It has long been a tenet of American foreign policy that politics stop at the water's edge. The tradition is that too much is at stake to allow partisan interests to take precedence over the national interest. Sometimes this principle is honored, sometimes not, but either way, the water in question is the Atlantic and Pacific Oceans.
What happens when water floods an important American city, leaving thousands dead and hundreds of thousands homeless, is something else again. It will be no easier to cordon off U.S. foreign policy from the effects of Hurricane Katrina than it has been to protect New Orleans from the waters of Lake Pontchartrain.
That a purely domestic event should have profound consequences for American foreign policy is not in and of itself new. U.S. prestige suffered a blow in 1992 when the Los Angeles riots were broadcast around the world. By contrast, Ronald Reagan's firm handling of the air-traffic controllers strike a decade before communicated resolve and firmness.
The initial federal and local reactions to Hurricane Katrina, however, have sent the opposite message. The images seen around the world communicated a lack of competence and considerable chaos and suffering. The dominant overseas reaction has been sympathy mixed with shock and horror at what was seen by many as evidence of racism and a reminder of the extreme poverty in which many Americans live. America's enemies indulged in schadenfreude. Hugo Chávez could not resist the chance to taunt President Bush; North Korea radio linked the U.S. "defeat" in Iraq with its "defeat" by Katrina; jihadists celebrated what had happened and the possibility the price of oil would soar even higher. The world's only remaining superpower appeared to be anything but. In an era of 24-hour satellite television and the Internet, public diplomacy is about who Americans are and what they do, not just what they say. Unlike Las Vegas, what happens here does not stay here.
The global impact goes beyond impressions. A priority of this administration's foreign policy is to promote democracy around the world. But the attractiveness of the American model, and the ability of the United States to be an effective advocate for more democratic, capitalist societies, which had already been weakened by the disarray in Iraq, is now weaker still as a result of the disarray at home. It will be more difficult to make the case for free markets and more open societies if the results of such reforms come to be associated with the disorder seen in New Orleans.
Katrina will also have an impact on how citizens of the United States view foreign policy. The enormous problems and costs associated with the hurricane will raise additional questions about the ability of the United States to "stay the course" in Iraq. The aftermath of the catastrophe will inevitably increase political pressure on President Bush to begin to reduce the U.S. involvement in Iraq and refocus U.S. resources at home, be it on the expensive reconstruction of flood-ravaged areas or on improving the country's capacity to deal with future disasters of this magnitude.
A similar debate can be expected about the military. The National Guard is being used in unforeseen ways in Iraq, and it is clearly needed in foreseeable ways at home. The National Guard will not be able to do it all. Homeland security requirements, be they derived from hurricanes or terrorists, are and will be extensive. This reality highlights the fact that the Guard will not forever be available for overseas duty on anything like the current scale. The need clearly exists to expand the active duty Army, now too small to carry out its assigned tasks of fighting traditional wars and dealing with difficult aftermaths such as we are witnessing in Iraq.
U.S. energy policy or, to be coldly honest, the lack of one, is another reality that Katrina exposes. This time it was a storm in the vicinity of important refineries, but next time it could be instability in any one of the major oil - producing countries or simply the cumulative result of the growth in world demand for oil outstripping the growth in world supply. Americans cannot drill or diversify or substitute their way out of this shortage. The United States must act to cut its consumption of oil, something that can be accomplished most efficiently with new regulations mandating substantially higher fuel economy for all vehicles sold in the country. Unfortunately, this is precisely what the legislation recently passed by Congress failed to do.
The United States emerged from the Cold War as first among unequals, with an extraordinary opportunity to shape the world. This opportunity rested on many factors, but above all on a foundation of the country's strength. U.S. power — military, economic, diplomatic, cultural — is great by any yardstick and gives the United States the ability to get things done in the world at the same time it works to discourage other powers from challenging it.
Hurricane Katrina has delivered a painful but important warning. In ways similar to the 9/11 attacks four years ago, it demonstrates that U.S. power, however great, is not to be confused with invulnerability. In addition, U.S. power, however great, is still limited. And U.S. power, however great, cannot be taken for granted. In the end, American power is a reflection of the strength of the American economy and the cohesion of American society. Any country must balance what it allocates for guns and what for butter; the United States is no exception. Although we are wealthy enough to fund both, we are not wealthy enough to fund both to the extent we are now doing and to keep taxes as low as they are. Something will have to give.
Saturday, September 10, 2005
Friday, September 09, 2005
Intelligence VS. Politics (Jane Fonda)
Actions of Jane Fonda meet the strict definition of treason. The only reason Jane Fonda was not and is not executed or jailed for treason is politics. Jane Fonda survives today as a political icon for those that chose not to defend and extend the institutions and principles of the United States of America Constitution, United States of America Bill of Rights, and United States of America. Do not need and do not use politics to hate Jane Fonda. History has recorded the intelligence and politics of Jane Fonda.
Intelligence VS. Politics (United States Constitution; Article III. Judicial Power; Section 3. Treason; Clause 1. Definition and Limitations)
United States Constitution
Article III. Judicial Power
Section 3. Treason
Clause 1. Definition and Limitations
Treason
The treason clause is a product of the awareness of the Framers of the "numerous and dangerous excrescences" which had disfigured the English law of treason and was therefore intended to put it beyond the power of Congress to "extend the crime and punishment of treason." [1283] The debate in the Convention, remarks in the ratifying conventions, and contemporaneous public comment make clear that a restrictive concept of the crime was imposed and that ordinary partisan divisions within political society were not to be escalated by the stronger into capital charges of treason, as so often had happened in England. [1284]
Thus, the Framers adopted two of the three formulations and the phraseology of the English Statute of Treason enacted in 1350, [1285] but they conspicuously omitted the phrase defining as treason the "compass[ing] or imagin[ing] the death of our lord the King," [1286] under which most of the English law of "constructive treason" had been developed. [1287] Beyond limiting the power of Congress to define treason, [1288] the clause also prescribes limitations upon Congress ability to make proof of the offense easy to establish [1289] and its ability to define punishment. [1290]
Levying War
Early judicial interpretation of the meaning of treason in terms of levying war was conditioned by the partisan struggles of the early nineteenth century, in which were involved the treason trials of Aaron Burr and his associates. In Ex parte Bollman, [1291] which involved two of Burr's confederates, Chief Justice Marshall, speaking for himself and three other Justices, confined the meaning of levying war to the actual waging of war. "However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offences. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. So far has this principle been carried, that . . . it has been determined that the actual enlistment of men to serve against the government does not amount to levying of war." Chief Justice Marshall was careful, however, to state that the Court did not mean that no person could be guilty of this crime who had not appeared in arms against the country. "On the contrary, if it be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men, for the treasonable purpose, to constitute a levying of war."
