It's up at the USA Today site, among other places:
A judge said Wednesday that he was leaning toward allowing Dan Rather's $70 million lawsuit over his being fired by CBS to proceed.
"I concluded there was enough in the complaint (by Rather) to continue with discovery (pretrial research)," state Judicial Hearing Officer Ira Gammerman said at a hearing on CBS' motion to dismiss the case....
Rather, whose last months at CBS were clouded by a disputed story on President Bush's Vietnam-era military service, says his employers made him a "scapegoat" to placate the White House after questions arose about the story....
Rather was removed from his CBS Evening News post in March 2005, six months after he narrated a report that said Bush disobeyed orders and shirked some of his duties during his National Guard service. The report also said a commander felt pressured to sugarcoat Bush's record.
Isn't it kind of important that there wasn't just a "dispute[]" and "questions" about the story, but that there was serious suspicion that the story was based on fabricated documents? It's not every day that a prominent network story is said to be based on forgeries -- you'd think that would be worth mentioning, rather than just talking vaguely about the story being "disputed" and "questions" arising about it. Yet I look in vain through the AP item for any reference to that.
It's conceivable that USA Today may have cut something significant out of the AP version, but it's unlikely, given the lack of space constraints in the Web versions; and my look at other versions (for instance, this MSNBC one) suggests that nothing material was excluded by USA Today.
Thanks to InstaPundit for the pointer.
Ah, the old "fake, but accurate" defense. Sorry Law Grad, read Houston Lawyer's quote - you do have to turn an intentionally blind eye to the facts to believe this.
There was no Times New Roman font on a typewriter in 1973; the document was created in Microsoft Word for Mac. Therefore it is a flat-out forgery. Therefore it didn't happen, and there is NO evidence that Bush shirked his National Guard service; wanting it to be true doesn't make it true.
TV (Harry)
Perhaps fewer people would watch the news, then. . . .
Otherwise, they had no legitimate reason to fire the guy.
Rather will be trying to prove...what? That the docs are valid? He's going to have to get Lucy Ramirez and the Burkett moron on the stand. He's going to have to do a lot of things which are probably right up there with absolutely impossible.z
And it would be interesting to see CBS claiming the docs were frauds. Every kern and spacing issue LGF made so obvious will be argued at length.
This is going to be fun.
But, since God has already blessed me beyond my desserts, they'll probably settle and I won't get to watch a trial.
IBM Selectric Composer.
Hmmm ...
I wonder why exactly a National Guard unit would need "camera-ready justified" paperwork for internal memos.
IBM Selectric Composer.
Not the same.
Ah, but how do you know that a Lieutenant Colonel in the Texas Air National Guard did not send all his memos to London to be typeset in the Times New Roman font at the Times of London newspaper? That was the only place on earth that was using that type font in 1973. The typesetters might have made exactly the same decisions about kerning and spacing as would later be used as default by Microsoft Word. The fact that the wording and format of the memo are not consistent with TANG memos at the time is not relevant. The English typesetters probably got confused.
The fact that it was possible for someone somewhere to have produced that memo in 1973 is proof that George W.Bush did all the bad things that he has ever been accused of. And even if it is not proof, we should believe the accusations anyway because all good people hate him and he didn't sign the Kyoto Treaty.
Of course there isn't — all the relevant documents were destroyed, even though all the relevant docs for others still exist. Makes one wonder why W's records are the only ones that can't be found.
And there is no evidence W. fulfullied his service, either.
I don't see why documents cannot be "fake but accurate." If I forge a memo from Bush to Cheney saying, "I have decided to appoint Roberts Chief Justice," the memo is fake, but accurate.
They may have been true, but they were irrelevant. They were irrelevant because they were all known, and had been for quite a long time.
The reason there was a story was because of allegedly original documents from the time period of the events.
No "newly discovered" documents, no story.
Look at the diction. Anyone who has been around military memoranda would know in a heartbeat that this memo was not drafted by a serving officer. Even if the officer said that, the clerk typing it would have fixed it.
