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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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« Where is the Transparency? - Crisis of Integrity Continues at CBS | Main | Broad Coalition of Organizations Calls for More INDUCE Act (IICA) Hearings »

September 16, 2004

A Preponderance of Misdirection and Lack of Transparency

Posted by Ernest Miller

A brief fisking of CBS's statement today.

'A Preponderance of Evidence' Wed Sep 15 2004 19:39:35 ET

The CBS News report was based on a preponderance of evidence: many interviews, both on- and off-camera, with individuals with direct and indirect knowledge of the situation, atmosphere and events of the period in question, as well as the procedures, character and thinking of Lt. Col. Killian, Lt. Bush's squadron commander in the Guard, at the time.

The report also included the first television interview with Ben Barnes, a Democrat and current fundraiser for John Kerry, who said he helped get Mr. Bush into the Texas Air National Guard at the request of a Bush family friend.

Numerous questions have been raised about the authenticity of the documents. CBS News believes it is important for the news media to be accountable and address legitimate questions.

However, CBS News also apparently believes that is appropriate to stonewall for nearly an entire week before addressing those questions. Furthermore, CBS believes that the first response should be to cast aspersions on the motivations of those questioning the report. Its not the mistake, it is the coverup afterwards.
Procurement of The Documents

The 60 MINUTES Wednesday broadcast reported that it obtained six documents from the personal files of Lt. Col. Killian, four of which were used in the broadcast. In accordance with longstanding journalistic ethics, CBS News is not prepared to reveal its confidential sources or the method by which 60 MINUTES Wednesday received the documents. CBS News' reporting determined that the source of the memos had access to the documents he provided and an opportunity to obtain copies of them. Our sources included individuals who had first-hand knowledge of the events in question.

Additionally, Mary Mapes, the producer of the report and a well-respected, veteran journalist whose credibility has never been questioned, has been following this story for more than five years. She has a vast and detailed knowledge of the issues surrounding President Bush's service in the Guard and of the individuals involved in the story. Before the report was broadcast, it was vetted and screened in accordance with CBS News standards by several veteran 60 MINUTES Wednesday senior producers and CBS News executives.

Hmmm, you would have thought Mapes might have noticed that no other documents in the Bush National Guard files resembles these documents. Now for the meat of the statement.
Authentication of the Documents

Four independent individuals with expertise in the authentication of documents were consulted prior to the broadcast of the story regarding the documents 60 MINUTES Wednesday obtained: document examiners Marcel B. Matley, James J. Pierce, Emily Will and Linda James.

Why was CBS so reticent to provide the names of these individuals? Inquiring minds want to know.
As CBS News has publicly stated, the documents used in the report were photocopies of originals.
So, when is CBS going to release high quality scans of the documents, the same quality as were provided to these experts? After all, in the initial response to critics, CBS complained that those who questioned CBS did not have access to high quality originals. A complaint CBS reiterates below.
Two of the examiners, Mssrs. Matley and Pierce, attested and continue to attest to their belief in the documents' authenticity. (see attachments 1 and 2) Two others, Ms. Will and Ms. James, appeared on a competing network yesterday, where they misrepresented their conversations and communication with CBS News. In fact, they assessed only one of the four documents used in the report, and while one of them raised a question about one aspect of that one document, they did not raise substantial objections or render definitive judgment on the document. Ultimately, they played a peripheral role in the authentication process and deferred to Mr. Matley, who examined all four of the documents used.
And we should believe CBS, why? Perhaps they could provide the world with some of the emails or other correspondence with Ms. Will and Ms. James. Perhaps they might also explain the inconsistency of this statement with what Mr. Matley has said since. I'm sure we will soon hear more from Mr. Pierce. Finally, why did CBS request that Mr. Matley not talk with the press?
Additionally, two more individuals with specific expertise relative to the documents - Bill Glennon, a technology consultant and long-time IBM typewriter service technician, and Richard Katz, a computer software expert - were asked to examine the documents after the broadcast for a report in the Sept. 13 CBS EVENING NEWS. They, too, found nothing to lead them to believe that the documents did not date back to the early 1970s. They strongly refuted the claim made by some critics that there were no typewriters in existence in the early 1970s that could have produced such documents. (see attachments 3 and 4)
Har - dee - Har Har. Please. Several other recognized and certified document experts, as well as those with vast experience in fontography and access to actual machines upon which to perform experiments (such as at Adobe) have completely and utterly discredited Mr. Glennon's recollections as an IBM Typewriter repairman. See, Joseph Newcomer, The Bush "Guard memos" are forgeries!). Why did CBS choose to believe an "expert" with so little experience compared to the experts who other news organizations relied on?

