Prove it!
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In his Washington Post column today on the Rathergate Report, Howard Kurtz quotes report panelist Louis Boccardi on the question of the possible political motivation underlying the fraudulent 60 Minutes story:
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Louis Boccardi, the former Associated Press chief executive who headed the panel with former attorney general Dick Thornburgh, said they "didn't feel we could say, 'We accuse you, Mary Mapes, of having a political bias and we can prove it.' Instead we said, 'Look, here are the things these folks did, that the program did.'" This, Boccardi acknowledged, "won't satisfy anybody who thinks anything short of outright condemnation, a finding of political bias, was an act of cowardice...that we didn't have the nerve, courage, wisdom, insight to say it." But, he added, "bias is a hard thing to prove."
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Dorothy Rabinowitz is the Wall Street Journal's Pulitzer Prize-winning editorial writer and columnist. In her column on the report for the Journal today, she supports Boccardi's rationale for the report's agnosticism on the questions of political motivation for the 60 Minutes story and of the authenticity of the documents on which the story was based. Rabinowitz summarizes the television interviews of Thornburgh and Boccardi on these points and comments on them:
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The panel's authors otherwise used their media interviews to their advantage, not least in their responses to the most often raised questions put to them: Why had they come to no conclusion about the authenticity of the documents on which CBS relied for the segment? And why had they decided they could find no basis for political bias? Their answer to both questions was clear--they had no wish to emulate the producers responsible for the "60 Minutes" report by making allegations for which they could offer no proof.
It would be difficult to argue with this position, however tempting it might be. The panel's report did take note of the producers' clear failure to avoid the appearance of political motivation in the Bush National Guard story.
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Here Rabinowitz usefully states the extreme version of the report's apparent standard of proof on the issues to which she refers: metaphysical certainty. On the question of the authenticity of the documents, Rabinowitz does not even bother to elaborate the rationale or explain why it applies.
At least on that issue, the report offers no evidence supporting the authenticity of the documents. Against the overwhelming evidence of actual fraud set forth in the report, the report posits the purely theoretical possibility that the documents might on the other hand be authentic. On this basis the report withholds judgment on the documents' authenticity.
Dorothy Rabinowitz to the contrary notwithstanding, a standard of proof requiring metaphysical certainty and the withholding judgment so long as contrary conclusions are theoretically possible is ludicrous. Indeed, it is a standard that the report applies nowhere else other than to the sensitive issues of document fraud and political motivation.
On the question of the competitive pressures that purportedly caused CBS to rush the 60 Minutes story to air on September 8, for example, and the responsibility for its airing on that date rather than later, the panel heard conflicting evidence. On pages 94-95, the report states:
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The impact of this increase in interest by other news organizations in the TexANG story on the timing of the September 8 Report is a matter of dispute. Mapes told the Panel that she had insisted to her superiors that she wanted more time to prepare the Segment, but that Howard decided to run it on September 8 despite her wishes. Howard’s recollection differs as explained below. Mapes said that she told Howard she could be ready with the story by September 8, but believed it would be beneficial to have some additional time. Mapes also told the Panel that Howard had specifically refused to postpone the story to the 60 Minutes program on Sunday, September 12. The Panel was informed by 60 Minutes management, however, that Howard did approach them about broadcasting the story on September 12, but that it was they who declined.
West, Howard and Murphy have a different recollection of Mapes’ wishes regarding the timing of the Segment. They all told the Panel that Mapes expressed concern to them that she would lose the story if 60 Minutes Wednesday did not broadcast it on September 8. The impression they had from Mapes was that other news organizations were ready to publish stories on the Killian documents and that if the Segment was not broadcast on September 8, it would be old news by the time of the next show. In addition, in an e-mail on the evening of Sunday, September 5, from Murphy to Howard, Murphy stated that Mapes was “more convinced we will need to go this week.”
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Despite the conflicting evidence on the issue of competitive pressures driving the report to air on Sepbtember 8, the panel does not hesitate to draw a conclusion:
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Based on the information available to the Panel, it appears that competition from other news outfits propelled the Segment forward and that Mapes was driving the Segment to air on September 8...
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Indeed, this finding, though based on conflicting evidence, is the key to the panel's conclusion that haste rather than political bias was responsible for the airing of the 60 Minutes story in its radically defective form on September 8.
If the standard of proof is metaphysical certainty, how could the panel possibly draw such a conclusion in the face of conflicting evidence? The answer is that when it suited its purposes, the panel conducted itself in the fashion of factfinders operating under the traditional civil law standard of proof for the finding of facts: the preponderance of the evidence. The severest standard of proof known to Anglo-American law is the "beyond a reasonable doubt" standard applicable in criminal cases. In between is the "clear and convincing evidence" standard of proof that is applicable in some civil actions, such as defamation cases involving public figures.
The Rathergate Report never directly addresses the standard of proof the panel applies to resolve disputed questions of fact. In general, it appears to apply the commonsensical "preponderance of the evidence" standard that operates in most civil cases. When the report reaches particularly touchy issues for CBS as a corporate entity, however, the report applies a standard of metaphysical certainty that is known nowhere in the real world outside of freshman philosophy classes.
Posted by The Big Trunk
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