The response to Rather’s lawsuit was decidedly mixed. Long-time Nightline host Ted Koppel expressed his support, calling it a “travesty” that “Dan Rather was squeezed out” so unceremoniously. But media critics for the LA Times and Washington Post were decidedly less supportive, basically relying on CBS’s version of events to frame their reporting (Howard Kurtz in the Post, writing that “Many of his friends think he has lost it”) and commentary (Tim Rutten in the Times, calling the lawsuit an “act of ego.”)

Strikingly absent—except for places like Salon.com—was any serious reconsideration of what the lawsuit was all about. Rutten huffed that, “Dan Rather took the best seat in the house that Murrow built and then left the place a ruin. Now he has returned to torch the rubble.” But it took Salon’s Sidney Blumenthal to set the historical record straight: “The corporate unease with Murrow's outspokenness, leading to the cancellation of his weekly program, See It Now (depicted in the recent film Good Night, and Good Luck), was little different from the unease with Rather a half-century later.”

Author and investigative reporter Robert Parry, a key figure in breaking the Iran-Contra story in 1985/86, added further context. Rather had been a target for the right ever since—as CBS’s White House correspondent—he aggressively asked Nixon tough questions about Watergate. (CBS considered dropping him after Nixon attacked him directly at one point.)

“The whole process of asking questions in an effective way can be messy. Historically it was done with people and a note pad and paper,” Parry explained. “When it started to be televised people would be angry with journalists for asking tough questions. Rather was trying to do it the old way not buttering up the President, but treating everybody the same.”

Poking the Tiger in the Eye

In 1988, Rather was the only top-tier journalist to question Bush’s involvement with Iran-Contra. Bush characterized himself as “out of the loop,” but Special Prosecutor Lawrence Walsh, a lifelong Republican, later determined that Bush was heavily involved. Indeed, Walsh’s book about his investigation, Firewall: The Iran-Contra Conspiracy and Cover-up, was conceptually organized around the fact that an elaborate defense was set up to protect Reagan and Bush and hide their involvement.

Instead of answering Rather, Bush counter-attacked, and the media largely took Bush’s side.

“He wasn’t well-liked by many of the journalists in Washington. So when he would stumble or was perceived to stumble there would be a certain amount of piling on,” Parry told Random Lengths.

“Newsweek [where Parry then worked] did a cover on Rather. The issue was on Rather and his strange behavior, rather than Bush,” Parry recalled. “I did a sidebar on the piece, about why these questions were important.”

History would prove that Rather was right. But even today, that history is largely unknown.

Ignoring the Context

Historical context was not the only thing Rather’s critics got wrong. They ignored immediate context as well: CBS’s attempt, earlier in 2004, to prevent the same team (Dan Rather and producer Mary Mapes) from breaking the Abu Ghraib story, until Seymour Hersh was about to scoop them—is a clear cut example of sacrificing journalistic priorities for political favor.

Rather’s lawsuit alleges:

"Despite the story's importance, and because of the obvious negative impact the story would have on the Bush Administration with which Viacom and CBS wished to curry favor, CBS management attempted to bury it...

“CBS News President Andrew Herward and Senior Vice President Betsy West were involved intimately in the editing and vetting process of the Abu Ghraib story. However, for weeks, they refused to grant permission to air the story, continuously insisting that it lacked sufficient substantiation. As Mr. Rather and Ms. Mapes provided each requested verification, Mr. Heyward and Ms. West continued to 'raise the goalposts,' insisting on additional substantiation."

Even after the infamous photographs were obtained, CBS delayed an additional three weeks. According to the suit, "This delay was, in part, occasioned by acceding to pressures brought to bear by government officials." When it finally did run, because Seymour Hersh was about to scoop them in the New Yorker, CBS sill tried to bury it, the suit alleges: "Even then, CBS imposed the unusual restrictions that the story would be aired only once, that it would not be preceded by on-air promotion, and that it would not be referenced on the CBS Evening News."

