[font=times new roman,times,serif]By Harlan Wilkerson, MSgt USAF (Retired)[/font]
No wise man ever thought that a traitor should be trusted. - Cicero
[font=times new roman,times,serif]I'm not a political hack setting out to prove that Senator Kerry is a liar. In fact, I'm going to use his own words, the Constitution, the laws, and the treaties as the evidence. I will label rumors as exactly that, and give them the legal weight that they deserve. Mr. Kerry claims that the list of atrocities contained in his testimony before the Senate Committee on Foreign Relations was based upon hearsay, so I won't use that when discussing his personal involvement in war crimes. This is not an attack on the Democratic party. People like Senator Evan Bayh, Senator Joe Lieberman, and Representative Harold Ford Jr appear to be very good people with excellent qualifications for any public office.
I served in the USAF from 1971-1991. I retired after I returned from Saudi Arabia, where I had served in the first Gulf War. I wrote this to help answer the questions posed by some members of my own clan. Some of it is drawn from material found on popular Internet news and research sources - I've limited the material here to the brief passages and quotes that are permitted under the doctrine of fair use, and have provided external links to the original sources for those individuals that are interested in further reading. John Kerry did much more than simply engage in vigorous political debate as a member of the loyal opposition to the Vietnam war. My hope is that, after reading this, supporters of Senator Kerry will look into the issues raised here much more closely.[/font][font=times new roman,times,serif]
[/font][font=times new roman,times,serif]The Constitution imposes only one real litmus test. Treason is the only offense that is defined within the text of the Constitution. It is a political offense - a social taboo. [/font][font=times new roman,times,serif]The public reproach for the offense of betrayal is defined within the Constitution. The framers included a requirement for impeachment, conviction before the bar of the Senate, removal from office, and disqualification from holding any other office under the United States.
[/font][font=times new roman,times,serif]The Constitution itself doesn't bother to prescribe a punishment for the criminal offense. It merely imposes a ban on criminal trial by legislature (bills of attainder). Establishing appropriate criminal sanctions (if any at all) is a job that's left up to the Congress. The decision to prosecute the crime is left up to the discretion of the executive, and the disposal of criminal cases is left to the judiciary. There is a long history of U.S. cases where there were no criminal prosecutions at all. [/font]
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It should come as no surprise that the most vocal opponents of John Kerry's candidacy are veterans of the armed forces and their families. They bear the burden in supporting and defending the Constitution against those that would levy war against it. They have been called upon to sacrifice everything if necessary, and many of us actually do have loved ones that have paid the ultimate price. The Constitution can be amended if necessary, but no elected official has the prerogative to simply ignore a charge of treason against a candidate or office holder.[/font]
John Kerry's Sworn Oath of Allegiance
[font=times new roman,times,serif]"The soul is bound to greater caution by the addition of an oath. For it guards us against two things, most to be avoided, the reproach of friends, and the wrath of heaven." - Sophocles[/font][font=times new roman,times,serif] [/font]
[font=times new roman,times,serif]On May 30th, 1778, Benedict Arnold [/font]signed[font=times new roman,times,serif] the Oath of Allegiance to his country at Artillery Park in Valley Forge. His oath was witnessed by Henry Knox. When the framers wrote the Constitution, his act of betrayal was fresh in their memory. They felt that every citizen owed allegiance to his state. The Continental Congress ([/font]Journals Vol VII[font=times new roman,times,serif] see "Loyalists") and the General Assemblies of the colonies had [/font]passed[font=times new roman,times,serif] legislation that allowed the Continental Army to confiscate loyalist property in order to keep it from falling into enemy hands, to recruit slaves, raise supplies for their Army, and to aid in the payment of bounties to soldiers. After the British defeat, many colonists who had remained loyal to the British Crown were in trouble. Convicted of treason, their property confiscated, and ostracized by their neighbors they were forced to [/font]leave[font=times new roman,times,serif] the former colonies.
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[font=times new roman,times,serif]During and after the Civil War, loyalty oaths became very commonplace. In the 20th century the oaths took on added significance when the Communist International ([/font]Comintern[font=times new roman,times,serif]) called for the creation of a global Soviet republic and the abolition of "the State". Comintern decreed that local Communist parties were to aid the international proletarian revolution by overthrowing constitutional governments. They were to use all available means, even force if necessary.
Worried by the revolution that had taken place in Russia, and the Comintern threats, Attorney General Palmer became convinced that Communist agents were planning to overthrow the American government. His view was reinforced by the discovery of thirty-eight bombs sent to leading politicians and the Italian anarchist who blew himself up outside Palmer's Washington home. Palmer recruited John Edgar Hoover as his special assistant and together they used the Espionage Act (1917) and the Sedition Act (1918) to launch a campaign against radicals and left-wing organizations. [/font][size=+0]On 7th November, 1919, the second anniversary of the Russian Revolution, over 10,000 suspected communists and anarchists were arrested.[/size] On 2nd January, 1920, another 6,000 were arrested and held without trial. These raids took place in several cities and became known as the Palmer Raids. When the revolution failed to materialize, attitudes towards Palmer began to change and he was criticized for disregarding people's basic civil liberties.[font=times new roman,times,serif]
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[font=times new roman,times,serif]In the 1950's and 1960's some of the oaths came under attack at a few [/font]universities[font=times new roman,times,serif]. In [/font]Baggett v. Bullitt[font=times new roman,times,serif] the Supreme Court concluded that the laws requiring them violated due process and were unconstitutional. Many people misunderstood that decision. It did nothing to change the fact that every citizen owes allegiance to the country. In [/font]Kawakita v. United States[font=times new roman,times,serif] (1952) the court had held that "An American citizen owes allegiance to the United States wherever he may reside," Even American citizens who hold dual nationalities owe a duty of allegiance, and can be held liable for treason. Oaths aren't unconstitutional. Article II Section 1 Clause 8 and Article VI clause 3 of the Constitution require that "The President", "the Senators and Representatives, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution."[/font]
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[/font][font=times new roman,times,serif]Here is the oath that every commissioned officer in the U.S. Armed Forces takes. Note: the Armed Forces defend the Constitution, not just a specific person or place:
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[font=times new roman,times,serif]Officer: I (state your name) do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; That I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.[/font]
Kerry Impeached His Own War Record
[font=times new roman,times,serif]There has now for many years been no crime committed but by you; no atrocity has taken place without you; you alone unpunished and unquestioned have murdered the citizens, have harassed and plundered the allies; you alone have had power not only to neglect all laws and investigations, but to overthrow and break through them. - Cicero[/font]
[font=times new roman,times,serif]Lately, John Kerry has drawn attention away from the statements he made as a VVAW spokesman about his own participation or assistance, as a principle, in the commission of what he claimed were "war crimes". These statements were not hearsay, they were firsthand accounts. Kerry was present as the Captain of a boat. He would have known if his actions were dictated by military necessity, or not. Representative Dennis Kucinch of Ohio has repeatedly [/font]called[font=times new roman,times,serif] for prosecutions of the 18 soldiers that disobeyed orders and [/font]illegally[font=times new roman,times,serif] turned free fire zones into free crime zones in Vietnam during 1967. Nonetheless, at the Democratic Convention, Mr. Kucinch [/font]called[font=times new roman,times,serif] on those that "teach the children", "hunger for justice", and "represent the oppressed" to unite and elect John Kerry President. Senator Kerry has repeatedly criticized President Bush and called upon Defense Secretary Rumsfeld to resign over his "handling" of the investigations of the Abu Ghraib prisoner abuse scandal, but Mr. Kerry himself "stonewalled" the official Navy investigations of his own war crimes allegations. Except as indicated, these comments are from Kerry's remarks on the Dick Cavett Show in 1971 [[/font]CSPAN video][font=times new roman,times,serif] [[/font]transcript[font=times new roman,times,serif]]:
"Free fire zone, in which we kill anything that moves man, woman or child. This practice suspends the distinction between combatant and non-combatant and contravenes Geneva Convention Article 3.1." ... "Yes, we did participate in war crimes in Coastal Division 11 because as I said earlier, we took part in free fire zones, harassment, interdiction fire, and search and destroy missions."
