MEP MEDIA ETHICS PROJECT
515 MADISON AVENUE
NEW YORK, NEW YORK 10022
FAX 425-799-7214
email: mediaethics@email.com
WEBSITE: WWW.MEDIAETHICS.8K.COM
William L. Whitely
Chairman
Via Fax
October 27, 2004
Hon. Richard Thornburgh
and
Mr. Louis D. Boccardi.
c/o Kirkpatrick & Lockhart
1800 Massachusetts Avenue, NW
Washington, DC 20036
RE: Investigation of CBS and CBS News
Gentlemen:
On September 27th, we wrote you with reference to your CBS commissioned investigation of the facts and circumstances related to CBS News’ broadcasting of a series of reports on the National Guard service of President Bush, apparently based on forged documents (“60 Minutes II Investigation”). We understand from press reports that the 60 Minutes II Investigation is ongoing, but no information has been provided with respect to the overall timetable for completing your work.
This letter addresses another CBS News reporting issue of significant concern, which we believe must be made a part of the 60 Minutes II Investigation. We refer to the recent story concerning alleged missing explosives in Iraq. This story was first reported on Monday, October 25, by the New York Times, which jointly credited 60 Minutes . Other press reports followed, including one by CBS News in cooperation with the Associated Press, which included the following opening paragraphs:
(CBS/AP) Several hundred tons of conventional explosives are missing from a former Iraqi military facility that once played a key role in Saddam Hussein's efforts to build a nuclear bomb, the U.N. nuclear agency confirmed Monday...
60 Minutes Correspondent Ed Bradley reports the U.N. says it warned the U.S. government the munitions site might be looted shortly after the invasion. A White House spokesman today CBS News President Bush is determined to get to the bottom of what happened to the missing explosives. http://frontpagemag.com/Articles/ReadArticle.asp?ID=15692
Information which has come to light has shown facts in the initial CBS News- New York Times reports to be inaccurate, incomplete, misleading and false. Indeed, a briefing by the Department of Defense this morning has identified at least 250 of the 350 tons of the supposedly unaccounted for munitions.
Additionally, it has been widely reported that CBS News had planned to carry the original story as an exclusive report on its October 31 edition of 60 Minutes. The following statement was issued by Jeff Fager, CBS News executoive producer confirming this scheduling plan:
"[Ou]r plan was to run the story on October 31, but it became clear that it wouldn't hold," Fager said in a statement. http://www.freerepublic.com/focus/f-news/1258493/posts
Following the publication of the explosives story by the New York Times on Monday, a number of the follow-up reports by various news organizations directly questioned the facts, circumstances, motivation and timing of the New York Times-60 Minutes reports. For example, it has been reported that a segment by NBC News broadcast on Monday specifically countered claims that the weapons disappeared because of low post-war troop levels, but instead showed that the referenced explosives were not present when coalition forces first arrived at Al Qaqaa during Operation Iraqi Freedom:
NBC News confirmed that an embedded reporter with the Army's 101st Airborne on April 10, 2003, one day after Iraq was liberated from Saddam Hussein, said the explosives were already gone when coalition forces arrived.
"[T]hese troops never found the nearly 380 tons of some of the most powerful conventional explosives, called HMX and RDX, which is now missing," the NBC reporter said at the time. http://www.gopusa.com/news/2004/october/1027_cbs_explosives_story.shtml
Questions have also been raised concerning the apparent source of the information on which the news missing explosives story has been based :
Why is the U.N. nuclear agency suddenly warning now that insurgents in Iraq may have obtained nearly 400 tons of missing explosives -- in early 2003?
NBCNEWS Jim Miklaszewski quoted one official: "Recent disagreements between the administration and the head of the [United Nations] International Atomic Energy Agency makes this announcement appear highly political."
http://www.drudgereport.com/nbcw.htm
Concerns about the possibilities of deliberate UN “meddling” in the US presidential election have been raised by knowledgeable sources, including the following analysis by Nile Gardiner, Ph.D., Fellow, Anglo-American Security Policy at the Heritage Foundation:
President Bush is committed to fundamental reform of the U.N. system and has pledged to the American people that the organization will wield no veto over U.S. foreign policy. A second Bush presidency is also likely to strongly support congressional investigations into the Oil-for-Food scandal, undoubtedly a major threat to the standing and reputation of the United Nations—indeed, the scandal has the potential to bring down Kofi Annan and other senior U.N. officials.
It is hardly surprising then that the U.N. Secretary-General has been highly critical of the U.S. President’s foreign policy in the weeks ahead of the presidential election and has sought to undermine the legitimacy of the U.S.-led war against Iraq. This undignified meddling in the U.S. political debate reflects poorly on an international institution that once took pride in its neutrality on the world stage.
