August 11, 2004

Should John Kerry sue the Swift Boat Veterans for Truth?

Kenneth Baer, a former senior speechwriter to Vice President Al Gore, writes in TNR Online that John Kerry should sue the Swift Boat Veterans for Truth. When I saw the suggestion, four reasons not to sue sprang to mind immediately. Baer, I was interested to see, deals with all of them. Here are the four reasons:

1. Kerry is a public figure, so under New York Times v. Sullivan, he would need to prove that the SBVT knew the libelous statements were false and proceeded with "reckless disregard." Here, Baer asserts that we already know that there are falsehoods. I'll set out Baer's points in some detail, with my comments in bracketed italics:
One member of the group has already called his participation in the ad a "terrible mistake;" that same veteran and another one in the ad actually defended Kerry from similar charges in his 1996 Senate race; another gave Kerry exemplary ratings as an officer; and none of them have ever initiated official proceedings to challenge the Navy's decision to award Kerry these medals. ...

[One could believe the facts in the ad and still regret making it. And one might easily choose to defend a candidate whose politics you like from an attack based on true assertions. Of course, Kerry knows whether they are telling the truth. We don't.]

Medical Officer Lewis Letson states that: "I know John Kerry is lying about his first Purple Heart because I treated him for that injury." Letson offers no proof for his assertion, just details about the dates and places surrounding the injury that are readily available. More damning is that according to official Navy records, Kerry was treated by another medical officer; Letson was not the medical professional who signed Kerry's "sick call sheet."

[The potentially libelous statement is that Kerry is lying about his first Purple Heart. We don't know whether that statement is true or false. But if it's true that Kerry is lying about that, then there is no libel, even if Letson didn't treat Kerry and knowingly lied when he claimed to have treated Kerry. You might have actual malice about that statement, but the problem is that Kerry isn't injured or brought into contempt by the statement that a particular person treated him. It's just not libelous. It would not be enough to prove that Letson was lying about treating Kerry. Letson could still defend by showing that Kerry was lying about his first Purple Heart.]

Gunner's Mate Van O'Dell says that: "John Kerry lied to get his Bronze Star. I know, I was there, I saw what happened." O'Dell did not serve on Kerry's boat, but was on another boat in his division. O'Dell claims to have witnessed the entire incident in which Kerry won his Bronze Star. Yet, his account does not show up in any official Naval documents--from the spot reports filed immediately after the incident that detail damage to two boats, including Kerry's, and Kerry's injury report to the eyewitness accounts of Jim Rassmann, the man who Kerry pulled out of the river. Either O'Dell is right, and Rassmann, Kerry, and the US Navy are wrong--or O'Dell has a big legal problem on his hands.

[Same problem! Let's assume that O'Dell did not personally see what happened and he's knowingly lying about that. How is that statement libelous? O'Dell's seeing or not seeing the incident is not a matter that harms Kerry. It is only the fact asserted about what Kerry did that hurts Kerry's reputation and is thus capable of being libelous. If O'Dell is repeating something he heard someone else describe, and he thinks it's true, it might be that the New York Times standard is not met. But surely, if O'Dell can prove that the Bronze Star incident really is as O'Dell describes, he will have established the truth defense with respect to the statement that harms Kerry's reputation.]
2. Kerry will look litigious, a negative quality which will be exacerbated by the fact that he has a trial lawyer as a running mate. Baer concedes this is a "risk," but opines that it's a risk worth taking.

3. The election will be over by the time the case gets anywhere near a judgment. Here, Baer thinks it's worth it anyway in order to "send a message that there will be serious repercussions for anyone who wants to fund or appear in an ad that is patently false." That's the usual upside of litigiousness. Demonstrating your willingness to sue is intimidating. It even intimidates people who are telling the truth. I think in a political campaign, voters want to see issues addressed in public debate that takes place before the election, not squirreled away in a long court proceeding where the truth is learned too late to help them decide how to vote.

4. Kerry will be subjected to discovery requirements, with the court likely to require him to produce all sorts of records of his military service, including his medical records, which he has not thus far been inclined to release. Baer is thinking of discovery from another angle:
Discovery procedures could lift the curtain of anonymity on those funding these ads, potentially compelling them to disclose their financial and political interests and connections. In addition, a lawsuit will have an equally chilling effect on the political consultants who make these ads. Even the largest political ad-makers can't afford costly litigation; from a financial perspective, getting involved with groups like SBVT would be too big a risk no matter a consultant's politics.
Well, that's just admitting that you're using discovery for a purpose other than getting proof of the issues in the case. In other words, you want to abuse the process of discovery! You're admitting you want to intimidate with litigation! In fact, Baer's main idea is to use litigation to overwhelm and intimidate one's opponents, whom he compares to military enemies.

But, quite aside from all of that, is Baer's intense little article helpful to Kerry? I doubt very much that Kerry will want to sue: there are plenty of pragmatic reasons not to. But if voters are made to think Kerry should be suing, because characters like Baer are itching for it, voters may conclude that the reason Kerry isn't suing is that the charges are true.

UPDATE: Here is the Annenberg analysis of the SBVT ad. The analysis picks carefully through the story of the vet who at one point said he'd made a "terrible mistake" and explains the full basis for Kerry's Silver Star award, with a link to the official citation. This vet (Elliot) seems, in the FactCheck analysis, to be someone who is sadly torn between two positions perhaps because many different people have attempted to enlist his help over the years. O'Dell, according to FactCheck, was "a few yards away" from the events that led to the Bronze Star, and the man Kerry is said to have saved, Jim Rassmann, contradicts O'Dell.

It's not surprising that O'Dell's story did not make it into the record, but I have to say that it seems scurrilous to feature O'Dell in the ad, when his is only one version of a story, and the official record does not back him up. The same is the case for Elliot. I don't know who's telling the truth, but it is deceptive to have an ad with only one version of the story told. Challenging someone's war record is an ugly thing to do, as I've said before, and one ought to have very solid proof that you are right before going down this road. I also think Kerry has some responsibility for motivating an attack in this form by allowing himself to be portrayed as a war hero at the Convention, rather than concentrating on more current issues. But given all the awards, it is appropriate to refer to him as a war hero.

It was overdone at the Convention, but that doesn't justify a scurrilous response. The ad oversold the material that was available, and that really was unfair. FactCheck's conclusion is: "At this point, 35 years later and half a world away, we see no way to resolve which of these versions of reality is closer to the truth." That sounds about right to me, and that's the right criticism of the ad. I will also note, to reclaim this update as it relates to the Baer article, that it is also a reason why Kerry should not sue and should not be faulted for not suing.

UPDATE: Beldar has a lot of good analysis of the Baer piece.

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