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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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« Incompetent AND Unethical: The Story of CBS News' Response to Criticism of the Killian Memo Forgeries - Part One | Main | CBS Investigation Only on Process to Broadcast - Not Stonewalling »

September 22, 2004

Incompetent AND Unethical: The Story of CBS News' Response to Criticism of the Killian Memo Forgeries - Part Two

Posted by Ernest Miller

This is part two of my timeline and analysis of CBS News' response to criticism of the Killian memo forgeries. Read part one here: Incompetent AND Unethical: The Story of CBS News' Response to Criticism of the Killian Memo Forgeries - Part One.

Read on...

Tuesday, September 14th

The Washington Post story that explored Glennon's expert testimony a little more deeply than CBS News, also had another statement from a CBS spokesperson:

Asked about Matley's comments [that he couldn't authenticate the documents], CBS spokeswoman Sandy Genelius said: "In the end, the gist is that it's inconclusive. People are coming down on both sides, which is to be expected when you're dealing with copies of documents."
Huh? You expect this sort of spin from a politician's aides, but from a news organization? I thought journalists were supposed to cut through the spin, not create it.

Matley was one of CBS's experts, who they had touted on Friday's evening news. Shouldn't CBS News have expressed a little more concern that one of their primary sources was essentially recanting?

Furthermore, we once again see CBS News retreating into a "he said/she said" defense. Experts on both sides or the argument? If that were true, why was CBS using the likes of Glennon and Katz to defend them? What happened to Bouffard, who CBS cited on Saturday night?

And then there is this:

Matley said he spent five to eight hours examining the memos. "I knew I could not prove them authentic just from my expertise," he said. "I can't say either way from my expertise, the narrow, narrow little field of my expertise."
That's pretty small expertise.

More importantly, recall that on Thursday, this was reported by the Washington Post:

CBS officials insisted that the network had done due diligence in checking out the authenticity of the documents with independent experts over six weeks.
The other experts who were "peripheral" probably didn't spend too much time with the documents either. I guess the third expert, James J. Pierce, must account for the other 5 weeks and 6 days. As we now know, of course, CBS News did not spend six weeks authenticating the documents with experts.

The Washington Post story also cited CBS News' claims of source confidentiality (Expert Cited by CBS Says He Didn't Authenticate Papers):

Citing confidentiality issues, CBS News has declined to reveal the source of the disputed documents -- which have been in the network's possession for more than a month -- or to explain how they came to light after more than three decades.
It'll be interesting to see when CBS News knew about Mapes' brokering contact between their source, Burkett, and Joe Lockhart of the Kerry campaign. One has to wonder what sort of confidentiality is permissible in CBS News. Is one permitted to give one political party everything but a sign pointing to someone as the source of the documents, while denying the same information to another party as well as the public? Is this what confidentiality is about?

The New York Times also weighed in (CBS Offers New Experts to Support Guard Memos). CBS News President Andrew Heyward continued to keep his head in the sand:

Andrew Heyward, the CBS News president, said in an interview on Sunday that he was not concerned about the validity of the documents or the report CBS News presented. "I'm firmly convinced that the memos are authentic and the stories are accurate," he said.

Addressing staff concerns, Mr. Heyward said, "The story was thoroughly vetted as all pieces of '60 Minutes' are, and the more they know about the process, the more reassured they will be that we used every appropriate journalistic standard and safeguard in reporting the story." A spokeswoman said yesterday he had not changed his position.

And yet another statement reiterates the confidence in no uncertain terms:
One important question raised inside and outside CBS is whether it knows where the documents, which it admits are not originals but copies, came from in the first place and how many hands they passed through. Sandy Genelius, a network spokeswoman, said, "We are confident about the chain of custody; we're confident in how we secured the documents." She would not elaborate.
One has to wonder when anyone at CBS News decided to take a closer look at their sources and yet continue to make these striking claims of confidence.

Speaking of confidence, CBS News never showed any in its experts, except for Matley. This day was the day in which ABC News finally broke through CBS's wall of silence regarding their "experts" and found that the "experts" hadn't done any authenticating (Document Analysts: CBS News Ignored Concerns About Disputed Bush Military Records). Here is CBS's response according to the report:

"CBS News did not rely on either Emily Will or Linda James for a final assessment of the documents regarding George Bush's service in the Texas Air National Guard. Ms. Will and Ms. James were among a group of experts we consulted to assess one of the four documents used in the report and they did not render definitive judgment on that document. Ultimately, they played a peripheral role and deferred to another expert who examined all four of the documents used," the network said in a statement.

"Most importantly, the content of the documents was backed up by our reporting and our sources who knew the thoughts and behavior of Lt. Col. Jerry Killian at the time," the statement said.

It is important to note that CBS never released the names of Miss Will and Miss James. It required reporting by ABC News. Note also, that CBS News didn't name, at that time, any of the other members of the "group of experts." Finally, note that this description of the process of authenticating seems wildly in variance with the claims about experts made prior to this.

I'm not really sure you there is any other word for CBS conduct with regard to claims about its "expert" authentication than unethical.

In any case, while ABC News was ripping CBS's defenses apart, the CBS Evening News had very little to say on the subject.

ROBERTS: The president has yet to weigh in on new documents about his National Guard record made public last week by 60 minutes. But in a radio interview, First Lady Laura Bush became the first White House insider to publicly doubt their authenticity.

LAURA BUSH (From radio interview): You know, they probably are altered and they probably are forgeries.

ROBERTS: However, Laura Bush offered no evidence to back up her claim...and CBS News continues to stand by its reporting.

CBS News must have gotten a new shipment of "howevers" Tuesday morning, because they apparently were all out on Monday. They could have said things like "Glennon claims typewriters of the era could make similar memos, however, he can't authenticate the documents." Or, "Katz claims to be able to note the subtle distinction between a "1" and an "l", however, he has only examined muddied copies off the internet, which we have previously claimed are not suitable for analysis."

CBS News was taking a cheap shot when their own credibility was quite questionable.

