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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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January 11, 2005

Omissions and Other Critiques of the CBS News Report

Posted by Ernest Miller

The report of the Individual Review Panel on the September 8, 2004 60 Minutes Wednesday segment, "For the Record," (234-page PDF, "CBS Report"), is a devastating indictment of CBS News' handling of their report on the forged Killian Memos. I followed the CBS News' response to criticism of the report and their unethical and incompetent response closely (Incompetent AND Unethical: The Story of CBS News' Response to Criticism of the Killian Memo Forgeries - Part One). Earlier, I wrote about why Andrew Heyward should resign given the Report's findings (Why Does CBS News President Andrew Heyward Still Have His Job?).

So how did the report do, at least on the "aftermath" issues?

Decent, given their access to sources. However, although the report rightly takes CBS News to task for its abysmal response to criticism of its reporting on the Killian Memo forgeries, there are some curious omissions and some of the conclusions are a bit off as well.

Read on ...

The Summary

The report's critique of the "Aftermath" as they call it, begins on page 151 of the report, page 161 of the PDF.

The introductory paragraphs are quite good:

In dealing with the Aftermath, 60 Minutes Wednesday and CBS News made numerous mistakes. Among other things: it refused for a long period even to acknowledge that it might have erred; it focused its search for fresh examiners only on those who would agree with the conclusions of the September 8 Segment; it let “We stand by our story” substitute for “Let’s make sure we’re right”; it brushed aside criticism; and it issued inaccurate public statements.

Indeed, in the Panel’s view, if 60 Minutes Wednesday and CBS News had simply acknowledged the issues raised and told its viewers promptly that it would seek to re-verify what 60 Minutes Wednesday had reported and would correct and apologize if it found anything wrong, the Panel would not be writing this Report.

Hmmm ... sounds very similar to the conclusion I came to back in September.

Partisanship for Thee, Not for Me

Many have already noted (such as Jeff Jarvis) that, while the report is clearly reluctant to find partisanship at CBS News, it throws around claims of partisanship at bloggers with less discrimination (p 151):

At the same time, some people on the Internet, at first primarily supporters of President
Bush with their own conservative political agenda, started to question the authenticity of the documents. By the next afternoon, however, it became clear that the criticisms were no longer simply partisan.
Criticisms are either valid or they are not, regardless of their source. Perhaps that should be the first question asked, not whether the criticisms are partisan.

Attack or Criticism?

Perhaps we should also note that valid criticism should not be simply construed as an "attack," though the Report thinks otherwise (p 151-2):

Thereafter, and continuing well after September 20, 2004, when CBS News issued its apology and stated that it could not vouch for the Killian documents’ authenticity, CBS News and 60 Minutes Wednesday were under continuous attack by the media, political personalities and others. Indeed, CBS News advised the Panel that between September 8 and October 13, it received nearly 109,000 e-mails related to the September 8 Segment, most of them negative. [emphasis added]
Even if you accept the notion that CBS News was "under continuous attack," what others might call "valid criticism," it was CBS News' own fault. As the Report notes, CBS News would likely have avoided most of this "attack" if they had responded to valid criticism as a news organization should. Unfortunately, CBS News response is characterized by the Panel as follows (p 152):
  • Strong public statements insisting that the Killian documents were authentic, that the content of the September 8 Segment was accurate, and that 60 Minutes Wednesday had relied on extremely reliable, even “unimpeachable,” sources;
  • Continuous efforts by 60 Minutes Wednesday to identify additional examiners who would support the authenticity of the documents;
  • News reports on the CBS Evening News and CBS Evening News Saturday Edition
    defending the September 8 Segment; and
  • Virtually no effort, despite the vigorous assault on its work, to take a fresh, objective look at the September 8 Segment, both in terms of the authenticity of the documents used and the sources from which they came, to make certain that the Segment was sound in all respects.
Well, when a major news organization reports a story that may have tremendous effect on the outcome of a presidential election during the final months of the campaign and stonewalls criticism as the above characterization shows, then perhaps they should be "attacked" and, as the report terms it, they should have "lost the battle."

The "attack" metaphor continues with the headline for the next section of the report: "September 8-9 – The Initial Attacks." Now really, couldn't it have been "September 8-9: The Initial Criticisms"? This attack metaphor gets out of hand again on page 153, "However, they [unnamed senior personnel within CBS] seriously underestimated the ferocity of the assaults on the documents and CBS News’ alleged motives in airing the Segment." CBS News is viciously assaulted as biased all the time. Perhaps what was "seriously underestimated" was the validity of the criticisms and how persuasive they were?

