A FRIEND OF MINE an exradical who became a conservative and Deputy Sheriff of a Vermont town has a bumper sticker on his pickup truck that reads "Hanoi Jane Not Welcome Here." I admit to always having felt uncomfortable reading it, since it seemed to me to be an unnecessary reminder of the terrible, polarized atmosphere surrounding the war in Vietnam. It was a time when ultraconservative supporters of the war showed their anger by what I thought was an unjustified demand that she be tried for "treason," because of what she had said in her trip to North Vietnam in the 1970s. After all, Americans had a constitutional right to oppose what some thought was a wrong and immoral war, and it might have been poor tact to make those points in the country our troops were fighting, but it was no different than if she had made those arguments here.
Now, decades after Jane Fonda’s trip, Henry Mark Holzer and Erika Holzer, both of them writers as well as lawyers, have published a book that seeks to make the case that in fact, Jane Fonda engaged in acts that make her guilty of the actual legal grounds for treason, which as laid out in the Constitution, defines the act as "levying War against them, or, in adhering to their Enemies, giving them Aid and Comfort." To be found guilty, a person had to have two witnesses to the overt act they committed, or have made a full confession in an open court.
In their book, Aid and Comfort:’ Jane Fonda in North Vietnam (Jefferson, North Carolina: McFarland and Company, 2002. 206 pp. $39.95), Henry Holzer makes it clear in his introduction that when he began his book, he too had no opinion about whether Jane Fonda had committed treason when she traveled to Hanoi in July of 1972. He decided to take a closer look at the actual text of her propaganda broadcasts made in Hanoi, what she said and did during her visit there, and what effect it had on those GI’s who were being held as POW’s. His conclusion was simply that there was "enough evidence to submit to a jury, that the jury could have convicted her, and that a conviction probably would have been upheld on appeal." Of course, not only did that not take place, but Jane Fonda went on to resume an illustrious career in Hollywood, has received numerous awards, and has become, as Holzer writes, "an American icon."
The Holzers’ book, then, is written as an attempt to pursue justice. For this reader, the first part of the book is the most compelling, and indeed, a harrowing read. What the Holzers reveal is the full story of the torture, degradation and violations of common humanity inflicted upon American POWs by the North Vietnamese Communists. Of course, reports of this have been made by some of those who suffered directly. But with the attention of Americans and the media at the time, and long after, on the horrors of the war, somehow or other, the story of what happened to American prisoners of Hanoi got lost. The Holzers shed more light on this, and bring to the story the sordid role played by Fonda in responsibility for the misery they suffered.
As the Holzers show, by the time Fonda left for Hanoi, she was already immersed in the radicalized New Left culture of the late 1960s, and had already issued statements accusing American soldiers of acting as virtual "war criminals," for engaging in acts of torture, rape and murder of innocent Vietnamese. But when she tied up with Tom Hayden, who had moved his activism in the direction of creating his own new antiVietnam war organization, she came full circle into the role that was awaiting herchief propagandist in the United States for the North Vietnamese regime.
Her activities took place in the context of the completely vicious and inhumane treatment of American prisoners of wartreatment that violated every main tenet of the Geneva Convention, and which was on the level of the treatment given to concentration camp prisoners by the Nazis and by the Japanese treatment of POW’s during World War II. It was, one prisoner quoted in the book writes, "a nightmare of hellish proportions that transformed civilized human beings into primal animals struggling to cling to some fleeting sense of what it means to be alive." So brutal was the treatment that it will come as a shock to those former protestors of the War who spent so much time blasting their fellow Americans for inhumane behavior. After reading the horrendous details of their brutal treatment—worse than most of us can begin to imaginewe learn that it was this group of men who became "Jane Fonda’s captive audience for her performance in wartime North Vietnam."
