BeldarBlog

Beldar's take on the first debate

Neither candidate screwed up.  Kerry needed a Bush screwup, a huge gaffe, to change the dynamics of the race, and it didn't happen.  Thus in the big picture, Bush won.  That's true regardless of whether you grade Bush with a "B" and Kerry a "B+" or vice versa.  Both candidates crossed the finish line standing; and I think that means Bush will win the election, regardless of how you may "score" this debate on "points" and in isolation.

*******

Small pictures and impressions:

I think Sen. Kerry was at his very best tonight — much better than he was in any of the Democratic primary debates, and in the perfect, very formal and isolated-from-humanity environment to show off his strengths to their best advantage.  The format was one where the smartest kid in the class gets to show off, with nobody humming "Hail to the Chief" on a kazoo, and with none of the human interactions that make him look so robotic and inhuman.

Probably because of that, his mannerisms that annoy me the most were fairly muted.  But they could not be wholly extinguished.  Ask yourself this question:  Wouldn't it have been a huge home run for John Kerry if he could have gone through this entire debate with the self-discipline never to mention his Vietnam service?  To the extent that his combat service is going to favorably influence some subset of the voting public, hasn't he already gotten the full benefit of that history?  And yet, there he is — incapable of holding back the impulse to say, again and again, in effect, "Do you know who I am?  You realize, don't you, that I served in Vietnam?"  I don't know whether it's two percent or ten percent or thirty percent of the "undecided" or "swing" voters, but some percentage of those voters who are currently leaning Bush and might otherwise might have ended their viewing of this debate by saying, "Kerry's not so bad," were shaking their heads at every Vietnam allusion and muttering the word that I think will doom Kerry's chances for election:  "Phony."

Dubya was simply himself.  What is important — not shocking or surprising, but important — is how different today's Dubya is from the 2000 election version of himself; and of course, the transformation was 9/11.  In contrast to the candidate from 2000, this is a guy who has a very clear and consistent picture of what being the President is all about. 

He does not have, and never has had —  and has looked in the past (e.g., in 2000) at his worst when trying to pretend to have —  the Clintonian policy-wonk's command of subpoints and figures and verbal arguments with Roman numeral signposts going from III to III-A to III-A(4)(b)(vii).  When he makes successive supporting points, you can always count them on one hand and usually have a digit or two left over.  In fact, stylistically, I wish he would have transcended the format — not felt the need to keep talking until the yellow light flashed on — and repeated himself less.  (Man, what a contrast that would have been, because when Kerry speaks, you can see behind his eyes how he's doing a mental multitasking to plot how many more points he'll have time to score before the buzzer sounds.)

*******

Final aside:  What a difference this debate was from any of the Gore-Bush debates of 2000, and from some of the run-up to this one!  Nobody's going to be writing tonight or tomorrow about anybody's audible sighs or invasions of personal space, or about Kerry's tan.  The Bush-is-a-chimp crowd are posting gleefully now about "moo-lahs" and "nukular," but that's an exercise of political masturbation for them at this point, a self-pleasing ritual they're bound to engage in that has no connection to the substance of anything that happened beyond the fact that Dubya showed up and spoke aloud for a while. 

For everyone else, this was a serious exercise appropriate to a nation at war, a nation from which 9/11 has banished, at moments like these, most of the frivolities that we had the luxury and innocence in which to engage ourselves back in 2000.  But I don't think this debate changed any votes that were already strongly intentioned, nor — despite what I think was an optimal performance, as good as Kerry's capable of giving, in the best possible format for him — do I think it is likely to have swayed many genuinely undecided folks in a different direction than they were already leaning.

Mr. Burkett, if it's really you ...

Not to step on any toes or anything — I mean, I'm really not trying to pick on a sore subject — but to the proprietor of the blog receiving the Trackback ping I'm sending with this post: 

If you are who you say you are, and want people to take anything you say seriously — and I'll bet you surely do have lots more to say, sir, if'n you're who you say you are — then you might oughta consider posting some bona fides.  Maybe ask one of your longtime friends over for a cold Lone Star, let him watch you post something on your blog, and then let him go call a press conference in front of the county courthouse or something. 

I'm just an ole Lamesa boy, really trying to help.  (Or "hep," as we tended to say in West Texas when I was growing up there.)  I'm sure you know where Lamesa is, sir — I-20 west to Big Spring (pronounced "Big Sprang," never "Big Sprangs," 'cause there's only one, and it's gone dry), then north on US 87, only 150 miles from Abilene.  You watch, this post will send a buncha internet traffic your way. 

But ... they're likely to be kinda ... skeptical.  Now, my readers are a pretty well-behaved bunch, and include some yellow dog Democrats amongst 'em, so I'm hopin' they'll behave themselves over on your website too.  (Whoever got you set up was right smart to require comment registration, but I suspect you're still gonna have to be poundin' on that mouse button over the "delete" icon a fair bit.)

One last recommendation:  If you're gonna get into this bloggin' business in a serious way, you might wanna check out a pretty good code of bloggin' ethics.  Heck, they was written up by a libral blogger, but she's a purty girl and smart, too, and I'm proud to introduce ya to her.  Good luck, sir, and welcome to the blogosphere!  (Hat-tip to AllahPundit — but you don' even wanna ask about him, now, Mr. B, just trust me on this one.)

Beldar answers Orin Kerr's three questions on Iraq

Off the top of my head, here are my answers to Orin Kerr's three questions for pro-Iraq War bloggers:

First, assuming that you were in favor of the invasion of Iraq at the time of the invasion, do you believe today that the invasion of Iraq was a good idea? Why/why not?

Absolutely.  After ousting the Taliban, Saddam's Iraq was the next obvious target.  Sanctions were hurting the wrong people; Oil for Food was making the worst people rich; diplomacy never would have worked.  Saddam's forces were shooting at our planes on a daily basis.  Google on "sarin + 'artillery shell'" and tell me again that he wasn't dangerous; we didn't find WMD stockpiles, but we found capabilities, and we know from past experience that he had the willingness desire and intent, plus cash out the wazoo.  America and the world are better off knowing that America's threats aren't idle and that the American military is fully two generations beyond any military power it's likely to have to face in open combat.  And because we used force in Iraq, there's a far better chance that force won't be necessary against other state sponsors of terrorism (start with Libya, head east to Syria and Iran, keep going to North Korea).  The myth of Mogadishu has been exploded; messing with the US has consequences — potentially including military consequences — in a way that no one has really believed since at least Desert One.  That's just on the Homeland side; stopping a regime that practiced day-to-day mass murder on its own people and giving millions of Iraqis a decent chance at liberty and democracy would have been ample cause on its own, especially given the moral debt we owed those people after encouraging, then wimping out on them, after the Gulf War.

Second, what reaction do you have to the not-very-upbeat news coming of Iraq these days, such as the stories I link to above?

I am entirely unsurprised by either the fact that there's been continuing violence or the massive over-reporting thereof (and under-reporting of encouraging news).  Anyone who's ready to give up now has absolutely no sense of history, nor of the risks we'd face if we did so.  We're no longer on the horns of the dilemma we faced in Vietnam or even Korea; taking the fight to the enemy will cost lives, but not at anything remotely like the rate at which American lives were lost in Korea or Vietnam, and now we're not faced with instant global thermonuclear incineration if we push too hard.  Every killed or wounded American/Coalition/Iraqi soldier or sailor or airman or policeman or civilian is a tragedy, but the only catastrophe would be to render meaningless their sacrifices by cutting and running.  Our military understands that freedom's never free; maybe that's trite, but it's basically the same thing Jefferson said about watering the roots of the tree of liberty with the blood of patriots and tyrants.  I just hope our public will remember that, without having to have another 9/11-or-worse reminder.

Third, what specific criteria do you recommend that we should use over the coming months and years to measure whether the Iraq invasion has been a success?

In the short term, obviously, the elections are very important, even if they're marred by violence.  (We've already passed one huge short-term milestone, the return of sovereignty.) In the middle term, a gradual increase in Iraqi domestic security and economic well-being and opportunity must be maintained.  In the long term, everything else depends on establishing and maintaining democracy, even if (as is likely) a genuinely independent and democratic Iraq ends up being less grateful and friendly than Americans would like.  We've done this drill of encouraging and nurturing and protecting democracies before — Italy, France, Germany, Japan, South Korea, Taiwan — each different, some much harder than others, probably none as hard as what we're trying to do now.  To paraphrase Benjamin Franklin, we'll give them a republic, and then we'll see if they can keep it — albeit hopefully with help from civilized allies in America and elsewhere.  I don't expect Iraq to ever  resemble Iowa; but something Venezuela-like would mean real progress; and even if they end up in twenty years no better off than Egypt is now, that still will have been a huge improvement for America and for the world.  Twenty years is too short a time-frame in which to measure, for that matter.

I'm sure I've missed something important or stated things less eloquently here than I'd like to have, and everything I've just said can be quibbled with and picked at.  But I gather Mr. Kerr wants something that would approximate what I might tell him if he bought me a beer at a friendly bar.  Cheers!

Pre-fisking the "60 Minutes" yellowcake story

How cool is this?  Jim Lindgren at The Volokh Conspiracy is pre-fisking CBS News' temporarily delayed/shelved story on Saddam's efforts to buy yellowcake uranium.  Actually, Jim fisks MoveOn.org's demands that CBS News run with the story even though it's bogus.  Gosh, I wonder who could be behind MoveOn.org's pressuring ... and whether his middle name could be "Micah"?  Just a hunch.

I'm coo-coo for Cocco puffs! (And so's CBS News!)

While drafting (pun recognized but not intended) and following up on my post below about CBS News' scandalous broadcasts intended to create fear among voters over the return of conscription, I stumbled upon an interesting chronologic sequence, prompted by Rathergate.com's reprint of a September 9th letter to the editor from CBS News' star draft-fearful soccer-mom, Ms. Beverly Cocco of Walton Park, PA, to the Northeast Times, which appears to be a Philadelphia News-owned local-events supplement (proudly serving "Bucks, Chester, Delaware and Montgomery Counties and the Main Line").  Of that September 9th letter to the editor, more later. 

But as it turns out, there's an earlier letter from Ms. Cocco there too, from way back on June 17th (boldface added):

Put the chill on the draft bill

Just this week I received an e-mail so upsetting that I forwarded it to all my friends, who then forwarded it to all their friends. We are now a good size group.

The e-mail concerned Bill S89 and HR 163. The bill is about reinstating the draft, beginning in the spring of 2005. The draftees will be all males and females between the ages of 18 and 26. There will be no deferments; seniors will be allowed to finish the year, and underclassmen will only be allowed to finish the semester. There is already a document signed between the U.S. and Canada, the "Smart Border Declaration," which will prevent crossing the border.

Since this is a federal bill, I was advised to contact Sen. Specter, Sen. Santorum and Congressman Joe Hoeffel. Sen. Specter’s office said that these bills are a "secret."  [Yeah, that's why they're given code-numbers and hidden away in the Congressional Record, in print and online — to keep them "secret." — Beldar]

When I told him that the cat was out of the bag, he offered to connect me with the Washington office. That office assured me that the senator was against this bill. I am still waiting for Sen. Santorum to respond, but Congressman Hoeffel is undecided. His office is sending me a letter detailing his thoughts.

We are now in the process of collecting as much information as possible about this bill and the candidates.

We keep getting told that there are no sponsors for this bill and not to worry about it. But why did South Carolina Sen. Ernest Hollings draft this bill, and why is it sitting in the Senate? We think that it is important to find out before the election.

Meanwhile, we are starting an organization called Parents Against the Draft (PAD).  For more information, call me at [deleted — Beldar].

Beverly Cocco
Walton Park

The proposed new law in question, by the way, the "Universal National Service Act of 2003," was introduced in identical form in both chambers — in the House as HR163, and in the Senate as SR89 — way back on January 7, 2003, by Congressmen Rangel, McDermott, Conyers, Lewis (of Georgia), Stark, and Abercrombie, and by Senator Hollings, all hard-left Democrats.  [Update: Both bills were promptly referred to the appropriate committes, whence, as best I can tell, they've neither stirred nor come up for any discussion or vote ever since.  Yet there are unconfirmed reports that from the darkness surrounding them has occasionally been heard a hiss — "My preciousssss!" — with an odd Massachusetts accent.]

The above-referenced Pennsylvania Democratic congressman (and senate candidate), Joseph M. Hoeffel, in fact published a follow-up letter to the editor of his own on July 1st, stating that he opposes HR163, and concluding that by "enhancing incentives and increasing possibilities for engaging in volunteer service, we can improve our armed forces without reinstating the military draft." 

And by the time of Ms. Cocco's September 9 letter, it sounded like she'd been cured of her barking moonbatism after speaking with Pennsylvania Republican Senator Arlen Specter at a town meeting (boldface added):

Thank you, Sen. Specter

I had the opportunity to speak to U.S. Sen. Arlen Specter at his recent town meeting in Northeast Philadelphia. During the question-and-answer section, I identified myself along with my friend, Cookie Catinella, as officers of Parents Against the Draft.

I asked the senator about the prospect of a draft in the future. He was adamant that there will be no draft and eloquently explained to everyone why it was important that we finish up in Iraq, what our future plans are, and why there will be no draft or any need for one.

We found Sen. Specter very knowledgeable and want to thank him for addressing and explaining this very complicated and troubling issue.

But someone, we wonder who, somehow managed to get Ms. Cocco properly fearful again just in time for CBS News' broadcast.  Now I wonder who that could have been?

Meanwhile, here, by the way, are Lexis-Nexis transcripts of the CBS News broadcasts as they aired on Tuesday night's evening program and this morning's CBS News broadcast.  No mention there about corresponding with congressmen or cross-examining senators, nosireebob.

Finally, I wonder if Newsday columnist Marie Cocco — author of this August 2nd piece headlined "Kerry eyes disillusioned GOPers: The Democratic nominee hopes to find support among Republicans upset with Bush" (reprinted in WaPo on August 4th), a bunch of other anti-Dubya op-eds (including one from April 27th that accused Bush, pre-SwiftVets, of "smearing Kerry's war record"), and who's also flacked for John Kerry's claims about the so-called "back-door draft" on Chris Matthews' Hardball — might be related to Ms. Beverly Cocco?  [Update: Apparently there's no relation; see update below. — Beldar.]

Update (Wed Sep 29 @11:50pm): In an earlier version of this post that was only up for a few minutes while I was fixing broken links, proof-reading, and such, I quoted from some Congressional Record pages that I thought were Rep. Hoeffel's statements on the House floor, raising the likelihood of the return of conscription, because I'd seen them posted on his congressional website.  After studying those quotes more carefully from the full .pdf files from the Congressional Record, however, I've concluded that although Rep. Hoeffel spoke during the same sessions in July and September, and has elsewhere, like Sen. Kerry, spoken out against the so-called "back-door draft," the particular lines I originally quoted were instead from Rep. Ted Strickland (D-OH), so I've removed those quotations from the post.  Mea culpa; I hope Rep. Hoeffel will stick with his position as of his July 1 letter to the editor, and I encourage him to discourage his colleagues like Mr. Strickland from threatening/promising the return of the draft if Dubya's re-elected.

Update (Thu Sep 30 @ 3:55am): Turns out that Rep. Hoeffel's anti-draft position hasn't made much of a splash since July 1st.  Libertarian Party nominee Elisabeth "Betsy" Summers announced her bid for Sen. Specter's seat on August 17th, and claims that she's the "only anti-war anti-draft candidate running." 

Gosh, perhaps Rep. Hoeffel should respond immediately and forcefully to this!  Maybe he oughta reprint his July 1 letter to the editor on his campaign website, since it turns up zero Google search hits for "draft," "conscription," or "163," and all the references to "draft" on his congressional website were made by other Democratic congressmen!  Unless — oh double-gosh, you don't suppose he'd rather (yes, pun intended) just let the fear-mongering run amok?  Geepers-golly, that would be sorta cynical, wouldn't it? When grilled by Ms. Summers at one of his own rallies, Rep. Hoeffel was quoted as saying "You're smart, because you're using my event to get some publicity." But Rep. Hoeffel said he would support Ms. Summers' "participation in any debates leading up to the Nov. 2 election."  So in this merry dance involving Ms. Cocco, Rep. Hoeffel, and Ms. Summers, who exactly is using whom?

Update (Thu Sep 30 @ 4:50am and I'm gonna pay for this tomorrow): Blogger Bill from INDC Journal has a fabulous bit of investigative reporting on the not-so-investigative reporting done by CBS News — an interview with CBS correspondent Richard Schlesinger.  Regarding the whole subject of the draft, Schlesinger admits:

Whether or not there’s any reality to there being a draft, is almost besides the point. Do I think there’s going to be a draft? No. But it's an issue that people are talking about.

Regarding how they found Ms. Cucco:

Long story short, she’s a Republican. When we put the story together, I went looking for a Republican. We worked backwards from the e-mail, that’s how we found her. She told me that she was going to vote for Bush, though she said she may flip-flop.

Sucker (at best)!  But wait, there's more:  Bill also interviews CBS News spokesperson Sandra Genelius, who's typically clueless, and CBS News segment producer Linda Karas, who has this bit of damning idiocy (ellipsis in original from INDC Journal; boldface mine):

I know that she’s affiliated with the group, and what her views are on the draft, and that’s what I was interested in. I was looking for a character that has a personal story that might be affected by the issue. And to be honest, I was looking for a Republican. I e-mailed several groups that deal with this issue, and she was the woman who responded that fit the profile and was the most interesting voice, because this is a woman with two sons ... and she is concerned about the issue. If I had some rampant leftist on there, what would you say?

I'd say she's at best a kook and more likely a political activist, of whatever political stripe, whose activism CBS News knowingly concealed.  Suh-weet!  From their own mouths, the admission that they were on notice — and hence not acting in good faith — yet again.  Read the whole beautifully ugly thing!

Update (Thu Sep 30 @ 5:15am):  A quick note of caution:  In reading some of the stuff that's ricocheting through the blogosphere right now, I'm seeing all sorts of takes on Ms. Cocco, ranging from (my paraphrases) "she's a stalwart Republican and CBS News made it look like she has doubts about Bush that she really doesn't have" to "her name's listed on a website that is linked to the Communist Party of the USA."  To be absolutely clear:  I don't know what to believe about Ms. Cocco, but assuming that the letters to the editor quoted above are actually from her, that's enough to show that she's no naive soccer-mom; and with what Karas admits in the quotes above, CBS News knew that and concealed it.  As to the CPUSA stuff — whoa, Nellie, be careful there; and make sure you haven't blurred "People Against the Draft" with "Parents Against the Draft" — the former being, apparently, a much larger group that listed Ms. Cocco's contact info on their webpage as "Philadelphia Lancaster/Bucks County affiliate: Parents Against the Draft." 

Update (Thu Sep 30 @ 8:22am): The Ratherbiased.com folks, temporarily blogging courtesy of Rathergate.com, have screenshots proving the "nacht und nebel"/stealth addition to the CBS News website of a disclosure regarding Ms. Cocco's affiliation with "People Against the Draft."  As noted above, I'm not sure whether that's a fair way to describe Ms. Cocco's connection; she does seem to be affiliated with "Parents Against the Draft," and indeed its co-founder.  But whether she and her fellow members of "Parents" knew of possibly unsavory connections that the "People" group may have, or even authorized her name to be listed on the "People" website, hasn't yet been established.  Regardless, the fact that she is an active participant in some sort of grass-roots activist organization clearly was known to CBS News before they ran their broadcast portraying her as an average (Republican) soccer mom, and the stealth edit to their webpage is both a tacit admission that they should have disclosed that critical contextual information to begin with, and further evidence in itself of CBS News' utter lack of candor, good faith, and respect for journalistic ethics.

Update (Thu Sep 30 @ 10:20am): Via a very polite and prompt email reply to my inquiry, columnist Marie Cocco advises that she's not, to her knowledge, related to Beverly Cocco.  Some odd coincidences really are just odd coincidences.

NYT corrects; Beldar takes a bow

I probably wasn't the only one to send NYT public editor Daniel Okrent a few link-filled emails.  But I sent my share, and had blogged about it, and hence was pleased to see this correction (warning: link probably won't last long, it seems to be a changing-content page) today:

• An article on Thursday about political advertising in the presidential campaign, including a commercial that accused John Kerry of having "secretly met with the enemy'' in Paris in the 1970's, misidentified the parties with whom Mr. Kerry said he had met at the Vietnam peace talks. (The error was repeated in articles on Friday and Saturday.) The parties were the two Communist delegations — North Vietnam and the Vietcong's Provisional Revolutionary Government — with whom he discussed the status of war prisoners. He did not say he had met with "both sides." (Go to Sept. 23 Article), (Go to Sept. 24 Article), (Go to Sept. 25 Article)

Okay, three NYT stories repeating this mistake, versus one paragraph in the corrections.  By NYT standards, that's progress, I guess — but still awfully sad.  Shouldn't the NYT maybe run a text version of the sixth SwiftVets ad for free, to balance things out?  And where's the hard-hitting NYT investigative journalists' piece on Kerry's later trip(s) to meet with the enemy in Paris, eh?  (Yeah, I sent them the links to get them started on that, too, but I suspect my email has been lost in the pajama filter.)

Update (Wed Sep 29 @ 8:45pm): After further review, I've noted that the NYT has corrected the online version of the three articles to add the text of the correction paragraph at the bottom of each, and a conspicuous reference to the correction at the top of each; hopefully they'll go that way into the Times' own archives and Lexis-Nexis versions.

No kin o' mine

Jim Geraghty reports on Florida voter fraud involving the mayor of Orlando.  I'm not licensed to practice in Florida, but I'd gladly pay a Florida lawyer's fee to get said mayor a legal name change.

CBS News spreads more partisan lies, this time about the draft

By the time I graduated from high school in May 1975 — a month after the last choppers left the American embassy in Saigon — they were still running the birthdates lottery each year, but had long since stopped calling up young men, so I never had any worries about being drafted. 

However, I've got four kids of my own now, and my oldest, Kevin, will turn 17 in November.  So I think I can claim to have about as personal an interest in the possibilities for a revival of the draft as anyone not currently draft age.  Do I, therefore, identify with the subject of this CBS News article (which parallels one of their broadcasts this week)?

Beverly Cocco has spent most of her life protecting children in Philadelphia.

She spends most of her time worrying about other people's kids. But as Election Day approaches, it's her own two grown sons who Beverly is most worried about.

"I go to bed every night and I pray and I actually get sick to my stomach," she says. "I'm very worried; I'm scared. I'm absolutely scared; I'm petrified."

Beverly is petrified about a military draft — and she's not alone. There's an undercurrent of anxiety; mass e-mails are circulating among parents worried their kids could be called up.

"I think there's a good possibility," Beverly says.

No.  I don't much identify with Ms. Cocco.  In the first place, I already knew, as CBS News' report immediately goes on to say, that

neither President Bush, nor Sen. John Kerry has said he will re-institute the draft. In fact they both say they won't.

Nor am I of the type likely to be misled and frightened by — and that is exactly the purpose and intended effect of — the email and inuendo campaign that CBS News' report mentions, but disingenuously fails to identify a source for.  Yes, both candidates are against the draft; but one of them knows damn good and well that his own partisans are behind that fear campaign, and has done little or nothing to stop it.

In fact, even before I first read about the email scare campaign on Betsy's Page back on September 21st, I knew full well that the chances of the draft being reinstated in the United States were slim-to-none, regardless of what either presidential candidate may say, because I already knew what America's post-Vietnam military experiences, through and including the wars in Afghanistan and Iraq, have demonstrated to everyone who's paid any attention to them, especially including the military's own leaders.  To understand why, you can start with a splendid book by the general who led us through major combat operations in both of those wars, Tommy Frank's American Soldier (the next edition of which will, I'm sure, included on its back cover a reference to its coveted five-star rating on BeldarBlog's sidebar).  That book will take you through the astonishing transformation of the American military from Vietnam through today, and leave you with no doubts about why the amazingly professional, well-trained, high-tech, and joint-acting American military of this century is extremely unlikely to revert to conscription.

There's no shortage of other sources to debunk this rumor — Factcheck.org being one that does so fairly comprehensively.

But as it turns out — and as we should have expected, given the source of this story as it roared into the mainstream media — Ms. Coco almost certainly knew better, too, since she's not quite the ordinary soccer-mom and uninvolved-but-likely-Bush-voter described in CBS News' broadcast, but instead (as they've just added a stealth disclosure on their website version of the story to at least partly reveal) the local chapter leader of an organization dedicated to spreading this hysteria on a national basis.  [Yeah, she knew better — see new post above. — Beldar]

CBS News has again willingly propagated another ugly, partisan hoax.  Rathergate.com, Little Green Footballs, RatherBiased.com, Power Line, Hugh Hewitt, Catherine With a C, and many other blogs are on top of this.  I don't have anything new or original to add, nor much capacity left to be shocked by CBS News' sorry abuse of the public trust. 

Update (Wed Sep 29 @ 10:51pm):  The update previously here has been moved to a new post of its own, just above.

Update (Thu Sep 30 @ 5:45am):  I've deleted a couple of sentences from the end of this post, one of which repeated Mr. Cocco's email address; even though it is on the net elsewhere, I'm not urging folks to contact her directly at this point.  The other sentence urged folks to let their CBS affiliates know of their feelings, but just didn't fit gramatically any more; I still think that's a good idea.

Seventh SwiftVets ad features POWs' wives

John Kerry's antiwar activism had a devastating and foreseeable effect on the American POWs who were still being held in Vietnam while he was condemning the American military as war criminals.  It also affected the families of those POWs.  The just-released seventh SwiftVets' ad, offers evidence of the collateral consequences of Kerry's actions on two wives of POWs (who've also been featured in the parallel Stolen Honor campaign).

