Sneak Peek at What's Not in the Memogate Report

Update 12-1: My "hits" are up 100x the last 24 hours, some site(s) must have linked to me. For new visitors, I focused this site on the inside legal problems facing CBS, in particular (a) that an odd Texas felony forgery statute had been triggered [I was the source for the early O'Reilly Factor report about it] and (b) the manipulation of the story and coverup by CBS Legal Department. To catch up, read these seven prior articles by me: One Two Three Four Five Six Seven. Update: Must Read This New Post.
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Let BummerDietz tell you a little bit about what the Corporate Legal Department does at a media company, since that is BummerDietz’ business….

When a publication has a Legal Department that acts as a check-and-balance upon journalists, a serious journal results. When a publication has a Legal Department that has no check-and-balance function but instead exists only to insert minor text edits that maintain the thrust of the story but sidestep libel law, you have a yellow rag.

I have previously written about the nefarious hand of CBS Legal in the Rathergate mess. Although it makes for better press to focus on Rather and Mapes, the real story here is CBS Legal.

The attorneys at CBS Legal have one primary objective: Do Not Allow Libelous Statements To Be Published. There are many other things they do, but their raison d’etre is to prevent libel.

Frankly, when dealing with public figures, it’s not a tough job, since the standard is so high. The newspaper or broadcast must be shown to have acted with “actual malice.” The injured party has the burden of proof. Since journalists rarely post incriminating memos about their intentions prior to broadcast (“Hey Jenny, watch me nail Bush with this fake story!”), the burden of proof is insurmountable in almost all cases.

With Rathergate, at least 2 experts reported to CBS, in writing, pre-broadcast, that the memos were problematic. CBS Legal was involved with the story, pre-broadcast. Any veteran CBS Legal attorney would look at the prime directive - Do Not Allow Libelous Statements To Be Published – and would react to such rebuttal evidence by (a) killing the story, (b) delaying the story, (c) following up with more sources.

From what we know, though, none of that happened. Why? Did someone overrule CBS Legal (That’s not supposed to happen). Or, had CBS Legal abandoned the primary objective? That is the key question. CBS Legal is (or should be) like the Enron auditors -- how could this have happened?

The lawyers at America Media Inc. (owners of the National Enquirer) are the best in the business. They are experts at avoiding libel exposure for their stories, albeit a high percentage contain errors.

The cutting edge issue is what the media must do with strong rebuttal evidence in their possession. To wit: If a company has concrete information in their possession, and they ignore it, the target has a serious toehold in a libel lawsuit. The target can meet its burden of proof that the journalist acted with “actual malice” by showing the jury that there is no other explanation for why the journalist would publish the story, even though they had the contrary information, except for “malice.”

What must media do with serious, contrary facts or rebuttal that is in their possession prior to publication?

- Can they ignore it? (Generally, no.)
- Can they refuse to open the package that contains the rebuttal evidence? (As in, refuse to have the package brought in from the lobby desk?) (Hot issue.)
- Can they dismiss it by reporting that something like, “The target denies this, citing their claims that X is not telling the truth?” (Hot issue.)
- Can they write the story to give a fair account of the contrary facts? (Yes, or course. The law gives them the benefit of the doubt that they do this, as a matter of practice.)
- Can they abandon the story due to its being fundamentally false? (Yes.)

The attorneys The National Enquirer have perfected a strategy that is being copied by other media, such as CBS Legal. We call it “Head In the Sand.” The publication goes to great lengths to prevent rebuttal facts from coming into its possession, prior to deadline. To a journalist, the possession of rebuttal facts is like holding contraband - possession is punishable by a finding of Actual Malice. So journalists have changed the way they operate, in order to avoid being caught with the hot potato of rebuttal facts. Why? Because the Legal Department might step in and delay or kill the story, if there are any rebuttal facts lying around.