What the Holzers do is to acquaint us for the first time to the full story of what Fonda said in her many radio broadcasts. These programs, in which Fonda obviously read aloud scripts often prepared for her by the North Vietnamese, accused the United States of purposefully bombing nonmilitary targets, of using illegal chemical weapons, of forcing the troops to act as war criminals, and of fighting against the side of the people of Vietnam. The US goal, she had said, was to make Vietnam "into a neocolony of the United States." Repeating virtually every propaganda claim of the North Vietnamese Communists, Fonda sought to encourage mutiny and desertion by the troops, whom she told them, were only justifying the murder that they were "being paid to commit." If they knew the truthwhich she was giving themthey "wouldn’t fight…wouldn’t kill."
In addition, Fonda attended forced and staged meetings with American POWs, who refused to cooperate or talk with her, and who went out of their way to ignore the pleas of their captors to acquiesce in the propaganda. Nevertheless, Fonda immediately went on the air and lied about her meetings, presenting phony stories about how well the captured troops were being treated at the infamous "Hanoi Hilton" POW camp. "They are all in good health," she said in yet another broadcast; "We had a very long…very open and casual talk. We exchanged ideas freely," and these men told her about their "sense of disgust of the war." None of what she said, of course, had an ounce of truth to it. As the Holzers put it: "These lies were simply more canned North Vietnamese propaganda, broadcast in furtherance of Fonda’s intent to damage the United States and help the North Vietnamese."
The second part of the book attempts to lay out carefully the case for a wouldbe prosecution, and to levy the indictment that never, but they argue should have, taken place. First, they argue that her activities clearly fit the bill of giving distinct "aid and comfort" to America’s enemies. It demoralized many of the soldiers, made things worse for the POWs, humanized the enemy to Americans at home, and gave the Hanoi regime confidence that it should hold on in the face of battlefield reverses, because propaganda such as that by Fonda would eventually allow them to gain the upper hand. We read the words of analyses by propaganda experts of her words, which makes it clear, as one former Brigadier General wrote, the intent of which was "to demoralize and discourage, stir dissent, and stimulate desertion."
Next, the Holzers lay out the legal record pertaining to those who in past cases were found guilty of having committed treason according to the legal, Constitutional prerequisite. They do this by a sustained and reasonable discussion of major cases that came before the Supreme Court of the United States, and after due deliberation, the court established propositions that had to stand for an individual to be found guilty of treason. They include treasonable intent and an overt act of betrayal; intent that can be proved circumstantially, and an overt act which must be witnessed or proved by two witnesses to have provided actual aid and comfort to an enemy, and which must be decided by a jury trial. They continue with a discussion of key World War II treason cases, including Chandler v. United States; Gillars v. United States; (the "Axis Sally" case) Best v. United States; Burgman v. United States and D’Aquino v. United States, (the famous "Tokyo Rose" case.) and finally, Kawakita v. United States. In all of these cases, in which the defendants were found guilty, they argue that the law of treason was legally settled, and clarity as to what treason is has been fully established. What remains is simply who has committed a crime, and whether a jury finds that an American had the intent of betrayal and had committed an overt act that offered the enemy aid and comfort. They then attempt to show how Fonda’s broadcasts and activities fall into precisely the realm of treason as has been previously legally defined.
A problem, however, exists in their discussion of some of the World War II cases. Stephen Schwartz has argued, for example, that the conviction of D’Aquino was really a case of "irresponsible journalism" and that she was in reality "a victim of an outrageous injustice." In her case, her broadcasts were not propaganda; others who broadcast with her were never prosecuted; many women aside from her made similar broadcasts and in fact she had already been exonerated before returning to the US by a full Army investigation, sustained by the Department of Justice. Nevetheless, D’Aquino was indicted and convicted on one count, and careful scrutiny indicates that the indictment was hardly fair. Eventually, D’Aquino was fully and unconditionally pardoned by President Gerald Ford in 1977, and her citizenship was restored. Similarly, the constitutional historian Stanley I. Kutler analyzes D’Aquino’s case, and reaches the conclusion that she was a "relatively insignificant individual who classically confronted political justice" and whose broadcasts had a "legendary mystique that heightened her importance far beyond the innocuous substance of her activities." Her indictment was more the result of a campaign by unscrupulous journalists and timid bureaucrats who used her "to symbolize the stringent, politically expedient meaning of loyalty." Here, both the conservative journalist Schwartz and the left-liberal historian Kutler reach similar conclusions about the viability of "Tokyo Rose’s" conviction.
