Posted on 10/14/2004 11:50:13 PM PDT by kattracks
John Kerry's Constitutional Conundrum
Written by Raymond Kraft
Thursday, October 14, 2004
Conundrum: Any perplexing question, or thing. Webster.
On June 13, 1866, in the immediate aftermath of the Civil War, Congress passed the 14th Amendment to the Constitution of the United States, which was ratified by the states and became part of our Constitution on July 9, 1868.
The 14th Amendment, or Article 14, is commonly known as the ''Equal Rights Amendment,'' for it contains in Section 1 the now-famous injunction that ''No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'' This section has been the pivot point for much of the most important legislation and jurisprudence of the last half century.
And, in the shadow of Section 1, the rest of Article 14 has been mostly ignored and largely forgotten, because much of it deals with the consequences of insurrection and rebellion within the United States, and we haven't had many of those since 1868.
But lurking in the heart of Article 14, Section 3, is a very important and potent clause of our Constitution which was originally adopted to bar officers of the United States military and members of Congress who had defected to the Confederacy, or given aid and comfort to the Confederacy, from Federal office.
And Article 14, Section 3, now becomes John Kerry's Constitutional Conundrum.
I quote in full:
''Section 3. No person shall be a senator or representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two thirds of each House, remove such disability.''
Constitution of the United States, Article 14, Section 3 (emphasis added).
When John Kerry joined the navy and became a commissioned officer, he took an oath, an oath to protect and defend the United States and the Constitution of the United States against all enemies.
When he returned from Vietnam, while still a naval officer, John Kerry quickly became an anti-war protester, and a prominent leader of the anti-war activist organization, Vietnam Veterans Against the War.
While giving him the benefit of the doubt, I will assume that John Kerry intended his activism to shorten the war and save lives. But he made a catastrophic error in judgment. It did not. It prolonged the war, and it cost more American lives, and more Vietnamese lives. To be blunt, the anti-war activism of John Kerry and others like him had the unintended consequence of killing people, and their blood is on his hands.
How many people? It is impossible to know, with any certainty, but in his 1985 memoir, North Vietnamese General Vo Nguyen Giap wrote that if it had not been for anti-war activists such as John Kerry, North Vietnam, militarily beaten after the Tet Offensive, would have surrendered; but the anti-war movement, and in particular John Kerry's congressional testimony in April 1971, convinced the North Vietnamese that if they could hold on a little longer the growing anti-war movement and sentiment in America would turn America's military victory into a political defeat, and North Vietnam's military defeat into a political victory.
John Kerry was the point man for the Vietnam Veterans Against the War, and with his April 1971 testimony before Congress, under oath, charging that Americans in Vietnam were committing war crimes on a daily basis as a matter of operational policy, he gave the North Vietnamese what they hadn't been able to get out of American POWs in the Hanoi Hilton: a confession of war crimes. A false confession, but a confession nonetheless.
An ex-POW, now Senator John McCain, wrote in an article for U.S. News & World Report (14 May 1972) that John Kerry's testimony was ''the most effective propaganda tool they had to use against us.'' Today, John Kerry's photograph is prominently displayed in the room of tribute to American anti-war protesters in the Vietnamese Communist War Remnants Museum in Ho Chi Minh City (formerly Saigon). You can go see it at www.WinterSoldier.com.
Later, while still a naval officer, John Kerry met illegally with a North Vietnamese delegation in Paris to conduct unauthorized private diplomacy, for which he is reported to have lost his top secret security clearance, and although the documentation is not fully public (John Kerry will not release his full service records) there is reason to believe that he may have received a dishonorable discharge (see The New York Sun, October 13, 2004, ''Mystery Surrounds Kerry's Navy Discharge.'')
Because of the anti-war activism of John Kerry and others like him, the Vietnam war lasted several years longer than it might have. Several thousand American names are engraved on The Wall now, names of men who died after John Kerry took up the enemy's cause, men who might otherwise be alive today. And after the United States, internally defeated by the anti-war politics of the American left, abandoned South East Asia, more than four million Vietnamese and Cambodians died in the communist purges that followed.