John Kerry: Lapsed lawyer of little legal luster

I began doing the research for this post on the assumption that John Kerry and I have something in common — that we are both experienced trial lawyers. 

I ended that research having concluded that John Kerry's claims to be an accomplished trial lawyer and top prosecutor are almost certainly more overstated than his claims to have been a great war hero — and that for at least the past eight years and probably longer, he'd have been committing a crime himself if he'd actually tried to represent any client in any court.

I. Kerry's campaign rhetoric:  "Top prosecutor"
will be tough on crime, but fight for rights

A Google search on John Kerry's campaign website for the word "prosecutor" returns sixty-three hits.  For example, from his official biography page:

Later, John Kerry accepted another tour of duty — to serve in America's communities. After graduating from Boston College Law School in 1976, John Kerry went to work as a top prosecutor in Middlesex County, Massachusetts. He took on organized crime and put behind bars "one of the state's most notorious gangsters, the number two organized crime figure in New England." He fought for victims' rights and created programs for rape counseling.

From his webpage on civil rights:

As a former prosecutor, John Kerry also knows the importance of strong law enforcement and a judicial system that upholds the hard-won rights of all Americans....

As a former prosecutor, John Kerry knows that racial profiling is nothing more than ineffective law enforcement and must be prohibited.

On his metropolitan agenda webpage:

As a former prosecutor, John Kerry is committed to vigorous prosecution and punishment of violent criminals.

From his "Women for Kerry-Edwards" webpage:

As a prosecutor, his first conviction of a felon put a rapist behind bars ....

On his "Lawyers for Kerry-Edwards" page:

John Kerry has always been tough on crime. As a prosecutor for one of America's largest counties, he prosecuted a murderer, a rapist and a mob boss. As an assistant District Attorney, he transformed one of the largest and most active District Attorney's offices in the nation into an efficient crime-fighting organization. He started a white-collar crime unit, a program for fast-tracking violent crimes to trial, and a victim's rights unit that was the first of its kind in Massachusetts and one of the first in the nation.

And from a speech on September 9, 2004, to the National Baptist Convention, as reprinted on his website:

You know, I used to be a prosecutor.  I sent criminals to jail for murder and rape for the rest of their lives.

No wonder the Dems thought Kerry would innoculate their party from any "soft on crime/mollycoddling liberals" charges, eh?  I'm somewhat surprised that Sen. Kerry hasn't volunteered to personally prosecute Osama bin Laden, when and if he's caught, to bring these credentials into use on foreign policy issues as well. 

II.  Kerry's law school record, 1973-1976

Noticeably missing from Sen. Kerry's campaign website, however — and indeed, from his entry in the West Legal Directory and the public domain generally — are any details about his law school record, other than that he graduated with the standard law degree, a J.D. (Doctor of Jurisprudence — despite its title, not an advanced law degree) in 1976.  As I've written before, I don't fault Kerry for having attended Boston College, which is a fine law school, albeit one that lacks the national prominence of its local rival Harvard or Kerry's undergraduate institution, Yale.  Wisconsin Law Professor and blogger Ann Althouse has speculated that, given that he was "a law school applicant with extraordinary plus factors, the money to go to any school he wanted, and a history of choosing elite, prestige institutions," Kerry's attendance at Boston College Law School

raises the inference — for reasons detailed in my earlier posts — that his undergraduate record and his LSAT weren't very good, which is evidence that he isn't as smart as he's been made out to be.

I've not been able to find any references to Kerry's test scores or grades, either as an undergraduate or as a law student, but we can reasonably infer from the absence of any "cum laude"-type designations or other listings of academic honors that whatever his class rank was, he wasn't at or very near the top at either Yale College or Boston College Law School.  Michael Kranish et al.'s John F. Kerry: The Complete Biography By The Boston Globe Reporters Who Know Him Best reports (at page 166) that in his third year of law school, Kerry did serve as an "outstanding member" on his school's national moot court team.  Certainly participation in moot court competition (like Kerry's participation in Yale's debate team) can be valuable and practical training for a lawyer-to-be; while a legitimate résumé credential, however, it is not an academic honor, as would have been selection to the Order of the Coif (a ceremonial organization) or the Boston College Law Review (or perhaps one of the other student-run scholarly journals at that school).

From the date of Sen. Kerry's admission to the Massachusetts bar — December 29, 1976 — we can infer that he probably took the summer bar exam after his graduation and passed it on his first attempt.  (The current overall pass rate for that exam is 72 percent; although I can't find data for 1976, if it's like most states' bar exams, the pass rate then was probably higher.)

On the whole, however, Sen. Kerry's undergraduate and law school academic record cannot help but remind me of the old joke from a slightly different context:  Q: D'ya know what they call the guy who finishes last in his class at medical school?  A: "Doctor!"  (The legal equivalent of the joke has the answer as "Your Honor!")

III. Kerry's track record as a prosecutor, 1977-1979

Certainly Sen. Kerry's website gives the impression that he spent years and years of fighting for victims' rights and locking away the badguys.  That's true — if by "years and years" you mean some number less than three.  Kerry was a licensed practitioner and prosecutor from December 29, 1976, through sometime in the early spring of 1979.

I suppose you could count the months Kerry spent while working in the prosecutor's office after graduation and before his bar results came in.  You might even count the months he as a "student prosecutor" while still a third-year law student at Boston College Law School.  According to the Kranish biography (at page 167), while still in school, Kerry

handled minor cases before juries of six, winning all of the twenty-five to thirty cases he prosecuted....  "I'm glad to say I never lost a case in Middlesex [County]," Kerry said.

Wow, that's an impressive conviction rate, isn't it?  Certainly it is!  At least until you consider that they were, by definition, minor misdemeanors — probably traffic tickets, maybe littering — in which the defendants most likely didn't have lawyers.

Well, so he at least must have wracked up the trials once he got his license and became a "real" prosecutor, didn't he?  Says the Boston Globe:

After joining the staff of aging District Attorney John J. Droney, Kerry moved with Julia to Newton, nearer the East Cambridge office. On New Year's Eve 1976, the couple's second daughter, Vanessa, was born. Less than a month later, Droney promoted Kerry to the position of first assistant, giving him free rein to overhaul the office.

Droney veterans were stunned. Many of his assistants were resentful.

Having been promoted to an administrative position within a month of receiving his license, it seems clear that Kerry wasn't ever a front-line in-the-trenches prosecutor.  Older than average among the other rookies just out of law school, he did already have demonstrated skills before the TV camera — so much so, reports Jeffrey Toobin, writing in a May 2004 article in the New Yorker, that the new prosecutor was quickly dubbed "Live-Shot Kerry."  Kerry became the right-hand man for Droney, an ailing district attorney whom Kerry longed to succeed in office, but who essentially booted Kerry soon after winning re-election in November 1978. 

So how many felony cases did Kerry actually try to a jury?  Kerry's website claims that he "he prosecuted a murderer, a rapist and a mob boss," but I've only been able to confirm the first two.   

Toobin describes Kerry winning a rape conviction against one George Edgerly, who was also convicted of murder and fraud by other prosecutors in different trials.  And WaPo's Dale Russakoff reported in a January 25, 2004, article that Kerry won a murder conviction against "one Dana Monsen, who had stabbed a man to death for impregnating a friend's wife."  Russakoff reports that Mr. Monsen is still in prison, and Toobin reports that Mr. Edgerly is as well, so Sen. Kerry's current claim that as a prosecutor, he "sent criminals to jail for murder and rape for the rest of their lives" may be technically accurate — two being, after all, a plural number of criminals — depending perhaps on how long these two men survive.  (Mr. Edgerly, however, was actually sentenced not to life imprisonment, but to "eighteen to thirty years" for the rape, according to Toobin.)

But as for the current claim that Sen. Kerry "took on organized crime and put behind bars 'one of the state's most notorious gangsters, the number two organized crime figure in New England,'" the Kranish biography tells us (at pp. 174-75):

Another exaggerated claim involved the notorious Somerville pinball extortion case.  A 1982 campaign announcement claimed Kerry prosecuted the case.  Although Kerry did directly oversee the investigation, coaxed reluctant witnesses to testify, and introduced evidence to the grand jury, it was [J. William] Codinha, an assistant DA — not Kerry — who tried the case.  (The same announcement also described Winter as "the number two organized crime boss in New England," though [defendant Howie] Winter[, whom the Kranish book (at page 169) says was "convicted in a scheme to force local businesses to install in their clubs pinball machines owned by a gang associate,"] "was not even 'Number Two' in Greater Boston, much less in New England," the Boston Globe reported.)

Boy, I'll bet that severe crimp in their pinball machine racket brought organized crime in Boston and Greater New England to its knees! 

So what did Kerry do during his stint as a prosecutor?  Per Toobin:

Kerry reached all the way to Washington in order to overhaul the office and, most dramatically, its budget. Under President Carter, the Justice Department was making grants to local prosecutors, and Kerry proved adept at tapping into those funds. "We hired a full-time grant writer, and I got more federal money than any other office in the country," Kerry told me. With the money — a reported $3.8 million — he initiated a raft of new programs: a priority prosecution program that sought to bring violent offenders to trial in less than ninety days; an organized-crime task force; an arson task force.

And according to WaPo's Russakoff:

In two years, the office grew from 27 part-time to 90 full-time prosecutors. More than half of Kerry's new hires were women, and many were young idealists who turned to law as a force for changing government after Watergate.

Of course, one can spin this as needed progress, or one can spin this as bureaucratic bloat; and the truth is probably somewhere in the middle.  How much of what Kerry's said about his effectiveness and efficiency is spin?  The Boston Globe reports:

Kerry's selective account of his achievements in the East Cambridge courthouse, however, exaggerates some accomplishments and omits the excesses of what became a polarized office under his leadership.

"The office was divided," said George E. Murphy, who served as an assistant DA in Middlesex for 20 years and now has his own practice. "There were Kerry people, and there were Droney people."

In listing his accomplishments, Kerry greatly inflates the reduction in the backlog of cases on his watch, an achievement that he has described in more grandiose terms over time.

These days, he often says he wiped out an inventory of 12,000 criminal cases. That's up from a claim in a 1984 Kerry campaign biography of a cut to 228 from 11,000 in 18 months. But in a May 1979 interview with The Sun, Kerry said he engineered a drop to 228 from 3,000 before the backup climbed to about 500. A 1978 Droney reelection advertisement, which Kerry helped write, said the dropoff was from 4,523 cases to 716.

State records for the period show a sharp dropoff in the criminal caseload of every county of the state, led by Middlesex, which was helped by a $250,000 federal grant. The precise figure could not be determined from official reports, however. But they show the entire superior court caseload, including backlog, never exceeded 7,265 during Kerry's tenure.

Kerry said he isn't sure where his figures came from but recalled a concerted effort to clean up a mess. "We adjudicated a number of them, we had to dismiss a whole bunch for lack of evidence, lack of witnesses, people had moved or didn't want to testify," he said. "We went through every case."

Gotta love that royal "we," doncha?  "We" mowed through the cases just like "we" mowed down the VC in Vietnam, I guess.

IV. Kerry's private practice, 1979-1982

Of Kerry's brief tenure in private practice from early 1979, after he left Droney's office, until his election as Michael Dukakis' lieutenant governor in November 1982, Russakoff of WaPo writes:

Kerry & Sragow, the partnership he established with one of his star prosecutors, Roanne Sragow, later a girlfriend, was an instant success, drawing malpractice, personal injury and wrongful death clients to a tony State Street office. A decade had passed since the antiwar veteran had riveted the nation with his testimony before the Senate Foreign Relations Committee.

The questions Kerry grappled with as a lawyer hardly seemed as grand. In one of its more lucrative periods, Kerry & Sragow was representing bald men who had suffered grotesquely unsuccessful hair implants. Lead plaintiff Charles DiPerri, then maitre d' at the exclusive Brookline Country Club, still remembers Kerry holding up color photographs of an oozing sore in DiPerri's scalp and demanding of the jury — in an oddly familiar cadence — "How do you ask a man to work with the public with his scalp in this horrendous condition?" DiPerri was awarded $90,000 in damages.

This does at least explain the Kerry-Edwards ticket's insistence that it has the "best hair," I suppose.

Although he describes at length one high-profile criminal case that Kerry and Sragow undertook to exonerate a man wrongly convicted of murder, Toobin — and Kerry — make clear that she carried the bulk of that work: 

“Roanne was the court-appointed attorney, and I was the helper,” Kerry said. “She did the lion’s share of the work, but that case taught me a lot.”

And Toobin dispels any notion that while in private practice, Kerry was able to use his famous ability to see "nuance" and "principle" to fight for the rights of those on the sharp end of the criminal justice system's stick:

Kerry’s background as a prosecutor made criminal work unappealing to him. "I took a court appointment once in a criminal case, and I realized I just didn’t want the guy out on the street," Kerry told me. "I knew he was guilty. It takes a certain kind of makeup as a lawyer to dedicate yourself to having someone like that out on the street. I know our system says someone has to represent everyone, but I just couldn’t do it. I went to the court and asked them to take me off the case."

To some conservatives, that may seem like a bully good position to take.  To most liberals, and to anyone who believes in the basic premises of the adversary system — and I'd include myself in that second category, having represented, on a pro bono basis, a capital murder defendant through two Fifth Circuit appeals and an intervening habeas trial in federal district court, and having overseen for several years a large Houston law firm's pro bono criminal appellate appointments program — it's hardly a noble position.   Even the one criminal matter on which he assisted Sragow had a selfish political motivation for lawyer Kerry:

The timing of the Reissfelder case was propitious for Kerry. By the summer of 1982, he was running in a Democratic primary for lieutenant governor of Massachusetts, and his efforts on behalf of the wronged inmate were drawing attention in the local press.

I've found no reference to lawyer Kerry ever performing any pro bono work — an ethical obligation of every lawyer, at least in theory.  Perhaps he did so, quietly.  Or perhaps he viewed such work in much the same way that he's later viewed out-of-pocket charitable contributions:

In 1995, Kerry reportedly had a taxable income of $126,179, and made charitable contributions of $0. In 1994, he gave $2,039 to charity. In 1993, the figure was $175. In 1992, it was $820, and in 1991, it was $0.

Nor was there a shortage of high-profile pro bono work for Boston lawyers in 1979-1982.  Kerry could have volunteered for all sorts of civil rights litigation, for instance.  But rather than take on a politically risky cause like school busing and desegregation (a topic that Kerry's ex-brother-in-law and lifelong friend David Thorne recalls Kerry informally debating with Dubya back at Yale, according to page 40 of the Kranish book, and that continued to simmer for many years after its famous 1974 crisis in Boston), it appears that Kerry  was satisfied with his existing civil rights credentials (which, as best I can tell from the Kranish book, at pp. 27-28, consisted of having been friends with the only black teacher, and delivering a since-lost speech entitled "The Plight of the Negro," at St. Paul's prep school, pre-Yale).

Finally, what enduring precedential contributions did John Kerry leave in the law of Massachusetts from his practice there from 1977 to 1982, either as a prosecutor or a lawyer in private practice?  A Lexis-Nexis search of all reported Massachusetts civil and criminal appeals (in a database going back at least through 1972, well before his bar admission) does not find his name among counsel of record on even a single appellate decision. 

V. Kerry from 1983 forward

It's now clear enough to me that unlike his running mate, John Kerry has never been much of a trial lawyer; rather, he's always been a prominent member of the subspecies Lawyerus Politico.  That's well and good, I suppose — except for the fact that he's trying to use his awfully thin credentials as a prosecutor as a basis for his Presidential campaign. 

The natural reaction that Sen. Kerry's supporters will likely have to this post will be to argue George W. Bush's pre-political credentials.  I've written before, at my usual tedious length, about why I'm personally glad that Dubya didn't get into Texas Law School and went instead for a Harvard MBA after finishing up his TANG service.  If you're less impressed than I am with how that MBA and his business experience helped prepare him for his current job, you're welcome to that opinion, of course; Bush should be, and is, running for re-election largely on the basis of how he's done as President, not what he did in 1968-1971 or 1976-1979.

Fairly viewed, of course, John Kerry isn't a career lawyer, but a career politician.  And he's running for the top position in the nation's Executive Branch, not for a seat in its Judicial Branch.  Even though in his career in the U.S. Senate he's been noted more for quasi-prosecutorial investigations than nuts-and-bolts lawmaking, he hasn't, strictly speaking, been engaged in the active practice of law since 1983.  That no doubt explains why Sen. Kerry's membership in the bar of the Commonwealth of Massachusetts is currently on "inactive status."  When I phoned the Massachusetts Board of Bar Overseers today, I was advised that Sen. Kerry's inactive status goes back at least as far as 1996; how much earlier than that, their computerized records would not readily reveal.

So strictly speaking, John Kerry is today a law school graduate, but not a lawyer with an active license to practice in Massachusetts or any other state.  While he could presumably return to active status by filing the appropriate paperwork and paying required fees, nevertheless, as of today, John Kerry would be committing a crime under Massachusetts law were he attempt to appear in court there on behalf of a client.

Of course, the senior senator from Massachusetts, Edward M. Kennedy, is also a career politician and has been a nonpracticing lawyer for many years (having been admitted to the Massachusetts bar in December 1959 and serving only a short time as an assistant district attorney in Suffolk County in 1961 before going into the Senate in 1962).  And yet, Sen. Kennedy has seen fit not only to maintain the active status of his license to practice law in his native state, but has qualified for, and maintained his membership in, the District of Columbia bar. 

I do not suggest that Sen. Kerry has engaged, or is engaging, in the illegal unauthorized practice of law.  But my readers can decide for themselves whether, as a matter of political ethics, it would be appropriate for Sen. Kerry to perhaps footnote all those "prosecutor" references on his website to mention, and likewise reveal in all his speeches, that his law license is and has long been "inactive."

And likewise, I leave it to my readers to draw their own conclusions as to whether Sen. Kerry has a sound basis for claiming that his past law practice as a prosecutor and a private lawyer has fitted him to be President. 

But just speaking as one crusty old trial lawyer — I'm decidedly unimpressed.  I'd pay a small ransom — heck, I'd pay his back bar dues! — for the chance to square off against lawyer Kerry on either side of any case in any courtroom, any time and anywhere.

---------------------

A footnote:  Pondering Sen. Kerry's inactive law license, I can't help but think of Thomas M. Griffith — the current general counsel of Brigham Young University and one of President Bush's stalled nominees to the U.S. Court of Appeals for the Ninth Circuit.  Mr. Griffith's appointment faces strong Democratic opposition in part because he failed to catch a dues-paying oversight by his staff that resulted in a temporary lapse in his license to practice law in the District of Columbia — a lapse that apparently has been remedied retroactively as far as the District is concerned, but that has blocked his reciprocal admission to the bar in Utah and may have doomed his chances for confirmation.  I'm unacquainted with Mr. Griffith and his qualifications for the bench in general, but I must admit that I was surprised and deeply troubled by this report.  I know that my blog's readership includes some former, inactive, and/or nonpracticing lawyers, but I suspect they'd agree with me, and most lawyers of any stripe, that one's bar status is not to be taken lightly. 

Dismantling terrorist enclaves

Pithy wisdom from The Belmont Club:

Without the infrastrastructure of a state sponsor, terrorism is limited to cells of about 100 members in size in order to maintain security. In the context of the current campaign in Iraq, the strategic importance of places like Falluja or "holy places" is that their enclave nature allows terrorists to grow out their networks to a larger and more potent size. Without those sanctuaries, they would be small, clandestine hunted bands. The argument that dismantling terrorist enclaves makes "America less safe than it should be in a dangerous world" inverts the logic. It is allowing the growth of terrorist enclaves that puts everyone at risk in an otherwise safe world.

As usual, Wretchard has oodles of details and links to back this up.

The two most flattering photographs ever taken of John F. Kerry

I've published (and will probably continue to publish) mocking photographs of Sen. John Forbes Kerry.  But in this post, you'll see what I believe to be the two most flattering pictures of him ever made. 

The first is famous and has been widely seen:  It's on Sen. Kerry's campaign website, for instance, and on the cover of Douglas Brinkley's Tour of Duty: John Kerry and the Vietnam War, and shows Kerry in his Navy dress whites, receiving one of his medals:

The second photograph is comparatively obscure, although it appeared (without the cropping I've imposed here) in Kerry's 1971 book The New Soldier:

Scot Lehigh's Boston Globe op-ed from April 28, 2004, describes this second photo thusly:

The photograph shows a man sitting hunched on the lawn near the Capitol, his head bowed. Sitting beside him is a woman.

The picture, in "The New Soldier," a book of photographs and essays about the April 1971 antiwar protest in Washington, is of John Kerry.

The woman comforting him is Julia Thorne, Kerry's first wife. The photograph was taken just minutes after veterans tossed their war decorations over a wood-and-wire fence erected to keep protesters off the Capitol steps.

Kerry was overcome with emotion at the time. Both David Thorne, Julia's brother and one of Kerry's best friends, and George Butler, the documentary filmmaker [and another of Kerry's lifelong friends since Yale] who took the picture, recall him being in tears. He had come to Washington to try to wake America up about the Vietnam War, and he had returned ribbons commemorating war heroism [that] he was proud of [in order] to make a statement.

My blogospheric friend the Carnivorous Conservative points out that Ms. Thorne knew in advance of young Kerry's plan to throw his (or someone's) medals (and/or ribbons) over the Capitol fence, having told of the plan while lunching "one day in 1971 at the Italian Embassy with a group of elegant Washington women."

In the years since 1971, Kerry has grown defensive over this "return" of his medals — a highly publicized symbolic act that has been used by his opponents in many of his previous political races, and now again (as I've previously written about) in the fourth and fifth of the SwiftVets' ads.  I continue to believe that he has good reason to be defensive — that the symbolic act, though sincere and heartfelt, was profoundly foolish and offensive.  That it provoked young Kerry at the time to tears, and to seek comfort in his young bride's arms, however, actually speaks better of him to me than anything he has said or done since, although I don't know whether his mix of powerful emotions then included any shame or regret.  Michael Kranish et al.'s biography of Kerry tells us (at page 127) that just "days earlier, Kerry had been quoted in the Washington Post as expressing distaste over 'medals for nothing.'"  But the sight of Kerry weeping seems rather more consistent with the look of pride on Kerry's face in the first picture than such a cynical statement by him, even then, would suggest.

I'm not suggesting now that candidate Kerry should contrive an "Edmund Muskie moment."  Not everyone would react to this old picture with the same degree of sympathy that columnist Lehigh did in his above-quoted op-ed.  John Kerry continues to strike me as, on the whole, a particularly unsympathetic person.  But I will allow that this obscure second picture strikes a sympathetic chord in me.  It makes it all the more a pity that as he's aged and progressed through his political career, John Kerry has done so little to apologize to others, or redeem himself, for the symbolic act that brought him to tears in this second, obscure photograph, and so little to justify the honor that was being conferred upon him in the first, more famous one.

Needs a snarky caption (sports edition)

This is actually not a photograph from Sen. Kerry's preparations from the upcoming presidential debates:

But even with no Photoshopping, it does have many possibilities for imaginative captioning.

Josh Marshall's history PhD seems wasted

As today's New York Times Magazine has helpfully reminded us, liberal blogger Joshua Micah Marshall is capable of writing "like every other overeducated journalist," referring no doubt to his PhD in American history from Brown University.  But as the Times also notes, as a blogger, Dr. Marshall "has become an irate spitter of well-crafted vitriol aimed at the president."  A current example of how all of Dr. Marshall's learning and education is overwhelmed by his instinct for partisan snark:

Don Rumsfeld said yesterday that elections in "three-quarters or four-fifths of" Iraq might be good enough.

In other words, run the place on Florida rules.

Partisan snark is fine — I'm both a fan and a practitioner — but I'm amazed that Dr. Marshall can't (or won't) recall a more apt comparison from American history (boldface mine):

We can not have free government without elections; and if the rebellion could force us to forego, or postpone a national election it might fairly claim to have already conquered and ruined us. The strife of the election is but human-nature practically applied to the facts of the case. What has occurred in this case, must ever recur in similar cases. Human-nature will not change. In any future great national trial, compared with the men of this, we shall have as weak, and as strong; as silly and as wise; as bad and good. Let us, therefore, study the incidents of this, as philosophy to learn wisdom from, and none of them as wrongs to be revenged.

But the election, along with its incidental, and undesirable strife, has done good too. It has demonstrated that a people's government can sustain a national election, in the midst of a great civil war. Until now it has not been known to the world that this was a possibility....

The speaker?  Abraham Lincoln, on November 10, 1864, after an historically pivotal election, conducted in the midst of a civil war, that determined the fate of a nation — ours.  Lincoln won with 212 electoral votes, as against 21 for McClellan.  But fully 80 electoral votes — just over one-third of the national total — were never cast because, of course, they represented votes from states then in rebellion against the Union.

Lincoln was right, of course, that the "incidents" of the 1864 election were "philosophy to learn wisdom from"; Dr. Marshall, by contrast, seems fixed on perceived "wrongs to be revenged," to the exclusion of wisdom.

Help CBS News' Rathergate rogues line up for the scaffold

While driving the other night, I was listening to the fourth movement of Hector Berlioz' Symphonie Fantastique — an old favorite that I'd performed (in a transcription for military band) with the Longhorn Concert Band while I was in college.  This symphony is perhaps the most famous example of romantic "program music": 

Under the influence of opium (in the 1855 version), a young and sensitive artist (Berlioz himself), experiences a series of visions — the different movements of the symphony — in which his beloved figures as a theme, the idée fixe, which recurs in every movement, though each time in a different form.