"I did take part in free fire zones and I did take part in harassment interdiction fire. I did take part in search and destroy missions in which the houses of noncombatants were burned to the ground. And all of these, I find out later on, these acts are contrary to the Hague and Geneva Conventions and to the laws of warfare. So in that sense, anybody who took part in those, if you carry out the applications of the Nuremberg principles, is in fact guilty."
Now, when we talk about something like war crimes, we're not throwing this term out lightly. The Hague Convention, the Geneva Conventions, history has laid down certain laws of warfare. Hague Convention, I believe, Article Four, states that you are not allowed to bombard uninhabited villages or villages that are not occupied by defendants. We have done that constantly in Vietnam.
"We established an American presence in most cases by showing the flag and firing at sampans and villages along the banks. Those were our instructions, but they seemed so out of line that we finally began to go ashore, against our orders, and investigate the villages that were supposed to be our targets. We discovered we were butchering a lot of innocent people, and morale became so low among the officers on those 'swift boats' that we were called back to Saigon for special instructions from Gen. Abrams." -- John Kerry, Washington Star, June 6, 1971
[Note: "Villages" contain schools, hospitals, places of worship, infants, women, the sick, the elderly, and etc. Firing .50 caliber machine guns at them indiscriminately - without any provocation - doesn't establish justice or promote the general welfare. Normal men would not have needed to go ashore in order to ascertain that fact.]
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Political Correctness
[font=times new roman,times,serif]"Too long have we said to ourselves 'intolerance of another's politics is barbarous and not to be countenanced in a civilized country. Are we not free? Shall a man be denied his right to speak under the law which established that right?' I tell you that freedom does not mean the freedom to exploit law in order to destroy it! It is not freedom which permits the Trojan Horse to be wheeled within the gates * * *. He who is not for Rome and Roman Law and Roman liberty is against Rome. He who espouses tyranny and oppression and the old dead despotisms is against Rome. He who plots against established authority and incites the populace to violence is against Rome. He cannot ride two horses at the same time. We cannot be for lawful ordinances and for an alien conspiracy at one and the same moment." - Cicero[/font]
[font=times new roman,times,serif][T]he one thing that people try to do, that society is structured on as a whole, is an attempt to satisfy their felt needs, and you can satisfy those needs with almost any kind of political structure, giving it one name or the other. In this name it is democratic; in other it is communism; in others it is benevolent dictatorship. - John Kerry [/font][font=times new roman,times,serif]in[/font]testimony[font=times new roman,times,serif] before Senate, Committee on Foreign Relations, 1971[/font]
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[/font][font=times new roman,times,serif]Many political commentators attempt to salvage something from John Kerry's military service, by ignoring his antiwar activities. President Bush has said that John Kerry's service in Vietnam was noble. In fact, all of Kerry's antiwar activities happened while Kerry still held a commission in the Naval Reserve. Part of his antiwar activities dealt with exposing war crimes - including his own. He said that he had participated or assisted in perpetrating crimes against the civilian population during his brief four month tour of combat duty. He may have been decorated for a few specific acts of bravery, but the overall character of his service cannot have been noble if he had a routine habit of committing war crimes. The Republic of South Vietnam was a protocol country of the South East Asia Treaty Organization. He was sent there not merely on orders of the Commander-in-Chief, but also under the auspices of a duly ratified treaty, and a joint resolution of the Congress. He was there to protect our allies, the people, and their country, from further acts of aggression.[/font]
[font=times new roman,times,serif]"The Senate, in truth, has no right to censure me for anything, for I did but my duty and exposed traitors and treason against the State. If that is a crime, then I am indeed a criminal." - Cicero[/font]
[font=times new roman,times,serif]Senator John Kerry recently asked the Federal Election Commission (FEC), President Bush, and Senator John McCain to assist him in silencing a group of military retirees and veterans. The group sponsored television advertisements that feature some of Kerry's past testimony and statements. The veterans in the ads explain why they feel John Kerry is unfit to serve as the Commander-in-Chief. The Kerry campaign has also [/font]demanded[font=times new roman,times,serif] that the publisher of a best seller, "Unfit for Command", recall all copies of the book. Congress has the power to regulate elections, but these veterans aren't candidates for any office. In [/font]Buckley v. Valeo[font=times new roman,times,serif] the U.S. Supreme Court held that neither the Congress nor the FEC could use campaign finance reform as a pretext to violate the First Amendment.[/font]
[font=times new roman,times,serif]Senator Kerry's efforts to abridge the veterans exercise of a constitutional right is a fresh example of a recurring pattern of misconduct. He simply ignores the provisions of the Constitution and his obligation as a federal office holder to support and defend it.[/font]
Jus Cogens and the Supreme Law of the Land
[font=times new roman,times,serif]"Marcus Tullius Cicero expressed principles that became the bedrock of liberty in the modern world.
He insisted on the primacy of moral standards over government laws. These standards became known as natural law. Above all, Cicero declared, government is morally obliged to protect human life and private property. When government runs amok, people have a right to rebelCicero honored daring individuals who helped overthrow tyrants."
"Ciceros vision of natural law influenced such thinkers as Locke, Samuel Pufendorf, and [/font]Catos Letters[font=times new roman,times,serif] authors John Trenchard and Thomas Gordon who had the most direct intellectual impact on the American Revolution." - Jim Powell, from '[/font]Marcus Tullius Cicero, Who Gave Natural Law to the Modern World[font=times new roman,times,serif]'.
Article VI of the Constitution explains that the supreme law of the land consists of The Constitution, the Laws of the United States, and all treaties made, under the authority of the United States.
Crimes against humanity and war crimes have existed in customary international law for over half a century. They are also deemed to be part of jus cogens - "compelling law," peremptory principles of international law that cannot be overridden by specific treaties between countries; that is: norms that admit of no derogation; they are binding on all states at all times (e.g., prohibitions on aggression, slavery, and genocide).
John Kerry first gained notoriety by openly admitting that he had run amok and had engaged in acts that violated the laws and customs of war, Article 6(b) of the the Nuremberg Charter, the Hague Convention of 1907, and the Fourth Geneva Convention of 1949 on the Protection of Civilian Persons in Time of War. A violation of those laws, customs, and treaties is a violation of the supreme law of the land, and would have amounted to dereliction in the performance of his official duties. Kerry also felt that the people of Indochina would be better off if we abandoned the U.S. policy that had been advanced by five Administrations. He called on Congress to end our support for the SEATO treaty protocol nations. He adhered to the Communist Vietnamese position that the war in Vietnam was merely a civil war, but failed to mention that mass murder was a regular component of every communist civil war. It was the leading cause of death from unnatural causes in the 20th century. More than 90 million people [/font]perished[font=times new roman,times,serif] at the hands of their own governments in Russia, China, and Korea alone. In testimony before the Senate, Kerry estimated that there would be 3,000 refugees (there were over 3 million). He said that casualties after our withdrawal would be much less than 200,000 (there were more than 4 million). All of the protocol countries - Vietnam, Cambodia, and Laos fell to communist regimes in 1975, and SEATO was disbanded in 1977.
Kerry made a number of divisive, and racist remarks in his testimony. Thanks in large part to Kerry, and the VVAW, the false notion persists that American service members who died in Vietnam were mostly members of a minority group. 2,594,000 personnel served within the borders of South Vietnam (Jan. 1, 1965- March 28, 1973). 275,000 were black. About 5 percent of those killed in action were Hispanic and 12.5 percent were black -- making both minorities slightly under-represented in their proportion of draft-age males in the national population. Blacks volunteered for combat units at three times the rate of whites, many were career military men like Gen. Colin Powell. 14.6% (1,530) of non-combat deaths were among blacks. The percentage of blacks of military age was 13.5% of the total population. Kerry falsely claimed:
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[font=times new roman,times,serif]"We saw that many people in this country had a one-sided idea of who was kept free by our flag, as blacks provided the highest percentage of casualties."
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[font=times new roman,times,serif]The Vietnamese provided the highest percentage of casualties. Millions of Asians lost their freedom, suffered, and died in the killing fields, but John Kerry didn't feel they were "worth" the loss of even one "American" life. Surveys have consistently shown that 91% of actual Vietnam War veterans and 90% of those who saw heavy combat are proud to have served their country. 66% - 70% of Vietnam vets polled said they would serve again if called upon. John Kerry claimed:
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[font=times new roman,times,serif]In our opinion, and from our experience, there is nothing in South Vietnam, nothing which could happen that realistically threatens the United States of America. And to attempt to justify the loss of one American life in Vietnam, Cambodia or Laos by linking such loss to the preservation of freedom, which those misfits supposedly abuse, is to use the height of criminal hypocrisy, and it is that kind of hypocrisy which we feel has torn this country apart.
