Saturday, September 04, 2004

The Swift Vet Case

My response to a recent Eleanor Clift "web" article

Bush’s Sleeper Cells
All it takes is a wink and a nod from the White House, and this network springs into action
By Eleanor Clift
Updated: 3:50 p.m. ET Aug. 27, 2004

…The Kerry campaign thinks it has succeeded in discrediting the scurrilous attack on Kerry’s military service, but Rove got what he wanted. Instead of talking about a failed war in Iraq and a new report that shows 1.3 million more Americans living in poverty, we’re debating what happened in the Mekong Delta in 1968. The strategy “came straight from the West Wing,” says the GOP staffer. “Nobody should be confused.” Asked to explain, this Republican says Rove is smart enough to keep technical distance. But all it takes is a well-placed wink to activate a web of Bush family hit men, confidantes and deep-pocket donors. “They know what to do—it’s like sleeper cells that get activated,” he says, likening the players to “political terrorists.”

…The charges advanced by the so-called Swift Boat Veterans for Truth would never hold up in a court of law. These men would have us believe, contrary to Navy records and countless eye witnesses, that Kerry did not act heroically and had a grand plan to manipulate medals from the military.

…A lot of Vietnam vets will never forgive Kerry for accusing them of committing atrocities. Kerry has conceded some hyperbole in his 1971 Senate testimony, but didn’t the Toledo Blade win a Pulitzer this year for uncovering Vietnam-era atrocities? Have we forgotten about the My Lai massacre and Zippo lighters burning down hooches? Maybe a few masochists want to debate whether Vietnam was a noble cause, but 58,000 of our soldiers died. The war was a waste whether you were on the right or the left. Kerry leveled most of his criticism at political leaders who didn’t tell the truth, and who sanctioned “search and destroy” missions that invited war crimes. By the time Kerry testified in 1971, 44,000 American soldiers were already dead. The war had almost no popular support, yet another 14,000 lives would be lost.

…By assailing his heroism, the GOP may have done Kerry a favor. Maybe they’ve awakened a sleeping giant.
© 2004 Newsweek, Inc.

Ms. Clift:

I find your “Bush’s Sleeper Cells” column to be ...well, I’ll use your word… scurrilous.

You wrote: “The Kerry campaign thinks it has succeeded in discrediting the scurrilous attack on Kerry’s military service...”

However, several of these SwiftVets charges have been confirmed by Mr. Kerry through his representatives. For example, they (his reps) now say he was not in Cambodia on the date and time he said he was, although he might have been “nearby.” They now say he may have caused his first wound for which he received a Purple Heart although it may have been the result of contact with the enemy. They now admit that his was not the only boat that remained to conduct rescue operations when another boat hit a mine, he was the only one that left and then came back. Are admitted charges still “scurrilous?”

You assert: "The charges advanced by the so-called Swift Boat Veterans for Truth would never hold up in a court of law.”

There are plenty reasons to believe otherwise. As I see it, the SwiftVets have made but one charge- that John Kerry’s history makes him unfit to be president. In support of this charge they make four major allegations:

1. That Mr. Kerry misrepresented certain aspects of his service in Vietnam and his caused harm to his fellow Swift boat veterans by placing them in a false light. As one of the Swift Vets said:
“What actually happened... was they actually looked and they saw the advertisement even that Kerry had in January and February and they thought it was some other incident. It was so completely different than what they were involved in, they thought it had to be something else. When they learned that it was related to the incident where the 3 boat was mined, they were shocked. They were just sickened, because the things were portraying them as fleeing and they were the guys that stayed. And it portrayed Kerry as the hero, when he was the guy that fled. It turned the world upside down. That‘s why they have all come forward one at a time, appeared on television and told their story. It‘s just the world turned upside down.”
2. That Mr. Kerry misrepresented certain injuries he sustained in Vietnam in order to qualify for Purple Heart medals so that he could leave Vietnam early, casting doubt on his oft asserted “hero” status,
3. That Mr. Kerry’s false statements made in his 1971 Senate testimony caused further harm to the same Swift boat veterans and to other veterans of the Vietnam war by placing them in a false light, and
4. That Mr. Kerry’s false statements made in his 1971 Senate testimony provided aid and comfort to the enemy then being fought by the American military, causing harm to forces then in the field and to prisoners of war.

They assert that the proof of these charges render Mr. Kerry unfit to be president of the United States.

Trials are decided by the weight of credible evidence. Any lawyer would love, early in a trial, to have a defendant admit that some things that he previously said were true are, after further reflection, maybe not so true. This goes right to the heart of that witness’s credibility and the jury has to question any testimony of a witness who has proved himself to be even a little careless with the facts. In addition to the Cambodia story and the other “corrections” set forth above, the SwiftVets can raise the point that Kerry has admitted exaggerating before, as you note when you wrote: “Kerry has conceded some hyperbole in his 1971 Senate testimony…”

Any SwiftVet lawyer will freely admit that Mr. Kerry did serve honorably and even heroically at times. He will also build a case that tragically, Mr. Kerry was not content to have a “good” record- he needed it to be a “great” record. In order to achieve that special status, over the years Mr. Kerry developed a pattern and practice of embellishing parts of his military service well beyond innocent “puffing.”

I assume the quality of witnesses for each side to be even (aside from Mr. Kerry). Both sides will offer up war veterans who served honorably and well and who will testify truthfully about what they saw, heard and understood. But they will not testify to the exact same things. In short, the testimony will be like most eyewitness testimony – somewhat contradictory, confusing and ultimately for the jury to assess.

