Burden now on CBS to authenticate its documents, lest it become a co-conspirator in fraud

In modern civil trial practice, authentication of documents — proving up that they are genuine, that they are what they purport to be, that signatures are authentic, that photocopies are identical to the original versions from which they were made, and the like — is rarely an issue.  In twenty-four years of active civil trial practice, I'd guestimate that I've had occasion to challenge, on any basis, the authenticity of only  a tiny fraction of one percent of the documents I've dealt with — and I'm talking quite literally about millions of pages of documents.  And I've never yet had occasion to hire a forensic documents examiner. 

Indeed, it's now common practice in both state and federal courts that documents will be conclusively presumed to be authentic, and not subject to objection for failure to prove up their authenticity, unless the party opposing a document's admission into evidence on that basis has challenged it before the trial.  (See, for example, Local Rule 44.1 of the United States District Courts for the Southern District of Texas.)  The goal, of course, is to streamline trials and avoid wasting the time of the judge, jury, and parties, in going through rote steps of authenticating each document in the overwhelming majority of instances when no party seriously disputes the document's authenticity.

But if a timely objection is made, it's still the burden of the proponent of a document — the party who relies on that document and wants it to be admitted into evidence and considered to have credible weight — to prove up its authenticity.

The blogosphere has aggressively — and persuasively — challenged the authenticity of the four documents produced by CBS News in its "60 Minutes II" program last night that purport to bear on President Bush's National Guard service in 1972-1973.  The arguments raised to cast doubt on those documents' authenticity have multiplied throughout the day.  I won't attempt to marshall those arguments here, but refer you to the updates to my post from last night and the many links provided there.  Probably the best single source compiling those arguments is a thread on the Power Line blog that already has over 300 trackbacks to it evidencing links from other bloggers, now supplemented by at least three new threads for breaking developments.

Either in logic or in law, the burden is squarely on CBS News to respond to those arguments — and to do so immediately.  So far, there's no credible suggestion that CBS News has been actively complicit in forgery, as opposed to unwitting (and witless) dupes who've passed on forged documents given to CBS News by others who, at present, remain unidentified.  But with every minute that passes without a substantive response by CBS News, their involvement in the fraud grows — and yes, at some point in the very near future, they will become co-conspirators in any fraud by virtue of their deliberate cover-up.

I speak in an ethical, logical, moral, and practical sense in terming CBS News and Dan Rather as potential "co-conspirators," not a legal one.  But their obligation is nevertheless clear and indisputable.  This problem cannot be ignored, nor postponed.  And let me be clear:  I'm not insisting that CBS News concede that the documents are forged.  But I'm insisting — and the rest of the mainstream media, and indeed all of America, should insist — that CBS respond to these objections in detail, now. 

Update (Thu Sep 9 @ 9:10pm): InstaPundit passes on a media contact's report that "ABC'S Nightline [is] doing the forgeries tonight, and their experts say most likely forgeries. CBS had serious meetings this evening over this."  If there's anything that might help overcome the mainstream media's torpor and intrinsic bias, it might be competitive pressure from within (and from without from sources like the blogosphere and talk radio).  Let's see how good a job ABC does — heck, they could do far worse than to simply read aloud from some blogs!

But!  Kevin Drum reports:

For what it's worth, I spoke to someone a few minutes ago who's familiar with how the documents were vetted, and the bottom line is that CBS is very, very confident that the memos are genuine. They believe that (a) their sources are rock solid, (b) the provenance of the documents is well established, and (c) the appearance of the documents matches the appearance of other documents created at the same place and time. In addition, people who knew Killian well have confirmed that the memos are genuine.

Update (Thu Sep 9 @ 10:20pm):  WaPo's ubiquitous Michael Dobbs is questioning the CBS docs on the front page of tomorrow's edition.  (That's great, but — Mr. Dobbs, shouldn't you be working on the missing documents from Kerry's private archives and records?  My favorite WaPoian, Howard Kurtz, is listed as collaborating.)  WaPo generally references "several independent experts," and quotes two experts, including Dr. Phil Bouffard, whose opinions were first developed at the request of, and quoted in, INDC Journal.  As for CBS' position, per WaPo:

A senior CBS official, who asked not to be named because CBS managers did not want to go beyond their official statement, named one of the network's sources as retired Maj. Gen. Bobby W. Hodges, the immediate superior of the documents' alleged author, Lt. Col. Jerry B. Killian. He said that a CBS reporter read the documents to Hodges over the phone, and that Hodges replied that "these are the things that Killian had expressed to me at the time." ...

