For years it was said that Jane Fonda committed treason when she went to Vietnam in July 1972. In the late 1990s, with increasingly widespread use of the Internet, the charge became a staple of discussion by conservatives and veterans. However, their belief in Fonda’s criminality was not substantiated. We undertook to do just that, and laid out the definitive case against her in our 2002 book, “Aid and Comfort”: Jane Fonda In North Vietnam.
A current parallel has arisen in connection with the presidential candidacy of John Kerry. For the past several weeks, the Internet has been ablaze with charges—as yet unexplained, let alone legally substantiated— that by traveling to Paris for meetings with the North Vietnamese communists and their Viet Cong allies in 1970, Kerry violated American criminal statutes. Indeed, one well-intentioned group, Patriot Petitions, has disseminated a petition to President of the Senate Richard Cheney, Senate Majority Leader Bill Frist, and Attorney General John Ashcroft, seeking Kerry’s prosecution.
Just as Fonda’s critics turned out to have been correct about their gut feelings regarding her treasonable actions in North Vietnam, so, too, Kerry’s critics—who feel strongly that his trip violated the law, without quite knowing why—are correct.
The explanation of Kerry’s criminal behavior in Paris is some thirty-four years overdue.
Our major premise—the legal one—is that one federal statute makes it a crime for American citizens to have “intercourse” with the “enemy,” while another federal statute similarly prohibits “intercourse” with “any foreign government.”
Our minor premise—the factual one—is that John Kerry confessed to engaging in exactly that proscribed conduct.
Therefore, John Kerry is a criminal.
Kerry’s criminality has deep historical roots. Americans acted similarly even before the Declaration of Independence. Indeed, Article 28 of the American Articles of War of 1775 provided: “Whosoever belonging to the continental army, shall be convicted of holding correspondence with, or giving intelligence to, the enemy, shall suffer such punishment as by a general court-martial shall be ordered.” The essence of this non-intercourse colonial statute has appeared in each subsequent military code since 1775.
Its modern embodiment is Title 10, Section 904 of the United States Code [Uniform Code of Military Justice], which provides:
Any person who . . . without proper authority, knowingly . . . 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.
The meaning of this section—apart from the definition of “enemy,” which in the early 1970s certainly included the Viet Cong and North Vietnamese (see Title 18, United States Code, Section 11)—has been interpreted in four appellate cases.
Edward S. Dickenson was a turncoat American POW who collaborated with the Chinese Communists in a prison camp during the Korean War. Upon his repatriation he was charged with violating Section 904’s predecessor. The court’s most important ruling was that at the time Dickenson committed the acts charged, even though his enlistment had expired (due to incarceration in the POW camp), he remained subject to military jurisdiction. This ruling was reinforced when Dickenson appealed to the United States Court of Appeals for the Ninth Circuit, which noted that the defendant “had neither been discharged . . . nor had his military status been severed . . . . He was a soldier, subject to the rules, discipline and jurisdiction of the Army and squarely within the provisions of Article 2 of the Uniform Code of Military Justice . . . which provides as subject: ‘All persons belonging to a regular component of the armed forces, including those awaiting discharge after expiration of their term of enlistment . . . .’” (Emphasis added).
Claude J. Batchelor (see Why Not Call It Treason?) was another Korean War collaborator. Upon his repatriation he, too, was charged with violating Section 904’s predecessor. One of Batchelor’s defenses was that he had no criminal intent. The United States Court of Military Appeals rejected that argument, holding that intent was not necessary for commission of the crime (unlike treason cases, where intent is an essential element).
A third Korean War collaborator was William H. Olson. In affirming his conviction, the Court of Military Appeals said this: “[I]f the accused was the instrument used by the enemy to spread propaganda against his own country, and he did so voluntarily, he has thereby aided the enemy’s cause within the meaning of the statute.” (Emphasis added). The court then quoted the 1949 Manual for Courts-Martial for the proposition that “non-intercourse” has been the consistent interpretation of Section 904 and its predecessors:
Correspondence does not necessarily import a mutual exchange of communication. The law requires absolute non-intercourse, and any unauthorized communication, no matter what may be its tenor or intent, is here denounced. The prohibition lies against any method of communication whatsoever, and the offense is complete the moment the communication issues from the accused, whether it reaches its destination or not.