Today in the presidential campaign, John Kerry continues to give aid and comfort to another enemy, calling America's war on terrorism in Iraq ''the wrong war, in the wrong place, at the wrong time.''
John Kerry's public record of giving ''aid and comfort'' to the enemy is so public, and so indisputable, that I believe it is a fact, commonly known and not subject to plausible controversion, of which any Federal Court could, or must, take judicial notice.
The presidency is both a civil office, and as commander in chief a military office, of the United States.
And that returns us to Article 14, Section 3, of the United States Constitution, which bars from all civil and military offices of the United States any person who, having once taken an oath as an officer of the United States, has given aid and comfort to an enemy of the United States, i.e., John Kerry.
John Kerry took an oath as a naval officer, before he became a prominent anti-war activist. He took another oath to protect and defend the Constitution when he was sworn in as a senator, before he called America's war on terrorism in Iraq "the wrong war, in the wrong place, at the wrong time." Now, he seeks to become president, and commander in chief, and will, if he is elected, take the oath again, to protect and defend the Constitution.
But if he fulfills that oath, as he should, if he is elected, and if he is to defend the Constitution, then his first official act as President must be to resign from the office of president, because he is barred from the presidency by Article 14, Section 3, of the Constitution of the United States, which he will have sworn (again) to protect and defend.
This is John Kerry's Constitutional Conundrum: If he is elected, the Constitution requires him to resign, or to be removed from office.
The demand for John Kerry's resignation if, and after, he is elected or inaugurated, will create a political eruption unlike any we have seen in many years, or generations. It would elevate John Edwards, a man whose qualifications for the Presidency seem slight, to the White House.
I believe this is an issue that should be grappled with before the election, not afterward. At the least, it should become central to the public debate during the next two weeks.
I also believe that some person, or persons, or one or more organizations, such as the Swiftboat Veterans for Truth, or the Vietnam Veterans Against John Kerry, should file a lawsuit in Federal Court seeking a determination, based on public records and documents, that John Kerry has given aid and comfort to enemies of the United States, and an injunction barring him from the presidency, pursuant to Article 14, Section 3, of the Constitution of the United States.
This will not be a criminal proceeding. It is not a prosecution for treason or sedition. It does not require proof beyond a reasonable doubt; only to a ''preponderance of the evidence,'' evidence that it is more probable than not that John Kerry has given aid and comfort to the enemies of the United States. He will not go to jail, he will not risk paying any fines or damages. There will only be, or, in my opinion, there should be, a judgment that, having given aid and comfort to the enemies of the United States, he is barred by Article 14, Section 3, of the Constitution of the United States, from the presidency.
About the Writer: Raymond Kraft is a lawyer and writer living and working in Northern California. Raymond receives e-mail at rskraft@vfr.net.
Mystery Surrounds Kerry's Navy Discharge
BY THOMAS LIPSCOMB - Special to the Sun
October 13, 2004
An official Navy document on Senator Kerry's campaign Web site listed as Mr. Kerry's "Honorable Discharge from the Reserves" opens a door on a well kept secret about his military service.
The document is a form cover letter in the name of the Carter administration's secretary of the Navy, W. Graham Claytor. It describes Mr. Kerry's discharge as being subsequent to the review of "a board of officers." This in it self is unusual. There is nothing about an ordinary honorable discharge action in the Navy that requires a review by a board of officers.
According to the secretary of the Navy's document, the "authority of reference" this board was using in considering Mr. Kerry's record was "Title 10, U.S. Code Section 1162 and 1163. "This section refers to the grounds for involuntary separation from the service. What was being reviewed, then, was Mr. Kerry's involuntary separation from the service. And it couldn't have been an honorable discharge, or there would have been no point in any review at all. The review was likely held to improve Mr. Kerry's status of discharge from a less than honorable discharge to an honorable discharge.
A Kerry campaign spokesman, David Wade, was asked whether Mr. Kerry had ever been a victim of an attempt to deny him an honorable discharge. There has been no response to that inquiry.
The document is dated February 16, 1978. But Mr. Kerry's military commitment began with his six-year enlistment contract with the Navy on February 18, 1966. His commitment should have terminated in 1972. It is highly unlikely that either the man who at that time was a Vietnam Veterans Against the War leader, John Kerry, requested or the Navy accepted an additional six year reserve commitment. And the Claytor document indicates proceedings to reverse a less than honorable discharge that took place sometime prior to February 1978.