On the basis of these considerations and due to the fact that no part of the crime charged had been committed in the District of Columbia, the Court held that Bollman and Swartwout could not be tried in the District and ordered their discharge. He continued by saying that "the crime of treason should not be extended by construction to doubtful cases" and concluded that no conspiracy for overturning the Government and "no enlisting of men to effect it, would be an actual levying of war." [1292]
The Burr Trial
Not long afterward, the Chief Justice went to Richmond to preside over the trial of Burr himself. His ruling [1293] denying a motion to introduce certain collateral evidence bearing on Burr's activities is significant both for rendering the latter's acquittal inevitable and for the qualifications and exceptions made to the Bollman decision. In brief, this ruling held that Burr, who had not been present at the assemblage on Blennerhassett's Island, could be convicted of advising or procuring a levying of war only upon the testimony of two witnesses to his having procured the assemblage. This operation having been covert, such testimony was naturally unobtainable. The net effect of Marshall's pronouncements was to make it extremely difficult to convict one of levying war against the United States short of the conduct of or personal participation in actual hostilities. [1294]
Aid and Comfort to the Enemy
The Cramer Case
Since the Bollman case, the few treason cases which have reached the Supreme Court were outgrowths of World War II and have charged adherence to enemies of the United States and the giving of aid and comfort. In the first of these, Cramer v. United States, [1295] the issue was whether the "overt act" had to be "openly manifest treason" or if it was enough if, when supported by the proper evidence, it showed the required treasonable intention. [1296] The Court in a five to four opinion by Justice Jackson in effect took the former view holding that "the two-witness principle" interdicted "imputation of incriminating acts to the accused by circumstantial evidence or by the testimony of a single witness," [1297] even though the single witness in question was the accused himself. "Every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses," [1298] Justice Jackson asserted. Justice Douglas in a dissent, in which Chief Justice Stone and Justices Black and Reed concurred, contended that Cramer's treasonable intention was sufficiently shown by overt acts as attested to by two witnesses each, plus statements made by Cramer on the witness stand.
The Haupt Case
The Supreme Court sustained a conviction of treason, for the first time in its history, in 1947 in Haupt v. United States. [1299] Here it was held that although the overt acts relied upon to support the charge of treason - defendant's harboring and sheltering in his home his son who was an enemy spy and saboteur, assisting him in purchasing an automobile, and in obtaining employment in a defense plant - were all acts which a father would naturally perform for a son, this fact did not necessarily relieve them of the treasonable purpose of giving aid and comfort to the enemy. Speaking for the Court, Justice Jackson said: "No matter whether young Haupt's mission was benign or traitorous, known or unknown to the defendant, these acts were aid and comfort to him. In the light of this mission and his instructions, they were more than casually useful; they were aids in steps essential to his design for treason. If proof be added that the defendant knew of his son's instruction, preparation and plans, the purpose to aid and comfort the enemy becomes clear." [1300]
The Court held that conversation and occurrences long prior to the indictment were admissible evidence on the question of defendant's intent. And more important, it held that the constitutional requirement of two witnesses to the same overt act or confession in open court does not operate to exclude confessions or admissions made out of court, where a legal basis for the conviction has been laid by the testimony of two witnesses of which such confessions or admissions are merely corroborative. This relaxation of restrictions surrounding the definition of treason evoked obvious satisfaction from Justice Douglas who saw in the Haupt decision a vindication of his position in the Cramer case. His concurring opinion contains what may be called a restatement of the law of treason and merits quotation at length:
"As the Cramer case makes plain, the overt act and the intent with which it is done are separate and distinct elements of the crime. Intent need not be proved by two witnesses but may be inferred from all the circumstances surrounding the overt act. But if two witnesses are not required to prove treasonable intent, two witnesses need not be required to show the treasonable character of the overt act. For proof of treasonable intent in the doing of the overt act necessarily involves proof that the accused committed the overt act with the knowledge or understanding of its treasonable character.
The requirement of an overt act is to make certain a treasonable project has moved from the realm of thought into the realm of action. That requirement is undeniably met in the present case, as it was in the case of Cramer."
The Cramer case departed from those rules when it held that "The two-witness principle is to interdict imputation of incriminat ing acts to the accused by circumstantial evidence or by the testimony of a single witness." [325 U.S. p. 35.] The present decision is truer to the constitutional definition of treason when it forsakes that test and holds that an act, quite innocent on its face, does not need two witnesses to be transfomred into a incriminating one. [1301]
The Kawakita Case
Kawakita v. United States [1302] was decided on June 2, 1952. The facts are sufficiently stated in the following headnote: "At petitioner's trial for treason, it appeared that originally he was a native - born citizen of the United States and also a national of Japan by reason of Japanese parentage and law. While a minor, he took the oath of allegiance to the United States; went to Japan for a visit on an American passport; and was prevented by the outbreak of war from returning to this country. During the war, he reached his majority in Japan; changed his registration from American to Japanese, showed sympathy with Japan and hostility to the United States; served as a civilian employee of a private corporation producing war materials for Japan; and brutally abused American prisoners of war who were forced to work there. After Japan's surrender, he registered as an American citizen; swore that he was an American citizen and had not done various acts amounting to expatriation; and returned to this country on an American passport." The question whether, on this record Kawakita had intended to renounce American citizenship, said the Court, in sustaining conviction, was peculiarly one for the jury and their verdict that he had not so intended was based on sufficient evidence. An American citizen, it continued, owes allegiance to the United States wherever he may reside, and dual nationality does not alter the situation. [1303]
Doubtful State of the Law of Treason Today
The vacillation of Chief Justice Marshall between the Bollman [1304] and Burr [1305] cases and the vacillation of the Court in the Cramer [1306] and Haupt [1307] cases leave the law of treason in a somewhat doubtful condition. The difficulties created by the Burr case have been obviated to a considerable extent through the punishment of acts ordinarily treasonable in nature under a different label, [1308] within a formula provided by Chief Justice Marshall himself in the Bollman case. The passage reads: "Crimes so atrocious as those which have for their object the subversion by violence of those laws and those institutions which have been ordained in order to secure the peace and happiness of society, are not to escape punishment, because they have not ripened into treason. The wisdom of the legislature is competent to provide for the case; and the framers of our Constitution . . . must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate, than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation." [1309]
Footnotes
[Footnote 1283] 2 J. Elliot, Debates in the Several State Conventions on Adoption of the Constitution (Philadelphia: 1836), 469 (James Wilson). Wilson was apparently the author of the clause in the Committee of Detail and had some first hand knowledge of the abuse of treason charges. J. Hurst, The Law of Treason in the United States - Selected Essays (Westport, Conn.: 1971), 90-91, 129-136.
[Footnote 1284] 2 M. Farrand, op. cit., n.1, 345-350; 2 J. Elliot, op. cit., n. 1283, 469, 487 (James Wilson); 3 id., 102-103, 447, 451, 466; 4 id., 209, 219, 220; The Federalist No. 43 (J. Cooke ed. 1961), 290 (Madison); id., No. 84, 576-577 (Hamilton); The Works of James Wilson, R. McCloskey ed. (Cambridge: 1967 ed), 663-669. The matter is comprehensively studied in J. Hurst, op. cit., n. 1283, chs. 3, 4.
[Footnote 1285] 25 Edward III, Stat. 5, ch. 2, See J. Hurst, op. cit., n. 1283, ch 2.
[Footnote 1286] Id., 15, 31-37, 41-49, 51-55.
[Footnote 1287] Ibid. "The record does suggest that the clause was intended to guarantee nonviolent political processes against prosecution under any theory or charge, the burden of which was the allegedly seditious character of the conduct in question. The most obviously restrictive feature of the constitutional definition is its omission of any provision analogous to that branch of the Statute of Edward III which punished treason by compassing the death of the king. In a narrow sense, this provision perhaps had no proper analogue in a republic. However, to interpret the silence of the treason clause in this way alone does justice neither to the technical proficiency of the Philadelphia draftsmen nor to the practical statecraft and knowledge of English political history among the Framers and proponents of the Constitution. The charge of compassing the king's death had been the principal instrument by which 'treason' had been used to suppress a wide range of political opposition, from acts obviously dangerous to order and likely in fact to lead to the king's death to the mere speaking or writing of views restrictive of the royal authority." Id., 152-153.