As to whether the charges of collaboration leveled against Olson were within the statute’s proscription, the court noted that “[I]t is certain that communications, collaboration, and intercourse with the enemy which results in a program of psychological warfare inimical to this country is within [the statute’s] fair meaning.”
The fourth case, United States v. Johnson, arose during the Vietnam War. According to the United States Court of Military Appeals:
While on duty with the Marine Corps in Vietnam, the accused proceeded to Bangkok, Thailand, on authorized rest and recreation leave. When he did not return at its expiration, he was listed as being absent without leave. He was apprehended [and] returned him to Saigon. * * * In his statement, the accused described in detail his whereabouts during his unauthorized absence and acknowledged that he intended to travel across Thailand and Laos and into Vietnam with the intent to contact the Viet Cong or North Vietnamese regulars and talk with them "of certain moral responsibilities: (1) Duties to God; (2) duties to fellow man. In other words, I feel that it is the responsibility of all men to go out and make peace regardless of what sacrifices they may have to make and it is for this reason that I decided to go out and attempt to meet with the enemy and teach him something of Christianity and of moral responsibilities. * * * [Later, Johnson expressed to a government agent] his desire once more to contact the North Vietnamese in his crusade for peace and morality among the enemy. He was apprehended before he could begin his mission.
Charged with several crimes, including an attempt to violate Section 904—remember, Johnson never even reached the Vietnamese communists—his conviction was reversed by the Court of Military Appeals strictly on Miranda-like “failure to advise” grounds. The opinion, however, is clear that one can be charged with even an attempt to violate Section 904 without ever having consummated the crime.
The second federal statute for consideration is Title 18, United States Code, Section 953, known as the Logan Act:
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 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.
Section 953 was at the core of Agee v. Muskie, decided by the United States Court of Appeals for the District of Columbia Circuit in 1980.
Rogue CIA employee Philip Agee (represented by Melvin L. Wulf, late head of the ACLU) successfully challenged a State Department regulation allowing for revocation of an American citizen’s passport because he had not yet been charged with a crime. However, certain aspects of the Agee case speak loudly about John Kerry’s criminal behavior. Agee, at that time the most outspoken and vicious opponent of CIA clandestine activities, proposed to the Iranian militants that they offer a deal to our government: return of the embassy hostages in exchange for all CIA files on its Iran operations since 1950.
On that basis, the government prepared a draft indictment which appears as an appendix to the court’s opinion.
The Grand Jury charges:
From on or about the 4th day of November 1979 until on or about the 24th day of December, 1979, (an Iranian), and (an Iranian), and a large group of other Iranians whose names are to the Grand Jury unknown, hereinafter referred to as "Iranian Terrorists", constituted a "foreign government" as defined by 18 U.S.C. s 11, in that they were a faction and body of insurgents within Iran, a country recognized by the United States and with which country the United States was at peace; that during the aforesaid period Philip Agee, herein charged as the defendant, a citizen of the United States, then in the vicinity of Hamburg, Germany, did, without authority of the United States, directly and indirectly carry on correspondence and intercourse with the aforesaid body of insurgents constituting a foreign government and with officers and agents thereof, with intent to influence the measures and conduct of said foreign government and of the officers and agents thereof in relation to disputes and controversies between said foreign government and the United States, and to defeat the measures of the United States in such disputes and controversies, in that within a few weeks before the 23rd day of December 1979, the said Philip Agee did communicate, correspond, and have intercourse with the aforementioned Iranian Terrorists by counseling, and suggesting to them, in relation to their dispute and controversy with the United States that they could prevail in their unlawful demands on the United States by forcing the United States contrary to the authority thereof, by extortion, to deliver into the possession of the aforesaid Iranian Terrorists constituting said foreign government, certain United States property, to wit, all records of the Central Intelligence Agency of the United States (CIA) on CIA intelligence operations in Iran for the past 30 years, in return for the release by said Iranian Terrorists of upwards of 50 citizens of the United States who were duly accredited to the official staff of the United States Embassy in Tehran, Iran, and who were then being threatened with execution and being unlawfully held and confined within the United States Embassy at Tehran, Iran by force by said foreign government as hostages in its dispute and controversy with the United States; all in violation of 18 U.S.C. ss 953.