The most routine time for Mr. Kerry's discharge would have been at the end of his six-year obligation, in 1972. But how was it most likely to have come about?
NBC's release this March of some of the Nixon White House tapes about Mr. Kerry show a great deal of interest in Mr. Kerry by Nixon and his executive staff, including, perhaps most importantly, Nixon's special counsel, Charles Colson. In a meeting the day after Mr. Kerry's Senate testimony, April 23, 1971, Mr. Colson attacks Mr. Kerry as a "complete opportunist...We'll keep hitting him, Mr. President."
Mr. Colson was still on the case two months later, according to a memo he wrote on June 15,1971, that was brought to the surface by the Houston Chronicle. "Let's destroy this young demagogue before he becomes another Ralph Nader." Nixon had been a naval officer in World War II. Mr. Colson was a former Marine captain. Mr. Colson had been prodded to find "dirt" on Mr. Kerry, but reported that he couldn't find any.
The Nixon administration ran FBI surveillance on Mr. Kerry from September 1970 until August 1972. Finding grounds for an other than honorable discharge, however, for a leader of the Vietnam Veterans Against the War, given his numerous activities while still a reserve officer of the Navy, was easier than finding "dirt."
For example, while America was still at war, Mr. Kerry had met with the North Vietnamese and Viet Cong delegation to the Paris Peace talks in May 1970 and then held a demonstration in July 1971 in Washington to try to get Congress to accept the enemy's seven point peace proposal without a single change. Woodrow Wilson threw Eugene Debs, a former presidential candidate, in prison just for demonstrating for peace negotiations with Germany during World War I. No court overturned his imprisonment. He had to receive a pardon from President Harding.
Mr. Colson refused to answer any questions about his activities regarding Mr. Kerry during his time in the Nixon White House. The secretary of the Navy at the time during the Nixon presidency is the current chairman of the Senate Armed Services Committee, Senator Warner. A spokesman for the senator, John Ullyot, said, "Senator Warner has no recollection that would either confirm or challenge any representation that Senator Kerry received a less than honorable discharge."
The "board of officers" review reported in the Claytor document is even more extraordinary because it came about "by direction of the President." No normal honorable discharge requires the direction of the president. The president at that time was James Carter. This adds another twist to the story of Mr. Kerry's hidden military records.
Mr. Carter's first act as president was a general amnesty for draft dodgers and other war protesters. Less than an hour after his inauguration on January 21, 1977, while still in the Capitol building, Mr. Carter signed Executive Order 4483 empowering it. By the time it became a directive from the Defense Department in March 1977 it had been expanded to include other offenders who may have had general, bad conduct, dishonorable discharges, and any other discharge or sentence with negative effect on military records. In those cases the directive outlined a procedure for appeal on a case by case basis before a board of officers. A satisfactory appeal would result in an improvement of discharge status or an honorable discharge.
Mr. Kerry has repeatedly refused to sign Standard Form 180, which would allow the release of all his military records. And some of his various spokesmen have claimed that all his records are already posted on his Web site. But the Washington Post already noted that the Naval Personnel Office admitted that they were still withholding about 100 pages of files.
If Mr. Kerry was the victim of a Nixon "enemies list" hit, one might have expected him to wear it like a badge of honor, like many others such as his friend Daniel Ellsberg, who leaked the Pentagon Papers, CBS's Daniel Schorr, or the actor Paul Newman, who had made Mr. Colson's original list of 20 "enemies."
There are a number of categories of discharges besides honorable. There are general discharges, medical discharges, bad conduct discharges, as well as other than honorable and dishonorable discharges. There is one odd coincidence that gives some weight to the possibility that Mr. Kerry was dishonorably discharged. Mr. Kerry has claimed that he lost his medal certificates and that is why he asked that they be reissued. But when a dishonorable discharge is issued, all pay benefits, and allowances, and all medals and honors are revoked as well. And five months after Mr. Kerry joined the U.S. Senate in 1985, on one single day, June 4, all of Mr. Kerry's medals were reissued.
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