AMENDED COMPLAINT AND PETITION FOR RECONSIDERATION BY THE CENTRAL INTELLIGENCE AGENCY.

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87M01152R000500670005-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 76
• Document Creation Date: December 22, 2016
• Document Release Date: March 18, 2010
• Sequence Number: 5
• Content Type: MISC

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TABLE OF CONTENTS
Section Page
I. Preliminary Statement
II. Commission Action Is Mandated In Light
Of The Particular Factual Aspects Of This Case
A.
B.
Introduction
Action Is Appropriate Under the
Commission's General Oversight Authority
III.
The ABC Programming At Issue
A.
B-.
C.
The Initial Allegations By ABC
ABC Misuses Statements By Witnesses,
Fails To Air Contrasting Views,
And Suppresses Contrary Evidence
ABC Alleges CIA Was Violating United
States Law And International Treaties
18
D.
ABC Proffers "Support"
For Its Allegations Against CIA
19
E.
ABC Leads With The Murder Conspiracy Charge
22
F.
ABC Engages In Deceptive Editing
27
G.
ABC's Support For Barnes
29
H.
ABC Concludes With Ted Frigard
30
I.
ABC "Clarifies" Its Broadcasts
31
IV.
ABC's Violation Of The Fairness Doctrine
32
A.
Controverial Issue Of Public Importance
32
B.
The ABC Programming Clearly Concerned A
Controversial Issue Of Public Importance
And Violated The'Fairness Doctrine
41
C.
Viewing Habits
43
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V. ABC Programming Constituted A Clear Violation
Of .The Personal Attack Rules 46
A. Introduction 46
B. The ABC Programming Is Actionable
Under The Personal-Attack Rules 46
C. This Documentary Was Not Exempt
From The Personal Attack Rules 49
D. In Any Event, The ABC Programming Is
Actionable Under The General Rules
Of The Fairness Doctrine -
VI. ABC's Deliberate Distortion Of The News 57
A. Extrinsic Evidence Of Deliberate Distortion 58
B. Documents Which Reflect Deliberate Distortion 63
C. Addressing The Concerns Of The Staff 70
VII. Conclusion 73
Exhibits 1 - 18
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BEFORE THE
UNITED STATES
FEDERAL COMMUNICATIONS COMMISSION
In re Complaint of
Central Intelligence Agency,
Complainant,
VS.
American Broadcasting Company,
Respondent.
AMENDED COMPLAINT AND PETITION FOR RECONSIDERATION
BY THE CENTRAL INTELLIGENCE AGENCY
The United States Central Intelligence Agency hereby
respectfully presents its Amended Complaint and Petition for
Reconsideration of the staff ruling adopted and released on
10 January 1985 with respect to our Complaint of 21 November
1984 against the American Broadcasting Company.
It is our considered judgment that the instant filing is
necessary to meet the concerns of the staff, to further
elaborate on the relevant evidence and legal. theories, and to
present additional evidence not previously available.
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Accordingly herein, we (1) present an Amended Complaint in
full procedural and substantive accord with Commission rules
and precedent, (2) address the specific issues raised by the
staff in its decision, and (3) explain in detail the legal and
policy reasons supporting our belief that this is a case which
fully justifies the modest relief requested.
We would additionally note that this enlarged record should
meet the concerns expressed by the staff in its ruling of
10 January and will provide a more complete record, in the event
the matter is reviewed by the full Commission.
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I. Preliminary Statement
On 21 November 1984, the Central Intelligence Agency
("CIA') filed with the Federal Communications Commission ("FCC"
or "Commission") a complaint charging that the American
Broadcasting Company ('ABC'), during its presentation of an
"investigative report' on 19, 20. and 26 September i984, engaged
in deliberate news distortion and violated the Fairness
Doctrine and the corollary Personal Attack Rules which require,
respectively, that a licensee (a) ensure that its news
broadcasts are neither distorted nor slanted, (b) air
contrasting views, and (c) give the right of. rebuttal. 1/
To date, despite Commission preference that complaints be
first addressed by licensees, ABC has failed to respond to our
oral communications and our letters of complaint, as well as
our formal Complaint to the Commission. 2/
. 1/ See EXHIBIT 1: Transcripts of relevant portions of
"ABC Nightly News" of 19, .20 and 26 September 1984, as well as
the partial disclaimer broadcast on 21 November 19184. A copy
of each of these transcripts, as well as all other relevant
documentation, has been provided herewith.
2/ On 26 September and 3 October, letters of complaint
were sent to ABC News which specifically identified the
programming in issue, fully' delineated the objections of the
CIA to that programming, and specified the remedial steps we
believed.to be appropriate. In particular, CIA emphasized the
falsified and distorted nature of the broadcasts,~the personal
attack upon the CIA, and the lack of fairness and balance of
ABC's programming. Copies of these letters are provided
herewith as EXHIBIT 2.
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While neither the viewing public nor this Commission has
had the benefit of any explanation or the results of any
investigation by ABC, 3/ it thus appears fully relevant to note
that it is generally conceded among the media and the viewing
public that ABC management may well have exercised faulty
editorial judgment in this case, and may indeed be guilty of
irresponsible journalism 4/ and that the ABC programming
which is the subject of our complaint was misleading to the
viewing public. 5/ Indeed, perhaps the best independent
analysis to date of ABC's programming and management
deficiencies has been detailed by Accuracy In Media:
What the CIA complaint ... demonstrates
[is) that these large news organizations are
capable of incredible, irresponsible and
sloppy journalism, and willing to_go with
discredited sources.
3/ The letter of CIA to ABC of 26 September, included in
EXHIBIT 2, relates the expectation of*CIA that ABC, would
undertake "a complete and thorough investigation of the
accuracy-of the series and the circumstances surrounding its
production."
It is difficult for the CIA to reconcile what should be
the natural interest of the Commission in the details and
findings of this fully expected but perhaps now abandoned
internal investigation, and the refusal of the-Commission to
substantively concern itself with our Complaint, when the
licensee itself has lead the CIA to believe that the matter
would be investigated.
4/ Statement Of Media Access Project In Opposition To The
CIA Complaint Against ABC, filed 11 December 1984;', see also
"Government Coercion," Editor & Publisher, 1 December ;1984,
at 8 (ABC faulted for not doing required checking before the
original broadcast.)
5/ *The First Amendment Cases [Editorial], The Washington
Post, 24 December 1984, at A14. ("Some assertions stand up to
challenge. Others collapse, like ABC's murder story, with
damage to the reputations of the people who broadcast it.")
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It demonstrates that there is something
very wrong with the management of ABC for
failing to insist on a genuine investigation
and a prompt disclosure of the findings as
soon as the CIA challenged its report. 6/*
However, as more fully presented herein, we respectfully
submit that the evidence in this case and the argument set forth
herein do not merely demonstrate irresponsible journalism but
constitute a prima facie showing of a violation of'(a) the
fairness doctrine, (b) the personal attack rule, and (c) the rule
against deliberate news distortion. It is for these reasons that
we 7/ as-k the Commission to direct ABC to respond substantively
to our complaint and grant such further relief as it may deem
appropriate.
Indeed, we believe that the relief we seek is fully
consistent with the recent commentary by Peter Jennings of AB
News concerning the story by Time Magazine which gave rise to
law suit by Ariel Sharon:
Time [Magazine] really ought to rethink its
victory. When we are wrong, we should say
we are wrong and apologize. Freedom of the
press implies a responsibility at least to
do that much. 8/
Mr. Jennings anchored the objectionable story about the CIA and
should be called upon to do himself what he would have others do.
6/ See EXHIBIT 3: AIM Report, December-B, 198-4, at p. 4.
7/ We concur in the staff's findings that the; CIA is a
proper complainant in a matter such as this before the
Commission. Accordingly, we do not present further argument in
this regard.
8/ Commentary by Peter Jennings, ABC News Information
Network, WMAL Radio, 25 January 1985.
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II. Commission Action Is Mandated
In Light Of The
Particular Factual Aspects Of This Case
A. Introduction
As we have noted, the filing of a Complaint by the CIA was
not lightly considered and was undertaken only because the
programming presented to the American public constituted a
quintessential example of what the viewing public at large
might well term 'artificial news' -- a story created out of
thin air, a work of fiction, presented to the viewing public in
the guise of an investigative news documentary. Indeed, the
ABC programming can'best be understood in the context of an
analogy to the events involving the withdrawal of the Pulitzer
Prize awarded for a newspaper series on "Jimmy's World' which
was based on a similarly falsified and artificial story -- that
of a purported but non-existent 8-year-old heroin addict. 9/.
9/ This series was finally determined to be a fabrication
in.?its entirety, created solely from the reporter's imagination
and composites of information about heroin addiction in
Washington. Following the return of the prize, Benjamin C.
Bradlee, Executive Editor of The Washington Post, 'stated:
The credibility of a newspaper is its most
precious asset, and it depends almost enti rely
on the integrity of its reporters. -When that
integrity is questioned and found wanting,, the
wounds are grievous, and there is nothing to do
but come clean with our readers, apologize to
the Advisory Board of the Pulitzer Prizes, and
begin immediately on the uphill task of regaining
our credibility.
'Post Reporter.'s Pulitzer Prize-Is Withdrawn," The Washington
Post, 16-April 1981, 'at Al, A25.
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This is not a case, such as In re Network Coverage of the
Democratic National Convention, 16 FCC 2d 650 (19691) where
segments of a responsible programming effort were challenged.
In this case, ABC pictorially and verbally presented ostensibly
factual statements which were fabricated and about which the
viewing public could not even surmise a supporting predicate.
Indeed, the programming even went so far as to portray
deceptively the President of the United States as engaged in
duplicitous dealings with the highest officials of the People's
Republic'of China without any basis in fact for such portrayal.
Despite the fact that our concerns were relayed to ABC
management,- ABC has demonstrated no corresponding concern
toward its responsibility of honoring its public trust. 10/
10/ We refer specifically to the fact that in our
contacts with ABC, we had every reason to believe that ABC
would conduct a full and impartial internal investigation. To
date, we have. received only silence.
it should be noted that these contacts were
extensive. Specifically, letters of complaint were sent to ABC
which clearly identified the programming in issue, fully
delineated the ob}ections of the CIA to that programming, and
specified the remedial steps we believed to be?appropriate. In
particular, CIA emphasized our belief that the programming
complained of constituted deliberate news distortion and a
personal attack upon the CIA, and demonstrated a lack of
fairness and balance. Moreover, these communications were
augmented by personal meetings between senior CIA.ond ABC
.officials on 24 September, 20 October and 30 October 1984,
where the complaints of and specific requests by CIA were fully
explored, including the request and belief by CIA that a full
internal network investigation would be conducted by ABC.
In sum, these communications fully compoirted with
Commission preference that a viewer first present his prima
facie complaint to the licensee.
.7
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We are unaware of the extent, if any, to which ABC has
conducted an internal investigation, and, in any event, ABC
certainly has not shared any findings with the Commission or
.the viewing public. 11/
11/ In this connection, we are especially concerned with
the staff holding that it was not clear whether tIe required
information was ever provided the network"and that the
Commission will not burden the broadcaster with inquiry until
the complainant has satisfied its'procedural burderp.'
We respectfully submit that the notification process
outlined in note 10, supra, which included two written and
three oral communications, fully comported with the
requirements of the Procedure Manual, 39 Fed. Reg. 32288, and
that we first presented a prima facie case to the > Network. We
reiterate that ABC has not provided even a pro for a response
to our complaint. In the absence of any record evidence to the
contrary, our complaint must prevail on this issue, of
compliance with the notification procedures.
Notwithstanding, we would request that the staff take
note that, with respect to complaints generally, the Procedure
Manual first observes that it is "preferable," not'mandatory,
for complaints to be submitted first to the broadcaster and
indeed provides examples of why a complainant might file first
with the Commission. I-d. at 32289, ?5(2). Second', it suggests
that a complaint include only certain basic information such as
a statement of the basis of the complaint, the relief sought,
and copies of prior correspondence with the licensee. Id. at
32289, 115(4). And, third, the Manual recommends that a
complainant be as "brief as possible, ... avoid argument, ...