This, of course, does not mean that Fonda was not guilty of treason. It does, however, indicate how sometimes indictments and even convictions can be issued which upon examination, prove themselves unwarranted. In a way, the possible innocence of D’Aquino only makes it clear how much closer to the prerequisites of treason the words and activities of Jane Fonda were. What Fonda did, in fact, far exceeds the actual conduct and activities of some of those who were convicted and imprisoned for their treasonous activity in World War II. The section of their book on Fonda and the law of treason lay out, as a good prosecutor would, the actual grounds on which an indictment could have been handed down. They are, in fact, substantial. In her case, unlike that of D’Aquino, Fonda admitted that she had made the broadcasts, and one did not even have to find two witnesses to the broadcastsalthough, since the GI’s were forced to hear them, many could be found. And as the Holzers argue, the testimony in court of those expert witnesses on how the type of psychological warfare she engaged in could be seen as giving "aid and comfort" would have undoubtedly had a "profound impact on a Fonda jury."
The question, then, is why no such trial was ever held. The Holzers have a simple answer. The US Government, worrying that an indictment and trial of Fonda could backfire given the strong anti-war protest and movement that had emerged at home, capitulated and backed away from any prosecution. Even the anti-Communists in charge of the House Internal Security Committee were so scared of taking on Fonda that they refused to subpoena her to testify despite demands from many in Congress that they do so. The Committee did raise issues pertaining to her trip, but the Justice Department refused to pursue the matter, issuing instead what the authors call a "glaringly deficient Memorandum of Law," that served as a legal excuse to avoid doing anything. The Department’s representative for Internal Security, they show, offered what they call "an embarrassingly lame" attempt to stress concern for protection of Fonda’s civil liberties! The result was that Justice came forth with the recommendation "that Fonda not be prosecuted for treason," and the chief law enforcement officer of the US- the Attorney General- agreed. This was, they argue, a clear "political decision." The very fame that made her propaganda effective now worked to protect her at home, where she had become a major celebrity and star. If prosecuted, Fonda, with the aid of a mass movement and a sharp left-wing lawyer, would, the Department feared, "make a monkey out of us."
And so the Holzers close with the legal indictment they argue could have been made, and never was. They are not naïve, and they realize that such an indictment will never be made. But reading it is a shock and an eye-opener. In their conclusion, the Holzers argue that as ill-advised as the US role in Vietnam might have been, that should have no bearing on evaluation of what Jane Fonda did there. One could, if one wanted, oppose the war politically. Thousands did. What Jane Fonda did, however, was something else. It was, the Holzers attempt to prove, actual treason. Some will not agree, but few who read this book will come out of the experience sympathetic to her actions. What she did was sordid, vile, unpatriotic and unconscionable, and as the Holzers write, "beneath contempt." She could have been indicted, and a jury of Fonda’s peers would have had the opportunity to judge her actions. Now, we have only the Holzer’s book, which those who know that morality and decency have no statute of limitations have an obligation to read. They know that Fonda will never be indicted. But they are right that there is another kind of indictmenta moral oneand those who care about morality must never remain silent.
With Jane Fonda still a celebrity and an icon, and as she goes on interviews and makes it clear that she has no intention of apologizing for what she did in Hanoi back in 1972aside from vague statements that she is sorry she hurt the feelings of some troopsit is more important than ever to treat Fonda with the contempt that she deserves. In their closing sentence, Henry and Erika Holzer write: "When we pass this moral judgment on Jane Fonda, we recognize that moral values are a transcendent, indispensable, concern to civilized peopleand in possessing, defending and living by those values, we rise above those who betray them." Amen.