerry suggested it was because he had been on television as a veteran opposed to the war. He acknowledged that they might have been trying to use him to shape American public opinion.

''I knew that, and I was trying to be careful about what was real and what wasn't real,'' he said. ''I wanted to really probe. I wanted to look them in the eyes, and say, 'Well, what happens if this happens? And what does this mean?'''

Mr. Kerry came home, and before a Senate hearing 10 months later he criticized President Nixon for not accepting Mrs. Binh's assurances that the Vietnamese would release American prisoners of war if U.S. troops simply left.

See, Brinkley forgot the part about Paris, and Sen. Kerry forgot the part about Jamaica.  Odd honeymoon, that.  But he asked Madame Binh, "what happens if this happens"?  Sounds oddly like "negotiations" to me.

Update (Wed Sep 23 @ 4:30am): Three nits that've been gnawing on me:  First, the WaPo article gets the year of the undisputed meeting wrong (I'm assuming that's what WaPo was referring to, since it doesn't mention the Nicosia quotes or the Fox News story saying that Kerry's campaign denies a 1971 meeting):

The group, whose members served in the Navy at the same time as Kerry, is referring to a meeting Kerry had in early 1971 with leaders of the communist delegation that was negotiating with U.S. representatives at the Paris peace talks. The meeting, however, was not a secret.

Second, I was probably wrong to characterize the "wasn't secret" point as coming from the Kerry camp rather than from WaPo initially.  The current Kerry campaign reaction (as opposed to what they were arguing when the LAT and NYT articles came out earlier this year) is to ignore what they've already admitted, and to attack the SwiftVets again:

"This is more trash from a group that's doing the Bush campaign's dirty work," Kerry spokesman Chad Clanton said. "Their charges are as credible as a supermarket rag."

Supermarket rag, Congressional Record, whatever.

Third, the WaPo article reminded me that one other place in his Fulbright Committee testimony (page 11 of the .pdf file), Kerry stated (boldface added; bracketed portions mine):

I have been to Paris.  I have talked with both delegations at the peace talks, that is to say the Democratic Republic of Vietnam [a/k/a "Communist North Vietnam"] and the Provisional Revolutionary Government [a/k/a the Communists who claimed to govern South Vietnam, and whose military arm was the Viet Cong] and all eight of Madame Binh's points it has been stated time and time again, and was stated by Senator Vance Hartke when he returned from Paris, and it has been stated by many other officials of this Government, if the United States were to set a date for withdrawal the prisoners of war would be returned.

So despite his fuzzy memory when speaking to the NYT in April 2004, apparently on April 22, 1971, young Kerry still remembered who else he'd met with in May 1970 besides Madame Binh — and it was someone from the North Vietnamese government (although it's unclear whether it was at the same meeting or a different one).  Too bad there's no "delete button" on either Lexis/Nexis or the Congressional Record, Senator.

Update (Fri Sep 24 @ 6:08pm): I've edited the post above to correct my original reference to another press account of Nicosia's insistence on a second Paris trip from "CBS" to "CNS," and I've also fixed a broken link to Kerry's Fulbright Committee testimony.

Op-ed by SwiftVets' Adm. Hoffmann

The Sunday edition of the Richmond Times Dispatch included a long and detailed op-ed by SwiftVets founder Adm. Roy Hoffmann (hat-tip Discriminations).  Those who've been following the controversy closely will find nothing much new, but it's an impassioned summary of the current state of the SwiftVets' overall case.

NYT: CBS News to crater on Rathergate — "Too flawed to have gone on the air"

It appears that when CBS News sent Dan Rather to interview Bill Burkett over the weekend, they sent along a grown-up with him — CBS News senior vice president Betsy West.  And the fairly direct result — under the headline "CBS News Concludes It Was Misled on National Guard Memos, Network Officials Say" — appears to be Monday's New York Times article by Jim Rutenberg (boldface added; hat-tip to Jim Geraghty's Kerry Spot on NRO):

After days of expressing confidence about the documents used in a "60 Minutes'' report that raised new questions about President Bush's National Guard service, CBS News officials have grave doubts about the authenticity of the material, network officials said last night.

The officials, who asked not to be identified, said CBS News would most likely make an announcement as early as today that it had been deceived about the documents' origins. CBS News has already begun intensive reporting on where they came from, and people at the network said it was now possible that officials would open an internal inquiry into how it moved forward with the report. Officials say they are now beginning to believe the report was too flawed to have gone on the air.

Apparently the weekend interview with Mr. Burkett was Dan Rather's last hope of salvaging his story, and perhaps his job; and apparently it failed utterly in at least the former respect, and perhaps in both:

[CBS News] officials decided yesterday that they would most likely have to declare that they had been misled about the records' origin after Mr. Rather and a top network executive, Betsy West, met in Texas with a man who was said to have helped the news division obtain the memos, a former Guard officer named Bill Burkett.

