CBS Documents Panel’s Findings: A Few Comments

January 12, 2005

I’ve always liked Richard Thornburgh, but I am very disappointed with some of the panel’s findings. When you think about it, its findings could be considered a net plus for CBS, a veritable whitewash. That is, we already knew the documents were forged — no reasonable question about it whatsoever. And we knew that CBS was politically motivated to fabricate this story despite its utter bogusness (is that a word?). Yet the panel affirmatively concluded — as I mentioned in the last post — that CBS’s wrongdoing here was not politically motivated, but done in a spirit of the competitive rush to get the “story” out — as if it really was a story.

But the panel went out of its way to conclude that it was unable to conclude with certainty whether the documents were authentic. And, it went out of its way to find no political motive. One has to strongly consider Tony Blankley’s theory that the panel was tainted, given that Thornburgh’s law firm, which conducted the primary background investigation, legally represents CBS. There couldn’t be a more flagrant conflict of interest, on its face. That is, the law firm’s duty to its client, and its fiduciary relationship with it, deter it from exercising independence in this matter. If this panel can be considered “independent” considering these relationships, there is no longer any meaning to the conflict of interest principle.

And further on my point that CBS scored a net plus with the report, I refer you to Jonathan Last’s excellent column in the Weekly Standard. You all probably know about this already, and if so, I apologize. I’ve been in a cave for the last few days.

Last’s point is clear. The two main experts the panel considered concluded, with virtual certainty, that the documents couldn’t have been produced on a typewriter during the seventies, but a modern computer. The panel had no basis upon which not to accept the experts’ conclusion. Instead, they made themselves experts, making this finding in a footnote, in justification for their failure to conclude the documents were indeed forged — which they emphatically were:

Although his reasoning seems credible and persuasive, the Panel does not know for certain whether Tytell has accounted for all alternative typestyles that might have been available on typewriters during that era.

What the panel is saying is that despite Tytell’s expert findings, the panel can’t accept his findings because no one has proven a negative. That is, no one has demonstrated that Tytell accounted for all alternative typestyles. That is so absurd. No court of law or administrative hearing body requires proof to a 100% certainty. I’m sad to say this, but the panel’s tortured effort to bend over backward to refuse the uniform conclusion of BOTH experts is strong circumstantial evidence of its lack of independence and its failure to perform its job fairly and competently. As Jonathan Last says in his closing paragraph: Leave aside the “no political bias” finding;

Leave aside the kid-glove treatment of Dan Rather and Andrew Heyward. This abdication of responsibility by the panel in the face of their own expert’s conclusions is so startling that it legitimately calls into question–by itself–everything else in the report.

And folks, there is no question about Last’s conclusion. Which is what I mean by CBS’s net plus here. They ended up much better than they started (before the investigation) — at least on paper. And that itself is scandalous — and sad.