As for Mr. Katz. I wrote a pretty darn good debunking in just a few hours (took time to make the images) of his conclusions. See, CBS Memo Defense: Richard Katz Is Wrong About Ones and Els and Little Green Footballs, Typewriter Repairman Promoted. Seriously, are we to believe these were the best "experts" CBS can find?

Oh, and by the way, how did CBS find these "experts"? Did CBS go to the society for document examiners or whatever it is called? Or did they just find people via the internet or other publications who already supported CBS's position? Is that how you should find experts as a reporter? Conclusion first, choose expert second?

CBS News Experts' Conclusions About the Documents

- Katz believes the documents were written on a typewriter and not a computer. (attachment 3)

- Glennon confirms that the superscript "th" and proportional spacing of the typeface of the four documents were definitely available on typewriters as early as the late 1960s. (attachment 4)

- Pierce believes that the documents in question are authentic as best as he can determine, given that they are copies and not originals. (attachment 2)

- Matley says the signatures are, indeed, Killian's. (attachment 1)

Um, okay, yeah.
Again, the documents used for the 60 MINUTES Wednesday report were copies, and most of the analysis fueling the current controversy is based on scanned, downloaded, faxed or re-copied copies. For now, the disagreements among "dueling experts" have not been resolved.
Uh, yeah. This is called being oblivious. Where are the better copies? The ones your experts used. Oh, right, Glennon never actually saw those original copies and neither did Katz, to my knowledge. How about a blue-ribbon panel of experts then? No. Gosh, didn't think so.
Other Issues

Maj. Gen. Bobby Hodges, who was group commander of Lt. Bush's squadron, has stated to The New York Times and Los Angeles Times, among others, that he believes the documents are not real, but also told The New York Times, in an article that appeared on Sept. 12, that the information in the CBS News report "...reflected issues he and Col. Killian had discussed-namely Mr. Bush's failure to appear for a physical, which military records released previously by the White House show, led to a suspension from flying." That is consistent with what he told CBS News off-camera as part of the research for this report.

And that supports the authenticity of the documents, how? I have lots of conversations with people. Most of them are not written down. Undoubtedly, Hodges discussed Bush's performance with Killian. That is how the military system works.
A reference in one memo to Gen. Buck Staudt applying pressure on behalf of Lt. Bush raised questions because Staudt had left his job 18 months before the memo was written. But CBS News' background reporting determined that Staudt remained a powerful figure in the Guard for years after his retirement, a fact that is confirmed by Ms. Knox in a newspaper interview. More importantly, the same memo referred to unhappiness in Austin, an obvious reference to Staudt's successor at the Austin, Texas, headquarters of the Texas Air National Guard.
Ok, let's see that background reporting, as it has been directly attacked by other members of the TexANG.
Conclusions

The editorial content of the report was not based solely on the physical documents, but also on numerous credible sources who supported what the documents said.

Misdirection. The argument is with the authenticity of the documents.
Through all of the frenzied debate of the past week, the basic content of the 60 MINUTES Wednesday report - that President Bush received preferential treatment to gain entrance to the Texas Air National Guard and that he may not have fulfilled all of the requirements -- has not been substantially challenged.
Off topic once again. "Please, please look over here, never mind that man behind the curtain."
CBS News will make every effort to resolve the contradictions and answer the unanswered questions about the documents and will continue to report on all aspects of the story.
I'm not holding my breath, considering the dissembling, stonewalling, hunkered down effort CBS has taken so far. An aggressive investigation might salvage some reputations at CBS, but CBS has demonstrated nothing like that so far.

Comments (28) + TrackBacks (0) | Category: Blogging and Journalism


COMMENTS

1. allyn on September 16, 2004 02:03 AM writes...

Just anote, CBS own attachments refute their claims ... for example, they say attachment 1, matley's statement authenticates teh document:

"Two of the examiners, Mssrs. Matley and Pierce, attested and continue to attest to their belief in the documents' authenticity. (see attachments 1 and 2)"

but the Matley attachment only auhtenticates the signature as their own statement later admits:

"Matley says the signatures are, indeed, Killian's. (attachment 1)"

This is unbeleivable.

Permalink to Comment

2. me on September 16, 2004 02:05 AM writes...

CBS is pathetic. How, after receiving these memos, did they NOT contact the secretary (Ms. Knox) of Killian??? Isn't there some level of due diligence required in such an "important" story??? HOW? HOW? HOW?