[Footnote 1288] The clause does not, however, prevent Congress from specifying other crimes of a subversive nature and prescribing punishment, so long as Congress is not merely attempting to evade the restrictions of the treason clause. E.g., Ex parte Bollman, 8 U.S. (4 Cr.) 75, 126 (1807); Wimmer v. United States, 264 Fed. 11, 12-13 (6th Cir. 1920), cert den., 253 U.S. 494 (1920).
[Footnote 1289] By the requirement of two witnesses to the same overt act or a confession in open court.
[Footnote 1290] Cl. 2, infra, pp. 827-828.
[Footnote 1291] 8 U.S. (4 Cr.) 75 (1807).
[Footnote 1292] Id., 126-127.
[Footnote 1293] United States v. Burr, 4 Cr. ( 8 U.S.), 469, Appx. (1807).
[Footnote 1294] There have been a number of lower court cases in some of which convictions were obtained. As a result of the Whiskey Rebellion, convictions of treason were obtained on the basis of the ruling that forcible resistance to the enforcement of the revenue laws was a constructive levying of war. United States v. Vigol, 29 Fed. Cas. 376 (No. 16621) (C.C.D. Pa. 1795); United States v. Mitchell, 26 Fed. Cas. 1277 (No. 15788) (C.C.D. Pa. 1795). After conviction, the defendants were pardoned. See also for the same ruling in a different situation the Case of Fries, 9 Fed. Cas. 826, 924 (Nos. 5126, 5127) (C.C.D. Pa. 1799, 1800). The defendant was again pardoned after conviction. About a half century later participation in forcible resistance to the Fugitive Slave Law was held not to be a constructive levying of war. United States v. Hanway, 26 Fed. Cas. 105 (No. 15299) (C.C.E.D. Pa. 1851). Although the United States Government regarded the activities of the Confederate States as a levying of war, the President by Amnesty Proclamation of December 25, 1868, pardoned all those who had participated on the southern side in the Civil War. In applying the Captured and Abandoned Property Act of 1863 (12 Stat. 820) in a civil proceeding, the Court declared that the foundation of the Confederacy was treason against the United States. Sprott v. United States, 87 U.S. (20 Wall.) 459 (1875). See also Hanauer v. Doane, 79 U.S. (12 Wall.) 342 (1871); Thorington v. Smith, 75 U.S. (8 Wall.) 1 (1869); Young v. United States, 97 U.S. 39 (1878). These four cases bring in the concept of adhering to the enemy and giving him aid and comfort, but these are not criminal cases and deal with attempts to recover property under the Captured and Abandoned Property Act by persons who claimed that they had given no aid or comfort to the enemy. These cases are not, therefore, an interpretation of the Constitution.
[Footnote 1295] 325 U.S. 1 (1945).
[Footnote 1296] 89 Law. Ed. 1443-1444 (Argument of Counsel).
[Footnote 1297] Id., 325 U.S., 35.
[Footnote 1298] Id., 34-35. Earlier, Justice Jackson had declared that this phase of treason consists of two elements: "adherence to the enemy; and rendering him aid and comfort." A citizen, it was said, may take actions "which do aid and comfort the enemy . . . but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason." Id., 29, Justice Jackson states erroneously that the requirement of two witnesses to the same overt act was an original invention of the Convention of 1787. Actually it comes from the British Treason Trials Act of 1695. 7 Wm. III, c.3.
[Footnote 1299] 330 U.S. 631 (1947).
[Footnote 1300] Id., 635-636
[Footnote 1301] Id., 645-646, Justice Douglas cites no cases for these propositions. Justice Murphy in a solitary dissent stated: "But the act of providing shelter was of the type that might naturally arise out of petitioner's relationship to his son, as the Court recognizes. By its very nature, therefore, it is a non - treasonous act. That is true even when the act is viewed in light of all the surrounding circumstances. All that can be said is that the problem of whether it was motivated by treasonous or non - treasonous factors is left in doubt. It is therefore not an overt act of treason, regardless of how unlawful it might otherwise be." Id., 649.
[Footnote 1302] 343 U.S. 717 (1952).
[Footnote 1303] Id., 732. For citations in the subject of dual nationality, see id., 723 n. 2. Three dissenters asserted that Kawakita's conduct in Japan clearly showed he was consistently demonstrating his allegiance to Japan. "As a matter of law, he expatriated himself as well as that can be done." Id., 746.
[Footnote 1304] Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807).
[Footnote 1305] United States v. Burr, 8 U.S. (4 Cr.) 469 (1807).
[Footnote 1306] Cramer v. United States, 325 U.S. 1 (1945).
[Footnote 1307] Haupt v. United States, 330 U.S. 631 (1947).
[Footnote 1308] Cf. United States v. Rosenberg, 195 F.2d 583 (2d. Cir.), cert den., 344 U.S. 889 (1952), holding that in a prosecution under the Espionage Act for giving aid to a country, not an enemy, an offense distinct from treason, neither the two-witness rule nor the requirement as to the overt act is applicable.
[Footnote 1309] Ex parte Bollman, 8 U.S. (4 Cr.) 126, 127 (1807). Justice Frankfurter appended to his opinion in Cramer v. United States, 325 U.S. 1, 25 n. 38 (1945), a list taken from the Government's brief of all the cases prior to Cramer in which construction of the treason clause was involved. The same list, updated, appears in J. Hurst, op. cit., n. 1283, 260-267. Professor Hurst was responsible for the historical research underlaying the Government's brief in Cramer.
Article III. Judicial Power
Section 3. Treason
Clause 1. Definition and Limitations
Treason
The treason clause is a product of the awareness of the Framers of the "numerous and dangerous excrescences" which had disfigured the English law of treason and was therefore intended to put it beyond the power of Congress to "extend the crime and punishment of treason." [1283] The debate in the Convention, remarks in the ratifying conventions, and contemporaneous public comment make clear that a restrictive concept of the crime was imposed and that ordinary partisan divisions within political society were not to be escalated by the stronger into capital charges of treason, as so often had happened in England. [1284]
Thus, the Framers adopted two of the three formulations and the phraseology of the English Statute of Treason enacted in 1350, [1285] but they conspicuously omitted the phrase defining as treason the "compass[ing] or imagin[ing] the death of our lord the King," [1286] under which most of the English law of "constructive treason" had been developed. [1287] Beyond limiting the power of Congress to define treason, [1288] the clause also prescribes limitations upon Congress ability to make proof of the offense easy to establish [1289] and its ability to define punishment. [1290]
Levying War
Early judicial interpretation of the meaning of treason in terms of levying war was conditioned by the partisan struggles of the early nineteenth century, in which were involved the treason trials of Aaron Burr and his associates. In Ex parte Bollman, [1291] which involved two of Burr's confederates, Chief Justice Marshall, speaking for himself and three other Justices, confined the meaning of levying war to the actual waging of war. "However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offences. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. So far has this principle been carried, that . . . it has been determined that the actual enlistment of men to serve against the government does not amount to levying of war." Chief Justice Marshall was careful, however, to state that the Court did not mean that no person could be guilty of this crime who had not appeared in arms against the country. "On the contrary, if it be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men, for the treasonable purpose, to constitute a levying of war."
