« On 9/11/01 plus three, I worry about John Kerry's short memory | Main | Why does USA Today have two more purported Killian memos than CBS News has revealed? »

Saturday, September 11, 2004

Rathergate day 3 update

Culled shamelessly from InstaPundit in the most part, here's what my quick skim suggests to be the latest developments on the forged documents that CBS News continues to peddle:

  • The Boston Globe continues to vie with CBS and the AP for the "2004 Biggest and Most Shameless Mainstream Media Liar Award," wrenching badly out of context its quotes from forensic document and typeface expert Dr. Philip D. Bouffard to suggest that he now supports the authenticity of the CBS News documents.  Blogger Bill at INDC Journal has been in direct contact with the very disgusted Dr. Bouffard, reporting here, here, and ; he's updating prior posts and adding frequent new posts, so be sure to check his main page as well.
  • Wizbang! reports that CBS News tonight gratefully and shamelessly repeated the Globe's lies about Dr. Bouffard.  The CBS News website has been updated to include a reference to the Globe story, plus this misleading (and sloppy) statement:  "Anchor Russ Mitchell of the Saturday edition of the CBS Evening News says CBS News contacted Broussard [sic] Saturday, and Broussard said he could not dismiss the documents as fake, but he needs to do more analysis before coming to a final conclusion."
  • A certified forensic document examiner contacted by the Washington Times, Eugene P. Hussey, disagrees with CBS News' expert Marcel Matley on the authenticity of Col. Killian's signature(s) on the CBS News documents, and also "agreed with experts who say the CBS documents are 'computer generated,' meaning they could not have been produced in the early 1970s."
  • Meanwhile, the Los Angeles Times reports (if you scroll down far enough) that in their interview with him, Matley himself "said he had only judged a May 4, 1972, memo — in which Killian ordered Bush to take his physical — to be authentic.  He said he did not form a judgment on the three other disputed memos because they only included Killian's initials and he did not have validated samples of the officer's initials to use for comparison. A CBS official who spoke on condition of anonymity said that the network had two other document experts, who CBS did not identify, examine the documents, which were copies of the originals."  As I wrote yesterday, I believe that Matley lacks the training and expertise to render opinions on anything other than signatures and handwriting.
  • WaPo reports that "Matley said last night that a '60 Minutes' executive had asked him not to give interviews."  When, as a lawyer, I hire an expert witness to provide opinion testimony to support my client's position in an adversarial matter, I give him similar instructions. I do so because I'm concerned that if the other side speaks to my expert without my participation, the other side will do to my expert what the Boston Globe has done with Dr. Bouffard — confuse the situation and grab quotes out of context to try to discredit my expert or his opinions.  When I give that instruction, though, I know full well that the other side will have a full opportunity to examine in advance a written report with my expert's conclusions, plus a written curriculum vitae detailing his credentials and experience; examine everything he's looked at or considered in coming to his opinions; and then cross-examine him fully under oath.  Thus does the adversary system promote the seeking and finding of truth.  But CBS News supposedly doesn't have a client and supposedly isn't an advocate for one side or the other.  Their instruction to Matley therefore simply and shamefully opposes the process of finding the truth.  [This paragraph added by Beldar in an update on Sat Sep 11 @ 8:00pm.]
  • ABC News reports that one of the sources CBS News principally relied upon — retired Maj. General Hodges, who was Killian's supervisor at the Texas Air National Guard — "feels CBS misled him about the documents they uncovered," and that "CBS told him the documents were 'handwritten' and after CBS read him excerpts he said, 'well if he wrote them that's what he felt.'"  According to ABC News, "Hodges also said he did not see the documents in the 70's and he cannot authenticate the documents or the contents. His personal belief is that the documents have been 'computer generated' and are a 'fraud.'"
  • Pete Slover of the Dallas Morning News — who, in 1999, co-wrote an authoritative and exhaustive debunking of Ben Barnes' claims to have secured Dubya's spot in TANG — confirms that Col. Walter "Buck" Staudt, the officer referenced in one of the CBS documents dated August 18, 1973, as pressuring Col. Killian to "sugarcoat" his evaluation of Dubya, was in fact "honorably discharged on March 1, 1972."  Slover's story also quotes former TANG officers who mockingly reject CBS News' latest theory, that Staudt somehow continued to be in a position to exert pressure over Killian even after his retirement.

