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Legal Terrorism By: Henry Mark Holzer and Erika Holzer
FrontPageMagazine.com | Tuesday, August 10, 2004


Presidential nominee John Kerry is working overtime to blunt growing criticism of his Vietnam service and simultaneously reassure uncommitted voters that his acts of alleged heroism as a Swift boat officer—over 30 years ago—far outweigh his antiwar history.  He has made his medals—a Silver Star, a Bronze Star, and three Purple Hearts—a  central focus of his candidacy.  He has made a colossal mistake.

No surprise, then, that Swift Boat Veterans For Truth, an organization unaffiliated with any political party—whose members were no strangers to Lieutenant Kerry 30 years ago—last week began airing a dramatic, highly effective TV spot that flatly disputes Kerry’s claims, and, worse for Kerry, his integrity. 

 

Predictably, Kerry’s lawyers responded with a venomous and distorted account of the TV spot and the veterans who had organized it.  Marc Elias, Esq., General Counsel for the Kerry-Edwards campaign, joined by Joseph Sandler, General Counsel for the Democratic National Committee, faxed to TV station managers the kind of intimidating message that gives lawyers a bad name.

 

The three-page letter is a not-so-thinly veiled threat with only one possible goal: to scare the stations into dropping the ad.  How?  By misstating provable facts that back up the ad’s claims, and by shamelessly misrepresenting the law.  How, specifically?  On the legal side of the ledger, by trotting out the standard bogeymen for TV stations: false and misleading advertising, frowned on by the FTC; the specter of libel suits; dark hints of serious damages unless, “in the public interest,” station managers refuse to run the ad. 

 

On the factual side, one assertion by Kerry’s lawyers is that Swift Boat Veterans For Truth is a “sham” organization.  Why?  Because its hard-hitting controversial ad was “spearheaded” by a “Texas corporate media consultant” and “financed largely” by a Houston homebuilder.  Since when does the support of a businessman who believes the claims of a large number of Navy Vietnam veterans make the entire organization, ipso facto, a “sham”—i.e., a fake?  Only the naïve would regard this contentless assertion as having any substance and not recognize it for what it is: an ad hominem attack.

 

As to Navy physician Louis Letson (whom Elias and Sandler attempt to demean by putting Dr. Letson’s title in quotation marks), Kerry’s lawyers descend to a level that is truly shocking.  They assert that Dr. Letson was “pretending to be the doctor who treated Kerry for one of his injuries,” and “not the doctor who actually signed Senator Kerry’s sick call sheet.”  They assert that it was someone else who “actually signed” the sheet.  They assert that “Letson is not listed on any document” as having treated Kerry after December 2, 1968. 

 

Fact (based on a notarized statement of Louis Letson): The injury Dr. Letson treated Kerry for occurred when Kerry and two others (a fellow lieutenant and a crewman), seeing movement from an unknown source, opened fire.  Kerry’s rifle jammed, and in the absence of return fire, he resumed firing with a grenade launcher, spraying his own boat and causing a tiny piece of shrapnel to be embedded in his arm.  The lieutenant and crewman, parties to the incident, accompanied Kerry to sick call, where they disputed Kerry’s claim that he’d been wounded by hostile fire and provided an account of the actual episode to Dr. Letson—after which Letson removed the tiny fragment with tweezers and covered Kerry’s scratch with a band aid. The lieutenant-witness is alive and available to testify, in detail, as to what happened.  As for the maligned Dr. Louis Letson, he is entitled to say, as he did in the Swift Boat TV ad: “I know John Kerry is lying about his first Purple Heart because I treated him for that injury.”

 

Fact (based on a sworn affidavit by Grant Hibbard): Next morning Kerry showed up at Division Commander Grant Hibbard’s office.  Hibbard had already investigated the incident and spoken to the lieutenant-witness.  Characterizing Kerry’s purported injury as a “rose thorn” scratch insufficient to justify a Purple Heart—awarded for hostile-fire wounds requiring medical attention, and excluding wounds that are accidental and self-inflicted [except non-negligent ones sustained in battle]—Commander Hibbard summarily turned down Kerry’s request for a Purple Heart and dismissed him.  Commander Hibbard, who participated in the Swift Boat TV ad, is willing to testify, in detail, as to what happened. 

