Replies

I'm in agreement with most of the negative attitudes I see expressed about John Kerry, but I think we would all be wise to at least be aware of the following, from Henry Mark Holzer, author of "Fake Warriors," as we consider such stories.

Al Carpenter
CDR, USN(Ret)
Hanoi 11/01/66-03/04/73

Not surprisingly, John Kerry's emergence as the democrat frontrunner has caused an explosion of anti-Kerry sentiment on the Internet. Indeed, the Internet is ablaze with true and untrue Kerry stories, much deserved condemnation of the Senator, and even loud allegations that he has committed "treason." As a lawyer and someone thoroughly familiar with the crime of treason, I call tell you that this latter charge, as much as it might be psychologically satisfying to make, is unsupportable legally. It is also dangerous tactically.

In the book "Aid and Comfort": Jane Fonda in North Vietnam (which I co-authored with my wife, Erika Holzer; see www.hanoijane.net) we made a point about Fonda that is applicable to Kerry. We wrote that untrue stories (like the urban legend thst Hanoi Jane ratted on American POWs in Hanoi) enable the targets of those tall tales to discredit true stories: "Since the untrue story is untrue, all else must be untrue."

Equally, to accuse Kerry of treason enables him to accuse his critics of shooting from the hip and not knowing what they're talking about-even as to charges that are true.

An excellent example of this phenomenon-being distracted from making legitimate attacks by shooting at straw men-was when Representatives Jim McDermott (D-Wash), Mike Thompson (D-Cal), and David Bonior (D-Mich) made a pilgrimage to Saddam Hussein's Iraq just before the invasion. There, they toured, posed for pictures, and schmoozed with Iraqi officials. And while in Iraq, McDermott made critical comments about the United States and said he'd trust Saddam Hussein before he'd trust his own President, George W. Bush.

Understandably, a firestorm erupted-especially on the political right. Predictably, there were calls to charge the three Baghdad Boys with
treason-erroneously analogizing their conduct to Jane Fonda's during the Vietnam War. However, for the very reasons we concluded in "Aid and Comfort" that Fonda was indictable and convictable for treason, the Baghdad Boys were not.

Nor is John Forbes Kerry.

There are three crimes expressly mentioned in the Constitution, only one of which is actually defined. Article I, Section 8, gives Congress power to punish counterfeiting, and to define and punish piracy; neither is actually defined. However, Article III, Section 3, provides that: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."

As we explained in "Aid and Comfort," the Supreme Court of the United States, has interpreted the treason section of the Constitution to require four elements for indictment and conviction: (1) an intent to betray the United States, (2) an overt act, (3) proved by two witnesses, (4) providing aid and comfort."

In Jane Fonda's case, she traveled to North Viet Nam during hostilities, made broadcasts (tapes of which were relentlessly played to our POWs), held press conferences, provided photo ops for the Communists, attacked the United States and its leaders, exploited American prisoners of war, fraternized with North Vietnamese military and civilian leaders-and was thanked for her efforts by grateful, top level Communist leaders. This is why "Aid and Comfort" concluded that, given the law of treason and given Fonda's conduct, there was more than sufficient evidence to support an indictment and a conviction for treason.

It was understandable that people equated what the three Congressmen did in Iraq with what Jane Fonda did in North Vietnam. The parallels were there-but only up to a point. Fonda traveled to North Vietnam at a time when the United States was actively engaged in hostilities with that country: a large-scale air, ground, and sea conflict. McDermott, Thompson, and Bonior traveled to Iraq at a time when the United States was actively engaged in hostilities with Iraq: an air campaign in the "no-fly" zones. In both situations, one could find the requisite overt acts, no dearth of reliable witnesses, and unequivocal aid and comfort to our enemies in the form of propaganda.

But one essential element of the crime of treason-indisputably present in the Fonda situation, but and lacking in the case of the three Congressmen, and Kerry-is intent to betray the United States..

Only in rare cases can criminal intent be proved through direct evidence (for example, from an admission by the defendant). Because intent is a state of mind, almost always it must be proved indirectly. In the crime of treason, the Supreme Court of the United States has consistently ruled that the requisite element of intent can be inferred from a defendant's overt acts. In Fonda's case, a jury could have concluded from all that she said and did that her intent was to betray (i.e., harm) the United States.

Not so with the Baghdad Boys. Taken at face value, their self-serving statements of how they were only trying to help, rather than complicate, the desperate situation the United States seemingly faced, suggested a lack of intent to betray America. They may have been stupid, grandstanders, useful idiots, publicity hounds. They may even be part of the phenomenon that's the subject of another of our books (Fake Warriors:Identifying, Exposing, and Punishing Those Who Falsify Their Military Service; see www.fakewarriors.com) because at least two of them (McDermott and Bonior) claimed they had fought in Vietnam-when the truth is that neither one ever left the United States.

But, legally, they were not traitors. Our government could not have made a treason case stick. As contemptible as their conduct and statements were, the Baghdad Boys were protected by the Constitution of the United States of Ameica..

So, too, with John F. Kerry.

Broadly, Kerry's alleged treason falls into two categories: (1) his post-Vietnam speech, conduct and associations (e.g., his fake discarding of medals, his false and defamatory congressional testimony about alleged atrocities, his organizing of and participation in the Winter Soldier Investigation and Dewey Canyon III), and (2) his official Senate speech, conduct and voting (e.g., his repeated condemnation of the United States role in Vietnam, his handling of the POW/MIA investigation, his considerable efforts to normalize relations with the Communist government of Vietnam).

Kerry's post-Vietnam speech, conduct and associations, which occurred in the United States and which did not reach the level or gravity of Fonda's acts in Hanoi, are protected absolutely by the First Amendment. His speech, conduct and voting in the Senate are also protected by the Constitution. Accordingly, based on what Kerry did and no matter how distateful, no grand jury or trial jury would be allowed to find that he intended, in a constitutional/criminal sense, to betray the United States-perhaps the essential element of a treason prosecution.

Accordingly, the treason-criers who oppose the Kerry candidacy-as do I-would be well advised to tone down their rhetoric and stop throwing around an allegation with deep historical roots, a textual constitutional embodiment, and several explanatory decisions from the Supreme Court of the United States. Let's not give Kerry an opportunity to blow down the treason straw man, and take down with it other charges against the would-be President that are defensible.

That Fonda was indictable and convictable for treason is beyond argument. That others were-in Korea, Vietnam, Afghanistan and today-but were not so charged (see www.ustreason.com), is also beyond argument. But Kerry is not. The Emperor may have no clothes-but if he doesn't, it is not because he committed treason.

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