The current controversy over the IAEA report and the missing explosives must be viewed against the backdrop of mounting U.N. hostility toward the Bush Administration. The strong possibility that Mr. ElBaradei and the IAEA deliberately sought to influence the electoral debate in the United States should be thoroughly investigated. In the face of growing scandal and declining credibility, accountability and transparency must be the watchwords that govern the U.N.
http://www.heritage.org/Research/InternationalOrganizations/wm596.cfm
Subsequent reports by additional news organizations including ABC News and Fox News have provided further background, undercutting the facts originally presented by New York Times and CBS News. For example, Fox News has reported that satellite surveillance revealed significant truck transport activity in the vicinity of the ammunition storage facility just prior to the outbreak of hostilities.
In addition, Clifford D. May, a former New York Times foreign correspondent, who is president of the Foundation for the Defense of Democracies, a policy institute focusing on terrorism, has provided the following observations concerning the UN inspectors involvement in the munitions controversy:
1. The Times and other news organizations have ignored this pertinent question: Why did Saddam Hussein have the kinds of explosives favored by terrorists — and why was he permitted to keep them? Such explosives, according to the Times, also "are used in standard nuclear weapons design," and were acquired by Saddam when he "embarked on a crash effort to build an atomic bomb in the late 1980s."
2. Former federal terrorism prosecutor Andrew C. McCarthy has pointed out that U.N. Security Council Resolution 687, which imposed the terms of 1991 Gulf War ceasefire, required Iraq to "unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of . . . [a]ll ballistic missiles with a range greater than 150 kilometres and related major parts, and repair and production facilities[.]" Yet the IAEA made no attempt to force Saddam to comply with his obligations to destroy these "related major parts" of its ballistic missiles.
3. In addition, McCarthy has noted that Iraq was required "not to acquire or develop nuclear weapons or nuclear-weapons-usable material or any subsystems or components[,]" and, to the extent it had such items, present them for "urgent on-site inspection and the destruction, removal or rendering harmless as appropriate of all items specified above."
4. A detonator is a key component of a nuclear bomb. But according to the Times, Saddam persuaded ElBaradei that he wanted to hold on to the explosives in case they were needed "for eventual use in mining and civilian construction" — and ElBaradai agreed.
5. The U.N. weapons inspectors led by Rolf Ekéus asked the IAEA to dispose of these explosives back in 1995. The IAEA did not do so — and between 1998, when Saddam forced the U.N. inspectors out of Iraq, and late 2002 when U.S. pressure caused him to allow inspectors to return, 35 tons of HMX went missing. Saddam claimed he used it in Iraq's cement industry.
See http://www.freerepublic.com/focus/f-news/1260045/posts
May concluded his observations as follows:
So when all the dots are connected what we see revealed is Bomb-gate — a controversy that should be about foreign interests that may be improperly influencing the U.S. media to affect the outcome of an American election. Id.
Finally, the Washington Post has included the following points in its October 28 editorial titled: “Missing and Explosive” :
It may not be fair to claim, as Sen. John F. Kerry did on Monday, that the loss represents "one of the greatest blunders of this administration." Apart from the doubts about whether the explosives disappeared before or after U.S. troops reached the site, Iraq was covered with some 10,000 weapons sites under Saddam Hussein; Qaqaa was not among those given highest priority by U.S. intelligence…
It's worth noting, meanwhile, that the sensation over the missing explosives emanates from the International Atomic Energy Agency, whose director, the Egyptian Mohamed ElBaradei, has been an adversary of the Bush administration on Iraq since well before the war. This month Mr. ElBaradei delivered a report to the U.N. Security Council complaining of "widespread and apparently systematic dismantlement" of dual-use equipment at sites once related to Iraq's nuclear program -- at least some of which apparently was done by the U.S. mission itself. News of the missing explosives then leaked to the U.S. media within days of its receipt by his agency. On the same day that it appeared in the New York Times, Mr. ElBaradei took the unusual step of submitting a second letter to the Security Council confirming the report. The fact that he was providing easy fodder for Mr. Kerry's campaign just eight days before the presidential election evidently did not deter this U.N. civil servant.
http://www.washingtonpost.com/wp-dyn/articles/A3936-2004Oct27.html
Based on the information available to date, it is quite obvious that the explosives story reported by CBS News and the New York Times on Monday omitted critical facts and circumstances and presented an incomplete, misleading and even deceptive report of events. Clearly, the reporting in issue was at best poorly researched, inadequate, one-sided and, shall we say, shoddy.
Beyond this, it appears that CBS News chose not to present the explosives story as an exclusive report on the October 31 edition of 60 Minutes, but rather elected to work in partnership with the New York Times to lead with a print version, followed by broadcast reports. This arrangement thereby allowed the newspaper to act first, publishing the details, and permitted CBS News to do follow-on reports, on radio and TV and via its Internet news site.