Rather’s critics also ignored the issue of alleged contractual violations, a matter entirely separate from the story’s credibility. Setting all that aside, criticism of Rather’s suit generally reflected four widespread assumptions: First, that Bush served honorably, and the story of favored treatment is basically false. Second, that Rather’s report was substantially false. Third, that the “independent investigation” CBS relied on was fundamentally fair and accurate. Fourth, that the documents used were proven forgeries. However, a careful examination of the underlying facts shows that all four assumptions are wrong.

Bush’s TANG service had always been under a cloud of suspicion on at least five major questions: how he got into the guard, how he stopped flying—without consequences, how and where he disappeared, how he got an honorable discharge, and why his records—so inexplicably incomplete—failed to clearly support the honorable discharge. Rather’s story was just one of several poking holes in Bush’s explanations, which appeared in September, 2004, just weeks before his reelection. The other stories remain unchallenged, Rather’s was never refuted, and the “independent investigation”—headed by two men indebted to Bush’s father—although heavily critical, failed to even conclude that the documents used were forgeries—much less that their contents were false.

In short, the media narrative invoked against Rather stands reality on its head at every turn. In doing so, it utterly ignores the most basic evidence available—Bush’s official service records, whose authenticity is accepted by one and all. These documents were first publicly dissected on the Internet by independent researchers—most prominently Paul Lukasiak and Martin Heldt—during the 2000 election. But in 2004, they were joined by Colonel Gerald Lichleiter, a non-partisan figure whose military background positioned him well for addressing issues regarding the cultural context out of which the documents came.

Lichleiter told Random Lengths he first got interested in Bush’s service records in 2000. He had seen documents Lukasiak secured which purported to show that Bush hadn’t fulfilled his obligations. “I asked... is this fabricated?” Lichleiter recalled. So he got the documents himself—which didn’t arrive until after the election—and did his own analysis. “I said. Yeah, they were right. Screw it. Give him a shot. I thought he deserved a fair shot. But then when in 2004 it again became an issue, I said, let me look at it more closely now.”

For years, it had been obvious that Bush’s TANG records were incomplete, but Bush’s spokespeople had insisted that everything had been released. Then, on February 13, 2004, as a result of an Associated Press lawsuit, there was a massive dump of new—and some old—documents. The media largely took its cue from a memo simultaneously released by the White House, written by Lt. Colonel Albert Lloyd. Lukasiak pointed out, “Unbeknownst to the press, however, Lloyd had been personally involved in ensuring that Bush received F-102 pilot training, despite Bush’s abysmal pilot aptitude test scores.” Bush scored the bare minimum to pass.

“Lloyd muddied the waters,” Lichleiter said, flatly, “He confused the two issues of points for retirement and meeting the standard for your first six years.” The two different standards had different requirements, and even different timeframes for evaluation—retirement years begin with the enlistment month, service obligation points are tabulated by fiscal year. But Lloyd made no mention at all of the second requirement, which Lichleiter showed Bush clearly failed to make.

Lichleiter went on to create his own detailed report on the records—34 pages in contrast to Lloyd’s 1-page memo. In it, he detailed minute aspects of the record as well as the big picture.

For his service obligation, Bush needed 59 points, divided into two categories: Annual Active Duty for Training (“ANACDUTRA”) and Inactive Duty for Training (“INACDUTRA”), which in turn fell into two categories—individual and group training (known as “UTA”). 29

Lechliter wrote, “Even a cursory review of his attendance at ANACDUTRA and INACDUTRA for the FY July 1,1972, through June 30, 1973, results in an unequivocal ‘no’ for that fiscal year. Even if all the points Bush earned are legitimate for this period, which included his time in Alabama, he earned 15 ANACDUTRA points to satisfy this requirement, but only 36 INACDUTRA points, woefully short of the minimum 44 INACDUTRA points he was required to earn.”

However, all Bush’s points were not legitimate, due to his excessive absences, which were often made up outside the allotted time frame. This invalidated the points supposedly earned, with the result that even Lloyd’s retirement analysis was incorrect—Bush failed that standard as well.