Wednesday, September 15th

The LA Times gets an interview with Rather and CBS News Chief Andrew Heyward (Rather Rides Out Latest Partisan Storm). In the interview, Rather plays the answer-a-question-with-a-question-game and, once again, misses the irony and hypocrisy:

Facing questions it didn't want to answer, the vice president's [George H. W. Bush] "political apparatus understandably, out of necessity, chose to question the questioner," Rather said. Likewise, he said, his critics are "people who for their own partisan, political agendas can't deny the core truth of this story … and want to change the subject and make the story about me rather than have the story be about the unanswered questions about President Bush's military service."
Of course, it is all about you, Dan. Couldn't possibly be about the authenticity of the memos. This leaves me wondering if narcisstic paranoia makes for proper journalism.

Once again, strangely, Rather seems to be pointing the finger at partisan criticism when the criticism was quite widespread and the source he was protecting was extremely partisan. Odd.

Even more strange is the fact that, CBS News Chief Andrew Heyward thought CBS News had already gone above and beyond in the transparency department:

"I think we've gone out of our way to reveal more of the process than most journalists do," Heyward said. "We're going to have to take the criticism."
If CBS's actions to this point were exceptional transparency, I'd hate to see what real stonewalling looks like. Seriously, I would have to say that this and similar statements really call Heyward's judgement into question.

The Washington Post follows up on the ABC News report about two of the document experts hired by CBS (Document Experts Say CBS Ignored Memo 'Red Flags'). Here CBS News calls the experts it hired liars.

CBS News Senior Vice President Betsy West said last night: "As far as I know, Linda James raised no objections. She said she'd have to see more documents to render a judgment."

As for Will's account, West said: "I'm not aware of any substantive objection she raised. Emily Will did not urge us to hold the story. She was not adamant in any way. At one point she raised a concern about a superscript 'th,' which we then discussed with the other experts we hired to examine all four of the documents we aired. We were assured the 'th' was consistent with technology at the time, an assessment that has since been backed up by other experts."

CBS spokeswoman Sandy Genelius added that both women "played a peripheral role and deferred to another expert," Matley. But James said she did not defer to Matley and merely recommended him to CBS. The network says it relied on two additional document experts, whose names have not been made public.

So, we have CBS calling its own experts liars. Okay.

There is also a hint of the "he said/she said" experts will disagree defense ... after all the 'th' is consistent with technology of the time. As if that settles the matter.

More interestingly, CBS News has revealed the name of only one more document expert, James J. Pierce. As of this writing, apparently, there is one more secret, anonymous document expert that CBS has used. Why has CBS not named them? Especially given that CBS has acknowledged there may be problems with the documents. Of course, as we now know, there is no other fifth, mysterious expert.

The discussion about the "th" must have been with Pierce, because Matley isn't qualified to render judgements about typewriter fonts commonly in use in the early 1970s and has said nothing about discussing "th" ligatures with CBS News.

Incompetent or unethical? Your call.

Then there's this:

CBS began to doubt Will because she started expanding her role and doing Google searches about Bush's whereabouts at the time, said an executive who insisted on anonymity because the network did not want to go beyond the official statements. But Will said she was merely doing research into whether superscript existed in 1972.
It'll be interesting to see if anyone at CBS has any documentation to back up this claim, or whether an anonymous source within CBS News was merely casting aspersions on the experts CBS News had hired but had turned critical. Furthermore, when CBS News was touting the four experts who authenticated the documents, there was no mention that CBS News doubted Will. Once again, CBS News' original statement about confidence in its experts turns out to be less than confident later.

The New York Observer had a lengthy interview with Dan Rather, which I fisked here: Rather Shows He is Unfit for Journalism. Read the whole thing, but here are a couple of highlights:

"I think the public, even decent people who may be well-disposed toward President Bush, understand that powerful and extremely well-financed forces are concentrating on questions about the documents because they can’t deny the fundamental truth of the story," he said. "If you can’t deny the information, then attack and seek to destroy the credibility of the messenger, the bearer of the information. And in this case, it’s change the subject from the truth of the information to the truth of the documents.
It is becoming quite clear that CBS News is an irony-free zone. In any case, this is really the key element of the interview with regard to Rather's unsuitability to remain a journalist for a major news organization. Not only does he ignore valid and credible concerns that undermine his "reporting," he attacks his critics as partisan dupes. This is clear evidence that Rather is no longer able to weigh evidence objectively.

It is doubly clear now that CBS News has been forced to acknowledge that they "cannot prove" the authenticity of the documents to basic journalistic standards.

That [the difficulty of authenticating documents] was why, he said, half of the experts agreed and the other half didn’t. That supposed stalemate left nothing but the truth at the center of the documents.
I really have no idea how a journalist can honestly believe that there is a fifty-fifty split among experts over the validity of the documents, given the difficulty CBS has apparently had in finding experts to support their position. And, even if there were such a split, why that should default to the "truth" of the documents is beyond me. What sort of journalistic standards are these? What sort of journalism does CBS News practice?

The interview with the Observer also has some tantalizing bits about the source:

"We eventually came in contact with somebody who said he knew about the documents, and it took a while to get in contact with the man who was supposed to have had the documents," he said. "It took a long time for us to create a reportorial relationship with him in which he trusted us, and at the same time we were checking him out to see if he was a trustworthy person."
Burkett a trustworthy person? Newsweek had already identified him days before as the likely source and also pointed out he wasn't the most reliable witness. By the time Rather was being interviewed, many bloggers had already made it a part time hobby to find partisan statements by Mr. Burkett.
He did not reveal the name of the source, but Mr. Rather said he was a man who had been reluctant to come forth with them because he’d been harassed by political operatives. "Whether one believes it or not, this person believed that he and his family had been harassed and even threatened," he said. "We were not able to confirm that, but his fear was that what had already been threats, intimidation, if he gave up the documents, could get worse—maybe a lot worse."
Of course, Rather would acknowledge that the source feared political operatives, but wouldn't say of which stripe. Interesting, that.