It seems that the authors of the Report have at least somewhat bought into the CBS News mindset that led to their robust and unjustified defense of the 60 Minutes segment (page 153-4):

The attacks on the September 8 Segment began virtually immediately....This was followed on the morning of September 9 by further attacks, mostly by bloggers with a conservative agenda, challenging the authenticity of the documents...thereafter, the onslaught of attacks on the authenticity of the Killian documents was unrelenting....The initial attacks on the Killian documents focused on several technical issues. ...The attacks on the September 8 Segment continued throughout the day on September 9. In response to these growing attacks... [emphasis added]
Was "criticism" too hard to spell, with or without the "valid"? How about "critique" or "challenge" or "commentary" or "examination" or "evaluation" or "assessment" or "questioning"?

Strange use of words. Attacks seem so ... unjustified. No one likes attacks. People defend themselves from attacks. Harder to argue with valid criticisms, though.

Attacking Other Media Outlets and What Happened to the Contemporaneous Witnesses?

Speaking of attacks, however, let's consider the following on page 157 of the Report:

The Panel observes that an early draft of the Press Statement [of Sept. 9] contained a statement that “CBS verified the authenticity of the documents by talking to individuals who had seen the documents at the time they were sent originally . . . .” Although the Panel has found no basis for this assertion, it is apparent that a [unnamed] CBS News official speaking with the media also was of the view that this assertion was accurate. Thus, The Washington Post on September 10 reported that CBS News had “verified the documents by talking to unidentified people who saw them ‘at the time they were written.’ ”[footnote 91]
What is footnote #91?:
Michael Dobbs & Mike Allen, Some Question Authenticity of Papers on Bush, WASH. POST, Sept. 10, 2004, at A1. The Panel recognizes that The Washington Post and other media may not have quoted CBS News accurately. Nonetheless, this is strong evidence that CBS News disseminated some false information. [hyperlink added]
Why does the Panel cast aspersions on the Washington Post's (and unnamed others') reporting? In this case, two highly respected journalists for a very reputable newspaper report a direct quotation of a CBS News official. Is there any reason to doubt the reporting? Did someone at CBS News deny making those statements?

The Panel refers to a report from The Washington Post as "strong evidence." Well, there is actually conclusive and definitive evidence, if the Panel had bothered to look for it during its months-long research. According to World Net Daily (CBS News denies Bush docs forged):

Later, however, she [CBS Spokesperson Kelli Edwards] sent an e-mail to WND, adding, "CBS verified the authenticity of the documents by talking to individuals who had seen the documents at the time they were written. These individuals were close associates of [Bush commander] Colonel Jerry Killian and confirm that the documents reflect his opinions at the time the documents were written."
World Net Daily claims to have an email from a CBS News official they identify as Kelli Edwards with the same exact quote as The Washington Post story. Sounds like something that could be readily investigated. Why not pull Kelli Edwards emails? That would not only be "strong evidence" but definitive and conclusive evidence if the email was there. We would also have a name associated with the unnamed "CBS News official" the Panel refers to.

And, while we're looking at Kelli Edwards emails, why not ask her whether she followed up with a correction and apology once she realized her statement was, as some might put it, "inoperative." According to The Washington Post on Sunday the 12th, CBS Spokespeople continued to stand by the statement that they had contemporaneous witnesses (Gaps in Service Continue to Dog Bush):

[CBS spokeswoman, Sandy Genelius] said CBS continued to "stand by its story" and a statement it issued on Thursday saying that "60 Minutes" reporters had talked to "individuals who had seen the documents at the time they were written." She declined to name the "individuals," describing them as sources. [emphasis added]
However, this statement would appear to follow a conference call Genelius participated in on Friday, September 10 in which there was no real discussion of the source of the document (Report, page 163)
On Friday, September 10, at approximately 9 a.m., a conference call was convened to discuss the strategy for defending against the growing controversy. On this conference call were West, Howard, Mapes and three people from the Communications Group: Gil Schwartz, Sandy Genelius and Kelli Edwards.