The fourth movement, called "Marche au supplice," contains a rousing, self-confident, and indeed arrogant march — quintessentially French, and featuring the wonderfully ominous, repeated thirteen-stroke drumrolls of a public execution.  It was written to portray "the artist, led to execution for murdering his beloved," strutting defiantly along despite his impending and well-deserved doom.  Only after mounting the scaffold does he remember his beloved, however — represented by a short, sad solo clarinet passage sounding his beloved's theme — and then "the melody is abruptly cut off by the fall of the guillotine and the concluding uproar." 

Now why did this wonderfully evocative music make me suddenly think of — Dan Rather?

Today's Los Angeles Times includes an article by staff writer Elizabeth Jensen headlined "From a Who Did It to a Who'll Get It," with this subhead: "With careers in jeopardy, 'the knives have come out' at CBS News. Rather's job seems safe, but he's fighting to keep it." 

I suspect that my blogospheric friend Professor Stephen Bainbridge must have spat out a mouthful of excellent wine when he read these paragraphs:

And for conspiracy theorists who have speculated — with no proof — that Republican tricksters are behind the possibly fake documents, Thornburgh has a connection to Karl Rove, a longtime Bush strategist.

Rove, who denied this week to the Washington Times that he had anything to do with the documents falling into CBS' hands, worked on Thornburgh's unsuccessful campaign for a Pennsylvania Senate seat in 1991.

Well, yes, Rove and Thornburgh do indeed have a "connection" — one that ended up with Rove successfully suing the former Attorney General and winning a judgment for an unpaid $170,000 consulting fee (presumably plus costs, interest, and attorneys' fees).  As Professor Bainbridge has pointed out,

By all accounts, Thornburgh is an upright guy, so I'm inclined to give him the benefit of the doubt. It doesn't change the fact, however, that he has a perceived conflict of interest that will forever call into question his impartiality. CBS would have been better served to find somebody with no such [anti-Rove] taint.

(Personally, I'm satisfied with Thornburgh's appointment, and applaud CBS News for picking someone with the stature of a former Attorney General as the legal representative for the inquiry.  Let's just be glad that they didn't pick Ramsey Clark.)

The LAT article provides yet more information about who inside CBS News was involved in the Ra^thergate fiasco, and in what degree:

Whether or not Thornburgh is predisposed to blame Rather or CBS for the report, many inside the network nonetheless are questioning why Heyward was allowed to choose the panel along with CBS Chairman Leslie Moonves. [CBS News president Andrew] Heyward, they argued, could just as well end up taking the blame for oversight procedures that might have gone wrong in the reporting of the story.

How deeply Heyward got involved was unclear.

Rather, in an interview Monday with the Los Angeles Times, said it was difficult to pinpoint blame for the lapses, "given the number of people involved in this, directly involved in the news-gathering, vetting and approving."

"There were a lot of people, including myself," Rather said.

The New York Times reported that Rather had said he had specifically asked Heyward to have hands-on involvement in the story from the beginning.

Other executives have said Heyward wasn't present at any of the meetings where the decisions were made about whether to use the documents, with Betsy West, the division's senior vice president, overseeing the process instead. Genelius said that Heyward would have no comment.

"Dan and Andrew speak several times a day every day," Genelius said. "It is not contentious, and both of them are looking forward to having the panel report its findings. There will be full cooperation."

Friends and neighbors, the Ra^thergate scandal surpasses any previous shoddy episode in the history of American journalism.  NBC's "Dateline" making a GM pickup truck explode as a special-effects presentation wasn't remotely as wicked and corrupt, yet as NRO's Byron York reminds us, that scandal resulted in the forced departure of everyone from NBC News president Michael Gartner on down through the story's  executive producer, senior producer, segment producer, and on-air reporter.

The LAT article concludes by noting that

Rather's future may end up determined less by the outcome of the report than by the reaction of CBS' affiliates around the country, some of which have been urging CBS to make a change for some time in order to boost its third-place ratings.

A number of affiliates this week reported being inundated with calls and e-mails advocating getting rid of Rather, many of them the result of an organized campaign.

Oh yes, let's continue to nudge the affiliates.  You can write a free, uniquely personalized email to all of the roughly 200 CBS affiliates via this handy link at Rathergate.com.  Yes, the campaign is organized, but the specific message will be yours.

Strike up the Berlioz, I say!  Mr. Rather, that short, plaintive clarinet solo was your one-time beloved, the Muse of Journalistic Truth — and you and your cohort murdered her.  On to the scaffold with you all, I demand!  And let the guillotine do its bloody, very necessary work!

Republican congressional candidate compares opponent to Dan Rather

I don't know much about Texas Republican congressional candidate Louie Gohmert, but I'm hugely amused at his latest TV ad in his campaign against Democratic incumbent Max Sandlin:  "Seen  Max Sandlin's negative ads?  They've got more holes than a CBS News story by Dan Rather ...."   Per ABC News,

CBS spokeswoman Sandy Genelius said Friday the network would not comment on the ad....

Jim Dow, a spokesman for Sandlin, said the ad is "a juvenile and invalid comparison that folks don't really care about anyway. Voters in East Texas care about jobs, health care and integrity, not Dan Rather."

That's not exactly a ringing defense of Dan Rather from Congressman Sandlin, is it?  His spokesman did have the chutzpah to use the words "integrity" and "Dan Rather" in the same sentence, but as an example of contrasting concepts.  (Hat-tip Rathergate.)

Oh, what lawyer shall sue CBS on Burkett's behalf?

Tucked away on page A8 of today's WaPo is an article by Michael Dobbs entitled "Source for Rather Seeks New Lawyer, Might Sue CBS." 

Mr. Dobbs reports that CBS News' Ra^thergate source Bill Burkett is no longer being represented by attorney David Van Os, who "bowed out because he was involved in the initial negotiations with CBS and feels a conflict of interest."  Leaving aside any arguable appearance of impropriety from Mr. Van Os' heavy involvement in Texas Democratic Party politics and current candidacy for the Texas Supreme Court, Mr. Van Os certainly made the right decision if only based on the likelihood that he would be a material fact witness in any defamation case brought by Mr. Burkett (albeit one whose testimony might in significant part be shielded by his continuing attorney-client privilege obligations to his former client).

As for Mr. Burkett's current counsel,

[Gabe] Quintanilla said he is suffering from severe back problems and cannot handle the deluge of calls and messages in an incident that, he said, has generated more conspiracy theories than the "grassy knoll" did in the assassination of President John F. Kennedy.

A third lawyer, Lin Wood of Atlanta, who represented former Olympic Games security guard Richard Jewell in a successful defamation suit against several news organizations, said yesterday that he had declined a request from Quintanilla to take the Burkett case. Wood pleaded "time constraints" as well as his "high regard for CBS News."

"It appears highly questionable that he has a legitimate defamation claim" against CBS, said Wood, noting that his opinion was based on news reports about the case rather than privileged information. 

Texas, of course, is home to hundreds and hundreds of lawyers, including some of the most high-profile contingent-fee lawyers in the country, and it seems likely that Mr. Burkett may seek counsel who'd undertake his representation on that basis.  Although their terms are variable and subject to negotiation, such fee arrangements oftentimes include provisions under which the lawyer not only invests his time, but also the out-of-pocket expenses of litigation, with the hope of being repaid for either only out of whatever money is eventually recovered by way of judgment or settlement.  In contemplating the possibility of undertaking Mr. Burkett's representation, a prudent lawyer would assume that the case will require heavy investments of both time and money. 

Moreover, regardless of the results of CBS News' pending self-investigation, CBS News can be expected to defend itself tenaciously against any claim that it has harmed Mr. Burkett or his reputation.  That CBS News' performance in this debacle may have made it a journalistic disgrace and a national laughingstock does not make it an easy mark for a defamation case from one in Mr. Burkett's position.

And Mr. Burkett, intentionally or not, has made himself into a "public figure" at least since his allegations last spring about the purported systematic destruction of President Bush's military records from the Texas Air National Guard — meaning that to prevail against CBS News, he and his counsel would have to overcome the formidable "actual malice" hurdle imposed by New York Times Co. v. Sullivan. 

I think that a very strong case could be made by another potential defamation plaintiff — George W. Bush — that with respect to him, CBS News acted with both subjective malice and objectively reckless disregard for the falsity of its statements about him in particular.  For a variety of reasons, however, the principal target of CBS News' broadcasts is the least likely person to sue.  (Expert witnesses Linda James and Emily Will, retired Col. Buck Staudt, or other supporting members of the dramatis personae in CBS News' tragic comedy of errors are differently situated, and might have more attractive claims than Mr. Burkett.)

But from what's in the public domain now, I see little basis for supposing that a plausible case of "actual malice" could be made for CBS News' statements about Mr. Burkett.  Nor is it immediately obvious what, if anything, that CBS News has said about Mr. Burkett is false, and his reputation was hardly unsullied even before this fall's scandal regarding the forged Killian documents.  And Mr. Burkett's other possible claims besides those sounding in defamation law (and its offshoots, like "false light depiction") — invasion of privacy? breach of contract? — look no more promising to me than his potential defamation claims.

Mr. Burkett does have, of course, the alternative of retaining counsel on a regular hourly-rate plus expenses basis.  But those costs are likely to run into the tens and even hundreds of thousands of dollars in fairly short order in a case like this one.  Moreover, any legal team representing Mr. Burkett would be wise to include among its members someone with substantial expertise in criminal law — and such lawyers don't typically work on a contingent fee basis.

Representing Mr. Burkett would certainly confer collateral publicity on whatever lawyer undertook to represent him.  One must wonder, however, whether that publicity would be positive or negative.  And the bridges between Mr. Burkett and his former political soulmates on the Democratic side of the aisle seem to have been fairly crisply burnt by this point — with the fires having been lit from both sides roughly simultaneously.  The prospects of Mr. Burkett finding counsel to represent him on a pro bono publico basis seem remote.

Perhaps some prominent, clever, and entrepreneurial lawyer will see an angle that I'm missing and step forward as Mr. Burkett's champion.  But it's not hard to see why lawyers aren't swarming his porch with contingent fee contracts in hand at the moment.  Both opponents and supporters of the contingent fee system agree that it is driven, for better and sometimes for worse, by simple market economics as those principles intersect with the lawyer-participants' assessment of potentially valuable claims.  If it turns out that Mr. Burkett can't find counsel, that may reflect nothing more than a consensus among knowledgeable lawyer profit-maximizers that his claim is ultimately not worth filing.

A challenge to those who claim that the SwiftVets' allegations have been "debunked" or are "unsubstantiated"

My lawyer readers will immediately recognize this as an invitation to Kerry supporters to make a motion for partial summary judgment on the SwiftVets' claims.

This short paragraph from a New York Times article perfectly illustrates the liberal media's widespread characterization of the results to date of the SwiftVets' campaign (boldface added):

Swift Boat Veterans for Truth, which drew national attention with advertisements making unsubstantiated attacks against Mr. Kerry's military service, has less money and uses several strategies to stretch its dollars, said one of its leaders, John O'Neill.

To find a similar example from the blogosphere, one need look no farther than Andrew Sullivan's passing dismissal of the SwiftVets' campaign (boldface added):

As word spread, anti-Kerry forces sent in more money to the Swift Boat Veterans for truth website, allowing them to ramp up their ad efforts. And within a few days, the old media was forced to cover the claims extensively — even if much of their coverage amounted to a debunking.

As someone who's followed the SwiftVets' campaign closely — someone who's read Brinkley's Tour of Duty, O'Neill's Unfit for Command, and Kranish et al.'s John F. Kerry: The Complete Biography cover to cover, plus all of the mainstream media reports I could find on the internet and a goodly portion of what's appeared from both political sides of the blogosphere — I'm simply stunned to read these sorts of statements.

I can think of one major SwiftVets allegation on which they've arguably failed to offer more than circumstantial evidence — that Kerry "gamed the system" to get his medals. Kerry's stonewall — his refusal to sign Standard Form 180 and thereby release the documentation that should, if it exists, reveal still-hidden details like how he came to get his first Purple Heart — has been effective in keeping the SwiftVets from nailing down that point with direct evidence. Yet the circumstantial case is powerful — Kerry's commanding officer at the time, Skip Hibbard, says he refused to approve that Purple Heart in December 1968, yet Kerry showed up with the medal anyway in March 1969 in some as-yet-unexplained fashion.

I can think of other SwiftVets allegations on which there is directly competing evidence that requires the public to draw conclusions. For example, does one credit Adm. Bill Schachte's account of his first-hand knowledge of how Kerry received the trivial wound that led to his first Purple Heart, or does one credit Zaldonis' and Runyan's claims that Schachte wasn't aboard the skimmer? Which of the eyewitnesses does one choose to find credible on the question of whether Kerry was or wasn't under enemy fire when he plucked Rassmann from the Bay Hap River? Other allegations require an exercise of subjective judgment. For example, was Kerry's pursuit and dispatching of a single VC soldier sufficiently valorous to merit his Silver Star?

But on none of these issues I've just listed have the SwiftVets' allegations been "debunked" or proven "unsubstantiated." Andrew Sullivan or the NYT repeating over and over that they have been simply don't make them so. To employ the legal jargon of summary judgment proceedings, a rational factfinder could conclude from the evidence that the SwiftVets have produced on each of these allegations that, indeed, they're true. A trial judge who dismissed these allegations outright, without letting the factfinder (typically a jury) consider them, would certainly be reversed on appeal and told to let the jury do its work. They haven't, in lay terms, been "debunked" — but rather, they're fiercely disputed by competent evidence (some of it eyewitness, some of it circumstantial, some of it documentary).

Hence my challenge for the weekend to my readers — you're probably a minority, as these things go, but I know from my comments pages that you're out there — who may agree with the NYT or Mr. Sullivan:

Can you identify even one specific and material SwiftVets allegation that you believe to have been fully "debunked" or fully proven to be "unsubstantiated"?

Some ground rules for this challenge that I think are not unreasonable:

By "specific," I mean to exclude sweeping conclusions like "John Kerry wasn't as big a hero as he's made out." By material, I mean to exclude trivia like "the VC soldier John Kerry shot was in a uniform instead of in a loincloth." And I ask that if you're to make an honest effort to meet my challenge, you provide quotes and links, both to the SwiftVets' allegations and to the evidence that you offer to show debunking or lack of substantiation.

If you rely on documents — for example, Larry Thurlow's Bronze Star citation as support for the proposition that he and Kerry were under enemy fire after PCF 3 was struck by a mine — then to reach "debunked" status, you ought to show that there are no contrary eyewitness accounts to those documents, nor other contrary documents. Otherwise, you've merely established that a dispute exists — what lawyers would call a "genuine issue of fact" that must be resolved by a judgment call as to which side has the greater weight of the credible evidence.

Saying your side has the greater weight of the evidence isn't "debunking" or showing that something is "unsubstantiated," it's saying that your side ought to ultimately prevail on the factual dispute, and that's a very different kettle of fish. To use a converse example by way of illustration: I would argue that the "Christmas in Cambodia" story repeatedly told by Sen. Kerry has indeed been thoroughly debunked and proved unsubstantiated — that is, there simply is no credible evidence from which any rational factfinder could conclude that Kerry's claim to have spent Christmas 1968 several miles inside Cambodia, under friendly fire and on a secret mission, was truthful.

I of course reserve the right to offer a rebuttal, as will, I'm sure, my like-minded readers. But I'm genuinely curious about this, and will try to summarize the results of this challenge fairly in a new post sometime early next week.

----------------------

Update (Mon Oct 18 @ 10:40am): It's no one's fault in particular unless my own, but the comments to this post have kept coming in. Every time I'd try to take a day to write a summary of the responses to my challenge, in would come four or five new comments. Today I printed out this post to have a hard-copy handy for cross-referencing as I worked on the long-promised summary, and it ran to 154 printed pages. So: By fiat, the challenge is closed. If you have something else to say, you'll need to do it in comments on another post.

Kerry's no Ike

In 1952, the incumbent President was not running for re-election, but the nation seemed bogged down in a frustrating war on the Korean peninsula — one that had see-sawed from near hopelessness around the Pusan pocket, to what might be termed "catastrophic success" after MacArthur's Inchon landing and American troops' advance almost to the Yalu River, to a humiliating retreat from the Chosin Reservoir after Red Chinese troops poured across their borders, and into a bloody stalemate along the 38th Parallel.  America had suffered almost 37,000 KIAs in the first three years of fighting in Korea; the new President would have to decide between withdrawal, continuing the stalemate, escalation (possibly including use of atomic weapons), or some other course of action.

Late in the campaign, on October 24, 1952, the Republican candidate delivered a speech in Detroit that Tom Wicker describes thusly in his 2002 short biography, Dwight D. Eisenhower (bracketed portions, italics, and elipses in original; at page 16):

In earlier years, [Eisenhower] had seemed to support President Truman's "police action" in Korea and also had approved Truman's decision to fire Eisenhower's old boss, General Douglas MacArthur.  Now, however, Eisenhower declared that immediately after the election, he would "concentrate on the job of ending the Korean war.... [T]hat job requires a personal trip to Korea.  I shall make that trip .... I shall go to Korea."

Ike the inexperienced campaigner had made one of the decisive strokes in American political history.  He carefully had not said what he would do about Korea, other than to see the war for himself, thus establishing at the outset his characteristic policy of "keeping his options open."  But from the hero of World War II, less than two weeks before the election, his mere pledge to "go to Korea" all but finished Stevenson and the Democrats.  Even Harry Truman, the old in-fighter in the White House, could only cry "politics" — but to little avail.

Fifty-two years later, the Democratic candidate for President is basing his campaign on the premise that America is again in a bungled military stalemate (despite the vastly shorter timeframe, one-thirty-seventh of the fatal casualties, and absence of a threat that the conflict will escalate into global nuclear war).  Like Eisenhower, John Kerry asks the American public to trust him — essentially on faith — to somehow "fix things."

Americans felt that they knew Dwight David Eisenhower — that they'd seen him tested, and liked what they'd seen, when he commanded Allied forces in Europe in their defeat of Nazi Germany.  He was elected with 55 percent of the popular vote and a 442/89 electoral college margin.  The North Koreans and their Chinese and Russian patrons rapidly backed down from their previous negotiating positions — perhaps because they thought Eisenhower would use nukes, perhaps because they knew he'd never tolerate years of stalemated conventional war — and on July 27, 1953, barely six months after Eisenhower's inauguration, an armistice was signed under the shelter of which South Korea has enjoyed a half-century of peace, liberty, and economic expansion.  Yes, there's still unfinished business on the Korean peninsula today, and the threat posed by the North Koreans is a grave one that will confront whoever wins the 2004 presidential election.  But the enormous trust conferred by the American electorate upon Eisenhower in 1952 would seem, by almost anyone's evaluation today, to have been well justified in hindsight.

The questions today, then, are these:  Do Americans, and does the world, think as highly of John Kerry's resolution and leadership abilities as they did of Dwight Eisenhower's in 1952?  Will our friends feel the same confidence in his word?  Will our enemies feel the same fear of his war-leading abilities?  Has Sen. Kerry earned, by his career accomplishments, the degree of trust that Americans gave Ike to fulfill a vague and open-ended promise of such critical importance?  Like Ike did, Sen. Kerry promises a change in course, without much detail.  American voters were willing to accept that promise, and that lack of detail, from Eisenhower.  But does John Kerry inspire that kind of blind faith, and can it be justified?

To ask that question is very nearly to answer it.  Behind the catchiest slogan in American political history — "I like Ike!" — was a profound and hard-earned trust and admiration.  Eisenhower had already won a war when he asked us to trust him.  He'd masterfully handled one of the most difficult military and political challenges of world history — benefiting, perhaps, from being "misunderestimated" at first, but ultimately winning world-wide respect and admiration.  John Kerry, by contrast, offers up a three-month combat tour as a junior officer that he bailed out of at his first opportunity, plus a consistent senatorial history as an opponent of the use of American military force, an undercutter of its and our intelligence community's strength, and a gratuitous insulter of America's best and most consistent friends abroad.

When John Kerry says, "Trust me and I'll fix things in Iraq and with the Global War on Terror" — what possible basis can you have to give him that trust, other than a faith so blind that it has become genuinely reckless?

Begging for snarky captions

Two-fer!  Sen. Kerry's apparently in a great mood this week, despite his head cold.

The camera just loves this guy, doesn't it?

Bonus points if you can write one snarky caption that fits both pix, but don't let that inhibit your creativity in coming up with separate ones.

Judicial Watch appeals Adm. Route's dismissal of its complaint

The echos haven't faded away, but I think the fat lady has basically already sung on Judicial Watch's challenge to John Kerry's medals.

When I was a law clerk for a judge on the United States Court of Appeals for the Fifth Circuit, one of my regular duties was to review, and advise my judge upon, pending petitions for rehearing en banc.  Then as now, each appeal in the Fifth Circuit was normally heard by a three-judge panel selected at random.  Before asking the US Supreme Court to overturn the Fifth Circuit's ruling, however, the losing side before the three-judge panel had the opportunity to petition the full Fifth Circuit — all of the judges acting collectively, "sitting en banc" — to overturn the panel's decision.  Statistically, the odds of success on a motion for rehearing en banc were slim indeed, but the procedure did give the losing side another "bite at the apple," and their odds of persuading the Supreme Court to even hear their case would be even slimmer.

In one of the most common types of petition for rehearing en banc, the losing side would attack the panel's written decision for failing to address specifically and negate every single argument that the losing side had presented to the three-judge panel.  "We raised thirty-two different points of appeal in our initial brief," these petitions would typically read, "and the panel's written opinion only discusses twenty-seven of those points!"  In the vast majority of cases, however, the unaddressed points — upon closer examination (which was partly my job) — would turn out to have been the weakest arguments anyway.  (Most of the time, in fact, they were arguments that a confident and focused lawyer would have left on his own cutting-room floor to begin with.)  The judges of the Fifth Circuit necessarily operated with a high degree of trust in one another — and their trust included a highly justified working presumption that no serious and substantive argument was likely to have been ignored altogether by all three judges who'd participated in a given panel decision.  Instead, almost all of the cases that were accepted for review by the full Fifth Circuit, sitting en banc, involved serious legal issues that had been squarely and explicitly addressed by the three-judge panel and that, for whatever reason, a majority of the full court believed should be reconsidered.

On Thursday, September 23rd, with an accompanying press release, Judicial Watch filed its appeal from the September 17th decision of the Naval Inspector General, Vice Admiral Ronald A. Route, to dismiss without further investigation Judicial Watch's complaint requesting an investigation into Sen. John Kerry's medals.  It is a competent piece of lawyering, but unfortunately it reads to me all too much like one of the petitions for rehearing en banc that I've described above.  There's a quality of sputtering indignation — "How could Adm. Route have failed to talk about the Combat 'V' on Kerry's Silver Star?!?" and "Where's Adm. Route's citation of regulations to show that Adm. Zumwalt had authority to award one without the Secretary of the Navy's involvement?!?" (my paraphrases, not quotes) — that may indeed have been unavoidable for want of better arguments, but that is still unlikely to be very effective.  There's simply no due process requirement that a decisionmaker address each and every argument made by a litigant/complaintant in the degree of detail that the litigant/complaintant might desire; and the decisionmaker's failure to do so, by itself, is unlikely to impress a reviewing authority who begins with a predisposition to believe that the decisionmaker has given all of those arguments their due consideration.

Judicial Watch was wise to tone down its initial rhetoric — the appeal letter doesn't include the offensive phrase "whitewash," for instance, that Judicial Watch used in their press release immediately after Adm. Route's decision.  And I stress that Adm. Route's decision does not, and ought not, preclude further public argument on these subjects, notwithstanding Adm. Route's refusal to convene a more thorough investigation that would address their merits in a formal proceeding.  But I continue to expect that Secretary of the Navy Gordon R. England is likely to reject Judicial Watch's appeal and affirm Adm. Route's exercise of discretion.

NYT bungles description of Kerry's 1970 Paris meeting, and publishes a Brinkley gaffe

Jodi Wilgoren's article entitled "Truth Be Told, the Vietnam Cross-Fire Hurts Kerry More" on September 24, 2004, in the NYT's Washington/Campaign section, contains this statement:

Mr. Kerry's nemesis, Swift Boat Veterans for Truth, is spending $1.3 million in five swing states with a spot accusing him of meeting with the enemy in Paris — a reference to his trip to the Paris peace talks, where he met with both sides.

As I wrote at considerable length on Tuesday, Kerry didn't meet with "both sides," but rather with representatives of both enemy participants at the Paris peace talks, the North Vietnamese government and the Viet Cong.  Ms. Wilgoren's article is also misleading in referring to this as merely an accusation by the SwiftVets.  It's not a disputed accusation, it's something that Kerry admitted — and arguably, bragged about — in his 1971 testimony before the Fulbright Committee.  And unsurprisingly, the Times continues to ignore the possibility that Kerry made at least one further Paris trip in late 1971, as pro-Kerry antiwar-movement historian Gerald Nicosia continues to insist despite the Kerry campaign's denials.

The same article contains this surprising statement by authorized Kerry biographer Douglas Brinkley:

"Every American now knows that there's something really screwy about George Bush and the National Guard, and they know that John Kerry was not the war hero we thought he was," said Douglas Brinkley, the historian and author of a friendly biography of Mr. Kerry's war years, acknowledging that Mr. Kerry's opponents had succeeded in raising questions about his service.

"It's kind of neutralized itself, just by tiring everybody out," Mr. Brinkley said.