Finally, after many, many delays, CBS News finally released its statement on the ongoing scandal acknowledging that there were credible questions about the authenticity of the documents. I've posted and fisked it here: A Preponderance of Misdirection and Lack of Transparency. Read the whole thing, but here are a couple of highlights:

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.
This would seem to conflict with the statement CBS News made to the Washington Post for their article published earlier that very day, claiming that there was an additional remaining unnamed document verifier.
As CBS News has publicly stated, the documents used in the report were photocopies of originals.
CBS noted this on Friday, after there was substantial criticism. And, where are the "pristine" copies CBS claimed to have? The one generation copies?
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)
Um, really? Because that doesn't seem to be what Matley has been saying to all sorts of rival news organizations. Indeed, even in the report that CBS provides from Matley, it is pretty clear: Re: Killian Signatures; My File Ref. 04093-A [PDF]
Therefore, the preponderance of the available handwriting evidence is that one writer made all signatures examined.
Doesn't seem quite the same thing as "authentication."

You've also got to be impressed that CBS News continued to tout Glennon and Katz as experts.

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)
Unfortunately, this statement is inaccurate. Neither was asked to examine the documents. Both examined the same crummy downloadable documents available on the internet independently of CBS News. Indeed, Glennon has stated CBS News would not show him pristine copies of the documents when he visited the CBS offices in New York. One would think CBS News could at least write an official document that was accurate.

As for the claim that these two "experts" strongly refuted the claim by some critics that there were no typewriters in existence in the early 1970s that could have produced such documents, the day before, the Washington Post had this to say (Expert Cited by CBS Says He Didn't Authenticate Papers):

"I am personally 100 percent sure that they are fake," said Joseph M. Newcomer, author of several books on Windows programming, who worked on electronic typesetting techniques in the early 1970s. Newcomer said he had produced virtually exact replicas of the CBS documents using Microsoft Word formatting and the Times New Roman font.

Newcomer drew an analogy with an art expert trying to determine whether a painting of unknown provenance was painted by Leonardo Da Vinci. "If I was looking for a Da Vinci, I would look for characteristic brush strokes," he said. "If I found something that was painted with a modern synthetic brush, I would know that I have a forgery." ....

Thomas Phinney, program manager for fonts for the Adobe company in Seattle, which helped to develop the modern Times New Roman font, disputed Glennon's statement to CBS. He said "fairly extensive testing" had convinced him that the fonts and formatting used in the CBS documents could not have been produced by the most sophisticated IBM typewriters in use in 1972, including the Selectric and the Executive. He said the two systems used fonts of different widths.

"Strongly refuted"? I can only ask: "Incompetence and/or unethical?"

This statement would also have been an excellent opportunity to clear up the lies about the sourcing of the documents: "CBS verified the authenticity of the documents by talking to individuals who had seen the documents at the time they were written."

On the CBS Evening News, the questions were addressed once again.

DAN RATHER, CBS ANCHOR: CBS News, "60 Minutes" and this reporter drew fire today over our reports that raised questions about President Bush's military service record, including whether he followed orders and whether he fulfilled his obligations to the National Guard. CBS News correspondent Wyatt Andrews reports on the latest attack on the "60 Minutes" story and the CBS News response. (BEGIN VIDEOTAPE)
Once again, legitimate questions are characterized as drawing "fire" and a presumably illegitimate "attack." Presumably, CBS News would consider it fair to describe its critical reporting on other subjects as "attacks." Oops, the paragraph above makes it clear that CBS News has "raised questions" about President Bush, whereas those who raise questions about CBS News' reports are "attacking" CBS.
WYATT ANDREWS, CBS CORRESPONDENT (voice-over): Congressional Republicans turned the high heat on CBS News, charging that last week's revelations about Lieutenant George Bush, which aired on "60 Minutes," were based on fake documents, and demanding that "60 Minutes" and Dan Rather retract the story.

UNIDENTIFIED MALE: It's very clear the documents were forged. They were laid on him, and this time he bit.

ANDREWS: Forty members of the House signed this letter, accusing the network of deception, asking CBS if the documents are authentic, why won't the network say how it got them?

REP. ROY BLUNT (R), MISSOURI: Well, I think at the very least CBS should characterize the source. I think it's amazing that they haven't already done that.

ANDREWS: The dispute surrounds memoranda "60 Minutes" says came from the personal file of Lieutenant Bush's Air National Guard commander, Lieutenant Colonel Jerry Killian, memos that accuse Mr. Bush of disobeying an order and of using connections to have Killian "sugarcoat" Mr. Bush's record. However, some experts doubt the authenticity of those memos.

Although experts had been doubting the authenticity of the memos from the first day after the original broadcast (and before, if you count CBS's own experts), this is the first time CBS acknowledges the credentials of those who have sought answers from CBS.
Killian's secretary, in an interview for tonight's "60 Minutes," tells Dan Rather she, too, believes the memos are fake, but accurately reflect Killian's view of Lieutenant Bush.

MARIAN KNOX, LT. COL. JERRY KILLIAN'S SECRETARY: I know that I didn't type them. However, the information in those is correct.

ANDREWS: Marian Knox says Colonel Killian liked Mr. Bush but not his attitude.

KNOX: Killian was very friendly with Bush. They had fun together. And I think it upset him very much that he was being defied.

CBS News has interviewed Killian's secretary, something they had apparently never done in the preparation of the original broadcast, despite the producer, Mary Mapes, having followed the story for five years and "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." Emphasis added.

Miss Knox would also be the same secretary whose interview CBS has already responded to, according to the Seattle Times (Ex-Guard typist recalls memos on Bush):

CBS officials appeared jubilant over Knox's revelations. "While we do not believe that she is a documents expert," CBS spokeswoman Sandy Genelius said, "it is exceptionally noteworthy that she supports the content of our story." [emphasis added]
One might wonder why CBS is interviewing someone about the authenticity of the documents, given that CBS News does "not believe ... [she] is a documents expert." Of course, not being a documents expert didn't stop CBS from interviewing Glennon and Katz.