Mr. Rather interviewed Mr. Burkett on camera this weekend, and several people close to the reporting process said his answers to Mr. Rather's questions led officials to conclude that their initial confidence that the memos had come from Mr. Killian's own files was not warranted. These people indicated that Mr. Burkett had previously led the producer of the piece, Mary Mapes, to have the utmost confidence in the material.

It was unclear last night if Mr. Burkett had told Mr. Rather that he had been misled about the documents' provenance or that he had been the one who did the misleading.

Reading between the lines here:  Mr. Burkett claimed that before its demise, his dear departed dog ate the mailing envelope that his own "anonymous source" used to send the documents to Burkett, or some such equally implausible nonsense, but CBS News isn't ready yet to publicly label Burkett as the forger — and neither, to be fair, am I.  (And a small but not insignificant quibble — Mr. Burkett is a former Texas Army National Guard officer, not from the Texas Air National Guard, which of course was the branch of the Guard in which Dubya, Killian, Staudt, et al. served in.  When one sees this sort of distinction elude the NYT, one wonders if it also eluded CBS News, with serious consequences.)

But [the CBS News officials who spoke to the NYT] cautioned that CBS News could still pull back from an announcement. Officials met last night with Dan Rather, the anchor who presented the report, to go over the information it had collected about the documents one last time before making a final decision. Mr. Rather was not available for comment late last night.

Translation:  They haven't told Dan yet that he's going to be fired.  Perhaps they haven't decided yet.  Plus, having already picked their likely most sympathetic major media source (the NYT) to test the waters for them, they want to see what the early morning reaction is — whether their competitors will sheath the knives for now, or continue to slash and hack (pun on the word "hack" definitely intended).  There will be no backing off on the overall crater on the documents being forgeries.

More from renegade — i.e., truthful, to CBS News' acute embarrassment now that it can no longer ignore her — handwriting expert Emily J. Will:

Yesterday, Emily J. Will, a document specialist who inspected the records for CBS News and said last week that she had raised concerns about their authenticity with CBS News producers, confirmed a report in Newsweek that a producer had told her that the source of the documents said they had been obtained anonymously and through the mail.

In an interview last night she declined to name the producer who told her this but said the producer was in a position to know. CBS News officials have disputed her contention that she warned the network the night before the initial "60 Minutes'' report that it would face questions from documents experts.

A producer whose name starts with an M and ends with an A-P-E-S, perhaps?  In the LAT and WaPo descriptions of how CBS News rushed their broadcast together, I don't recall seeing anyone else identified as a co-producer along with Mary Mapes, although the WaPo article  does state that "Mapes, an associate producer and a researcher were carrying the journalistic load."

Meanwhile, we learn from this story just how tuned in to the basic facts Josh Howard is — or isn't:

In a telephone interview this weekend, Josh Howard, the executive producer of the "60 Minutes'' Wednesday edition, said that he did not initially know who was Ms. Mapes' primary source for the documents but that he did not see any reason to doubt them. He said he believed Ms. Mapes and her team had appropriately answered all questions about the documents' authenticity and, he noted, no one seemed to be casting doubt upon the essential thrust of the report.

"The editorial story line was still intact, and still is, to this day,'' he said, "and the reporting that was done in it was by a person who has turned in decades of flawless reporting with no challenge to her credibility.''

Ummm, Mr. Howard, the "editorial story line" included an allegation that Col. Killian was being pressured to sugar-coat Dubya's evaluations by retired Col. Walter B. ("Buck") Staudt, whom your forger didn't know had retired from the TANG a year and a half before his supposed pressure was applied on Col. Killian.  I'd call that a gaping hole in your "editorial story line," sir — one that doesn't depend on the Killian memos' authenticity or lack thereof.  Would you care to identify what shred of the "essential thrust of the report" remains?  Every bit of the "60 Minutes" broadcast that purported to add any material detail to what was previously known about George W. Bush's service record has turned out to be entirely bogus.  The only parts that haven't been challenged are the parts we all knew before, and have known for years — that he got permission to go to Alabama, and that he didn't maintain his flight status because he wasn't going to be flying there anyway.

[Mr. Howard] added, "We in management had no sense that the producing team wasn't completely comfortable with the results of the document analysis.''

Spoken like a manager who should lose his job, Mr. Howard.

Several people familiar with the situation said they were girding for a particularly tough week for Mr. Rather and the news division should the network announce its new doubts.

One person close to the situation said the critical question would be, "Where was everybody's judgment on that last day?''

Mr. Rather should spend his "tough week" in the unemployment line along with Mr. Howard, Ms. Mapes, and Mr. Heyward.  I'll reserve judgment on Ms. West — she might have redeemed herself on her trip to Texas with Mr. Rather.

