Rathergate: The flawed report

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Regarding Rathergate, James C. Goodale, Adjunct Professor at Fordham Law School, former Vice Chairman and General Counsel of The New York Times who "represented the newspaper in the Pentagon Papers case," host and producer of the TV program The Digital Age, wrote in the April 2005 issue of the New York Law Journal that the January 5, 2005, Report of the Independent Review Panel[1] on the September 8, 2004, 60 Minutes Wednesday Segment For the Record by Dick Thornburgh and Louis D. Boccardi concerning President Bush's Texas Air National Guard Service is a flawed report and it "should not be uncritically accepted, as it has been by the press and by television commentators."[2]

The premise

Goodale says that the "report concluded that CBS failed to hire appropriate experts to clearly verify its statements and did not establish a 'chain of custody' for the documents. CBS, according to the report, rushed to judgment on the basis of inadequate evidence, did not promptly acknowledge flaws in its program, and broadcast a false and misleading report."

Goodale's evaulation

Goodale agrees with the report in that "CBS did rush to make inadequately verified allegations public and it was slow in responding to criticism." But, he writes, the report's "conclusions on the other points are not, however, persuasive."

And, he says, "Surprisingly, the panel was unable to conclude whether the documents are forgeries or not. If the documents are not forgeries, what is the reason for the report?" His answer is this: "to criticize the newsgathering practices of CBS, whether the documents are authentic or not. As such, the report is less than fully credible."

The flaws

  • In addressing the "flaws", Goodale makes his points one by one:
  1. The "underlying facts of Rather's 60 Minutes report are substantially true."
  2. "Following the broadcast, Marian Carr Knox," who was Lt. Col. Jerry B. Killian's[3] secretary "at the time, confirmed the facts of the broadcast."
  3. "Since the broadcast, no one has come forward to say the program was untruthful."
  4. Authenticity of the documents: "lawyers know how to hire appropriate experts even if journalists don't, why didn't the panel, which was backed by a huge law firm, hire its own experts to determine the authenticity of the documents?"
  5. "chain of custody" for the documents: "While such proof is relevant in the courtroom, it is often irrelevant for journalists. Few stories based on documents would ever be written if that were the standard." Goodale adds that if authenticity and chain of custody had been at issue, then the Pentagon Papers would not have been exposed.
  6. Journalists have to make judgement calls: "Apart from consulting forensic experts when it is appropriate, what journalists do when they receive copies of documents is to make judgments about the source and the contents of what they have. Are they consistent with known facts? Is it logical to assume such documents exist?"


Goodale sees a "major weakness" of the report is that neither 60 Minutes Wednesday producer Mary Mapes nor Dan Rather "was offered a chance to cross-examine the people the panel interviewed. In fact, the panel never even told them whom it was talking to."

Goodale identifies the "least credible part of the report is its decision to label parts of Dan Rather's program false and misleading, even though those parts were not directly related to the documents."

Additionally, he writes, the report "reads as if it were written by lawyers for lawyers, notwithstanding the fact that Mr. Boccardi is a journalist. The report, it may be noted, is signed not only by Boccardi and Thornburgh but by seven other lawyers in Mr. Thornburgh's law firm. The report might well have been better if it had been written by journalists for journalists and the public. The report convincingly points out that CBS moved too quickly in airing the broadcast and too slowly in discovering that its source would change his story about how and from whom he got the documents. Those are fair and telling comments. But they take up little more than 25 percent of the report."


In summation, Goodale writes, "The rest of the report, which is directed to the newsgathering process of CBS, is flawed. The panel was unable to decide whether the documents were authentic or not. It didn't hire its own experts. It didn't interview the principal expert for CBS. It all but ignored an important argument for authenticating the documents—'meshing.' It did not allow cross-examination. It introduced a standard for document authentication very difficult for news organizations to meet—'chain of custody'—and, lastly, it characterized parts of the broadcast as false, misleading, or both, in a way that is close to nonsensical. One is tempted to say that the report has as many flaws as the flaws it believes it has found in Dan Rather's CBS broadcast."


Related SourceWatch articles


  1. "Report of the Independent Review Panel,"CBS News, September 8, 2004.
  2. "The Flawed Report On Dan Rather," Crooks and Liars, March 27, 2005.
  3. Jerry B. Killian in the Wikipedia.

External articles