 

Fact (based on rotation records and Kerry’s website): Some three months after everyone who was personally familiar with Kerry’s bogus claim to a Purple Heart had left Vietnam, Kerry persisted in the claim for his “rose-thorn” injury, managing  to convince an officer that he had earned the Purple Heart.  Yet that officer had no personal information about the incident, no connection to Kerry’s small naval unit, and no knowledge that Hibbard had rejected Kerry’s earlier request for the medal.  Whenever Kerry has been pressed to produce evidence justifying this first Purple Heart, he cites Dr. Letson’s tweezers treatment—on the basis of which Commander Hibbard denied the medal.  As to the Purple Heart that was awarded, there is not a shred of documentary evidence to justify it.

 

Some lawyers, when confronted with too much damning evidence, fall back on the old shotgun approach.  With Swift Boat Veterans For Truth, Elias and Sandler are facing off against an organization with a membership of over 250 [and growing daily since the ad ran], led by a retired rear admiral and comprised of vice admirals, commanders and hundreds of seamen.  A large majority of men who served on Swift boats in Kerry’s naval unit have joined the organization.  Kerry’s lawyers sought to poke holes in this formidable opponent’s accusations (thus deflecting attention from the holes in their own) by giving a false impression of the organization’s numbers.  After calling the Swift Boat ad “an inflammatory, outrageous lie”—and making much of the fact that only “twelve men ‘appear’ to make statements about Senator Kerry’s service in Vietnam”—the lawyers make it seem as if the ad were the work of a disgruntled few.

 

And they don’t just avoid talking numbers; they choose not to mention the background and credentials of some of the seemingly disgruntled malcontents who “appear” to have served with Lieutenant John Kerry.  Were Elias and Sandler seriously accusing Rear Admiral Roy Hoffman, who heads Swift Boat Veterans For Truth—and who was Commander of all Swift boats in Vietnam during the period of Kerry’s abbreviated tour of duty (late November ’68 to mid-March ’69)—of telling an “outrageous lie” when he accuses Kerry in the ad of “not being honest”?

 

Possibly the most effective technique employed by Kerry’s lawyers—a straw man they constructed in a transparent effort to mislead station managers and, in the process, an uninformed public—is about how Swift boats in Vietnam operated: Anyone who technically wasn’t a crewmate of Kerry’s and didn’t serve on either of his two Swift boats is—without more—an unreliable eyewitness to anything Kerry did or said.

 

But there is more---and from a very knowledgeable source.  John O’Neill, partner in a Houston law firm and a founding member of Swift Boat Veterans for Truth, anticipating the controversy the TV spot would generate and the need for documentation, sent a letter to station managers on August 2 (three days before the team of Elias and Sandler shifted into gear).  The letter itself, eight pages long, is buttressed with 27 exhibits—roughly 100 pages of what O’Neill correctly labeled “factual support for the advertisement.”  What O’Neill explains about how the Swift boats actually operated should put to rest, for all but those who have a political ax to grind, any doubt about eyewitness reliability being tainted by non-crewmates.              

 

Kerry’s four-month tour of duty was with Coastal Division 11, a small naval unit of roughly a hundred sailors and fifteen to sixteen boats, where Kerry spent most of his time.  These boats operated in even smaller groups of two to six and, quoting O’Neill: “Each of these boat officers operated directly with John Kerry on numerous occasions.”    Four of these same officers are featured in the Swift boat ad, and have backed up their eyewitness accounts of Kerry’s lies with affidavits.  A retired enlisted man served on one of the boats operating in close proximity to Kerry’s—a few yards away, to be precise—lending credence (again, backed up by affidavit) that “John Kerry lied to get his Bronze Star.  I know, I was there, I saw what happened.”  As to others in the ad—the captain who was Kerry’s direct commander in Coastal Division 11, another captain who was his administrative commander, and, as mentioned above, the rear admiral in command of all Swift boats during Kerry’s tour, O’Neill writes: “Each of these commanders interacted on numerous occasions with Kerry” (as Kerry’s authorized campaign biography readily acknowledges).