This cooperative or joint reporting arrangement between CBS New and the New York Times – a highly unusual arrangement between two unaffiliated news organizations-raises a number of serious issues, especially in light of the 60 Minutes II Investigation. It is the opinion of MEP that these issues should be carefully addressed by the commission and included in its final report.
1. Possible Continuing Plan or Pattern of Conduct to Broadcast Falsified, Distorted, Faked or Staged Stories Related to the 2004 Presidential Election
A key issue to be determined is whether the slip-shod, inaccurate and likely false reporting by CBS News of the National Guard story was actually part of a continuing strategy to develop other falsified, inaccurate, faked, distorted or staged stories such as the explosives story, designed to directly impact the 2004 presidential election. The inaccurate, incomplete and false explosives report appears to fall squarely within such a pattern.
Your commission is reviewing the facts and circumstances that led to the broadcasting by CBS News of the series of reports dealing with the National Guard service of President Bush. A central question of your inquiry is whether the National Guard information as presented constituted falsified, distorted, faked or staged reports designed to impact the candidacy of President Bush.
Now, weeks following the National Guard story broadcasts, we are presented with the explosives story which also could also have a negative effect on the candidacy of President Bush. In the latter case also, evidence is being presented as referenced herein which shows that the story, as reported jointly by CBS News and the New York Times, was at best incomplete and inaccurate, and at worst, could be found to include information that was falsified, distorted, faked or staged by a party or parties unknown.
As reflected in the information set out above, CBS News was most anxious to rush forward with the dissemination of the explosives story. It chose to work in partnership with the New York Times to accomplish this objective. However, based on the poor quality of the reporting, it is obvious that just as in the case of the National Guard story, CBS News failed to follow the usual standards of practice expected of professional journalists. The News Division’s goal apparently was the immediate dissemination of information, which was negative to the Bush campaign. This was accomplished, again similar to the National Guard story, by disregarding and ignoring such safeguards as third party confirmation, fact checking, source verification and any number of other reporting standards. It would appear, for example, that little, if any, effort was made to interview members of the U.S. armed forces who might have had first hand knowledge concerning the munitions.
The question for your commission must be to determine whether there in fact was a scheme or plan to present such poorly researched, inaccurate and even false information in both the National Guard and explosives stories as part of a concerted effort or pattern of conduct with the objective to adversely influence the Bush re-election campaign.
2. Use of Newspaper Involvement as Insulation of Broadcaster Liability.
A second issue to be determined is whether CBS News in entering its joint reporting arrangement with the New York Times was seeking to use the newspaper to insulate the network (and its stations) from liability for reporting a story which was both politically charged, bordering on the sensational, and lacked comprehensive research and fact-checking.
As has been made clear in the MEP Petition and other filings with the Federal Communications Commission with respect to the National Guard story, CBS, as a broadcast licensee, is required to observe a number of regulatory requirements administered by the FCC. For example, the agency is fully empowered and is expected to act in cases where news programming is found to have been falsified, distorted, faked or staged. Newspapers, on the other hand, enjoy Constitutional protections, preserving them from such governmental oversight.
The question must be properly asked by your commission whether CBS News purposely chose to have the New York Times take the lead in reporting the explosives story, immune from regulatory oversight, so as to permit CBS News to broadcast the substance of the Times story, while adding supplemental information and data.
A critical point to be determined is whether the objective of the two news organizations was to purposely avoid the regulatory scrutiny of the FCC. CBS News and the 60 Minutes staff are fully aware of the problems encountered with regard to the National Guard story. Faced with an inability to confirm the full details of the explosives story, did CBS News management seek to use an alternate print reporting vehicle to insulate itself from FCC overview?
Clearly if broadcasters sought to follow such a cooperative broadcast /print joint reporting scheme, the FCC could be deprived of its direct ability to regulate the dissemination of falsified, distorted, faked or staged news content. In such cases, the prime responsibility for the reporting as borne by the newspaper would fall outside the purview of the FCC, except in the rare case that the newspaper publisher was also a licensee.
3. Standards Governing the Presentation of News Within 72 Hours of Elections
In light of the your inquiry into the National Guard story and the facts reported with respect to the explosives story, another important matter for your commission to determine is what, if any, standards have been adopted by CBS News governing the presentation of news within 48-72 hours of elections.
As noted above, based on the statement of a CBS executive, the news division original plan was to broadcast the explosives report on the October 31 edition of 60 Minutes. This would have meant that the news of the supposed missing explosives would have been aired on the eve of the presidential election. Such a scheduling decision would have left little or no time for rebuttal by the Bush Administration.