At a trial the effort might be made by Kerry defenders to impeach the SwiftVets witnesses by pointing out that most served in boats “near” Mr. Kerry and not on his boat. However, even simple car wreck cases do not require every witness to have been in one the cars involved in the wreck. Witnesses observing from the sidewalk or another car are allowed to testify and the jury works its way through any inconsistencies. On that basis, I don’t believe there is a court in the country that would not allow the SwiftVets to testify. Further, I think a jury will accept their testimony as to what they saw, wherever they were located when they saw it.

One other option is to impeach the motives of the Swift Vets by asserting that they have some motive to lie. Kerry witnesses might impugn their integrity. For example, you assert in your column that the SwiftVets are some form of Bush “sleeper cells.” Do you know of someone standing by ready to attempt to impeach the SwiftVets by testifying that these highly decorated veterans have become “political terrorists?” And that their speaking out is something more then the free exercise of their First Amendment right to say what they believe to be true? Perhaps you or your brave “Republican mole” is up to the job?

Maybe their testimony can be impeached with what you describe as “Navy records and countless eye witnesses?” I’ll grant you that perhaps the “countless” part was a little hyperbole on your part – as there is actually a finite, and, therefore, countable number of men who served with Mr. Kerry in the Swift boat group in Vietnam and a large number of them signed on to be part of the “so-called” Swift Boat Veterans for Truth.” Do you know of some larger, uncountable group that’s been holding back in the wings? And what effect will it have on SwiftVet credibility if it was Mr. Kerry himself who wrote up the Navy paperwork about the events involved in this matter (as is alleged by many SwiftVets)? Do you think it will help Mr. Kerry’s case for him to testify that his record is based on, well, his record? Especially given the “hyperbole” factor?

If I were handling the SwiftVet case, I would point out Mr. Kerry’s expressed disdain for the value of official documents. Remember the assertion that Mr. Bush was “AWOL?” Mr. Kerry weighed in on the controversy, essentially asserting that an Honorable Discharge was not, in fact, proof of good service:
“The issue here is, as I have heard it raised, is was he present and active in Alabama at the time he was supposed to be," said Kerry. "I don't have the answer to that question and just because you get an honorable discharge does not in fact answer that question."

In addition to professing doubt about official records, this is a gratuitous slap in the face to every veteran who takes pride in his own honorable discharge. I would be more than happy to explore this assertion at trial.

You wrote: “A lot of Vietnam vets will never forgive Kerry for accusing them of committing atrocities.”

In this instance you are absolutely right. But what happens at a trial if such veterans testify that they will also never forgive Mr. Kerry for providing aid and comfort to the enemy while his fellow Americans were engaged in combat with that enemy?

As noted earlier, you point out that Mr. Kerry, in defense of this testimony, has admitted to a certain amount of “hyperbole” in his Senate testimony in 1971. Any decent lawyer, using a standard dictionary definition of hyperbole, will ask the jury to decide whether this Senate testimony was an “obvious and intentional exaggeration.” The video will be played for the jury. “Where,” they will be asked, “ is there any sign of hyperbole in his testimony?” They will be asked whether Mr. Kerry seriously brought serious charges or simply an “exaggeration” about which it can now be said, “just kidding.”Then the SwiftVet lawyer will ask the jury what difference it makes whether the charges contained hyperbole or not, if the effect in either case was to give aid and comfort to an enemy during time of war and to to slander an entire generation of veterans?

What if at a trial, the SwiftVets call North Vietnamese officials to testify about how Mr. Kerry’s Senate testimony helped them to press on with their fight because what they heard in his words was that, if they held on a little longer, victory was theirs? Or if they offer proof by citing numerous written records to that effect? What if they call experts to testify about how many of the 14,000 men who died after Mr. Kerry’s testimony might have lived had the Vietnamese not been given such hope and dragged the war on? What if they call former prisoners of war to testify, as they did in the second SwiftVet ad, about the effect Mr. Kerry’s “hyperbole” had on them in the Hanoi Hilton and other Vietnamese hellholes?

What if they call witnesses to testify about the official policies that forbade and condemned atrocities? What if witnesses testify that the vast majority of US troops never committed any atrocities and often intervened to prevent or stop them? Will they admit some occurred anyway? Sure, and they will then condemn them again.

What if the SwiftVets could call Hugh Thompson? You might not know his name, but he was the Army helicopter pilot who observed, from the air, something amiss at My Lai, acted to stop it and reported it up the chain of command. What if they had him tell how he landed his craft in between villagers and Lt. Calley’s soldiers and ordered his gunner to fire on any soldier who continued to pursue the villagers? And testify about how he and his gunner radioed two more helicopters to the scene and airlifted a dozen villagers to safety? What if they had him explain that he took these actions because, contrary to Mr. Kerry’s “hyperbole,” it was not the policy of the US Military to engage in or condone atrocities.

What if they then put John Kerry on the stand to repeat his statement that he was one of those who committed atrocities?

Then you will see exactly how the charges made by the SwiftVets would hold up in court.

Contrary to your view, the “sleeping giant” awakened in this matter is not Mr. Kerry but rather thousands of Vietnam veterans who have spent much of their adult lives defending their honorable service from the unfair “hyperbole” of Mr. Kerry and the too willing assumptions of its truth by people like you.

Will they attempt to justify the war? No, and nor should they. They were not the policy-makers and bear no responsibility for the strategic decisions that placed them there. Neither is the war’s justification relevant to Mr. Kerry’s behavior during or after the war. No, the trial would be about his truthfulness, his wartime and post war behavior, the effects of that behavior and what they say about Mr. Kerry’s fitness to be commander in chief.

In short, it is exactly the case that the SwiftVets are bringing to help the American voters to decide. I think it’s relevant and important and worth much more than your casual dismissal.

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