[and] avoid repetition or exaggeration." Id. at 31112289, 115(5).
Of course, there are additional requirements with
respect to four types of complaint, of which only two are
relevant herein -- Fairness Doctri-ne and Personal Attack
Rules. Id. at 32289, $7. But here also, the Commission has
consistently recognized that there is'no absolute requirement
that a complaint go first to a broadcaster and tha'11t.in "unusual
circumstances" or "[w]here time is an important faictor, a
complainant may find it advisable to complain simultaneously to
the station and the Commission." Id. at 32289, $71, 1113.
While we need not reiterate the specifics of the rules
set out in $1 14 and 18 of the Procedure Manual, .21t is facially
clear that, in submitting our written letters of complaint and
oral complaints to ABC, our initial formal Complaint and the
instant Amended Complaint and Petition for Reconsideration both
to this Commission and ABC, we have clearly conformed with all
procedural requirements.
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If ABC has not yet found its programming was flawed, then the
most serious questions are,raised as to the extent of similar
portrayals in ABC's other "news' programming. If, however, ABC
has conducted an investigation and is now aware that its
broadcast cannot be substantiated but nevertheless continues to
stand by its story, then the matter should be of the gravest
concern to the Commission because there can be no clearer
extrinsic evidence of deliberate news distortion. Only with
Commission inquiry will the public know the extent of ABC
misconduct.
We submit, and document herein, that ABC's violation of its
public trust makes it incumbent upon the Commission, at a
minimum and irrespective of which authority it should choose to
exercise, to require ABC to respond to the CIA's complaint and
thus explain to the public the basis for its fully standing by
its story on 26 September and continuing to the present to
support the entirety-of its programming but for the Scott
Barnes murder charge.
We reiterate that this is not a frivolous allegation for it
involves a major member of the broadcast media in a serious
violation of the public trust and the rules of this
Commission. In doing so, we seek only the vindication of the
public's unquestioned right to be fairly informed.on a
controversial issue of public importance.
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B. Action Is Appropriate Under
the Commission's General Oversight Authority
The Commission must recognize that the gravity of the
charges at issue here makes this case a compelling one for the
exercise of its general oversight authority -- even though, as
we fully demonstrate below, the ABC programming is'actionable
under the Fairness Doctrine, the Personal Attack Rules, and the
rule prohibiting deliberate news distortion. Here, ABC
knowingly broadcast nationwide an allegation that an agency of
the United States Government was conspiring to murder an
American citizen among other alleged illegal activities. These
totally falsified allegations subsumed the entirety of ABC's
two-night broadcast. The evidence discussed here clearly
demonstrates that ABC: (a) relied on certain sources (Barnes
and Rewald) it knew were unreliable, (b) presented these
sources to the public with no warning that their testimony was
subject to doubt, (c) constructed its.broadcast in'such a
manner to suggest that these sources were reliable and that
their tales had been corroborated, (d) ignored all credible
evidence which put to rest the fanciful stories told to ABC,
and (e) acted with a reckless disregard by not-verifying in
advance the serious charges contained in its broadcasts. By so
doing -- by presenting nothing less than artificial news in the
guise of responsible news programming -- these flagrantly
irresponsible news practices clearly demand Commission inquiry.
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We submit that such inquiry was clearly contemplated by
Congress as an essential element of the FCC's general
administrative authority, 12/ which derives from the
Commission's broad mandate to regulate the use of the airwaves
in the public interest. 13/ It is important to remember that
the Fairness Doctrine and the rule against deliberate news
distortion do not define or limit the Commission's authority in
this regard, but are merely particular applications of the
Commission's power.
The power to regulate broadcasting in the public interest
gives the FCC "not only a flexible mandate under which the
Commission-operates,, but one under which it is provided
considerable judicial deference and room to experiment.' 14/
As the Supreme Court has held in the seminal case of Red Lion,
'[t]his.mandate to the FCC to assure that broadcasters operate
in the public interest is a broad one, a power 'not niggardly
but expansive." 15/
12/ 47 U.S.C. S403 provides that '[t)he Commission shall
have full authority ... to. institute an inquiry, on its own
motion ... concerning any question which may arise under any of
the provisions of this chapter, or relating to-the enforcement
of any of the provisions of this chapter."
13/ The Supreme Court has declared that the public
interest standard serves as 'the touchstone for the exercise of
the Commission's authority." FCC v. Pottsville Broadcasting
Co., 309 U.S. 134, 138 (1940).
14/ In Re Revision of Programming Policies an Reporting
Requirements Related to Public Broadcasting Licens es, 87 FCC
2d 716 at 132 (1981). .
15/ Red Lion Broadcasting Company v. FCC, 395'U.S. 367,
380 (1969).
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Thus, the Commission is fully warranted in considering
ABC's conduct from a general public interest standpoint.
Indeed, as the courts have consistently held:
[T]he Communications Act ... [has given]
full authority and power ... to the
Commission with or without complaint to
institute an inquiry concerning questions
arising under the provisions of the Act or
relating to its enforcement. This ...
includes authority to obtain the infor-
mation necessary to discharge its proper
functions, which would embrace an
investigation aimed at the prevention or
disclosure of practices contrary to public
interest. 16/
Here, Commission scrutiny will clearly find that ABC acted
with reckless disregard for the truth in producing",these
broadcasts. As the Commission wrote in Applicatiot of Action
Radio, Inc., where false temperature reports were at issue:
This activity, albeit on a lower plane, falls
on the periphery of the type of 'non fact'
reporting we referred to as 'staged', or
'pseudo-event'. in Democratic National
Convention Television Coverage, 16 FCC 2d
650, 656-657 (1969). In that case we said
that '. . . we do not sit to review the
broadcaster's news judgment, [or] the quality
of his news . . . .' On the other hand we
are concerned with a willful distortion of
news. Id. at 654. All that takes this
licensee's conduct from the core of the
'willful distortion' to which we were above
referring is that there is no evidence that
the licensee knew the actual' temperatures
and, for motive, warped that information, and
16/ Stahlman v. FCC,
126
F.2d
1942). See also-47 U.S.C.
403;
FCC
Co., supra, at. 142-3 ("Administrative agencies have power
themselves to initiate inquiry ... in ascertaininglwhat is to
satisfy the requirements of the public interest ..'. ').
124, 127 (D.C. Cir.-
v. Pottsville broadcasting
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although we have said that '[we] do not sit
as a review body of the 'truth' concerning
news events' (Id. at 655), where, as here,,
there is the clearest evidence of reckles
disregard for truth in a licensee's own news.
practices and the broadcast in no wa sma ks
of a 'commentary' type-of presentation,
public interest questions are raised. Since
in this case, there is extrinsic
corroboration of such reckless disregard of
easily ascertainable facts and materials the
licensee's conduct warrants censure. 17
If the public interest is adversely impacted when
temperatures are broadcast with reckless disregard for the
truth, then the public interest certainly must come into play
in this far more serious case. Fairness and deliberate news
distortion aside, it-clearly cannot be in the public interest
for any, licensee to air charges of heinous criminal misconduct
against any individual or group with reckless disregard for the
truth or accuracy of those charges, and, indeed, with actual
information that the.charges are untrue. The public interest
is even more damaged where, as here, the licensee is a major
news network with access to millions of homes, and the reports
are constructed so as to give the aura of reliability to the
outrageous allegations.
Indeed, as the United States Congress has noted in no
uncertain terms, the public greatly relies
on television'news for obtaining information
upon which to base its decisions. The effect
of unreliable data, unless its unreliability
.is known, is especially pernicious because it
frustrates the ascertainment of truth.
17/ Application of'Action Radio, Inc.,. 51 FCC 2d 803 at
?13 (1975) (emphasis added).
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[In short,] the public is lulled into a
false sense of reliability where reliability
.does not exist. 18/
By broadcasting erroneous and unreliable information, ABC has
.misled the public with a false sense of reliability. Such
action is truly inimical to the public interest. Surely ABC's
conduct in this matter reflects, at a minimum, a cavalier and
irresponsible attitude toward the network's duties as a public
trustee. 19/
18/ Subpoenaed Material Re Certain TV News Documentary
Programs, Hearings Before the Special Subcommittee,on
Investigations of the House Committee on Interstate and Foreign
Commerce, 92d Cong. 1st Sess. 323 (1971) (quoting commit-tee
staff legal memorandum).
19/ -See Report of the Commission in the Matter of
Editorialization by Broadcast Licensees, 13 FCC 1246, 1254-55
(1949) (hereinafter "1949 Report").
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.III. The ABC Programming At Issue
A. The Initial Allegations By ABC
ABC opened its broadcast on 19 September 1984 by reporting
the allegations of Ronald Rewald, presently under aj 100-count
indictment for fraud, perjury and tax evasion. In essence, ABC
claimed that Rewald's activities were conducted in furtherance
of the CIA's mission.
B. ABC Misuses Statements By Witnesses,,
Fails To Air Contrasting Views,
And-Suppresses Contrary Evidence
Immediately after reporting Rewald's claims, ABC News
.stated that the bankruptcy trustee for Rewald's firm, Bishop,
Baldwin, Rewald, Dillingham and Wong ("Bishop-Baldwin"),
"confirms the CIA connection," and showed the trustee Thomas
Hayes saying:
Clearly it was a commercial cover operation
for the Central Intelligence Agency. One,or
more agents used it for that purpose. But
that doesn't justify stealing $22 million of
someone's money.
We note that this contextually confused statement was aired
without the benefit of the question which solicited it. As-it
.stands, it implies that the CIA used and operated. the firm of
Bishop-Baldwin as a commercial cover operation. Moreover, it
conveys implicitly the notion that the trustee found that the
CIA was directly involved in the theft of the money.
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ABC immediately'followed this edited and deceptive
But Rewald denies the money is missing at all.
He says it's in several different banks under
other names.
Notably, in its programming, ABC broadcast no information
either in its possession or available from public sources which
would have informed the viewing public that Rewald's misuse of
the money has been essentially established. In addition, the
bankruptcy trustee found:
(T)here is (in the trustee's opinion) no credible
evidence of any substantial financial
transactions between the CIA, or any other
intelligence agency of the United States
Government,. and BBRDW, Mr. Rewald, or any
affiliated entity. According to the analysis
which the trustee has made, of the $20,41 ,500
which was received by the corporation, only
approximately $3,000 was paid by or on behalf of
the CIA to reimburse the company for
miscellaneous expenses Of the approximately
$20,157,400 disbursed by the corporation,, there
is no credible- evidence, in the trustee's view,
based on his review of the corporate records and
the sealed documents, that any expenditures were
made directly in connection with 'CIA projects'
.(overt or covert) except for those relatively
minor expenditures incurred in connection with
provided 'commercial cover' and for which
reimbursement was received. 20/
The United States District Judge involved in the matter arrived
at substantially similar conclusions,' finding only "slight
involvement" by the CIA with Rewald, and "nothing, absolutely
nothing, in any of the documents [provided by the CIA] which
20/ See EXHIBIT 4: Trustee's Preliminary Report on
Review of Sealed Documents at p. 3.
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might indicate or possibly lead to the location of any possible
hard assets of the debtor.' 21/
Similarly, ABC never informed the viewing public that the
Department of Justice and other-government entities familiar
with_Rewald believed that he was solely responsible for the
loss of the investment funds. In this regard, we note that
underlying his federal indictment were extensive investigations
by the Federal Bureau of Investigation ('FBI'), the United
States Attorney, the Internal Revenue Service ('IR$'), the
grand jury and the Securities Exchange Commission ('SEC'). 22/
All of these credible sources reached essentially the
same conclusion 23/ -- one that was not even alluded to by
ABC. 24/
21/ See EXHIBIT 5: Order re Sealed Documents, dated
1 September 1984.
22/ In particular, the SEC initiated a civil action
against Rewald for fraud and has barred him from the investment
business and revoked his registration as an investment
adviser. See EXHIBIT 6: Complaint and Consent Order, SEC v.