I'm quite confident, however, that CBS News will never admit to the correct answer on the question, "Where was everybody's judgment" — because the obvious answer is that they had abandoned their judgment in their lust to bring down a sitting American president.  Whether that lust had its source in reckless desire for journalistic glory or, more likely, in overt partisanship — against Dubya and in favor of anybody-but-Dubya — ought not matter to their saving their jobs.  What does still need genuine investigation, however, is whether there was knowledge of and coordination between Burkett and the Kerry campaign's "Fortunate Son Offensive."

Separately, USA Today's Peter Johnson writes a highly unsatisfactory article for Monday's edition that mostly ducks the genuinely compelling question of its own involvement:

(USA TODAY obtained copies of the memos shortly after the 60 Minutes broadcast and reported that the next day. The newspaper's editors, like those at other media, relied in part on the fact that the White House did not challenge the memos' authenticity and released copies after the broadcast.)

Those parentheses are in the original, folks.  But whatever obligation USA Today may once have had to keep its source confidential — a joke, given that the LAT, WaPo, and NYT have now all but put up billboards in Times Square saying "The Source Was Burkett!" — expired once USA Today concluded that the documents were in fact bogus.  Perhaps USA Today is feverishly working to conduct its own investigation into, for example, connections between the Kerry campaign and their still-nominally-anonymous source.  But it's time for USA Today to stop thinking about scoops, and to start thinking about restoring some measure of public confidence in the mainstream media; playing cute like this isn't the way to do that.  Someone at USA Today should've written — before AllahPundit did late on Saturday, September 16th, and I did shortly after noon on Sunday, September 17th — that USA Today's source had given it two more memos than CBS News had revealed in its initial broadcast on the previous Wednesday.

Meanwhile, Burkett's lawyer, David Van Os, is laying the groundwork to try to absolve Burkett as the forger in a letter to the American Spectator (hat-tip, again, to AllahPundit):

As Lieutenant Colonel Burkett's personal attorney, I do not have the legal right to divulge anything that he may have said to me in confidence in the course of my professional relationship with him. Thus I cannot and will not do so, unless and until he releases me from that professional obligation, which is something that he has the legal right to do or not to do at any time. Based upon my personal knowledge of Bill Burkett's character from knowing him and knowing of his reputation among his peers, I will state unequivocally that Bill Burkett did not falsify or create the "CBS documents." I do not assume that anyone falsified or created those documents until more is known, but if anyone did, it was not Bill Burkett. I will stake my reputation and good name on this certainty. Further from my knowledge of Bill Burkett's character and integrity, I will state unequivocally that if, hypothetically speaking, Bill Burkett handled documents that were recent creations rather than true copies of originals, he would have done so only because he had reason to believe they were true copies rather than recent creations.

Mr. Van Os can't have it both ways here:  Either he doesn't know what the hell he's talking about because he hasn't discussed it with his client, or he's in fact reporting what Mr. Burkett's told him and hence has waived attorney-client privilege (despite his careful language attempting to preserve it).  From what I know of Mr. Van Os, his practice specialty has been in labor relations law, with perhaps some dabbling in civil personal injury work (as, for example, in his prior representation of Mr. Burkett in his claims to have suffered injuries while on a Guard assignment in Panama).  Mr. Van Os and his client would be well advised, if they have not already, to associate counsel whose specialty is criminal law, even if they genuinely believe that Mr. Burkett has committed no crime, lest Mr. Van Os inadvertently waive his client's Fifth Amendment right against self-incrimination.

Newsweek sez Rathergate source received memos "anonymously through the mail"

Newsweek's Mark Hosenball, Michael Isikoff, and Anne Belli Gesalman serve up this report on the possible source of the forged Killian memos, and what may turn out to be suspected source Bill Burkett's "defense" to suggestions that he himself may have forged them (boldface added; hat-tip InstaPundit):

Emily Will, a documents expert approached by CBS to examine the memos, told NEWSWEEK that she was told by a CBS News producer that the network's source had received the memos anonymously through the mail. Intense scrutiny has centered on the role of William Burkett, a former National Guard official who charged last February that he saw Bush Guard documents in a trash can in 1997 — an allegation that Guard officials strongly denied. A source who worked with CBS on the story said Burkett was identified by a producer as a conduit for the documents. Three days before the broadcast, Burkett e-mailed a friend that there was "a real heavy situation regarding Bush's records" about to break. "He was having a lot of fun with this," said the friend, Dennis Adams. Burkett told a visitor that after the story ran, Rather phoned him and expressed his and the network's "full support."

A prudent news producer, having retained a document authentication expert and wishing to acquaint her with background information to help her assess certain documents' authenticity, should certainly have passed along this sort of information — as a red flag to emphasize the degree of skepticism the expert should employ.  But thus does initial prudence (since abandoned) become, after the fact, an admission against interest on the part of the unnamed CBS News producer.