One might wonder what distinguishes Miss Knox's claims from the claims of the other experts, whose critiques CBS News has yet to explicitly acknowledge are valid?

ANDREWS: CBS News officials say the memos came from a confidential source, and that they are certain the content of the story is true.
This is another version of the story is true, but the evidence may be false. What sort of news organization consistently makes these sorts of claims? In what moral universe do members of the press argue that the content of story is true, though key evidence has been falsified? Shouldn't a news organization attempt to analyze that evidence and then see how much of the story is left afterwards?
ANDREW HEYWARD, PRESIDENT, CBS NEWS: We would not have put the report on the air if we did not believe in every aspect of it.

ANDREWS: But News President Andrew Heyward also says the network will try to resolve what he calls the "unresolved issues."

HEYWARD: Enough questions have been raised that we are going to redouble our efforts to answer those questions.

What questions would those be? What efforts are being redoubled? Shouldn't a news organization be a little more direct regarding issues "attacking" its credibility? Would CBS News accept such vague answers from a corporation accused of providing false documentation?
ANDREWS (on camera): Some at this network believe the backlash against the "60 Minutes" report is pure politics. But that's the critics' point as well, that fake or real, the fact that "60 Minutes" got these documents during an election year was no accident.
And the purpose of reporting the unsubstantiated beliefs of those at the network is? And is "backlash" really an appropriate term to describe legitmate criticism? Finally, some critics have charged that "60 Minutes" receipt of the documents during an election year was no accident.

Of course, those critics turned out to be right. However, even more strange is that CBS News probably had a pretty good clue as to whether that claim is accurate or not when they made that report. Perhaps, having raised the issue, CBS News might have noted that their "unimpeachable" source might have had a partisan axe to grind. Just saying.

Thursday, September 16th

The Baltimore Sun has a bit more about CBS News requesting confidentiality from their experts (CBS agrees to try to resolve document dispute):

Until last night, CBS had declined to release the names of the experts it relied on to review the documents. [document expert Emily] Will said that that confidentiality came at the direction of the network and that she felt they were abusing that agreement to misrepresent her stance.

"The statements they were issuing made it sound like they had no reason to doubt the documents at all - that the experts all backed them up," Will said. "Considering the things they were continuing to say, I felt morally released from that agreement."

Additionally, CBS News President Heyward was still holding back from conceding much at all, according to the Chicago Tribune (CBS News concedes `unanswered questions' on memos):
Heyward insisted Wednesday night that the network's new efforts were not an investigation but simply "an extension of the reporting we said we'd do."

"There are significant questions swirling around the documents," he added. "We said all along we would continue to report all aspects of the story and this is an aspect well worth looking into."

Just routine reporting, I see.
In New York, Heyward declined to comment on which questions the network planned to pursue about its "60 Minutes" report, but acknowledged that Knox's statements are not particularly helpful to the network in the debate over authenticity.
Wouldn't want to specify which questions were being asked. That might be journalism or something.

Of course, the best quote of the day, and perhaps the entire, sad, saga, comes in the Washington Post (Rather Concedes Papers Are Suspect):

"If the documents are not what we were led to believe, I'd like to break that story," Rather said in an interview last night. "Any time I'm wrong, I want to be right out front and say, 'Folks, this is what went wrong and how it went wrong.' "
Actually, though, Rather got something right in the interview:
"This is not about me," Rather said before anchoring last night's newscast. "I recognize that those who didn't want the information out and tried to discredit the story are trying to make it about me, and I accept that."
Indeed. It is about CBS News.

Nevertheless, he also continued the old answer-a-question-with-a-question game:

But he also delivered a message to "our journalistic competitors," including The Washington Post and rival networks: "Instead of asking President Bush and his staff questions about what is true and not true about the president's military service, they ask me questions: 'How do you know this and that about the documents?' "
Finally, one has to be amazed at Rather's persecution complex:
As Rather signed off to rush back into the studio last night, he sounded a defiant note.

"I try to look people in the eye and tell them the truth," Rather said. "I don't back up. I don't back down. I don't cave when the pressure gets too great from these partisan political ideological forces."

What is interesting here is that CBS News starts to have all sorts of leaks regarding the process of developing the story. However, there remain mysterious gaps in what is and isn't revealed. It would appear that some were trying to shift blame away from CBS News:
"If we had gotten back from the White House any kind of red flag, raised eyebrow, anything that said, 'Are you sure about this stuff?' we would have gone back to square one," Josh Howard, the program's executive producer, told the Los Angeles Times in an interview Friday. "The White House said they were authentic, and that carried a lot of weight with us."

Friday, September 17th

In the New York Times, Dan Rather reiterates his belief in the documents' authenticity and Andrew Heyward points at partisans once again (Familiar Roles for Rather and His Critics):

Yesterday, Mr. Rather - after acknowledging that questions about the documents' authenticity have weight - said he continued to stand by the story in its entirety. "This story is true," he said, adding, "I believe in the authenticity of the documents."....

"In an increasingly polarized time in this country," said Andrew Heyward, the CBS News president, "and in a polarizing election fueled by the Internet and 24-hour cable, anybody who has the temerity to report in a way seen as raising questions about either side, to be fair, can easily be demonized."

ABC News reports that Gen. Staudt, who the memos claim was pushing for special treatment for then 1LT Bush one and a half years after retirement, denies the claim (Guard Officer Denies Seeking Help for Bush).

Saturday, September 18th

CBS News dismisses Gen. Staudt's denial that he sought special treatment for Bush (General Shoots Down Memos)

CBS spokeswoman Sandy Genelius brushed off Staudt's statements: "In a debate this heated, one can hardly expect Gen. Staudt to endorse the point of view that he exerted undue influence."
While this may be true, it is hardly the only thing one would expect a news organization to say to yet another bit of evidence against the memos. Spin or journalism? You decide.

