Skip to comments.Legal Terrorism
Posted on 08/10/2004 3:33:50 PM PDT by swilhelm73
Presidential nominee John Kerry is working overtime to blunt growing criticism of his Vietnam service and simultaneously reassure uncommitted voters that his acts of alleged heroism as a Swift boat officerover 30 years agofar outweigh his antiwar history. He has made his medalsa Silver Star, a Bronze Star, and three Purple Heartsa central focus of his candidacy. He has made a colossal mistake.
No surprise, then, that Swift Boat Veterans For Truth, an organization unaffiliated with any political partywhose members were no strangers to Lieutenant Kerry 30 years agolast week began airing a dramatic, highly effective TV spot that flatly disputes Kerrys claims, and, worse for Kerry, his integrity.
Predictably, Kerrys lawyers responded with a venomous and distorted account of the TV spot and the veterans who had organized it. Marc Elias, Esq., General Counsel for the Kerry-Edwards campaign, joined by Joseph Sandler, General Counsel for the Democratic National Committee, faxed to TV station managers the kind of intimidating message that gives lawyers a bad name.
The three-page letter is a not-so-thinly veiled threat with only one possible goal: to scare the stations into dropping the ad. How? By misstating provable facts that back up the ads claims, and by shamelessly misrepresenting the law. How, specifically? On the legal side of the ledger, by trotting out the standard bogeymen for TV stations: false and misleading advertising, frowned on by the FTC; the specter of libel suits; dark hints of serious damages unless, in the public interest, station managers refuse to run the ad.
On the factual side, one assertion by Kerrys lawyers is that Swift Boat Veterans For Truth is a sham organization. Why? Because its hard-hitting controversial ad was spearheaded by a Texas corporate media consultant and financed largely by a Houston homebuilder. Since when does the support of a businessman who believes the claims of a large number of Navy Vietnam veterans make the entire organization, ipso facto, a shami.e., a fake? Only the naïve would regard this contentless assertion as having any substance and not recognize it for what it is: an ad hominem attack.
As to Navy physician Louis Letson (whom Elias and Sandler attempt to demean by putting Dr. Letsons title in quotation marks), Kerrys lawyers descend to a level that is truly shocking. They assert that Dr. Letson was pretending to be the doctor who treated Kerry for one of his injuries, and not the doctor who actually signed Senator Kerrys sick call sheet. They assert that it was someone else who actually signed the sheet. They assert that Letson is not listed on any document as having treated Kerry after December 2, 1968.
Fact (based on a notarized statement of Louis Letson): The injury Dr. Letson treated Kerry for occurred when Kerry and two others (a fellow lieutenant and a crewman), seeing movement from an unknown source, opened fire. Kerrys rifle jammed, and in the absence of return fire, he resumed firing with a grenade launcher, spraying his own boat and causing a tiny piece of shrapnel to be embedded in his arm. The lieutenant and crewman, parties to the incident, accompanied Kerry to sick call, where they disputed Kerrys claim that hed been wounded by hostile fire and provided an account of the actual episode to Dr. Letsonafter which Letson removed the tiny fragment with tweezers and covered Kerrys scratch with a band aid. The lieutenant-witness is alive and available to testify, in detail, as to what happened. As for the maligned Dr. Louis Letson, he is entitled to say, as he did in the Swift Boat TV ad: I know John Kerry is lying about his first Purple Heart because I treated him for that injury.
Fact (based on a sworn affidavit by Grant Hibbard): Next morning Kerry showed up at Division Commander Grant Hibbards office. Hibbard had already investigated the incident and spoken to the lieutenant-witness. Characterizing Kerrys purported injury as a rose thorn scratch insufficient to justify a Purple Heartawarded for hostile-fire wounds requiring medical attention, and excluding wounds that are accidental and self-inflicted [except non-negligent ones sustained in battle]Commander Hibbard summarily turned down Kerrys request for a Purple Heart and dismissed him. Commander Hibbard, who participated in the Swift Boat TV ad, is willing to testify, in detail, as to what happened.
Fact (based on rotation records and Kerrys website): Some three months after everyone who was personally familiar with Kerrys bogus claim to a Purple Heart had left Vietnam, Kerry persisted in the claim for his rose-thorn injury, managing to convince an officer that he had earned the Purple Heart. Yet that officer had no personal information about the incident, no connection to Kerrys small naval unit, and no knowledge that Hibbard had rejected Kerrys earlier request for the medal. Whenever Kerry has been pressed to produce evidence justifying this first Purple Heart, he cites Dr. Letsons tweezers treatmenton the basis of which Commander Hibbard denied the medal. As to the Purple Heart that was awarded, there is not a shred of documentary evidence to justify it.