And then there are the ranks. Look at the abbreviations for the officer ranks. ("LTC") Kinda like the Army does things now. Not how the Zoomies have ever done it -- or the Marines for that matter.
One has to be utterly ignorant of military culture to find these memoranda plausible.
Finally, the Prez had over 300 drill points. He could have not shown up for drill for a year & still have been in good standing. The notion he was not in good standing is beyond funny.
1) a rumor about GWB having a skeleton in his closet regarding his military service
2) ample evidence that the skeleton isn't real; eyewitness reports, various records, etc.
3) a news report that used fabricated documents. documents that have been proved fabrications by textual analysis. Yes: typography is something the FBI has specialists in.
Yet still we have:
1) wekt holding on for dear hope that just because a proportional font could have been used the story has merit: NO, typography is like a finger print. Fonts are distinguishable; this font was distinguished for what it was.
2) Recovering law grad apparently believes that the core story was true. Update: it's been proven false.
3) Randy R. seems to believe that all the evidence either way has been destroyed. Nope.
4) byomtov presents a hypothetical which neglects that the facts on record don't support the underlying charge. So the hypothetical is challenging a straw-man.
Its nice to see BDS is alive and well. To put some perspective: this issue is about as controversial as whether Cince Foster committed suicide to conceal Hillary Clinton's illegal activities. Imagine what you'd think if you heard someone start crowing about that one again this primary season. Well that's the impression I've gotten of you all.
On the same principle it's just as important to be precisce in our arguments that the documents were forgeries. It matters whether there were no typewriters in 1973 using Times New Roman or whether there were only no typewriters used by the military that did so or if the only TNR at the time was significantly different than the MS word font. The conclusion is going to be the same but we should still correct the argument.
Similarly just because Dan Rather reported a insuficently fact checked story doesn't mean it doesn't matter how he was fired. It matters (though I don't know if it constitutes a valid tort) whether the news organization fired him because of his particular incompetence or because doing so would publicly appease the white house.
Now I don't necessarily believe this. I'm just pointing out that this is a different argument than whether the memos were faked. Rather won't argue in court that the memos weren't faked but will try to shift the blame for not noticing them to others and claim he was made the scapegoat. Let's hear some reasons this claim is false not reargue the original issue.
Dan Rather Complaint
I think at the time of the story for the an individual who also happened to be POTUS to do anything legal would have been a major political issue, but now that he is Out of Office, he is free to do it as a completely private citizen. (Granted statutes of Limitation Probably do apply).
I'm not a lawyer (and the above is major speculation), but I'm also curious what Level of Proof (the Legal Definition), CBS has to have and Dan Rather has to have. Can CBS say they need the LoP necessary to win an such a suit by GWB? If so does Dan Rather have to provide that LoP to prove his case. Or does Dan Rather have meet a much lower level of proof and then CBS has to meet a much higher one?
Authors of news articles vary in what they consider to be important. This news article just happened to ignore something that you consider to be important. So what?
As for Dan Rather, I think that an important issue is whether there was evidence that he had any intention to deceive. People make mistakes.
As for whether the documents were made with a modern laser or ink-jet printer or with an old typeball-and-ribbon typewriter, physical imperfections in a typeball's characters -- gaps and chips -- are supposed to show up in the printed documents (at least that is what I heard in one of those Perry Mason type TV shows -- in this way the exact typeball that was used can supposedly be identified). Were the documents checked to see if they had repeated appearances of these gaps or chips in the characters?
BTW, bloggers' exposure of this apparent forgery gave rise to the term
"pajama-clad bloggers" (I prefer "BVD-clad bloggers" because Hugh Hefner considers pajamas to be formal wear) and the stupid notion that blogs are superior to the traditional news media as a source of information.
"> There was no Times New Roman font on a typewriter in 1973
IBM Selectric Composer."
Did it also do superscript? Heh, yeah, with a golfball change...