On the basis of these considerations and due to the fact that no part of the crime charged had been committed in the District of Columbia, the Court held that Bollman and Swartwout could not be tried in the District and ordered their discharge. He continued by saying that "the crime of treason should not be extended by construction to doubtful cases" and concluded that no conspiracy for overturning the Government and "no enlisting of men to effect it, would be an actual levying of war." [1292]
The Burr Trial
Not long afterward, the Chief Justice went to Richmond to preside over the trial of Burr himself. His ruling [1293] denying a motion to introduce certain collateral evidence bearing on Burr's activities is significant both for rendering the latter's acquittal inevitable and for the qualifications and exceptions made to the Bollman decision. In brief, this ruling held that Burr, who had not been present at the assemblage on Blennerhassett's Island, could be convicted of advising or procuring a levying of war only upon the testimony of two witnesses to his having procured the assemblage. This operation having been covert, such testimony was naturally unobtainable. The net effect of Marshall's pronouncements was to make it extremely difficult to convict one of levying war against the United States short of the conduct of or personal participation in actual hostilities. [1294]
Aid and Comfort to the Enemy
The Cramer Case
Since the Bollman case, the few treason cases which have reached the Supreme Court were outgrowths of World War II and have charged adherence to enemies of the United States and the giving of aid and comfort. In the first of these, Cramer v. United States, [1295] the issue was whether the "overt act" had to be "openly manifest treason" or if it was enough if, when supported by the proper evidence, it showed the required treasonable intention. [1296] The Court in a five to four opinion by Justice Jackson in effect took the former view holding that "the two-witness principle" interdicted "imputation of incriminating acts to the accused by circumstantial evidence or by the testimony of a single witness," [1297] even though the single witness in question was the accused himself. "Every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses," [1298] Justice Jackson asserted. Justice Douglas in a dissent, in which Chief Justice Stone and Justices Black and Reed concurred, contended that Cramer's treasonable intention was sufficiently shown by overt acts as attested to by two witnesses each, plus statements made by Cramer on the witness stand.
The Haupt Case
The Supreme Court sustained a conviction of treason, for the first time in its history, in 1947 in Haupt v. United States. [1299] Here it was held that although the overt acts relied upon to support the charge of treason - defendant's harboring and sheltering in his home his son who was an enemy spy and saboteur, assisting him in purchasing an automobile, and in obtaining employment in a defense plant - were all acts which a father would naturally perform for a son, this fact did not necessarily relieve them of the treasonable purpose of giving aid and comfort to the enemy. Speaking for the Court, Justice Jackson said: "No matter whether young Haupt's mission was benign or traitorous, known or unknown to the defendant, these acts were aid and comfort to him. In the light of this mission and his instructions, they were more than casually useful; they were aids in steps essential to his design for treason. If proof be added that the defendant knew of his son's instruction, preparation and plans, the purpose to aid and comfort the enemy becomes clear." [1300]
The Court held that conversation and occurrences long prior to the indictment were admissible evidence on the question of defendant's intent. And more important, it held that the constitutional requirement of two witnesses to the same overt act or confession in open court does not operate to exclude confessions or admissions made out of court, where a legal basis for the conviction has been laid by the testimony of two witnesses of which such confessions or admissions are merely corroborative. This relaxation of restrictions surrounding the definition of treason evoked obvious satisfaction from Justice Douglas who saw in the Haupt decision a vindication of his position in the Cramer case. His concurring opinion contains what may be called a restatement of the law of treason and merits quotation at length:
"As the Cramer case makes plain, the overt act and the intent with which it is done are separate and distinct elements of the crime. Intent need not be proved by two witnesses but may be inferred from all the circumstances surrounding the overt act. But if two witnesses are not required to prove treasonable intent, two witnesses need not be required to show the treasonable character of the overt act. For proof of treasonable intent in the doing of the overt act necessarily involves proof that the accused committed the overt act with the knowledge or understanding of its treasonable character.
The requirement of an overt act is to make certain a treasonable project has moved from the realm of thought into the realm of action. That requirement is undeniably met in the present case, as it was in the case of Cramer."
The Cramer case departed from those rules when it held that "The two-witness principle is to interdict imputation of incriminat ing acts to the accused by circumstantial evidence or by the testimony of a single witness." [325 U.S. p. 35.] The present decision is truer to the constitutional definition of treason when it forsakes that test and holds that an act, quite innocent on its face, does not need two witnesses to be transfomred into a incriminating one. [1301]
The Kawakita Case
Kawakita v. United States [1302] was decided on June 2, 1952. The facts are sufficiently stated in the following headnote: "At petitioner's trial for treason, it appeared that originally he was a native - born citizen of the United States and also a national of Japan by reason of Japanese parentage and law. While a minor, he took the oath of allegiance to the United States; went to Japan for a visit on an American passport; and was prevented by the outbreak of war from returning to this country. During the war, he reached his majority in Japan; changed his registration from American to Japanese, showed sympathy with Japan and hostility to the United States; served as a civilian employee of a private corporation producing war materials for Japan; and brutally abused American prisoners of war who were forced to work there. After Japan's surrender, he registered as an American citizen; swore that he was an American citizen and had not done various acts amounting to expatriation; and returned to this country on an American passport." The question whether, on this record Kawakita had intended to renounce American citizenship, said the Court, in sustaining conviction, was peculiarly one for the jury and their verdict that he had not so intended was based on sufficient evidence. An American citizen, it continued, owes allegiance to the United States wherever he may reside, and dual nationality does not alter the situation. [1303]
Doubtful State of the Law of Treason Today
The vacillation of Chief Justice Marshall between the Bollman [1304] and Burr [1305] cases and the vacillation of the Court in the Cramer [1306] and Haupt [1307] cases leave the law of treason in a somewhat doubtful condition. The difficulties created by the Burr case have been obviated to a considerable extent through the punishment of acts ordinarily treasonable in nature under a different label, [1308] within a formula provided by Chief Justice Marshall himself in the Bollman case. The passage reads: "Crimes so atrocious as those which have for their object the subversion by violence of those laws and those institutions which have been ordained in order to secure the peace and happiness of society, are not to escape punishment, because they have not ripened into treason. The wisdom of the legislature is competent to provide for the case; and the framers of our Constitution . . . must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate, than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation." [1309]
Footnotes
[Footnote 1283] 2 J. Elliot, Debates in the Several State Conventions on Adoption of the Constitution (Philadelphia: 1836), 469 (James Wilson). Wilson was apparently the author of the clause in the Committee of Detail and had some first hand knowledge of the abuse of treason charges. J. Hurst, The Law of Treason in the United States - Selected Essays (Westport, Conn.: 1971), 90-91, 129-136.
[Footnote 1284] 2 M. Farrand, op. cit., n.1, 345-350; 2 J. Elliot, op. cit., n. 1283, 469, 487 (James Wilson); 3 id., 102-103, 447, 451, 466; 4 id., 209, 219, 220; The Federalist No. 43 (J. Cooke ed. 1961), 290 (Madison); id., No. 84, 576-577 (Hamilton); The Works of James Wilson, R. McCloskey ed. (Cambridge: 1967 ed), 663-669. The matter is comprehensively studied in J. Hurst, op. cit., n. 1283, chs. 3, 4.
[Footnote 1285] 25 Edward III, Stat. 5, ch. 2, See J. Hurst, op. cit., n. 1283, ch 2.
[Footnote 1286] Id., 15, 31-37, 41-49, 51-55.