I've made no effort to list or link the many other discussions in the blogosphere and, commendably, in the mainstream media over the last 24 hours regarding this controversy.  But if I've missed an important development, I hope my readers will so alert me in the comments to this post.

Posted by Beldar at 07:05 PM in Mainstream Media, Politics (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Rathergate day 3 update and sent a trackback ping are listed here:


(1) Dan made the following comment | Sep 11, 2004 7:27:30 PM | Permalink

Betsy's Page has a link to a story on when Staudt has spoken out on this issue. Given his past comments it seems highly unlikely he would pressure anyone in a negative manner as regards Bush.


"Over the past 16 years, however, Staudt has been quoted on the subject in a number of major newspapers and at least one book. He has been consistent and often colorful in his basic messages: George W. Bush was a fine pilot and no strings were pulled to get him into the Texas guard.

In March, the 81-year-old ex-general had this to say to the Spokane Spokesman-Review about the president: "I love the guy. I'm so tired of this negative crap about him."

Six years ago, the Washington Post attributed these words to Staudt regarding Bush and his route into the air guard: "I'll tell you, he was an asset. ... Anyone who suggests there was family influence to get him in is a damn liar."

(2) Joe made the following comment | Sep 11, 2004 7:27:31 PM | Permalink

Beldar, I think it's about time that Dr. Bouffard availed himself of the services of a mean, tough lawyer who will sink his teeth into the collective derrieres of CBS and the Globe until they retract. What say you?

(3) Beldar made the following comment | Sep 11, 2004 7:39:38 PM | Permalink

Joe, I'm in the wrong state. Dr. Bouffard's in Ohio, CBS is in New York, and the Globe is in Massachusetts. Any litigation filed by Dr. Bouffard would need to be in one of those three places, and a threat/demand letter from a Texas lawyer wouldn't be taken seriously, I'm afraid.

(4) Eric Pobirs made the following comment | Sep 11, 2004 7:44:02 PM | Permalink

1979? Don't you mean 1999 for the Barnes debunking? Typo Alert!

(5) Al made the following comment | Sep 11, 2004 8:08:30 PM | Permalink

Here is a summary of the typgraphic problems, including output from a 'IBM Selectric Composer' and an 'IBM Executive', the two most referenced proportional type typewriters of the era. http://peterduncan.net/CBS_Documents.html

Another typographic person expounding:

Reward "offered". They don't have an escrow sort of arrangement though, so who knows. Still, $17,600...

The circular arguing from CBS is mindboggling.

1) We had 3 opinions (never mind that plenty of others were offered, 3 was all we could get supporting our position.)

2) Hodges: I was lied to, Strong: I didn't claim authenticity, Matley: Yup, that's a signature.

3) So the Globe tracks down 'The' expert, and sends the resulting snippets through a treatment Dowd would be proud of.

4) CBS: We had several experts, and now the Globe has more, see!

(6) Beldar made the following comment | Sep 11, 2004 8:17:52 PM | Permalink

Eric: Thanks for the catch! Typo duly corrected.

(7) Polaris made the following comment | Sep 11, 2004 8:54:14 PM | Permalink

CBS and Rather are busted. If I had any doubts that the memos were false before, they are gone now. Why? Because if they were geniune, CBS could have had independant experts verify that with the originals in five minutes, and that would be that. In fact it would be a media coup for them at this point.

In fact, the fact they don't have the originals is damning since supposedly CBS got them via a FOIA request.


(8) Fredrik Nyman made the following comment | Sep 11, 2004 8:54:22 PM | Permalink

What kind of legal case would Bouffard (and, for that matter George Elliott, of Swiftvets fame) have if the Globe did intentionally misrepresent what they said in their interviews?

Stipulating the above:

1. The Globe's misrepresentation hurt Bouffard's professional reputation. Can he sue for that?

2. The Globe's misrepresentation hurt Elliott's personal reputation. Can he sue for that?

3. What is the relevant burden of evidence; that is, what would Bouffard and Elliott have to do to prove their cases?

4. For Elliott's case, how relevant is Kranish's financial interest in smearing Elliott and the Swiftvets?

5. Would the two cases be allowed to refer to each other (and other similar cases that I suspect exist) to show the existence of a pattern of misrepresentation for political partisan reasons?