In a telephone interview from her Texas home, Killian's widow, Marjorie Connell, described the records as "a farce," saying she was with her husband until the day he died in 1984 and he did not "keep files." She said her husband considered Bush "an excellent pilot."

"I don't think there were any documents. He was not a paper person," she said, adding that she was "livid" at CBS. A CBS reporter contacted her briefly before Wednesday night's broadcasts, she said, but did not ask her to authenticate the records....

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.

I see.  And what 1972-era typewriter did those experts say could have generated these documents, CBS?  That would be a good place to start in putting our concerns to rest.  Or — you could just tell us where ya got 'em, eh?

Update (Thu Sep 9 @ 11:20pm):  The local ABC affiliate in Houston, KTRK-13, is leading its broadcast with a local expert concluding the CBS docs are fake.  Should have a great audience too, given that the Colts-Pats game was a thriller to the last seconds.  Includes an interview with Killian's son, consistent with the ABC website and WaPo accounts from him.  Harris County Dem Party spokesman calls for Bush Administration to investigate the forged documents!!!  Amazing!  Now on to the "Texans for Truth" — its people won't talk to KTRK, and the group is funded by a sitcom writer from "Seinfeld."  Now a quick mention of the SwiftVets, then the latest ABC News poll showing Dubya with a 9-point lead.  Simply amazing — I'm rubbing my eyes at this whole broadcast.  Yes, this is Bush Country, but I'm wondering if Karl Rove sprayed some sort of "skeptic gas" into KTRK's studio.

Update (Fri Sep 10 @ 12:30am):  I don't think I've ever seen Ted Koppel so pleased with himself.  I thought from the lead-in that ABC's "Nightline" was going to bury the CBS documents scandal altogether in another mushy piece about "negative campaigning."  When they switched to Ted's opening on-camera lines, he gave an elaborate feint:

At times, it is the sleaziest, the slimiest, the nastiest and most destructive element in American politics.  The rest of the time, it's just brutal and manipulative.  At all times in the hands of its most skilled operatives, it is devastatingly effective, and will probably determine who sits in the White House for the next four years.

What they call it is almost as deceptive in its tone as what its operatives do — "opposition research."  What a musty, reassuringly academic phrase that is.  "Opposition research."  What could be more reasonable, after all, than researching your opponent's record for weaknesses, inconsistencies, outright lies if you're lucky?  It has been raised to the level of a dark science involving not just what to reveal, but how, and when.

But then out came the stiletto, as the camera zoomed in (boldface mine throughout):

Above all else, though, the story cannot be a complete fabrication.  It can be thirty years old, it can be one item out of context.  But it has to contain at least a kernel of truth.

My old friend Dan Rather, for example, had himself a peach of a story on "60 Minutes" last night, raising more questions about the President's record in the Texas Air National Guard.  Just so there's no misunderstanding, if someone had dropped that story in my lap and we'd been able to confirm it through our own sources, you would have seen it on "Nightline." 

I have absolutely no idea how Dan got the story, but you have to believe that the Kerry Campaign was awfully pleased that he did. 

Except that today, questions are being raised about the accuracy of one key element in the story.

Woof!  My paraphrase, with the subtext:  By strong implication, there was not a "kernel of truth" in the CBS story on the documents.  Nor any decent reporting, because it was "dropped in [Rather's] lap."  ABC would have confirmed it through "our own sources" — and by implication, Rather and CBS News didn't.  Where, oh where, did it come from?  Dunno, but (implicit snort and snicker) Kerry was awfully pleased.

Friends and neighbors, this is what passes for glee among network correspondents.

The follow-up reporting on the documents was adequate, if tepid.  Unnamed "conservative websites" were credited with first picking up on the discrepancies in the documents, but there weren't the usual snarky remarks about the blogosphere.  However, a far more convincing case for the CBS documents can be made — and in the blogosphere, has already been made — simply from the face of the documents, ordinary citizens' experience with typewriters and word processors and memos, a few undisputed facts, and some common sense.  The fact that Col. Killian's widow and son are doubtful is nice, but frankly, not terribly persuasive on its own to me — icing, not cake.

But other than repeating CBS' increasingly lame-looking defense that it subjected the documents to "independent experts," there was nothing in the "Nightline" story to suggest that these documents are anything other than forgeries.  And if Koppel and his staff weren't convinced, that stiletto would've likely stayed in Koppel's pocket, rather than finding its place between his "good friend" Dan Rather's ribs.