[Footnote 1287] Ibid. "The record does suggest that the clause was intended to guarantee nonviolent political processes against prosecution under any theory or charge, the burden of which was the allegedly seditious character of the conduct in question. The most obviously restrictive feature of the constitutional definition is its omission of any provision analogous to that branch of the Statute of Edward III which punished treason by compassing the death of the king. In a narrow sense, this provision perhaps had no proper analogue in a republic. However, to interpret the silence of the treason clause in this way alone does justice neither to the technical proficiency of the Philadelphia draftsmen nor to the practical statecraft and knowledge of English political history among the Framers and proponents of the Constitution. The charge of compassing the king's death had been the principal instrument by which 'treason' had been used to suppress a wide range of political opposition, from acts obviously dangerous to order and likely in fact to lead to the king's death to the mere speaking or writing of views restrictive of the royal authority." Id., 152-153.
[Footnote 1288] The clause does not, however, prevent Congress from specifying other crimes of a subversive nature and prescribing punishment, so long as Congress is not merely attempting to evade the restrictions of the treason clause. E.g., Ex parte Bollman, 8 U.S. (4 Cr.) 75, 126 (1807); Wimmer v. United States, 264 Fed. 11, 12-13 (6th Cir. 1920), cert den., 253 U.S. 494 (1920).
[Footnote 1289] By the requirement of two witnesses to the same overt act or a confession in open court.
[Footnote 1290] Cl. 2, infra, pp. 827-828.
[Footnote 1291] 8 U.S. (4 Cr.) 75 (1807).
[Footnote 1292] Id., 126-127.
[Footnote 1293] United States v. Burr, 4 Cr. ( 8 U.S.), 469, Appx. (1807).
[Footnote 1294] There have been a number of lower court cases in some of which convictions were obtained. As a result of the Whiskey Rebellion, convictions of treason were obtained on the basis of the ruling that forcible resistance to the enforcement of the revenue laws was a constructive levying of war. United States v. Vigol, 29 Fed. Cas. 376 (No. 16621) (C.C.D. Pa. 1795); United States v. Mitchell, 26 Fed. Cas. 1277 (No. 15788) (C.C.D. Pa. 1795). After conviction, the defendants were pardoned. See also for the same ruling in a different situation the Case of Fries, 9 Fed. Cas. 826, 924 (Nos. 5126, 5127) (C.C.D. Pa. 1799, 1800). The defendant was again pardoned after conviction. About a half century later participation in forcible resistance to the Fugitive Slave Law was held not to be a constructive levying of war. United States v. Hanway, 26 Fed. Cas. 105 (No. 15299) (C.C.E.D. Pa. 1851). Although the United States Government regarded the activities of the Confederate States as a levying of war, the President by Amnesty Proclamation of December 25, 1868, pardoned all those who had participated on the southern side in the Civil War. In applying the Captured and Abandoned Property Act of 1863 (12 Stat. 820) in a civil proceeding, the Court declared that the foundation of the Confederacy was treason against the United States. Sprott v. United States, 87 U.S. (20 Wall.) 459 (1875). See also Hanauer v. Doane, 79 U.S. (12 Wall.) 342 (1871); Thorington v. Smith, 75 U.S. (8 Wall.) 1 (1869); Young v. United States, 97 U.S. 39 (1878). These four cases bring in the concept of adhering to the enemy and giving him aid and comfort, but these are not criminal cases and deal with attempts to recover property under the Captured and Abandoned Property Act by persons who claimed that they had given no aid or comfort to the enemy. These cases are not, therefore, an interpretation of the Constitution.
[Footnote 1295] 325 U.S. 1 (1945).
[Footnote 1296] 89 Law. Ed. 1443-1444 (Argument of Counsel).
[Footnote 1297] Id., 325 U.S., 35.
[Footnote 1298] Id., 34-35. Earlier, Justice Jackson had declared that this phase of treason consists of two elements: "adherence to the enemy; and rendering him aid and comfort." A citizen, it was said, may take actions "which do aid and comfort the enemy . . . but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason." Id., 29, Justice Jackson states erroneously that the requirement of two witnesses to the same overt act was an original invention of the Convention of 1787. Actually it comes from the British Treason Trials Act of 1695. 7 Wm. III, c.3.
[Footnote 1299] 330 U.S. 631 (1947).
[Footnote 1300] Id., 635-636
[Footnote 1301] Id., 645-646, Justice Douglas cites no cases for these propositions. Justice Murphy in a solitary dissent stated: "But the act of providing shelter was of the type that might naturally arise out of petitioner's relationship to his son, as the Court recognizes. By its very nature, therefore, it is a non - treasonous act. That is true even when the act is viewed in light of all the surrounding circumstances. All that can be said is that the problem of whether it was motivated by treasonous or non - treasonous factors is left in doubt. It is therefore not an overt act of treason, regardless of how unlawful it might otherwise be." Id., 649.
[Footnote 1302] 343 U.S. 717 (1952).
[Footnote 1303] Id., 732. For citations in the subject of dual nationality, see id., 723 n. 2. Three dissenters asserted that Kawakita's conduct in Japan clearly showed he was consistently demonstrating his allegiance to Japan. "As a matter of law, he expatriated himself as well as that can be done." Id., 746.
[Footnote 1304] Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807).
[Footnote 1305] United States v. Burr, 8 U.S. (4 Cr.) 469 (1807).
[Footnote 1306] Cramer v. United States, 325 U.S. 1 (1945).
[Footnote 1307] Haupt v. United States, 330 U.S. 631 (1947).
[Footnote 1308] Cf. United States v. Rosenberg, 195 F.2d 583 (2d. Cir.), cert den., 344 U.S. 889 (1952), holding that in a prosecution under the Espionage Act for giving aid to a country, not an enemy, an offense distinct from treason, neither the two-witness rule nor the requirement as to the overt act is applicable.
[Footnote 1309] Ex parte Bollman, 8 U.S. (4 Cr.) 126, 127 (1807). Justice Frankfurter appended to his opinion in Cramer v. United States, 325 U.S. 1, 25 n. 38 (1945), a list taken from the Government's brief of all the cases prior to Cramer in which construction of the treason clause was involved. The same list, updated, appears in J. Hurst, op. cit., n. 1283, 260-267. Professor Hurst was responsible for the historical research underlaying the Government's brief in Cramer.
Jane Fonda by David Emery
Email rumors blending fact and fiction about Jane Fonda's activities as an antiwar protester during the 1970s have reopened old wounds for Vietnam veterans and inspired a new round of recriminations for things the actress did long ago, and things she never did.
Background
The rumors, which first surfaced in email form in late September 1999, center around Fonda's tour of North Vietnam in 1972, during which she cozied up to the enemy, posing for photo ops with communist troops and broadcasting anti-American propaganda over Radio Hanoi. She also participated in a staged press conference with American servicemen held captive by the Viet Cong, the purpose of which was to "prove" that the POWs were not being mistreated by their captors. Years later when the released POWs described the very real torture and degradation they suffered at the hands of the North Vietnamese, Fonda called them "hypocrites and liars."
Those basic facts aren't under dispute. Fonda's behavior at that time, considered treasonous by some, earned her the nickname "Hanoi Jane" among the veterans and POWs of the Vietnam War, some of whom hate her to this day. However, the rumors circulating today wander far astray from the facts, falsely accusing Fonda of intentionally betraying American POWs to their captors during her visit to North Vietnam.