(I know the answer -- it's liberal bias.)

Also, ABC News found the secretary (Ms. Knox) first -- so CBS was scooped by a different network on their story. P-a-t-h-e-t-i-c.

Permalink to Comment

3. BarleyMouse on September 16, 2004 02:06 AM writes...

Assume everything is true. Bush missed a physical when all the flight time for everybody was winding down. So F-ing what.

He has acquitted himself admirably in the /current/ war. He has a vision for the future and a long-term strategy.

I was Nam-era Army but got nowhere near the place. I used to vote Dem, but I'm thoroughly fed up with the whole bunch of these idiots who simply don't get it, and are trying to drag down a guy who does.

End of discussion.

Permalink to Comment

4. DeoDuce on September 16, 2004 02:13 AM writes...

CBS is pissed that American citizens are calling them on thier bluff. Way to go.

Permalink to Comment

5. Sandy P on September 16, 2004 02:13 AM writes...

If Mary Mapes has been following the story for MORE THAN 5 years, why contact his secretary now?

This is investigating?

And has anyone noticed that IBM is staying out of the fray?

They don't know their machines?

Permalink to Comment

6. Nathan on September 16, 2004 02:13 AM writes...

Fake but Real
False yet accurate
Memo errors but the whole must be used
Flip but Flop
Something starts to look familar...

Permalink to Comment

7. Ripper on September 16, 2004 02:21 AM writes...

"six documents from the personal files of Lt. Col. Killian, four of which were used in the broadcast."

This is the first CBS confimation of the "runt" forgeries their "experts" rejected from the start.

Permalink to Comment

8. Mr. X on September 16, 2004 02:23 AM writes...

http://drudgereport.com/flash4.htm
"But CBS News' background reporting determined that Staudt remained a powerful figure in the Guard for years after his retirement, a fact that is confirmed by Ms. Knox in a newspaper interview."


http://www.ktok.com/script/headline_newsmanager.php?id=347783&pagecontent=nationalnews&feed_id=59


"Knox said that she didn't recall typing a Killian
memo alleging that a commander, Col. Walter "Buck"
Staudt, was pressuring officers to "sugar coat" Bush's record. But she said that Staudt's larger-than-life dominance of the unit would have been reflected in Killian's personal files. ****She added, though, that there's no way Staudt could have exerted that influence after he retired.****"

Permalink to Comment

9. McGehee on September 16, 2004 02:25 AM writes...

Hmmm. When legitimate questions are raised, attack the questioner. The Kerry campaign did this to the SwiftVets, and now CBS is doing it to ... pretty much everyone.

What an intriguing coincidence.

Permalink to Comment

10. Brian on September 16, 2004 02:31 AM writes...

I don't care how many "experts" they drag out. I want to see Dan Rather sit at a typewriter and produce a document that is identical to the one in dispute. With all of the resources at their disposal they should be able to track down that model of typewriter (if it exists).

Permalink to Comment

11. Jim on September 16, 2004 02:44 AM writes...

Why didn't their typewriter 'expert' identify the exact model of the typewriter immediately, or soon after? In fact, he hasn't identified it at all. If this guy was so familiar with typewriters, he should know what models had all the features that could be used to create those memos.

Permalink to Comment

12. Tcobb on September 16, 2004 02:50 AM writes...

I was an attorney for some years, and it is axiomatic that in any kind of trial you highlight the best, purest, and most credible evidence you have while trying to make your case. Maybe I'm naive, but it would seem just as a matter of common sense that MSM journalists would do the same; its a no brainer.

But the best evidence that CBS can present is something that is a blatant and obvious forgery? What does this say about the quality of the rest of their "evidence" that they built their story upon?

The very fact that they spout such drivel as a response is insulting.

Permalink to Comment

13. Paul Dupont on September 16, 2004 02:54 AM writes...

If CBS has investigated the story for five years, why haven't they been able to uncover any credible evidence to support the story? Do you think it might be because the story isn't true?

Permalink to Comment

14. PajamaClad on September 16, 2004 02:56 AM writes...

Pierce: "...it is my opinion, based on the available evidence, that the balance of the Jerry B. Killian signatures appearing on the photocopied questioned documents are consistent and in basic agreement."

Excuse me, are you testifying that the signatures are consistent with Killian's signature, or only that all the signatures on the memos were made by the same person?

Pierce: "...it is my opinion, based on the available evidence, that the balance of the Jerry B. Killian signatures appearing on the photocopied questioned documents are consistent and in basic agreement."