Within hours, the Kerry campaign published a press release from Mr. Brinkley to respin this quote:

Author and historian, Douglas Brinkley, issued the following statement to correct a report by the New York Times today:

"A story in the September 24 New York Times leaves the false impression that I think John Kerry was not 'the war hero we thought he was.' Nothing could be further from the truth. He was a great American fighting man in Vietnam and deserved all of his medals. Over the past year I have vigorously defended Kerry's military record and will continue to do so.

"My comment was meant to be about the political consequences of the anti-Kerry Swift boat attacks vs. the anti-Bush National Guard ones. I was speaking about public perceptions not my personal beliefs."

Paid for by Kerry-Edwards 2004, Inc.

I appreciate the frank attribution on this press release; but it ought to also appear on Brinkley's book, Tour of Duty, and perhaps also be tattooed on Mr. Brinkley's forehead to help keep him in sync with the party line.

Update (Sat Sep 25 @ 2:12am):  Not content to get it wrong once, the NYT repeats its error:

Mr. Kerry has said he visited the Vietnam peace talks and discussed the status of prisoners of war with both sides.

That's not what he said in 1971, and not what he did in 1970.  Apparently the Times recognizes that a junior officer in the Naval Reserves meeting with the nation's enemies (plural) in wartime is hard to spin in a favorable way.  So they're just going to misrepresent the actual facts, repeatedly.  If you disapprove, feel free to email the Times "public editor," Mr. Daniel Okrent (politely, please).

Needs a snarky caption

This is one of the Senator's better recent photos, but still definitely snark-worthy. 

Per Reuters:  "Democratic presidential nominee John Kerry visits with children at the Angel Sprouts Academy daycare center in Orlando, Florida, September 22, 2004." But we can do better than that caption, can't we?

Burkett blames CBS News, Dubya, and the blogosphere

According to CNN, based on its email interview with CBS News' controversial source Bill Burkett, Mr. Burkett blames Dubya for the blogospheric storm over Ra^thergate:

Burkett also accused the White House of using the blog community to launch a "kill the messenger campaign" against him after the documents were made public.

Nor, in Mr. Burkett's view, did CBS News stonewall and bloviate hard enough during the storm:

"The coordinated attacks against the documents, then against me, which CBS did nothing to deflect or defend, and then against Dan Rather and CBS producer Mary Mapes have not been against the validity of the documents, but rather as an attack against anything being considered at all," he said.

But CBS News — truthseekers that they are — did, apparently, actively encourage Mr. Burkett to remain silent and not "out" himself as their source prior to last weekend:

[Burkett's wife,] Nicki Burkett said CBS News "asked us not to respond publicly in our own defense from the time we turned over the documents" until last Saturday, when a network vice president informed them that CBS no longer had any obligation to them.

Does Burkett have a sense of humor?

Burkett also said "the central part of my agreement with CBS was that they use their massive and superlative abilities to authenticate and verify the documents prior to broadcast in order that I and my source not have to be identified."

"CBS came to me, I did not go to them," he said. "It was in no interest of mine to be involved with this. Certainly as a source, I demanded confidentiality both for myself and my source."

Meanwhile, the Fort Worth Star-Telegram's Jack Douglas, in an article distributed by Knight-Ridder, reports from his own interview with Mr. Burkett that he claims not only that CBS News put the Kerry campaign into contact with him, but that Kerry campaign official Joe Lockhart vigorously sought copies of the documents  [update: the strike-throughs above and below are based on the Star-Telegram having issued a correction; see below — Beldar]:

He said, however, that during the meeting in which he gave the memos to CBS, he was also told by a producer that his phone number would be passed on to Kerry adviser Joe Lockhart.

"I was absolutely and clearly told that that was as far as anyone could go without crossing the line of (journalistic) ethics," Burkett said.

During a single phone conversation with Lockhart, Burkett said he suggested a "couple of concepts on what I thought (Kerry) had to do" to beat Bush. In return, he said, Lockhart tried to "convince me as to why I should give them the documents."

In case you've forgotten, on Monday Mr. Lockhart admitted to having called Mr. Burkett at the suggestion of CBS News producer Mary Mapes, but told a different story than Mr. Burkett's telling now:

Earlier, Lockhart said he thanked Burkett for his advice after a three- to four-minute call, and that he does not recall talking to Burkett about Bush's Guard records. "It's baseless to say the Kerry campaign had anything to do with this," he said.

Later, Lockhart said he was sure he had not talked to Burkett about the Guard documents.

And according to the what he told the Star-Telegram's Douglas, Mr. Burkett thinks CBS News is setting him up to be the "fall guy" through artful editing:

Burkett said he agreed to a taped interview with Rather on Monday as suspicion about the memos mounted, putting the network's reputation at stake. He said key portions of the interview were never aired.

"He snipped it apart to cover them," he said. "That's all that that evening news was — to find a fall guy. And it was me."

He added, "By his action and inaction, Dan Rather ruined my reputation in front of 70 million people."

I'm guessing that various dictionaries are competing vigorously over the right to publish Mr. Burkett's picture next to their next editions' entries for the term "loose cannon."  But for tonight, I have nothing else to say on the subject — check with me tomorrow, after I've finished my regular morning videoconference with Karl Rove and gotten my instructions on how to play this.

Update (Fri Sep 24 @5:08pm): The strike-throughs above are based upon the Star-Telegram having today issued a correction to its original story that reads:

This article has been corrected from the version published in the newspaper and online Friday morning to reflect that Bill Burkett was referring to conversations with CBS when he said, "They tried to convince me as to why I should give them the documents." The earlier version incorrectly reported that he had discussed the documents with Joe Lockhart of the Kerry campaign.

I've also changed the original title of this post to remove the ending, "— and disputes Lockhart."

CBS News and Dan Rather did not make a "good faith error"

Every law student learns during his first year of law school a pithy old legal definition of the term "good faith" — "honesty of intention and freedom from circumstances which ought to put the holder upon inquiry." 

It's a term used throughout the law and in many different contexts, but always with both a subjective component, unique to the individual being inquired about and dependent upon his state of mind (honesty), and an objective component, governed not by the individual's state of mind, but by whether a reasonable person in the same circumstances would have been alerted to a problem.

Thus, for instance, Justice Harlan, writing for the United States Supreme Court in an admiralty case, The Kate, 164 U.S. 458, 468 (1896), had occasion to quote Justice Clifford's opinion from an even earlier case, The Lulu, 10 Wall. 192, 202-03, 77 U.S. 192 (1869), on the subjects of "good faith" and the circumstances that prevent it from being claimed as an excuse:

[A] party to a transaction, where his rights are liable to be injuriously affected by notice, cannot willfully shut his eyes to the means of knowledge which he knows are at hand, and thereby escape the consequences which would flow from the notice if it had been actually received; or, in other words, the general rule is that knowledge of such facts and circumstances as are sufficient to put a party upon inquiry, and to show that, if he had exercised due diligence, he would have ascertained the truth of the case, is equivalent to actual notice of the matter in respect to which the inquiry ought to have been made.

If one has ignored red flags in the circumstances that would have alerted a reasonable person to a problem, he cannot thereafter claim to have acted in "good faith."  Nor, of course, can he claim to have acted in "good faith" if he had actual, subjective knowledge of the problem.

From Dan Rather's statement about the use of the forged Killian memos (boldface added):

Now, after extensive additional interviews, I no longer have the confidence in these documents that would allow us to continue vouching for them journalistically. I find we have been misled on the key question of how our source for the documents came into possession of these papers. That, combined with some of the questions that have been raised in public and in the press, leads me to a point where — if I knew then what I know now — I would not have gone ahead with the story as it was aired, and I certainly would not have used the documents in question.

But we did use the documents. We made a mistake in judgment, and for that I am sorry.  It was an error that was made, however, in good faith and in the spirit of trying to carry on a CBS News tradition of investigative reporting without fear or favoritism.

Not only Mr. Rather, but also CBS News itself has repeated this claim of making a "good faith error" (boldface added):

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.

But this was not an error made in good faith — not as that term is known in law, or in journalism, or in common English.  Indeed, a previous version of the Society of Professional Journalist's Code of Ethics noted that "[g]ood faith with the public is the foundation of all worthy journalism," and that "[t]here is no excuse for inaccuracies or lack of thoroughness."

CBS News, "60 Minutes II," and Dan Rather used the Killian documents despite numerous and obvious indicia that they weren't authentic — including express warnings from the very experts whom they had consulted on the question of the documents' authenticity.  No reasonable journalist, nor any reasonable person, would have ignored those warnings.  Moreover, CBS News and Mr. Rather continued to assert the documents' authenticity for a full week while concealing the identity of their confidential source — a known crank with an axe to grind against President Bush — and while continuing to insist that their confidential source was "unimpeachable."  They insisted that they had confidence in the documents' "chain of custody"; they belittled anyone and everyone who questioned the documents' authenticity, including their own experts; and they've yet to issue a decent retraction or apology. 

Dan Rather and CBS News did not merely "willfully shut [their] eyes to the means of knowledge which [they knew were] at hand" — as would have been true had they recklessly failed to consult any experts whatsoever — but indeed, they shut their eyes to the knowledge their own experts were serving up.  And as such, they cannot claim now to be excused, in whole or in part, by virtue of having acted "in good faith" — for they cannot satisfy either the subjective or objective part of that term's definition.

Simply put, for CBS News and Dan Rather to claim now that they made a "good faith error" is itself a knowing lie — an act of bad faith from any objective standpoint, and indeed even  from their own subjective standpoint regardless of how self-deluding Mr. Rather and the other responsible individuals at CBS News have been or continue to be.

Van Odell debates Del Sandusky re Kerry's Bronze Star

Unfortunately, it's pretty rare to hear any of the Swiftee eyewitnesses from Kerry's Bronze Star action — the Rassmann rescue on the Bay Hap River after Dick Pees' PCF 3 was hit by a command-detonated mine on March 13, 1969 — debate each other one-on-one.  But here's a link (hat-tip PrestoPundit) to a talk radio program that's worth listening to,  despite Florida radio station WTWB-AM 1570 host Lynne Breidenbach's failure to get the participants' names right, her failure to ask the follow-up questions I would have loved to have asked, and her preference for talking about Kerry's post-war activism instead of the events on 13Mar69.

Sandusky and Odell were both there — Sandusky as the helmsman aboard Kerry's PCF 94, Odell as the twin .50-caliber gunner atop Jack Chenowith's PCF 23.  Sandusky continued to insists that there was incoming enemy fire; Odell continued to insist that there wasn't.  To support his claim that there was incoming enemy fire, Sandusky referred to records showing damage to PCF 94; Odell pointed out that those records referred to damage which PCF 94 had sustained on the previous day, and that PCF 94 actually ended up being the boat that towed the striken PCF 3 to safety.   Sandusky pointed to Larry Thurlow's Bronze Star citation that refers to enemy fire; Odell explained that Thurlow has insisted that his citation language wasn't written by him and that he's stated that if his own Bronze Star depended on being under enemy fire, he didn't deserve that medal.  And as always, Sandusky had no explanation for how the Swift Boats could have survived the supposed "5000 meters" of heavy enemy fire from both banks without any of the boats or their crew being hit during the hour-plus time it took to rescue and medevac out PCF 3's injured crew and rig it for towing to safety.  Odell said he saw Kerry as he was being transferred from his own boat to another for evacuation for medical treatment, and saw no blood on his uniform.

Odell mentioned that yet another eyewitness, Bob Hornberger (probably "Robert Eugene Hornberger," whom Swiftboats.net lists as a GMG2 on PCF 3), has recently stated that there was no incoming enemy fire.  Mr. Hornberger was the subject of an August 7, 2004, article in the Augusta Chronicle entitled "Veteran Questions Kerry's War-Hero Credentials," which includes this paragraph:

Again, Hornberger has no first-hand knowledge of Kerry's war actions. But he does question reports about them. Pulling someone from the water? "We all did that. I was pulled from the water. I pulled men from the water. I didn't get a medal for it."

I suspect that Mr. Hornberger does indeed have first-hand knowledge of the events on 13Mar69, although I'm unsure whether Mr. Odell was correct in the radio show in placing him aboard LTJG Droz' PCF 43.  Does anyone have a link to any more information about Mr. Hornberger?

Needs no snarky caption

Photo accompanying NYT article entitled "Kerry in a Struggle for a Democratic Base: Women," from Sen. Kerry's appearance on Tuesday on "Live With Regis and Kelly":

Displaying the same sensitive diplomacy as Sen. Kerry has shown toward America's allies in the Global War on Terror, here's what a Kerry pollster has to say (boldface added):

Diane Feldman, a pollster for the Kerry campaign, said she did not accept that Mr. Kerry was losing among women and insisted that the campaign's own polling showed Mr. Kerry winning among women.

Ms. Feldman would not disclose the campaign's numbers but said they showed Mr. Kerry's standing with women "below what we would expect in exit polls on Election Day, and we have room for growth." She added, "we're winning them, but not by as much as we will." She said she was confident of that prediction because women traditionally were late deciders.

Gee, Ms. Feldman — while you're at it, why don't you throw in that they can't drive worth a dang either?  Sheesh!

Oh, well, maybe this one caption:  "Kelly?  Kelly?  Won't you clap for me at least once, Kelly?  Like this?"

I'm sure you can do better.  The comments are open, have at 'em.  (Just keep it non-profane/non-sexually oriented, please; I know the one you're thinking of.)

CBS News admits Mapes "violated policy" in putting Burkett in contact with Lockhart

Oh, the MSM's long knives in Ra^thergate haven't been sheathed yet.  But Wednesday's NYT suggests that CBS News is feeding Mary Mapes to them first, hoping that her sacrificial blood will appease the other media deities:

CBS News said yesterday that the producer of its flawed report about President Bush's National Guard service violated network policy by putting a source in touch with a top aide to Senator John Kerry.

"It is obviously against CBS News standards and those of every other reputable news organization to be associated with any political agenda," the network said in a statement....

Privately, network officials said they were caught off guard on Monday when Joe Lockhart, a senior adviser to Mr. Kerry, told reporters that he had spoken to Bill Burkett, the source for the questionable documents, at the behest of Ms. Mapes.

Yes, they're shocked!  Shocked!  A violation of CBS News' hitherto sacred standards!  But is poor Mary to be the only victim?

Some colleagues expressed worry that Ms. Mapes would be a scapegoat and that others, like Mr. Rather; Betsy West, a CBS News senior vice president; and the CBS News president, Andrew Heyward, would not be held accountable.

Let's hope Mary has lots of company in the employment line.  (Hat-tip Carnivorous Conservative.)

Update (Wed Sep 23 @ 8:05am):  LAT gets its knives bloody again today too, as part of which (elipsis in original):

CBS News is expected today to announce an independent panel to review actions by the "CBS Evening News" and "60 Minutes" teams that produced the Sept. 8 report on Bush's Guard service. It would include at least one expert in journalism and another in law, people familiar with the situation said.

In an indication of how deep concern about the issue has become at the network, Chairman Leslie Moonves commented for the first time Tuesday. He said that while CBS News "has a long tradition of responsible journalism … it's clear that something went seriously wrong with the process" in the production of the National Guard story.

I'm pretty sure they won't be calling me as their expert on matters legal.  (Hat-tip to Hugh Hewitt.)

SwiftVets' sixth ad focuses on Kerry's Paris meeting (or meetings) with America's enemies — Did he "betray his country"?

I. What the new SwiftVets ad says

According to Fox News, the SwiftVets organization

has made its largest media buy yet of the presidential campaign. It has put $1.2 million behind a new ad that attacks the candidate's 1970 meeting in Paris with members of two North Vietnamese delegations. The ads, which will be launched Wednesday, will run on broadcast affiliates in the battleground states of Pennsylvania, Ohio, West Virginia, Nevada and New Mexico.

The ad can be viewed in multiple streaming video formats from the page on the SwiftVets' website that collects all their other ads.  Here's the script from the ad, titled (somewhat strangely, to my mind) "Friends":

Opens with: Footage of Jane Fonda.  Cuts to: Stills of Kerry, protesters, then Kerry testifying.  Cuts to: Fonda at a press conference

Announcer: "Even before Jane Fonda went to Hanoi to meet with the enemy and mock America, John Kerry secretly met with enemy leaders in Paris. Though we were still at war and Americans were being held in North Vietnamese prison camps. Then, he returned and accused American troops of committing war crimes on a daily basis. Eventually Jane Fonda apologized for her activities, but John Kerry refuses to. In a time of war, can America trust a man who betrayed his country?"

Obviously, in a short television ad, the SwiftVets could not include many factual details, but this advertisement will inevitably encourage more extended debate on the underlying questions: 

What are the facts about Kerry's meeting(s) with the enemy, and what laws may he arguably have broken?  Did John Kerry, while still an officer in the U.S. Naval Reserve, "betray his country"?

(Warning: this is another one of Beldar's long-winded™ and link- and quote-filled diatribes; proceed at your own risk.)

II. Fox News' brief summary

Fox News' brief summary of the historical record on Kerry's Paris trip(s) is a fair introduction to these broader subjects:

The Kerry campaign has acknowledged that Kerry traveled to Paris in 1970 with his then new wife, Julia Thorne. Kerry's campaign said the meetings were not part of any negotiation with the enemy but were part of Kerry's fact-finding efforts relating to the war and ways to win the release of U.S. prisoners of war.

Historian Gerald Nicosia has told FOX News that Kerry made a second trip to Paris in 1971 for many of the same reasons Kerry's campaign has cited for the 1970 trip. Kerry's camp denies a Kerry meeting with the North Vietnamese in the summer of 1971.

Unfortunately, although I've skimmed portions of a library copy of Nicosia's 2001 book, Home to War: A History of the Vietnam Veterans' Movement, I don't have a copy of my own and didn't photocopy the relevant pages about Kerry or other Vietnam Veterans Against the War members meeting with enemy representatives in Paris.  But Nicosia's book, and subsequent writings in the Los Angeles Times on the subject, are discussed below in part VII of this post.

III. The Holzer & Holzer analysis of the relevant
laws and the Navy Department's rejection of
Judicial Watch's complaint

Although it doesn't contain a very meaty discussion of the facts of Kerry's Paris trip(s), the most thorough analysis of the relevant criminal statutes prohibiting trafficking directly with the enemy, and of the cases interpreting those statutes, is in a passionately anti-Kerry article in FrontPageMag.com by Brooklyn Law School Professor Emeritus Henry Mark Holzer and author-attorney Erika Holzer.  I've not independently studied the cases they cited.  The two statutes they discuss, however, are 10 U.S.C. § 904 (from the Uniform Code of Military Justice) —

Any person who —

(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or

(2) without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly;

shall suffer death or such other punishment as a court-martial or military commission may direct.

— and 18 U.S.C. § 953:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both....

Of course, in each of the precedents from these statutes discussed by the Holzers, there had been a full-blown criminal trial, and the essential elements of the crimes charged were proved beyond a reasonable doubt.  While their discussion of the statutes and interpreting precedents is useful, their discussion — as I suspect, if pressed, they'd admit — falls necessarily short of a thorough analysis of how those statutes might apply to Kerry's Paris meeting(s) (and perhaps his subsequent conduct, if it was pursuant to an agreement or quid pro quo reached there). 

We do know (from Nicosia's FOIA request results) that the FBI was digging around about Kerry's and his comrades' Paris trips.  Yet no indictment was ever filed — which I interpret not as a lack of zeal on the part of the FBI or the Nixon administration DoJ, but rather simply as a lack of sufficient evidence gathered then that could have supported an indictment (much less a conviction).  There simply is not now, and never has been, enough factual detail for anyone to conclude yet, or even assert yet with prosecutorial confidence, that what Kerry did in Paris actually satisfied all of the essential elements of these crimes as defined — and of course, the only "conclusive conclusion" would be one reached by a court martial or criminal proceeding.  The title of the Holzers' article — "John Kerry, Criminal" — is thus metaphorical and speculative at best. 

But neither is there detail in the public record that would exonerate Kerry of these temporally distant crimes.  While Kerry enjoys a constitutional presumption of innocence unless and until there's a conviction, the absense of an indictment isn't itself affirmative proof of innocence — and doesn't end the public discussion.  (Insert semi-obligatory O.J. Simpson comparisons here if you wish.) 

These two statutes were among the bases for Judicial Watch's original and supplemental complaints to the DoD and the Navy Department, calling for an investigation and the possible stripping of Sen. Kerry's medals.  However, the Naval Inspector General, Vice Admiral Ronald A. Route, in a one-page letter to Judicial Watch last Friday, September 17th, refused to initiate such an investigation.  With respect to Judicial Watch's (and implicitly the Holzers') allegations that Kerry had violated these statutes, Adm. Route wrote in pertinent part:

Our review also considered the fact that Senator Kerry's post-active duty activities were public and that military and civilian officials were aware of his actions at the time.

I recently blogged in considerable detail about Adm. Route's decision, and with respect to this aspect I wrote:

What we still don't know — and what neither military or civilian officials knew at the time — is what actually transpired in those meetings, or even how many such meetings took place!

Then and now, Kerry has been carefully vague in describing those meetings, characterizing them as "fact-finding" expeditions.... That [Kerry and his VVAW comrades] have succeeded in keeping the details of their negotiations, and their agreements (if any), secret for so long is hardly a reason to assert that those details were known long ago.

Here again, however, I must concede that even if not supported by persuasive reasoning, Inspector General Route is probably the authority within the military structure who has the discretionary authority to decide whether this is something the Navy Department wishes to pursue. And clearly, he has exercised that discretion against any further investigation.

Thus, the odds of even administrative proceedings in the Navy Department on these allegations are now extremely remote, and the odds of an actual criminal proceeding are essentially nil.  Indeed, the Kerry campaign, and probably too its sycophants in the mainstream media, will portray Adm. Route's ruling as a "pre-buttal" of the sixth SwiftVets ad in attempting to dismiss it out of hand.

I disagree, however.  Adm. Route's rulings, to use a bit of lawyer-speak, weren't "on the merits," but rather represented a procedural refusal to delve into the underlying questions.  And those underlying questions therefore remain genuinely unanswered — whether likely to result in current consequences or not, what did Kerry do in Paris, and did it break either of these laws?

IV. Kerry's Fulbright Committee testimony

So what did happen in Paris?  As is typically the case, the starting point for all accusations against John Kerry remains — John Kerry.

Kerry acknowledged in his famous testimony before the Senate Foreign Relations Committe (chaired by Sen. J. William Fulbright (D-Ark.)) on April 22, 1971, that he'd met with enemy representatives in Paris, and that in so doing, he'd been on the "borderline" of violating section 953 (at .pdf file pp. 13-14; hyperlink and bracketed portions added):

The Chairman: The congress cannot directly under our system negotiate a cease-fire or anything of this kind. Under our constitutional system we can advice the President. We have to persuade the President of the urgency of taking this action. Now we have certain ways in which to proceed. We can, of course, express ourselves in a resolution or we can pass an act which directly affects appropriations which is the most concrete positive way the Congress can express itself.

But Congress has no capacity under our system to go out and negotiate a cease-fire. We have to persuade the Executive to do this for the country.

Mr. Kerry: Mr. Chairman, I realize that full well as a study [sic — probably should be "student"] of political science. I realize that we cannot negotiate treaties and I realize that even my visits in Paris, precedents had been set by Senator [Eugene J.] McCarthy [(D-Minn.)] and others, in a sense are on the borderline of private individuals negotiating, et cetera. I understand these things. But what I am saying is that I believe that there is a mood in this country which I know you are aware of and you have been one of the strongest critics of this war for the longest time. But I think if we can talk in this legislative body about filibustering for porkbarrel programs, then we should start now to talk about filibustering for the saving of lives and of our country.

Kerry had not yet started law school when he gave this testimony, but it seems relatively clear that he was already studying section 953 and uncomfortable about the possibility that he might have arguably violated it.  He was already referring here to "visits" (plural), for whatever that's worth.  But his sentence structure has begun to slip (as compared to most of the rest of his testimony).  From the "et cetera" in particular — and in general from the abrupt dropping of the subject without going into any details whatsoever about the "visits" or what he'd learned about our enemies (who elsewhere in this speech he was so eager to expound upon and about) — it looks to me like Kerry suddenly realized that he was skating on thin ice, and wisely decided to change the subject before he focused anyone else's attention on this subject.

V. Biographer Brinkley's contributions

As to what authorized Kerry biographer Douglas Brinkley has to say about Kerry and the long-running Paris peace talks in Tour of Duty: John Kerry and the Vietnam War:  First he quotes Kerry at the start of his Swift Boats service in late 1968, as the Swiftees were switching from coastal patrols to patroling the inland rivers and canals that would take the battle to the enemy as part of Operation Sealords (page 137):

"You might say I was conflicted," he confessed.  "On the one hand, I wanted the Paris peace talks to end the war.  On the other hand, I had trained to fight, and I wanted to."

Then in 1971, after he'd left active duty with the Navy (but was still in the Naval Reserve) and shortly after his televised debate with John O'Neill on The Dick Cavett Show (page 403):

Led by Patricia Hardy of Los Angeles, [wives of POWs] charged Kerry with using antiwar issues to further his political career.  When a Boston Globe reporter caught up with Kerry, he was saddened that these angry wives had taken issue with him.  It hurt.  But he kept to his point.  "What bothers me most is that action must be taken now in the Paris peace talks," Kerry stated.  "We need a date set, for total withdrawal from Vietnam."