This manifests itself in several media bahaviors:

1. Late Ambush. A “factchecker” will call a target for comment, hours before the print deadline. To a jury, this is supposed to show the media is fair. Since the journalist has spent days, weeks or more building their story, it is impossible for the target to know what the journalist’s story says. Hence, the target typically has no comment.

2. Prevent Incoming Faxes. The journalist (and sometimes, the legal office) goes to great lengths to prevent any contact information – email or fax information – to be made public. They simply do not want any lawyer's letter or other rebuttal material coming into their possession, prior to publication. (Try to find a media “Legal Department” fax or email number on the internet.) This is why an “ombudsman” or “reader’s representative” is such a divisive issue with media. It seriously impinges upon the media’s ability to prevent contrary information to come into their possession, pre-publication.

3. Fake Fact Checking. The journalist does not directly fact check with the target, but instead substitutes with a call to a friendly source who gives some lukewarm support to minor aspects of the story, and such source is quoted anonymously in the story. (“Yes, Mr. X has come to the restaurant on occasion,” as somehow being evidence that Mr. X was there on April 1st and assaulted a waitress in the bathroom).

4. Mischaracterize the Rebuttal. The journalist will mention the rebuttal evidence in the story, but will diminish or mischaracterize the rebuttal evidence. Hence, the libelous story seems to have even more import, because it appears that the journalist has actually spoken to and considered all sources.

5. Claim Deadline. The most nefarious technique (to this lawyer) is for the journalist to use the self-made, artificial excuse of a “deadline’ (as if the story cannot wait until tomorrow) as a way of combining all of the above items, and to say, “OK, we got this package of 50 pages from you, there is no way I can review this before deadline, so just give me your top 3 points.” Hot topic. Can the reporter ignore the package and say that the target (or target’s attorney) “refused to comment?” Or ignore the package and report in a single sentence a watered-down version of the verbal “3 points?” (Good lawyers never take this bait; "The documents speak for themselves.")

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Any of the foregoing sound familiar, re: Memogate? Those are the tricks from the playbook of The National Enquirer. But...for 60 Minutes?

With that background, look closely at the upcoming Rathergate Report. My guess is that the public report will NOT address the role of CBS Legal, due to “privilege” concerns. The public report will say that, “Certain changes are being made to standards and practices, to prevent this from happening in the future.” And that, my 23 readers, will be your clue that there is no intention at CBS to tell the real story to the public.

As I have said here before, CBS Legal showed that 60 Minutes is a yellow rag, instead of a serious journal. The original story has a claim that memos were from “personal files.” Instead of acting as a check and balance to what was suspected to be a false set of memos, CBS Legal did not shut down the story, but rather merely inserted the “personal files” phrase to provide a plausible defense against the Texas forgery statutes. 60 Minutes is a yellow rag.

Wrong Way O'Reilly

My guess is that the 23 regular readers of this page tend to like Bill O'Reilly's TV and radio shows. Me too.

Bill is no political theorist. He is right of center, and he does provide (perhaps) the only prime time forum where the right, left and center get a couple of minutes to air their points, with some decent attempt to maintain intellectual honesty. He is criticized by many as being a "bully." I don't buy that, for this simple reason: When a topic is being discussed, there are many ways to dodge a question. As we all know, the MSM simply won't address the relevant topics; its embedded bias is to avoid mention of the real issues. That's a dodge, and to me, that is substantially the same as being a bully.

And on the rare occasion (e.g. the Sunday morning shows) that a real issue is raised in the MSM, it gets dodged or spun, with slick talking point nonsense, with impunity. The dodge doesn't get called out. Again, that to me is the same as bullying. It is intellectual bullying: "I control this one-way medium, and you can't make me address the issue." (Why do you think it's called a bully pulpit?)

So long as O'Reilly bats at least .300 putting real issues on prime time, and has both ends of the spectrum represented (at least nominally), I will defend him as NOT being a bully. (I hate to admit that his "I'll give you the last word" has become the bellwether of being evenhanded -- that speaks volumes of just how bad things are, elsewhere in the MSM). Even when his personal opinion is shallow, wrong, or silly and marred by obvious personal suppressions. Which it often is.