Rewald, No. 83-0812; 'SEC Bars Hawaii Broker Who Claimed CIA
Ties,' The Washington Post, 14 December 1984 at D9,; "SEC
Prohibits Rewald From Work As Adviser In Investment Industry,"
The Wall Street Journal, 14 December 1984, at -17.
23/ As considered previously, the other side of this
controversial issue, which was set forth in official public
records and elsewhere and utterly ignored by'ABC, was promptly
picked up by the media. See EXHIBIT 7:' 'No Major Rewald - CIA
Link Found," Honolulu Advertiser, 22 May 1984; 'Rewwald files
Show No Major Link With CIA, Trustee Says,' Honolulu Star
Bulletin, 21 May 1984, at A-8; "Rewald Finances Detailed In
Report,' Honolulu Advertiser, February 1984..
24/ See EXHIBIT 8: Indictment of Rewald, U.S. District
Court for the District bf Hawaii. .
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C. ABC Alleges CIA Was Violating
United States Law And International Treaties
ABC's programming in this matter continued in the next
news segment where ABC stated: -
ABC News has learned the agency was heavily
entrenched in Bishop-Baldwin, running a number
of foreign and domestic intelligence operations,
one of which violated an international agreement,
others in direct violation of U.S.. law.
By prefacing its charge of illegal activity with the lead-in
'ABC News has learned," ABC induced the viewing public to
believe that ABC had some basis for its assertion. Indeed, the
public was led to believe that the formidable name and
reputation of ABC News supported these claims. In none of its
programming did ABC inform the viewing public that statements
from Rewald and certain of his associates were clearly biased.
We submit that it is incumbent upon ABC to make public the
basis, if any, for these charges.
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D. ABC Proffers "Support"
._For Its Allegations Against CIA
ABC next elaborated on and attempted to support its charges
that the CIA was violating international agreements and U.S.
law and, on 20 September 1984, reiterated such accusations:
ABC news has learned that Rewald's company
provided the cover for some of the CIA's most
sensitive and potentially embarrassing
operations. Not only was Bishop--Baldwin involved
in selling arms to Taiwan, India and Syria and
promoting financial panic in Hong Kong, it was
also fueling capital flight from two allies,
Greece and the Philippines ....
And, according to Ron Rewald, the Agency was
conducting illegal domestic operations
In an effort to solicit corroboration for its unproven claims
Rewald and were personally familiar with these activities. On
the air, one of these individuals claimed to have personally
seen documentation on these activities, and then ABC reported
that such person stated under oath that he went with Rewald to
Hong Kong on a
clandestine mission ... to spread scare
stories about the financial impact of
China taking over [Hong Kong).
ABC continued by stating to' viewers, in'a voice-over, that the
firm released a lengthy report which encouraged investors to
move their money elsewhere, while showing th.e cover of a report
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titled "Capital Flight from Hong Kong and How Hawaii Can
Benefit.' ABC followed with the Rewald summation:
Certainly we were doing our part just like
everyone else was to keep that money flowing
towards the United States as opposed to Europe
or some other country.
Nowhere, in the broadcast of the allegation by this self-styled
agent, or elsewhere in ABC programming, was any corroboration
given. In the eyes of the viewing public, the CIA stood
accused by ABC of directing a clandestine mission to spread
financial scare stories in Hong Kong. Immediately following
this allegation, ABC factually posited the existence of a
report prepared by Bishop-Baldwin which was described by ABC as
encouraging the flight of capital from Hong Kong. This factual
statement by ABC was purportedly buttressed by the projection
of the cover of the report on the screen. The juxtaposition of
this picture with the allegations and the statement by Rewald
could lead the viewing public to only one conclusion -- that
the CIA. was involved in the clandestine effort to undermine the
economy of Hong Kong. Similar effect must be attributed to-
Rewald's statement that we were doing our part.... to keep the
money flowing towards the United States.'
This broadcast segment. concluded with further,yyet similar,
claims by another individual, identified by himself and ABC as
a "CIA agent,' who ABC quoted as saying that
the Taiwan deal involved such items as laser
sighting devices for M-16 rifles, armored
personnel carriers and M-60 tanks. (emphasis
added).
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ABC then stated as a matter of absolute truth that this
multi-million dollar back door deal enabled
the CIA on behalf of the U.S. government to
circumvent its agreement with mainland China
not to supply certain offensive weapons to
Taiwan.
In airing this accusation, ABC neither presented nor suggested
that it had any corroboration or verification. Moreover, the
specificity, in conjunction with ABC's endorsement, clearly
misled and misinformed the viewing public.
As more fully detailed in Jane's Armour And Artillery, the
recognized world authority on munitions, no M-60 bottle tanks
are now or ever have been in the possession of or in service
with the Government of the Republic of China-(Taiwan). 25/
This information was certainly known or should have been known
to ABC. In any event, ABC decided not to present these facts,
or any facts which contradicted its programming, to the viewing
public.
However, the most pernicious aspect of the ABC programming
in general and this broadcast segment in particular was the use
of-film footage from file, and wholly unrelated to the
broadcast, which showed the President of the United States
greeting an official of the People's Republic of China while
the voice-over described the "back door deal" -- obviously
implying to the viewing public that the ' President. was engaged
25/. See EXHIBIT 9: Extract from Jane's Armour, And
Artillery - 1983-84, at'117.
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in duplicitous, deceitful conduct while appearing to negotiate
and exchange views with the Chineese official in a true
atmosphere of goodwill.
We submit that the presentation of this accusation and
personal attack against the CIA and the President of the United
States, which under even the most basic standards of fairness
would require corroboration or the presentation of opposing
viewpoints, well demonstrates the violation of Commission rules
by ABC.
E. ABC Leads With The Murder Conspiracy Charge
ABC's honor of its public trust reached its nadir on the
broadcast of 20 September 1984. The report of that evening
focused on the assertion by Scott Barnes that the CIA had hired
him to murder Ronald Rewald. As we will demonstrate, ABC knew
that Barnes' testimony was wholly unreliable and, rather than
make serious efforts to investigate Barnes' charges, ABC
resorted to innuendo, suggestion, and other questionable
"sources" to create what appeared to be substantiation for
Barnes' sensational story. ABC first introduced the Barnes
segment with a classic accusatory question:
Did the Central Intelligence Agency-try to have
Ronald Rewald killed'to keep him from talking?
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The camera then focused on Ronald Rewald, who said;
.At first I didn't believe it. I thought it was
total nonsense, and it took a lot of convincing
and a lot of evidence and a lot of facts to be
checked out before I recognized that it was, in
fact, what was going on.
Despite Rewald's statement that it allegedly took 1a lot of
evidence and a lot of facts' before he 'believed' the
accusation, ABC News presented the murder conspiracy charge
based only on the disjointed assertions of four individuals --
Ron Rewald, Scott Barnes, Brent Carruth, and Ted Frigard.
In developing this charge, ABC first presented the
remarks of Scott Barnes whom it introduced as a man "who
sources say has extensive intelligence background.' Clearly
implying that Barnes may be connected with the CIA, ABC then
went on to announce that Barnes 'says he was sent in by the
CIA.." The juxtaposition of these two claims strongly suggests
to the viewer, based not only on Barnes' sole assertion but
also on additional information allegedly possessed by ABC, that
Barnes worked for the CIA. Indeed, during the broodcast on
26.-September 1984,-ABC explicitly stated that Barnes was
'working for the Agency."
Of course, whether or not Barnes had an "extensive
intelligence background,' a fact which ABC claims to have
corroborated, does not translate to the-erroneous implication
that Barnes had ever worked for, or. had any official contact
with, the CIA. Nor does it confirm the charge that the Agency
sent Barnes to kill Rewald. In any event, there can be no
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defense for ABC's final statement which, without qualification,
stated that Barnes worked for the CIA.
In fact, evidence of which ABC knew or should have known
shows that ABC was aware of Barnes and knew his statements were
false but, nevertheless, broadcast them. In short, there was
an abundance of publicly available information which would have
raised serious questions on this issue.
Most certainly known to ABC was the fact that,, on
18 February 1982, ABC news reporter Ted Koppel directed to the
CIA an inquiry on Scott Barnes' relationship with the
intelligence community. Prompting this inquiry were false
allegations by Barnes that the CIA had sent him to Laos to kill
American POWs remaining there. On the same day the inquiry was
made, the CIA informed ABC News that the CIA never had any
relationship of any kind with Barnes. 26/ As a result, it has
been reported in the media that a planned ABC 'Nightline'
broadcast focusing on Barnes' allegation was cancelled when
Koppel concluded that Barnes could not be believed, 27/
In addition, much of the mass media had publicized their
concern about stories from Scott. Barnes. For example, the
23 September 1983 issue of Defense and Foreign Affairs Daily
had this to say about Barnes:
26/ See EXHIBIT 10: Query Sheet (Inquiry by Ted
Koppel), CIA Office of Public Affairs, dated.18 February 1982.
27/- See EXHIBIT 11: 'ABC Retraction of CIAMurder Plot
Detailed,' Los Angeles Times, 13 December 1984, at'l, pt. 6.
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In the summer of 1982, Moscow's Radio Peace and
Progress made much of allegations by an American
citizen, Scott Barnes, who falsely claimed he had
been asked by U.S. Special Forces in March~1982
to assist in the use of chemical and biolo ical
weapons against the El Salvador rebels. B rnes
also incorrectly asserted that he was
former Green Beret, FBI agent, and CIA off cer.
28/
In the spring of 1983, Barnes was also exposed in Soldier
of Fortune magazine for his stories relating to his'
participation in an alleged POW rescue mission and subsequent
effort to kill remaining POW's. As Allen Dawson, former UPI
bureau chief in Saigon, observed, Barnes should be remembered
as '[t]he man who swam a river that wasn't there on a trip he
never took for a government that never knew.' 29/
Other major members of the media, also concerned with
questions about Barnes' credibility, refused to report his
claim that he was asked to kill Rewald. On 21 September 1984,
the day after the ABC broadcast at issue, the Honolulu
Advertiser reported that it had been aware of Barnes' claim for
several months, but had not reported it due to lack of
substantiation. 30/
28/ See EXHIBIT 12: Extract from Defense and Foreign
Affairs Daily, 23 September 1983.
29/ See EXHIBIT 13: "Scott Barnes: My Favorite Flake,"
Soldier of Fortune, Spring 1983, at 32, 35; "Reed Irvine"
[columnist], The Washington Times, 13 December 1984, at 3D.
30/ See EXHIBIT 14: "Rewald Wasn't A CIA Agent,
Congressional Aide Says," Honolulu Advertiser, 21 September
1984, at A-6.
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Similarly, in June 1984, the producer for the CBS News
'60 Minutes' program dropped Barnes' story when he found "a
number of continuing inconsistencies in what he (Barnes) was
saying.' 31/ -
In sum, as we have demonstrated, Barnes is well-known to
many journalists as a peddler of false tales about 'illegal"
government plots. In light of such facts, ABC's re,liance"on
Barnes and their presentation of his story to the viewing
public without attempting any responsible verification -- even
though ABC had particular reason to be aware. of Barnes'
questionable credibility -- is inexplicable and unacceptable.
Thus, regardless of .the motivation, it is unassailable that,
through the creative positioning of phrases, the linkage of
Barnes' false claim of CIA affiliation with. ABC's alleged
supporting source information, ABC'gave credence to the
unsubstantiated allegations of a murder plot voiced by Barnes.
Yet further extrinsic evidence is relevant to our inquiry.
On 10 October 1984 ABC News received a telegram, purportedly
from "Scott Barnes;" refuting the ABC programming concerning.
the CIA killing against Ronald Rewald and irrevocably denying
that he had "any involvement at any time with the CIA." 32/
More recently, on 9 January 1985, the CIA also received a
31/ See EXHIBIT 11, supra.
32/ See EXHIBIT.15: Western Union Mailgram, from Scott
Barnes to' President of ABC News, copy to Director Of Central
Intelligence, dated 8 October 1984.
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carbon copy'of a letter, also purportedly from Scott Barnes,
which had been addressed to the Chairman of the Commission, Mr.