"In regard to the balance of the typed-written photocopied questioned documents, the same typed-face designs are strongly similar to corresponding samples that indicate the same typed-face existed prior to the date in question..."

Pardon me for being a spelling snob, but I have to doubt the essential competence of a document examiner who thinks "typed-written" and "typed-face" are English words. Besides, this is no more than to say "Times New Roman was used by professional typesetters before the personal computer era," which is not in dispute.

Permalink to Comment

15. pete on September 16, 2004 03:11 AM writes...

who is james j pierce? googled him and came up with nothing? he did only say all 4 signatures were consistent, not that they were consistent with 'killians'

Permalink to Comment

16. ProCynic on September 16, 2004 03:18 AM writes...

Let me get this straight.

CBS:
"Four independent individuals with expertise in the authentication of documents were consulted prior to the broadcast of the story regarding the documents 60 MINUTES Wednesday obtained: document examiners Marcel B. Matley, James J. Pierce, Emily Will and Linda James."

In other words, CBS relied on 4 "experts" to authenticate the documents.

"Two of the examiners, Mssrs. Matley and Pierce, attested and continue to attest to their belief in the documents' authenticity. (see attachments 1 and 2) Two others, Ms. Will and Ms. James, appeared on a competing network yesterday, where they misrepresented their conversations and communication with CBS News. In fact, they assessed only one of the four documents used in the report, and while one of them raised a question about one aspect of that one document, they did not raise substantial objections or render definitive judgment on the document. Ultimately, they played a peripheral role in the authentication process and deferred to Mr. Matley, who examined all four of the documents used."

In other words, 2 of those 4 "experts" don't count.

This is supposed to be a credible defense?

Permalink to Comment

17. Jeff Harrell on September 16, 2004 03:34 AM writes...

ProCynic, three of four of the experts don't count. Marcel Matley denied any statement of authenticity to the Washington Post. I've got a link to the article on my site.

Permalink to Comment

18. Dusty on September 16, 2004 03:57 AM writes...

"Oh, and by the way, how did CBS find these "experts"? Did CBS go to the society for document examiners or whatever it is called? Or did they just find people via the internet or other publications who already supported CBS's position?"

Actually, they might have done both (go to NADE and find people via the Internet.) I had posted a screen shot of this at my site which I thought pretty amusing but probably not far from CBS' reality. Here is the url:

http://www.documentexaminers.org/ask.htm

If different than my screenshot, then it has been changed.

Permalink to Comment

19. Dusty on September 16, 2004 04:10 AM writes...

having finished your post, I am wondering how psychiatrists might characterize vivid 30 year old memories of people shortly after reading fraudulant descriptions of past events.

I have trouble with Killian's secretary's recollections being like things happened yesterday. (Aside from the likelyhood she had been coached all day for the 60 Minutes story today)

Permalink to Comment

20. TWH on September 16, 2004 05:29 AM writes...

Check out googlenews before it disappears

CBS Says It Will Check Questions on Bush Files
New York Times - 1 hour ago
BS News said for the first time last night that there were legitimate questions about the authenticity of documents it presented in a "60 Minutes" report last week that raised ...

>>>>BS news

Get it out there on the net!!!!!!!!!!!


Permalink to Comment

21. m on September 16, 2004 07:40 AM writes...

pajamaclad,

Re: The Pierce statement:

Pierce: "...it is my opinion, based on the available evidence, that the balance of the Jerry B. Killian signatures appearing on the photocopied questioned documents are consistent and in basic agreement."

"In regard to the balance of the typed-written photocopied questioned documents, the same typed-face designs are strongly similar to corresponding samples that indicate the same typed-face existed prior to the date in question..."

It seems to me that Pierce claims only that the signature and the typeface is consistent among the (four? six?) "photocopied questioned" documents he was given by CBS, not at all that the signature and the typeface is consistent with any single authenticated example of Killian's signature and any single authenticated example of a 1970s typeface. That is a truly worthless claim: internal consistency among photocopied and questioned documents? If not even CBS's authenticator compared these features to those on independently authenticated samples--sheesh.

Permalink to Comment

22. Pete Nelson on September 16, 2004 09:26 AM writes...

It looks like others have beaten me (see Politicalities comment) to it, but I believe I have discovered who James Pierce is. He's another hired gun handwriting analyst whose credential seem rather dubious.

I have more on my blog, Pete's Journal, http://home.comcast.net/~pete-nelson/journal.htm

Permalink to Comment

23. slim999 on September 16, 2004 01:14 PM writes...

It's important to reiterate what CBS says:

"Four independent individuals with expertise in the authentication of documents were consulted prior to the broadcast of the story ..."