More than that, because Bush was doing make-up drills outside the proper timeframe, he was receiving “seemingly fraudulent payments,” Lechliter said. “For an active duty person, that would have triggered an investigation. And indubitably that person would have problems.” Yet, nothing happened to Bush.

Lechliter sees a long decline in Bush’s performance, and a haze of confusion in how to deal with it. He calls Bush’s 1972 evaluation, “the kiss of death.” While it sounded enthusiastic, gone was the language placing Bush in the “upper 10% of his contemporaries,” while his evaluation of “outstanding” declined to “exceptionally fine”

He then stopped flying altogether, and disappeared for a full year. A memo that Killian signed off on, dated May 2, 1973 stated, “Lt. Bush has not been observed at this unit during the period of report. A civilian occupation made it necessary for him to move to Montgomery, Alabama. He cleared this base on 15 May 1972 and has been performing equivalent training in a non flying status with the 187 Tac Recon Gp, Dannelly ANG Base, Alabama.” However, no such training appears to have happened.

“I can see that commanding officer saying ‘Jesus, what did I do to deserve this?’ He’s politically connected. And he’s a dirtball,” Lechliter speculated.

“It’s unfortunate that the furor surrounding Dan Rather quashed the story, because it had legs,” Lechliter lamented. Indeed, Lechliter said that U.S. News and World Report had done the best job analyzing his work, and checking it with others. Their story also came out on September 8, but was lost in the media storm over the 60 Minutes II report. Lechliter had sent his report to them as well, but never heard back.

When the story aired, it included a White House response, which implicitly accepted the now-disputed Killian memos as genuine—even though there were unacknowledged questions from two of the four document examiners CBS had contacted.

Bush's Communications Director, Dan Bartlett, issued a broad denial, but avoided talking directly about the memos. "I chalk it up to politics, they play dirty down in Texas, I've been there, I see how it works. But the bottom line is, is that there's no truth to this."

When CBS correspondent John Roberts challenged Bartlett--based on the disputed memo—saying, "He either ignored or didn't fulfill a direct order," Bartlett didn't dispute the content of the memo. Instead, he went on to make further broad claims that clearly contradict the detailed records that Lechliter examined:

"He spoke to the commander who made that order to talk about his personal situation and the fact that he was going to Alabama. So that at every step of the way, President Bush was meeting his requirements, granted permission to meet his requirements, and that's why President Bush received an honorable discharge."

Within hours of airing the CBS report, the rightwing blogosphere erupted with attacks on the authenticity of the memos, leading with two accusations that would later prove to be unfounded—claims that the superscript “th” and the proportional spaced fonts were not available on typewriters at the time.

Mapes and Rather stood by their story, and CBS stood with them, for almost two weeks. One week later, Killian’s then-secretary, Marian Carr Knox, came forward to say she hadn’t typed the memos and didn’t think they were genuine, but that they were basically accurate:

“I know that I didn't type them,” Knox said. “However, the information in those is correct.”

If the main concern was President Bush, and his record during the Vietnam War, this was a striking confirmation of the story Rather was pursuing. But if the main concern was trashing Rather, this gave ammunition to his critics.

“The Rather/Mary Mapes thing is just another one of those cases where the focus goes onto reporters rather than the truth they’re dealing with, which in this case is that Bush blew off his national guard services. There's just no doubt about it,” reporter Parry said. “When one person is the President of the United States, and the other people are just reporters, you’d think the President would be more important.”

Instead of seeing Knox as strengthening the story, CBS decided to back down. Rather insists they promised him to continue investigating, and promised to defend him if he apologized and then kept quiet—two of many promises he claims were broken. CBS announced an independent investigation, but instead of choosing clearly neutral people, CBS chose two men to head the panel who were both indebted to Bush Sr. Richard Thornburgh had been Bush’s Attorney General—the peak of his professional career. Former Associated Press President Louis Boccardi was indebted to Bush for his help in securing the release of correspondent Terry Anderson, held by terrorists in Lebanon for x years.