Enough praise of the tall Irishman....

Bill remains rattled by the personal attacks against him from the Left - e.g. by ex-comic "Stuart Smalley" and the intern harassment lawsuit -- that he has lost the ability to give any coherent analysis to an attack against the MSM, if it involves a broadcast "anchor" like himself. Bill loves to skewer the print media - the NYTimes gets attacked thrice weekly by him - but anyone sitting at a desk on-camera is, in Bill's world, exempt from attack.

In that light, Bill's defense of Dan Rather is to be ignored as a weird psychological mechanism whereby Bill substitutes himself for Dan, imagining that he is being attacked by the Left. Bill is unable to differentiate Leftish attacks that "Bill wasn't really born in Levittown" from Corpolitical MSM propaganda spewed by an editorial director who also occupies the anchor chair -- Dan Rather.

Bill is wrong on Rather. (Remember, Safire was similarly defensive of Rather.) Since they each see themselves as being on the same throne, it is understandable why they are against killing the errant king. But that doesn't mean they are correct.

Bill's defense of Rather:

"Right-wing talk radio ... bludgeoned Dan Rather for his role in another smear incident - the charges against President Bush about his National Guard service. Again, Rather was found guilty without a fair hearing. Charges that he intentionally approved bogus documents that made Bush look bad were leveled and widely believed. It was chilling.... Dan Rather is guilty of not being skeptical enough about a story that was politically loaded....Dan Rather was slimed. It was disgraceful....Dan Rather did not get what he deserved in this case. He made a mistake, as we all do, but he is not a dishonest man....Unfair freedom of speech did him in. This is not your grandfather's country anymore."

Blog to Bill: Before he went on the air, Dan Rather knew that two of four experts called the documents phony. OK, give him the benefit of the doubt. But within 72 hours thereafter, as overwhelming evidence came forth that the original story was based upon forgeries, Dan did not act like a journalist. Instead, he acted like the head of Moveon.org or the DNC - a pure political operative - and used his CBS network as the platform. Bill, it's not the original broadcast, per se, that is at issue here (although I am not so ready to issue a free pass to Rather for the initial broadcast). At issue is the 12 DAYS OF COVERUP.

And those 12 days do not fit your "Dan as the innocent anchor" thesis.

Not by a mile.

Shooting Up with Mary, Alice and Colin on the Railcar

Remember the bizarre 1994 trial of the Long Island Railroad shooter, Colin Ferguson? The mentally unstable murderer defended himself at trial, and cross examined witnesses, even people he had shot at. There was an Alice-in-Wonderland lunacy to the entire affair, as Ferguson would refer to himself in the third person, as if he (as lawyer) was somehow different from Ferguson, the defendant, who was somehow different from Ferguson, the rebuttal witness.

With all the Rather retirement stories, I flashback to that bizarre Railway Shooter trial, and the psychological chaos on display when a disturbed mind tries to play all the roles of:

- The accused;
- An objective witness/reporter;
- An advocate (patently or hidden) for one side; and
- An innocent, unaware of the irony and farce of the foregoing juggling act.

The MSM's reporting on Rather's forced exit over Memogate takes on "Colin Fergusonian" qualities. The MSM seems blissfully unaware of the obvious farce in its pretending to provide an unbiased overview of Memogate, while barely camouflaging its desire to defend the liberal standard-bearer Rather from vicious attack by the "right wing," as well as its own flanking defense against yet another expose of persistent MSM leftist bias.

Enter the New York Times. It's report on Dan Rather's forced retirement embraces this spin about the ongoing investigation of Rathergate:

"Mr. Rather, 73, is seeking to act ahead of an independent panel investigating the journalistic breakdowns that led CBS News to broadcast and then vigorously defend the Guard segment... . Among the central questions they are examining is why Mr. Rather, who anchored the segment, and Mary Mapes, the producer who shepherded it, were so convinced of the authenticity of four memorandums purportedly drawn from the personal files of Mr. Bush's Vietnam-era squadron commander."