Image Revamped
Since the 1970s, "Hanoi Jane" Fonda has revamped her image several times over, rededicating herself to her acting career, becoming a fitness guru in the early 1980s and marrying billionaire Ted Turner in 1991. In 1988 she delivered a televised apology to Vietnam veterans and their families, a gesture that didn't mollify everyone but established some distance between the new Fonda and old Fonda, whose actions, she finally admitted, had been "thoughtless and careless."
As the 1990s progressed, Jane Fonda's past was raised less frequently as an issue and seemed to dwindle in importance — until 1999, that is, when Barbara Walters chose to honor the actress in a TV special called "A Celebration: 100 Years of Great Women." The announcement of the program — which aired in April of that year and which did, in fact, honor Jane Fonda — prompted an instant outcry from veterans and ex-POWs, many of whom vented their indignation via the internet. Angry recriminations were posted in newsgroups, published in newsletters and on Web pages, and forwarded by email.
Shameless Fabrications
Bits and pieces of these texts, along with a few shameless fabrications, were cobbled together by persons unknown to create the "Hanoi Jane" diatribe which still circulates on the internet today. Only parts of it are true.
Though we don't know precisely when the earliest versions of the "Hanoi Jane" email began making the rounds (presumably among veterans and military personnel), they found their way into general circulation in early September 1999. Each of the texts I've seen exhibits slight variations in format and wording, and in a few cases added comments and/or deletions.
Jon E. Dougherty, a columnist for WorldNetDaily.com, saw fit to quote a version of the message verbatim in his September 15, 1999 column entitled "Not saluting Jane Fonda." Interestingly, Dougherty's piece, complete with his own commentary, was copied and distributed by readers and quickly established itself as an additional popular variant of the already-circulating text.
[UPDATE: Mr. Dougherty published a correction on Nov. 10, 1999, acknowledging that parts of the text are false.]
Below is a typical example of the email. Bear in mind that only part of what you're about to read is true.
Looks like Hanoi Jane may be honored as of the "100 Women of the Century". JANE FONDA remembered? Unfortunately may have forgotten and still countless others have never known how Ms. Fonda betrayed not only the idea of our "country" but the men who served and sacrificed during Viet Nam.
There are few things I have strong visceral reactions to, but Jane Fonda's participation in what I believe to be blatant treason, is one of them. Part of my conviction comes from exposure to those who suffered her attentions. The first part of this is from an F-4E pilot. The pilot's name is Jerry Driscoll, a River Rat. In 1978, the Commandant of the USAF Survival School was a former POW in Ho Lo Prison-the "Hanoi Hilton".
Dragged from a stinking cesspit of a cell, cleaned, fed, and dressed in clean PJs, he was ordered to describe for a visiting American "Peace Activist" the "lenient and humane treatment" he'd received. He spat at Ms. Fonda, was clubbed, and dragged away. During the subsequent beating, he fell forward upon the camp Commandant's feet, accidentally pulling the man's shoe off- which sent that officer berserk.
In 1978, the AF Col still suffered from double vision (which permanently ended his flying days) from the Vietnamese Col's frenzied application of a wooden baton.
From 1983 to 1985, Col Larry Carrigan was the 347FW/DO (F-4Es). He spent 6 years in the "Hilton" - the first three of which he was "missing in action". His wife lived on faith that he was still alive. His group, too, got the cleaned/fed/clothed routine in preparation for a "peace delegation" visit. They, however, had time and devised a plan to get word to the world that they still survived. Each man secreted a tiny piece of paper, with his SSN on it, in the palm of his hand.
When paraded before Ms. Fonda and a cameraman, she walked the line, shaking each man's hand and asking little encouraging snippets like: "Aren't you sorry you bombed babies?" and "Are you grateful for the humane treatment from your benevolent captors?" Believing this HAD to be an act, they each palmed her their sliver of paper. She took them all without missing a beat. At the end of the line and once the camera stopped rolling, to the shocked disbelief of the POWs, she turned to the officer in charge... and handed him the little pile.
Three men died from the subsequent beatings. Col Carrigan was almost number four. For years after their release, a group of determined former POWs Including Col Carrigan, tried to bring Ms. Fonda and others up on charges of treason. I don't know that they used it, but the charge of "Negligent Homicide due to Depraved Indifference" would also seem appropriate. Her obvious "granting of aid and comfort to the enemy", alone, should've been sufficient for the treason count.
However, to date, Jane Fonda has never been formally charged with anything and continues to enjoy the privileged life of the rich and famous. I, personally, think that this is shame on us, the American Citizenry.
Part of our shortfall is ignorance: most don't know such actions ever took place. Thought you might appreciate the knowledge. Most of you've probably already seen this by now... only addition I might add to these sentiments is to remember the satisfaction of relieving myself into the urinal at some airbase or another where "zaps" of Hanoi Jane's face had been applied.
To whom it may concern:
I was a civilian economic development advisor in Viet Nam, and was captured by the North Vietnamese communists in South Viet Nam in 1968, and held for over 5 years. I spent 27 months in solitary confinement, one year in a cage in Cambodia, and one year in a "black box" in Hanoi.
My North Vietnamese captors deliberately poisoned and murdered a female missionary, a nurse in a leprosarium in Ban me Thuot, South Vietnam, whom I buried in the jungle near the Cambodian border. At one time, I was weighing approximately 90 lbs. (My normal weight is 170 lbs.) We were Jane Fonda's "war criminals."
When Jane Fonda was in Hanoi, I was asked by the camp communist political officer if I would be willing to meet with Jane Fonda. I said yes, for I would like to tell her about the real treatment we POWs were receiving, which was far different from the treatment purported by the North Vietnamese, and parroted by Jane Fonda, as "humane and lenient."
Because of this, I spent three days on a rocky floor on my knees with outstretched arms with a piece of steel placed on my hands, and beaten with a bamboo cane every time my arms dipped.
I had the opportunity to meet with Jane Fonda for a couple of hours after I was released. I asked her if she would be willing to debate me on TV. She did not answer me, her former husband, Tom Hayden, answered for her. She was mind controlled by her husband. This does not exemplify someone who should be honored as "100 Years of Great Women."
After I was released, I was asked what I thought of Jane Fonda and the anti- war movement. I said that I held Joan Baez's husband in very high regard, for he thought the war was wrong, burned his draft card and went to prison in protest. If the other anti-war protesters took this same route, it would have brought our judicial system to a halt and ended the war much earlier, and there wouldn't be as many on that somber black granite wall called the Vietnam Memorial. This is democracy. This is the American way.
Jane Fonda, on the other hand, chose to be a traitor, and went to Hanoi, wore their uniform, propagandized for the communists, and urged American soldiers to desert. As we were being tortured, and some of the POWs murdered, she called us liars. After her heroes -- the North Vietnamese communists -- took over South Vietnam, they systematically murdered 80,000 South Vietnamese political prisoners. May their souls rest on her head forever. Shame! Shame! ( History is a heavy sword in the hands of those who refuse to forget it. Think of this the next time you see Ms. Fonda and Mr. Turner at a Braves game).
Please take the time to read and forward to as many people as you possibly can. It will eventually end up on her computer and she needs to know that "we will never forget". Lest we forget... "100 years of great women", Jane Fonda should never be considered.
There's no disputing that Jane Fonda toured North Vietnam, propagandized on behalf of the communists, and participated in an orchestrated "press conference" with American POWs in 1972. There's no denying that she defamed POWs by whitewashing the Viet Cong's treatment of them and later calling them liars when they spoke out.
But how true are the further allegations in these email rumors? Let's examine their veracity point by point, beginning with the most serious:
Claim: Fonda betrayed POWs by turning over slips of paper they gave her to their captors. POWs were beaten and died as a result.