Mark Fowler. While the CIA makes no representation*as to the
authenticity of the mailgram or-the letter, or the accuracy of
their contents, we should note that the letter states:
... ABC lied in its broadcast, mislead
myself and the public. ABC had denied
myself, CIA and the public at large of the
truth and have withheld factual
information. ABC has deceived and falsely
stated untruths'and attempted to cover-up
and with hold facts, in short ABC lied
knowingly, and misinformed [the] press of
.its lies. [sic) 33/
We would note for the Commission that ABC has broadcast neither
refutation, ostensibly from its prime source, but rather has
indicated to the viewing public only that there were
credibility. problems with Barnes based on a refusal to take a
polygraph.
F. ABC-Engages In Deceptive Editing
Beyond the actions considered herein, extrinsic evidence
also arises from ABC's method of editing to"present the next
portion of its programming. The narrative informed viewers
that Barnes went to a Hawaii hotel to meet with his "CIA
contact." The televised picture showed Barnes clearly sitting
in a room with a window behind him and stating that his "CIA
33/ See EXHIBIT 16: Letter from Scott Barnes to Federal
Communications Commission, Attn: Mark Fowler, copy to Central
Intelligence Agency, dated 10 December 1984.
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contact' told him, ''we've got to take him out.' You know,
kill him.' After that remark, the oral portion of the
broadcast continued with the ABC correspondent asking Barnes
.'Why?' The televised picture with this question showed Barnes
and the correspondent then sitting outside on the grass with a
chain link fence behind them. Immediately after the
correspondent asked the question, and before BarneE responded,
the scene changed and reverted back to the original setting
with Barnes sitting in the room with the window behind him.
Barnes then stated that the reason given to him for why Rewald
must be killed was that
[Rewald) was a company problem and he
obviously knew things in regards to
national security and, [that he] was no
longer an asset, [but] now a liability.
The viewing public would perceive this statement incorrectly
-- as the response to the question asked immediately before..
Thus, the viewer develops the impression that the original
statement, the follow-up question, and the supposed answer to
that question were made at one time and in sequence -- a
deception which is revealed by the tape of the actual
broadcast.
In this context, we would note certain relevant portions of
the 'ABC News'Policy Guidelines For Non-Fiction Programming,
Radio And Television':
In editing interviews, questions and answers
may be presented in a sequence which differs from
the sequence in which such questions and answers
were recorded provided that in so doing the
spirit of the interview is unchanged.
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In editing interviews, however, answers must
follow the questions to which they are actually
responses. It is never acceptable to let the
answer to a later question appear as though it
was the answer to a prior question ....
Finally, all programming must conform to the
FCC's 'Fairness Doctrine' which is designed to
ensure that all programming which deals with
controversial issues must give expression' to
representative, contrasting viewpoints. 34/
We submit that ABC's , programming. at issue conflicts
substantially with its own internal requirements as well
as the requirements of this Commission.
G. ABC's Support For Barnes
In order to garner some apparent support for the
allegations by Barnes, ABC turned first to Brent Carruth, an
attorney, and second to Ted Frigard, an investor in Rewald's
firm.
ABC introduced Carruth and presented his statement:
ABC: Barnes says he quit the assignment and
Tt Hawaii. Brent Carruth, a defense attorney
in another CIA case, says that story doesn't
surprise him at all. He recalls a threatening
conversation he had with one of the government
lawyers who are prosecuting Rewald.
34/ See EXHIBIT 17: Letter from ABC News to the Chief
Counsel, dated 30 July 1971, reprinted in Inquiry Into Alleged
Rigging of Television News Programs: Hearings Before the
Special Subcommittee on Investigations of the House Committee
on Interstate and Foreign Commerce, 92nd Cong. 2nc Sess. at 177
(1972).
We are unaware of any more recent ABC guidelines which
have been made public.
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Brent Carruth (Attorney): I was told that, in
no uncertain terms, that they would take, they
.would take any steps that were necessary to'
protect a particular agent and that they were
going to cover people. And once that was done,
then they were going to go after Ron Rewaj.d,
not before. _
As we have seen, the statement by Carruth immediately followed
the statements aired by ABC in which Barnes asserted that he
was hired by the CIA to kill Rewald. Thus, ABC induced the
viewing public to believe that Carruth was also asserting that,
in his dealings with government attorneys, similar threats of
death had been made to him. This is deceptive as we do not
believe that Caruth intended to make any such allegation.
H. ABC Concludes With Ted Frigard
As the final element in its "corroboration" of Barnes, ABC
broadcast a palpably unbelievable allegation by Ted Frigard, a
disgruntled investor in the Rewald enterprise who has alleged
that he lost substantial sums of money:
Their [CIA] offer was that they would pay
me $350,000 in triple A, unregistered,
municipal bonds. And then as we got up to
leave, the man said, 'You. know, if you'
become too big of a pain in the arse,' he
said, 'they will shoot you through the
heart. They will report it as a heart
attack. Your body will be cremated by
mistake and all that will be left will be
the coroner's report that you had a heart
attack.'
Again, we are presented with 'news' which relates to
only one-side of this controversial issue of public
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importance and which is unsupported by any corroborating
evidence. Although this statement was patently unbelievable,
ABC neither undertook any objective scrutiny nor perfo-rmed any
subsequent investigation to learn the source or truth of the
statement. We submit that there is no source and that ABC was
well aware of these facts.
I. ABC "Clarifies" Its Broadcasts
On 21 November 1984, after several meetings with CIA
officials and its receipt of two written complaints by CIA, ABC
broadcast an update-and a clarification' of its reports of 19,
20 and 26 September 1984. ABC announced that efforts taken
subsequent to the original broadcasts to verify Scott Barnes'
claim that he was hired to kill Rewald had proven fruitless.
Consequently, ABC admitted that "Barnes' charges [could not] be
substantiated,' and that there was "no reason to doubt the
CIA's denial' of any relationship with Barnes. In its
'clarification,' however, ABC did not retreat from any elements
of its story other than the testimony of Scott Barnes and, to
this date, has continued to stand by all other parts of its
broadcast.
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IV. ABC's Violation Of The Fairness Doctrine
A. Controversial Issue Of Public Importance
A traditional touchstone necessary to invoke the
Commission's jurisdiction under the Fairness Doctrine is that
the-matter complained of must involve a 'controversial issue of
public importance.' The issue relevant to our complaint is
both clear and narrow:
Does the Central Intelligence Agency adhere
to the mandate of American law generally and,
more particularly, does CIA participate in or
condone murder as a practice?
In determining whether an issue is controversial in order
to trigger the application of the Fairness.Doctrine, the
Commission has declared that:
it is highly relevant to measure the
degree of attention paid to an issue by
government officials, community leaders,
and the media. The licensee should be
.able to tell, with a reasonable degree of
objectivity, whether an issue is the
subject of vigorous debate with
substantial elements of the community in
opposition to one another. 35,/
We note that this issue has been a matter of public
interest and controversy since 1974 when the President of the
United States convened a special commission and since 1975 and
1976 when the United States Senate and House, respectively,
35/ Fairness Doctrine and Public Interest Standards
(hereinafter "Fairness Report'), 39 Fed. Reg. 26372, at 26376
(1974).
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instituted select committees to investigate CIA activities
including, more particularly, reputed CIA killings,or attempts.
In fact, explicitly' detailed as part of the mandate of the
Senate Select Committee on Intelligence Activities inquiry with
respect to the CIA was the question of 'whether intelligence
activities have functioned in accordance with the Constitution
and the laws of the United States.' 36/ During this time and
thereafter, the question. of whether the CIA violates or has
violated domestic law has received widespread attention from
government officials, 37/ as well as other representatives of
36/ Final Report of the Senate Select-Commit ee on
Intelligence Activities, 94th Cong. 2nd Sess. 3 (1976)
(hereinafter 'Church Committee Report').
37/ Id.; see also Report-on the Select Committee on
Assassinations, U.S. House of Representatives, 96t Cong. 1st
Sess. (.1979).
The following mass media articles are also
instructive. For example, Richard Pyle of the Associated Press
on 22 February 1977 observed that the Committee members
anticipated close questioning of the DCI on issues) that they
kept the CIA and other intelligence agencies in tr'iouble in
recent years, such as illegal domestic spying, covert
activities abroad and payoffs to foreign leaders. Pyle further
noted that these 'issues were also expected to be raised by
other witnesses ... .'
The Washington Post also consistently detailed such
matters. In an article. entitled "Post Attitude Held 'Very
Responsible' In White House Dealings on CIA Story'', appearing
at A3 on 1 March 1977, President Carter's Press Secretary
"reasserted the President's contention that the C A is not
engaged in 'illegal or improper' activities ... ., In another
article entitled 'Probe Clears CIA of Contact with two Aiding
Qaddafi', appearing at A4 on .3 February 1982, thelchairman of
the House Intelligence Committee was quoted?as saying that
"investigations had turned up no evidence of [unlawful action
by CIA in connection with] two former agents who dent to work
for Libya's Col. Muammar Qaddafi."
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the community, 38/ and the media. 39/
38/ See Report To The President By The Commis ion On CIA
Activities Within The United States (hereinafter Rockefeller
Commission Report') (1975).
The following mass media articles are also
instructive: '[Rev. Jesse] Jackson Asks Revival of King Death
Probe,' Baltimore Sun, 22 November 1975; "Conspiracy Killed
King, Widow Says,' Washington Post, 28 November 1975;
'Documents Indicated CIA Spied on King, Wanted to Discredit Him
as Black Leader," Los Angeles Times, 20 February 1080; "Public
Understanding of CIA Called Crucial," The Observer'Re orter
(Washington, Pa.), 11 October 1976 (Deputy Directo Knoche
asserts that CIA not involved in assassination of President
Kennedy or Reverend King); "Mystery Still Lingers On Marilyn
Monroe," Chicago Tribune, 6 August 1982 (Kennedy loyalists in
the CIA killed Marilyn Monroe); "Personalities," W shin ton
Post, 3 August 1982 (CIA flatly denies story on al eged plot to
murder Monroe).
39/ The following mass media articles are instructive on
this aspect also. 'CIA Elaborately Tracked Columnist,'
Washington Post, Al, 4 May 1977 (suit by columnist Jack
Anderson, claiming CIA committed various illegal acts-and
violated his constitutional rights to free speech and privacy);
'Ex-Spy Story,' Washington Post, A-22, 19 November,1982
(questions whether Ed Wilson, after his retirement' was still
working for the CIA and 'peddling the paraphernali4 of terror
to one of the world's premier terrorists.' Furthe observes
that 'nothing indicated that the CIA had done anything but the
proper thing in washing its hands of Mr. Wilson and some of his
erstwhile associates'); 'Is there a CIA Link with *addafi?",
Newsweek, p. 28, 15 February 1982; 'Police Chief Was Gun-
runner's Official Link," The New Statesman, 15 Feb uary 1982
(asserts that Edwin Wilson clearly enjoyed officia. connivance
from the CIA in his terrorist training programs in~Libya);
"Dirty Tricks, Dirty Hands?', New York Times, E2, .0 January
1982; 'Big Changes Ahead for CIA After"A Damaging Review, U.S.
News and World Report, p.17, 23 June 1975; "CBS Re orts Alleged
CIA Coverup in Wilson-Terpil Case,"-Associated Pre s, .
9 November 1981 (reportsallegations by CBS that .C A allegedly
covered up the involvement of some of its top offi ials in an
operation to supply military equipment to Libya).
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However, this concern does not merely represent a discord
of the past, it also constitutes a current issue of intense
controversy and public importance. Indeed, the debate
continues to this day with "sub"stantial elements of the
community in opposition to one another." 40/
This continued vitality of the issue is evidenced by the
current oversight of the CIA by both the Senate Select
Committee on Intelligence and the House Permanent Select
Committee on Intelligence, 41/ the requisite reporting by the
CIA to the President's Intelligence Oversight Board, 42/ as
well as the ever present commentary by
40/. Fairness Report, at 26376.
41/ The Permanent Select Committee on Intelligence has a
special obligation to the House of Representatives'and to the
American people to ensure that the agencies of the intelligence
community continue to respect the Constitution and!the le al
restraints under which they must operate. Such ri orous
Congressional oversight is essential to avoid any ossibility
of-recurrence of improprieties and illegalities which once
occurred in the conduct of-U.S. intelligence activities."