The LA Times has the biggest and first analysis of how CBS News got into this mess (In the Rush for a Scoop, CBS Found Trouble Fast). What is most interesting about this is how selectively the sources spin the story. Once again, you expect this sort of behavior from a political/corporate organization in crisis, but not a news organization:

"If we had gotten back from the White House any kind of red flag, raised eyebrow, anything that said, 'Are you sure about this stuff?' we would have gone back to square one," Josh Howard, the program's executive producer, told the Los Angeles Times in an interview Friday. "The White House said they were authentic, and that carried a lot of weight with us."
Actually, the White House didn't say they were authentic. The White House simply did not challenge their authenticity. There is a significant difference. Note also, the shifting of blame.

After a week and a half, though, some people at CBS News seem to start to talk about the problems with their story like journalists:

"You never want to be accused of getting a story wrong, but we are human," Howard said Friday. "We have a terrific team…. However, we can get something wrong. My interest is in getting it right, if not the first time, then at least the second time."
Unfortunately, CBS News needed to be dragged kicking and screaming to recognize the need for a "second time."

There are problems with the timeline in the LA Times story. It isn't clear where the problem lies:

Although CBS News notes that Mapes had been chasing the National Guard story for five years, it only came back on the active burner in mid- to late August.

That's when executive producer Howard got a call from her, telling him "she was on to something" and wanted to put her other projects aside.

Over the next couple of weeks, he said, "she would call from time to time, telling me she was getting closer, not closer, something that she was looking up that was a blind alley — those kinds of things that reporters do when tracking a story. There was nothing definitive" until he got the call from her on Sept. 3, Howard recalled.

On that Friday, just before the Labor Day weekend, Mapes excitedly phoned her bosses from Texas to report a breakthrough in the document quest. "I've got them," she told Howard.

This is inconsistent with the story of the documents as related in USA Today on Tuesday, September 21st (CBS backs off Guard story):
Ultimately, Burkett decided to turn over the documents to one of the most persistent journalists, CBS producer Mary Mapes, sometime in August. He and his wife met Mapes and CBS reporter Mike Smith at a pizza restaurant a few miles from their ranch. At first he gave them only two of the six documents, which Mapes said she planned to have analyzed for authenticity, according to Burkett.

Burkett said he passed the rest of the documents to Smith around Sept. 5, at a drive-in restaurant near Baird.

Ultimately, these inconsistencies will be cleared up, however, one wonders why Howard did not clear up any of the inconsistencies regarding sourcing of the documents.

Sunday, September 19th

The Washington Post weighs in with their more detailed story (In Rush to Air, CBS Quashed Memo Worries). As I noted, this article really starts the fingerpointing, especially at Mary Mapes (The Fingerpointing Has Begun at CBS).

Strangely, there isn't a lot of discussion about CBS News' reaction to valid and legitimate criticism in the days after the broadcast.

Monday, September 20th

On Sunday evening and Monday morning, the rumors were flying that CBS News would admit the documents were forgeries. See, Washington Post, CBS to Say It Was Misled on Bush Guard Memos. Eventually, of course, CBS News did acknowledge they couldn't prove the documents were authentic without going so far as to acknowledge that they are forgeries.

The CBS Evening News:

DAN RATHER, CBS ANCHOR: Now, news about CBS News and the question surrounding documents we aired on this broadcast and on the Wednesday edition of "60 Minutes" on September 8. The documents purported to show that George W. Bush received preferential treatment during his years in the Texas Air National Guard. At the time, CBS News and this reporter fully believed the documents were genuine. Tonight, after further investigation, we can no longer vouch for their authenticity.

The documents were provided to CBS News by a former commander in the Texas Air Guard, Bill Burkett. He did not come to us, we went to him and asked him for the documents. Burkett is well known in National Guard circles for a long battle over his medical benefits and for trying for several years now to discredit President Bush's military service record.

Burkett initially told CBS News he got the documents from a fellow guardsman. But when we interviewed Burkett this past weekend, he changed this story and told us he got the documents from a different source, one we cannot verify.

Why did Burkett tell CBS News something he now says is not true? We put the question to him.

(BEGIN VIDEO CLIP)

RATHER: Why did you mislead us?

BILL BURKETT: Well, I didn't totally mislead you. I did mislead you on the one individual. You know, your staff pressured me to a point to reveal that source.

RATHER: Well, we were trying to get the chain of possession.

BURKETT: I understand that.

RATHER: And you said you'd received them from someone.

BURKETT: I understand that.

RATHER: And we did pressure you to say, well, you received them from someone...

BURKETT: Yes.

RATHER: And that someone was going to.

BURKETT: Yes.

RATHER: And it's true, we pressured you.

BURKETT: I .

RATHER: Because it was a very important point for us.

BURKETT: Yes. And -- and I simply threw out a name that was basically -- it was I guess to get a little pressure off for a moment.

RATHER: Have you forged anything?

BURKETT: No, sir.

RATHER: Have you faked anything?

BURKETT: No, sir.

RATHER: But you did mislead us?

BURKETT: This doesn't make it.

RATHER: I'll use the word lie, you lied to us.

BURKETT: Yes, I did.

RATHER: You lied to us. Why would I or anyone believe that you wouldn't mislead us about something else?

BURKETT: I could understand that question. I can. That's going to have to be your judgment or anybody else's.

RATHER (voice-over): Burkett still insists the documents are real, but says he was in no position to verify them.

BURKETT: I also insisted when I sat down with your staff in the first face-to-face session, before I gave up any documents, I wanted to know what you were going to do with them. And I insisted that they be authenticated.

(END VIDEO CLIP)

RATHER: The failure of CBS News to do just that, to properly, fully scrutinize the documents and their source, led to our airing the documents when we should not have done so.

It was a mistake. CBS News deeply regrets it. Also, I want to say personally and directly, I'm sorry.

CBS News President Andrew Heyward has ordered an independent investigation to examine the process by which the report was prepared. The results of that investigation will be made public.

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.

Now, some reaction to our revelations today. It comes from a spokesman for President Bush, Scott McClellan.