Some lawyers, when confronted with too much damning evidence, fall back on the old shotgun approach. With Swift Boat Veterans For Truth, Elias and Sandler are facing off against an organization with a membership of over 250 [and growing daily since the ad ran], led by a retired rear admiral and comprised of vice admirals, commanders and hundreds of seamen. A large majority of men who served on Swift boats in Kerrys naval unit have joined the organization. Kerrys lawyers sought to poke holes in this formidable opponents accusations (thus deflecting attention from the holes in their own) by giving a false impression of the organizations numbers. After calling the Swift Boat ad an inflammatory, outrageous lieand making much of the fact that only twelve men appear to make statements about Senator Kerrys service in Vietnamthe lawyers make it seem as if the ad were the work of a disgruntled few.
And they dont just avoid talking numbers; they choose not to mention the background and credentials of some of the seemingly disgruntled malcontents who appear to have served with Lieutenant John Kerry. Were Elias and Sandler seriously accusing Rear Admiral Roy Hoffman, who heads Swift Boat Veterans For Truthand who was Commander of all Swift boats in Vietnam during the period of Kerrys abbreviated tour of duty (late November 68 to mid-March 69)of telling an outrageous lie when he accuses Kerry in the ad of not being honest?
Possibly the most effective technique employed by Kerrys lawyersa straw man they constructed in a transparent effort to mislead station managers and, in the process, an uninformed publicis about how Swift boats in Vietnam operated: Anyone who technically wasnt a crewmate of Kerrys and didnt serve on either of his two Swift boats iswithout morean unreliable eyewitness to anything Kerry did or said.
But there is more---and from a very knowledgeable source. John ONeill, partner in a Houston law firm and a founding member of Swift Boat Veterans for Truth, anticipating the controversy the TV spot would generate and the need for documentation, sent a letter to station managers on August 2 (three days before the team of Elias and Sandler shifted into gear). The letter itself, eight pages long, is buttressed with 27 exhibitsroughly 100 pages of what ONeill correctly labeled factual support for the advertisement. What ONeill explains about how the Swift boats actually operated should put to rest, for all but those who have a political ax to grind, any doubt about eyewitness reliability being tainted by non-crewmates.
Kerrys four-month tour of duty was with Coastal Division 11, a small naval unit of roughly a hundred sailors and fifteen to sixteen boats, where Kerry spent most of his time. These boats operated in even smaller groups of two to six and, quoting ONeill: Each of these boat officers operated directly with John Kerry on numerous occasions. Four of these same officers are featured in the Swift boat ad, and have backed up their eyewitness accounts of Kerrys lies with affidavits. A retired enlisted man served on one of the boats operating in close proximity to Kerrysa few yards away, to be preciselending credence (again, backed up by affidavit) that John Kerry lied to get his Bronze Star. I know, I was there, I saw what happened. As to others in the adthe captain who was Kerrys direct commander in Coastal Division 11, another captain who was his administrative commander, and, as mentioned above, the rear admiral in command of all Swift boats during Kerrys tour, ONeill writes: Each of these commanders interacted on numerous occasions with Kerry (as Kerrys authorized campaign biography readily acknowledges).
Swift Boat Veterans For Truth is comprised of men who honorably served their country, many of them awarded medals that Kerry never earned. What these veterans have earned is the right to go public with provable facts without suffering the indignity of being labeled liars and shuffled aside in favor of the Kerry campaigns revolving group of eight veterans from Coastal Division 11none of whom, according to ONeill, served with Kerry as much as two months. As for the charge that running the TV spot is a dirty campaign tactic instead of what it isa matter of conscienceand that coming forward 30 years after the events in question suggests bad motives, the proper response to such a charge is quid pro quo. Kerrys concocted stories fall within the same time frame. How could men who know otherwisewho knew him thenremain silent?
It was not until halfway through their letter that the lawyers accused the Swift Boat Veterans For Truth of libel. By leveling that very serious charge, they purported to know something about libel lawespecially about several legal principles that negate any legitimate libel claim by Kerry.
First, any statement made in the TV spot that is an opinione.g., Kerrys account of what happened and what actually happened are the difference between night and day [Chenoweth]; Kerry lacks the capacity to lead [Lonsdale]; Kerry betrayed all his shipmates . . . . [Hibbard]cannot constitute libel. Only the false statement of facts are capable of being libelous.