"Were so convinced of the authenticity...."?

The New York Times Fergusonian mindset won't even allow it to mention the 900 lb. gorilla sitting in room: Did Mapes and/or Rather act with malice ?

Instead, the NYT puts out the spin that will allow only the possibility that there was "negligence."

Yes, and Colin Ferguson was just negligent with the gun's safety switch that day.

Memogate, Dishonorgate, and Your Sister-In-Law

The news of Dan Rather's "retirement" will result in Thanksgiving table talk...including with your sister-in-law who attends Oberlin and is in her 8th year of undergraduate studies, now majoring in Comparative Feminist Marxist Literature.

Here are talking points, for your impending holiday argument with her about MSM bias:

The thrust of John Kerry’s campaign, launched at the Democratic Convention, was “Citizen Soldier.” MSM TV networks ran a film of Kerry in Vietnam. Steven Spielberg helped produce the film. MSM TV carried mini-shows about ‘Spielberg and the making of Citizen Soldier.”

Meanwhile, the MSM continued to revive charges that Bush has dodged some part of his military reserve obligations. Although the record was fairly convincing that Bush had not dodged any service, there was some ambiguity, and the MSM deemed that fair game, and a campaign issue.

It then came to light that Kerry had likely received a less-than-honorable, or even dishonorable, discharge from the military, and that it had later been upgraded to an honorable discharge. The most logical reading of the records supported that conclusion. The missing part of Kerry’s record would presumably have confirmed, or rebutted, the allegation. Kerry refused to release his records.

The MSM did not run a single story on this whopper of a story – to wit, that “Citizen Soldier” was produced about a guy who got kicked out of the Navy, dishonorably.

The Swift Boat Veterans for Truth then released a book, challenging Kerry’s war record, claim by claim. The challenges were by dozens, among hundred of supporting veterans, who served in the flotilla of several boats along with Kerry’s boat. The Swift Boat vets signed a petition: “Kerry, Release Your Military Records.”

The MSM tried to ignore, and then write off, the Swift Boat vets, and then branded them as Republican dirty trick operatives.

Not once did the MSM ever address the petition of the Swift Boat vets: “Kerry, release your records.” The story is huge – it is a “Big Lie” story, the kind that Pulitzers are made of – and the average Joe can and will understand it, without complication.

The story was never told, other than via Thomas Lipscomb in the small newspaper The New York Sun.

The MSM simply would not address a story that would end badly for Kerry. That is the bias. The hidden records, of course, establish that Kerry got a less-than-honorable or dishonorable discharge. In light of “Citizen Soldier” campaign, that fact would fuel a generation of cynicism against the operatives behind “Citizen Soldier.” In other words, the current Democratic power structure would take a huge hit. So the MSM would not touch the story.

Meanwhile, CBS and 60 Minutes used memos forged by CBS Producer Mary Mapes to continue an assault upon Bush for his Guard service, the gist of which story was that Bush got into the Texas Air Guard through favors arranged by his dad (read: de facto draft dodger), and then was too cocky to bother to show up for his duties (read: asshole). Although the existing records, and testimony from those involved, do not support this interpretation, the lack of clear documents was used as a reason for the MSM to investigate the story.

The MSM credo: OK to investigate and attack Bush, although the existing documents tend to establish (albeit not conclusively) that the story is weak; and absolutely forbidden to investigate and attack Kerry, even though the existing documents tend to establish (albeit not conclusively) that the story is very strong.

Forge the Bush memos, and ignore the memos that Kerry refuses to authorize for release.

MSM left bias. Pure and simple.

Watch your sister-in-law foam at the mouth.

Fat Cow and Three Blind Chicks

When buying a couple of steaks at the market, I was treated to a fat cow flipping me a double bird from the front of a tabloid.

Having just been fingered by a woman blind to reality, a vision came to me:

This would be an appropriate week for Mary Mapes to get fingered by the blind lady of justice, via the CBS internal report.