Report on the Activities of the-Permanent Select Committee on
Intelligence of the House of Representatives, 98th~Cong. 2d
Sess. 16, 2 January-1985. (Emphasis added.)
42/ "On October 18, the President ordered his Intelligence
Oversight Board to investigate, the production and distribution
of the manual ... . [The manual] raises the quest "on of
.whether the Boland Amendment was violated ... [and whether
Executive Order 12333, which prohibits assassinate ns, was
violated." Report on the Activities of the Permanent Select
Committee on Intelligence of the House of Represen atives, 98th
Cong. 2d Sess. 16, 2 January 1985.
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the news media and representative community leaders questioning
and appraising the legality of CIA action. 43/
43/ See notes 37, 38, and 39, supra.
See also, Debate between Mr. Ray Cline, Senior
Associate, Georgetown Center For Strategic and International
Studies, and Representative James Shannon on The MicNeil/Lehrer
News Hour, broadcast by the Public Broadcasting Service,
WETA-TV, 18 October 1984.
Several mass media publications are also relevant.
"Charges of CIA Foreign Meddling are Soviet Disinformation',
Terrorism Report, by John Wolf, New York Tribune, 11 July 1984
('Media distribution of stories alluding to the involvement of
the CIA in dastardly deeds and the tendency.of people,
particularly consumers of television, to believe the fairy
tales, have smeared the reputation of the intelligence agency.
Its efforts to perform in accordance with established
procedures and within congressional bounds overni t goes
unnoted.'); see also, Alpern, David M.; Horrock, Nichols M.;
Lindsay, John T.; DeFrank, Thomas M.; 'A CIA Bombs ell,'
Newsweek p.30, 29 October 1984. ('It was a handbook for
guerrilla warfare -- courtesy of the CIA. And on several
crucial points, it seemed a clear violation of pre idential
orders and federal law against U.S.-sponsored terrorism.')
The Congress has also been deeply involved. -See,
e.g., "Alleged Author of CIA Manual Said To Be Ex-c I,"
Washington Post, A12, 20 October 1984("Reps. George Miller and
Thomas J. Downey called on the Attorney General to ',appoint an
independent counsel, or special prosecutor, to pro 7e whether
the CIA violated criminal laws ...'); see also, Vo4.. 42,
Congressional Quarterly, 3074, December 1984 (Report on the.
finding of the House Permanent Select Committee on ',Intelligence
that the CIA 'unintentionally violated-a 1983 law that barred
U.S. efforts to overthrow the Nicaraguan Government,' but that
the CIA 'did not violate an executive order prohibiting CIA
involvement in assassinations.").
The debate has extended even to the recent
Presidential race. See Transcript of Debate between President
Ronald Reagan and Democratic Part Candidate Walter, F. Mondale
on 21 October 1984. (Mr. Mondale: "At this moment we are
confronted with the extraordinary story of the CIA''iguerrilla
manual for the anti-Sandinista contras, whom we are backing,
which advocates not only assassinations ... but the hiring of
criminals to assassinate .... Is this not in effect our own
state-supported terrorism?' Mr. Reagan: 'I'm glad you asked
that question because I know it's on many people's minds.')
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Moreover, each Administration since that of President Ford
has seen fit to state publicly that assassination is contrary
to public policy and a direct prohibition against such acts has
been contained in the various Executive Orders (currently
Executive Order 12333) governing the conduct of United States
intelligence activities. 44/
Indeed, the commentary has run the gamut from views in
favor to those highly critical of the CIA. 45/ Even citizen
groups have felt the need to voice their concern over the
issue. 46/
44/. Section 2.8 provides that "[n]othing in this Order
shall be construed to authorize any activity in violation of
the Constitution or statutes of the United States.'
Moreover, Section 2.11 further provides that "[n]o
person employed by or acting on behalf of the United States
Government shall engage in, or conspire to engage In,
assassination."
45/ See Debate between Mr. Ray Cline and Representative
James Shannon presented by the MacNeil/Lehrer News Hour,
WETA-TV, 18 October 1984 (Rep. Shannon: "I think hat there
are real questions as to whether or not the executive order .
have [sic) been violated by this document.' Mr. Cline: "I
feel that the White House is establishing the guidelines and
the operational instructions for the CIA, and thatlthe CIA is
following them very carefully.")
46/ "Hill Urged To?Probe Reports Of Illegal CIA Activity
In U.S.,' Washington Post, A2, 16 November 1984 ("In arm of the
American Civil Liberties Union called yesterday for Congress to
probe charges that the Central Intelligence Agency'-conducted
illegal operations inside the United States in an. effort to
influence U.S. policy in Central America."); see also,
"Discipline Panel Finds Students Guilty In CIA Recruitment
Fray," Washington Post, A3, 9 December 1984 .(student protest at
Brown University said to raise questions about CIA's alleged
involvement in illegal activities); see also, United Press
International, 30 November 1984 ("some 70 proteste s ... [at
Rhode Island school] claim the. CIA has committed illegal acts
including-murder and government overthrow").
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The evidence makes clear that the question of whether the
CIA adheres to the mandate of U.S. law, and, in particular,
whether the CIA engages in or condones the murder of American
citizens, is currently the subject of intensely differing
opinion as well as vigorous debate. On one side, many feel
strongly that the CIA does not violate U.S. law and would never
disobey a Presidential order. 47/ On the other side, many
believe that the CIA constitutes, as a former U.S. Senator once
alleged, a "rogue elephant" operating outside the laws of the
United States. 48/
Thus, significant attention has been and continues to be
paid. to this issue by government officials, community leaders,
and the media, alike. This evidence substantiates' the fact
that the "issue is the subject of vigorous debate with
substantial elements of the community in opposition to one
another.'
47/ "CIA said to check reports on U.S.-Nicaraguan
clashes," Associated Press, 2 December 1984 (In reply to press
inquiry as to whether reported CIA action would be illegal,
White House spokesman Larry Speakes responded that', CIA
activities 'would work satisfactorily under the laiw").
48/ See remarks by Representative James Shannon made on
the MacNeil/Lehrer News Hour, WETA-TV, 18 October 1984 (-". . if
the CIA is once again a rogue elephant running off doing things
without permission").
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Moreover, it cannot be disputed that the question of
whether the CIA acts in contravention of U.S. law presents a
controversial issue of public importance. Though the.
Commission has determined -
... that an issue is not necessarily a matter
of significant 'public importance' merely,
because it has received broadcast or newspaper
coverage,
it has acknowledged that the degree of media coverage remains
one factor "which clearly should be taken into account in
determining an issue's importance." 49/
In addition, the Commission has directed that it "is also.
appropriate to consider the degree-of attention the issue has
received from government officials and other community
leaders.' 50/
Finally, the Commission has stressed that the principal
test of-public importance is "a subjective evaluation of the
impact that the issue is likely to have on the community at
large.' 51/
49/ Fairness Report at 26376.
50/ Id.
51/ Id.
39
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As detailed herein, the issue addressed by ABC's
programming has received an exceptional and unusual degree of
media coverage. 52/ Articles and reports by the news media,
.too numerous to document entirely, have speculated on the
continuing question of whether the CIA engages in illicit
actions, including attempts and conspiracies to murder American
citizens.
In addition, as cited above, both government officials as
well as community leaders have repeatedly directed a great deal
of attention to this controversial issue. 53/
In conclusion, the CIA submits that ABC's broadcast has
generated a substantial concern among the American public as to
the propriety and legitimacy of CIA actions. Where the past
has often shown itself as a reflection of the future, these
one=sided allegations by ABC that the CIA does not abide by
U.S. law may well lead-to an intense public outcry questioning
the efficacy of the CIA. 54/
52/ See notes 37, 38 and 39, supra.
53/ See Church Committee Report; Rockefeller Commission
Report; see also E.'O. 12333, E.O. 12036, E.O. 11905 and the
charters of the Senate and House Intelligence Committees;
see also notes 37, 38, 41 and 42 supra.
54/ In the past such public concern prompted the
establishment of the special congressional investilgatory and
oversight committees, as well as Executive Order 12333.
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B. The ABC Programming Clearly Concerned! A
Controversial Issue Of Public Importance
And Violated The Fairness Doctrine
As is evident from our analysis, the CIA has clearly set
forth a prima facie showing that ABC'.s programming concerned a
controversial issue of public importance and was violative of
the Commission's fairness guidelines. In sum, the programming
portrayed the CIA as the talisman of evil,-ruthless,, and
responsible to no individual and with no legal constraints when
its interests are threatened. Neither in this investigative
report nor elsewhere in its programming has ABC even attempted-
to make a balanced presentation; rather, ABC decided to create
artifical news and, in so doing, implicated and accused the CIA
of numerous illegalities. Despite the written and verbal
complaints from the CIA, ABC has remained intransigent and has
refused to fairly present an opposing view which was available
from ABC's own files and from numerous external sources. 55/
This refusal to present any opposing point of view on such a
controversial issue, as well as ABC's subsequent intransigence
to rectify the broadcasts despite the CIA's protests,
55/ When pressed by CIA with its complaints of distortion
and violations of the fairness doctrine, ABC'-s statement on-21
November 1984 did little to"remedy the critical farness
issue. ABC "clarified" only that portion of the story dealing
with the.alleged murder conspiracy and did so onlyby stating
that there were questions with respect to Barnes' reliability.
Notably, ABC refused to address the other aspects of the story
which were similarly distorted and, more significantly,
continued-to refuse to inform the viewing public o the wealth
of contrary information -- including the basis for ABC's change
of heart after first "standing.by" its entire story.
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exemplifies a wholly unacceptable approach by ABC to fulfill
its obligation of providing the opportunity for the
presentation of contrasting views, positions, and information.
ABC's programming began, ended, and consisted solely of
sensational but otherwise unqualified statements of fact that
the CIA was engaged in a number of activities violating
international agreement and U.S. law. ABC detailed some of
these violations of law through its own narrative statements of
fact and the unverified statements of two self-identified "CIA
agents.' In developing its. murder conspiracy charge, ABC
presented no evidence and offered no direct corroboration for
Barnes' statements. ABC neither questioned the truth of
Barnes' statements nor asked who the "he" or "they' are that
supposedly ordered the killing of Rewald. Not once did ABC
reveal that a senior ABC broadcaster had previously refused to
utilize Barnes because be believed him to be an unreliable
source of information. Not once did ABC suggest that any other
information existed except for the scurrilous picture presented
by*Rewald and Barnes.
In sum, except for nine words -- "The CIA denies it ever
tried to kill Rewald" -- ABC did not once present anything
other than the Rewald version of the story -- a story which
excuses Rewald from the acts for which he stands indicted and,
instead, implicates and indeed accuses the CIA of the theft of
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over $20 million and attempted murder, as well as other
nefarious acts. These deliberate actions by ABC clearly
establish that the network and its licensees failed', to'make any
reasonable and good faith effort to meet their public
obligations. 56/
C. Viewing Habits
In its 10 February 1985 ruling, the Commission staff noted
that the CIA failed to 'describe its viewing habits
sufficiently to support its conclusion that ABC did not present
contrasting viewpoints in its overall programming.' 57/ We
recognize that this is an element of a Fairness Doctrine
complaint and herein present what we believe to be a most
complete exposition of our viewing of the overall ABC
programming.
56/ A licensee in applying the Fairness Doctri'pe is called
upon to make a reasonable judgment in good faith and on the
facts of each situation as to whether a controversial issue of
public importance is'involved and as to what viewpoints have
been or should be presented. Brandywine-Mainline Radio,
Inc. v. FCC, 473 F.2d 16, 44 (D.C.Cir. 1972). Fromithe facts
of the instant situation, ABC has either. abdicated or
deliberately ignored its obligations in this area.
57/ -FCC Staff Ruling, 10 January 1985, at 6.