Second, many of the factual statements are utterly benign, and thus could never be actionable. For example, I served with John Kerry [French, Elder, Hildreth]. That leaves factual statements like Hibbards: Kerry lied before the Senate. In libel law, truth is an absolute defense. If, for example, it is true that Kerry lied before the Senate, that Kerry has not been honest about what happened in Vietnam [Elliott], that Kerry is lying about his record [French], and that Kerry lied to get his Bronze Star [ODell], Kerry has no case for libel.
Third, even without the absolute defense of truth, Kerry, as a public official, has a constitutionally required burden of proof in a libel case to produce evidence showing that the Swift Boat Veterans For Truth witnesses either knew their statements were false, or recklessly disregarded knowledge of falsity. Kerrys lawyers must realize their client can never satisfy this burden of proof.
For these reasons, and others, the democrat lawyers threatening letter to TV station managers was an unconscionable attempt to protect their candidate from the damning truths spoken by Vietnam veterans who have earned the right to exercise their First Amendment freedom of speech.
To their credit, TV stations in some marketplaces have refused to surrender to the bullying tactics of Kerrys lawyers. This presents the democrat party and the Kerry campaign with two choices: put up or shut up.
They can slink off the field for having threatened TV stations with a baseless libel lawsuit, or, despite how they eventually hedge their threat, they can actually sue those TV stations that arent intimidated.
The latter course would be utter disasterand Kerrys lawyers have to know this. Kerry would no longer be able to hide behind spin masters. He would have to file a written complaint. Sworn depositions (including Kerrys) would have to be taken. He would have to respond to requests for factual admissions. He would have to answer written interrogatories. He would have to produce documents.
There would have to be a trial. That means sworn testimony, cross examination, documentary evidenceall in front of a jury, reporters, perhaps even TV cameras.
Once all that happened, America would know who told the truthand who lied.
A MUST read. The best yet.
Oscar Wilde tried that. Someone accused him of being a sodomite, so he sued. At the trial, it turned out that he was a sodomite, which at that time was an offense punishable by imprisonment. And so to prison he went.
The good guys - the good soldiers; deserve the truth to be acknowledge and appreciated.
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Do you watch Fox News, Phil? Thank goodness for them in getting a lot of this stuff out to the public!
JOHN KERRY = Enemy of Vietnam Vets
I don't think that the American people are going to stand for this bullying of the vets.
I think you will in short order see an ad with Max Cleland say his tripple amputee and he supports Kerry.
This story is not dying.
Kerry is basing his resistance on two tactics.
1. He has the media in his pocket and they will not risk angering him for fear of loosing access.
2. He can smear away the vets and the media will not do any contradiction to the smearing.
I think you're right on all counts,except that I do NOT see,that in the long run,the American people are going to swallow whatever Kerry and his goons throw at the vets,NOT THIS TIME...THIS ISN'T GOING TO WORK!
There is one way we can counter the Kerrorist lawyers, and that is donating money to the Swift Vets advertising fund to buy more tv ads.
Donate to the Swift boat vets to counter the tie in with the Kerrorist Laywers, mediots and Kerry.
The arrogance of Kerry's staff note below is why we should contribute to the Swift Boat Money raising for tv ads, based on comments from Kerri's staff:
According to a Kerry campaign source, senior campaign advisers tasked two Washington-based campaign staffers to vet the recently published Unfit for Command.
"The purpose was to compare what that book had with what we had on file from Senator Kerry," says the campaign source, who said that the research project developed more than 75 instances where Kerry's recollections, previous remarks, or writings conflicted with the book's reporting.
"We took some of the most glaring examples, like the Christmas in Cambodia story, and presented them to senior staff, and we assume that those things were put in front of Senator Kerry," says the source. "We haven't heard a word about it. All we were told is that it was being taken care of."
The campaign source said that the book was not considered a "serious" problem for the campaign, because, "the media wouldn't have the nerve to come at us with this kind of stuff," says the source.
"The senior staff believes the media is committed to seeing us win this thing, and that the convention inoculated us from these kinds of stories. The senior guys really think we don't have a problem here."
Very Democrat these days.
1. He has the media in his pocket and they will not risk angering him for fear of loosing access.
2. He can smear away the vets and the media will not do any contradiction to the smearing.]
Disagree only with #1. Do not think the media is worried about losing access or angering Kerry.
Think they are worried about the truth only; and how they can bury it; distort it; ignore it; get around it. . .until after they successfully insure a Kerry presidency.
The media and Kerry are a united front; Kerry also knows that he can look like; act like; and worse be a dangerous fool; and his friends will do a bit of gloss on, and get him through it.
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