During the call, which lasted about 45 minutes, Mapes was questioned about the September 8 Segment and whether there was any reason to give credence to any of the questions being raised. According to people interviewed by the Panel, Mapes was unflinching in her defense, although participants had varying recollections about precisely what was said. For example, one participant recalled that someone referred to 60 Minutes Wednesday’s sources as “unimpeachable” and that they were told that 60 Minutes Wednesday had four experts who supported the September 8 Segment. None of the participants recalled any detailed discussion, however, of the sources of the documents or the precise findings of the four experts. Schwartz recalled Mapes’ saying that the two women experts had seen only one of the four documents and were “flaky” and that Matley was described as “timid.” This might have served as an additional early indication that at least one aspect of the reporting for the September 8 Segment, authentication of documents, was problematic.

I guess this gave Genelius enough confidence to stand by the statement about contemporaneous witnesses. Also note, for example, that more than a week later, the same Kelli Edwards who emailed World Net Daily claimed that CBS News was investigating who had made the false statement, according to The Washington Post on Sep. 20 (Questions Surround Man Who Provided Documents)
CBS spokeswoman Kelli Edwards said yesterday that the network was investigating a Sept. 9 statement that asserted the network had spoken with "individuals who saw the documents at the time they were written."
That should have been a real short investigation. After all, this is the same Kelli Edwards who made the claim in the email to World Net Daily in the first place. Who told her (Sandy Genelius?) or did she simply make it up? So, not only is there "strong evidence," but apparently CBS News thought it worth investigating separately from the Panel.

Now, maybe there was some misquoting and inaccuracy going on by news organizations other than CBS News, but that doesn't seem to be the case here. Why footnote such concerns and cast aspersions on the Washington Post and its reporters? If there were clear cases of misquoting and inaccuracy, why not point those out if they raise unfair concerns about CBS News handling of the Killian Memo forgeries? For example, perhaps they were referring to this September 9th quote from The Washington Post (Some Question Authenticity of Papers on Bush):

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 senior CBS official said the network had talked to four typewriting and handwriting experts "who put our concerns to rest" and confirmed the authenticity of Killian's signature.
Where did the six weeks come from? And why is the headline of the WaPo story "Some Question..." instead of "Some Attack"?

Amnesty for the Communication Group?

I think that the Panel goes far too easy on members of CBS News' "Communication Group." From page 166 of the Report:

The Panel has also sought to assess whether any fault for the aggressive defense of the September 8 Segment should rest with the Communications Group, which issued the various statements on behalf of CBS News, including the Statement issued the morning of Friday, September 10. The Communications Group serves as the public relations arm of CBS News and relies on CBS News personnel for the factual information that forms the basis for Press Statements and other information provided to the public. The Communications Group was told repeatedly by 60 Minutes Wednesday that the September 8 Segment was solid, the documents were real and the sources were reliable. Given such assurances, the Communications Group structured an aggressive defense, with every significant statement reviewed and approved by management of CBS News before it was issued. The Panel finds that the responsibility for the public statements lies with the management of CBS News, and not the Communications Group.
Is a claim that CBS News had contemporaneous witnesses to the authenticity of the documents significant? Was that approved by the management of CBS News? Was continued support of the statement for days approved by the management of CBS News?

In any case, although we can hardly blame the Communications Group for repeating what they were told by CBS News management, isn't there some obligation for them to retract and correct obvious errors they have promulgated? Is there any obligation for them to ask more detailed questions when their statements come under valid criticism? What did Kelli Edwards know and when did she know it? Why didn't the Communications Group issue corrections earlier? Are they completely blameless here? Page 157:

As set forth in Chapter XI, Recommendations, the Panel recommends that Press Statements and other information provided to the media on news matters must in the future adhere to the same level of accuracy and fairness that any CBS News story is expected to achieve.
So, I suppose that, in the future, we will expect the Communications Group to issue corrections. How could we think that the PR arm of a news organization would hold itself to any journalistic standards before the Panel came by to propose it?

Moreover, members of the Communications Group were far more involved in this prolonged violation of journalistic ethics (which one would assume a news organization's PR arm would understand) than this absolving paragraph lets on. For example, on page 192:

[T]he letters from Matley and Pierce posted on the CBS News website do not constitute their original work. In each instance, they prepared a statement and then were given proposed edits. Copies of both sets of statements are attached as Exhibit 7. While it is not clear who suggested the edits, handwritten notations on the drafts of the letters suggest that they came from West and [Communications Group member and CBS spokesperson Sandy] Genelius. In the case of Matley, the changes were relatively minor, adding the sentence: “I observed nothing about the documents that could disprove their authenticity.” But with respect to Pierce, the changes were substantive. Pierce’s initial letter was changed from “physical evidence suggests the probability that the documents in question are authentic” to “the documents in question are authentic.”
When a member of the Communications Group is helping to polish the statement of the experts CBS supposedly relied on, that goes beyond being a mere sockpuppet.