"Rather won't argue in court that the memos weren't faked but will try to shift the blame for not noticing them to others and claim he was made the scapegoat. Let's hear some reasons this claim is false not reargue the original issue."
The 'others', in this case, reported to him.
The chance that George W. Bush would sue CBS and/or Rather over this story is close to zero. Even if there were no statute of limitations issue (say, if Bush had lost the 2004 election and filed suit shortly after leaving office in 2005), it is extremely difficult for a public official to win a lawsuit for libel based on Supreme Court precedent requiring such an official to prove "actual malice" (see this Wikipedia article for a basic introduction to the relevant case).
Theoretically, Bush could be a witness for CBS in this case, but I doubt he actually would be called. Of the four documents used by CBS, three were written about Bush but not to him. Only one of the four documents -- the one telling him to get an annual physical examination by May 14, 1972 -- would have been sent to him. Bush might be able to testify that he never received that memo (since, in fact, it was created in 2004), but he might then be cross-examined as to how well he remembers other memos he received in 1972. That is, if there are real memos that he received that year but doesn't remember now, his testimony that he doesn't remember receiving the physical exam memo would not be strong evidence that the memo was fake. Furthermore, part of Rather's complaint is that CBS was trying to curry favor with the Bush administration by firing him, so having Bush testify on CBS's behalf would play into Rather's hands. And, finally, Bush would be perceived as biased since he would have a personal interest in wanting to have Rather's story considered false.
From CBS's perspective, it would be better for them to call document examiners and persons familiar with memo-writing practices in the Texas Air National Guard from that era, since they would be able to help establish that the memo does not resemble authentic memos from that era and that it does resemble modern documents prepared with Microsoft Word.
I am not sure what the focus of Rather's argument is going to be: (a) that the documents were real, (b) that even if the documents were fake, Rather could not have been expected to ascertain that, or (c) that even if the documents were obvious fakes, Rather was not personally responsible for the report -- other people researched and wrote it and Rather just read it.
Friends, when you employ an acronym, you are supposed to have previously used the complete verbiage.
Does IANAL mean "I am not a lawyer"? If so, give me a brownie point.
Not really. If we were talking about the Federal Bureau of Investigation, the Central Intelligence Agency, the National Football League, or the United States of America I'd start with the acronym and expect you either to keep up or ignore my comments.
People also seem to be missing the fact that Rather's suit doesn't really need to delve into the veracity of the story or the forgery, more CBS's reaction after the fact to it.
Apparently Ron Paul has joined this discussion.
That ought to make it hard to prove the network was trying to appease the WH, since one has to fear that which one would appease. Obviously, there was no fear.
But no one ever looked to Gammerman for a thoughtful or detailed decision. He was quick to shoot from the bench, biting in his remarks and rarely deliberative. From an academic perspective, Gammerman is a nightmare. From a trial lawyers' perspective, whether plaintiff or defendant, he was as good as it gets. He never cared if his decision was reversible, and he often dared lawyers to appeal him.
All said, he was considered one of the best and smartest at what he did, and despite his rough handling, managed to move cases better and faster than anyone else in Manhattan.
And if you bother to comment, why not enlighten me, what is meant by LGW, PDS, LoP?
I tried them in Google: what I get is (1) Gatwick Airport,
(2) Planetary Data Systems, or Parkinsons Disease Society, or maybe Princeton Day School.
For LoP I don't see anything that is possibly relevant, so I am guessing it might mean "[for the] Love of Pete."
"LoP" = "Level of Proof." And James968 did "previously use the complete verbiage."
Not to USA Today, apparently.
Exactly.
For God's sakes, would you guys at least get up to date?
And next, someone can dummy up court papers saying Teddy really did abandon a choking Mary Jo to the cold waters. What's the problem? Fake but true...
Human beings already suffer from confirmation bias. It does not need to be backed up with willful belief in fabrications.