(9) John Rosenberg made the following comment | Sep 11, 2004 9:17:22 PM | Permalink

I have a post on Discriminations that portrays the Rather/CBS controversy as a reprise of the controversy over Rigoberta Menchu's fraudulent but Nobel-winning autobiography.

(10) Hartvigh made the following comment | Sep 11, 2004 9:27:32 PM | Permalink

Please tell me why this is all wrong:
What if CBS got hand written copies of these "CYA" memos, that they showed to their hand writing expert, who said they were Killian's. Then to make it easier for their viewers, they transcribe these "authentic" hand written notes on a PC and then attempt to pass that off as the originals. They're in a box in not wanting to admit they did the transferring to a typed format but they believe they have the proof in the hand written originals. Please tell me why this is ridiculous. I found Ace's response the best yet to Rather's reaction to all this.

(11) doug adams made the following comment | Sep 11, 2004 9:57:53 PM | Permalink

Just kind of wondering if there were any annual office equipment inventories from the TexANG at the time in question and if (the big if) they have survived in some dusty box in some basement? Wonder if CBS is already digging - Seems that inventory would lay to rest whether the kind of typewriter required was even in the office. No Selectric, no Executive, no Rather -

(12) DaveDube made the following comment | Sep 11, 2004 10:10:13 PM | Permalink

Does the Killian family have any legal recourse?

(13) Narniaman made the following comment | Sep 11, 2004 10:32:30 PM | Permalink

Hartvigh asked:

"What if CBS got hand written copies of these "CYA" memos, that they showed to their hand writing expert, who said they were Killian's. Then to make it easier for their viewers, they transcribe these "authentic" hand written notes on a PC and then attempt to pass that off as the originals. They're in a box in not wanting to admit they did the transferring to a typed format but they believe they have the proof in the hand written originals. Please tell me why this is ridiculous."

If this was true. . . .why would they have attempted to "age" the documents by adding some distortion? Why would they be deceptive about the officer they quoted as supposedly supporting the documents? Why weren't they truthful with the response from Killian's family?
Why did they lead Killian's family to think he had typed up notes that they didn't know anything about?

I suspect they got this straight from the Kerry campaign, and since they knew that the Kerry campaign was honorable and that Bush was a rascal, they didn't bother to check on it at all. There "document experts" were probably a couple of low level employees who were in the military at one time or another and have seen military correspondance in the past. The CBS powers showed these to their minions, and the minions said. . ."Yeah, that shore enuf looks like some military correspondance I saw sometime in the past."

The reason I suspect the Kerry campaign didn't do a better job of producing the forgeries is that they were in a panic from the Swift Boat commercials, the Republican convention, Zell Miller's speech, and Kerry's drop in the polls. Hence the plan was hatched and the forgeries produced by someone who is not quite as clever as they thought they were. News of the operation was leaked to people like Susan Estrich, who triumphantly boasted on TV that new dirt was coming out about Bush et.al.

Probably the DNC person that created the forgeries thought, "Well, I had better make sure that I make it look like something a typewriter would do. Let's see. . .Arial. . .no, that's not like a typewriter, . . .Tahoma. . .no, that doesn't look like it. . .New Times Roman? Bingo!! Looks just like what a typewriter did.

So did CBS know they were forgeries? Possibly. But they wanted it to be true, and didn't think that any of the stupid wingnuts would know the difference. And why might they think that? Possibly because they have gotten away with stuff like that in the past.

(14) Fresh Air made the following comment | Sep 11, 2004 11:51:28 PM | Permalink


There is another fisking going on at Little Green Footballs. One of the memos says Bush was going to work for his father's campaign in 1972. But George H.W. lost in his re-election bid in 1970. He wasn't running for anything then.

Another log on the bonfire for you.

(15) Ben Zeen (a pseudonym) made the following comment | Sep 12, 2004 1:11:32 AM | Permalink


Your scenario is not wrong at all. In fact I can see the conversation now...

CBS Staffer: Hey, I got your instructions, and I'm a little confused about them. Can I ask you a few questions?