Multiple-hearsay problems aside, if Burkett in fact told CBS News that the documents mysteriously appeared in his mailbox, then is Burkett's mailbox Dan Rather's "unimpeachable source"?  Is the mailbox of a noted crank an especially credible mailbox?  What exactly then would an "impeachable source" be in Dan Rather's estimation — the ghost of Julius Caesar communicating with Mr. Burkett in a séance?

We grieve along with Mr. Burkett if, as he told an unidentified journalist per Newsweek's report, "since he began speaking out, unnamed assailants [have] killed his dog" — but we must wonder if that happened before or after said dog ate Mr. Burkett's homework.

Newsweek also reports these disappointing half-measures within CBS News:

While CBS News president Andrew Heyward has publicly backed Rather, the network has quietly assembled a team of additional producers to work the case. Rather is privately telling colleagues he remains "confident" that the story, and the memos, will be vindicated.

Kudos for the "team of additional producers"; jeers for letting Rather and his original team remain involved in any way.

Sen. Kerry's kid sister, useful fool of terrorists, warns Australia against keeping faith with America

Until my blogging friend Steven Jens pointed me to Australian blogger Tim Blair's recent post and the article from The Australian's weekend edition that Tim links, I'd not been aware that Sen. John Kerry's younger sister, Diana Kerry, "is heading a campaign called Americans Overseas for Kerry which aims to secure the votes of Americans abroad — including the more than 100,000 living in Australia."

So what says Ms. Kerry — like her brother, the child of a career U.S. lawyer-diplomat — while campaigning abroad (boldface added)?

John Kerry's campaign has warned Australians that the Howard Government's support for the US in Iraq has made them a bigger target for international terrorists.

Diana Kerry, younger sister of the Democrat presidential candidate, told The Weekend Australian that the Bali bombing and the recent attack on the Australian embassy in Jakarta clearly showed the danger to Australians had increased.

"Australia has kept faith with the US and we are endangering the Australians now by this wanton disregard for international law and multilateral channels," she said, referring to the invasion of Iraq.

Asked if she believed the terrorist threat to Australians was now greater because of the support for Republican George W. Bush, Ms Kerry said: "The most recent attack was on the Australian embassy in Jakarta — I would have to say that."

Ms. Kerry's audience for these remarks, of course, extends far beyond American ex-pat voters.  She apparently has sufficient sensitivity not to quote her brother directly by referring to the Aussies as a prominent member of the "trumped-up, so-called coalition of the bribed, the coerced, the bought and the extorted."  No, she merely accuses her host country of co-conspiracy in a "wanton disregard for international law," and warns them that they're letting George W. Bush paint a target on their backs.  So much for partisanship stopping at the water's edge on the American shore.

The wounds to Rather's career are fatal

A thoughtful reader emailed me with a link to an NRO article I'd missed:  Former CBS newswriter and radio network news editor Dennis E. Powell still has, and quotes from, the "CBS News Standards" book in use during his employment in an article entitled "Throwing the Book at Them."  His conclusion:

My copy of the document is in pristine condition. It provides good guidance and is something I've always treated with a little reverence, because it stands for what CBS once strived to be. I'm tempted to send it to Dan Rather, because I think his copy is probably pretty beaten up as a result of having been flung down and danced upon.

But I don't think I will. For I'm sure that the current view at the CBS News Division is that the document is authentic, but not accurate.

Compliance with journalistic standards and ethics requires the exercise of good judgment, and violations of them are likewise judgment calls, but gone bad.  It is therefore quite remarkable that as the facts of the Ra^thergate debacle continue to come out, no one is defending CBS News' misjudgments in any way — at least, I haven't seen it.  There's no "this was a close call," or "but their source seemed so credible," or "there but for the grace of God go I." 

Hence the metaphoric title of my post preceding this one.  Once roused from its torpor by the blogosphere's exposure of the documents as forgeries, the mainstream media outlets have begun to crowd the tumbling carcasses of Dan Rather et al. as if each is desperate to take home, as a trophy/souvenir to prove its own righteousness, a blood-stained dagger.  The kinder among them have sadly noted or will note Rather's and CBS News' past glories; the less misty-eyed have noted or will note that those past glories were mixed with other scandals, if less heinous ones than this. 

Rather and his cohort cannot be permitted to survive.  "Gracious retirement" is not an option; apologies and contrition, while still appropriate, cannot be sufficient.  It's time, and past time, for Viacom's top management to recognize what everyone else has already concluded.  It's time, and past time, to start the public firings, with the only open question being how many besides Rather, Mapes, Howard, and Howell should be in the first wave.  If this scandal cannot justify such action, then nothing ever could.