This line is DESIGNED to be interpreted to mean that 4 people attested to the authenticity of these documents ... but it does not SAY this. It just says we consulted 4 people ABOUT the authenticity.

Moments later, CBS acknowledges that 2 of their "sources" did NOT vouch for the authenticity of the documents and were thus, not used as sources who were vouching for the authenticity of the documents.

So now, there's only 2 sources that they used to bolster the authenticity question.

Then, this:

"Two of the examiners, Mssrs. Matley and Pierce, attested and continue to attest to their belief in the documents' authenticity." This statement is false. Mr. Matley will say, has said, and continues to say that he did not attest to the documents' authenticity, because doing so is impossible in the absense of an original. Mr. Matley ONLY gave CBS an opinion about whether or not the signature on the potentially forged document appeared to be that of Mr. Killian. Editing by CBS appears to show Mr. Matley confirming the authenticity of the documents, but nowhere in the aired program did he do that, nor will he off-air.

CBS' then trots out its final two "sources" who say - essentially - "with enough technology, someone could conceiveably have produced these in 1970."

With friends like these, John Kerry needs no enemies.

Permalink to Comment

24. Dan on September 16, 2004 01:38 PM writes...

Every bit of evidence and every statment CSB has made about this issue has failed to stand up to even modest scrutiny.

The documents are, beyond a reasonable doubt, forgeries.

CBS misrepresented the opinions of at least 3 of the 4 document experts they used.

CBS claims that the content of the documents is consistent with the memories of many people they spoke to. However, we know that some that they spoke to disputed the content. CBS ignored this testimony.

Ben Barnes, a man of dubious character, clamis to have pulled strings for Bush. His daughter says he lying. I wonder if CBS asked him to name the sons of other Republican families he pulled strings for? For that matter, how many sons of prominent Democrats was he able to get into the guard, prior to his own elevation to Lt. Gov. Also, who's strings did he pull? Were those officers interviewed; what did the say?

Finally, Mary Mapes is said to have been all over this for 5 years. So why was she unable to locate Killian's secratary in all that time? In 5 years, why has she not talked to (or at least reported the statements of) the numerous TANG officers who have disputed the content of these documents.

Bottom line, CBS was not "had". They are active participants in this fraud.

Permalink to Comment

25. Steve on September 16, 2004 04:09 PM writes...

Mary Mapes (CBS producer) has been repeatedly discussed by John Carlson (KVI Talk Radio Host, Seattle and past Republican candidate for Governor in 2000)) over this past week. John worked with her many years ago at a local network TV outlet. Says she is extremely politically driven with no history of objectivity. I listened to John go on about his past history with Mapes when her father called in to his talk show. John (and I, and probably most of the show listeners) thought he was going to go after John for his discussion about his daughter. Instead, he totally agreed with John! It was quite an interesting call.

Permalink to Comment

26. James Malcolm on September 16, 2004 04:09 PM writes...

The usually fine Andrew Sullivan pulled an unbelievable stunt in today's blog. He says, for what it's worth, he believes the stories about Bush and having help to get in the Guard and having failed to perform duties in the last two years of his service - without offering proof. But he bullies the rest of us into silence over the Swift Boat Vets saying we have no business questioning Kerry's service. Well, I, to put it bluntly, believe the Purple Hearts are bogus and my evidence is that Kerry never spent a day in a hospital that anyone can verify. So why is Andrew so high and mighty.
Andrew, also, in a London Times article, accused the Bush's of thuggery by putting the Swift Boat Vets up to their antics. That, of course, is a bald face lie. And on the other side, Andrew fails to condemn the presence of Michael Moore as a guest of honor at the Democratic Convention which was a specific endorsement of his libelous screed.
Andrew just isn't fair and balanced, alas.

Permalink to Comment

27. TIGTOG on September 16, 2004 08:55 PM writes...

The idea that an ANG LtCol with excess of 20 years experience is the convenient source of the forged letters does not make sense. Burkett was described by his peers as a detail oriented (read staff) officer. There is no way a detailed staff officer would have created such a poorly written forgery. It can be expected that even an ANG LtCol would know how to abbreviate 1stLt. I do not believe he wrote these forgeries. He may well have reviewed them and offered his opinion, thus using a Kinkos fax machine, but he did not write them. The source is clearly someone who never served.

Permalink to Comment

28. Rolo Timassie on September 17, 2004 06:26 AM writes...

Man, this story has really pulled the nuts out of the woodwork.

Permalink to Comment


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