The scary thing about this whole debacle was not the story itself. Rather, it was the fact that amateurish, ham-handed forgeries were presented (and defended) by a major news outlet as genuine. Moreover, despite the forgeries obvious flaws, a significant number of people still chose to believe that they were real. In my opinion, we should be highly disturbed by the implications.
Or does the fact that it didn't read right to someone experienced in Military Creole would still have tipped it off make the quality of the forgery irrelevant?
Anyhow, having worked as a news reporter near a military airfield in the '70s, my perspective is that anybody who would go up in a 1970s-era interceptor has enough cojones.
CBS shall assign Artist as a full time Correspondent on 60 MINUTES II and shall continue to receive first billing. It is understood, however, if 60 MINUTES II is cancelled after Artist is removed as Anchor of THE CBS EVENING NEWS [as it was in April 2005] and Artist has been assigned as a Correspondent on 60 MINUTES II as set forth above, CBS shall assign Artist to perform services on a regular basis as a Correspondent on 60 MINUTES.
So CBS "Correspondents" have contracts describing them as "Artists"? This strikes me as an explicit admission that what is sold as "News" is actually performance art.
On other subjects, "IANAL" does indeed mean "I am not a lawyer". The full verbiage of "LGF" was available by hovering over the link. The use of acronyms falls under the heading of "cultural code words".
In addition to that, the Selectric "camera ready" output looked nothing like those memos. I don't know if it's still there, but at the time of the controversy, someone posted some pages from the Selectric manual, which were typeset on Selectric Composers by IBM's own expert. These looked much, much better than the common typewritten copy I remember from that time, but much, much worse than copy off a laser printer in 2004 using the MS Word default settings - which the memos in question matched in every detail. Those Selectric-composed pages were meant to show the best of 1970's typewriter technology, and there's no mistaking the looks of them for the looks of those memos.
Dan Rather was working with typewritten copy in those days. He should remember what it looked like. He ignored that and chose to blow off the experts that questioned the memos, and go looking for other experts until he found a handwriting expert who would certify that what was left of the signature after being copied and faxed repeatedly wasn't inconsistent with the alleged author's signature. Which it wouldn't be if it was scanned and copied into the Word document, and the repeated copying and faxing had served to cover up any evidence of that. Rather and Mary Mapes wanted it "authenticated" no matter what.
It sounds like malice to me. Rather's best defense might be that a forgery that bad couldn't have been a true attempt at forgery, but must have been a plant by the Vast Right Wing Conspiracy to frame him. But he still fell into the trap, nay, he shoved the doubters on his staff out of the way and jumped right in...
Oh, and finally: The Lt. Col.'s secretary does not recall typing those memos, and says he didn't know how to type. Some of them a prudent officer would have typed himself, if necessary painstakingly using two fingers - but there's no effing way a senior officer of that era would have used proportional spacing, etc., in a memo to himself. IBM ran schools to teach secretaries how to do those tricks.
Rather's best defense may be that his mental state (BDS) made him incompetent to form malicious intent. I am not a lawyer (nor a psychiatrist or bartender) so that is just one layman's speculation.
Rather's winning argumant is that he is clearly a senile barker who could not distinguish the reality he could only dimly perceive from fervently wished for fantasy under any circumstances and so had to rely on staffing that needed to be vetted by CBS. Since all in the news room were aware of this, he has a legitmate complaint about being made the fall-guy.
CBS will counter argue that Rather was a well respected journalist at least as qualified as the rest of their news readers.
They are both right.
Back in the early 80's, NASA used to give a large number of engineers to authority to cancel a launch. This sucked for upper management because they liked launches, and they worked around that system until the Challenger exploded.
That's what's scariest for me about all this. If the forger had just bothered to switch to Courier, I could easily have believed them. When Dan Rather insisted that the memos were accurate and provided by an unimpeachable source, he was putting his entire reputation on the line, and that easily could've convinced me. After all, a senior news correspondent wouldn't risk it all like that, would he?