Mapes forged the memos.

Said Mapes's father, Don Mapes: "I'm really ashamed of my daughter, what she's become. She went into journalism with an ax to grind, that is, to promote feminism --and radical feminism, I might say -- and liberalism."

In Case You Missed These Irrelevant Footnotes

Let's see, what's cooking in the world this week?

1. The UN Iraqi Oil scandal appears to be more in the $20 billion range. Kofi Annan is stonewalling several fed-up US Congressional investigations. (Since the US pays for, and hosts, the UN, and the Republicans control Congress and the Presidency, any guess whether this gets ugly, real fast?) Will Kofi's regime still exist when Bush is sworn in?

2. The refusal of France, Germany and Russia to approve the invasion of Iraq increasingly looks like a team effort to avoid having their racket and skimming ventures with Saddam becoming exposed, in tandem with Kofigate.

3. The MSM continues to portray the grand terrorist Arafat as a beloved and legitimate proletarian leader. (By those standards, Hitler was a beloved leader of the late 1930's.) The reporters, particularly the European-beat reporters who live among the post-modern anti-capitalist, anti-Semite eddies of European parlor society, are the main protagonists of this charade. You don't get invited to ReutersClub Eurococktails if you aren't glibbly anti-Semitic.

4. The French hold a state funeral for Arafat.

5. The MSM continues to pretend that Arafat died of a "mysterious illness" -- AIDS -- thus avoiding offending the left wing, and allowing anti-Semitic elements to claim it was poisoning by the Zionists. Any guess as to whether CBS and 60 Minutes will run an expose on this medical thriller?

6. The promised CBS investigative report has not been released.

7. The MSM simply cannot report on the US rout of terrorist insurgents in Falluja, without immediately questioning a) whether the US really killed 1200-1500 of the enemy, b) whether the "cost of rebuilding" made it worth it, c) whether the coordinated attacks elsewhere in Iraq will become a quagmire, d) etc. By reporting the obvious - that the US military, free of election year "Vietnam-type" political constraints, is quickly destroying the militant movement by cornering and killing them - the MSM knows that it political agenda will be countered.

The MSM's left agenda benefits from the reign of terror of the Iraqi insurgents, who are attempting to prevent Iraqi citizens from backing the new government and voting in January; that threat is via Khmer Rouge-style intimidation. "We will kill anyone who cooperates." The MSM does not want to stifle this intimidation by the insurgents, by reporting accurately the demise of the insurgents. That would tend to give Iraqis some level of confidence to step up.

And then.....the MSM would then have to face the predicament that...the Bush doctrines worked. Better for the far left MSM to maintain the impression among Iraqis that there is a strong chance that the insurgents are all-powerful and will kill anyone who votes in January.

8. UN Chief Kofi Annan likened the US attack upon Falluja to a war crime.

9. In summary? The UN high command, under Kofi, is getting Scott Peterson-type treatment this week for its billion dollar Mafia-esque scandal. The foreign policy arms of France and Germany are becoming discredited (Russia may get a pass, post-Beslan, and not for any reasons of virtue). The Islamo-fascist movement has been dealt a crushing blow by the Falluja rout, with Iraqi elections soon to come. The Bush strategy for dealing with the festering cancer at the core of it all - Arafat and his terrorists - by his refusal to deal with them, has turned a huge corner. The MSM continues to report that none of the foregoing has happened, or will happen.

I know that the opposition candidate in this month's election had to take the position that our policies were wrong, and that playing the game with France and Germany and Russia and the PLO was the better plan, and the MSM applauded it all.

But what a difference 2 weeks makes....not that the effete thugs of the MSM will report any of this.

Mapes Did It

I am informed by a reasonable source, that the CBS investigation will indicate that Mary Mapes is the forger. No official report is imminent.

You read it here, first.


UPDATE:

Returning readers know that CBS Legal's DNA is splashed all over this crime site.

