Maybe Dan Rather’s longshot lawsuit deserves a fair hearing

November 24, 2008

Dan Rather may be the mainstream media-haters’ favorite piñata, but that doesn’t mean he gets any respect from the mainstream media.

Take the recent developments in the lawsuit the longtime CBS News anchor brought against his ex-employer for squeezing him out after a hotly disputed 2004 report on President Bush’s military service.  Rather claims his career was sacrificed to CBS’ groveling to placate its Republican critics.

Earlier this month his attorneys turned over some tasty documents they got from CBS concerning the outside review panel the network created to evaluate the broadcast. The panel’s damning conclusions sealed Rather’s fate.  It was eventually headed by Republican stalwart Dick Thornburgh, attorney general under presidents Reagan and Bush I, and Louis Boccardi, ex-boss of the Associated Press, and staffed by lawyers from Thornburgh’s firm.

But CBS test-marketed the panelists. Before Thornburgh was named, the network had one of its lobbyists learn from Republican sources whether he would do. Yes, apparently. Other conservatives considered included Ann Coulter, Pat Buchanan and Rush Limbaugh. Republican ex-Sen. Warren Rudman was rejected because, a CBS official wrote, he wouldn’t “mollify the right.”

So, a panel is convened by one of the country’s most powerful news organizations to scrutinize the journalism that produced a scathing portrayal of the dubious military record of a sitting president. And the panel is assembled to the specifications of the president’s most zealous supporters.

To me, that’s remarkable. Even scandalous. Surely newsworthy. Yet the New York Times report from which I drew the above details was the only substantial coverage I found.

I don’t know why. My guess is that when it comes to Dan Rather and the Bush report, the cement hardened long ago. That broadcast has gone down in journalism annals as one of those colorful disasters that exemplify the worst of media recklessness and bias.

Journalists mention Rather with the same contempt reserved for such villains as Jayson Blair of the New York Times and Jack Kelley of USA Today. That’s low company. Both were frontline reporters who fabricated, plagiarized or both.

The September 2004 Bush report had problems, but it wasn’t even remotely in that league. It presented a compelling case that George W. Bush’s record with the Texas Air National Guard was marked by favoritism and dereliction. It was based on a number of interviews and, notably, on several documents – chiefly memos from Bush’s squadron commander — whose authenticity was immediately challenged.

Rather did little reporting for the segment, but led the defense. Within three weeks the network caved, and said it shouldn’t have relied on the documents. That concession was viewed as acknowledging fundamental problems with the segment’s veracity. So were the conclusions of the review panel headed by Thornburgh and Boccardi.

But their 223-page report did no such thing.

Though sharply critical of the network’s strident dismissal of critics, the panel never concluded the broadcast was wrong — that Bush’s military record wasn’t marked by favoritism and dereliction.  Nor did it ever say the disputed documents were bogus.

Instead, the panel concluded the documents couldn’t be proven genuine, and for a simple reason:  They were photocopies. And experts are reluctant to vouch for the authenticity of any document when they can’t inspect its paper and ink.

What’s more, the panel said, the producers failed to ascertain precisely how the documents got to them — the “chain of custody” – and therefore weren’t justified in using them. In an extraordinary passage, the panel scolded the producers for not knowing “… the background, identity, credibility, motivations, biases and other relevant information about the sources of the documents.”

The panel’s conclusions had little to do with political bias – its own or the network’s – and a great deal to do with the radically different worlds inhabited by lawyers (who constituted the panel) and journalists. A journalist would never retract a story because an evidentiary base is challengeable, but only if the story is wrong — something the White House never alleged.

Plus, under this legalistic “chain of custody” rule, as former New York Times counsel James Goodale has written, the celebrated 1972 Pentagon Papers – based on purloined photocopies supplied by a committed anti-war analyst –  would never have been published.

Dan Rather has spent $2 million of his own money on this suit, and it’s depicted as the vengeful mission of a half-crazed former somebody.  We shall see.

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