Brinkley's book, which frequently cites Nicosia's Home to War with regard to Kerry's antiwar activities, reports that Kerry married Julia Stimson Thorne in Bay Shore, Long Island, on May 23, 1970, and that they honeymooned in Jamaica (ToD pages 340-41).  Strangely, however — given that Brinkley is the only historian, biographer, or reporter who's had (at least supposedly) unfettered access to (at least supposedly) all of Kerry's own war notes, journals, diaries, correspondence, and military records — Brinkley's book says nothing about Kerry ever meeting with representatives of the North Vietnamese government or Viet Cong in Paris, either in 1970 or 1971.

VI.  Kranish & Healey's reporting for the Boston Globe

 

On March 25, 2004, the Boston Globe's Michael Kranish and Patrick Healey wrote an article on Kerry's 1970 Paris meeting:

In a question-and-answer session before a Senate committee in 1971, John F. Kerry, who was a leading antiwar activist at the time, asserted that 200,000 Vietnamese per year were being "murdered by the United States of America" and said he had gone to Paris and "talked with both delegations at the peace talks" and met with communist representatives.

Kerry, now the presumptive Democratic presidential nominee, yesterday confirmed through a spokesman that he did go to Paris and talked privately with a leading communist representative. But the spokesman played down the extent of Kerry's role and said Kerry did not engage in negotiations.

The Kranish and Healey article gives these further details:

After their May 1970 marriage, Kerry traveled to Paris with his wife, Julia Thorne, on a private trip, Meehan said. Kerry did not go to Paris with the intention of meeting with participants in the peace talks or involving himself in the negotiations, Meehan added, saying that while there Kerry had his brief meeting with Binh, which included members of both delegations to the peace talks.

As Kerry runs for president, he is finding that many of his statements and activities over the last 33 years are drawing new attention. Last year, the Globe published White House transcripts of discussions about Kerry by President Nixon in the Oval Office. More recently, the Los Angeles Times focused on FBI surveillance reports, obtained by historian Gerald Nicosia, in which the FBI monitored meetings of the Vietnam Veterans Against the War, a group that Kerry led in 1971.

Indeed, there may be a tie between Kerry's statement before the Senate committee and the interest of the FBI in his activities. One FBI report provided to the Globe by Nicosia shows that the government was monitoring whether Kerry planned to go to Paris again. Kerry was "planning to travel to Paris, France ... for talks with North Vietnamese peace delegation," said the report, dated Nov. 11, 1971.

After describing Kerry's reference (quoted above) to section 953 in his Fulbright Committee testimony, Kranish & Healey wrote:

Kerry's statement dealt with the question of whether he was trying to negotiate in Paris as a private citizen and was thus on that "borderline" of what was allowable. A US law forbids citizens from negotiating with foreign governments on matters such as peace treaties. Meehan said Kerry was not negotiating.

"Senator Kerry had no role whatsoever in the Paris peace talks or negotiations," Meehan said in his statement. "He did not engage in any negotiations and did not attend any session of the talks. Prior to his Senate testimony, he went to Paris on a private trip, where he had one brief meeting with Madam Binh and others. In an effort to find facts, he learned the status of the peace talks from their point of view and about any progress in resolving the conflict, particularly as it related to the fate of the POWs."

Kerry's suggestion before the Senate committee that there be an immediate pullout led to questions about whether such a move would endanger the lives of South Vietnamese allies.

Kerry responded that "this obviously is the most difficult question of all, but I think that at this point the United States is not really in a position to consider the happiness of those people as pertains to the army in our withdrawal." If the United States did not withdraw, Kerry said, then US bombing would continue, and "the war will continue. So what I am saying is that yes, there will be some recrimination but far, far less than the 200,000 a year who are murdered by the United States of America ...."

Meehan, asked to explain Kerry's comment, said: "During a very emotionally charged time in American history, Senator Kerry was testifying against a failed policy, which resulted in the killing of hundreds of thousands of people. That policy resulted in one of the highest civilian casualty rate in the history of war. In answering Senator [George D.] Aiken's question about the consequences of an American withdrawal and potential additional bloodbath, Senator Kerry used a word he deems inappropriate.

"Senator Kerry never suggested or believed and absolutely rejects the idea that the word applied to service of the American soldiers in Vietnam. While opposed to the failed policy, Senator Kerry insisted that Americans must never confuse the war with the warriors."

Although not published until April 27, 2004 — over a month after Kranish & Healey's Boston Globe article — the Kerry biography by Kranish et al., John F. Kerry: The Complete Biography By The Boston Globe Reporters Who Know Him Best, contains no reference to Kerry's Paris meeting(s).  Perhaps the book, based largely on a series of Boston Globe articles from June 2003, was already too close to publication.  On the other hand, the book (at pp. 124-25) manages to tell the story of Kerry's Fulbright Committee testimony without mentioning one of Kerry's most infamous lines — that he was testifying to atrocities that were "not isolated incidents but crimes committed on a day-to-day basis with the full awareness of officers at all levels of command" — and dutifully repeats the Kerry campaign's disingenuous arguments that Kerry was only purporting to describe statements about atrocities that had been made at the so-called "Winter Soldier hearings" some months earlier in Detroit.

VII.  The allegations in O'Neill's Unfit for Command

John O'Neill's Unfit for Command: Swift Boat Veterans Speak Out Against John Kerry has quite a bit to say about Kerry's meetings, and they would probably point to it as the primary source material for the sixth SwiftVets ad — although it draws heavily on Nicosia's book and the Kranish & Healey article.  Beginning at page 126:

In June 1971, Lo [sic — should be "Le"] Duc Tho arrived in Paris to join the North Vietnamese Communist delegation to the peace talks.  His arrival marked a change in the Communists' approach to advancing their goals through negotiation.  [Le] Duc Tho was, with Ho Chi Minh, one of the original founders of the Communist Party of Indochina and one of North Vietnam's chief strategists.

He arrived to join a comrade, Madame Nguyen Thi Binh .... Madame Binh was recognized as the Viet Cong delegate to the conference.

On July 1, 1971, within days of [Le] Duc Tho's arrival, Madame Binh advanced a new seven-point proposal to end the war.  Central to this plan was a cleverly crafted provision offering to set a date for the return of U.S. POWs in exchange for the Americans' setting a date for complete, unilateral military withdrawal from Vietnam.  In other words, America could have its POWs back only if we agreed that we lost, then surrendered, and then set a date to leave.

O'Neill's book then runs through the substance of the Kranish & Healey article's reporting, and then picks up thusly (at page 127):

On July 22, 1971 [some three weeks after Madame Binh's proposal], Kerry called a press conference in Washington, D.C.  Speaking on behalf of the VVAW, Kerry openly urged President Nixon to accept Madame Binh's seven-point plan.

After discussing the obvious reasons why the Nixon administration rejected Madame Binh's plan, O'Neill describes section 953, and then continues (at page 129):

There is no public record of what Kerry discussed with the Vietnamese Communists in Paris in 1970.  Kerry's presidential campaign has refused to provide any detailed account of the discussion, nor has the campaign answered questions regarding who set up the meeting.  There must have been contact between Kerry or his representatives and the representatives of the Vietnamese Communists.  Which Communists assisted Kerry in arranging his meeting with Madame Binh, and why?

... [I]t is hard to find any disagreement whatsoever between Kerry's words and actions as a leader of theVVAW and those of the Hanoi and Viet Cong leadership.  Had Madame Binh herself been permitted to appear at the July 22, 1971, press conference instead of John Kerry, the most noticeable difference in the argument presented might have been the absence of a Boston accent.

Unfit for Command goes on to discuss (at pp. 130-31) an FBI confidential surveillance report dated November 11, 1971, which "indicates that the FBI was monitoring Kerry to see if he planned another trip to Paris to meet with the Communist delegations."  Other FBI reports discuss multiple trips to Paris to meet with the Communists that were undertaken by Kerry's cohorts in the VVAW, including the radical Al Hubbard (who was eventually exposed as not being a Vietnam veteran at all after having falsely claimed to have been wounded as a combat pilot there).  As for whether Kerry himself made another trip (at page 135; hyperlink to Lexis/Nexis download and bracketed page reference added):

There is also good reason to believe that prior to the Kansas City [VVAW] meeting in November 1971, Kerry himself had made a second trip to Paris to meet with the Vietnamese Communists.  Evidence for this comes from Gerald Nicosia, a very pro-VVAW and pro-Kerry historian ....  Writing in the Los Angeles Times on May 24, 2004, Nicosia noted [page 5 of .pdf file], "Kerry's public image was perhaps tarnished most in 1971 by his attempts to hasten the return of American POWs.  The files record that Kerry made a second trip to Paris that summer to learn how the North Vietnamese might release prisoners."

VIII. Beldar's take

The sixth SwiftVets' ad is careful not to use the word "treason," and neither it nor O'Neill's book accuses Kerry in so many words of that crime or of violating statutes like 18 U.S.C. § 923.  From their point of view as veterans who were still fighting in Vietnam while Kerry was urging an immediate and unilateral withdrawal, they are certainly entitled to assert, however, that Kerry's actions — even if there were no substantive agreements reached at his Paris meeting(s) and it was "pure coincidence" that Kerry ended up endorsing unreservedly Madame Binh's "seven-point peace plan — nevertheless "betrayed his country."  That is a moral value judgment, not a legal conclusion — and obviously it's one that Kerry's supporters, and probably many undecided voters, will reject outright.

From a purely political standpoint, however, I believe that this latest ad — whether its viewers join in or reject the SwiftVets' judgment — will be another effective blow to Kerry's candidacy.  As with his medal-throwing incident and the words he spoke before the Fulbright Committee, Kerry's Paris trip(s) have long been known to those who've carefully studied his history — but I strongly suspect that a substantial portion of the American public has remained unaware of that part of his antiwar activist history.

As for my own reaction:  Again, I fully respect the SwiftVets' right to draw their own judgments, based on their service and their sacrifices, which neither I nor most Americans ever directly shared.  With no disrespect to them, however, from my own admittedly cushy perspective, "betrayal" is still a stronger word than I would yet feel comfortable using, and it conveys a more damning moral  judgment than I am yet comfortable making.  Although the circumstantial evidence is powerful, it still requires the drawing of an inference to conclude that there was an express quid pro quo or agreement between Kerry and his VVAW comrades and the North Vietnamese and Viet Cong representatives in Paris.  Kerry's resolute silence on all the details of his discussions, what was actually discussed, how and through whom the meeting(s) were arranged also cuts against him, and in favor of drawing the factual inference of a quid pro quo and the moral conclusion of "betrayal."

But in the absence of more facts — which, frankly, seem unlikely to be developed unless Sen. Kerry has a sudden change of heart, or other eyewitnesses step forward — I personally will continue to withhold judgment on the ultimate question of "betrayal." 

I have no hesitation, however, in agreeing that even in what Sen. Kerry has admitted, his actions in meeting even once with our nation's enemies during wartime, while the uniform of a Naval Reserve officer still hung in his closet, showed a profound foolishness — not a casual or trivial mistake in judgment by a callow youth, but a reprehensible misjudgment by a young man then already in his late 20s who ought to have known far better.  I'd think better of him now if he admitted that, and apologized.  But I'm not holding my breath waiting for that to happen.

------------------

Update (Wed Sep 23 @ 2:05am):  Wednesday's WaPo has the Kerry camp's first reaction to the sixth ad, which is to blast the "secret" allegation — pointing out that Kerry admitted the contact in his Fulbright Committee testimony.  Well, yes — after the fact.  That doesn't mean it wasn't a "secret" trip at the time he made it, though, and as far as I know, it was. 

It's also pretty funny that WaPo quotes Brinkley — who, as I mentioned above, doesn't mention the Paris trip(s) in any of his copious writing about Kerry's antiwar activism.  Apparently it was a secret to him, too. 

Although there is that (nervous) reference to Paris in Kerry's Fulbright Committee testimony, it's certainly fair to say that Kerry hasn't gone out of his way to publicize the meeting.  For example, according to Google's search function, there are five references to the word "Paris" on the official Kerry website, none of them about the meeting.  "Le Duc Tho" draws zip, as does "Nguyen Thi Binh."  Neither name is in the index of Brinkley's book; ditto the Kranish book's index.  I'm pretty sure I didn't hear either of those names mentioned at the Democratic National Convention, either.  And of course, the Kerry website also doesn't mention that Kerry repeatedly called Ho Chi Minh "the George Washington of Vietnam" during his antiwar days either, as Nicosia's LAT article notes (pp. 3-4 of the .pdf). 

This WaPo article another marks another appearance of the "evil WaPo twin" — the incredibly biased or fact-challenged one — as the concluding paragraph shows:

Some of the [SwiftVets'] assertions were refuted, and several links between it and President Bush's campaign subsequently came to light. But the media storm created by the ad put Kerry and his campaign on the defensive.

Gee, I'd like to see the backup for that "refuted" claim, and I'd like to see even the same limited degree of objectivity that poor Nick Kristof displayed in admitting that the SwiftVets have at least scored some service aces (Christmas in Cambodia) and have proved Kerry to be a serial exaggerator about his war record.  WaPo could say, I suppose, "We've decided to believe the eyewitnesses who say there was enemy fire incoming on the Bronze Star, and disbelieve the ones who say there wasn't, and we just think all the VC were really, really bad shots to miss everyone and the boats during the hour and a half they were dead in the water rescuing PCF 3's crewmen and setting it up for a tow."  But I suspect staff writer Paul Farhi knows even less about the details of Kerry's war record, and the SwiftVets' claims, than even Mr. Kristof.  Mr. Farhi should maybe read what his colleague Michael Dobbs has written; Dobbs at least acknowledges that the Bronze Star comes down to a swearing match over enemy fire, and that Kerry's stonewalling on his military records that might support other SwiftVets claims.

But best of all is WaPo's quote of John O'Neill (boldface added):

In an interview yesterday, John O'Neill, an organizer of the Swift boat group and co-author of the anti-Kerry book "Unfit for Command," said it would be "unprecedented" for a future commander in chief to have met with enemy leaders. "It would be like an American today meeting with the heads of al Qaeda," he said.

I agree with Jim Geraghty's take on O'Neill's quote:

Team Kerry better have a good defense to refute that talking point, because if that one sentence comparison breaks through the media static and gets into voter's heads, Kerry will make Walter Mondale look like Bill Clinton.

The evil twin must not have thought of that.

Nicosia also repeated his insistence about the second (1971) trip to CNS News in a June 2004 story.  And although I didn't notice it before, Nicosia's LAT article (page 2 of the .pdf) pegs the 1970 trip as being in May "with his new wife" — they must not have spent much time in Jamaica if they were married on May 23rd and were in Paris with Madame Binh before the month was out.

Finally, from an April 24, 2004, article in the New York Times re the 1970 trip (at page 2 of the .pdf file):

Two weeks later, he married Julia Thorne, and on a trip to Europe with his new bride, Mr. Kerry, the 26-year-old ex-lieutenant took a taxicab from Paris to a suburban villa. The son of a diplomat, Mr. Kerry had managed to arrange a private meeting with North Vietnamese and Vietcong emissaries to the peace talks.

He says he does not remember who else was in the room except for Nguyen Thi Binh, the Vietcong spokeswoman in Paris, who was then bedeviling the Nixon administration by issuing peace proposals it considered little more than propaganda.

''It's not a big deal,'' he says now. ''People were dropping in. It was a regular sort of deal.'' Senator Eugene J. McCarthy had visited Paris months earlier, and other officials often sat in with the Vietnamese and held news conferences afterward.

Mr. Kerry said he considered it a fact-finding mission. The talks had been stalemated for months. Still on the table was a year-old Vietcong initiative that included an offer to release American prisoners of war when American forces pulled out.

Mr. Kerry recalled ''testing what I thought the lay of the land was'' in the meeting. ''Not that you take their word for their word, but because you sort of put the pieces of the puzzle together.''

Asked why the Vietnamese would meet with a 26-year-old, Mr. Kerry suggested it was because he had been on television as a veteran opposed to the war. He acknowledged that they might have been trying to use him to shape American public opinion.

''I knew that, and I was trying to be careful about what was real and what wasn't real,'' he said. ''I wanted to really probe. I wanted to look them in the eyes, and say, 'Well, what happens if this happens? And what does this mean?'''

Mr. Kerry came home, and before a Senate hearing 10 months later he criticized President Nixon for not accepting Mrs. Binh's assurances that the Vietnamese would release American prisoners of war if U.S. troops simply left.

See, Brinkley forgot the part about Paris, and Sen. Kerry forgot the part about Jamaica.  Odd honeymoon, that.  But he asked Madame Binh, "what happens if this happens"?  Sounds oddly like "negotiations" to me.

Update (Wed Sep 23 @ 4:30am): Three nits that've been gnawing on me:  First, the WaPo article gets the year of the undisputed meeting wrong (I'm assuming that's what WaPo was referring to, since it doesn't mention the Nicosia quotes or the Fox News story saying that Kerry's campaign denies a 1971 meeting):

The group, whose members served in the Navy at the same time as Kerry, is referring to a meeting Kerry had in early 1971 with leaders of the communist delegation that was negotiating with U.S. representatives at the Paris peace talks. The meeting, however, was not a secret.

Second, I was probably wrong to characterize the "wasn't secret" point as coming from the Kerry camp rather than from WaPo initially.  The current Kerry campaign reaction (as opposed to what they were arguing when the LAT and NYT articles came out earlier this year) is to ignore what they've already admitted, and to attack the SwiftVets again:

"This is more trash from a group that's doing the Bush campaign's dirty work," Kerry spokesman Chad Clanton said. "Their charges are as credible as a supermarket rag."

Supermarket rag, Congressional Record, whatever.

Third, the WaPo article reminded me that one other place in his Fulbright Committee testimony (page 11 of the .pdf file), Kerry stated (boldface added; bracketed portions mine):

I have been to Paris.  I have talked with both delegations at the peace talks, that is to say the Democratic Republic of Vietnam [a/k/a "Communist North Vietnam"] and the Provisional Revolutionary Government [a/k/a the Communists who claimed to govern South Vietnam, and whose military arm was the Viet Cong] and all eight of Madame Binh's points it has been stated time and time again, and was stated by Senator Vance Hartke when he returned from Paris, and it has been stated by many other officials of this Government, if the United States were to set a date for withdrawal the prisoners of war would be returned.

So despite his fuzzy memory when speaking to the NYT in April 2004, apparently on April 22, 1971, young Kerry still remembered who else he'd met with in May 1970 besides Madame Binh — and it was someone from the North Vietnamese government (although it's unclear whether it was at the same meeting or a different one).  Too bad there's no "delete button" on either Lexis/Nexis or the Congressional Record, Senator.

Update (Fri Sep 24 @ 6:08pm): I've edited the post above to correct my original reference to another press account of Nicosia's insistence on a second Paris trip from "CBS" to "CNS," and I've also fixed a broken link to Kerry's Fulbright Committee testimony.

Op-ed by SwiftVets' Adm. Hoffmann

The Sunday edition of the Richmond Times Dispatch included a long and detailed op-ed by SwiftVets founder Adm. Roy Hoffmann (hat-tip Discriminations).  Those who've been following the controversy closely will find nothing much new, but it's an impassioned summary of the current state of the SwiftVets' overall case.

NYT: CBS News to crater on Rathergate — "Too flawed to have gone on the air"

It appears that when CBS News sent Dan Rather to interview Bill Burkett over the weekend, they sent along a grown-up with him — CBS News senior vice president Betsy West.  And the fairly direct result — under the headline "CBS News Concludes It Was Misled on National Guard Memos, Network Officials Say" — appears to be Monday's New York Times article by Jim Rutenberg (boldface added; hat-tip to Jim Geraghty's Kerry Spot on NRO):

After days of expressing confidence about the documents used in a "60 Minutes'' report that raised new questions about President Bush's National Guard service, CBS News officials have grave doubts about the authenticity of the material, network officials said last night.

The officials, who asked not to be identified, said CBS News would most likely make an announcement as early as today that it had been deceived about the documents' origins. CBS News has already begun intensive reporting on where they came from, and people at the network said it was now possible that officials would open an internal inquiry into how it moved forward with the report. Officials say they are now beginning to believe the report was too flawed to have gone on the air.

Apparently the weekend interview with Mr. Burkett was Dan Rather's last hope of salvaging his story, and perhaps his job; and apparently it failed utterly in at least the former respect, and perhaps in both:

[CBS News] officials decided yesterday that they would most likely have to declare that they had been misled about the records' origin after Mr. Rather and a top network executive, Betsy West, met in Texas with a man who was said to have helped the news division obtain the memos, a former Guard officer named Bill Burkett.

Mr. Rather interviewed Mr. Burkett on camera this weekend, and several people close to the reporting process said his answers to Mr. Rather's questions led officials to conclude that their initial confidence that the memos had come from Mr. Killian's own files was not warranted. These people indicated that Mr. Burkett had previously led the producer of the piece, Mary Mapes, to have the utmost confidence in the material.

It was unclear last night if Mr. Burkett had told Mr. Rather that he had been misled about the documents' provenance or that he had been the one who did the misleading.

Reading between the lines here:  Mr. Burkett claimed that before its demise, his dear departed dog ate the mailing envelope that his own "anonymous source" used to send the documents to Burkett, or some such equally implausible nonsense, but CBS News isn't ready yet to publicly label Burkett as the forger — and neither, to be fair, am I.  (And a small but not insignificant quibble — Mr. Burkett is a former Texas Army National Guard officer, not from the Texas Air National Guard, which of course was the branch of the Guard in which Dubya, Killian, Staudt, et al. served in.  When one sees this sort of distinction elude the NYT, one wonders if it also eluded CBS News, with serious consequences.)

But [the CBS News officials who spoke to the NYT] cautioned that CBS News could still pull back from an announcement. Officials met last night with Dan Rather, the anchor who presented the report, to go over the information it had collected about the documents one last time before making a final decision. Mr. Rather was not available for comment late last night.

Translation:  They haven't told Dan yet that he's going to be fired.  Perhaps they haven't decided yet.  Plus, having already picked their likely most sympathetic major media source (the NYT) to test the waters for them, they want to see what the early morning reaction is — whether their competitors will sheath the knives for now, or continue to slash and hack (pun on the word "hack" definitely intended).  There will be no backing off on the overall crater on the documents being forgeries.

More from renegade — i.e., truthful, to CBS News' acute embarrassment now that it can no longer ignore her — handwriting expert Emily J. Will:

Yesterday, Emily J. Will, a document specialist who inspected the records for CBS News and said last week that she had raised concerns about their authenticity with CBS News producers, confirmed a report in Newsweek that a producer had told her that the source of the documents said they had been obtained anonymously and through the mail.

In an interview last night she declined to name the producer who told her this but said the producer was in a position to know. CBS News officials have disputed her contention that she warned the network the night before the initial "60 Minutes'' report that it would face questions from documents experts.

A producer whose name starts with an M and ends with an A-P-E-S, perhaps?  In the LAT and WaPo descriptions of how CBS News rushed their broadcast together, I don't recall seeing anyone else identified as a co-producer along with Mary Mapes, although the WaPo article  does state that "Mapes, an associate producer and a researcher were carrying the journalistic load."

Meanwhile, we learn from this story just how tuned in to the basic facts Josh Howard is — or isn't:

In a telephone interview this weekend, Josh Howard, the executive producer of the "60 Minutes'' Wednesday edition, said that he did not initially know who was Ms. Mapes' primary source for the documents but that he did not see any reason to doubt them. He said he believed Ms. Mapes and her team had appropriately answered all questions about the documents' authenticity and, he noted, no one seemed to be casting doubt upon the essential thrust of the report.

"The editorial story line was still intact, and still is, to this day,'' he said, "and the reporting that was done in it was by a person who has turned in decades of flawless reporting with no challenge to her credibility.''

Ummm, Mr. Howard, the "editorial story line" included an allegation that Col. Killian was being pressured to sugar-coat Dubya's evaluations by retired Col. Walter B. ("Buck") Staudt, whom your forger didn't know had retired from the TANG a year and a half before his supposed pressure was applied on Col. Killian.  I'd call that a gaping hole in your "editorial story line," sir — one that doesn't depend on the Killian memos' authenticity or lack thereof.  Would you care to identify what shred of the "essential thrust of the report" remains?  Every bit of the "60 Minutes" broadcast that purported to add any material detail to what was previously known about George W. Bush's service record has turned out to be entirely bogus.  The only parts that haven't been challenged are the parts we all knew before, and have known for years — that he got permission to go to Alabama, and that he didn't maintain his flight status because he wasn't going to be flying there anyway.

[Mr. Howard] added, "We in management had no sense that the producing team wasn't completely comfortable with the results of the document analysis.''

Spoken like a manager who should lose his job, Mr. Howard.

Several people familiar with the situation said they were girding for a particularly tough week for Mr. Rather and the news division should the network announce its new doubts.

One person close to the situation said the critical question would be, "Where was everybody's judgment on that last day?''

Mr. Rather should spend his "tough week" in the unemployment line along with Mr. Howard, Ms. Mapes, and Mr. Heyward.  I'll reserve judgment on Ms. West — she might have redeemed herself on her trip to Texas with Mr. Rather.

I'm quite confident, however, that CBS News will never admit to the correct answer on the question, "Where was everybody's judgment" — because the obvious answer is that they had abandoned their judgment in their lust to bring down a sitting American president.  Whether that lust had its source in reckless desire for journalistic glory or, more likely, in overt partisanship — against Dubya and in favor of anybody-but-Dubya — ought not matter to their saving their jobs.  What does still need genuine investigation, however, is whether there was knowledge of and coordination between Burkett and the Kerry campaign's "Fortunate Son Offensive."

Separately, USA Today's Peter Johnson writes a highly unsatisfactory article for Monday's edition that mostly ducks the genuinely compelling question of its own involvement:

(USA TODAY obtained copies of the memos shortly after the 60 Minutes broadcast and reported that the next day. The newspaper's editors, like those at other media, relied in part on the fact that the White House did not challenge the memos' authenticity and released copies after the broadcast.)