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The CIA views the daily news programming of the networks, which
includes "ABC Morning News," "Good Morning America,' 'ABC World
News Tonight," and "Nightline," as well as special reports,
documentaries, and non-entertainment shows 58/ for information
which would be of interest to the conduct of its intelligence
function as authorized by law. 59/ The CIA has viewed all news
programming for a number of years and this viewing totals, with
respect to ABC alone, in excess of 20 hours per week.
On 19, 20 and 26 September and 21 November 1984, this
Agency viewed ABC's broadcast of its World News Tonight
program. 60/ It is our considered judgment, based upon these
observations, that these broadcasts concerned a controversial
issue of public importance, namely, whether the Central
Intelligence Agency adheres to the mandate of United States
law,*and more particularly, whether the Agency participates in
or condones the murder of American citizens, or other-criminal
acts. It is similarly our considered judgment that these
broadcasts also constituted a personal attack on the honesty,
character, and integrity of the Central Intelligence Agency and
its employees.
58/ As broadcast by ABC through its affiliate WJLA-TV in
Washington, D.C.
59/ See, National Security Act of 1947 and CIA Act of
1947, as. codified at-50 U.S.C. S402 - 403n.
6'0/ See EXHIBIT. 1, supra.
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Based on our observation of ABC news programming, ABC,
through its affiliate WJLA-TV, has not broadcast, in its
overall programming, any opposing views to the thesis developed
in its programming of 19, 20 and 26 September -- that the
Central Intelligence Agency does not abide by United States law
as well as conspires in or condones the murder of American
citizens. Specifically, we have not observed, nor ore we aware
of, any programming broadcast by ABC which has presented the
contrary view that the Central Intelligence Agency Adheres to
and conducts its intelligence activities in conformance with
the mandate of United States law.
Based on the foregoing, we submit that ABC has failed to
afford the opportunity for the presentation of a contrasting
point of view on a controversial issue of public importance and
has thus not satisfied its obligation under the fairness
doctrine.
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V. ABC Programming Constituted
A Clear-Violation Of The Personal Attack Rules
A. Introduction
In its initial ruling, the staff-rejected our claim under
the Personal Attack Rules holding that the ABC programming at
issue 61/ gained an exempt status under the Rules solely
because of its inclusion in a so-called "bona fide" newscast.
In so holding, the staff failed to reach our corrollary claim
that a personal attack occurring even in a ?315(a) exempt
broadcast is nevertheless actionable under the general remedial
provisions of the Fairness Doctrine. For the reasons set forth
herein, we reiterate that this documentary is not exempt from
the Personal Attack"Rules. Moreover, inasmuch as the broadcast
unquestionably concerned a controversial issue of public
importance, it is further and separately actionable under the
Fairness Doctrine without regard to its exempt or non-exempt
status.
B. The ABC Programming Is Actionable
Under The Personal Attack Rules
As we have observed, the Fairness Doctrine requires a
licensee which presents one side of a controversial issue of
.public importance to afford reasonable opportunity for the
61/. More specifically, because of the characteristics of
the programming at issue, it is more properly denominated as an
investigatory news documentary.or, simply, a news documentary.
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presentation of contrasting views in its programming. 62/
Thus, in-order to effectuate the important aspectsof this
doctrine, the Commission has long adhered to the personal
attack principle because "elementary considerations of fairness
dictate that time be allocated to a person or group which
has been specifically attacked." 63/
Beginning in 1967, this principle was codified in order 'to
clarify and make precise the obligation of broadcast licensees'
and so the Commission would be empowered to act "in the event
of violations.' 64/ This was done in substantial part because
the Commission noted that, despite the long existence of this
principle, abuse was-extensive. 65/ As we shall demonstrate,
this clear realization by the Commission seems inexplicably at
odds with the holding of the staff in the instant complaint
that, absent a demonstration of bad faith, the Commission will
not inquire into the decision of a licensee to include
non-exempt programming in a news broadcast and thus avoid the
mandate of the Rule.
62/ Fairness Report, 26372.
63/ 1949 Report, at 1252.
64/ In the Matter of Amendment of Part 73 o?- he Rules to
Provide Procedures in the Event of a Personal Atta k or Where a
Station Editorializes as to Political Candidates, FCC 2d 721,
$3 (1967) (hereinafter 61967 Amendment of Rules in're Personal
Attack").
65/ . Id., at '17.
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The rationale for this rule-making has been specifically
and cogently stated by the Commission:
The development of an informed public opinion
through the public dissemination of news and
ideas concerning the vital public issues is
the keystone of the fairness doctrine. It' is
this right of the public to be-informed, rather
than the right on the part of ... any broadcast
licensee ... to broadcast his own particular
views on any matter, which is the foundation
stone of the American system of b'roadcasti!ng. 66/
Thus, if a licensee 67/ opts to broadcast a perl~sonal attack
on the 'honesty, character, integrity or like personal
qualities' of an identified person or group, that licensee must
(a) provide timely notice of the attack, 68/ (b) forward a
tape, transcript or accurate summary of the attack, and (c)
extend a reasonable-opportunity to respond. 69/
66/ 1949 Report, supra, 13 FCC at 1249. This reading of
the Fairness Doctrine -- and its standard of public interest --
was congressionally ratified in the 1959 amendment of S315(a)
of-The Communications Act of 1934, 73 Stat. 557, 41 U.S.C.
S315(a). Moreover, the Fairness Doctrine and the Personal
Attack Rules have repeatedly passed constitutional muster.
1949 Report, supra, 13 FCC at 1246-1270; Red Lion Iroadcasting
Co. v. FCC, 395 U.S. 367 (1969).
67/ 'The obligation for compliance with these rules is on
each individual licensee .... Where a personal attack ... is
carried by the licensee,.the licensee may not avoid compliance
with the rules merely because the attack occurred n a network
program.' 1967 Amendment of Rules in re Personal ttack,
supra, 8 FCC 2d at 18.
68/ This notice must be given 'in no event latter than one
week after the attack.' 1967 Amendment of Rules ii re Personal
Attack, supra, 8 FCC 2d at 1112.
69/. 47 C.F.R. S73.1920; 1967 Amendment of Rules in re
Personal Attack, supra, 8 FCC 2d at y7.
48
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When ABC recklessly decided to charge the CIA and unnamed
officers and employees with conspiracy to commit murder and
other illegalities, and subsequently stood by that 'story when
presented with the most specific denials, there can be no-
question that there has been a personal attack upon the
character and integrity of the CIA and its employees, that ABC
has failed to discharge its responsibilities under the Fairness
Doctrine and the Personal Attack Rules, and that the
complainant is entitled to relief. 70/
C. This Documentary Was Not Exempt
From The Personal Attack Rules
Moreover, we submit that the exempting provisions of the
rules are clearly unavailable to ABC. When the Personal Attack
Rules were amended in 1968, the Commission broadened the
exemptions to include the bona fide news interview and news
commentary or analysis in a bona fide newscast." 7J/ This was
so because of the necessity to protect the reporting of events,
70/ Upon accusation of criminal conduct, there is "no
reasonable doubt ... that a personal attack has taken place."
1967 Amendment of Rules in re Personal'Attack, su a, 8 FCC 2d
at 19.
71/ In The Matter of Amendment of'Part 73 of he Rules
Relatin to Procedures in the Event of a Personal ttack, 12
FCC 2d 250 $4 (1968) (hereinafter 01968 Amendment f Rules in
re Personal Attack").
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the spontaneous and immediate nature of which effectively
precluded research, verification, and the considered exercise
of judgment. 72/
Notably, however, the Commission explicitly excluded the
news. documentary from the exemptive provisions:
In the case where the licensee presents a
documentary which makes the honesty, integrity
or character of a person an issue in its
discussion of some controversial issue, the
response of the person attacked is clearly
germane and important to informing the public
fully. There is no factor of even possible
inhibition in the case of a documentary,
which is assembled over a period of time.'
(Emphasis added.) 73
Here, we know that as early as 9 July 1984 the documentary at
issue was in production. This is so because on that date the
ABC correspondent telephoned the Office of Public Affairs of
CIA 74/ and stated that he was working on the Rewald case. The
correspondent asked only whether the CIA had made any recent
statement concerning the matter. His question was answered in
the negative and he was referred to the appropriate court
documents.
It is for these reasons -- the actual character of the
report as an investigatory report or documentary, the lack of
spontaneity, the absence.of time deadlines, the opportunity to
72/ Id. at 14.
73/ Id.
74/. See EXHIBIT 18; Query Sheet (Inquiry by Gary
Sheppard), CIA Office of Public Affairs, dated 9 J(lly 1984.
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fully investigate and evaluate the serious charges it was
prepared to make against the CIA, the opportunity for unlimited
corroboration, and the possession of conflicting information
--
that we submit that the programming is not exempt from the
requirements of the Personal Attack Rules.
While the staff correctly noted that the Commission has
held that the inclusion of such material within a newscast,
which if broadcast outside the newscast would not be exempt,
will gain exempt.. status for such material, 75/ the ruling has
been strictly qualified by the United States. Court of Appeals.
The exempt status will be recognized only so long As that
judgment is reasonable and made in good faith. 76/ Thus, this
rule recognizes only that the Commission, when reviewing a
broadcaster's judgment, will uphold that decision where it is
reasonable and made in good faith; it presupposes review by
the Commission and sets-the standard for the review of'a
broadcaster's action; it does not purport to authorize the
staff or the Commission to ignore valid claims and to decline
any review effort or investigatory action unless and until a-
complainant submits evidence that the broadcaster's decision
was "clearly unreasonable or in bad faith." 77/
75/ See, e.g., citizens for Reagan, 58 FCC 2d925 (1976);
CBS, Inc., 58 FCC 2d 601 (1976); Socialist Worker's 1968
Campaign Committee, 14 FCC 2d 858 (1968); Lar Daly 40 FCC 314
(1960);
76/ Straus Communications, Inc. v. FCC, 530 F42d 1001
(D,C."Cir. 1976).
77/ See Staff Ruling of 10 January 1985 at n.;0.
51
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Moreover, the authority which the staff relies on in n.10
and similar authority have all involved the inclusion of an
interview within a newscast -- hardly the type of programming
which could stand alone. We submit that the staff ruling
should not have extended the holding concerning interviews to a
news documentary -- a case which we believe is of first
impression.
In any event, however., we have here presented evidence
which satisfies even the staff's stringent holding, Having
produced 'a 'documentary" 78/ which would clearly implicate
protections under the Personal Attack Rules if broadcast as a
regular documentary -- which it should have been considering
the sensational nature of the charges -- ABC reordered their
programming, broke the documentary into segments and embedded
each segment in their evening news program so as to immunize
themselves from the Commission remedy most directly available.
78/ We submit that the programming in issue -- a
self-contained documentary, independent of the news and
consisting of some four announced segments -- is he type
contemplated by the Commission in Letter to Honorable Clark W.
Thompson, 40 FCC 378 (1962),'wherein it was held ghat the
broadcast of a "self-contained program" would not~be exempt
merely because the licensee placed it within a newscast.
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As such, under the mandate of the Straus doctrine, Commission
action is-warranted. 79/
79/ As the Commission has recognized, "It is difficult to
define with precision what is a newscast, news interview, news
documentary, or on-the-spot coverage of news events..... That
is why the committee in adopting the language of the proposed
legislation carefully gave the Federal*Communicatidns
Commission full flexibility and complete discretio to examine
the facts in each complaint which may be filed wit the
Commission ...:" In the Matter of Petitions of th Aspen
Institute and CBS, Inc., 55 FCC 2d 697 at 14 (1975 .
It is this authority which compels the Commission to
act in the instant matter. As the decision contemplated, the
Commission will be able to determine on the facts! submitted in
each case whether the [programming] is bona fide Id.