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[font=times new roman,times,serif]But immediately after Saigon fell, thousands of South Vietnamese were shot and over a million were sent to "re-education camps." Hundreds of thousands fled to the South China Sea in boats that weren't seaworthy. Many were raped and killed by pirates or drowned. Millions more followed them over the years, undeterred by the risks. At least 2 million Cambodians and 600,000 Laotians were murdered in one of the greatest tragedies of the 20th century. What does Kerry now think the Vietnam War was about, if not the freedom of these people from a communist holocaust?
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The offenses Kerry outlined in his testimony and statements are war crimes whether they were committed by Kerry or the communists makes no difference. Those are matters of universal jurisdiction, for which no statute of limitations contained in the laws of any State can apply. For example, Kerry [/font]admitted[font=times new roman,times,serif] on the Dick Cavett Show that he personally had burned the houses of noncombatants to the ground in violation of the treaties. Another officer that served with him, George Bates, recently corroborated that admission. He says he [/font]witnessed[font=times new roman,times,serif] Kerry wantonly burning all of the houses in an undefended hamlet on the Song Bo De River.
During the 2000 election campaign, opponents of the death penalty pointed out that George Bush had denied clemency in 152 death penalty cases. That same year [/font][font=times new roman,times,serif]the NAACP ran an election ad which suggested that Bush was indifferent to race-based crime, citing the case of the truck-dragging death of James Byrd. This year the [/font][font=times new roman,times,serif]NAACP gave John Kerry a five minute standing ovation. When the swift boat veterans ran ads using Kerry's own recorded speeches it was labeled a smear campaign. I can only imagine what would have happened if Senator Trent Lott had confessed to butchering a lot of innocent people [/font][font=times new roman,times,serif]of color [/font][font=times new roman,times,serif]while firing on defenseless villages, or if someone had reported seeing him burning a village down in a New York Times best-seller. I am only pointing out the logical inconsistencies, since I believe there are many Democrats that would make a fine President that I could enthusiastically support. There have been reports in the press which claim that John Kerry had created great problems by killing so many non-combatant civilians, or going after other non-military targets. Some reports say that his fellow officers were so displeased with his conduct that they helped get him released from duty early, and sent home. Thus, according to his own televised admission, and common fame [rumors] Kerry is implicated in high crimes and misdemeanors that were committed while he held a commission under the United States. Those offenses under the law of war should have been properly investigated, and if confirmed, prosecuted by a general court martial according to the Uniform Code of Military Justice (UCMJ).
Despite Mr. Kerry's claims that officers at all levels of command condoned war crimes, a few must have been doing their jobs faithfully. 201 soldiers and 77 Marines were convicted of serious crimes committed against the Vietnamese between 1965 and 1973. Americans who deliberately killed civilians received prison sentences while Communists, like [/font]Nguyen Tai[font=times new roman,times,serif], who assassinated thousands of civilians received promotions, commendations, and have written books about their crimes in their retirement. From 1957 to 1973, the National Liberation Front assassinated 36,725 South Vietnamese and abducted another 58,499.
Kerry's offenses will probably never be tried before any U.S. or Vietnamese criminal court. The Senator himself blocked the [/font]passage[font=times new roman,times,serif] of U.S. legislation that implemented the war crimes provisions of the treaties. He relented only after the language was removed that would have authorized funding to investigate and prosecute communist Vietnamese or U.S. officials that committed crimes during the Vietnam era. As a practical matter, any country could isolate the U.S. politically if Sen. Kerry is elected President. They can simply prefer charges against him in other jurisdictions. The U.S. has done that in a few cases. In 1987, the U.S. and other countries ostracized former UN Secretary General Kurt Waldheim based upon his wartime activities in Bosnia on behalf of Nazi Germany during WWII. He was entered into the State Department Visa Lookout System and denied entry into the U.S. Waldheim was the Austrian head of state at the time. In 2001, Slobodan Milosevic's arrest followed U.S. threats to suspend economic aid if President Vojislav Kostunica's government did not show willingness to cooperate with the U.N. war crimes tribunal in The Hague, Netherlands.
A complete analysis of Kerry's "war crimes" remarks deserves its own in-depth study. I would like to note in passing that under our Constitution and the rules of the House of Representatives officials can be investigated on the basis of common rumors [e.g. Judges Chase, Humphreys, and Durell], or impeached on the basis of being implicated during a hearing before a Senate Committee [Clarence Chase]. Individuals have been disqualified from holding office without ever being convicted of any criminal charges at all. The two things are separate matters and different legal standards apply. Article 1 Section III explains:
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[font=times new roman,times,serif]Clause 7: Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.[/font]
[font=times new roman,times,serif]Holding an elected or appointed office under the United States is a privilege, not an absolute right. Age restrictions can apply, and in the case of the Office of the President, only a natural born Citizen is eligible. In some instances candidates for office can't even get their names placed on the ballot. [/font]
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Accusations and Cases of Treason or Rebellion in the Past
[font=times new roman,times,serif]To know nothing of what happened before you were born is to remain ever a child - Cicero[/font]
[font=times new roman,times,serif]The United States government enacted legislation in the very early years to cope with war time emergencies and prohibit or prevent public insurrection and insubordination in the military. There have been some notable abuses of the right of free speech and freedom of association. The Sedition Act of 1798 endangered anyone who spread "false, scandalous and malicious" words against the government or its officers, to 'bring them "into contempt or disrepute." One observer noted: "Finding fault with men in office was already an old American custom, indeed, it had become an essential part of the pursuit of happiness." The act expired in 1801. Jefferson, as President, pardoned those who had been convicted and sentenced under the Act and remitted their fines, stating: "I discharged every person under punishment or prosecution under the sedition law, because I considered, and now consider, that law to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image." [/font][font=times new roman,times,serif]The fines levied in its prosecution were repaid by Act of Congress on the ground that it was unconstitutional, and the Supreme Court concurred in [/font]New York Times v Sullivan[font=times new roman,times,serif] (1964). [/font][font=times new roman,times,serif]In general, advocating changes to the government by constitutional means has always been lawful, while advocating the overthrow of [/font][font=times new roman,times,serif]the constitution or [/font][font=times new roman,times,serif]interfering in the operation of the government has not been.
Prior to the Battle of New Orleans, General Andrew Jackson had imposed martial law on the city. When the army arrested a civilian for sedition, he applied for, and got, a writ of habeas corpus. Rather than comply, Jackson arrested the judge who had issued it and tried the man under military law. But with the end of the war, the general restored civil authority. The angry judge fined him one thousand dollars for contempt, and Jackson paid.
The record of the US Civil War is filled with irony, paradox, and excess. I have decided to cover it at length here because the rebellion and opposition to the government's policies were more widespread and serious than during any other war. There are many parallels to later cases in WWI, WWII. and the Cold War era. I think much can be learned from reviewing the war time and post war experiences of the nation. 600,000 people died in this "rebellion". Despite all of the differences, the Confederate States of America adopted a [/font]Constitution[font=times new roman,times,serif] with nearly identical provisions, including those for treason and impeachment. People were arrested and jailed on both sides as enemy aliens or traitors. Lincoln, like General Westmoreland, was guilty of being overly optimistic. He felt that the insurrection could be handled by calling out the militia to act as a posse comitatus for three months - martial law was declared.
[/font][font=times new roman,times,serif]Many Northern political leaders and writers thought the Slave States had a perfect right to secede and were glad they were doing so. New York City was a center of disunion sentiment. Its Mayor, Fernando Wood, proposed in black and white that in case of hostilities, the Metropolis should dissociate itself from the Union and become a free and neutral City. Wood joined with Clement Vallandigham to form the Peace Democrats (Copperheads).The bankers and politicians whom W. B. Russell met in New York on his arrival from England held similar views. "They told me", he wrote in the London Times, "that the majority of the people of New York, and all the respectable people, were disgusted at the election of such a fellow as Lincoln to be President, and would back the Southern States if it came to a split".