This matter takes on an even greater significance when considering the possibility that any such election eve broadcast might contain falsified, distorted, faked or staged material, such as that under review in the 60 Minutes Investigation, and as may apparently be involved in the explosives story as well. Obviously, where a news report purposely includes falsified, distorted, faked or staged material, there may be no reasonable remedy available to correct the impact which such a report could have on an election. A broadcast licensee might find itself liable for carrying a newscast including falsified, distorted, faked or staged reports, however such a determination can only be made long after the election, which could be directly impacted by the information.
Consider, for example, what could have happened if the CBS News management had proceeded with their initial plan to air the explosives story on October 31. The initial impact would likely have been quite sensational and dramatic. The ability to field and disseminate a reasoned response to the story coming on election eve would have been limited at best. The fact that the report was incomplete, misleading and in many aspects false would not have been sorted out for days. Yet, the information would have been widely disseminated directly through the telecast, and beyond through word of mouth.
In view of the mission with which you have been charged, your commission should most certainly give careful consideration to developing advisory guidelines for CBS News governing the presentation of news reports within 72 hours of elections. Such standards must be carefully drawn to caution all journalists on the serious impact which the dissemination of falsified, distorted, faked or staged material could have upon elections. Given such concerns, journalists should properly be advised to err on the side of caution in presenting news reports during the election eve period. The overall objective clearly should not be to limit the free flow of information. Rather, the standards must prohibit the presentation of any information, which has the slightest possibility of being found to be falsified, distorted, faked or staged.
4. Determination of Standards Governing Joint Broadcast/Print Reporting
Another matter that your commission should properly address relates to the standards followed by CBS News with respect to working cooperatively with newspaper publishers.
As outlined above, CBS News elected to work in partnership with the New York Times in disseminating the explosives story. It is not clear what considerations prompted this unusual arrangement between non affiliated broadcast and newspaper operators. What should be of concern to your commission are the standards observed with respect to such cooperative arrangements.
A key consideration must be to establish that such joint arrangements are strictly dictated by journalistic needs such as operational efficiencies. Also of paramount concern is the need to determine that the cooperating parties were not seeking to avoid oversight by the FCC through the involvement of a newspaper publisher.
Unlike a newspaper, a broadcaster must understand that it can be sanctioned for airing news reports found to include falsified, distorted, faked or staged material. That being the case, it is critical that where a particular story cannot be fully researched and verified, to allow the speedy dissemination of the information, efforts are not undertaken to arrange for the combined print/broadcast publication of the story to avoid possible FCC oversight.
5. Identification of Potentially Biased Sources
Finally, as a general matter, it is critical that CBS News inform its audience in any case where arrangements have been made with news sources, who have an interest in seeing to it that particular information is carried in a news program.
In the explosives case, for example, it appears that information was provided by at least one individual, who, according to published reports, works for the United Nations and is seeking reappointment which is being opposed by the US. However, CBS News did not include this background when it stated that certain information had been provided by an unidentified source.
Such an omission is not appropriate and should be corrected through the adoption of policy guidelines. The audience should be informed where information has been provided by a biased source.
We again respectfully request that you address the matters raised by MEP in its earlier Petition and its supplementary letters in your detailed report to be issued following the review of the facts and circumstances involved in the 60 Minutes II Investigation.
Sincerely,
William L. Whitely
cc/
Michael Fricklas, counsel, Viacom, Inc.
Mark Morril, counsel, Viacom, Inc
FOOTNOTES:
1. The New York Times story credited CBS News and 60 Minutes stating, "This article was reported in cooperation with the CBS News program "60 Minutes." "60 Minutes" first obtained information on the missing explosives."
2. See http://www.foxnews.com/story/0,2933,137017,00.html
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3. The source behind the NYT story first went to CBSNEWS' 60 MINUTES last Wednesday, but the beleaguered network wasn't able to get the piece on the air as fast as the newspaper could print. Executive producer Jeff Fager hoped to break the story during a high-impact election eve broadcast of 60 MINS on October 31.
http://www.drudgereport.com/nbcw.htm
4 In the four days following the original publication of the story various news organizations have located numerous sources with first hand knowledge and documentary evidence related to the explosives. Further, the U.S. Department of Defense has been instrumental in locating additional information on the subject. (see fn. 1, supra)
5. The New York Times Company also holds FCC licensees, operating eight TV stations and two radio stations. Therefore, in the case that there was a cooperative plan as outlined above, the news reporting of the New York Times Company would also be found subject the oversight by the FCC.
6. These facts are similar to the National Guard story where information was supplied by a person , who, according to published reports, had for years been contacting the media seeking to do damage to President Bush. This information
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MEP Petition for Declaratory Ruling
The MEP Petition was filed with the FCC on Friday, September 17, 2004. A copy was served on Viacom the same day.
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