 

Swift Boat Veterans For Truth is comprised of men who honorably served their country, many of them awarded medals that Kerry never earned.  What these veterans have earned is the right to go public with provable facts without suffering the indignity of being labeled liars and shuffled aside in favor of the Kerry campaign’s revolving group of eight veterans from Coastal Division 11—none of whom, according to O’Neill, served with Kerry as much as two months.  As for the charge that running the TV spot is a dirty campaign tactic instead of what it is—a matter of conscience—and that coming forward 30 years after the events in question suggests bad motives, the proper response to such a charge is quid pro quo.  Kerry’s concocted stories fall within the same time frame.  How could men who know otherwise—who knew him then—remain silent?  

 

It was not until halfway through their letter that the lawyers accused the Swift Boat Veterans For Truth of libel.  By leveling that very serious charge, they purported to know something about libel law—especially about several legal principles that negate any legitimate libel claim by Kerry.

 

First, any statement made in the TV spot that is an “opinion”—e.g., Kerry’s “account of what happened and what actually happened are the difference between night and day” [Chenoweth]; Kerry “lacks the capacity to lead” [Lonsdale]; Kerry “betrayed all his shipmates . . . . “ [Hibbard]—cannot constitute libel.  Only the false statement of facts are capable of being libelous.

 

Second, many of the factual statements are utterly benign, and thus could never be actionable.  For example, “I served with John Kerry” [French, Elder, Hildreth].  That leaves factual statements like Hibbard’s: Kerry “lied before the Senate.”  In libel law, truth is an absolute defense.  If, for example, it is true that Kerry “lied before the Senate,” that Kerry “has not been honest about what happened in Vietnam” [Elliott], that Kerry “is lying about his record” [French], and that Kerry “lied to get his Bronze Star” [O’Dell], Kerry has no case for libel.

 

Third, even without the absolute defense of truth, Kerry, as a public official, has a constitutionally required burden of proof in a libel case to produce evidence showing that the Swift Boat Veterans For Truth witnesses either knew their statements were false, or  recklessly disregarded knowledge of falsity.  Kerry’s lawyers must realize their client can never satisfy this burden of proof.

 

For these reasons, and others, the democrat lawyers’ threatening letter to TV station managers was an unconscionable attempt to protect their candidate from the damning truths spoken by Vietnam veterans who have earned the right to exercise their First Amendment freedom of speech.

 

To their credit, TV stations in some marketplaces have refused to surrender to the bullying tactics of Kerry’s lawyers.  This presents the democrat party and the Kerry campaign with two choices: put up or shut up.

 

They can slink off the field for having threatened TV stations with a baseless libel lawsuit, or, despite how they eventually hedge their threat, they can actually sue those TV stations that aren’t intimidated.

 

The latter course would be utter disaster—and Kerry’s lawyers have to know this.  Kerry would no longer be able to hide behind spin masters.  He would have to file a written complaint.  Sworn depositions (including Kerry’s) would have to be taken.  He would have to respond to requests for factual admissions.  He would have to answer written interrogatories.  He would have to produce documents.

 

There would have to be a trial.  That means sworn testimony, cross examination, documentary evidence—all in front of a jury, reporters, perhaps even TV cameras.

 

Once all that happened, America would know who told the truth—and who lied.

 

Henry Mark Holzer [www.henrymarkholzer.com; hank@henrymarkholzer.com], Professor Emeritus at Brooklyn Law School, specializes in federal appeals.  Erika Holzer [www.erikaholzer.com] is a lawyer and novelist.




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