[/font][font=times new roman,times,serif]In time of war weapons speak and laws are silent. - Cicero[/font]
[font=times new roman,times,serif]General Ambrose E. Burnside, Commander of the Department Of The Ohio, [/font]issued[font=times new roman,times,serif] General Order [/font]No. 38[font=times new roman,times,serif]:[/font]
[font=times new roman,times,serif]The habit of declaring sympathy for the enemy will not be allowed in this department. Persons committing such offenses will be at once arrested with a view of being tried. . .or sent beyond our lines into the lines of their friends. It must be understood that treason, expressed or implied, will not be tolerated in this department."
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[font=times new roman,times,serif]Soon thereafter former Ohio Congressman Clement Vallandigham addressed a large audience in Columbus. He chastised the president for not seeking a peaceable and immediate end to the Civil War and for allowing General Burnside to thwart citizen rights under a free government. He denounced General Order No. 38. He so opposed the order that he purportedly stated that he "despised it, spit upon it, trampled it under his feet." He also encouraged his fellow Peace Democrats to openly resist Burnside and his order. He was a lawyer, and he expressed the hope that he would be arrested. Vallandigham had gained notoriety for a [/font]speech[font=times new roman,times,serif] made on the floor of the House of Representatives in response to Lincoln's State of the Union Address.[/font]
[font=times new roman,times,serif]Burnside charged Vallandigham with the following crimes: [/font]
Publicly expressing, in violation of General Orders No. 38, from Headquarters Department of Ohio, sympathy for those in arms against the Government of the United States, and declaring disloyal sentiments and opinions, with the object and purpose of weakening the power of the Government in its efforts to suppress an unlawful rebellion.
[font=times new roman,times,serif]A [/font]military commission[font=times new roman,times,serif] found the Congressman guilty of disloyal utterances and conduct and he was sentenced to confinement during the war, but Lincoln commuted the sentence to banishment beyond the Union lines. In Ex parte Vallandigham[/font], [font=times new roman,times,serif]The Supreme Court felt that it could not hear cases from military commissions since those commissions were not courts. Thus, the Supreme Court was consistent in its refusal to upset actions of the President taken while the war was in progress. A committee of the Democratic convention demanded that President Lincoln reverse his ordered exile of Vallandigham. Lincoln [/font]refused[font=times new roman,times,serif] saying "Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiley agitator who induces him to desert?" The Confederate President, Jefferson Davis, ordered that Vallandigham be arrested and deported under the Confederate "Alien Enemies Act".[/font][font=times new roman,times,serif]
[/font][font=times new roman,times,serif]The border slave states of Maryland, Delaware, Kentucky, and Missouri remained with the Union, although they all contributed volunteers to the Confederacy. John Merryman, a state legislator from Maryland and an avowed secessionist, was arrested for attempting to prevent Union troops from moving within that state by burning bridges. He was detained in Fort McHenry [see [/font]Taney v. Lincoln: The Civil War Cases[font=times new roman,times,serif]]. Chief Justice of the U.S. Supreme Court [/font]Roger B. Taney[font=times new roman,times,serif], (also a Maryland resident) then sitting on the Circuit Court bench, found that Merryman was being held unlawfully and issued a writ of habeas corpus. The jail official refused to comply, citing the fact that he was acting in compliance with an Executive Order from President Lincoln. Taney held that only Congress had the power to suspend habeas corpus, not the President. Lincoln asked "Are all laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" Lincoln pointed out, ([/font]Article 1, Section 9[font=times new roman,times,serif]) of the Constitution says habeas corpus can be suspended during rebellions or invasions, but "is silent as to which, or who, is to exercise the power" (of suspending the writ)[/font][font=times new roman,times,serif]. Lincoln ignored Taneys order, and issued an [/font]arrest warrant[font=times new roman,times,serif] for the Chief Justice, telling the federal marshals to use it at their own discretion.
Taneys Ex parte Merryman decision would have given comfort to an avowed enemy, so it was claimed, by letting a traitor go free. Although Merryman was indicted for treason, he was released on bond and was never brought to trial. Altogether he spent forty-nine days in jail. Taney was a former slave owner who had authored the infamous opinion in Dred Scott v John Sandford. His rulings [/font][font=times new roman,times,serif]were looked upon as overt acts of betrayal by Southerners or Southern sympathizers. In 1863, Congress passed a statute that gave the President the power to suspend [/font][font=times new roman,times,serif]habeas corpus "during the present rebellion".
[/font][font=times new roman,times,serif]The war provoked a similar constitutional crisis in the Confederacy. A former U.S. congressman from Virginia criticized the Davis government and was jailed without trial.[/font][font=times new roman,times,serif]
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[font=times new roman,times,serif]From the Richmond Enquirer, 3/4/1862:
MARTIAL LAW OVER RICHMOND. - ARREST OF HON. JOHN MINOR BOTTS AND OTHER SUSPECTED UNIONIST. - The Honorable John Minor Botts was arrested at his residence on Broad street near the city limits on yesterday (Sunday) at the early hour of 6 A. M., by a detachment under command of Captain Godwin, assisted by detective Cashmeyer. Mr. Botts was very indignant, when, after his house had been surrounded, he found himself called upon by the officers to accompany them to prison. The household of the prisoner appeared very much alarmed at the "intrusion," and his son became so much excited that he lost all consciousness and fainted. Immediately after his capture, Mr. Botts was carried in a buggy to the private jail of McDaniel's on Franklin street, near Sixteenth, where he now remains.
The arrest of this person, did not become generally known in the city until about ten o'clock in the forenoon. The fact that it had been made, and that one who was considered a dangerous enemy was safely housed at the expense of the Confederate Government, gave universal satisfaction.
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[/font][font=times new roman,times,serif]A post-war case, [/font]Ex parte Milligan[font=times new roman,times,serif] [/font][font=times new roman,times,serif]is seen by some observers as a victory for U.S. civil rights. But the court merely ruled that Milligan should have been given a jury trial in a civilian court, not that the charges brought against him were improper:
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[font=times new roman,times,serif][font=times new roman,times,serif]The substance of the charges was joining and aiding at different times a secret society known as the Order of American Knights or Sons of Liberty, for the purpose of overthrowing the Government and duly constituted authorities of the United States; holding communication with the enemy; conspiring to seize munitions of war stored in the arsenals; to liberate prisoners of war, &c.; resisting the draft, &c.; . . . 'at a period of war and armed rebellion against the authority of the United States.'[/font]
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The court also affirmed several things which aren't helpful to John Kerry or the Vietnam Veterans Against the War (VVAW). The court held that a separate military justice system was necessary. The court also denounced those that counseled civil disobedience in war time as wicked:[/font]
[font=times new roman,times,serif]"It is essential to the safety of every government that, in a great crisis like the one we have just passed through, there should be a power somewhere of suspending the writ of habeas corpus. In every war, there are men of previously good character wicked enough to counsel their fellow-citizens to resist the measures deemed necessary by a good government to sustain its just authority and overthrow its enemies, and their influence may lead to dangerous combinations."
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[font=times new roman,times,serif]In [/font][font=times new roman,times,serif]Ex parte Milligan[/font] [font=times new roman,times,serif]a unanimous Supreme Court ruled that President Lincoln had had no right to authorize military commissions to try civilians in areas which are remote from the war where the civil courts are open. But the court did rule that "there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law..."
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[font=times new roman,times,serif]Milligan was a lawyer. He had never served in the military, and didn't hold a commission in the militia. Unlike the VVAW, the court recognized the need for a separate system of military justice saying;[/font]
[font=times new roman,times,serif]"The discipline necessary to the efficiency of the army and navy required other and swifter modes of trial than are furnished by the common law courts, and, in pursuance of the power conferred by the Constitution, Congress has declared the kinds of trial, and the manner in which they shall be conducted, for offences committed while the party is in the military or naval service. Everyone connected with these branches of the public service is amenable to the jurisdiction which Congress has created for their government, and, while thus serving, surrenders his right to be tried by the civil courts."