Those parentheses are in the original, folks.  But whatever obligation USA Today may once have had to keep its source confidential — a joke, given that the LAT, WaPo, and NYT have now all but put up billboards in Times Square saying "The Source Was Burkett!" — expired once USA Today concluded that the documents were in fact bogus.  Perhaps USA Today is feverishly working to conduct its own investigation into, for example, connections between the Kerry campaign and their still-nominally-anonymous source.  But it's time for USA Today to stop thinking about scoops, and to start thinking about restoring some measure of public confidence in the mainstream media; playing cute like this isn't the way to do that.  Someone at USA Today should've written — before AllahPundit did late on Saturday, September 16th, and I did shortly after noon on Sunday, September 17th — that USA Today's source had given it two more memos than CBS News had revealed in its initial broadcast on the previous Wednesday.

Meanwhile, Burkett's lawyer, David Van Os, is laying the groundwork to try to absolve Burkett as the forger in a letter to the American Spectator (hat-tip, again, to AllahPundit):

As Lieutenant Colonel Burkett's personal attorney, I do not have the legal right to divulge anything that he may have said to me in confidence in the course of my professional relationship with him. Thus I cannot and will not do so, unless and until he releases me from that professional obligation, which is something that he has the legal right to do or not to do at any time. Based upon my personal knowledge of Bill Burkett's character from knowing him and knowing of his reputation among his peers, I will state unequivocally that Bill Burkett did not falsify or create the "CBS documents." I do not assume that anyone falsified or created those documents until more is known, but if anyone did, it was not Bill Burkett. I will stake my reputation and good name on this certainty. Further from my knowledge of Bill Burkett's character and integrity, I will state unequivocally that if, hypothetically speaking, Bill Burkett handled documents that were recent creations rather than true copies of originals, he would have done so only because he had reason to believe they were true copies rather than recent creations.

Mr. Van Os can't have it both ways here:  Either he doesn't know what the hell he's talking about because he hasn't discussed it with his client, or he's in fact reporting what Mr. Burkett's told him and hence has waived attorney-client privilege (despite his careful language attempting to preserve it).  From what I know of Mr. Van Os, his practice specialty has been in labor relations law, with perhaps some dabbling in civil personal injury work (as, for example, in his prior representation of Mr. Burkett in his claims to have suffered injuries while on a Guard assignment in Panama).  Mr. Van Os and his client would be well advised, if they have not already, to associate counsel whose specialty is criminal law, even if they genuinely believe that Mr. Burkett has committed no crime, lest Mr. Van Os inadvertently waive his client's Fifth Amendment right against self-incrimination.

Newsweek sez Rathergate source received memos "anonymously through the mail"

Newsweek's Mark Hosenball, Michael Isikoff, and Anne Belli Gesalman serve up this report on the possible source of the forged Killian memos, and what may turn out to be suspected source Bill Burkett's "defense" to suggestions that he himself may have forged them (boldface added; hat-tip InstaPundit):

Emily Will, a documents expert approached by CBS to examine the memos, told NEWSWEEK that she was told by a CBS News producer that the network's source had received the memos anonymously through the mail. Intense scrutiny has centered on the role of William Burkett, a former National Guard official who charged last February that he saw Bush Guard documents in a trash can in 1997 — an allegation that Guard officials strongly denied. A source who worked with CBS on the story said Burkett was identified by a producer as a conduit for the documents. Three days before the broadcast, Burkett e-mailed a friend that there was "a real heavy situation regarding Bush's records" about to break. "He was having a lot of fun with this," said the friend, Dennis Adams. Burkett told a visitor that after the story ran, Rather phoned him and expressed his and the network's "full support."

A prudent news producer, having retained a document authentication expert and wishing to acquaint her with background information to help her assess certain documents' authenticity, should certainly have passed along this sort of information — as a red flag to emphasize the degree of skepticism the expert should employ.  But thus does initial prudence (since abandoned) become, after the fact, an admission against interest on the part of the unnamed CBS News producer.

Multiple-hearsay problems aside, if Burkett in fact told CBS News that the documents mysteriously appeared in his mailbox, then is Burkett's mailbox Dan Rather's "unimpeachable source"?  Is the mailbox of a noted crank an especially credible mailbox?  What exactly then would an "impeachable source" be in Dan Rather's estimation — the ghost of Julius Caesar communicating with Mr. Burkett in a séance?

We grieve along with Mr. Burkett if, as he told an unidentified journalist per Newsweek's report, "since he began speaking out, unnamed assailants [have] killed his dog" — but we must wonder if that happened before or after said dog ate Mr. Burkett's homework.

Newsweek also reports these disappointing half-measures within CBS News:

While CBS News president Andrew Heyward has publicly backed Rather, the network has quietly assembled a team of additional producers to work the case. Rather is privately telling colleagues he remains "confident" that the story, and the memos, will be vindicated.

Kudos for the "team of additional producers"; jeers for letting Rather and his original team remain involved in any way.

Sen. Kerry's kid sister, useful fool of terrorists, warns Australia against keeping faith with America

Until my blogging friend Steven Jens pointed me to Australian blogger Tim Blair's recent post and the article from The Australian's weekend edition that Tim links, I'd not been aware that Sen. John Kerry's younger sister, Diana Kerry, "is heading a campaign called Americans Overseas for Kerry which aims to secure the votes of Americans abroad — including the more than 100,000 living in Australia."

So what says Ms. Kerry — like her brother, the child of a career U.S. lawyer-diplomat — while campaigning abroad (boldface added)?

John Kerry's campaign has warned Australians that the Howard Government's support for the US in Iraq has made them a bigger target for international terrorists.

Diana Kerry, younger sister of the Democrat presidential candidate, told The Weekend Australian that the Bali bombing and the recent attack on the Australian embassy in Jakarta clearly showed the danger to Australians had increased.

"Australia has kept faith with the US and we are endangering the Australians now by this wanton disregard for international law and multilateral channels," she said, referring to the invasion of Iraq.

Asked if she believed the terrorist threat to Australians was now greater because of the support for Republican George W. Bush, Ms Kerry said: "The most recent attack was on the Australian embassy in Jakarta — I would have to say that."

Ms. Kerry's audience for these remarks, of course, extends far beyond American ex-pat voters.  She apparently has sufficient sensitivity not to quote her brother directly by referring to the Aussies as a prominent member of the "trumped-up, so-called coalition of the bribed, the coerced, the bought and the extorted."  No, she merely accuses her host country of co-conspiracy in a "wanton disregard for international law," and warns them that they're letting George W. Bush paint a target on their backs.  So much for partisanship stopping at the water's edge on the American shore.

The wounds to Rather's career are fatal

A thoughtful reader emailed me with a link to an NRO article I'd missed:  Former CBS newswriter and radio network news editor Dennis E. Powell still has, and quotes from, the "CBS News Standards" book in use during his employment in an article entitled "Throwing the Book at Them."  His conclusion:

My copy of the document is in pristine condition. It provides good guidance and is something I've always treated with a little reverence, because it stands for what CBS once strived to be. I'm tempted to send it to Dan Rather, because I think his copy is probably pretty beaten up as a result of having been flung down and danced upon.

But I don't think I will. For I'm sure that the current view at the CBS News Division is that the document is authentic, but not accurate.

Compliance with journalistic standards and ethics requires the exercise of good judgment, and violations of them are likewise judgment calls, but gone bad.  It is therefore quite remarkable that as the facts of the Ra^thergate debacle continue to come out, no one is defending CBS News' misjudgments in any way — at least, I haven't seen it.  There's no "this was a close call," or "but their source seemed so credible," or "there but for the grace of God go I." 

Hence the metaphoric title of my post preceding this one.  Once roused from its torpor by the blogosphere's exposure of the documents as forgeries, the mainstream media outlets have begun to crowd the tumbling carcasses of Dan Rather et al. as if each is desperate to take home, as a trophy/souvenir to prove its own righteousness, a blood-stained dagger.  The kinder among them have sadly noted or will note Rather's and CBS News' past glories; the less misty-eyed have noted or will note that those past glories were mixed with other scandals, if less heinous ones than this. 

Rather and his cohort cannot be permitted to survive.  "Gracious retirement" is not an option; apologies and contrition, while still appropriate, cannot be sufficient.  It's time, and past time, for Viacom's top management to recognize what everyone else has already concluded.  It's time, and past time, to start the public firings, with the only open question being how many besides Rather, Mapes, Howard, and Howell should be in the first wave.  If this scandal cannot justify such action, then nothing ever could.

"Et tu, WaPo?" gasps Rather, as the MSM assassins thrust and thrust

Says Dan Rather of the current controversy:

Rather also dismissed the notion that CBS was negligent: "I'm confident we worked longer, dug deeper and worked harder than almost anybody in American journalism does."

That's precisely what we're all afraid of, Dan.

Sunday's front-page WaPo story by Howard Kurtz, Michael Dobbs, and James V. Grimaldi — headlined "In Rush to Air, CBS Quashed Memo Worries" — doesn't add any new blockbusters to what the LAT published on Saturday morning, but has more contextual details — none of which make CBS News look good. 

The tone is definitive, and WaPo drops the polite fiction that there's even a remote possibility remaining that the documents are authentic.  Instead, the bright lights are on the misbehavior of Mapes, Rather, and other CBS News personnel.  More signs point to Burkett as the source.

Still unanswered, and even unasked:  What was CBS News' great hurry?  Who else was the forger peddling the documents to?

And what says USA Today?

Update (Sun Sep 19 @ 3:40pm):  Don't miss WaPo's graphic, entitled "The Paper Trail: A Comparison of Documents."

"Consulting experts" versus "testifying experts," and the differences between the ways lawyers and journalists use experts generally

On his radio show Thursday afternoon, Hugh Hewitt first asked whether I have much experience as a trial lawyer in dealing with expert witnesses, and I confirmed that I do indeed deal with them in my practice on an everyday basis.  Then Hugh asked me a hypothetical question:  If I were defending CBS News in a multimillion dollar trial, would I let the case go to the jury based on the collection of experts CBS News has relied upon in its so-called authentication of the forged Killian memos.  My answer wasn't a particularly good one — perhaps surprisingly, I hadn't thought of the question before in precisely those terms because of the differences in the ways trial lawyers and journalists regularly rely upon experts.

But as so often happens in my blogging, this question is one I've been mulling over for a while, and that has now led me to one of my multipart rambling dissertations as a crusty old trial lawyer.

I. Expert witnesses versus lay witnesses

The Federal Rules of Evidence (and most states' parallel rules for use in the state-court system) distinguish sharply between expert witnesses and so-called "lay witnesses."  Rule 701 of the Federal Rules of Evidence sharply restricts the ability of lay witnesses to offer testimony that consists of the witness' opinions or inferences:

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Rule 702 in turn provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

To give some concrete examples of how this pair of rules actually works in a trial:  Suppose my client Mr. Jones, a ditch-digger by trade, claims to have been permanently disabled by a violent reaction to a prescription drug.  When I put Mr. Jones on the witness stand, he can testify based on first-hand knowledge about a wide range of important factual matters — for instance, his own educational, vocational, and economic history; what prompted him to consult his doctor; when he started taking the drug; and what impairments or symptoms he began to notice thereafter and continues to observe.  He can testify that for the five years immediately before he first took the drug, he'd had a gross yearly job income of, say, $35,000, and that he has had no income at all since he took the drug.  He can testify, too, on some matters that strictly speaking are not objective issues of fact — for example, how his quality of life seems to him to have changed; how his family life has been disrupted; how he feels about no longer being his family's breadwinner; what tasks he no longer finds himself capable of doing; how severe the physical pain is from the multiple daily seizures he has continued to suffer; and so forth.

But there will be important parts of Mr. Jones' overall case that I cannot prove up through his testimony as a layman.  I cannot, for example, ask him to render a medical diagnosis regarding his condition when he sought treatment (although I might, through a hearsay rule exception, be permitted to adduce his testimony as to what he was told by his examining and treating physicians when he did so).  I cannot ask him to render an opinion as to whether in fact the prescription drug (rather than, say, some other event or malady) caused his current disability, or how it did so, or how long his disability is likely to last, or whether it's likely to become curable in the future.  I cannot ask him to render opinions on the likely rate of future inflation or interest-rate returns on a conservatively invested lump sum of money, or what discount rate should fairly be used to discount to present value the stream of earnings he might have expected to receive over his projected working lifetime but for his disability.  (Oddly enough, though, with respect to damages calculations, I can take the basic data he's given me and, during final argument, do some blackboard calculations to suggest to a jury of laymen how they themselves might go about making appropriate "common-sense calculations" to determine the present value, if paid now in cash, of the stream of future earnings that my client has lost the prospect of receiving.)  No, on all these issues, detailed analysis and proof will depend on opinion testimony that in turn is based upon "scientific, technical, or other specialized knowledge," and I can only adduce that testimony from the mouths of "experts" whose qualifications and expertise I've first demonstrated to the court's satisfaction. 

And even once I've met the threshold standard of proving a given expert's qualifications — that a physician, for example, has a medical degree and license — my opponent will be free to attack not only my expert witnesses' opinions, but the depth of their qualifications to render them; and typically my opposing counsel will call his own competing expert witnesses, prove up their qualifications to give opinion testimony, and offer their own competing theories, opinions, and conclusions.  It is left to the "factfinder" — the jury if there is one, or the judge in a nonjury bench trial — to sort through the conflicting opinions; assess the respective experts' credentials, expertise, and credibility;  and determine whose opinions to accept and whose to reject, in whole or in part. 

Thus does the dance of experts play out in any civil trial.

II. Pretrial discovery of experts

The anticipation of how that dance will likely play out in a trial, however, in turn guides the pretrial preparation and discovery phase for both sides in a lawsuit.  By rule and/or pretrial order, some months before the trial, I will have had to have "designated" the experts whom I've proposed to call at trial to my opposing counsel, and to have provided him with not only their names, but their credentials, their written reports of their opinions and conclusions, and all of the data they've reviewed and considered in reaching them. 

My opponent, after reviewing that information, will almost certainly have taken a pretrial oral deposition of all of my significant expert witnesses to probe those subjects.  Every communication I've had with my "testifying experts" will have been subject to his examination — and you may be sure that he'll have asked, for example, how much my expert is being paid; how much of his time is devoted to serving as an expert witness in legal matters versus plying his profession directly; whether I've improperly suggested conclusions or withheld key information from my expert; whether my expert has rendered contrary or inconsistent opinions in other settings; how strong my expert's credentials really are; how carefully he's actually reviewed the data in forming his opinions; and so forth.  And when my opponent has selected and designated his own competing "testifying experts" to refute mine, he'll have had to have made the same disclosures and have given me the same opportunities to probe their opinions.

III. Testifying experts versus consulting experts

But even before the pretrial dance of competing "testifying experts," civil litigation often involves another type of expert altogether — the "consulting expert."  By definition, a consulting expert is one retained in secret — even his identity, and the very fact that he's been retained, is something I dare not and need not disclose.  I may have hired him, in fact, to help me evaluate a prospective case before I've even made a final decision whether to undertake it.  And so long as I keep his identity secret, and his work and opinions carefully segregated from my "testifying experts," my opponent will never learn of his existence.

Some of the expert witnesses upon whom I may be obliged to rely may be ineligible for "consulting expert" status to begin with.  The physicians who've diagnosed and treated my client, for example, are bound to become known to my opposing counsel, and I'm bound to rely upon them as witnesses to testify as to the facts they observed and the actions they performed — which inevitably will draw into question the opinions and conclusions they reached during that process.  And it's also quite common for an "outside expert" — one with no prior factual connection to the case — to be retained initially by counsel as a "consulting expert," and only after counsel has concluded (using his judgment as an advocate) that it would be beneficial to his presentation of the case, disclosed to the other side and thereby converted into a "testifying expert."

Superficially, it may seem as though the practice of allowing the shielding of the identities and opinions of pure "consulting experts" would be antithetical to the process of justice.  But as it has developed, the law has recognized the overall benefits of allowing private and nondiscoverable consultations.  If, for example, I knew that every expert I ever consulted would become known to my opposing counsel — and that I might thereafter be "stuck" with an expert's unfavorable opinion — the natural result would be that I'd only consult with pliable and reliable experts whose opinions I could confidently predict in advance to be favorable to my client. 

Just as I must be able to consult with my client under the shield of attorney-client privilege to learn about unfavorable facts that I need to assess in order to perform my role as his counselor — a role that is and should be distinct from my performance before the outside world as his advocate — so too in that counselor's role I must be able to gather opinions that aren't sycophantic in order to assess the strengths of the likely expert testimony the jury will ultimately hear from both sides. 

Moreover, it promotes efficiency if I'm free to "sound out" various potential experts as pure "consulting experts" without thereby becoming stuck with them as testifying witnesses.  It's not uncommon to approach and even retain an expert with the highest hopes and expectations that he'll make the switch from "consulting" to "testifying expert," but then to find out that he's actually less qualified to render opinions than I'd first expected.  Perhaps I've first consulted a neurosurgeon to review my client Mr. Jones' medical records, and then learned from him that Mr. Jones' maladies really weren't by their nature subject to surgical treatment, and that instead I ought to seek opinions from neurologists and epidemiologists.  Or perhaps I've discovered that someone I retained as a consulting expert — with the expectation of eventually designating and disclosing him as a testifying expert — is well qualified, even brilliant, but he's got a troublesome lapse in his licensure from that license revocation proceeding he didn't think to list on his curriculum vitae, or he's simply an uncharismatic and inarticulate witness.  Why should my client's case be burdened with the embarrassment of calling these inappropriate experts?  That would promote confusion and needless expense, not truth-seeking.

The premise is that through the adversary system — in which my opposing counsel has these same opportunities to rely upon attorney-client privilege and the privilege against disclosing the identities and opinions of pure "consulting experts" — more cases will be likely to settle on a reasonable basis without a trial, and the cases that do go to trial will permit the factfinder to reach the fairest possible resolution of the disputed issues based upon two competing advocates' strongest possible presentations of their respective cases and attacks on each other's presentations.

IV. Journalists' use of experts

My job as a trial lawyer is to promote my client's interests, zealously but within the bounds of the law and legal ethics.  While I need to have a good appreciation of opposing views and the weaknesses of my own client's positions to perform my role as confidential counselor, I have no obligation to score points for my client's opponent — he has his own advocate to do that for him.

At least in theory, however, journalists, in contrast to trial lawyers, are not creatures of an adversary system.  While they have business competitors and perform in a marketplace of competing ideas and opinions, journalists have as their "client" the "public interest" and "the truth."  And that has profound implications for the differences in how journalists and lawyers rely upon and use experts.

Like me, a journalist may have need of an expert witness to analyze technical or scientific issues, render opinions on them, and digest their opinions down into bite-sized chunks that can be followed and assessed by the audience — jurors for me, the public for journalists.  Just as I might hire a forensic document examiner to assist me in determining the authenticity of a document for, say, a will contest case, Dan Rather may have need of a forensic document examiner to assist him in determining the authenticity of a memo produced by a source who claims that the memo bears upon President Bush's military service.

To a limited extent, I have no problem with journalists relying on their own sort of "consulting expert."  Dan Rather should be free to consult with, say, a typewriter repairman to find out what his experience and expertise may offer.  And I have no problem with Dan Rather deciding, after thorough examination, that the typewriter repairman wasn't really the right kind of expert he needed after all, and therefore leaving on the editing room floor all the footage of his interview with the typewriter repairman when he finally airs his broadcast. 

But as I understand journalistic ethics, what a journalist is not entitled to do is to simply "deep six" — to not only ignore, but actively hide or misrepresent — the opinions of experts with whom he's consulted who do have the relevant credentials and expertise, but whose opinions and conclusions don't fit with the premise of the journalist's story.

If Dan Rather and CBS News concluded, for example (as seems to be the case), that Marcel Matley, Linda James, Emily Will, and James J. Pierce were all competent handwriting experts, journalistic ethics do not permit them to simply ignore the objections raised by Ms. Will and Ms. James to the signatures on the Killian documents while only broadcasting, without reservation, the opinions of Mr. Matley and Mr. Pierce that the signatures were genuine.  If Ms. Will told CBS News that she had concerns about the documents' typefaces and format, and that they ought to consult someone with deeper credentials and expertise on those subjects rather than just the handwriting, then journalistic ethics would not permit CBS News to simply ignore that advice and proceed along as if it had actually consulted with experts who have the proper expertise.

Precisely because journalists must make their editorial judgments in a hurry — without the elaborate procedures of civil litigation and the checks and balances built into the adversary system — journalistic ethics placed a burden on Mr. Rather and CBS News that I, as an advocate, don't share:  The burden of being balanced and fair in their presentation.

But it's now quite obvious that CBS News and Mr. Rather violated their ethical obligations as journalists, and instead behaved as if they were advocates for a particular viewpoint, in this case a viewpoint critical of President Bush's service record.  They took it upon themselves to ignore controverting opinions and warnings from the very experts whom they had chosen to consult.  They treated those experts as if they were "consulting experts" whose existence and opinions they were entitled to hide from the public, and indeed at least for a time actively tried to conceal those experts' very existence.  They instructed Mr. Matley not to give interviews; they've in effect called Ms. Will and Ms. James liars; they've even concealed the fact that Mr. Matley and Mr. Pierce have given carefully limited opinions, opining only as to some documents and then only as to their signatures, not their typefaces and other characteristics.  Indeed, my friend and fellow lawyer-blogger AllahPundit has persuasively argued that CBS News appears to have engaged in authentication shopping, selectively revealing different document to different experts in hopes of finding a combination that would fit the theme they were trying to promote.

And in so doing, CBS News and Mr. Rather not only violated their ethical obligations — they also became willing accomplices to a forger.  Whether motivated by a desire to cover up their own unethical and incompetent journalism, or by a more repugnant desire to serve a partisan political goal, their conduct has been shameful and indefensible.   In either event, they clearly long ago ceased being objective journalists and became instead advocates — advocates unbound and unchecked by procedural rules, legal processes, ethical considerations or, apparently, even conscience.

Such behavior should have career-ending consequences.

Fifth SwiftVets ad: "Dazed and Confused"

The fifth SwiftVets ad, "Dazed and Confused," again focuses on John Kerry's/someone's discarded medals/ribbons — but this time with the emphasis on Sen. Kerry's flip-flops on the   subject of what he actually threw away, juxtaposing TV images of him in 2004 and 1972. 

"We threw away the symbols of what our country gave us ... and I'm proud of that."  That's from 2004, friends and neighbors. 

Sen. Kerry, are you also proud of the upside-down American flag, mocking the Marine flag-raising atop Iwo Jima, that was on the cover of your 1971 book, The New Soldier?  If so, why have you surpressed the reprinting of that book with that cover?  Why doesn't Amazon.com have a cover image for your book on its website?

   

What symbol of your country would you not have been proud to mock or throw away in 1971-1972, sir?  And now?

The histories that will be written of the 2004 campaign, if it ends up the way it's headed now, will all agree that John Kerry's bid for the presidency was sunk by ... John Kerry.

Our troops will whip the terrorists in Iraq — if we don't lose our nerve back home

Captain's Quarters has a fabulous letter to America from an American Marine major writing from Baghdad.  Here's a choice bit:

The naysayers will point to the recent battles in Najaf and draw parallels between that and what happened in Fallujah in April. They aren’t even close. The bad guys did us a HUGE favor by gathering together in one place and trying to make a stand. It allowed us to focus on them and defeat them. Make no mistake, Al Sadr’s troops were thoroughly smashed. The estimated enemy killed in action is huge. Before the battles, the residents of the city were afraid to walk the streets. Al Sadr’s enforcers would seize people and bring them to his Islamic court where sentence was passed for religious or other violations. Long before the battles people were looking for their lost loved ones who had been taken to "court" and never seen again. Now Najafians can and do walk their streets in safety. Commerce has returned and the city is being rebuilt. Iraqi security forces and US troops are welcomed and smiled upon. That city was liberated again. It was not like Fallujah – [in Najaf,] the bad guys lost and are in hiding or dead.

But read the whole thing.  And smile along with me when you read the last line — what a global information society we live in now, eh?

Does the White House read BeldarBlog?

From Friday's WaTimes:

Privately, some Bush advisers said Mr. Rather has become part of the story and therefore should recuse himself from further coverage. They suggested a more objective journalist at CBS should begin aggressively pursuing the question of whether the documents were forged.

From Wednesday's BeldarBlog:

And just as as Rule 3.7(a) of the ABA's Model Rules of Professional Conduct is intended to protect public confidence in the integrity of the judicial system, so too does the SPJ's Code of Ethics counsel that a journalist who himself has become the story, not continue to cover the story .... The personal and professional conflicts of interest that Mr. Rather and his team have when they are investigating and reporting on that controversy could not be more obvious or more palpable.

Naw.  If the White House read BeldarBlog, they'd have fed the WaTimes a reference to the SPJ's Code of Ethics.  It seems more likely that someone at the White House — and no one at CBS News — understands some very basic principles of journalistic ethics.

CBS News thought Rathergate docs were real because White House didn't object — even though its own experts already had!

Saturday's Los Angeles Times reports (reg. req'd, but don't bother, I've got the juicy bits) — in an article aptly headlined "In the Rush for a Scoop, CBS Found Trouble Fast" — that CBS News blames the White House for letting it blunder into Ra^thergate:

It was 11 a.m. on Sept. 8 — nine hours before "60 Minutes" was to air. But as news executives debated whether to broadcast a story on newly obtained paperwork offering fresh evidence about President Bush's National Guard service, a big question hung over CBS News' Westside headquarters: Were the photocopied documents real or fake?