FURTHER UPDATE: Remember Rather's curious mea culpa statement on September 20:

"The documents were provided to CBS News by a former commander in the Texas Air Guard, Bill Burkett. He did not come to us, we went to him and asked him for the documents. "

That means Mapes went to Burkett and "asked him" for the documents. Do you believe that Burkett had the ability to forge them, himself?

"Wrong But Right" replaces "Fake but Accurate"

Has "Wrong But Right" replaced "Fake but Accurate"? In that case, Kerry really won the election, except for the technicality that his supporters voted for Bush:

Statement from John Zogby on 2004
Presidential Election Results:

"We feel strongly that our pre-election polls were accurate on virtually every state. ...I thought we captured a trend, but apparently that result didn’t materialize."

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Update: On a separate note, a sincere thanks to Peggy Noonan:

"[The] biggest loser of the 2004 election...was the mainstream media, the famous MSM, the initials that became popular in this election cycle. Every time the big networks and big broadsheet national newspapers tried to pull off a bit of pro-liberal mischief--CBS and the fabricated Bush National Guard documents, the New York Times and bombgate, CBS's "60 Minutes" attempting to coordinate the breaking of bombgate on the Sunday before the election--the yeomen of the blogosphere and AM radio and the Internet took them down. It was to me a great historical development in the history of politics in America...God bless the pajama-clad yeomen of America...."

Rather Spittle At Blackwell

Highlight of the Night: Dan Rather's testy interview/argument with Ohio Secretary of State Ken Blackwell, where Blackwell (a black Republican) surprised Dan with a lecture about the carpetbagging media all coming to Ohio, "Expecting me and my staff of 50,000 election workers" to screw it up.

"Isn't Ohio this year's Florida?" demands Dan, who for one hour argued that Ohio could not be called a Bush state.

"Not if you mean that in the perjorative sense," stated Blackwell.

Dan cut off Blackwell - Dan desperately needed some backup to declare the election in Ohio to be chaos, and Blackwell was messing up his desired spin - and Blackwell said, "OK, bye, thanks," and waved goodbye to the camera. Rather, sensing how badly his cutting off of Blackwell had just played, surrendered: "I'm sorry....please finish, what you have to say is important."

Now THAT was a sweet moment.

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I did my own Ohio numbers work, county-by-county, online with the Ohio Secretary of State's website, and called the state before the networks (although I tied Fox).

One drunk blogger with an internet connection out-analyzes the nets....go figure.What was I drinking? An '89 Clerc Milon bordeaux.

-----Original Message-----
From: [Bummer Dietz]
Sent: Tuesday, November 02, 2004 9:46 PM
To: xxxxxxx
Subject: Fat LAdy

Ohio...Bush.

over

CBS' Andy Rooney Unimpressed by Pearl Harbor

So CBS executes a third anti-Bush slam on 60 Minutes. They are blind.

More interesting is this: On Discovery Channel's "Decisions That Shook The World" series about Presidential war decisions, the Roosevelt installment included CBS' Andy Rooney commenting on pre-WWII isolationist and anti-war sentiment, and his being shipped off to Europe as a war reporter.

Rooney said that even after the Japanese bombed Pearl Harbor, thus triggering declarations of war by and against Germany, he still did not feel that U.S. involvement in "Europe's War" was justified. And thus, he was against his deployment to Europe to fight in another European War. He said that once he arrived in Europe, he was able to witness all the horror and destruction being wrought by the Nazis; but he did not say that viewing it all changed his isolationist, anti-war mindset.

All of this against newreels of anti-war marchers, circa 1939 etc., admonishing the US to stay out of Europe's war and to "fight Nazism at home, not abroad."*

The modern parallels - visual as well as the anti-war slogans - were nothing short of astonishing. I knew there was anti-war sentiment prior to WWII, but I did not know it was so pervasive.

Andy doesn't pick what stories run on 60 Minutes, but I thought this was illuminating.

Four Stars. Check it out.
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* - I note that the nicely-lettered signs, with 60 years distance, had a certain "Workers of the World" flavor....