Conflicts of interest aside, the two men, although highly experienced in general, did not have a good specific fit. Parry said that Boccardi, whom he worked under at AP, “was disinclined to do investigative journalism.” He had an editorial page background, “He wasn’t a street reporter,” Parry said, and he wanted a kind of certainty that was at odds with the realities of investigative work. “He didn’t know how to do it, I think.”

Boccardi felt most comfortable talking to nice people in suits and ties, which was a real hindrance when it came to investigating Iran-Contra, especially the drug-running side, when the challenge was, “How do you get past those nice people with their lies?”

“They always go to a media lawyer,” said James Goodale, former lead counsel for the New York Times, who argued the Pentagon Papers case before the Supreme Court. But Thornburgh lacked that background. Goodale, who has known both men a long time, regards them highly, but called Thonrburgh’s ties to Bush a “a blinking orange light.” When the final report came out, however, he was appalled, and wrote a scathing critique in the New York Review of Books.

“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? The answer is: to criticize the newsgathering practices of CBS, whether the documents are authentic or not. As such, the report is less than fully credible,” Goodale wrote. “Lost in the commotion over the authenticity of the documents is that the underlying facts of Rather's 60 Minutes report are substantially true.”

“They got spooked,” Goodale told Random Lengths. “The firing of Dan Rather, the criticism of CBS, all assume that the documents were forged, but there is no proof they were, so that major premise is unproven.” And if the premise is false, then the biggest mistake was backing off the story, and letting it drop—a possibility the report ignores.

Three years later, Goodale’s views are unchanged—except that he has more people to criticize.

“I argued that the report itself was as flawed as the broadcast,” Goodale told Random Lengths. “If you want to take it to the next stage, three years later the journalistic establishment is as flawed for not taking the time to go back and look at what happened.”

Even more so, said Goodale, “What’s worst about all this, not only is the performance of the journalism establishment flawed, [but] it has permitted a mischaracterization of what the facts are.” Goodale specifically recalled hearing an NPR program as an example, “Generally speaking when one talks about Dan Rather that he was using forged documents—that hasn’t been proved.”

Indeed, the day the suit was filed, All Things Considered host Robert Siegel talked with reporter Robert Smith, who erroneously said, “Within hours blogs were comparing the fonts and showing rather persuasively that they probably weren't written on a typewriter.”

Goodale also criticized the report for using an unrealistic standard-- evidence of a "chain of custody."

“Few stories based on documents would ever be written if that were the standard,” Goodale wrote. Such a standard for the Pentagon Papers “would have made the story unpublishable.”

Three years later, he’s still amazed. “Who ever heard of it in journalism circles?” he asks. “That’s not what journalists do.” Rather, “they look at the documents and ask if they make sense.” This was the heart of what Mapes did, comparing the new documents with everything else she knew about the story—what she referred to as a “meshing analysis.” She created a detailed explanation for the panel, which did not appear in their report.

Goodale said this omission was “absolutely 100% outrageous. There is absolutely no excuse for it.”

As a result, Goodale contacted Mapes for a copy, to assess it for himself. (It has since appeared in Truth And Duty, the book Mapes wrote in response to her ordeal, and is available online at truthandduty.com.)

The panel seemed flummoxed by the meshing analysis. At one point the report states, “The Panel finds that the meshing analysis submitted by Mapes does not withstand scrutiny,” but it later says, "what was at first asserted by Mapes prior to the broadcast of the Segment to be a good meshing without any apparent qualification has now been transformed into an argument that there is nothing in the official Bush records that would rule out the authenticity of the Killian documents." However, this is precisely what a meshing analysis is: a comparison of questioned documents with known ones, to see if there are contradictions. What’s more, if there is nothing to rule out authenticity, then how did Mapes’s analysis fail?