CBS Reporter: Sure, fire away.

Staffer: Okay, I transcribed the memos like you asked, but I'm wondering about what comes next. You said you wanted to make it easier on our viewers to read,

Reporter: Right...

Staffer: but why should I print it up as a Word document? We have that fancy television text display system, shouldn't we use that?

Reporter: Well, we want make it easy to let our viewers to get hold of these memos, so we want to post it on our web site. Inputting into the T.V. text package would be wasteful duplication.

Staffer: But it's just a simple copy and paste...

Reporter: Exactly, and that would be wasteful.

Staffer: Okay, but why not just include the text in a web page?

Reporter: We really want to let our viewers feel that they're part of the action. Sure you can print up a web page, but it doesn't look like a real memo.

Staffer: Fine, but your instructions are to print it, make a photocopy of a photocopy of a photocopy of it, and then scan it back in. Why not just post the Word document, or a PDF generated directly from it? It would be a lot easier to read.

Reporter: That's just the problem. It would be *too* easy to read, too clean. It wouldn't really feel like an old memo. We don't just want a re-creation, we want a *dramatic* re-creation. A clean memo just isn't very dramatic.

Staffer: Okay. But why not scan in the handwritten notes and post them too?

Reporter: Simple. If we do that, anyone can run the story. We would no longer have an exclusive. Exclusives mean ratings, ratings mean advertising, advertising means that you get to keep your job. Got it?

Staffer: Got it.

[The next day...]

Staffer: Hey, people think these documents you had me post are forgeries. I'm getting worried here. Can't we post the originals and clear all this up?

Reporter: Exclusive.

Staffer: Huh?

Reporter: Ex-clu-sive.

Staffer: But our credibility is really taking a beating here!

Reporter: Do I have to spell it out for you? X-L-O-U- uh, EX-CLU-SIVE.

Staffer: But...

Reporter: Exclusive means *you* keep *your* job.

(16) jc made the following comment | Sep 12, 2004 2:48:22 AM | Permalink

Looking forward to the Debates.

It must be crystal clear to everyone that having CBS News participate in any fashion will be very, very strange.

What would you do if you were the Bush campaign in the ongoing debate negotiations?

(17) Steel Turman made the following comment | Sep 12, 2004 5:36:11 AM | Permalink

RE Debates,

I would stall for a week or two more and
and insist I was too busy being Pres.

THEN, I'd insist the veeps do their debates

Then, I would accept the debates without
partisan moderaters.

Since THAT would take another week or two
to be arranged ...

I'd do the photo op at the voting booth.

Maybe through in a side of Ben Laden or
Zawahiri for extra emphasis.

OR I might have to conduct a summit with
Putin because of all those babies shot in
the back.

And THEN have the photo op at the voting

If I were Bush, I wouldn't give Kerry the chance to screw things up. He's toast/why bother. As long as I'm busy doing the work
of the office ... who gives a rat's ass about
some hokey debate with some loser.

What would YOU do?

(18) Norman Rogers made the following comment | Sep 12, 2004 7:07:27 AM | Permalink

Beldar, you do have a "gotcha" question for your imaginary cross of CBS's document "expert".

From Jim Garaghty's Kerry Spot,

BACK TO THE CBS MEMOS [09/11 02:32 PM]

The only expert cited by CBS in this case, Marcel Matley, wrote in the September 27, 2002 issue of the journal, "The Practical Litigator":

In fact, modern copiers and computer printers are so good that they permit easy fabrication of quality forgeries. From a copy, the document examiner cannot authenticate the unseen original but may well be able to determine that the unseen original is false. Further, a definite finding of authenticity for a signature is not possible from a photocopy, while a definite finding of falsity is possible.

Attempting to authenticate a signature from a photocopy is exactly what Matley did for CBS.

(19) John Hampton made the following comment | Sep 12, 2004 8:20:06 AM | Permalink

This is a really significant meltdown, and for the first time, is a fusion of political and market power.

Dan Rather is betting the credibility of CBS to attack George Bush. He is "doing a Cronkite(Tet Offensive)" to push the election, and to hell with CBS/Viacom shareholders.

Yesterday afternoon at 4:13 pm Powerline began considering what he could do to CBS about their stiffarm tactics.