(BEGIN VIDEO CLIP)

SCOTT MCCLELLAN, WHITE HOUSE PRESS SECRETARY: Obviously, there are still a number of questions that need to be answered. We look forward to seeing the results of the investigations that other media organizations have undertaken, and that CBS says that they are now undertaking. And we appreciate the fact that they have said they deeply regret it, but we still need -- want to see those questions answered.

(END VIDEO CLIP)

RATHER: And Scott McClellan repeated the White House insistence that President Bush fulfilled his obligation to the National Guard, and he noted again, the president was honorably discharged.

Of course, there was no apology or explanation for the initial 12 days of stonewalling. And it was odd that CBS News didn't explain the alternative source for the documents that Burkett is now claiming, according to USA Today (CBS backs off Guard story). Perhaps the public should have been informed that Burkett received a phone call out of the blue from a woman no one has heard of, resulting in a document delivery during a livestock show, a trip to a Kinko's, burning the originals and placing the copies in "cold storage."

CBS News has promised an independent panel to investigate what happened.

Thus endeth the saga for now. Updates, corrections, etc., later. Please feel free to make suggestions in the comments.

By the way, if you've read this far. Please feel free to use the tipjar on the right hand side of the front page: http://www.corante.com/importance/. Thanks.

Comments (13) + TrackBacks (0) | Category: Blogging and Journalism


COMMENTS

1. mary hodder on September 22, 2004 07:01 PM writes...

Ernie, this and your previous post together are an impressive compilation of the timeline of events. Whether or not people agree with your commentary, the documentation is valuable, and the incredible amount of attention and time you've contributed to our history is so useful. Thanks for doing what so many of us don't have time for.

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2. Richard Chaitt on September 23, 2004 04:20 AM writes...

Excellent history on the 'forged' documents. I must put that word in quotes because Dan Rather still believes they are real. What does this show you about Dan Rather's journalistic reliability. What is next for him, authenticate "Protocal of the Elders of Zion'?

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3. Ernest Miller on September 23, 2004 04:25 AM writes...

Richard,

That steps over the line. There is absolutely nothing about this scandal that would justify implying that Dan Rather is anti-semitic.

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4. Richard Chaitt on September 23, 2004 12:58 PM writes...

Dan Rather is not anti-semitic. No rational person actually believes in the "Protocols". You failed to understand the irony in my comment. Rather still believes the documents are real. With all we now know, this borders on fanaticism. I tried to pick the most illogical "document" to use for an analogy. Sorry for not being clearer.

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5. Andrew Greenberg on September 23, 2004 03:53 PM writes...

Yesterday, right-leaning journalists at CNN and FOX News again parroted SBVT allegations that John Kerry met "secretly" in Paris with enemies on two occasions, alluding to supposedly serruptitious and unpatriotic intent. It is plain beyond cavil that the first meeting in question was not secret (See, Testimony of John Kerry, Senate Committee on Foreign Relations, Apr. 22, 1971) and served the interest of the nation, and that the supposed second meeting is grounded upon unreliable oral testimony supposedly based upon a fragment of a newspaper article that does not support the testimony. Nevertheless, the rumor is repeated AS NEWS AND NOT AS COMMENTARY, claiming it was based upon documents that clearly they have neither seen, vetted or reviewed.

And where, exactly, is Ernie's outrage about this incompetent and unethical, albeit right-wing, reportage?

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6. Andrew Greenberg on September 23, 2004 04:38 PM writes...

Hey Ernie, what do you make about the repeated allegations on FOX News and elsewhere on cable and radio (including the inimitable Scarborough Country, stating that in 1999 Barnes "testified under oath that he did not help Bush") that Barnes' interview was contrary to his 1999 testimony.

Of course, all contemporaneous reporting related that Barnes testified under oath that he acted on President Bush's behalf after being asked to do so by Bush family friend, Sidney Adger (who I understand is presently too dead to contradict the cable news reporting to the contrary), which so far as I understand is precisely the statements made in the present interviews. I wonder who was handing out these counterfeit talking points?

In any case, Ernie, I am curious whether you deem incompetent or unethical the repeated reports on cable news and radio of the unsubstantiated (and apparently unsubstantiable) claim that Barnes has given inconsistent testimony?

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7. Ernest Miller on September 23, 2004 05:50 PM writes...

Andrew,

I could spend many more lifetimes than I have pointing out the myriad flaws in news reporting.

Everyday I read articles with factual errors. I read even more articles with poor news judgement, in my view, but that is a subjective matter of debate.

Furthermore, some errors are more important that others.

In the examples you provide, I'm not familiar with the specifics. For example, with regard to CNN and Fox News and the new anti-Kerry commercial. Are the news organizations merely reporting the allegations by the SBVT in their new commercial, or are they reporting the commercial as truth? In the first case, that is a question of news judgement, in the second it would factual error. More information, such as a transcript, is needed.

As for the allegations on Fox News and elsewhere regarding Barnes' 1999 testimony, it would be helpful to look at the specific transcripts and evidence. Are they repeating allegations, or making factual claims?

If you want me to complain about issues of news judgement, it will take many more lifetimes than even correcting all the factual errors.

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8. Andrew Greenberg on September 23, 2004 08:51 PM writes...

You can't win this dispute on that canard -- it is too slippery a slope, and the duck quacks both ways. In short, the distinction between uncritical reporting of an allegation (absent the careful and consistent qualification that it is merely reportage of unsubstantiated allegation) and reporting the substance of the allegation is meaningless -- particularly on TV.

I am certain you consider, for example, Rather's report that the documents were what they appeared to be because his sources told him so, to be less than reasonable. Sure, we can count angels on the head of a pin, but don't think you can spin that here -- it is a distinction without a difference.

Indeed, reporting allegations by uncritical recounting of them without more or at least providing full-throated contrary views and evidence, is in fact the worst kind of demagoguery. The distinction is entirely lost upon the audience at large -- and admits the worst form of propagandism. No doubt it is propagandism that works, but that is all the more reason to shun it when used by people purporting to present the news or fair commentary in whatever medium.

For the record, the Barnes statements don't entail reporting alelgations of third parties -- the principal reporters were stating as truth the non-existent proposition that there was a conflict between Barnes' story then and now.