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[font=times new roman,times,serif]The Court argued that Milligan was entitled to the privileges of the Habeas Corpus statute of 1863 saying "the court was required to liberate him on taking certain oaths prescribed by the law, and entering into recognizance for his good behavior." Subsequent Court rulings (especially [/font]Ex parte Quirin[font=times new roman,times,serif],1942) recognized the right of the federal government "in time of war and of grave public danger" to use military tribunals to try "unlawful" combatants such as saboteurs or terrorists. Even Milligan had recognized that right when the civilian courts were closed. In Hamdi v Rumsfeld, 2004 the court explained:
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[font=times new roman,times,serif][font=times new roman,times,serif]"Milligan was not a prisoner of war, but a resident of Indiana arrested while at home there. Id., at 118, 131. That fact was central to its conclusion. Had Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have been different."[/font]
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[font=times new roman,times,serif]Southerners who fought to defend their home states were often treated with much more consideration than Northern sympathizers [dubbed Copperheads]. For example Rose O'Neal Greenhow was a known [/font]Confederate spy[font=times new roman,times,serif] that was tried by a military commission for treason on the grounds of communicating with the enemy. She [/font]confessed[font=times new roman,times,serif] in open court, but was released to go South in the midst of the war. The spys [/font]Belle Boyd[font=times new roman,times,serif] and [/font]Antonio Ford[font=times new roman,times,serif] were both captured and exchanged twice.[/font]
[font=times new roman,times,serif]Lincoln's [/font]Proclamation[font=times new roman,times,serif] of Amnesty and Reconstruction for restoration of the Union, delivered in 1863 dealt with the crimes of treason committed in the South. He exercised Presidential power and pardoned many of the people that had provided aid and comfort to the enemy in areas that had come under Union control. He acted to do that while the enemy was still killing federal troops on the battlefields. Most Southerners had taken part directly or by implication in the rebellion and had levied war against the Union. Certain classes of persons were excluded - mainly high ranking political or military officers - they were enumerated in the text of Lincoln's Proclamation and in the related legislation. There was no intention to bring most of them to justice. A few people, like the commander of Andersonville Prison, were charged with "war crimes", sentenced to death, and executed after the war.[/font]
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Both Lincoln and Johnson had foreseen that the Congress would have the right to deny Southern legislators seats in the U.S. Senate or House of Representatives, under the clause of the Constitution that says "Each house shall be the judge of the...qualifications of its own members." That finally happened when all the Southern state legislatures, with the exception of Tennessee, refused to ratify the 14th Amendment. Some voted against it unanimously. In the aftermath of the war, Southern state legislatures passed black codes, which aimed to reimpose bondage on the freedmen. After Lincoln's death, the Republican members of Congress that opposed Lincoln's lenient policies tried to [/font]impeach[font=times new roman,times,serif] President Johnson for carrying out the Reconstruction in the manner Lincoln had planned. Johnson was not well known throughout the country. Unlike Lincoln, he had been a Southern Democrat. He had run with Lincoln on the Union party ticket. In the end, the Republican Congress prevailed and placed much of the South under a Military Reconstruction Act. No one that took part in the rebellion would have been automatically eligible to vote or hold office again under any plan of Reconstruction.
[/font][font=times new roman,times,serif]After the Reconstruction the employment of the U.S. military for domestic law enforcement was prohibited by the passage of the [/font]Posse Comitatus Act[font=times new roman,times,serif]. That was ironically a public reflection of the same sentiment that had motivated General Lee to resign his federal commission and join the rebellion:[/font]
[font=times new roman,times,serif]With all my devotion to the Union and the feeling of loyalty and duty of an American citizen, I have not been able to make up my mind to raise my hand against my relatives, my children, my home. I have therefore resigned my commission in the Army, and save in defense of my native State, with the sincere hope that my poor services may never be needed, I hope I may never be called on to draw my sword...." Lee in a letter to his sister, April 20, 1861
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[font=times new roman,times,serif]Once Virginia had joined the hostilities, Lee of course led an offensive into Pennsylvania which was well outside the requirements of a defense for his native state.[/font]
[font=times new roman,times,serif]Jefferson Davis, the President of the Confederate States, spent two years in jail awaiting trial for treason before being released on bail. The U.S. government had filed an indictment against him in 1866, but the prosecutors [/font]declared[font=times new roman,times,serif] they would proceed no further. The case against him was dismissed in 1869, along with the indictments against 37 others including General Robert E. Lee. The General died the following year. [/font]
[font=times new roman,times,serif]John Kerry excused his poor choice of words in testimony before the Senate because he says he was angry after just returned from Vietnam where he had seen 40,000 men killed. He told the Senate that the Vietnam war had "torn the country apart". Those statements are hyperbole. He was only in Vietnam for four months. In nearly 10 years of fighting less than 59,000 US casualties occurred. The Army of the Potomac suffered 23,049 casualties during a few days fighting at Gettysburg in 1863. General Lee and the Army of Northern Virginia killed 61,000 men in less than eight weeks fighting in 1864. They were part of a rebellion that literally had torn the country apart. Nonetheless, the [/font]prevailing[font=times new roman,times,serif] questions after the war were about the political consequences, not the criminal consequences for their acts. Here is an [/font]example[font=times new roman,times,serif]: [/font]
[font=times new roman,times,serif][/font]
[font=times new roman,times,serif]General Logan Upon Reorganization
General John A. Logan, the old leader of the Douglas Democrats in Illinois, and one of the most distinguished soldiers of the war, lately made a speech at Jacksonville, Illinois, reviewing the events of the last four years:
"With reference to the reconstruction policy pursued by the Government, he said that it was but an experiment, and so long as there was any hope of its success he would yield a hearty support to the President. He confessed, however, that he had his doubts as to the wisdom of pardoning arch rebels by the wholesale. He thought it better to wait and test the sincerity of their repentance. He was opposed to the restoration of the rights of citizenship to men whose skirts had hardly been cleansed of the defilement of treason, and whose fingers were yet dripping with the blood of the martyrs of the Union. He would wait and see whether they brought forth fruit meet for repentance before granting them the privileges of the elective franchise."
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[font=times new roman,times,serif]Jefferson Davis was subsequently elected to the U.S. Senate in 1875. after having been barred from federal office by law. He [/font]refused[font=times new roman,times,serif] to take the oath of allegiance in order to regain his citizenship and couldn't serve. He became the President of a life insurance company instead, wrote books, traveled in the U.S. and abroad, and lived in reasonable comfort until his death in 1889. [/font]
[font=times new roman,times,serif]Lee had become President of Washington University and [/font]applied[font=times new roman,times,serif] for, but was never granted, the official postwar amnesty. He did not immediately subscribe to the oath and forward it with the application, because no order requiring that had been received in Richmond when he had initially applied. He subsequently forwarded one which was conveniently "lost". That oath of allegiance was discovered by an employee of the National Archives in 1970, Lee's citizenship was restored posthumously by an act of the U.S. Congress in 1975.[/font]
[font=times new roman,times,serif]In 1978 Jefferson Davis' citizenship was also posthumously restored by the Congress, but without the benefit of any oath.
[/font][font=times new roman,times,serif]Laws were enacted during the course of the rebellion by the Congress, declaring forfeitures, and making the President responsible for the confiscation of property, and liberation of slaves. Proceedings were instituted in the courts. That legislation could only take full effect after the surrender and during the reconstruction. Many people lost the privileges associated with citizenship, and were disenfranchised as a result of being found guilty of treasonous acts. Sentences were passed by military commissions or civilian courts. As a practical matter, most of the people that participated in the insurrection were barred from voting until they took an oath of allegiance. Some were barred from holding office, but even that disability could be removed by a two-thirds vote of both houses of Congress. Then, just as now, many of the former rebels were allowed to work, and lived fairly normal lives. They traveled about the country freely and even went abroad whenever they pleased. Most were simply prohibited from holding any Office of honor, Trust or Profit under the United States again.[/font]
Antiwar Activities: Kerry's Acts Contrary to the Constitution, his Oath, and the Law
[font=times new roman,times,serif]"For this day's work, lords, you have encouraged treason and opened the prison doors to free the traitors. A nation can survive its fools, and even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable, for he is known and he carries his banners openly. But the traitor moves among those within the gate freely, his sly whispers rustling through all the galleys, heard in the very hall of government itself. For the traitor appears not a traitorhe speaks in the accents familiar to his victims, and wears their face and their garment, and he appeals to the baseness that lies deep in the hearts of all men. He rots the soul of a nationhe works secretly and unknown in the night to undermine the pillars of a cityhe infects the body politic so that it can no longer resist. A murderer is less to be feared." - Cicero[/font]
[font=times new roman,times,serif]The following material is intended to answer the common argument that Mr. Kerry's antiwar activities were confined to the free discussion of governmental affairs and were [/font][font=times new roman,times,serif]thus [/font][font=times new roman,times,serif]protected by the first amendment. According to his military [/font]records[font=times new roman,times,serif], Mr. Kerry was a commissioned officer of the U.S. Naval Reserve until 1978.[/font]
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[/font][font=times new roman,times,serif]Many Americans were against the war in Vietnam. Most did not become Pro-Communist, Anti-American, or threaten to use force against the U.S. Government or its people. The information provided below shows that the Vietnam Veterans Against the War (VVAW) exhibited all of those qualities, and did all of those things during John Kerry's tenure on the organization's small Executive Committee. Those things happened long before he announced his intention to resign. He continued to serve on the committee and was a VVAW spokesman long after he announced his resignation. He finally stepped down from the committee in January 1972, but he still represented the VVAW at events like the "Emergency March for Peace" held at Bryant Park in New York City on April 22, 1972. The page numbers below are from the FBI Records. Links are also provided to the provisions of Title 18.