Suddenly, the answer seemed to materialize, and from an unlikely source — the White House itself.

John Roberts, the network's White House correspondent, called to report he'd just completed an on-camera interview with Dan Bartlett, the White House communications director. Bartlett, it appeared, had no quarrel with the authenticity of the documents.

That was the turning point.

"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."

The story aired that night, and Dan Rather, the CBS News anchor, seemed to have scored yet another coup in his broadcasting career. Hours later, the roof fell in.

Critics, many of them Internet-based, immediately charged that CBS had relied on phony documents from a shadowy, unnamed source. Rather, 72, long a target for conservative critics, was again fending off allegations of liberal bias. A growing chorus of media observers voiced distress that CBS had hurried a story onto the air without fully checking the facts.

And Friday evening, the White House denied that it ever confirmed the documents as authentic. "For them to suggest that [the interview was] an endorsement or ratification of the documents is a terrible stretch of reality," Bartlett said in an interview.

He also disclosed that he had shown the documents that morning to President Bush. "He had no recollection of these specific documents," Bartlett said, though the president said some of the information seemed accurate. For instance, he did go to Alabama. But he denied having defied orders from his superiors, Bartlett said....

In the crucial interview with the White House communications director, Howard noted that Roberts had specifically asked if the documents were fake. Bartlett's answer was: "I'm not saying that at all. I'm just saying that the fact that documents like this are being raised when, in fact, all they do is reaffirm what we've said all along, is questionable."

Now how stupid is this defense?  "The White House made us do it!"  Or, more charitably, "We can't find out butts with both hands and a roadmap, so we relied on the White House to keep us from making complete fools of ourselves!"

How was Dubya supposed to immediately recognize as a forgeries documents that (1) no one claimed he'd ever seen before, (2) that supposedly came from the "private file" (3) of someone whose been dead for years?

If they'd said, "1st LT George W. Bush was banned from further command of a Navy Swift Boat," then sure — he might have been expected to snap to them being fake.  Just as, perhaps, John Kerry would instantly recognize this document as a forgery — if, in fact, it is one, and it hasn't been proved to be yet, even though the Kerry campaign has now had almost two full days to respond to it!

But the forger went to enough trouble to get some basic dates and facts somewhere in the general ballpark.  Did CBS expect Pres. Bush to drop all his duties and spend a half-day sitting in the Oval Office with a magnifying glass — maybe doing a Charles Johnson-type experiment with Microsoft Word?

CBS News' own experts were already telling them the documents were questionable — did they tell the White House that?  I think we all know the answer to that question.

And yet they expect the White House to make a definitive, on-the-spot decision.  Incredible — the arrogance!  The stupidity!

I'm more convinced than ever that CBS News is getting its strategic pointers — as well as its "experts" — from the moonbats at dKos and DU.

More interesting bits from this LAT article:

The network's new reporting will be wrapped up soon, perhaps this weekend or early next week, Howard said. More sources have come forward in recent days, and CBS is leaning on its original sources to see if they will go on the record, he added.

A behind-the-scenes look at how CBS raced to make a Sept. 8 broadcast deadline offers a cautionary tale of television news in an age of mounting competitive pressures. Although many news organizations were pursuing a definitive breakthrough on the National Guard story, CBS appeared to have the competition beat — until its scoop became a public relations disaster.

Many observers believe Rather and CBS will survive the storm — but only if they make a quick admission of guilt, assuming the documents are fraudulent. The anchor has complained that the furor over the documents has distracted attention from the truth of the story about Bush. Yet critics don't buy that argument.

"The fact is CBS used those documents as the smoking gun," said Alex Jones, head of the Shorenstein Center on the Press, Politics and Public Policy at Harvard University. "I don't believe Dan set out to mislead anybody, but he's got to stand up and take a bullet. His credibility and that of CBS are very much on the line."

And about Ms. Mapes:

The news business is built on trust, and there was no reason for "60 Minutes" not to trust Mary Mapes, 48, who lives in Dallas. She is universally well regarded by her colleagues, with a number of big stories to her credit.

Most notably, she was the producer on Rather's major scoop earlier this year making public pictures of U.S. soldiers degrading and humiliating prisoners in Iraq's Abu Ghraib prison. CBS went through a similar vetting process to make sure that those pictures were authentic, CBS executives said.

Mapes could not be reached for this story.

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.

The only phrase that comes to mind for this is:  "eager, willing, gullible tool."  But wait, there's more, about the early warnings that CBS News willfully ignored:

They had consulted outside experts to help them check the papers, and several confirmed their accuracy.

Marcel B. Matley, a handwriting expert from San Francisco, signed a letter this week saying he found "nothing about the documents that could disprove their authenticity." And James J. Pierce, a forensic examiner from Newport Beach, also signed a letter vouching for the signatures and typeface in the documents.

But others said they had voiced strong warnings to the network.

Emily Will, a professional document examiner in North Carolina consulted by the network to help assess two memos related to Bush's military service, said her copies showed a fax footer with a time stamp that read 6:41 p.m. Sept. 2.

The header of the fax, which presumably showed information about the sender, referred to a Kinko's shop near Abilene, Texas.

Will and another document examiner, Linda James of Plano, Texas, said they were first contacted by CBS News on Sept. 3.

"They said they had some documents, some sensitive documents, and would I mind working over the Labor Day weekend," Will said in an interview. "They wanted to know whether the signatures were genuine and the documents were genuine."

Will said she found "serious problems" with the documents. She isolated five ways in which the Killian signature on a 1973 memo did not match up with the other provided samples of his handwriting. She also wondered whether the memos contained superscripts and proportional spacing that existed in 1972 and '73, although she emphasized that her expertise mainly concerned handwriting and signatures and not the finer points of typography.

On Sept. 5, Will sent notations on the memos to CBS via e-mail and also voiced her concerns to a producer over the phone. The producer said they had more material to send her, but Will said those additional documents never arrived.

Meanwhile, James told producers she was troubled that she was looking at only copies and not originals. "[I] described what I needed in order to go ahead with the examination," James said. CBS promised it would send more paperwork, but according to James it never arrived.

"We knew it was a rush job. They wanted to air [the story] by Wednesday night," James said.

When time passed and Will heard nothing, she called CBS News the night of Sept. 7. She said she told her contact — whom she declined to name — "If you run this story, you'll get all sorts of questions from hundreds of document examiners." Will declined to say what if any reply CBS gave to her warning.

Simply astonishing.  And my hat's off to LAT staff writers Josh Getlin, Elizabeth Jensen and Scott Collins — damned fine reporting, folks!

What Beldar wants to know:  The election's not until November 2nd.  What was the rush?  Who else was the forger stringing along?  Was he threatening to take his goodies somewhere else unless CBS News rushed to judgment and onto the air?

I wonder if anyone at USA Today reads BeldarBlog?  Probably not — but I'll bet they read the LAT.  It's about time for those folks to speak up — past time, actually.

Should Dubya pardon Kerry?

I just read a creative and impassioned legal argument from the Holzer & Holzer team in FrontPageMag.com that effectively pre-empted something I've been intending to research and write about for weeks now.

Given the Navy Department's dismissal on Friday of the Judicial Watch complaint, I think that as a practical matter, there is zero practical chance that Kerry will ever be formally called to account for whatever he may have done, in Paris or elsewhere, as he finished out his Naval Reserve time. 

Still, I'd wager that an overwhelming majority of the public are still entirely unaware of Kerry's meeting(s) with representatives of the North Vietnamese government and Viet Cong in Paris before his famous Fulbright Committee testimony.  And the SwiftVets probably are working on an ad or two about "Tall John in Paris," so the issue's bound to keep coming up.

I therefore have decided to ply my hand at presidential speechwriting:

The President:  I know you're all curious why I've called this press conference.  I will keep this very short, and will take no questions afterwards, and neither will my staff make any comment upon it.

Allegations have been made that my opponent, Sen. John Kerry, may have run afoul of various criminal statutes and/or military regulations in meeting with representatives of the North Vietnamese government and the Viet Cong in Paris prior to Sen. Kerry's 1972 testimony before the Fulbright Committee.  I do not know the details of that meeting or those meetings.  Questions have also been raised about whether his participation as an antiwar activist while still a commissioned officer in the U.S. Naval Reserve may have run afoul of military regulations in one way or another. 

But in my judgment as Chief Executive, and under the power and responsibility granted me in that position by the Constitution, I have determined that it would serve the national interest to put to rest any further consideration of such issues during this critical time in our nation's history.  I have said before, and repeat, that I honor Sen. Kerry's combat service; and I will take on faith, without reservation, that anything he may have done in meeting with the enemies of this country during wartime were well intentioned and undertaken in a sincere belief that they were in the best interests of this country. 

I therefore have signed today a full and unconditional pardon in favor of John Forbes Kerry, absolving him from any potential criminal responsibility for such acts as he may have committed in such meetings, and/or in his capacity as a commissioned officer in the U.S. Naval Reserve. 

I urge all responsible Americans to accept this decision and action on my part as a complete and final closure of the issue, and like Sen. Kerry, I look forward to conducting the remainder of this year's presidential campaign with a forward-looking focus on how we should fight today's war, rather than a backward looking focus on what a presidential candidate may have done during that war more than thirty years ago.  This concludes my statement.  May God continue to bless these United States.

Your reaction, gentle readers?

Fisking Nicholas Kristof's NYT op-ed "A War Hero or a Phony?"

In Saturday's New York Times, columnist Nicholas D. Kristof offers an interesting op-ed entitled "A War Hero or a Phony?"  Since only one presidential candidate has claimed to be a war hero, you'd be correct in inferring that it's about Sen. Kerry. 

If you try to recall the state of public knowledge about Sen. Kerry's war record before the first SwiftVets ad appeared in early August, you'll recognize that at a minimum, the SwiftVets' campaign has had at least some success in knocking some of the burnish off that record.  But if you've been following the controversy closely, you'll see from Mr. Kristof's op-ed that on important points, he — and by fair inference, most of the mainstream media — is still clueless.

Mr. Kristof is obviously trying to write a balanced, if brief, examination of the SwiftVets vs. Kerry controversy.  He begins:

So is John Kerry a war hero or a medal-grabbing phony?

Each time that I've written about President Bush's dalliance with the National Guard, conservative readers have urged me to scrutinize the accusations against Mr. Kerry. After doing so over the last week, here's where I come out:

This is a good start, Mr. Kristof, that I only fault for the loaded term "dalliance" and for your failure to note that only Sen. Kerry has made his military service a cornerstone of his campaign.  You imply an equivalency that is facile, but false, as you've elsewhere acknowledged yourself.  Moving on (boldface in original throughout):

Did Mr. Kerry volunteer for dangerous duty? Not as much as his campaign would like you to believe. The Kerry Web site declares, "As he was graduating from Yale, John Kerry volunteered to serve in Vietnam — because, as he later said, 'It was the right thing to do.'"

In fact, as Mr. Kerry was about to graduate from Yale, he was inquiring about getting an educational deferment to study in Europe. When that got nowhere, he volunteered for the Navy, which was much less likely to involve danger in Vietnam than other services. After a year on a ship in the ocean, Mr. Kerry volunteered for Swift boats, but at that time they were used only in Vietnam's coastal waters. A short time later, the Swift boats were assigned exceptionally dangerous duties up Vietnamese rivers. "When I signed up for the Swift boats, they had very little to do with the war,'' Mr. Kerry wrote in 1986, adding, "I didn't really want to get involved in the war."

Again, the only quibble I have with this is that if one insists on drawing parallels between the candidates, it would only be fair here to also note that at the time Dubya signed up for the TANG, its units were flying F-102s in combat over Southeast Asia, and that Dubya unsuccessfully volunteered to join them there.

Did Mr. Kerry get his first Purple Heart for a self-inflicted wound? That's the accusation of the Swift Boat Veterans for Truth, who say that the injury came (unintentionally) from a grenade that Mr. Kerry himself fired at Viet Cong. In fact, nobody knows where the shrapnel came from, and it's possible that the critics are right. It's not certain that the Viet Cong were returning fire. But the only other American on the boat in a position to see anything, Bill Zaldonis (who says he voted for Mr. Bush in 2000) told me, "He was hurt, and I don't think it was self-inflicted."

GONG!  First major set of errors, Mr. Kristof.  Everyone agrees that there were three men on the skimmer.  There's a major dispute, however, regarding who else was there besides young Lt. Kerry.  How can you possibly have missed Lisa Myers' and Bob Novak's interviews with Adm. Bill Schachte?  And how can you have failed to learn that by regulation, "the key issue that commanders must take into consideration" in deciding whether to award a Purple Heart is "the degree to which the enemy caused the injury"?  How can you have missed the facts that Kerry's commander, Lt. Cmdr. Skip Hibbard, refused to put Kerry in for a Purple Heart after the 02Dec68 mission, but Kerry somehow mysteriously was awarded one anyway in March 1969, and that none of the normal paperwork that, again by regulation, should back up a Purple Heart citation has been produced?

Did Mr. Kerry deserve his second and third Purple Hearts? There's not much dispute that the second was merited. As for the third one, the Swift Boat Veterans' claim that he received it for a minor injury he got while blowing up food supplies to keep them from the enemy. But documents and witness accounts show that he received a shrapnel wound when South Vietnamese troops blew up rice stores, and an injured arm in a mine explosion later that day.

You're right, Mr. Kristof, that the SwiftVets haven't seriously challenged the second Purple Heart, although it was for another trivial bandaid wound.  But it wasn't "South Vietnamese troops" that blew up the rice pile, Mr. Kristof, it was Lt. Kerry and Lt. Rassmann, and they weren't under enemy fire at the time.  As for the "injured arm," that's a bruise, Mr. Kristof — not even a bandaid for that one.  These are important facts, and they're absolutely undisputed.  How can you have missed them?

Did Mr. Kerry deserve his Bronze Star? Yes. The Swift Boat Veterans claim that he was not facing enemy fire when he rescued a Green Beret, Jim Rassmann, but that is contradicted by those were there, like William Rood and Mr. Rassmann (a Republican). In fact, Mr. Rassmann recommended Mr. Kerry for a Silver Star.

GONG!  You're right, Mr. Kristof, that there is a dispute as to whether Kerry was under enemy fire when he plucked Rassmann out of the river.  But Lt. Rood wasn't there that day — and no one has ever claimed he was.  From Rood's ChiTrib article:  "I was part of the operation that led to Kerry's Silver Star. I have no firsthand knowledge of the events that resulted in his winning the Purple Hearts or the Bronze Star."  There are indeed eyewitnesses who say there was enemy fire and other eyewitnesses who say there wasn't.  But none of the eyewitnesses who claim that there was incoming enemy fire have ever been able to explain how no one, and none of the five boats, were hit by it.  Sen. Kerry's own version — that he braved enemy from both banks over a 5000 meter stretch — is almost certainly a gross exaggeration.  Finally, Mr. Rassmann's credentials as a Republican are somewhat questionable — and mostly irrelevant, Mr. Kristof, unless you'd like us to ignore your op-ed based on how you've voted recently.

Did Mr. Kerry deserve his Silver Star? Absolutely. He earned it for responding to two separate ambushes in a courageous and unorthodox way, by heading straight into the gunfire. Then he pursued one armed fighter into the jungle and shot him dead. According to Fred Short, a machine gunner who saw the event, the fighter was an adult (not the half-naked teenager cited by the Swift Boat Veterans) who was preparing to launch a grenade at the boat. "Kerry went into harm's way to save the lives of the guys on the boat," Mr. Short told me. "If he hadn't done that, I am absolutely positive I would not be here today." Mr. Kerry's commander said he had wanted to give him an even higher honor, the Navy Cross, but thought it would take too long to process.

Whether the tactics used that day were courageous or foolhardy is a subject of debate, but what's clear is that Kerry stayed on his boat during the first ambush, and all three boats offloaded a large contingent of South Vietnamese "Ruff-Puffs" to chase the bad guys in the first ambush; Kerry was in no more danger, and behaved no more bravely, than any of the other skippers or crew with respect to that ambush.  With respect to the second spot where Kerry and Rood beached their boats, there were at most one or two enemy soldiers, and the one Kerry chased down was already wounded and fleeing.  The "half-naked" allegation came not originally from the SwiftVets, but from reporting by Boston Globe reporter Mike Kranish, and it's absolutely irrelevant.  And Adm. Zumwalt — who by everyone's version was eager to find some Swiftees to pin medals on — was basing his understanding of what happened on the after-action report written by Kerry that conflated the two ambushes, making it look as though (as the citation reflects) he led a team ashore under overwhelming enemy fire and against numerically superior odds.  Kerry did his duty that day and was brave — but it was ordinary duty and ordinary bravery, not Silver Star-type heroism, and certainly nothing remotely justifying a Navy Cross.

Did Mr. Kerry exaggerate his exploits? Yes. For example, he has often said over the years that he spent Christmas 1968 in Cambodia as part of the secret war there. Others who served with him confirm that on Christmas Eve 1968 (not Christmas Day) he got very close to the border, and possibly even strayed across it. But it doesn't seem to have been, as Mr. Kerry has suggested, a deliberate incursion into Cambodia.

Close, Mr. Kristof!  But there's absolutely no evidence — including from any of Kerry's "Band of Brothers" — to support the claim that Kerry ever set foot in Cambodia at any time.  Yes, some of the canals he patrolled were within yards of the border.  But he was never in Cambodia — and there's no evidence to show that he was except for his own tall tales (which you rightly admit were exaggerations).

What do those who served with him say? Some who served on other boats have called Mr. Kerry a hypochondriac self-promoter. But every enlisted man who was with Mr. Kerry on various boats when he won Purple Hearts and Silver and Bronze Stars says he deserved them. All praise his courage and back his candidacy. "I was there for two of the Purple Hearts and the Bronze and Silver Stars, and he earned every one of them," said Delbert Sandusky, in a typical comment. "He saved our lives."

Mr. Kristof, you've completely ignored the crewman who served the longest under Kerry, SwiftVet Steve Gardner.  Did you somehow miss the third SwiftVets ad, which featured only him?  And you've ignored, too, the fact that the Swift Boats almost never operated alone, but almost always operated in groups in which Kerry's fellow Swift Boat skippers had a better perspective from which to observe his ability to work together, to follow orders, to support the overall operations, than his own crew had.  Those officers overwhelmingly support the SwiftVets' contention that Kerry is "Unfit for Command."

The bottom line? Mr. Kerry has stretched the truth here and there, but earned his decorations. And the Swift Boat Veterans, contradicted by official records and virtually everyone who witnessed the incidents, are engaging in one of the ugliest smears in modern U.S. politics.

What can one do but sigh and shake one's head in bewilderment at this?  "Ugliest smears in modern U.S. politics"?  Mr. Kristof, your own column has just demonstrated — you've just admitted — that the SwiftVets have succeeded in exposing Kerry as an exaggerator.  But for their efforts, neither you nor anyone else would likely have had a second thought about John Kerry's consistent portrayal of himself as a latter-day Audie Murphy or Sgt. York.

Every American voter is entitled to reach his own considered judgment as to whether Sen. Kerry was, as you put it, "A War Hero or a Phony?"  But Mr. Kristof, when you still are so badly deluded as to undisputed facts — such as the identities of major players in the controversy like Bill Rood or Bill Schachte or Steve Gardner — I respectfully submit that your considered judgment, as expressed in this op-ed column, is worse than worthless, it's deceptive and misleading.  You should be ashamed, sir — any junior high school editorialist could do a better job of fact-gathering than this.

Mr. Kristof publishes email exchanges with his readers, and writes in one:

Many conservatives have told me to look at Kerry’s records, and his failure to execute an SF 180. I’ve been looking at the issue, and I’ll address it in a column soon.

Oh, I can hardly wait.  Got that one calendared for November 9th or so, Mr. Kristof?

Update (Sat Sep 18 @ 11:20am): Captain Ed has an independent fisking that, unsurprisingly, notes many of the same fundamental errors I did.

Update (Sun Sep 19 @ 4:40pm):  Tom Maguire and Patterico also found Mr. Kristof to be an irresistible fisking target. 

Patterico's second update notes that Mr. Kristof's statement that "every enlisted man who was with Mr. Kerry on various boats when he won Purple Hearts and Silver and Bronze Stars says he deserved them" may be technically correct.  I did not claim otherwise, but I did (and do) accuse Mr. Kristof of ignoring Gardner, who served longer under Kerry than any other crewman (but not, indeed, on any of Kerry's medal-winning occasions), and the overwhelming number of Kerry's fellow Swiftee skippers who participated in missions with Kerry on a daily basis and who've joined the SwiftVets' assessment of him as "Unfit for Command."   Given the topic Mr. Kristof's paragraph — "What do those who served with him say?" — I think Mr. Kristof's focus only on crewmen who served under Kerry on his medal-winning days is ridiculously narrow.  Instead, as phrased, Mr. Kranish's own question would embrace within its scope the hundreds of Swiftees who've joined the SwiftVets, most of whom claim no personal knowledge of Sen. Kerry's actions, but object to Sen. Kerry's mischaracterizations of their service in his antiwar activism.  They are also in an extremely knowledgeable position to draw conclusions from second-hand information about Sen. Kerry's war service — much of which comes, indeed, directly from Kerry's own admissions and claims, or from his authorized hagiographer Douglas Brinkey, or from the biography written by the Boston Globe's Michael Kranish et al.

Judicial Watch strikes out with demand for Navy Dep't investigation

John Kerry has finally gotten some unequivocally good news in the ongoing controversy about his military service and antiwar activism.

As I wrote on August 19th, by formal request on August 18, 2004, as supplemented on September 8, 2004, Judicial Watch asked the Department of Defense and the Navy Department to investigate Sen. John Kerry's medals and antiwar activities.  On September 5th, I wrote that I thought Judicial Watch and some in the blogosphere were making too much of what I thought, on close examination, to be to be a letter which did nothing more than acknowledge receipt of Judicial Watch's complaint.

On Thursday, September 16th, Judicial Watch issued a press release advising that the

U.S. Navy Personnel Command, in response to a Freedom of Information Act (“FOIA”) request, has refused to release additional documents on the naval service of Senator John Kerry....

[Navy Personnel Command FOIA Officer Dave German] wrote [by email to Judicial Watch that] "We have withheld thirty-one (31) pages of documents from the responsive military personnel service record as we were not provided a release authorization.

According to the Judicial Watch press release, the Navy "referred Judicial Watch to the Kerry campaign Internet site for 'Numerous responsive U.S. Navy service record documents, as well as service record documents not subject to disclosure requirements under the FOIA'" — presumably meaning that the 31 withheld pages were not already disclosed there.

*******

On Friday, September 17th, Judicial Watch received a one-page letter from the Naval Inspector General, Vice Admiral Ronald A. Route, declining to take any action — or even to further pursue a full-blown formal investigation — in response to Judicial Watch's complaint:

In accordance with our established review procedures, we carefully examined the process by which Senator Kerry was awarded the Silver Star, Bronze Star, and three Purple Hearts in 1968 and 1969.  We found that existing documentation regarding his medals indicates the awards approval process was properly followed.  In particular the senior officers who authorized the medals were properly delegated authority to do so.  In addition, we found that they correctly followed the procedures in place at the time for approving these awards.

(Actually, all five medals were awarded in 1969, although the first Purple Heart was based on a trivial injury that Sen. Kerry received on December 2, 1968.  For reasons discussed below, this is not a trivial distinction.)

It's not at all clear what "existing documentation regarding his medals" Adm. Route may have reviewed, and it's extremely disappointing that he doesn't say.  By regulation, for example, Kerry's first Purple Heart should have been supported (see paragraph 2-17i of Army Regulation 600-8-22 on page 23 of the .pdf file) by both an after-action report documenting "the key issue that commanders must take into consideration," which is "the degree to which the enemy caused the injury" (see paragraph 2-8b(3) on page 19 of the .pdf file), and by a casualty report documenting the injury.  No such documentation has been produced by the Kerry campaign (the one-page medical record bearing the signature of Hospitalman J.C. Carreon isn't a "casualty report").  And indeed, Adm. Bill Schachte has repeatedly stated that neither document was created because there was no return enemy fire on that mission. 

Did Adm. Route locate and review a casualty report and an after-action report that someone — Lt. Kerry? — ginned up weeks or months after December 2, 1968, and routed around Lt. Com. Skip Hibbard, who'd refused to authorize a Purple Heart?  Adm. Route's letter leaves us still wondering.  In other words, if indeed the senior officers "correctly followed the procedures in place at the time for approving these awards," they must have done so using documents that are not in the public record — and that Sen. Kerry's continuing refusal to sign a Standard Form 180 will keep out of the public record.

Adm. Route's reference to "senior officers who authorized the medals [being] properly delegated authority to do so" refers to Judicial Watch's argument — which I thought was extremely weak to begin with — that only the Secretary of the Navy had authority to approve Kerry's Silver Star, and that Adm. Zumwalt lacked the authority to do so.

*******

Adm. Route's letter next says:

Conducting any additional review regarding events that took place over thirty years ago would not be productive.  The passage of time would make reconstruction of the facts and circumstances unreliable, and would not allow the information gathered to be considered in the context of the time in which the events took place.

Well, nobody ever said it would be easy, and the same could be said — to one degree or another — of any request for such an investigation.  Whether such an investigation would or wouldn't "be productive" is, of course, a value judgment.  However, I must reluctantly concede that for purposes of the Navy Department's decision whether to pursue a path that might strip Kerry of his medals, the Naval Inspector General, in the person of Adm. Route, is probably the proper military authority — perhaps subject to review upstream, but if so probably under a very deferential standard — to make that value judgment. 

