That's a perfect point. Why didn't they head-on address the fact that the documents were frauds? I suppose they didn't worry about finding out who produced those fake documents either. If you never acknowledge that the documents are fake, then you don't have to investigate who actually produced them and for what purpose. Goodness knows, if one followed that trail, he might discover there was a POLITICAL AGENDA in play.

Here is an aspect of the report that was noted by Jim Lindgren of the Volokh Conspiracy, and relates to the point made in the body of this post about muddying the water about the veracity of the documents.

Lindgren provides a link to the pdf of the poor-quality copy of the May 4, 1972 forged memo that CBS put on their website. Then, another link to a pdf of a fair-to-good quality copy of the same memo. CBS obviously was in possession of this much cleaner version from early September, It was first made public yesterday, in Appendix 2 of the CBS report. Apparently the same story goes for the other memos as well.

As a guess, the September '04 file is a pdf of a memo that has been faxed multiple times. The January '05 version looks like it has been faxed only once; it's much clearer.

So, right up until yesterday, CBS has been obstructing typographic analysis of the forged memos, in a situation where the other methods of document validation (ink analysis, paper dating, comparison of original signatures) are inapplicable.

I wonder which versions Mapes provided to the document examiners that CBS hired?

Bill:
I would offer three thoughts:

1. It may not be possible to prove with 99.99 percent certainty that the documents are either fake or real.

2. The preponderance of the evidence indicates that documents are false, and the report acknowledges as much with its extensive recounting of the evidence against the memos.

3. Whether the documents can be proved 100% false or not is a side issue at this point. The real issue is why CBS ran a story based on documents of such a highly dubious provenance, and why CBS went to the mattresses to try to defend the false memos.

--|PW|--

Pennywit -

The documents are false. 100%. It is possible to reach 100%, as the typefaces and capabilities are simply not possible as they are presented on the documents. In addition, anachronistic text of the documents invalidates the content. In any case, the panel didn't say, "they appear to be false," or "a resaonable burden of proof has been met to declare the documents frauds," and they didn't really dig into where they came from.

And as I outlined, the possibility that the documents are real is still being touted by certain dissonant quarters, including Mary Mapes' press release in the matter.

This is a big joke, and it needs to end.

The real issue is why CBS ran a story based on documents of such a highly dubious provenance

Well certainly, but a key basis for getting to that issue (with some people) is at least declaring the docs easily determined frauds. Many defenders of CBS invariably trot out the possibility that the docs are real to defend CBS's actions in running the story. "It was a mistake." Bullshit.

In addition, if we can't even establish the truth behind perhaps the most objectively discernible portion of the affair, the one that can be analyzed by typographical analysis by forensics experts who render conclusive opinions, then how do you expect that we can then move on to convince individuals of subjective conclusions about motivation and what lies in the dark heart of Mary Mapes and Dan Rather?

I don't know how to do the Vulcan mind meld, but I do know how to marshall scientific and legal evidence to reach definitive conclusions. When the dissonance runs so deep that people won't accept the fact that no machine could have possibly created the document 30+ years ago, it will be a real doozy discussing or proving that Mary Mapes wanted to get Bush.

Even though, come to think of it, she wrote an e-mail explicitly outlining that she wanted to "get Bush."

I'm essentially making the rambling point that the panel blew it on the easy, objective facts, for shady motivations related to legal and political liability. And my entire approach in this affair, from the outset, was to meet a legal standard that would prove bias. Proving forgery with an unequivocal statement is a stepping stone.

As opposed to what blogs usually do, which is bitch about subjective, unproveable interpretation, into empty impotent space.

[I]f we can't even establish the truth behind perhaps the most objectively discernible portion of the affair, the one that can be analyzed by typographical analysis by forensics experts who render conclusive opinions, then how do you expect that we can then move on to convince individuals of subjective conclusions about motivation and what lies in the dark heart of Mary Mapes and Dan Rather?

By adjusting your strategy slightly. You don't necessarily need conclusive proof about the authenticity of the memos. You and your compatriots have done an excellent job of proving that the documents are more likely than not to be forgeries. You have also shown that they weren't particularly good forgeries, either, as their nature is easily discerned through interviews with a number of experts and even through lay opinion.

Given that, you have, at the very least, provided evidence of negligence on the parts of Mapes and Rather by demonstrating that a reasonable journalist knew or should have known that the documents were likely forgeries.

If you want to move beyond negligence and into intent, it may be more profitable to examine Rather and Mapes' behavior leading up to the story and after it was discredited:

* Mapes appears to have kept the Kerry campaign abreast of coverage in the story.
* Rather chose a strident, narrow defense of the story when it first aired, and continues to stand by it despite its obvious untrustworthiness.
* According to reports, Rather was initially skeptical of the story but eventually set his suspicions aside.