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[font=times new roman,times,serif]FBI Records [page 34] and the actual minutes of the VVAW meeting [page 35] both show that Kerry was present when Communist Party USA financing was discussed. The Communist Party paid to send VVAW delegations to Hanoi and to Paris [e.g. page 38]. VVAW plans to gain power and prestige by negotiating with the Vietnamese Communists in order to obtain the release of a few American POWs also emerged from those same records [page 12]. VVAW proposed to send tapes to North Vietnam for broadcast over Radio Hanoi. The broadcasts were intended to get U.S. servicemen to stop fighting [page 39].[/font]
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[/font][font=times new roman,times,serif]Many activities of John Kerry and the VVAW were simply a continuation of the Socialist and Communist Parties that financed them. Those organizations had conducted themselves in the same way in all of the earlier wars of the 20th century. [/font][font=times new roman,times,serif]One aspect of [/font][font=times new roman,times,serif]Nguyen Tai[/font][font=times new roman,times,serif]'s rise within the party was said to have been his assistance in the prosecution of his own father for making anti-regime statements[/font][font=times new roman,times,serif]. Captured Viet Cong documents showed that [/font][font=times new roman,times,serif]Communist security cadres had standing orders to "kill without mercy" any [/font][font=times new roman,times,serif]"spies," "tyrants," and "reactionaries"[/font][font=times new roman,times,serif]. From time to time these "spies" were to be given public trials before "People's Courts" as a way of impressing the local population with the Revolution's firm attitude in the face of such activity. Even today after relations have been our countries have been "normalized", many Vietnamese are still being arrested for communicating with Americans. These Vietnamese still face the death penalty. How likely is it that members of the Communist Vietnamese delegations in Paris met with John Kerry privately for unofficial talks during the war? If the talks were officially sanctioned, what did the Communists hope to gain?[/font]
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In 1917, while American soldiers were fighting in France during World War I, the general secretary of the Socialist Party (Charles T. Schenck) mailed 15,000 leaflets to young men urging them to resist the draft. Schenck and his colleague [/font][font=times new roman,times,serif]Elizabeth Baer [/font][font=times new roman,times,serif]were arrested for violating the Espionage Act of 1917. They were charged with conspiring to cause insubordination in the armed forces, obstructing the draft, and using the mail unlawfully. Schenck and Elizabeth Baer were found guilty. Schenck was given a six-month sentence. Baer got ninety days. They appealed. Schenck argued that their right to free speech had been denied. The Supreme Court [/font]ruled[font=times new roman,times,serif] against Schenck. Similar charges were brought against Eugene V. Debs, and [/font]Kate O'Hare[font=times new roman,times,serif] for speeches they had delivered. There were many similar cases. Most had their sentences commuted by either President Wilson or Harding, although all lost their citizenship and remained disenfranchised for life. Many people today are surprised to find that the Court majority held that circulating those types of political tracts was an act that could be prohibited by law, but it had always been against the law to incite mutiny or insubordination among the ranks of the military. General George Washington considered the men of the Pennsylvania and New Jersey Lines that disputed the terms or duration of their enlistments as mutineers. He even had two of the protesters tried and [/font]executed[font=times new roman,times,serif]. The Supreme Court in the Schenck case [/font]held[font=times new roman,times,serif] that;[/font]
[font=times new roman,times,serif]"the character of every act depends upon the circumstances in which it is done. . . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic."
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[font=times new roman,times,serif]Schenck had falsely claimed that the Selective Service Act violated the 13th Amendment, and called on men to resist serving in the military. The country was only a generation removed from the New York Draft Riots in which mobs numbering 50,000 or more terrorized neighborhoods on the East Side of New York for three days looting scores of stores. Several lynchings and beatings also occurred and a black church and orphanage were burned to the ground. The number killed or wounded during the riot is unknown, some estimates claim nearly 1000 died.[/font]
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[/font][font=times new roman,times,serif]In Schenck, the Court found that Congress had a right to prohibit others from inciting riots or encouraging insubordination among men already called and accepted for military service. The court reasoned that:[/font]
[font=times new roman,times,serif]"Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment, may become subject to prohibition when of such a nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent."
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[font=times new roman,times,serif]That Congressional "right" to prohibit or prevent flows from Article 1 section 8 of the Constitution. It provides that Congress shall have power to:
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- Provide for the common defense
- To raise and support armies
- To provide and maintain a navy
- To make rules for the government and regulation of the land and naval forces [e.g. Title 10 and the UCMJ]
- To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions
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[font=times new roman,times,serif]Sec. 2383. - Rebellion or insurrection
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
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[font=times new roman,times,serif]In 1948, Eugene Dennis and 10 other leaders of the American Communist Party were arrested and charged with conspiring to teach how to overthrow the government by forceful means. Their highly publicized trial lasted nine months. They were found guilty of violating the Smith Act, which made it illegal to advocate the violent overthrow of the government. Mr. Dennis claimed that the Smith Act violated his right to free speech. The communist leaders appealed their case ([/font]Dennis v United States[font=times new roman,times,serif]) to the Supreme Court, arguing that advocating a revolution is not the same as starting one, and that it was unconstitutional to punish individuals for their ideas. The Court ruled against Dennis, finding that freedom of speech can be lifted if the speech represents a "clear and present danger."[/font][font=times new roman,times,serif] Justice Frankfurter rejected the "clear and present danger test" and adopted the "balancing test", but still concluded: [/font]
[font=times new roman,times,serif]"It is not for us to decide how we would adjust the clash of interests which this case presents were the primary responsibility for reconciling it ours. Congress has determined that the danger created by advocacy of overthrow justifies the ensuing restriction on freedom of speech. The determination was made after due deliberation, and the seriousness of the congressional purpose is attested by the volume of legislation passed to effectuate the same ends."