When two of CBS experts were uncovered by a rival news organization and those experts claimed to have warned CBS News about problems with the documents, CBS News released (presumably through the Communication Group) the following statement:

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. Most importantly, the content of the documents was backed up by our reporting and our sources who knew the thoughts and behavior of Lt. Colonel Jerry Killian at the time.
Shouldn't someone in the Communications Group have protested that this statement was not consistent with previous statements they issued? Doesn't the Sockpuppet Communications Group have any responsibility to question management when they are being told inconsistent things? Apparently the Panel doesn't think so.

Sidenote: somewhere between page 154 and 159 of the Report, the criticisms are no longer "attacks," but become the "controversy."

Where Were the Pristine Documents?

The Report uncovers the poor decision making taking place within CBS News September 9-10, but misses one failure of CBS News in its CBS Evening News broadcast Friday evening. From the transcript:

Rather: Document and handwriting examiner, Marcel Matley, analyzed the documents for CBS News. He says he believes they are real but he is concerned about what exactly is being examined by some of the people now questioning the documents because deterioration occurs each time a document is reproduced and the documents being analyzed outside CBS have been photocopied, faxed, scanned, and downloaded, and are far removed from the documents CBS started with which were also photocopies.
Here is CBS News "attacking" its critics because they don't have the quality of copies that CBS News had available. This is absolutely shameless. The only reason that other experts were not analyzing pristine copies is because CBS News had refused to make them available, even though CBS News claimed to have pristine copies, according to the Chicago Tribune (annoying reg. req.) on Sept. 14 (Laura Bush says papers likely forged):
CBS spokeswoman Sandy Genelius said Monday that the network possesses what it believes to be so-called "first generation" copies, duplicated directly from the original documents.

But the copies posted on its Web site are somewhat blurred and speckled, suggesting repeated copying.

Perhaps you think I'm making too big a deal about this, but CBS News thought it important enough to site in their major statement on September 15 (Exhibit 3H, page 2 of 3 [PDF]):
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.
Heck, even CBS News' new "experts" never got to see these pristine copies, according to The Washington Post, though CBS failed to note that in its statement on September 15 (Expert Cited by CBS Says He Didn't Authenticate Papers)
But Glennon said he is not a document expert, could not vouch for the memos' authenticity and only examined them online because CBS did not give him copies when asked to visit the network's offices.
Indeed, it is only with the release of this Report that better copies of the documents were made public. See, the Volokh Conspiracy, "Better Copies of Forged Documents Now Available."

This is an obvious ethical lapse in CBS News' reporting and should have been flagged by the Report. Certainly one couldn't expect the Communications Group to make the pristine copies available, or anything. They're just mouthpieces.

Off the Air?

Jim Geraghty at the National Review Online catches another ethical lapse (Oddity in the Matley Interview). CBS News used a quote in an interview where the subject thought that he was off the air (Exhibit 9I Page 4 of 7 [PDF]):

Rather: Do this today. Are you surprised the questions came about these? We're not, but I wonder if you were surprised?

Matley: Oh, no, I knew going in. We're off the air right now, right?

Rather: Right, we're off the air.

Matley: I knew going in that this was dynamite one way or the other and I knew that potentially it was far more potential damage to me professionally than benefit to me. And I knew that. And uh, but we seek the truth. That's what we do. You know you're supposed to put yourself out to seek the truth and take what comes from it.

As Geraghty notes, this is probably "small potatoes," but still ...

Rather to Critics: You Bunch of Partisans!

Another interesting omission of the Report is whether it is appropriate for reporters to cast aspersions on their critics so readily, as Dan Rather did in an interview with respected Washington Post media reporter Howard Kurtz (Rather Defends CBS Over Memos on Bush):

I think the public is smart enough to see from whom some of this criticism is coming and draw judgments about what the motivations are.
And again in an interview with the LA Times on Tuesday the 14th (Rather Rides Out Latest Partisan Storm):
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."
Shouldn't members of a news organization take more care to see that their reporting is flawless before casting aspersions on the motivations of others? Or is this perfectly acceptable behavior in the leading reporter and face of a news organization? Maybe Dan Rather should consider for himself the recommendation that all public statements should meet the same standards as reporting.