One document they claim doesn't mesh well is a February 2, 1972 request from Killian to Major Harris, Bush's flight supervisor and rating officer, for an update on Bush and another officer's flight certifications. There is independent confirmation that Bush started having problems around this time, including nine flights in T-33 trainers in February and March 1972, rather than in F-102s.

But the panel objected that these flights came after the Feb 2 memo--overlooking the possibility that Bush was shifted to training flights as a result of this request, or that there were other warning signs.

Even more tendentious reasoning lead the panel to, in Goodale’s words, “label parts of Dan Rather's program false and misleading, even though those parts were not directly related to the documents.” This included an interview implying that Bush joined TANG to avoid serving in Vietnam was inaccurate and misleading because there were other sources who would say the President wanted to serve in Vietnam.

“Those comments are comments you would hear at a cocktail party from a Republican loyalist,” Goodale said. It amounted to “rewriting” Bush’s history. When Bush joined the guard, he marked a box saying he did not want to serve overseas.

Two of the four document examiners generally supported the document’s authenticity, while two others were unsure, and unwilling to authenticate without more information. Random Lengths spoke to three of them. A fourth, James Pierce, has apparently retired and could not be located.

Marcel Matley believes the documents are authentic and was quite upset with the investigative panel. He wrote a letter citing “certain incorrect statements affecting me and which are derogatory and/or damaging to me professionally,” requesting that they be corrected, which was never done. The root problem was that no recordings were made of the panel’s proceedings.

“They simply got things wrong and they misquoted people and they misrepresented,” Matley said. “They made all the mistake[s] they accused others of making, only worse.”

As for the documents themselves, and the controversy surrounding them, Matley insists, “There’s no credible evidence whatsoever that they’re false.” He also took dead aim at the claim, propagated quickly on the Internet, that proportional spacing typewriters weren’t available in the early 1970s. To the contrary, Matley said, “The first one was invented in 1941,” and he supplied a photocopy of a passage from the book, Scientific Examination of Questioned Documents by Ordway Hilton, which elaborates, “In the 1940s and early 1950s, IBM developed and successfully marketed the first proportional spacing typewriter, which was known as the Executive....During the 1950s, other companies manufactured competitive machines in this country.”

As far as superscripts go—for the raised “th”, Matley said that custom keys were readily available at the time.

Emily Will is considerably more dubious, but cannot say definitely one way or another. “My first impression [is] the documents were very poor quality multi-genetation fax and copies of fax,” Will said. “I saw several problems with signatures in terms of things that would have to be explained,” as well as problems with the layout and the type. Will explained that the more samples one has, the more confident one can be of judging if a signature is authentic. Without certainty, she recommended that the documents not be used.

In short, experts could not agree—and cannot to this day. But a rash of other stories came out simultaneously with the CBS report on September 8.

U.S. News and World Report ran a detailed story based on Lechliter’s analysis with extensive corroboration. Lawrence Korb, who served under Reagan as Assistant Secretary for Defense for Manpower and Reserve Affairs told them, “it was apparent that President Bush ‘had not fulfilled his obligation’.”

“When I look at his records it is clear he didn't do what he was supposed to do,” Korb says. “Since he didn't do these those things, he should have been called to active duty.”

The Boston Globe ran a similar story, building on Lechliter’s analysis, also quoting Korb, among others.

New York Times columnist Nicholas Kristof cited Lechliter’s analysis as well in a column where he also talked about people in Alabama who never saw Bush show up at the base where he claimed to be. A reward for anyone who did see him there went unclaimed.

Nine days later—September 17—the Times ran a 3,000-word story in which Lechliter’s analysis also played a key role. But on September 20, CBS retracted its 60 Minutes II story—and that quickly killed off further interest in pursuing the truth about Bush’s TANG service.

Now, more than three years later, Rather’s lawsuit might actually provide definitive answers to some of the lingering questions that remain—if it goes to trial.

“There’s this line in Washington that people like, perception is reality. But it isn’t,” Parry said. “At the end of the day a lot of people end up getting killed by the belief that perception is reality.”