[Airbornelawyer]

Below are some of the crimes Lt. Kerry USNR committed as a Ready Reservist, while he was acting as a leader of Vietnam Veterans Against the War:

1. Lt. Kerry attended many rallies where the Vietcong flag was displayed while our flag was desecrated, defiled, and mocked, thereby giving aid and comfort to the enemy.

2. Lt. Kerry was involved in a meeting that voted on assassinating members of the US Senate.

3. Lt. Kerry lied under oath against fellow soldiers before the US Senate about crimes committed in Vietnam.

4. Lt. Kerry professed to being a war criminal on national television, and condemned the military and the USA.

5. Lt. Kerry met with NVA and Vietcong communist leaders in Paris, in direct violation of the UCMJ and the U.S. Constitution.

Lt. Kerry by his own words & actions violated the UCMJ and the U.S. Code while serving as a Navy officer. Lt. Kerry stands in violation of Article 3, Section 3 of the U.S. Constitution. Lt. Kerry's 1970 meeting with NVA Communists in Paris is in direct violation of the UCMJ's Article 104 part 904, and U.S. Code 18 U.S.C. 953. That meeting, and Kerry's subsequent support of the communists while leading mass protests against our military
in the year that followed, also place him in direct violation of our
Constitution's Article 3, Section 3, which defines treason as "giving aid and comfort" to the enemy in time of warfare.

1. Jurisdiction. LT Kerry was not subject to the UCMJ. Under the UCMJ, a reservist is not subject to the UCMJ unless on active duty or inactive duty training (i.e., during drills) UCMJ Article 2, "Persons subject to this chapter", states in paragraph (a)(3): "Members of a reserve component while on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal Service."

No punitive article of the UCMJ, whether the above cited Art. 104 or Articles 88 or 133 (or others), applies to LT Kerry for activities when he was a member of the Ready Reserve not on either active duty or inactive duty training status.

2. 18 U.S.C. 953. This statute is "Private correspondence with foreign governments"and was enacted in 1799. It states, in relevant part, that "[a]ny 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."

Since 1799, exactly two people have been indicted udner this offense, and neither was convicted. Therefore, the statute has never been tested. It is likely unconstitutional under the First Amendment.

3. Treason. The quoted article states that the Constitution "defines treason as 'giving aid and comfort' to the enemy in time of warfare." This is not accurate. Treason is also highly inflammatory and should not be charged casually. As Chief Justice Marshall noted in the first major Supreme Court case on treason: "As there is no crime which can more excite and agitate the passions of men than treason, no charge demands more from the tribunal before which it is made, a deliberate and temperate inquiry. Whether this inquiry be directed to the fact or to the law, none can be more solemn, none more important to the citizen or to the government; none can more affect the safety of both." Ex parte Bollman & Swartwout, 4 Cranch 75 (1807).

U.S. Constitution, Art. III, Section 3 states: "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."

The two offenses that constitute treason are thus: (1) levying war against the US and (2) adhering to the enemies of the US, giving them aid and comfort. For the latter offense, there are two elements. You must have the specific intent of adhering to the enemy and you must commit an overt act to give the enemy aid and comfort (with two witnesses or a confession to the act). In cases of treason, the intent is to benefit the enemy's war effort and to harm that of the US (it doesn't have to be the only intent, but it does have to be present). You have to have intended to betray your country ("To make treason the defendant not only must intend the act, but he must intend to betray his country by means of the act." Cramer v. United States, 325 U.S. 1, 31 (1945)). In Cramer, Justice Jackson further stated, "a citizen may take actions, which do aid and comfort the enemy- making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength - but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason." Id. at 29.

Kerry may be guilty of other things, but it would be hard to prove treason. The other VVAW members who conspired to kill government officials might have been chargeable as conspiring to commit treason by levying war against the US, but even this might be a hard case to make.

Seditious conspiracy (18 U.S. Code 2384) or advocating overthrow of the government (18 U.S. Code 2385) are more likely charges. Section 2387 might have also been applied to VVAW (that statute covers, among other things, willfully causing or attempting to cause insubordination, disloyalty, mutiny or refusal of duty in the armed forces). Unlike treason, however, these are subject to First Amendment protection up to a point. And there are a slew of regular criminal offenses, as well more minor laws, that were routinely violated by Kerry and his real band of brothers in the VVAW.

Many of these other offenses would have been hard to prove in a court of law, but the court of public opinion is a different place. Avoiding the inflammatory charge of treason, and sticking to the more blatantly offensive activities of Kerry and his comrades, seems a more prudent course.