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Kerry seemed completely ambivalent or neutral about the possibility of a forceable overthrow of the existing U.S. government that he had sworn to protect. He indicated he was aware that people were discussing it. In response he [Title 18 Sec. 2385] [/font]taught the propriety of overthrowing it[font=times new roman,times,serif] in some circumstances. His remarks were reported by both the Sunday Oklahoman and the FBI:
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[font=times new roman,times,serif]"The political power structure within the United States can and must change if the nation is to avoid violent efforts to seize power. If it (the government) doesn't change we are asking for trouble. If it is not done, those who are talking about seizing it will have every right to go after it." FBI files Section 10, page 251
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Kerry participated as a "Moderator" in the so-called Winter Soldier Investigation. During the event, a Proclamation was released to the press and reported by both the Detroit News and the FBI. The proclamation encouraged [Title 18 Sec. 2383] insubordination among members of the U.S. military. It also revealed a conspiracy to put down and [Title 18 Sec. 2384] [/font]oppose by force[font=times new roman,times,serif] the authority of the United States if either U.S. or South Vietnamese forces were to attack Laos in an attempt to interdict enemy troops, arms, and supplies on the Ho Chi Minh Trail. Those troops, arms and supplies were being used to kill Americans on the battlefield:[/font][font=times new roman,times,serif] [/font]
[font=times new roman,times,serif]"We, as veterans of the war in Vietnam, give notice that if Laos is attacked, we will respond at once. We call for mass civil disobedience to take place all over this country. We call for industry to shut down. We call upon the students to close the schools. We call upon our brothers who are still in uniform to close the military bases throughout America and the world. We call on the anti-war movement to shut down the major cities of America.... ....We have been trained to fight. If need be we will use the knowledge we have gained against those who are seeking to extend this war." -- FBI Files: Section 2, page 65,66, and 69
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[font=times new roman,times,serif]John Kerry is fond of [/font]quoting[font=times new roman,times,serif] Harry Truman. Truman supported the French in their dispute with communist leader Ho Chi Mihn in the 1950s. Truman relieved commanders that didn't respect the constitutional authority of the President:[/font]
[font=times new roman,times,serif]"Full and vigorous debate on matters of national policy is a vital element in the constitutional system of our free democracy. It is fundamental, however, that the military must be governed by the policies and directives issued to them in the manner provided by our laws and Constitution. In time of crisis, this consideration is particularly compelling. -- Statement and Order by President Harry S. Truman on Relieving General MacArthur of His Commands
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[font=times new roman,times,serif]Kerry had no respect for the power vested in the President as Commander in Chief, or as the Chief Executive. He asked Congress to overrule President Nixon. He called press conferences to accuse the President of using the prisoners of war for political purposes, and repeatedly sought to [/font]undermine[font=times new roman,times,serif] the official U.S. negotiating positions while talks were in-progress. Mr. Kerry acted as his own self-appointed Ambassador and demanded action on Viet Cong prisoner-release proposals. Kerry and VVAW delegations traveled abroad to Paris and Hanoi and met with communist delegations. They and other member organizations of their coalition (Peoples Coalition for Peace and Justice) even entered into their own nine point "Peoples Peace Treaty" which contained all of the Communist Provisional Revolutionary Government of South Vietnam (Viet Cong) demands. All of this contradicted the provisions of Article 2 Sections 1 and 2 of the U.S. Constitution:[/font]
- Section. 1. Clause 1:The executive Power shall be vested in a President of the United States of America.
- Section. 2. Clause 1: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.
- Section. 2. Clause 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.
In a speech delivered in May 1970 President Nixon had announced:
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[font=times new roman,times,serif]"Now, faced with these three options, this is the decision I have made. In cooperation with the armed forces of South Vietnam, attacks are being launched this week to clean out major enemy sanctuaries on the Cambodian-Vietnam border."
....
"Let us look again at the record. We have stopped the bombing of North Vietnam. We have cut air operations by over 20 percent. We have announced withdrawal of over 250,000 of our men. We have offered to withdraw all of our men if they will withdraw theirs. We have offered to negotiate all issues with only one condition and that is that the future of South Vietnam be determined not by North Vietnam, not by the United States, but by the people of South Vietnam themselves. The answer of the enemy has been intransigence at the conference table, belligerence in Hanoi, massive military aggression in Laos and Cambodia, and stepped-up attacks in South Vietnam designed to increase American casualties. This and casualties. This attitude has become intolerable. We will not react to this threat to American lives merely by plaintive diplomatic protests."[/font]
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On April 22, 1971 John Kerry testified before the Senate Foreign Relations Committee. He said that:
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[font=times new roman,times,serif]"I have been to Paris. I have talked with both delegations at the peace talks, that is to say the Democratic Republic of Vietnam and the Provisional Revolutionary Government..."
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[font=times new roman,times,serif]There were constitutional and legislative limits on correspondence with foreign governments. Both of the delegations to which Kerry referred were comprised of Communist Vietnamese. Neither included the U.S. allied, or South Vietnamese delegations. The Democratic Republic of Vietnam was the government of the North Vietnamese communists, and the Provisional Revolutionary Government (PVG) was the political arm of the Viet Cong whose military wing was the People's Liberation Armed Forces.
After 1968, as negotiations began in Paris, the National Liberation Front (NLF) had established the Provisional Revolutionary Government, and demanded a coalition government in the South. These delegations represented enemies that were killing Americans on the battlefield and holding many American prisoners. No commissioned officer had any business meeting with them privately. FBI reports reveal that Kerry met with the communists on more than one occasion.
Kerry attempted to persuade the members of the Senate committee to adopt an unconstitutional method - a plan - to immediately impose a legislated cease fire on the Commander-in-Chief and dictate negotiations for a communist coalition government. He cited "all eight of Madame Binh's points" and claimed "this negates very clearly the argument of the President that we have to maintain a presence in Vietnam". He admitted in his testimony that he knew VVAW couldn't negotiate a treaty. By pressing the Senate to adopt of all the provisions of the 'peoples peace treaty' Kerry was acting as an agent of a foreign government in this country. The Chairman was somewhat taken aback, but Kerry felt there was a mood in the country that could be exploited by discarding the Constitutional Separation of Powers:
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[font=times new roman,times,serif]The Chairman:"The congress cannot directly under our system negotiate a cease-fire or anything of this kind. Under our constitutional system we can advise the President." ... "But Congress has no capacity under our system to go out and negotiate a cease-fire. We have to persuade the Executive to do this for the country."
Mr. Kerry: "Mr. Chairman, I realize that full well as a study of political science. I realize that we cannot negotiate treaties and I realize that even my visits in Paris, precedents had been set by Senator McCarthy and others, in a sense are on the borderline of private individuals negotiating, et cetera. I understand these things. But what I am saying is that I believe that there is a mood in this country which I know you are aware of and you have been one of the strongest critics of this war for the longest time."
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Kerry's remark about "private individuals negotiating" refers to 18 USC Section 953. Dating back to 1799, the act is named for George Logan, a Philadelphia Quaker who traveled to France with letters from Thomas Jefferson in the hope of preventing a war with the United States. President John Adams was very displeased by Logan's action (Vice President Jefferson was a political rival). So was the Federalist-dominated Congress, which passed a law prohibiting unauthorized private citizens from communicating with foreign governments to influence disputes with the United States. Logan himself ignored the act and went to England in 1810 on an unsuccessful private diplomatic mission as an emissary of peace. Despite attempts to repeal the act, it is still in force today. It is often cited in court opinions, but ignored by such unofficial diplomats as Jesse Jackson, Jimmy Carter, Jane Fonda, and Ramsey Clark. The latter two visited Hanoi during the war. Negotiating isn't a necessary element for an offense to occur, an intent to defeat the measures of the United States is sufficient ground for an indictment:
Section 953 - Private correspondence with foreign governments [/font]
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Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.
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The Uniform Code of Military Justice (UCMJ) is a federal law, duly enacted by Congress for the regulation of the military. It can also apply to private individuals brought before military tribunals. Its provisions are contained in United States Code, Title 10, Chapter 47. Article 36 of the UCMJ allows the President to prescribe rules and procedures to implement the provisions of the UCMJ. The President does this via the Manual for Courts-Martial (MCM) which is an executive order that contains detailed legal instructions for implementing military law for the United States Armed Forces.
The official position of the United States, stated as early as 1965, and repeated consistently thereafter, was that the hostilities in Vietnam constituted an armed international conflict, that North Vietnam was a belligerent, that the Viet Cong were agents of the government of North Vietnam, and that the Geneva Conventions applied in full. The Viet Cong treated American POWs as criminals, and many were executed according to the communists own accounts. Treason is defined in the Constitution, and included in the lists of impeachable offenses. One can be charged and tried with treason absent a declaration of war. The case of Aaron Burr is an example. Hostilities or overt acts of betrayal are all that is required. The MCM includes, but doesn't restrict, the term enemy to the 'organized forces of the enemy in time of war". "Any hostile body" that our forces may be opposing is also included. The Viet Cong, the Taliban, and John Brown's raiding party on the federal arsenal at Harper's Ferry are all examples of a mob or band of belligerent renegades:
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[font=times new roman,times,serif]Enemy. Enemy includes organized forces of the enemy in time of war, any hostile body that our forces may be opposing, such as a rebellious mob or a band of renegades, and includes civilians as well as members of military organizations. Enemy is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and all the citizens of the other.