Given Title 10, Section 904 and Title 18, Section 953, there is no doubt whatsoever that intercourse with the enemy and intercourse with a foreign government with intent to “defeat the measures of” the United States constitute federal crimes.
There is also no doubt that under Dickenson, Batchelor, Olson and Johnson, respectively, reservists are subject to Section 904, criminal intent is not necessary for conviction, providing propaganda to the enemy can constitute commission of the crime, and even an unsuccessful attempt is punishable.
By logical extension, the same is true under Section 953 of the Logan Act, as the draft indictment of Philip Agee makes eminently clear.
Our major premise having been established, this leaves only our minor premise to be examined.
It has long been well known that in the early 1970s, the North Vietnamese and their southern Viet Cong allies maintained representatives in Paris, and that various American citizens—among them Jane Fonda—made pilgrimages to meet with them, absorb the current party line, and spread their communist propaganda.
In 1970, John Kerry was one of those pilgrims. When he went to Paris, he was a citizen of the United States. He was still a member of the United States Navy. And clearly he lacked any authority from the government to act on its behalf.
We do not have to speculate about Kerry’s activities in Paris because he openly admitted what he did there. During the question and answer period following his April 22, 1971 televised testimony before the Armed Services Committee of the United States Senate, Kerry said:
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 and of all eight of Madam Binh's points it has been stated time and time again, and was stated by Senator Vance Hartke when he returned from Paris, and it has been stated by many other officials of this Government, if the United States were to set a date for withdrawal the prisoners of war would be returned.
Even today, knowing what we know about the Vietnamese communists and about John Kerry, it is difficult to grasp the enormity of what he was confessing to. As an American citizen and a member of the United States Navy—while his former comrades and countless others were fighting and dying in Vietnam at the hands of Viet Cong guerillas and North Vietnamese regulars—Kerry consorted with the Viet Cong representative and discussed (“talked with,” he euphemized) her “plan.” That obscene plan included a trade: the return of our POWs for a withdrawal of American forces. As John O’Neill expressed in his important bestselling book Unfit For Command, “. . . America could have its POWs back only if we agreed that we lost, then surrendered, and then set a date to leave.”
Kerry’s wartime trip to Paris was confirmed about six months ago by a campaign spokesman, who tossed it off as a mere “fact-finding” excursion.
Yet Kerry was apparently so impressed with the “facts” he found in company with the Viet Cong and North Vietnamese that a few months after his return from Paris he had the effrontery to urge the President of the United States to accept his communist hosts’ plan for “peace” in Vietnam.
In sum, John Kerry—an American citizen and a naval officer, with no authority granted by his government—made arrangements while in the United States to meet with America’s enemies. He then traveled across the Atlantic, conferred with the communists in Paris, absorbed their terms for “peace” in Vietnam, returned to the United States to publicly endorse monstrous plans that trafficked in the lives of our POWs, and by so doing “defeat[ed] the measures of the United States.”
In this, John Kerry shares the unpatriotic company of Dickensen, Batchelor, Olson, Johnson, Agee and Hanoi Jane Fonda—all violators of federal “intercourse with the enemy” laws.
Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, specializes in federal appeals. Erika Holzer, a lawyer and novelist, is co-author, with Professor Holzer, of Fake Warriors: Identifying, Exposing and Punishing Those Who Falsify Their Military Service. A second edition is forthcoming with a new preface entitled “John Kerry: The Ultimate Fake Warrior.”