Status: FALSE.
"It's a figment of somebody's imagination," says Ret. Col. Larry Carrigan, whom I reached by phone at his home in Arizona. Carrigan, who was shot down over North Vietnam in 1967, says he has no idea why this story was attributed to him. "I never met Jane Fonda," he told me. It goes without saying he never handed her a secret message.
He said he did see Jane Fonda once while he was a POW – on film. The occasion was a night when Carrigan and the other 80 or so men he was interned with were called out into the prison courtyard – "the first time we'd been outside under the stars in 5 or 6 years." As the men stood there wondering what was in store for them, a movie projector began whirring behind them. Their captors were showing them footage of Fonda's 1972 visit to Hanoi.
Claim: A POW spat at Fonda, for which he was brutally beaten.
Status: FALSE.
About Poll
Does Jane Fonda deserve to be honored as a Great Woman of the Century?
Yes.
No.
Not sure.
Current Results.
This story is attributed in the email to former Air Force pilot Jerry Driscoll, who says it's false and did not originate from him. I wasn't able to speak with him directly, but Mike McGrath and Paul Galanti, fellow officers of the Nam-POWs organization to which Driscoll belongs, told me he unequivocally disavows the story.
[UPDATE: After this commentary was written I received personal confirmation from Jerry Driscoll that the story is indeed bogus – as he put it, "the product of a very vivid imagination."]
Mike McGrath, currently serving as the president of Nam-POWs, has worked hard to help Driscoll and Carrigan squelch the false rumors circulating under their names.
"They would like to get their names removed but the story seems to have a life of its own," he told me.
"There are a lot of folks out there who would love to have a story like that to hang their hat and their hate on."
Claim: POWs were beaten for refusing to cooperate or meet with Fonda during her visit.
Status: TRUE.
The final anecdote in the "Hanoi Jane" email recounts the experience of a POW who agreed to meet with Fonda but announced to his captors that he planned on telling her how horrid conditions in North Vietnamese prison camps really were.
"Because of this," the narrative continues, "I spent three days on a rocky floor on my knees with outstretched arms with a piece of steel placed on my hands, and beaten with a bamboo cane every time my arms dipped."
Those words were written by Michael Benge, a civilian advisor captured by the Viet Cong in 1968 and held as a POW for 5 years. When I contacted him, Benge confirmed that the story was indeed his own, and true.
Benge's original statement, entitled "Shame on Jane," was published in April by the Advocacy and Intelligence Network for POWs and MIAs. The nameless, faceless author of the "Hanoi Jane" email evidently picked it up from that or another Web page or newsgroup and combined it with fabricated stories to create the much-forwarded message. Some versions now circulate with Benge's name appended, others quote his statement anonymously.
None of Us Are Members of the Jane Fonda Fan Club
A good cause is never well served by lies, and that's how all of the ex-POWs I spoke or corresponded with about the falsehoods in this message felt. Paul Galanti said: "None of us are members of the Jane Fonda Fan Club, but these fabrications are something she just did not do."
No one had an answer to the questions, "Who made up these stories, and why?" but both Carrigan and McGrath expressed serious doubt that it was a POW.
"She did enough to place her name in the trash bin of history," McGrath explained. "None of us need to make up stories on her."
Background
The rumors, which first surfaced in email form in late September 1999, center around Fonda's tour of North Vietnam in 1972, during which she cozied up to the enemy, posing for photo ops with communist troops and broadcasting anti-American propaganda over Radio Hanoi. She also participated in a staged press conference with American servicemen held captive by the Viet Cong, the purpose of which was to "prove" that the POWs were not being mistreated by their captors. Years later when the released POWs described the very real torture and degradation they suffered at the hands of the North Vietnamese, Fonda called them "hypocrites and liars."
Those basic facts aren't under dispute. Fonda's behavior at that time, considered treasonous by some, earned her the nickname "Hanoi Jane" among the veterans and POWs of the Vietnam War, some of whom hate her to this day. However, the rumors circulating today wander far astray from the facts, falsely accusing Fonda of intentionally betraying American POWs to their captors during her visit to North Vietnam.
Image Revamped
Since the 1970s, "Hanoi Jane" Fonda has revamped her image several times over, rededicating herself to her acting career, becoming a fitness guru in the early 1980s and marrying billionaire Ted Turner in 1991. In 1988 she delivered a televised apology to Vietnam veterans and their families, a gesture that didn't mollify everyone but established some distance between the new Fonda and old Fonda, whose actions, she finally admitted, had been "thoughtless and careless."
As the 1990s progressed, Jane Fonda's past was raised less frequently as an issue and seemed to dwindle in importance — until 1999, that is, when Barbara Walters chose to honor the actress in a TV special called "A Celebration: 100 Years of Great Women." The announcement of the program — which aired in April of that year and which did, in fact, honor Jane Fonda — prompted an instant outcry from veterans and ex-POWs, many of whom vented their indignation via the internet. Angry recriminations were posted in newsgroups, published in newsletters and on Web pages, and forwarded by email.
Shameless Fabrications
Bits and pieces of these texts, along with a few shameless fabrications, were cobbled together by persons unknown to create the "Hanoi Jane" diatribe which still circulates on the internet today. Only parts of it are true.
Though we don't know precisely when the earliest versions of the "Hanoi Jane" email began making the rounds (presumably among veterans and military personnel), they found their way into general circulation in early September 1999. Each of the texts I've seen exhibits slight variations in format and wording, and in a few cases added comments and/or deletions.
Jon E. Dougherty, a columnist for WorldNetDaily.com, saw fit to quote a version of the message verbatim in his September 15, 1999 column entitled "Not saluting Jane Fonda." Interestingly, Dougherty's piece, complete with his own commentary, was copied and distributed by readers and quickly established itself as an additional popular variant of the already-circulating text.
[UPDATE: Mr. Dougherty published a correction on Nov. 10, 1999, acknowledging that parts of the text are false.]
Below is a typical example of the email. Bear in mind that only part of what you're about to read is true.
Looks like Hanoi Jane may be honored as of the "100 Women of the Century". JANE FONDA remembered? Unfortunately may have forgotten and still countless others have never known how Ms. Fonda betrayed not only the idea of our "country" but the men who served and sacrificed during Viet Nam.
There are few things I have strong visceral reactions to, but Jane Fonda's participation in what I believe to be blatant treason, is one of them. Part of my conviction comes from exposure to those who suffered her attentions. The first part of this is from an F-4E pilot. The pilot's name is Jerry Driscoll, a River Rat. In 1978, the Commandant of the USAF Survival School was a former POW in Ho Lo Prison-the "Hanoi Hilton".
Dragged from a stinking cesspit of a cell, cleaned, fed, and dressed in clean PJs, he was ordered to describe for a visiting American "Peace Activist" the "lenient and humane treatment" he'd received. He spat at Ms. Fonda, was clubbed, and dragged away. During the subsequent beating, he fell forward upon the camp Commandant's feet, accidentally pulling the man's shoe off- which sent that officer berserk.
In 1978, the AF Col still suffered from double vision (which permanently ended his flying days) from the Vietnamese Col's frenzied application of a wooden baton.
From 1983 to 1985, Col Larry Carrigan was the 347FW/DO (F-4Es). He spent 6 years in the "Hilton" - the first three of which he was "missing in action". His wife lived on faith that he was still alive. His group, too, got the cleaned/fed/clothed routine in preparation for a "peace delegation" visit. They, however, had time and devised a plan to get word to the world that they still survived. Each man secreted a tiny piece of paper, with his SSN on it, in the palm of his hand.
