As published in The New York Review of Books of April 7, 2005
THE FLAWED REPORT ON DAN RATHER
by James C. Goodale
Report of the Independent Review Panel on the September 8, 2004 60 Minutes Wednesday Segment “For the Record” Concerning
President Bush’s Texas Air National Guard Service by Dick Thornburgh and Louis D. Boccardi. January 5, 2005, 224 pp.
A few weeks ago former Attorney General Richard Thornburgh and Louis Boccardi, former head of the Associated Press, released their report on Dan Rather’s use of allegedly forged Texas Air National Guard (ANG) documents covering President George W. Bush’s military service. The report, as is well known, excoriated CBS for the use of these documents on its 60 Minutes Wednesday program on September 8, 2004. It is, however, a flawed report. It should not be uncritically accepted, as it has been by the press and by television commentators.
The report concluded that CBS failed to hire appropriate experts to clearly verify its statements and did not establish a “chain of custody” for the documents. CBS, according to the report, rushed to judgment on the basis of inadequate evidence, did not promptly acknowledge flaws in its program, and broadcast a false and misleading report.
CBS did rush to make inadequately verified allegations public and it was slow in responding to criticism. The report’s conclusions on the other points are not, however, persuasive. Surprisingly, the panel was unable to conclude whether the documents are forgeries or not. If the documents are not forgeries, what is the reason for the report? The answer is: to criticize the newsgathering practices of CBS, whether the documents are authentic or not. As such, the report is less than fully credible.
Lost in the commotion over the authenticity of the documents is that the underlying facts of Rather’s 60 Minutes report are substantially true. Bush did not take the physical exam required of all pilots; his superiors gave him the benefit of any doubt; he did receive special treatment and Lieutenant Colonel Jerry Killian, Bush’s commanding officer, was unhappy with the loss of ANG’s investment in him when Bush informed Killian he was leaving for Alabama. Before the broadcast, Mary Mapes, the CBS producer of the program, confirmed the facts in the documents with retired Major General Bobby Hodges, who had been Killian’s superior in the ANG. Later Hodges told the panel he did not think the documents were authentic, but did not disagree that the facts were substantially correct.
Following the broadcast, Marian Carr Knox, who was Killian’s secretary at the time, confirmed the facts of the broadcast, saying, “There’s no doubt in my mind that [the] information is correct.” When the panel cross-examined Knox she seemed less certain of what she had told Rather but she did not contradict any of the broadcast. Since the broadcast, no one has come forward to say the program was untruthful.
The panel attacks the four experts CBS hired to authenticate the documents. One of the four, James Pierce, concluded that the signatures on the documents were authentic and that there was no reason to believe the documents were not genuine. Such conclusions are common for document examiners. A second, Marcel Matley, also concluded that the signatures were genuine.
The other two experts had reservations about the documents. One, Emily Will, said that from the documents made available to her, she did not think the signatures matched; the other, Linda James, stated that she could not authenticate the documents without the originals. The report asserts that CBS should not have relied on Matley and Pierce. It should have known, according to the panel, that copies of documents, which these were, can rarely be authenticated. A copied document can only be authenticated when compared to the original. There were no originals. Matley, for his part, continues to disagree with the panel’s view and has demanded that it correct the eighteen places in the report where he believes he has been libeled.
Mr. Pierce had said that the signatures were authentic and he has never modified his conclusion. The panel never interviewed him. If the panel never talked to the one expert upon whom CBS principally relied, how could it determine whether he was credible?
Moreover, if lawyers know how to hire appropriate experts even if journalists don’t, why didn’t the panel, which was backed by a huge law firm, hire its own experts to determine the authenticity of the documents? One suspects that if the panel had done so, it would have ended up with some experts saying the documents were reliable, others not sure. And that would have put the panel back where CBS was.
The report criticizes CBS for not being able to present evidence of a “chain of custody” for the documents. Since the CBS source, Lieutenant Colonel Bill Burkett, only had a copy of the documents, CBS, the panel said, should have known where this copy came from, or, indeed, the source of the originals. Burkett later confessed he had lied about his alleged source, George Conn, whom CBS clearly should have taken more pains to reach. After the program had been broadcast, Burkett said he received the documents from a woman named Lucy Ramirez.
For seized drugs to be introduced into evidence, a lawyer must prove who had the drugs from the time they were seized—that is the “chain of custody.” While such proof is relevant in the courtroom, it is often irrelevant for journalists. Few stories based on documents would ever be written if that were the standard.
One of the greatest concerns facing The New York Times in publishing the Pentagon Papers was their authenticity. A major fear was that the papers had been forged by an antiwar group. If a strict standard of “chain of custody” had been applied to the Times’s possession of the Pentagon Papers, this standard would have made the story unpublishable. It would have required a call to the Department of Defense or the Rand Corporation, known to have custody of the originals. Such a call would have brought the FBI to the Times’s door in a second.
Apart from consulting forensic experts when it is appropriate, what journalists do when they receive copies of documents is to make judgments about the source and the contents of what they have. Are they consistent with known facts? Is it logical to assume such documents exist?
Dan Rather apparently asked few such questions. According to the panel, he knew little about the background of the charges he broadcast and depended on the reporting and research of the program’s producer, Mary Mapes. To determine the documents’ authenticity, she made what the panel described as a “meshing” analysis.