Finally for tonight:  The extremely unreliable, frequently badly wrong, but oftentimes entertaining Prowler column in The American Spectator claims to have heard from unnamed inside sources at ABC and a rival news program inside CBS that the documents were handed over to "60 Minutes" weeks ago; that even "60 Minutes" insiders had doubts about their provenance; and that they came directly from the Kerry campaign.  I am extremely skeptical about this, and if I had to bet, would bet that at least the last part is wrong.  I emphatically do not vouch for the Prowler or endorse its reporting or methods.  Obviously, though, folks can't help speculating along these lines; and there's always the possibility that even a blind and ugly pig may have found a genuine acorn here.  CBS has some serious 'splainin' to do.  And if in fact the Kerry campaign is innocent of any complicity — which I'm still inclined to believe is the case, because I just can't believe they'd be that stupid — it should join in calls for CBS to come clean, ASAP, if only to put unfounded speculation to rest.

Update (Fri Sep 10 @ OMG-I-should-be-asleep):  Even the NYT is beginning to pile on; I suspect the online version of this already has more detailed skepticism than will appear in the print version. 

A senior executive at CBS said said, "We are convinced our source who got the documents had access to them and we trust the source.'' He added, "Can we produce the typewriter they came from in 1972 or 1973? Obviously not.''

The executive said the documents had been "vetted as thoroughly as possible.''

"We did have a number of experts,'' he said, adding that the producers also showed the documents to numerous people who worked with Colonel Killian and who said the memos were consistent with what he thought and representative of the sorts of documents he produced back then.

"It would be unbelievable for a forger to have written documents that could so closely reflect what the people closest to Killian said,'' he said, "that this is his tone of voice, what he thought back then, this is the situation back then. It would be a little odd to think that these things could have just surfaced.''

The people "closest to Killian"?  Like, umm, his wife and son, who you obviously didn't get the documents from, or bother to check with?  Then there's this strange bit that I'd like to get more information about:

CBS News executives also produced a document released earlier by the White House about Mr. Bush's service that was clearly from a typewriter and had a superscript "th'' in it. CBS said it proved that some typewriters did indeed have superscript keys. But the characters were hard to make out after so much reproducing of the document, a problem, the CBS News official acknowledged, with the documents in the initial "60 Minutes'' program; those documents were not originals and have been copied repeatedly.

What document is that, CBS?  Are you sure you're not pointing to a document that the White House released after you faxed it to them?

Update (Fri Sep 10 @ 8:45am):  The Chicago Sun-Times has up an article by Thomas Lipscomb and the New York Post an article by John Podheretz on Ra^thergate.  With respect to the former, InstaPundit notes that what's interesting "is that it treats Power Line and other blogs as just another news source."  Mr. Lipscomb, however, is identified not as a Sun-Times reporter, but as "chairman of the Center for the Digital Future in New York," and you may recognize his name as the columnist leading the Sun-Times' efforts in looking into the technical improprieties in Sen. Kerry's medals — so it's no surprise that he's tuned into the blogosphere.  Prof. Reynolds also links to and quotes from a cached version of the Prowler column I linked last night — which, I repeat, should be viewed with extreme skepticism by any fairminded (but rumor- and gossip-hungry) reader. 

NRO's Byron York, who was helping break this story in the mainstream media (ver. 1.5) yesterday on Fox News with Brit Hume, has his own column up now as well, which notes some of the many contextual nonsequiturs in the CBS documents just as military memos.  This long thread on the SwiftVets' bulletin board (on its off-topic "Gedunk and Scuttlebutt" forum, mind you, for neither the SwiftVets nor this loosely-affiliated bulletin board are organized for the purpose of promoting Bush's candidacy or even discussing him, as opposed to exposing Sen. Kerry's unfitness for command) shows how internet-savy non-bloggers were nevertheless cooperating with, and working in parallel to, what the "organized blogosphere" (heh!) was doing yesterday; because of that forum's heavy readership and participation by folks with military backgrounds, it also has quite a bit of interesting analysis of the contextual oddities of the CBS docs.  Ditto blogger Donald Sensing's excellent post.

And Power Line has a short take on Koppel's performance last night, a DNC email seeking to take advantage of the CBS documents, and a collection of mainstream media links that asks the $64,000 question, "Whence the memos?"

Finally, readers who wish to send polite but pointed feedback to CBS News encouraging them to —

• reveal their source,

• disclose the names and full opinions of the "experts" upon whom they relied, and

• offer their written responses to the many, many objections raised to the documents' authenticity

— are encouraged to do so via this link.  Remember, rants and profanity gets your message trash-canned.  Your own brief, non-cut-and-pasted, rational arguments and observations — plus, perhaps, "I'm thinking of writing to your advertisers" — are more likely to get your feedback noticed.