Mysterious Individuals at CBS Order Experts Not to Give Interviews, Diss Document Experts and Produce News Show

A far more important allegation is also contained in Kurtz's reporting:

[Handwriting Expert Marcel] Matley said last night that a "60 Minutes" executive had asked him not to give interviews.
Did Matley lie to Kurtz? If not, who was the executive? Shouldn't this allegation have been investigated? Either it is untrue, or one of CBS News executives was clearly acting unethically.

See also a similar allegation in the Baltimore Sun on September 16 (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.
Who at the network?

Howard Kurtz also reported this bit of viciousness directed at one of the two experts hired by CBS who questioned the documents authenticity (Document Experts Say CBS Ignored Memo 'Red Flags')

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.
Did the Panel investigate this allegation? Did they ask any of the executives involved if they had made this scurrilous accusation? Was Howard Kurtz bound to protect their anonymity, since the Panel had a free rein to investigate (and thus, go beyond the official statements)?

Perhaps the most mysterious person or persons are the CBS News producers who helped put together the September 13 CBS Evening News report on the controversy (page 183 of the Report)

Exactly how the September 13 broadcast came about is somewhat unclear, although obviously some additional CBS News producers helped Mapes produce this report since by this time she had returned to Texas.
I guess news shows just mysteriously happen. Or, perhaps, no one remembers working on a major story about their own news organization. Could happen, I guess.


The Report is actually fairly solid on the poor performance of CBS News after valid criticism of their reporting had been raised. However, as shown above there are still a few questions that the Panel should have answered.

Comments (5) + TrackBacks (0) | Category: Blogging and Journalism


1. ROBERT ROENIGK on January 11, 2005 05:07 PM writes...

Does anyone know whether that Post Office Box 34567 (shown at the top of one of the letters)ever existed? It seems that should be easy to investigate.

Permalink to Comment

2. Rod Stanton on January 11, 2005 05:13 PM writes...

I have a serious question about who was on the panel. Viacom set it up to cover up the smear. All Dick did was look for ways to hide the smear on the President. No lawyer would let him on the jury.

Permalink to Comment

3. Ernest Miller on January 11, 2005 05:50 PM writes...


Yes, I believe others (not the Panel) discovered that that PO Box actually existed.

Permalink to Comment

4. Seth Finkelstein on January 12, 2005 05:05 AM writes...

Yes, the PO Box is real. Note the address e.g. on the document:

[monospaced font, no superscript :-)]

Permalink to Comment

5. kcom on January 13, 2005 04:18 AM writes...

I've always thought that the nature of Dan Rather's first broadcast response to the controversy, on the Evening News two days later, got way, way too little attention. Practically the first words out of his mouth were a disparaging comment about critics being "partisan political operatives." I think the context makes it way more damning than the similar things he was quoted above as saying in later interviews. An editorial comment of that nature right in the middle of a (theoretically) objective news program was completely inappropriate.

And in my mind it also proves the political bias quite openly. Dan Rather could have chosen to set the context surrounding the controversy in any number of ways but he chose the most political interpretation possible. Instead of acknowledging the controversy and responding as an objective news organization by saying they were presenting the facts as they saw them regardless of the effect on any party, he basically came out and specifically declared "partisan political operatives" (i.e. conservatives or Republicans) as his enemy. In doing so, he was taking sides and pretty much declaring himself as supporting an opposing political agenda. In other words, from the very beginning he saw the story from a political point of view and made no pretense of an objective presentation or an objective response to the ensuing criticism. He barely acknowledges that there even were "non-partisan" critics.

And he only compounds that error later in the interview with Marcel Matley. Does he ask his document expert why he thinks the documents are real? Does he ask him what his credentials are? Does he ask him the procedures he went through to judge the documents? No, the very first question he asks his paid document examiner is "Are you surprised the questions came out about these? We're not, but I wonder if you were surprised?" What kind of question is that? How does it bring the truth any closer to the surface? And what, pray tell, is Dan Rather doing inserting his opinion into a news interview with an outside expert? From the first time I heard that question I thought it sounded like "Amateur Hour" at CBS News. When Dan Rather complained later that people were trying to make the story about him and not about Bush he had only himself to blame. His very first widely broadcast public response to the controversy was to make it almost exclusively about him and his personal opinions. How did he expect people to respond? I know I tuned in that day to see him apologize for the story and explain the gaffe and was literally dumbfounded to hear those words come out of his mouth. After that, it couldn't but be about him.

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