Some reports SBVT "two meetings" issue is sometimes more mixed in this sense, but be real! NONE of the SBVT persons were witnesses or researchers with respect to the second meeting and reporting allegations of fact, they were merely reciting THEIR analysis of THEIR readings of portions of newspaper articles of the era, and commenting as to what THEY thought about THEIR conclusions. I don't think this is the conduct you were purporting to defend. Other reports simply recited as facts the SBVT conclusions. I am not monitoring FOX 24/7, so I will not state that NO FOX report gave a fully fair and balanced account, even under the Miller standard, but I have yet to read one, or a transcript of it.

Now, all that said, it is my view that this standard is hopeless as a substitute for news reporting, because you can ALWAYS find someone to SAY anything. As a student of law, you know, or will soon know this to be the case. While a he-said, she-said presentation of facts may be the touchstone of legal advocacy, it makes sense only in the context of placing him and her through the crucible of cross-examination, so that each side can fully vet the issues. And this only works if there is a full partnership of all resident interests, not proxies for the respective views.

Absent that invasive an account of a dispute, no jury deciding thereupon can be said to have approximated, let alone fathomed an issue. If no cross-examination is permitted, nothing is proved -- you are merely relating unsubstantiated talking points. If not all sides are fully or fairly represented, permitting uncritical airing of spin is equivalent to spin. And placing incompetent or disinterested proxies in their place is even worse, equivalent to spin with the imprimatur of no contrary position.

In short, fully uncritical he-said, she-said journalism is itself dangerous and at least mislreading. Reporting a "he" without even acknowledging the existence of a she is far, far worse.

Let's take another example of media abuse that Miller should have decried, but did not: the recent account by Brit Hume on Special Report concluding the George Bush fulfilled all of his contractural obligations to the National Guard by adopting uncritically the analysis and conclusions by having an on-air "discussion" with Byron York, reporting the arguments without qualified attribution as allegations of Col. Lloyd, and without noting that he was hired by the Bush administration to "certify" that Bush completed service.

No mention was made of the elaborate flaws in his study, both internal and self-contradictory, and external for failure to examine all evidence, though the same had been exhaustively documented in reports in the "ultra-left-wing" U.S. News and World Report and other mainstream media, and for that matter, thoroughly condemned by the lefty side of the blogosphere, which I shall not repeat here. Indeed, most criminal of all was the uncritical adoption and report of the quantitiative analysis of credits.

Mind you, neither Hume nor York suggested that this was mere repetition of the allegations of another, but let's assume that they did. Let's assume for the sake of the argument that the entire show was nothing more than the detailed report of col. lloyd's allegations.

Under these assumptions, my question to you is this: are you seriously suggesting that Brit Hume does not commit journalistic malpractice if under all of those conditions he still reports, without more, that his source, Col. Lloyd, alleges that "19 plus 15 equals 56?" At what point does "fair and balanced" coverage require that, at least, blatant failures of logic and arithmetic be recognized.

Now, add that to the fact that these assumptions made for the sake of this argument are wholly false, that the reporting is indistinguishable, and you might understand why your extensive and not fundamentally wrong analysis of Rather is slight in comparison.

In my view, neither Rather nor Hume are entitled to the benefit of the assumption that their stated sources are accurate, and bear strict liability in the court of journalistic karma when their stories prove false. It gets fair worse when the blinding is negligent, reckless or willful, or as we cynics of the left and right suggest, perhaps even intentional.

But the problem is far deeper than an attack on Rather, and focusing on a single journalist is both naive and unfair. Journalism is a mess today, and should be critically examined. My suggestion, however, is that we who do the examination should consider seriously criticizing all demagogic reporting, left and right. You would have more credibility, sir, criticizing Hume, particularly if you were joining with me, criticizing Rather.

I can understand why wild freepers and socialists would prefer an environment where it simply is a matter of piling on, and one-sided demagoging wins the day. But I do not join them. Indeed, I excoriate them all -- they are doing grave harm to our nation and depriving us all of the most important thing a democracy can have:

DISCOURSE.

I do not join with postmodern lefties and righties who insist that there is no such thing as objective reporting, no such thing as objective intelligence, and that it is, frankly, all opinion set to serve whatever ideology can best exploit the same. Screw that.

Seriously, Ernie -- more is required, and WE should be requiring it. Fathoming your personal battle against Rather will not make the nation a better place. Far better that we instead use the example of Rather and take it, side-by-side with solid criticism of other reporting to narrow the excesses of bad journalism everywhere.

Just as we joined on issues of intellectual property extremism by calling for balance of competing interests in defense of the common good, I strongly suggest that intelligent players on the right and left likewise key in on the important issues -- which is discussion of the issues, on the merits.

Somebody has to save our discourse while it is still possible to do so. Name-calling and whining will not suffice. Frankly, it is time to stop the lying on every side, the shabby journalism on every side, and the extremism that threatens our society. And the time is now.

Anything else is just propaganda, however polished.

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9. Ernest Miller on September 23, 2004 09:32 PM writes...

I'm terribly sorry you keep beating me up for choosing and picking particular battles. I wish I had the time to go into every flaw in news reporting but I don't.

I agree he said/she said reporting leads to all kinds of bad things. I've been known to say that myself: http://journalism.nyu.edu/pubzone/weblogs/pressthink/2004/09/15/get_win.html#comment9331

However, all the networks and most other news organizations are guilty of it. I can provide examples by the truckload. Is there bad math in reporting? Everywhere.

As for whether Rather's reporting was reasonable or not, that is not really a question my posts have addressed. I think we have a lot more to learn as to whether that was the case. I'm quite willing to believe that Rather had a reasonable belief in the story when he reported it. He made a mistake, but that doesn't mean his reliance on whatever he relied on is unreasonable.

I've focused on what happened after reasonable criticisms were made.

Furthermore, I've said time and again that this is not about Dan Rather, but CBS as a news organization. I don't watch network news and I couldn't have told Tom Brokaw from Peter Jennings from Dan Rather prior to the scandal. I didn't know that Rather was a bete noir of the right until this scandal.