This behavior, coupled with their negligence, creates at least a presumption of hubris and tunnel vision, and perhaps a case of journalistic bad faith.

--|PW|--

Fair enough. But this begs the questions - who am I trying to convince that can be swayed, and what standard of proof do I need to marshall to achieve it?

In a broad sense, the standard of diminishing returns is in effect, so I just focused my criticism of the panel on their fundamental failing on an objective point. Which is what I did when I wanted to bust rather. Shrug.

You wrote: "Mapes thinks they're real, as does Rather." Do you believe that? Because I do not.

In fact, to believe that is to concede that Mapes and Rather actually did not act in bad faith, nor necessarily let their (potential) political bias impact their reporting.

I would venture to say that Mapes, at least, KNEW they were not real. (Whether she thinks they were accurate in a "fake but accurate" sense is another matter.) Rather probably knew as well -- at the time of the report. As for right now, it is simply incomprehensible to imagine that both of them do not NOW know that the documents are not real.

Since all we have is downloaded .pdf copies of the CBS report, we can't really say that it's authentic. So there's no proof that the panel didn't conclude that the documents were 100% fake. Let's just assume that they did until it's been demonstrated otherwise under a more exacting standard of proof.

Paul -

Ok, let me be more specific:

Rather believes that they are real because he is old and has questionable sanity, and Mapes SAYS they are real. But I think that there is a 50% possibility that she is enough of a moonbat to have actually convinced herself of the possibility.

There is a surprisingly low threshold for when political activism and willed delusion intersect.

As has been often noted by open-minded people who've followed links to Newcomer et al., the amazing thing is how clumsy the forgeries are. The use of Word's default settings and font. The "Post Office Box 34567" return address. The sometimes-superscripted "th's." And on and on.

My opinion is that these aren't so much incompetent forgings as rough drafts that were never meant to be seen by experts or the public, at least without replacing Times with Courier and "34567" placeholders with actual addresses. Something--the rush to broadcast?--lead to their inadvertent release to the True Believers, who picked up the ball and ran with it.

The sobering aspect is the credibility that such low-quality fakes have enjoyed, and, per Bill's post, continue to enjoy. What if the forger had asked me to join in? As you can see from my two suggestions in the preceding paragraph, we would have moved the memos into the "true but accurate" category for large numbers of credulous people.

110 days and they could not decide if the memos were forged or if CBS had an anti-Bush bias?

PIG CIRCUS!

The kooks will never completely accept that the documents were fake: You can see this in the "Fake but Accurate" mantra they've adopted. "The evidence is less important than my beliefs!" they say and nothing will ever change that.

Bill: I am merely a country lawyer trapped in a big city, but Georgia courts, at least, have long held that "Fraud by its nature is subtle and difficult to prove". In my experience, there are no "Perry Mason Moments" in fraud cases-- no one ever admits it, and it ALWAYS must be proved by other evidence.

Carl,
Let's not distract from the main point by conflating my argument with the larger issue of proving an entire case of fraud against a specific individual in a court case: are the documents fake? 100% yes, yes they are. Why is this 100%? Because it was physically impossible for the font and spacing in the document to exist in the year they were purported to exist.

Bill-- [ In case you get this late response] I agree that there is no question that the docs are fake. I'm just saying that w/o an admission from CBS, Burkett or someone in the know, "the Panel"[ironic name for a group of 2, no?] apparently feels that its hands are tied. I agree that Thornburg is being overly legalistic.

To "prove" the fraud to the MSM's satisfaction, someone --anyone with standing to do so -- will need to file a lawsuit and get a ruling from a real judge or jury.

Deathmatch 2005 - Fox vs. CBS

What this Rathergate situation needs is a sense of drama. I'm thinking of something along the lines of "Gunfight at the OK Corral".

Have an enterprising reporter ask the Killians if they have filed a libel suit against Dan Rather and CBS. The blogosphere (e.g. www.captainsquartersblog.com ) have laid out the prima facie case. And if the Killians don't know where to turn, maybe the reporter will direct them to his network's legal affairs consultant.

Imagine what fun it would be to see this Deathmatch 2005.

Ladies and Gentlemen - In this corner Andrew A. Napolitano of Fox (Fair & Balanced) News versus "Gunga" Dan Rather of CBS News. Let's see a clean fight in a court of law. May the best man win!

P.S. - Take that Don King!

Relax. The Washington Times has the answer that nails it. If you don't see it, ask an attorney friend.