53
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D. In Any Event, The ABC Programming Is Actionable
Under The General Rules Of The Fairness Doctrine
Even assuming that the broadcasts in question qualify as
newscasts exempt from the Personal Attack Rules, a point we
most-certainly do not concede, they are nonetheless actionable
under the general principles of the Fairness Doctrine which, as
we have shown, imposes upon licensees an affirmative duty
generally to encourage and implement the broadcasting of
contrasting viewpoints. 80/ It is with respect to this duty
that the Commission has consistently recognized that the
Fairness Doctrine is applicable to the exempt categories of the
Personal Attack Rules. 81/
Thus, under the 1968 revision of the rules, the Commission
noted that a licensee's discretion in discharging its
affirmative duty with respect to fairness questions is severely
circumscribed where a personal attack during a presentation of
a controversial issue of public importance is at issue. 82/ In
such circumstances, the Commission has consistently held that,
with respect to the exempt categories, a licensee m st act
reasonably and fairly and "present the viewpoint of the person
or group attacked on the attack facet of the issue."
80/ 1949 Report, supra, 13 FCC at 1251.
81/ 1968 Amendment of Rules in re Personal Attack, supra,
12 FCC 2d at 115.
82/ Id.
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Failing such affirmative action by the licensee, the person
attacked must be given an opportunity to respond.
[I]t obviously is not appropriate for the
licensee to make general offers of time for
contrasting viewpoints, either over the air
or in other ways in his community. There
is a clear and appropriate spokesman to present
the other side of the attack issue -- thejperson
or group attacked. Thus, our revision affords
the licensee considerable leeway in these
newstype programs but it still requires that
fairness be met, either by the licensee's ',action
of fairly presenting the contrasting viewpoint
on the attack issue or by notifying and allowing
the person or group attacked a reasonable
opportunity to respond. 83/
In subsequently decided cases under this doctrine, the
Commission has routinely applied this rule and held that,
although the Personal Attack Rules were inapplicable to
newscasts, the Fairness Doctrine nevertheless applied and that
under established policy, as set forth in 12 FCC 2d 250, 252,
$5 (1968),?a licensee was required to present the opposing
viewpoint on the attack issue. 84/ Indeed, with respect to the
appropriate remedy, the Commission has noted:
We wish to make clear that we do not
believe that fairness can be achieved
by relying upon the person making the.
criticism or attack to present the
other side. 85/
83/ Id.
84/ See, e.g., In re Healy v. KTTV-TV, 24 FCC 2d 487
(1970)., aff'd 460 F.2d 917 (D.C.Cir. 1972),
85/ Id. at 489.
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To ensure that the staff appreciates the clear availability of
a cause of action in the context of a personal attack during a
newscast, we highlight the dissent by Commissioners Cox and
Johnson in the Healy case:
[w]hen we added the exemptions, we made it
clear that the basic Fairness Doctrine
applies to personal attacks in newscasts
and other exempt programs. 86/
In light of this clearly recognized policy', the public interest
must be vindicated by such relief as delineated herein and as
the Commission believes appropriate.
86/ Id. at 490.
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VI. ABC's Deliberate Distortion Of The News
Deliberate distortion of the news by a broadcast licensee is
Na most heinous act against the-public interest" 87/ and it is
well-settled that the Commission will investigate and take action
against licensees charged with deliberate distortion when
presented with either extrinsic evidence of such distortion or
documents that on their face reflect a deliberate effort to slant
the news. 88/ Both of these evidentiary standards,are met here.
We recognize that the Commission is loathe to interfere with
the editorial discretion of broadcast journalists, and, to that
end,.eschews attempts to use the news distortion doctrine solely
to challenge the truth of a news broadcast or the good faith
judgment of editors and reporters in deciding how to cover or
report an event. The CIA's complaint, however, does not seek to
set the Commission up in the role of editor or censor.- Thus,
while ABC has already admitted that one of the several serious
charges levied against the CIA was baseless, 89/ this case
involves much more-than the mere falsity of ABC's charges.
87/ Complaints Concerning CBS Program "Hunger in America,"
20 FCC 2d 143, 151 (1969).
88/ Staff.Ruling at 4; Fairness Report, 39 Fed. Reg.
26372, 26380 (1974).
89/ See ABC "clarification" of.21 November 1964.
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What is involved in this matter, and what the CIA's complaint
and the evidence outlined here demonstrate, is a deliberate
effort by ABC to create an artificial "news" story where none
existed, and to present to the American public a distorted and
falsified view of the CIA and its activities. ABC accomplished
these ends by broadcasting immensely serious charge's against the
CIA from certain sources which it knew to be unreliable, by
making no serious attempt, to verify facially absurd claims made,
and by deceptively constructing its broadcasts to create the
appearance of corroboration. 90/ ABC's conduct, in', short, took
it "beyond the 'core area' of licensee discretion 91/
A. Extrinsic Evidence Of Deliberate Distortion
To support a claim of news distortion, the Commission looks,
in part, to extrinsic evidence which demonstrates that the
reported facts were intentionally falsified or presented inaccu-
rately. The CIA understands that, as clearly pointed out in the
90/ ABC cannot claim that whatever misconduct is found
here is attributable to the individuals who put together the
broadcasts at issue, and not to management. Senio production
officials authorized and passed on the broadcasts. Moreover,
ABC's report on 26 September 1984 that it "stands by its
.story," along with its later clarification of onlya small
portion of that story, clearly indicates the intention of the
networ.k in this case to ratify and adopt as its own the actions
of its employees. See EXHIBIT 1, supra.
91/ Application of WMJX, 85 FCC 2d 251 at ?26 (1981).
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Staff Ruling, intent is at the core of the extrinsic evidence
requirement; the evidence external to the program must
demonstrate not just that the licensee was in error', but that it
intentionally sought to distort-the news.
Even under this evidentiary standard, Commission action is
warranted in this matter. Here, ABC broadcast the charges of
Ronald Rewald, Scott Barnes, and Ted Frigard without seriously
attempting to verify those charges, and while having substan-
tial reason to believe that the allegations were false. It is
this element of knowingly broadcasting a highly suspect and
uncorroborated report accusing an agency of the United States
Government of the most serious crimes that separates this case
from the ordinary case of honest journalistic error, and renders
ABC's conduct worthy of inquiry.
Evidence that a licensee broadcast a report wi.h.knowledge of
its falsity clearly establishes intent to deceive the-public for
purposes of the rule against news distortion. 92/ Even when the
report is. essentially harmless or in fun, the most severe
sanctions may be appropriate. 93/ The same rule certainly
applies when a licensee, with no reasonable attempt at
verification and no cautionary statement to the public,
broadcasts a 'news', report which it knows is probably false, and
which has the potential to shatter public confidence in a
legitimate organ of government.
92/ Staff Ruling at 4; Application of WMJX, 85 FCC 2d at
251, 126 (1981).
93/ Application of WMJX, supra-.
59
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There can be no serious question that ABC entertained grave
doubts regarding the reliability of its sources fojr the reports
at issue here. To begin with, ABC of course knew that Ronald
Rewald had been indicted on charges of mail fraud, securities
fraud, tax evasion, and perjury. 94/
ABC also must have learned from its interview with the
bankruptcy trustee that the trustee contradicted Rewald's claims
that he was working for the CIA when he committed his crimes.
Not only did ABC fail to report to the public any of this
critical information, which raised doubts about Rewald's entire
story; it went to the opposite extreme and deceptively used
excerpts from its interview with the trustee in a manner which
made it look as though the trustee positively supported Rewald's
claims.
As with Ronald Rewald, ABC was fully on notice of the falsity
of Ted Frigard's claim that a government agent had threatened his
life. Frigard's statement that an agent had threatened to "shoot
[him] through the heart" and "report it as a heart attack' is
94./ On 20 September 1984, ABC reported, "Reward has been
indicted on 100 counts of fraud, perjury and tax evasion in,
connection. with the bankruptcy of his Honolulu investment
.company.' See EXHIBIT I, supra.
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such a sensational charge that any journalist acting in good
faith would immediately question the charge and seek
corroboration. No such corroboration was sought in this case.
ABC's collaboration with Scott Barnes also is understandable
only as a deliberate effort to distort news. As already
discussed in detail, other journalists have easilylseen through
Barnes' false tales about alleged CIA plots. As detailed in
EXHIBIT 12, supra, ABC itself rejected earlier clams by Barnes
that the CIA was planning the murder of United States citizens.
Nevertheless, on this occasion, ABC broadcast Barnes' story
without so much as a one-sentence warning to the public that
there might be reason to doubt his word.
ABC's lack of good faith is further exemplified by its whole-
sale failure to make the most elementary effort to'substantiate
the very serious charges of certain of its sources. ABC
impliedly conceded in its 'clarification' broadcast
21 November 1984 that it failed to verify Scott Barnes' story in
advance of airing his claims on 20 September 1984. Indeed, ABC
never attempted to find and interview Barnes' alleged CIA
contacts. Similarly, ABC accepted Ted Frigard's sensational
allegations on their face, and never sought to identify or to.
contact the federal agent who purportedly threatenied Frigard's
life. ABC's reliance solely on other Rewald associates for
corroboration of Rewald's story of heavy and illegal CIA.involve-
ment with Bishop-Baldwin can only be considered to be part of its
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attempt to lull its listeners into believing there was some
support for these baseless allegations. 95/
ABC's actions in this matter stand in stark coftrast to the
conduct of the licensee in Complaint of New York City Transit
Authority, 96/ a case where the complainant also raised the issue
of the reliability of the licensee's sources. In determining
that the complainant's news distortion claim did not warrant
further action, the Broadcast Bureau, in that case? heavily
emphasized the fact that the licensee took all reasonable steps
in advance of the broadcast at issue to verify and authenticate
the events portrayed by its sources.
In summary, then, significant evidence outside of the content
of the programs themselves indicates that ABC broadcast the
.sensational charges of Ronald Rewald, Ted Frigard and Scott
Barnes while having substantial reason to believe 'that such
charges were false, and without seriously attemptii,ng to verify
the charges. From this extrinsic evidence, withouit more, the
. 95/ ABC's failure to press its 'sources' for confirming
information clearly indicates that ABC knew that the stories it
was hearing were false. As Judge Sofaer recently wrote in
denying Time magazine's motion for summary judgment against the
libel action by former Israeli Defense Minister Ariel Sharon,
'A jury could find that .[Time reporter David) Halelvy chose not
to ask source C the ultimate question because he knew or
suspected that source C's answer would undermine his hypothesis
'Halevy's actions," the judge continued, "cpuld be read
.to convey his 'subjective awarness of probable fal,sity.'"
Sharon v. Time, Inc., No. 83 Civ. 4660, slip op. at 74-75
(S.D.N.Y. November 16, 1984).
96/ 45 FCC 2d 844 (1974).
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Commission clearly has the basis to require ABC to respond to our
complaint-and to conduct an appropriate inquiry.
B. Documents Which Reflect Deliberate Distprtion
As noted above, the Commission will investigate' and take
appropriate action regarding complaints of news distortion if it
is presented with either extrinsic evidence or 'documents that on
their face reflect deliberate distortion.' The Commission has
further defined the documentary alternative to extrinsic evidence
only by example:
[W)e can conceive of situations where the
documentary evidence of deliberate distortion
would be sufficiently strong to require an
inquiry -- e.g., where a 'yes' answer to One
question [in an interview) was used to replace
a 'no' answer to an entirely different
question .... 97/
Put another way, the Commission has recognized, that the con-
struction and editing of a news broadcast can be so outrageously
deceptive on its face as to warrant -- even without evidence
outside of the program -- inquiry on whether the licensee delib-
erately set out to distort the news. Thus, the.."documentary
evidence" standard allows the Commission to consider the words
97/ Complaint Concerning CBS Program 'The Seljin .of the
Pentagon," 30 FCC 2d 150, 153 (1970); accord, A 1 cation of
WMJX, supra, 85 FCC 2d at n.75 (1981).
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and images of a news broadcast itself in determining the
sufficiency of a complaint for news distortion.
The ABC broadcasts at issue here certainly constitute docu-
mentary evidence which, on its face, reflects deliberate news
distortion. The ABC reports were so deceptively constructed that
there is no reasonable conclusion but that ABC cleverly and
purposefully assembled its material so as to justify its
predetermined position that the CIA was engaging in criminal
Moreover, the Commission has never suggested that action on a
news distortion complaint must be based exclusively', on extrinsic
evidence. To the contrary, it has been determined 'that, as long
as the complaint adduces some clear extrinsic evidence of
deliberate distortion, it is also appropriate to examine program
content, and to draw therefrom logical conclusions, regarding the
licensee's intentions. 98/ Thus, whether conceived of as
documents which on their face reflect deliberate distortion, or
as supplements to the extrinsic evidence discussed above, the ABC
broadcasts themselves -- their content and structure -- are
legitimate sources-for the Commission to consider in determining
whether to take action on the CIA's complaint. We would urge
that the staff, in its reconsideration, take this evidence into
account in passing on our complaint.