When paraded before Ms. Fonda and a cameraman, she walked the line, shaking each man's hand and asking little encouraging snippets like: "Aren't you sorry you bombed babies?" and "Are you grateful for the humane treatment from your benevolent captors?" Believing this HAD to be an act, they each palmed her their sliver of paper. She took them all without missing a beat. At the end of the line and once the camera stopped rolling, to the shocked disbelief of the POWs, she turned to the officer in charge... and handed him the little pile.
Three men died from the subsequent beatings. Col Carrigan was almost number four. For years after their release, a group of determined former POWs Including Col Carrigan, tried to bring Ms. Fonda and others up on charges of treason. I don't know that they used it, but the charge of "Negligent Homicide due to Depraved Indifference" would also seem appropriate. Her obvious "granting of aid and comfort to the enemy", alone, should've been sufficient for the treason count.
However, to date, Jane Fonda has never been formally charged with anything and continues to enjoy the privileged life of the rich and famous. I, personally, think that this is shame on us, the American Citizenry.
Part of our shortfall is ignorance: most don't know such actions ever took place. Thought you might appreciate the knowledge. Most of you've probably already seen this by now... only addition I might add to these sentiments is to remember the satisfaction of relieving myself into the urinal at some airbase or another where "zaps" of Hanoi Jane's face had been applied.
To whom it may concern:
I was a civilian economic development advisor in Viet Nam, and was captured by the North Vietnamese communists in South Viet Nam in 1968, and held for over 5 years. I spent 27 months in solitary confinement, one year in a cage in Cambodia, and one year in a "black box" in Hanoi.
My North Vietnamese captors deliberately poisoned and murdered a female missionary, a nurse in a leprosarium in Ban me Thuot, South Vietnam, whom I buried in the jungle near the Cambodian border. At one time, I was weighing approximately 90 lbs. (My normal weight is 170 lbs.) We were Jane Fonda's "war criminals."
When Jane Fonda was in Hanoi, I was asked by the camp communist political officer if I would be willing to meet with Jane Fonda. I said yes, for I would like to tell her about the real treatment we POWs were receiving, which was far different from the treatment purported by the North Vietnamese, and parroted by Jane Fonda, as "humane and lenient."
Because of this, I spent three days on a rocky floor on my knees with outstretched arms with a piece of steel placed on my hands, and beaten with a bamboo cane every time my arms dipped.
I had the opportunity to meet with Jane Fonda for a couple of hours after I was released. I asked her if she would be willing to debate me on TV. She did not answer me, her former husband, Tom Hayden, answered for her. She was mind controlled by her husband. This does not exemplify someone who should be honored as "100 Years of Great Women."
After I was released, I was asked what I thought of Jane Fonda and the anti- war movement. I said that I held Joan Baez's husband in very high regard, for he thought the war was wrong, burned his draft card and went to prison in protest. If the other anti-war protesters took this same route, it would have brought our judicial system to a halt and ended the war much earlier, and there wouldn't be as many on that somber black granite wall called the Vietnam Memorial. This is democracy. This is the American way.
Jane Fonda, on the other hand, chose to be a traitor, and went to Hanoi, wore their uniform, propagandized for the communists, and urged American soldiers to desert. As we were being tortured, and some of the POWs murdered, she called us liars. After her heroes -- the North Vietnamese communists -- took over South Vietnam, they systematically murdered 80,000 South Vietnamese political prisoners. May their souls rest on her head forever. Shame! Shame! ( History is a heavy sword in the hands of those who refuse to forget it. Think of this the next time you see Ms. Fonda and Mr. Turner at a Braves game).
Please take the time to read and forward to as many people as you possibly can. It will eventually end up on her computer and she needs to know that "we will never forget". Lest we forget... "100 years of great women", Jane Fonda should never be considered.
There's no disputing that Jane Fonda toured North Vietnam, propagandized on behalf of the communists, and participated in an orchestrated "press conference" with American POWs in 1972. There's no denying that she defamed POWs by whitewashing the Viet Cong's treatment of them and later calling them liars when they spoke out.
But how true are the further allegations in these email rumors? Let's examine their veracity point by point, beginning with the most serious:
Claim: Fonda betrayed POWs by turning over slips of paper they gave her to their captors. POWs were beaten and died as a result.
Status: FALSE.
"It's a figment of somebody's imagination," says Ret. Col. Larry Carrigan, whom I reached by phone at his home in Arizona. Carrigan, who was shot down over North Vietnam in 1967, says he has no idea why this story was attributed to him. "I never met Jane Fonda," he told me. It goes without saying he never handed her a secret message.
He said he did see Jane Fonda once while he was a POW – on film. The occasion was a night when Carrigan and the other 80 or so men he was interned with were called out into the prison courtyard – "the first time we'd been outside under the stars in 5 or 6 years." As the men stood there wondering what was in store for them, a movie projector began whirring behind them. Their captors were showing them footage of Fonda's 1972 visit to Hanoi.
Claim: A POW spat at Fonda, for which he was brutally beaten.
Status: FALSE.
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This story is attributed in the email to former Air Force pilot Jerry Driscoll, who says it's false and did not originate from him. I wasn't able to speak with him directly, but Mike McGrath and Paul Galanti, fellow officers of the Nam-POWs organization to which Driscoll belongs, told me he unequivocally disavows the story.
[UPDATE: After this commentary was written I received personal confirmation from Jerry Driscoll that the story is indeed bogus – as he put it, "the product of a very vivid imagination."]
Mike McGrath, currently serving as the president of Nam-POWs, has worked hard to help Driscoll and Carrigan squelch the false rumors circulating under their names.
"They would like to get their names removed but the story seems to have a life of its own," he told me.
"There are a lot of folks out there who would love to have a story like that to hang their hat and their hate on."
Claim: POWs were beaten for refusing to cooperate or meet with Fonda during her visit.
Status: TRUE.
The final anecdote in the "Hanoi Jane" email recounts the experience of a POW who agreed to meet with Fonda but announced to his captors that he planned on telling her how horrid conditions in North Vietnamese prison camps really were.
"Because of this," the narrative continues, "I spent three days on a rocky floor on my knees with outstretched arms with a piece of steel placed on my hands, and beaten with a bamboo cane every time my arms dipped."
Those words were written by Michael Benge, a civilian advisor captured by the Viet Cong in 1968 and held as a POW for 5 years. When I contacted him, Benge confirmed that the story was indeed his own, and true.
Benge's original statement, entitled "Shame on Jane," was published in April by the Advocacy and Intelligence Network for POWs and MIAs. The nameless, faceless author of the "Hanoi Jane" email evidently picked it up from that or another Web page or newsgroup and combined it with fabricated stories to create the much-forwarded message. Some versions now circulate with Benge's name appended, others quote his statement anonymously.
None of Us Are Members of the Jane Fonda Fan Club
A good cause is never well served by lies, and that's how all of the ex-POWs I spoke or corresponded with about the falsehoods in this message felt. Paul Galanti said: "None of us are members of the Jane Fonda Fan Club, but these fabrications are something she just did not do."
No one had an answer to the questions, "Who made up these stories, and why?" but both Carrigan and McGrath expressed serious doubt that it was a POW.
"She did enough to place her name in the trash bin of history," McGrath explained. "None of us need to make up stories on her."
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