CBS is dependent on the goodwill of their advertisers. Although a boycott of CBS will be ineffective, a widespread campaign to complain to the advertisers and sponsers of CBS, CBS news and 60 minutes will have an impact.

Also, I think this will effect the stock price of CBS/Viacom, so there is an additional play in selling the stock short, or buying/selling puts/calls.

What interesting times we live in!!

John Hampton

(20) jack white made the following comment | Sep 12, 2004 8:27:02 AM | Permalink

Beldar, if the CBS charges were the equivalent of a plaintiff's action, the whole case would be dismissed on summary judgment in my opinion. To help your readers, summary judgment is a procedure to eliminate lawsuits that have no merit. Summary judgment usually follows a procedure known as discovery, in which each side gathers supporting evidence. This happens before--often long before--a case gets to a jury.

The primary reasons this would be dismissed on summary judgment, unless I have missed something, is that the only supporting affidavits and depositions (types of sworn statements used in this procedure) that could be submitted for CBS would come from sources who either now believe the documents were fraudulent and/or claim they have been misled by CBS. The only expert, from what I gather, that remains for CBS couldn't testify about anthing other than handwriting and not about typography or any other area. The Boston Globe expert has recanted, the best I can tell.

So viewed in the light most favorable to the Plaintiff CBS, we would have to accept the expert testimony the handwriting was authentic. Nothing else CBS has submitted would be entitled to this normal presumption under the law.

Of course, the Defendant's brief would be loaded with affidavits from family members, PRIMARY sources used by CBS, and voluminous experts, all of whom would swear that the documents are forged or could provide details to support this conclusion that the memos are frauds.

So I don't think this would get beyond summary judgment, let alone to a jury. To cut to the chase for your readers, this means CBS' case would be so insufficient it would be deemed unworthy of further hearing.

Although reporters aren't bound by legal standards of proof, they do have to follow policies and procedures that resemble many of these rules.

CBS has, at a minimum in the legal sense, filed a frivilous lawsuit; at worst it faces disbarment for intentionally lying to a tribunal--in this case, the American public.

(21) OhMike made the following comment | Sep 12, 2004 9:08:16 AM | Permalink

Mr. White,

That was an excellent analysis. Thank you.

As a layman I appreciate hearing this whole memo scam discussed within the framework of the law and the rules of evidence. If we apply those rules fairly, maybe we get at the truth.

You have done people like me a service by providing expert knowledge that we laymen need to make informed judgements in this case.

Maybe you or Beldar can expand on the significance of CBS asking their hanwriting expert not to give interviews.

(22) Joe made the following comment | Sep 12, 2004 9:23:04 AM | Permalink

>> The Boston Globe expert has recanted, the best I can tell.<<

Not so, if you're referring to Dr. Bouffard. He can't have recanted because he never said what the Globe portrayed him as saying in the first place.

(23) jack white made the following comment | Sep 12, 2004 10:29:22 AM | Permalink

Please keep in mind it has been several years since I practiced, but I wouldn't post if I weren't confident in what I wrote.

Let us assume, again, this was a civil trial. If CBS' expert failed to provide information that could be used in the lawsuit ("complaint), let alone an affidavit or deposition, this possibly wouldn't even require a summary judgment motion--a simple motion to dismiss might suffice. These almost are never granted, but when you fail to state a case on the face of the lawsuit, they can be granted. Without CBS' expert opinion, there apparently would be no case.

I have only seen a motion to dismiss work once, so let us assume we get to the next stage, a summary judgment motion. If no affidavit or deposition were provided by the CBS expert--and given, as Joe correctly wrote above, there was never actual expert testimony for the Globe--the motion almost certainly would be granted.

But let us assume there was a trial. The Plaintiff CBS would not have any expert testimony. At the close of CBS' proof, and for the life of me I don't see any left, the judge would grant a directed verdict for the Defendant. This means the judge would in effect do what the motion to dismiss or summary judgment motion would have done.

I think, getting away from the law, the only question left is who provided forgeries to CBS. If it proves to be the Kerry campaign, this is over. Period.

The damage to CBS is enormous, and I submit permanent. My bet is they give up the source.

The comments to this entry are closed.