Again, I don't generally criticize reporting errors. Mistakes happen and are pretty prevalent everywhere. What set me off was the arrogant response by Rather. I choose to complain. The fact that I don't complain about everything doesn't mean much more than I don't have the time to complain about everthing.

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10. Andrew Greenberg on September 23, 2004 10:17 PM writes...

Ernie, I am beating up on you, if you will, because you continue to report like a bulldog as though these sins were somehow stunning and unique. Or that you, yourself don't from time to time draw on plausible non-transparent excuses to justify the fact that it is incredibly difficult to give a full, fair and objective report on anything, let alone things that are gray and controversial.

I don't require that you cut Rather any slack on objective gripes, but I sure wish you would at least acknowledge the context in which you seem to be calling for change or taking his measure. There exists not a single reporter or news distribution medium that would meet the apparent requirements of transparency, competence and ethics you seem to be using as a yardstick. If you want to hang this guy out to dry and take him to the woodshed, take him out with all of his schoolmates.

At least Rather apologized when he was called on his mistake -- and he did so long before the story was stale or had caused much harm. Compare this with the New York Times long-overdue retraction of its reporting on Weapons of Mass Destruction. I don't recall a single retraction by FOX or CNN on any of its substantive misreporting. Which leads me to a question I asked quite a while ago:

Dan Rather has apologized and acknowledged his error. This appears to represent far more forthrightness and introspection than I have seen in any other commercial broadcast format. What more, at this stage, do you require of him? What then, will you require of others? Or will you apologize for others based upon mallards like the "implied reported allegation" principle?

In short, I am suggesting that your reporting could use some context, and the absence of context misleads readers. That is, in a sense beating you up. You freely acknowledge an awareness that such poor reporting, left wing and right, occurs too often, but do not disclose this. I do not hold you non-transparent, incompetent or unethical. Far from it -- you have been an invaluable resource to me on many issues.

I do, however, hold that your multi-mega-part drill-down here, without more, has ultimately been too myopic to be fair or reasonable, I note that you have not linked to very many sites that presented contrary or conflicting "analysis" of the documents, and frankly, have not ackowledged the degrees of gray involved in many of the conclusions you have drawn.

A call for journalistic transparency, competence and ethics should itself be meticulously so, even on a blog.

That said, I consider your postings to be valuable and useful resources, and I consider you a good friend and colleague on so many issues of importance to us both. Please take my remarks as constructive, and to the extent my written tone has belied that proposition, please view them as the too-quickly composed writings of a lawyer desperate to return to his billable work. At the very least, please take the ease with which criticism can be drawn, fairly or unfairly, to reportage against absolute standards as an indication of how difficult it is to be on the receiving end thereof.

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11. Ernest Miller on September 24, 2004 01:06 AM writes...

I require of CBS News (and not Dan Rather because this isn't about an individual, but an organization), an investigation into how the story got on the air and where their checks and balances failed as well as an investigation into how they responded to valid criticism. They should also cooperate with those organizations looking to identify the original source of the documents.

Other news organizations have done similar things, such as the NY Times with regard to Jayson Blair the WMD situation. Yes, it took the NY Times a long time, too long, to go through their reporting on the topic. On the other hand, it was a much more complicated situation involving many more stories, reporters and a topic in which the information isn't as nearly readily available or necessarily clear cut as the CBS memos.

I believe that my postings have sufficient context. From the beginning of my postings I argued for a number of very simple, easy things CBS News could do to meet basic minimums, such as naming their experts and providing the pristine copies of the documents they claimed to have. I wasn't asking them to name their source or go to any ridiculous lengths. I was also not saying that mistakes are not to be tolerated. Of course mistakes are made.

Of course I acknowledge an awareness that poor reporting, left and right, occurs too often. I would think that goes without saying. Why do you assume that I'm making a distinction simply because I chose to attack this blatant violation of journalistic ethics in stonewalling credible critics? I don't assume that CBS is liberal media. I think most claims of bias have more to do with institutional issues, such as "he said/she said" reporting than true bias. Is there bias in the media? Yes, but it is more difficult to identify and remedy than most would think.

I have not linked to many sites the provide conflicting "analysis" of the documents for two main reasons. First, my initial arguments have been based on the fact that there are credible criticisms of the documents and CBS was not replying to the criticisms appropriately. Second, I haven't seen too many "analysis" of the documents claiming that they are authentic that I found particularly credible. There are some arguments that debunked overblown arguments on the "forgery" side, but no arguments that made a credible case for authenticity. That's me. That's my news judgement. If you have some links that show some good analysis of authenticity, please provide them.

As for links of those who defend CBS's stonewalling, I haven't really run across any. If there are arguments defending CBS's actions in response to legitimate criticism I would be very happy to see them.

Is there gray in what CBS has done? Yes, but there is also plenty of black and white. For the life of me, I can't see what is the possible justification for CBS not to make the names of their experts available when credible criticism was raised. I also acknowledged that a lot of things I would be pointing to would be nitpicky, but I explained why I was picking nits.

As for transparency, I'm responding here, aren't I? My name is on the posts, I have no anonymous sources, who I am is in the little bio, I link to the things I quote and encourage people to go look up things for themselves.

I'm certainly not perfect, but I try my best and I'm willing to be open to other points of view and discuss and defend mine. Of course, that also doesn't mean that we'll agree on every particular.

Anyway, thanks for caring enough to comment. That's what these blogs are all about.

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12. Seth Finkelstein on September 24, 2004 06:10 PM writes...

General observation:

It's always different when it's you. (your concern, your cause, your reputation, etc.)

*Always*

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13. Rod Stanton on October 7, 2004 11:52 PM writes...

Well done.

Aside to Ernest Miller. This story does not relate to Dan's Jew hatred but his long history on other topics does. Pleass notice I did not say *anti semitic*, some of Dan's best freinds are Semites eg the PLO.
Rod Stanton
Cerritos

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