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Certain offenses under the UCMJ, like espionage, can only happen in peacetime. Many articles of the UCMJ require that a "time of war" determination be made when it constitutes an aggravating factor used in determining a punishment. Article 104 itself makes no distinction. Marine Pfc. Robert Garwood was found guilty of collaborating with the enemy during the Vietnam War, and became the first Vietnam veteran convicted of treason under this article. Lt. (jg) John Kerry's meetings with the communist delegations were a violation of this article. Garwood was ordered reduced to Private (E1), given a dishonorable discharge from the USMC, and forced to forfeit all back pay and allowances. Article 104 is titled "Aiding the enemy" and provides that:
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[font=times new roman,times,serif]Any person who
(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or
(2) without proper authority, knowingly harbors or protects or gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct.
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The MCM explains that this article applies to any person - not just those in the military - and that the nature of the unauthorized communication is immaterial:
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[font=times new roman,times,serif](1) Scope of Article 104. This article denounces offenses by all persons whether or not otherwise subject to military law. Offenders may be tried by court-martial or by military commission.
....
(6) Communicating with the enemy.
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[font=times new roman,times,serif](a) Nature of the offense. No unauthorized communication, correspondence, or intercourse with the enemy is permissible. The intent, content, and method of the communication, correspondence, or intercourse are immaterial. No response or receipt by the enemy is required. The offense is complete the moment the communication, correspondence, or intercourse issues from the accused. The communication, correspondence, or intercourse may be conveyed directly or indirectly. A prisoner of war may violate this Article by engaging in unauthorized communications with the enemy. See also paragraph 29c(3).
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Why are the Vietnamese Still at War?
[font=times new roman,times,serif]In June of 1995 Senators Kerry and McCain announced plans to offer a Senate resolution approving normalized relations with Vietnam. On July 11, 1995 President Clinton, flanked by both the Senators, announced normalization of relations with Vietnam, saying the time had come to move forward and bind up the wounds from the war.
Nonetheless, in late 2001, the Marxist-Leninist Vietnamese government arrested three of its citizens for "communicating" with reactionary or enemy groups (Americans). The three individuals face the death penalty for engaging in "normalized relations". The U.S. reactionaries consist of American Church groups and a U.S. radio station news program. Amnesty International noted that the "reactionary" groups don't even advocate the overthrow of the Vietnamese government, and that the activities the three engaged in are regarded as perfectly legal under international law in most countries of the world.
The Time 100 Leaders Poll explained that Ho Chi Minh believed in 1) a revolution against French colonialism in the name of nationalism and a "democratic regime," to be followed by 2) a second revolution against nationalism, to achieve the total Socialist state. The article contained the obligatory and oft-repeated Communist propaganda about President Wilson snubbing Ho at Versailles (a treaty about the fate of Germany after all). 50 years after the fall of Dien Bien Phu, and 30 years after the fall of Saigon, the Vietnamese Communists still haven't implemented any portion of the eight point program the French Socialists wrote for Ho in 1919:
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[font=times new roman,times,serif]1. Amnesty for all Vietnamese political prisoners;
2. Reform of the Indochinese judicial system by giving Vietnamese the same judicial safeguards as do the Europeans and completely and definitively abolishing the special tribunals, which are instruments of terror and oppression against the most honest part of the Vietnamese;
3. Freedom of press and freedom of opinion;
4. Freedom of association and freedom of assembly;
5. Freedom to emigrate and travel abroad;
6. Freedom of teaching and creation in all provinces of technical and vocational schools for natives;
7. Replacement of the regime of decrees by that of laws;
8. Presence in the French Parliament of a permanent delegation elected by the natives to keep it informed of their aspirations.
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John Kerry once felt that our democratic government differed from communist regimes and benevolent dictatorships in name only, now he says things like:
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[font=times new roman,times,serif]"We possess no stick, including most favored nation status, which can force China to embrace internationally recognized human rights and freedoms."
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[font=times new roman,times,serif]In 2002, Madame Binh, the Vice President of the Socialist Republic of Vietnam, visited New York and made a scheduled appearance to speak to about 200 people. She was introduced by a VVAW spokesman who considered it a great honor [ad·her·ing To remain devoted to or be in support of something]. He presented her with a VVAW button and VFP lapel pin. She responded with a hug. She also expressed her gratitude to those who opposed the U.S. war in Vietnam. [grat·i·tude warm and friendly feeling toward a benefactor; kindness awakened by a favor received]
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[font=times new roman,times,serif]U.S. warrior wins respect:
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[font=times new roman,times,serif]By MARINA JIMENEZ
Tuesday, June 22, 2004[/font]
[font=times new roman,times,serif]Communists back former soldier Kerry in his bid for U.S. presidency, saying he's more realistic about war
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TRA VINH, VIETNAM -- In the spartan banquet room of the Coolong Hotel, the Communist Party apparatchiks all agree on one thing: Democratic Senator John Kerry is the best candidate for U.S. president.
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Conclusions
[font=times new roman,times,serif]Let the punishment match the offense. - Cicero
[/font][font=times new roman,times,serif]The fact that the Communist Vietnamese were given aid and comfort by John Kerry's antiwar activities is undeniable. Their official news agency is still using his testimony today in unfavorable coverage of the war in Iraq. Kerry's testimony forms the basis for allegations that "[/font][font=times new roman,times,serif]Americans perpetrated well-documented atrocities in Viet Nam, both at the individual and mass levels".[/font][font=times new roman,times,serif]
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[font=times new roman,times,serif]All of the foregoing material should be useful in informing our opinion as to what exactly the U.S. Constitution means by "adhering to an enemy and giving them aid and comfort". The possibility of criminal prosecution or punishment (if any at all) is immaterial in deciding if a person has committed treason and should be disqualified from holding office. For example Article 3 Section 3 provides:
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[font=times new roman,times,serif]Clause 1: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.
Clause 2: The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
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[font=times new roman,times,serif]Regarding confessions in open court, Kerry's testimony before the Foreign Relations Committee can be used as evidence against him. The Senate can serve as the court in trials of impeachment for treason. Kerry was testifying under oath when he implicated himself. Both houses have the power under 2 USC to: [/font]
- Subpoena witnesses for taking testimony
- Administer oaths to witnesses
- Can impose fines on witness that refuse to testify or produce papers
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[font=times new roman,times,serif]In the House common fame has been held sufficient to justify procedure for inquiry, as in a case wherein it was stated on the authority of common rumor that a Member had been menaced. The House also has voted to investigate with a view to impeachment on the basis of common fame, as in the cases of Judges Chase, Humphreys, and Durell.
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[font=times new roman,times,serif]There are a number of rumors that the VVAW Executive Committee was a "menace" to the lives of several Senators. Organizing, affiliating with, or becoming a member of a group or society that advocates assassination of any officer of the government of the United States or the government of any State, Territory, District or Possession is a violation of Title 18 Sec. 2385. There are even reports that Kerry himself solicited false statements from VVAW members during the so-called Winter Soldier Investigation, with a view to using those false statements to influence the actions of United States Senate to the injury of the United States [Title 18 Sec. 954]. A high ranking communist intelligence officer that defected suggests that the exact sources of the stories Kerry mentioned in his testimony should be tracked down. It should be noted that another gentleman named Clarence Chase -- Collector of Customs, Port of El Paso, Texas - was implicated in a Senate hearing before a Committee. The Senate adopted a resolution referring the matter to the House of Representatives for such proceedings as might be appropriate against Chase. The resolution was referred to the Judiciary Committee. Chase resigned from office, and no further action was taken by the House.
The 14th Amendment, Section 3 was added after the civil war to deal with the matter of treason, insurrection, and rebellion. It insures that matters of personal conscience don't outweigh the public trust when a government officer violates an oath of office. No criminal conviction for treason was necessary. A two thirds vote of both houses was required to remove the legal incapacity or disqualification:
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[font=times new roman,times,serif]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.
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[font=times new roman,times,serif]The evidence and testimony clearly implicate John Kerry in acts of insurrection and rebellion against the Constitution. The Swift Boat veterans have done their part in defending the Constitution. They have put their case before the public and our elected officials expecting them to do the same. The government officials with access to the unredacted FBI files and the Senate committee hearings have failed to act in a manner consistent with their oaths of office and responsibilities.
Real campaign reform requires that the House and the Senate investigate these matters and determine if John Kerry should be disqualified from holding office under the United States. [/font]
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