Mapes submitted to the panel a forty-page statement setting out this analysis. It showed how the events described in the documents corresponded with known facts about the President’s Air National Guard service. The panel said it agreed with some of this meshing analysis but not all. The panel did not attach this meshing analysis to the report. It did, however, attach over seven hundred pages of other exhibits to it.
I have seen Mary Mapes’s statement, and it is persuasive within the limits she set. She established a chronology of events drawn from eight official Bush documents she obtained through a Freedom of Information Act request she had made in 1999 and 2000, when she first became interested in the story. She then tried to match the six Killian documents with that chronology and concluded that they “fit like a glove.”
Three of the six documents did fit well, the panel conceded. Two of them covered Killian’s refusal to rate Bush’s performance. The third reflected Killian’s conversation with Bush in which he reminded him of the ANG’s investment in him. Of the other three, the panel thought one “may not mesh,” and another did “not mesh well.” Another, not used by Mapes, did not mesh “at all.”
The panel’s approach to the document in which Killian ordered Bush to take the physical exam illustrates how it dealt with Mapes’s submission. Mapes believed this document was authentic for two reasons. First, it “meshed”: the dates in it matched the dates of earlier physicals taken by Bush, the addresses on the document were correct, and the Air Force regulations were correctly cited. Second, Matley said the signature on the document was Killian’s, and Hodges and Knox confirmed the document’s contents.
The panel challenged Mapes’s claim on the basis of its talks with three officers who had served in the ANG at the same time as the President. They said it was not customary to “order” an officer to take a physical. For this reason the panel concluded the document “does not mesh well.”
The officers’ statements, of course, do not disprove the claim that Killian ordered Bush to take a physical; nor do they exclude the possibility that there was a custom of which they had no knowledge. The panel’s reasoning on this document is not particularly persuasive, nor is its reasoning persuasive about why the other documents did not perfectly mesh. In the end, even the panel, without saying so explicitly, has to concede the accuracy of Mapes’s statement that “there is nothing in the official Bush records that would rule out the authenticity of the Killian documents.”
A major weakness of the report is that neither Mapes nor Rather was offered a chance to cross-examine the people the panel interviewed. In fact, the panel never even told them whom it was talking to. The panel did not tell Mapes or Rather, for example, that it was talking to the three officers I have mentioned; nor did it give them an opportunity to show that the officers were Bush supporters or even friends of Bush—which Mapes believes to be the case.
Nor is the panel convincing when it says that telephone contact between Mapes and a member of the Kerry campaign was “highly inappropriate.” Mapes made a call to the Kerry campaign office after Burkett told her that he wanted to speak to the campaign about strategy to counter the “Swift Boat Veterans for Truth.” At that point, Mapes had only some of the documents and she needed the rest. She telephoned Kerry campaign headquarters to get the phone number of Joe Lockhart, a senior adviser
to the campaign. By the time she talked to Lockhart, she said, she had received all the documents. Lockhart eventually telephoned Burkett but testified to the panel that he had “said very little during the call and the subject of documents never came up.” In effect, Mapes traded access to the campaign for access to the documents. She did not turn over the documents to the campaign before the broadcast. Investigative reporters must be wily in getting their stories and what Mapes did does not seem reprehensible.
Perhaps the least credible part of the report is its decision to label parts of Dan Rather’s program false and misleading, even though those parts were not directly related to the documents. For example, it concluded that one interview, which implied that “President Bush was in the TexANG to avoid service in Vietnam,” was inaccurate and misleading because there were other sources who would say the President wanted to serve in Vietnam.
The panel said a flight instructor had told Mapes that Bush “did want to go to Vietnam but others went first.” Mapes may not have believed this statement, and she would have had good grounds for being skeptical about it. It was well known at the time that joining a National Guard unit such as the ANG was one of the best ways to avoid going to Vietnam. And no one has disputed why Bush joined. It is hard to believe he changed his mind afterward. But even if he did, it has no bearing on his initial decision to join the Guard.
The panel also labeled as “misleading” Dan Rather’s interview with the then speaker of the Texas House, Ben Barnes, who made a call to get George Bush in the Guard. Why is this misleading? Because, the panel said, CBS has no proof that the person who received the call was influenced by it. Can the panel be serious about this? Should CBS not have reported this call?
The CBS report reads as if it were written by lawyers for lawyers, notwithstanding the fact that Mr. Boccardi is a journalist. The report, it may be noted, is signed not only by Boccardi and Thornburgh but by seven other lawyers in Mr. Thornburgh’s law firm. The report might well have been better if it had been written by journalists for journalists and the public. The report convincingly points out that CBS moved too quickly in airing the broadcast and too slowly in discovering that its source would change his story about how and from whom he got the documents. Those are fair and telling comments. But they take up little more than 25 percent of the report.
The rest of the report, which is directed to the newsgathering process of CBS, is flawed. The panel was unable to decide whether the documents were authentic or not. It didn’t hire its own experts. It didn’t interview the principal expert for CBS. It all but ignored an important argument for authenticating the documents—“meshing.” It did not allow cross-examination. It introduced a standard for document authentication very difficult for news organizations to meet—“chain of custody”—and, lastly, it characterized parts of the broadcast as false, misleading, or both, in a way that is close to nonsensical. One is tempted to say that the report has as many flaws as the flaws it believes it has found in Dan Rather’s CBS broadcast.
—March 10, 2005 James C. Goodale is former vice chairman and general counsel of The New York Times