98/ See Application of Chronicle Broadcasting Co., 40 FCC 2d
775 at ?43 (1973).
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The complete litany of ABC's distortions is described above.
What bears emphasis here is the way that ABC began With a few
wholly uncorroborated claims, and, through clever editing and the
deliberate use of text and images, constructed what ABC termed an
'investigation' of purported CIA crimes.
As the primary source for many of the charges that ABC
levied, it had only Ronald Rewald. ABC thus set about creating
corroboration for Rewald's claim that his. illegal acts were
committed at the behest of the CIA. As noted above, ABC first
exploited ambiguities in its interview with the bankruptcy
trustee in order to make it appear as though the trustee
confirmed Rewald's story, when, in fact, exactly the opposite was
true. 99/ ABC similarly buttressed Rewald's false allegation by
99/ ABC thus-made the trustee appear to repl "yes' to the
question, 'Do you support Ronald Rewal.d?' when, ~n truth, his
reply was a resounding "No:" This, of course, islprecisely the
kind of deceptive editing which the Commission believes creates
a document that, on its face, reflects deliberate) distortion.
Complaint Concerning CBS Program "The Selling of the Pentagon,"
supra,_at 153.
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prefacing its charge of illegal CIA operations with the deceptive
imprimatur, 'ABC News has learned 100/
100/ In an open letter to Time Magazine, editor and
publisher Steven Brill recognized that deceptive use of a
phrase like "ABC News has learned ..." is a danger us abuse of
journalistic discretion. Brill wrote:
For it seems from the testimony of your on people
that Time made up its story--that's right, simply made
it up -- when it reported in a February 1983 cover
article that 'Time has learned' that a secret appendix
to a report by an Israeli governmental commission
investigating the Phalangist massacre of Palestinian
refugees in Lebanon concluded that then-Israeli
defense minister Ariel Sharon had visited the
Phalangist leaders and 'discussed ... the need' for
them to take revenge for the assassinatioO of
Phalangist leader Bashir Gemayel.
Noting that the Time reporter had, in fact, only W erred the
presence of the information in the appendix, Brill 1, continued:
Whenever I read something like 'Time has ]earned,' is
that what I'm now supposed to think is behind it --
the reporter's inference and analysis? Why not say
'Time reporter David Halevy speculates that Appendix B
says ...'? Why have you been in court defending this
journalism? Why has it taken you so longlto think
about setting a case based on this journalism? This
is why this case isn't anything like the ibel suit by
General William Westmoreland against CBS eing tried
in the same courthouse. That case involy s debates
over editing decisions and editorial fair ess --
debates that under the First Amendment a. ury should
never be called on to resolve. Your case involves a
fabrication, pure and simple. You said, '!Time has
learned,' when Time was only guessing.
"Say It Ain't So, Henry," The American Lawyer, January/
February 1985, at 8, 10. Brill concluded by calling on Time to
"strike.a-blow for free press by admitting your mistake and
acting to cleanup what. caused it." Id. at. 13.
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ABC thus made it appear as though it had received reliable
information from sources other than Ronald Rewald and those
allied with Rewald who were interviewed or cited on the
.air. 101/
ABC's most extreme efforts at constructing corroboration are
found in its report that the CIA hired Scott Barnes to murder
Ronald Rewald. ABC knew that Barnes' testimony alone was
completely unreliable. However, rather than make any serious
attempt to investigate Barnes' charges (by, for example, seeking
to interview Barnes' alleged CIA contacts), ABC resorted to
innuendo, suggestion, and unsubstantiated sources to create what
appeared to be corroboration for Barnes' sensational story.
ABC first introduced the Barnes segment with the question,
"Did the Central Intelligence Agency try to have Ronald Rewald
killed to keep him from talking?" The camera then focused on
Rewald, who said:
At first I didn't believe it. I thought it
was total nonsense, and it took a lot of
-convincing and a lot of evidence and a lot
of facts to be checked out before I
recognized that it was, in fact, what was
going on.
101/ ABC, of course, never revealed any other sources for
the charges it broadcast. Significantly, on 21 September 1984,
The Honolulu Advertiser wrote:
The ABC report last night followed a firsti installment
in which the network said -- again without revealing
any substantiation -- that'Bishop-Baldwinisold arms to
Taiwan for the CIA in violation of U.S. teaties with
communist China. The Advertiser has revi wed telexes,
.purporting to discuss such a deal, but ha found no
evidence of it except thatgenerated by R Wald or his
associates at his direction. (emphasis added)
See EXHIBIT 14.,,-supra.
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The impression was thus created that there was indeed 'a lot
of evidence and a lot of facts' supporting the claim that the CIA
conspired to murder Rewald. The viewers could also reasonably
assume that ABC had checked out all the 'evidence' and "facts"
before deciding to air such a serious charge. Rather than
presenting any solid evidence to its viewers, however, ABC
employed artifice and deception in order to make Barnes' charge
appear to be believable.
First, by introducing Scott Barnes as a man "who sources say
has extensive intelligence background,' ABC implied that Barnes
was connected with the CIA (even though in 1982 the CIA
explicitly told ABC that it had never had any contact with
Barnes) 102/ or, at least, that he was a knowledgeable individual
regarding CIA matters. With one small phrase, ABC 'thus concealed
Barnes'?reputation as one completely lacking in credibility.
ABC then presented the statements of Brent Cartuth and Ted
Frigard (both discussed at length above) in what appeared to
viewers to be-reliable confirmation of Barnes' claim. Of course,
on 'its face, the alleged remark of a government attorney to
Carruth that the government would 'go after' Rewala in no way
supports Barnes' charge of a CIA murder plot. As with the inter-
view with the bankruptcy trustee, ABC here was able to exploit
ambiguities in Carruth's statement to 'generate" corroboration
102/ As noted, supra, during the broadcast of',26 September
1984, ABC erroneously identified Barnes as "working for the
Agency."
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for the story it wished to present. Similarly, unable to find
legitimate verification for the Barnes story, ABC offered its
viewers the unsubstantiated and facially absurd claim of Frigard.
It is beyond belief that a major news network,'acting in good
faith, could construct an investigative report like the one at
issue here. ABC focused on a sensational tale of 4 CIA murder
plot, told by a man whose lack of credibility was ell documented
and to whom ABC had previously refused air time because of
significant questions about his reliability. ABC then attempted
to substantiate this story with the unsupported statements of two
others (Rewald and Frigard) and with completely irrelevant hear-
say remarks allegedly made by one of the government attorneys
involved in the prosecution of Rewald. At the same time, ABC did
not take the simplest and most obvious steps toward genuine
substantiation, such as seeking to'identify and interview Barnes'
supposed CIA contacts, the government attorney who spoke to
Carruth, or the federal agent who allegedly threatened Frigard's
life. Thus, a virtual facade of corroboration was constructed.
Similarly, in the other parts of ABC's report, deceptive editing
(i.e., misuse of the interview with the trustee) and clever text
(i.e., employing the phrase 'ABC News.has learned') created the
appearance of substantiation for Rewald's claims. We respect-
fully submit that, on the record of the'distortionp apparent in
the ABC broadcast, and the extrinsic evidence of deliberate
distortion discussed above, the Commission is warranted in
proceeding with an inquiry on whether ABC deliberately slanted,
rigged, and distorted its programming.
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C. Addressing The Concerns Of The Staff
In rejecting our argument that ABC deliberately distorted the
news-in its broadcasts of 19, 20 and 26 September 1984, we
respectfully submit that the staff erred in three key respects.
First and most importantly, the staff found that the CIA had
presented 'no extrinsic evidence demonstrating that ABC knowingly
distorted news programming ....' 103/ As is amply demonstrated
above, however, evidence external to the programs at issue
clearly demonstrates that, in this case, ABC 'knew elements of
[its]. news story were false or distorted, but, nevertheless,
proceeded to air such programming.' 104/
The staff's finding that deliberate distortion is not
demonstrated merely by the fact that 'various public records
might contradict aspects of ABC's news coverage" misses the key
point. This is not a simple case where there are two legitimate
sides to a story and only one was reported by the licensee. In
failing to report the trustee's findings, ABC ignored the only
clearly reputable -source of information to which it turned for
its story, and relied instead on a source which it: knew was, at
best, highly questionable. Moreover, the public record did not
merely contradict 'aspects' of ABC's coverage,.but shattered the
103/ Staff Ruling at 4 (emphasis in original),.
104/ Id.
70
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very foundation for the report. The fact that reliable public
information in ABC's possession contradicted Rewal4's claim is
therefore significant not for its own sake, but for what it
reveals; i.e., that ABC broadcast Rewald's charges knowing that
they were groundless.
The staff also failed to even consider the significant
documentary evidence of deliberate distortion present in this
matter. Although the staff correctly noted the lothg-settled rule
that inquiry is.warranted when there is either extrinsic evidence'
or "documents that on their face reflect del.iberato distortion,"
the opinion rested exclusively on the extrinsic evidence
presented, and failed to examine the deceptive nature of the
broadcasts themselves in determining whether to in.tiate an
inquiry concerning ABC's deliberate news distortion. 105/
Finally, in its original consideration of our news distortion
claim, the'staff apparently focused on the probatilve value of
individual facts, and did not consider the totality of the
evidence.. 106/ As the Commission has long recognized, however,
"[i]solating and evaluating each of the items ... obscures and
distorts the overall picture .... [An]'examiner?.[should]
105/ Staff Ruling at 4 (emphasis in original).
106/ The staff found that certain facts presehted.by the
CIA did not in and of themselves demonstrate the jequisite
intent by ABC to deceive its audience." Staff Ruling at 4
(emphasis added).
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consider altogether the collective effect of all the information'
presented. 107/ An examination of the 'overall picture' in this
case leads inescapably to the conclusion that ABC first decided
exactly what it wanted to report, and then purposefully
constructed a broadcast to fit its predetermined ideas.
107/ Application of Miami Broadcasting Corp. 19 FCC 2d 651
at 12 (1969); Application of Chronicle Broadcasting Corp., 40 FCC
2d 755 at 156 (1973).
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VII. Conclusion
As this Amended Complaint and Petition For Reconsideration
amply demonstrates, ABC created and broadcast into millions of
homes a sensational report on alleged CIA crimes that had
absolutely no basis in fact. The analogy between this case and
the case where a Pulitzer Prize was withdrawn fromia Washington
Post reporter who had fabricated a story about a young heroin
addict is direct and compelling. ABC did not falsify merely a
small or tangential aspect of an otherwise legitimate report.
Rather, the 'facts' which formed the very basis of ABC's
three-part report were created out of thin air. ABC, in short,
presented to the viewing public a work of fiction -- what we
have termed artificial news -- in the guise of an investigative
report.
The question now is how the FCC will deal with such
"artificially" created news. We would hope that, as the agency
charged with regulation of the airwaves in the public interest,
the Commission would want to seize. the opportunity presented by
this case to renew and restate in the -strongest possible terms
its historic aversion to distorted and deceptive news practices
by licensees. It is difficult to conceive of a more blatant
case of 'artificial' news reporting than that presented here.
We thus respectfully request that the Commission, as part of
its inquiry into the issues raised by the CIA's complaint and
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this supplement, at a minimum, to require ABC to respond to the
CIA's complaint, to conduct an appropriate investigation, and
to grant such further relief as it may deem appropriate.
For the foregoing reasons, the complainant Central
Intelligence Agency requests that the Commission take all
appropriate action necessitated by the facts presented here.
Respectfully submitted,
UNITED STATES
rr*~mn r r z..mrr r T"ENCE AGENCY
By:
Ex utive Secrletary
Central Intelligence Agency
Dated: 8 February 1985
STAT
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