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A few weeks ago former U.S. Attorney General Richard Thornburgh and Lou Boccardi, ex-president and CEO of The Associated Press, released their report on Dan Rather’s use of allegedly forged Texas Air National Guard documents covering President Bush’s military service. The report, as is well known, excoriated CBS for the use of these documents. It is, however, a flawed report. It should not be swallowed hook, line and sinker. The report concluded that CBS failed to hire appropriate experts to verify the documents, did not establish “a chain of custody” for them, rushed to judgment and aired a false and misleading report. In addition, Thornburgh and Boccardi said, CBS did not promptly acknowledge flaws in its program. CBS did rush to judgment and was slow in responding to criticism. The reviewers’ conclusions on the other points are not, however, persuasive. Surprisingly, their report is unable to conclude whether the documents are forgeries or not. If the documents are not forgeries, why is the panel writing the report? The answer: to criticize the newsgathering practices of CBS, whether its stories were true or not. As such, the reviewers’ report is less than fully credible. THE EXPERTISE OF THE EXPERTS The panel launches a major attack on the four experts CBS hired to authenticate the document. One of the four, James Pierce, concluded the signatures on the documents were authentic and there was no reason to believe they were not real. A second expert, Marcel Mately, also concluded the signatures were genuine. The other two experts had reservations about the documents. The panel says CBS should not have relied on Pierce and Mately, but that assertion is not convincing. Thornburgh and Boccardi say CBS should have known that copies of documents, which these were, can never be authenticated. A document can only be authenticated when compared to the original. There were no originals. Secondly, the review report also asserts CBS should have known there are two classes of experts in the field: one respected, the other not. Pierce was in the superior category. Mately and the two other CBS experts were not. Pierce however, was the one who effectively authenticated the document. The panel never interviewed him. If the panel never talked to the one expert upon whom CBS principally relied, how can it conclude he was not expert? It gets worse. If lawyers know how to hire appropriate experts, even if journalists don’t, why didn’t the panel, backed by a huge law firm, hire its own experts? One suspects that if the panel had hired experts, it would have ended up with some experts saying the documents were reliable, and others not sure. And that would have put the panel back where CBS was. The report criticizes CBS for not being able to prove “chain of custody” for the documents. Since CBS’ source, Lt. Col. Burkett, only had a copy of the documents, CBS should have known where this copy came from or, indeed, the source of the original document. In order for seized drugs to be introduced into evidence, a lawyer must prove who handled them from the time of seizure — the “chain of custody.” While such proof is relevant for drug cases, it is irrelevant for journalists. Few, if any, stories based on documents would ever be written if that were the standard. One of the greatest concerns facing The New York Times in publishing the Pentagon Papers was their authenticity. A major fear was they had been forged by an anti-war group. If a strict chain-of-custody standard had been applied to the Times’ possession of the Pentagon Papers, it would have blown the story. Such a standard would have required a call to the Defense Department or the Rand Corp., known to have custody of the originals. Of course, that call would have brought the FBI to the Times’ door in a second. What journalists do when they receive copies of documents is to make judgments as to the source and the provenance of what they have. Are they consistent with known facts? Is it logical to assume such documents exist? And so forth. TRACKING A ‘TRACKING ANALYSIS’ Rather’s producer made judgments of this sort, which the panel described as a “tracking” analysis. She submitted 40 pages showing how events in the documents tracked known events about the president’s National Guard service. The panel did not, however, attach her submission. The panel agreed with some of this tracking analysis but not all. It is fair to say it thought the analysis was inferior in establishing custody. It is, but journalists have used this technique for years. Perhaps the least credible part of the report is its decision to label parts of Rather’s program “false and misleading,” even though not directly related to the documents. For example, it concluded that one interview that implied that the “president was in the Texas ANG [Air National Guard] to avoid service in Vietnam” was false and misleading because there were other sources who would say the president did not join ANG to avoid the war. Apparently, the panel believes the worldwide press, which has said repeatedly President Bush avoided service in Vietnam, should take it back or clarify it. I suggest this is just ridiculous. The panel also labeled as “false and misleading” Rather’s interview with then-Speaker of the Texas House Ben Barnes, who made a call to get George Bush in the Guard. Why is this false? Because CBS has no proof that the person who received the call was influenced by it. Is the panel serious about this? This report was written by lawyers for lawyers. It would have been better if it had been written by journalists for journalists and the public. The report accurately points out that CBS moved too slowly to re-examine the broadcast and to discover its source was changing his story as to how and from whom he got the documents. That is fair comment. But it is only 25 percent of the report. The other three-quarters, directed at the newsgathering process of CBS, is flawed. One is even tempted to say that it has as many flaws as the flaws it believes it has found in Rather’s CBS broadcast. James C. Goodale is the former vice chairman of The New York Times and co-producer-host of the TV program “Digital Age.” This article first appeared in the New York Law Journal, a Recorder affiliate.

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