That of course leaves free members of the public — including voters — who've followed the SwiftVets vs. Kerry controversy to make their own value judgments based on the incomplete public record that's available.  But it means they'll do so without the development of a fuller record than what's already available to the public — unless somehow Sen. Kerry can be induced by media and public pressure to end his stonewall, which would add significantly to the documentary evidence that's now available.

*******

Adm. Route's letter concludes with this final substantive paragraph:

Our review also considered the fact that Senator Kerry's post-active duty activities were public and that military and civilian officials were aware of his actions at the time.  For these reasons, I have determined that Senator Kerry's awards were properly approved and will take no further action in this matter.

Again, with due respect to Adm. Route, no one knows the full extent of Sen. Kerry's "post-active duty activities."  From his contemporaneous admissions, we know — as did civilian and military officials at the time — that young Kerry, while still an officer in the Naval Reserve, met with representatives of the North Vietnamese government and the Viet Cong in Paris before his Fulbright Committee testimony.  What we still don't know — and what neither military or civilian officials knew at the time — is what actually transpired in those meetings, or even how many such meetings took place!

Then and now, Kerry has been carefully vague in describing those meetings, characterizing them as "fact-finding" expeditions.  Yet he and his fellows in the Vietnam Veterans Against the War organization endorsed in full the wartime demands of our country's enemies for an immediate cease-fire and unilateral American withdrawal from South Vietnam.  Some of his fellows from those days have suggested that discussions included a partial release of prisoners of war that the North Vietnamese would expressly credit to VVAW's actions to bolster the domestic credibility and clout of Kerry and his fellow protesters.  That they have succeeded in keeping the details of their negotiations, and their agreements (if any), secret for so long is hardly a reason to assert that those details were known long ago.

Here again, however, I must concede that even if not supported by persuasive reasoning, Inspector General Route is probably the authority within the military structure who has the discretionary authority to decide whether this is something the Navy Department wishes to pursue.  And clearly, he has exercised that discretion against any further investigation.

*******

Adm. Route's letter makes no mention whatsoever of the impossible "Combat 'V'" designation for Kerry's Silver Star.  Nor does it address the multiple and varying versions of Kerry's Silver Star citation.  Nor does it indicate whether or not an investigator was appointed within the Navy Department to look into Judicial Watch's allegations — although the strong inference of his letter is that no such formal appointment was made, and that instead he determined to rule on Judicial Watch's complaint on a more peremptory basis.

*******

Judicial Watch's press release today declared:

"Admiral Route’s politicized letter raises more questions than it answers.  Kerry’s fellow and commanding officers have made credible, sworn allegations that call into question the legitimacy of John Kerry’s military service awards.  The Navy IG obviously is afraid of the political ramifications of a thorough investigation into a presidential candidate’s service record.  There is no statute of limitations, as the admiral seems to suggest, for fraudulent medals and questionable conduct.   We will appeal as appropriate this whitewash," stated Judicial Watch President Tom Fitton.

I'd agree that Adm. Route's letter leaves important questions unanswered and that it is puzzling and unsatisfactory in many respects.  I'd also agree that by necessity — given the fact that Sen. Kerry is a presidential candidate — this entire inquiry is necessarily "politicized," including both Judicial Watch's complaint and Adm. Route's response.  The term "whitewash," however, strikes me as over the top, and imputes to Inspector General Route and/or the Navy Department a pro-Kerry motivation that I think is unfair to assume.  I can certainly think of other rational bases for them to have reached this result besides a desire to "whitewash" Sen. Kerry's record.  And just as prosecutors and judges have no obligation to explain in detail every factor they've taken into account in making their decisions, nor to respond to every detail of a citizen complaintant's allegations, I can accept that some purposeful blurring or nonresponsiveness in Adm. Route's letter may be acceptable. 

Although brand new to this position, Adm. Route's  career accomplishments are as impressive as one would expect for the office he holds, and I'm confident that he secured the input of the Inspector General's in-house Legal Office as well.  Both Adm. Route and his decision are entitled to respect even from those who may disagree with it.  Judicial Watch's use of overblown rhetoric like the term "whitewash" diminishes its own credibility with the public, gives the Kerry camp tools to argue that Judicial Watch itself is behaving in a partisan fashion, and can't improve the prospects of whatever appeal Judicial Watch plans to pursue.

*******

Beldar's bottom line opinions on this decision: 

• If this was a ticking time bomb, the fuse on it has been snuffed out at least for now, and the Kerry campaign is certain to garner more political benefit from Adm. Route's decision than it sustained damage originally from Judicial Watch's complaint.  Fairly or not, this decision will be trumpeted, and likely perceived — and is already being treated by the press — as the Navy Department sustaining and even bolstering Kerry's war-hero claims, and rejecting the criticisms of those like Judicial Watch and the SwiftVets who've argued the contrary case.  (Both of these press reports reference a memo from Adm. Route to Navy Secretary Gordon England that appears to track his letter to Judicial Watch essentially word-for-word.)
• The confirmation that the Navy Department has at least 31 pages of Kerry records that aren't on his website, however, is important.  Again, the fact that the Navy Department has punted this hot potato ought not obscure the fact that Sen. Kerry continues to engage in a cover-up and stonewall — not only of his military records, but of his personal diaries and journals, the Medieros journal for PCF 94, and all the other materials that no one but Sen. Kerry and his pet biographer Douglas Brinkley have been allowed to review.

*******

So where does that leave us?  I know where it ought to leave Sen. John Forbes Kerry, anyway:

The Navy is letting you keep the medals you once so contemptuously threw over a Capitol fence, Sen. Kerry.  Be grateful for that, sir — it's an act of military grace.  But genuine questions remain about your service — questions that the Navy Department may be disinclined to pursue, but that substantial segments of the public still want to see answered. 

You and your surrogates have repeatedly chastised President Bush about his responses to questions regarding his military service, and you have demanded complete disclosure from him of all pertinent records.  Surely you've been embarrassed by the spectacle of some as-yet-not-quite-identified opponents of President Bush use of forged military records in an attempt to perpetrate a fraud on the American electorate through Dan Rather and CBS News.  Are you still so incredibly arrogant that you will continue to maintain that you are immune from legitimate public inquiry, even after all this?

Rathergate links roundup

Start with Jim Garraghty's Kerry Spot on NRO, where you'll find that —

• ABC News is reporting that Retired Col. Walter Staudt, who was described in one of the forged Killian memos as having pressured Killian to assist Bush and "sugar-coat" his evaluations, says "I never pressured anybody about George Bush because I had no reason to."  And: "'[Bush] didn't use political influence to get into the Air National Guard,' Staudt said, adding, 'I don't know how they would know that, because I was the one who did it and I was the one who was there and I didn't talk to any of them.'"  The latter quote is old news, made new again simply because Dan Rather is willing to ignore reputable reporting from the Dallas Morning News, among others, who proved years ago that disgraced politician and fat-cat Dem lobbyist and Kerry-insider Ben Barnes was, and is, full of crap when he claims to have gotten Dubya into the TANG.  (The Commissar writes of this ABC News story on Staudt, "It's not a coffin any more. It's a mountain of nails with a coffin at the bottom.")
• The Chicago Tribune narrowly edges its competition for best Ra^thergate headline of the day with "Eye Wide Shut," which observes of CBS News' "forged but accurate defense" that "[t]he fact that Adolf Hitler allegedly had thoughts similar to some in those long discredited 'Hitler's diaries' doesn't make them more than sleazy frauds."  More:  "News organizations that relied in part on CBS' story — the Tribune included — put some faith in CBS News' credibility. Only to learn that the network may have had its trademark eye wide shut."  Gotta love a hard-hitting editorial that leaves you (well, leaves me, anyway) remembering Nicole Kidman stepping out of slinky underthings.
• CBS News' resident curmudgeon, Andy Rooney, is "surprised at [CBS News' top brass'] reluctance to concede they're wrong." According to the New York Daily News, "Rooney and other CBS staffers are still holding out hope that Rather will produce something to authenticate the supposed memos from the early 1970s that criticized Bush's record in the Texas Air National Guard."  And I continue to hold out hope that Nicole Kidman will read my blog, smile that delightful, oh-so-wicked smile, click on the "About Beldar" link and ... oh, never mind.
• CBS affiliates continue to cringe over Rather's and CBS News' stonewall.  Geraghty rightly identifies the affiliates as a key point through which  blogs and blog readers can apply pressure to CBS News.
• CBS News' most recently disclosed expert, James J. Pierce, is very upset that CBS News posted his September 14th opinion — not just because it's prompted reporters to camp out on his home doorstep, but because "he was only 'midway through his analysis' of all the documents — speaking as though there were many docs. CBS gave you other documents besides the four that 60 Minutes used in the story? 'Lots more documents' were his exact words."  I believe this trims the number of "experts" of any stripe or credential who continue to stand foresquare and unequivocally behind the Tiffany Network down to two — Mr. Glennon, the typewriter repairman CBS News found on dKos, and Mr. Katz, the "software designer" who's noticed that "you'd have to go out of your way" to avoid Microsoft Word's automatic supercripting feature.  How pathetic is that?  Any trial lawyer who tried to take a case to trial with this kind of expert witnesses lineup would be sued for, and guilty of, gross malpractice.

Elsewhere, Hugh Hewitt seeks and receives help in fashioning an appropriate Ra^thergate/Lord of the Rings analogy.  My favorite so far:  "Grima Rathertongue."

Compare and contrast stories about forgery suspect Bill Burkett in the Houston Chronicle (been there, done that, already figured out this guy was a nutcase months and months ago) and WaPo (Burkett is a "Well-Regarded Texan" — maybe true, if sort of in the same sense that Charles Whitman was a well-regarded former Marine before he toted some sniper rifles to the top of the UT Tower in 1964).  Sheesh, even the Boston Globe had figured out that Burkett was an untrustworthy flake by last February.

RatherBiased discovers that Rather, CBS News,  and producer Mary Mapes were relying on Burkett back in February (about the same time the Houston Chronicle and other media outlets were concluding that he's a nutcase).

Former CBS News correspondent Bernard Goldberg has an op-ed in the Wall Street Journal recounting from bitter personal experience just how calmly Rather reacts to criticism.  As for why he's stonewalling:  "Because Dan Rather may be protecting not just his source, but himself; because, if the source turns out to be a partisan, then Dan wasn't just taken for a ride, but may have been a willing passenger.  And then Dan, and CBS News, can kiss their reputations goodbye."  (Note: "willing passenger" is not the same as "fellow traveler," even if they're both sitting on the left side of the car.)  NRO's Byron York also has a WSJ op-ed which points out that "[t]here is an army of well-informed fact-checkers out there, all connected on the Internet. There are people who know about things like computer fonts, or IBM typewriters circa 1972, or the arcane terminology of the Air National Guard. Pick a completely different subject, and there will be people who know about that, too."

Finally, from yesterday (I know, ancient history in this news cycle), don't miss Jed Babbin's posts (here and here) on NRO's The Corner, from which we learn that Mrs. Knox, the elderly-but-feisty Bush-basher who typed Col. Killian's real memos, was a pool typist, "out of the mainstream of the squadron, in an office that the pilots only visited occasionally," and in nowhere near as good a position to assess either young Lt. Bush or Col. Killian as were Col. Killian's son and other pilots who flew with them both.  Her own son, though, was also a member of this "Champagne Squadron."

Protecting our skies against bookmark terrorists

I don't mind longer lines at airports, or taking off my shoes, or undergoing a pat-down search, or answering extra questions.  I try to be extra nice to the security personnel to compensate for the grumpiness I know they face.

But one has to wonder whether the Homeland Security folks are setting the right priorities when they continue to forbid "ethnic profiling" for airport screening, but cuff and stuff into a squad car a 52-year-old teacher who's been caught attempting to board an airplane while in possession of a bookmark.

Actually, from the description, I suspect that the "concealed weapon" for which this poor woman now may face a potential $10,000 fine — an "8½-inch leather strap, with small lead weights at each end" — wasn't actually a bookmark per se, but a bookweight, like the one shown here from the marvellous Levinger company, which markets "Tools for Serious Readers" rather than "Tools for Terrorists."  Yes, yes, none of us thought of boxcutters as terrorist weapons before 9/11 either, I know.  And with a total weight of eleven ounces (with the leather-enclosed weights at each end probably accounting for about five ounces each), this item could indeed be used to raise a knot on the head of an ill-behaved teenager's younger sister. 

But a blackjack, it's not — those usually don't come with monograms, to my knowledge — and you could do more serious damage with your average hairbrush or, for that matter, your average hardbacked book.  I've given these out as Christmas presents to bookish friends, without worrying much about whether I was promoting skyjacking in the process.

Earlier this month, state attorneys declined to prosecute the case, but the teacher still faces a federal civil fine of up to $10,000. But a spokeswoman for the Transportation Security Administration said Thursday that the agency isn't likely to seek the fine.

Let's hope not.  Apologies should be forthcoming — as should policy revisions directed more toward likely terrorists than simple booklovers.  (Hat-tip Michelle Malkin.)

Beldar on Hugh Hewitt show

Hugh Hewitt generously invited me to call in for his national radio show this afternoon after reading my post about journalistic ethics and their application to the Ra^thergate scandal. 

Hugh gave a fine dramatic reading of the relevant portions from the

Society of Professional Journalist's Code of Ethics (2.9MB .mpg file here), and then interrupted a pretty good anecdote — one I'd have like to have heard the end of! — to take my call-in (6.0MB .mpg file here).  In hindsight, I suppose I was pretty guarded in the opinions I expressed about CBS News' experts and Mr. Burkett — I might have more colorful opinions to express over a beer — but in comparison to many other talk radio hosts, Hugh doesn't cater much to the red-meat-and-rabies-froth crowd anyway, so I hope I didn't disappoint.

You can always listen to Hugh's show via free internet streaming audio — either live or on a looping rebroadcast — via his home station, KRLA-AM in Los Angeles.

NYT corrects Van Os quotation

I haven't posted, or commented, on the quotation as originally attributed by the New York Times to Bill Burkett's lawyer, David Van Os, in which Mr. Van Os was speculating about the possibility that the Killian memos were forged.  But others in the blogosphere have, and many of them have argued — undertstandably from the original quotation — that it suggested a lack of ethical sensitivity on the part of Mr. Van Os.  In the interests of fairness and distributing more accurate information, I reprint here the NYT's correction of its original quote (hat-tip to PrestoPundit):

An article on Wednesday about disputed memos obtained by CBS News that cast doubt on aspects of President Bush's service in the Texas Air National Guard truncated a quotation from David Van Os, a lawyer for Bill Burkett, a retired National Guard officer whom Newsweek called a source of the memos. Asked what role Mr. Burkett had in raising questions about Mr. Bush's military service, Mr. Van Os posed a hypothetical chain of events in which someone — not Mr. Burkett, he said — reconstructed documents that the preparer believed existed in 1972 or 1973. Mr. Van Os then asked "what difference would even that make'' to the "factual reality of where was George W. Bush at the times in question and what was he doing?''

I continue to maintain that CBS News' use of forged documents is itself an issue of genuine public concern.  But while Mr. Van Os was obviously trying to change the subject, it does not appear that he was impliedly endorsing or dismissing outright the actions of the documents forger, whoever that may turn out to be.

A couple of my readers have emailed me with inquiries about Mr. Van Os.  I don't know him personally, and have only limited second-hand knowledge of his credentials, background, and reputation.  Mr. Van Os is indeed the Democratic Party's nominee for a seat on the Texas Supreme Court, running against an incumbent appointed by Gov. Perry, Scott Brister.  I strongly support Justice Brister's reelection, having appeared before him on many occasions while he was a state district judge here in Houston, including two complicated jury cases that were tried to final verdicts.  From personal experience, my opinion is that Justice Brister is an extremely bright, knowledgeable, hard-working, and no-nonsense judge who well deserves to keep his position on the Texas Supreme Court, and I endorse him without reservation.  I'm confident that the voters of Texas will agree come November 2nd — which will leave Mr. Van Os free to continue representing Mr. Burkett, who may have need for a good lawyer from time to time.

Should our President need an "uber adult"?

George W. Bush has a longtime stable of key advisors on matters political, military, and domestic.  It's a stable stable, if you will — with no huge shake-ups over time, good message discipline, and few leaks.  Dubya demands loyalty and gives it in return.

What a contrast one finds in tomorrow's page A1 WaPo article on the latest "additions" to the Kerry campaign.  I started taking notes, trying to compile a scorecard to identify all the players, but gave up when I started getting "memory overload" errors from my PC.  WaPo reveals that not only has the Kerry campaign concluded that it needs, as they admitted on September 2nd, "an adult traveling with the candidate," they need an adult to supervise the adult:

"In the wake of the Swift boat ads, Kerry had largely deputized Lockhart to oversee the day-to-day communications and message strategy of the campaign — two of the most important jobs. "He's the chief strategist," one aide said of Lockhart. McCurry is, in the words of one aide, "the adult on the plane," as far as implementing the day-to-day communications strategy.

Sasso has taken the role of "uber adult" on the road, the unofficial "best buddy" candidates traditionally have at their side, but that Kerry has often lacked. Sasso, who initially ran Michael S. Dukakis's campaign in 1988 and served as the former Massachusetts governor's chief of staff at a time when Kerry was Dukakis's lieutenant governor, is a widely respected manager. Democrats outside the campaign are looking to him to unite the various moving parts and changing roles in the campaign. Sasso and Lockhart are tasked with keeping Kerry's multitude of advisers at bay.

"It's obvious that they're trying to beef up the plane, that they need some help out there," said Democratic strategist Bill Carrick, a longtime adviser to Rep. Richard A. Gephardt (D-Mo.) who has no role in the Kerry campaign. Carrick calls Sasso "the ultimate grownup, someone who goes back a long way with Kerry and someone Kerry will obviously listen to."

Unfortunately, this apparently doesn't just betoken a campaigning weakness on Sen. Kerry's part, but something that's a fundamental part of his general management and decision-making style:

One of the abiding truths about Kerry — and one that is often frustrating to his aides — is that he will listen to anyone. He is known as a political loner, but he is also constantly on the phone and will take counsel at any time from any number of parties, be it fellow senators, longtime friends, advisers in ill-defined roles such as Shrum or freelancers such as Begala. Kerry is not a micro-manager, friends say, but he is prone to engaging in a vast and drawn-out process by which his decisions are informed.

"This is what works for John," said one longtime aide who is not involved in this campaign, "and we try to be respectful of it. But it can create a greater sense of chaos than is probably necessary."

Kerry insists that for example with respect to the Iraq War, he would have done "everything differently" than President Bush has.  Yes, Senator, I believe you — but differently doesn't necessarily mean better.  The way you're running your campaign — which reminds me strongly of my memories of junior high school, on a bad day — doesn't give one much confidence in your ability to run a war or a nation. 

NYT, covering Rathergate, imitates Rather

In an article by Jim Rutenberg and Kate Zernike in today's NYT, we see this assertion (boldface added):

The report [on Wednesday night] was a dramatic end to a day of heavy fire for CBS and Mr. Rather, from inside and outside the network, and added to a deepening mystery that has consumed a week of the presidential campaign. Inside the network, Mr. Rather's colleagues expressed growing alarm at questions about the documents' authenticity as Republicans in Washington declared CBS irresponsible and called for a retraction and even a Congressional investigation.

Scott McClellan, the White House spokesman, said at a news briefing that the Democratic National Committee and the Kerry campaign were behind the documents, an accusation both camps denied.

Nonsense.  McClellan said no such thing.

In his press briefing yesterday, we see this exchange (boldface added):

Q: Scott, on the National Guard documents on "60 Minutes," the First Lady says she believes these are forgeries. The RNC has accused the Democratic Party of being the source of these documents. Knowing then what you know now, would you still have released those documents when you did?

MR. McCLELLAN: Well, that's a hypothetical question, John. We received those documents from a major news organization. We had every reason to believe that they were authentic at that time. And in keeping with the spirit of releasing documents and being open about all the documents that we have, we made those documents available to everybody else so you could look at them yourselves. Since that time there have been a number of questions that have been raised about these documents and their authenticity. There continue to be questions raised. Those are serious issues; they ought to be looked into fully.

The one thing that is not under question is the timing of these orchestrated attacks by the Democrats on the President's service. These are old, recycled attacks, and the Democrats have made it clear that they intend to try to tear down the President and throw the kitchen sink at us because they can't run on John Kerry's record, and because they see him falling behind in the polls. And that's what this is about.

Q: Does the President agree with the First Lady that these are forgeries? And does he agree with the Republican Party in that the Democrats are the source of the forgeries?

MR. McCLELLAN: Well, Mrs. Bush was expressing her view. The view of the White House is that these are serious questions that have been raised and they ought to be looked into. Many media organizations are looking into them as we speak. They're interviewing additional experts. They have raised additional questions about it, and those are serious questions that ought to be looked into fully.

Q: Should Congress look into them? Because Christopher Cox has called for a congressional investigation of these documents. Does the White House agree that a congressional —

MR. McCLELLAN: Well, that's an action that Congress has taken. Again, we think that they ought to be fully looked into, and many news organizations are looking into them. They're talking to experts. There are many experts that are raising questions about these documents. And many of those media organizations have continued to raise questions about those documents.

Q: Does the White House believe that taxpayers' money should be spent looking into those documents?

MR. McCLELLAN: Well, again, that's a decision that you should address — a question that you should address to Congress. That's a decision that the Congress made.

Q: You don't care how the taxpayers' money is spent?

MR. McCLELLAN: Like I said, these are serious questions. They ought to be looked into fully, and most news organizations are taking a look at those questions.

How could McClellan have been any more clear?  He said that Kerry and the DNC are making attacks on Pres. Bush's military record — unquestionably true — and then when asked specifically whether the White House believes the Kerry campaign or the DNC are "are the source of the forgeries," he expressly declined to buy into that characterization, and again repeated that "these are serious questions that have been raised and they ought to be looked into."

Other bloggers have already noted and ridiculed another quote from this same NYT story — "For every expert who said the documents were patently false, another insisted they could be authentic" — which shows the NYT reporters suffer from a serious math impairment, or perhaps have had all their fingers and toes cut off.  But how astonishing is it that in covering a story about a major media source promulgating documents that have been made up out of thin air, the NYT's reporters decided to make accusations up out of thin air and then put them into the mouth of the President's press secretary?  Sheesh!

By the way, McClellan repeated that same position in today's press briefing aboard Air Force One (boldface added):

Q: Scott, can you talk a little bit about last night's remarks by Dan Rather? He seemed to almost personally challenge the President to answer the questions. And he also urged the media to sort of set aside concerns about whether the documents were forgeries and focus on the President's -- on questions about the President's service. Did he watch it? Did you watch it? What's your reaction?

MR. McCLELLAN: No, he didn't watch it. I did see it. I did see it. Well, CBS has now acknowledged that the crux of their story may have been based on forged documents. And they have determined that they will follow other news organizations and look into the serious questions that have been raised. There continue to be a number of questions raised about these documents. And you've heard what I've said repeatedly, that these are serious questions and they ought to be looked into fully. And a number of media organizations have been doing that. And now CBS has decided to do so, as well.

Q: As for the — Dan Rather's, you know, direct challenge, which we saw in The New York Observer yesterday, the interview in The New York Observer, he said: Answer the questions; with respect, answer the questions.

Was that appropriate for Rather to say and —

MR. McCLELLAN: Well, I think it's always best for journalists to stick to reporting the facts and not trying to dispense campaign advice. Did you have another question about last night or --

Q: No. The only other thing was, you know, he spent a lot of time interviewing this 86-year-old former secretary and seemed to — while acknowledging the possibility that the documents were forged, he seemed to cling to the essence of the accusations in the documents, even if they were phony. What did you think of that?

MR. McCLELLAN: So now some are looking at feelings and not the facts. You know, we don't have to rely on the feelings of a nice woman who has firmly stated her opposition to the President. We can look to the facts. And the facts are that the commanding officer at the time has categorically stated that what had been asserted simply was not the case.

Some are looking at feelings, yes.  And some others are just continuing to make stuff up and print it as if it were the truth.

Bill Burkett and Kinko's "secret signatures"

One of my readers, who advises that he's a former Kinko's "computer services" employee, reminds me that in addition to offering document faxing and self-service photocopying, Kinko's offers self-service computers and its employees will assist customers with computerized typesetting and document creation. 

He also advises that "each individual copy machine puts its own minute signature on the document that can be detected by the FBI and Secret Service. This is part of the anti-counterfeiting measures the government has in place." 

I don't know whether that also applies to documents printed from PCs through laserjet printers, or whether private (non-governmental) document experts have the information and technology to detect these "signatures."  But assuming this is correct, it's all the more reason why it is essential that CBS News isolate, segregate, and protect from spoliation the "closest to original" photocopies and/or fax printouts in its possession.  And if indeed this information on the "signatures" is in the public domain, that's yet another reason for CBS News to make all of its "closest to original" documents available for public inspection by genuinely independent and well-credentialed document authentication experts.  Such experts must be accountable not to CBS News, but to the public — no more ignoring or selective quoting of their resulting opinions.

Meanwhile, Bandit of Bandit's Hideout and Captain Ed of Captain's Quarters have found an op-ed purportedly written by Bill Burkett on Online Journal on August 25, 2004, which says (bracketed portion and italics in original; boldface added):

George W. Bush, you may be the president [sic].  But I know that you lied.

I know from your files that we have now reassembled, the fact that you did not fulfill your oath, taken when you were commissioned to "obey the orders of the officers appointed over you."

So who's the "we"?  And what "reassembl[y]" was involved?