BeldarBlog

WaPo has the scent, but can't or won't find the meat yet in the SwiftVets vs. Kerry controversy

Washingtonpost.com, the online version of WaPo, tonight posted a lengthy article by staff writer Terry M. Neal entitled "When is a Campaign Ad Not a Campaign Ad?" Because it's currently listed as an "online extra," I don't know whether it will or won't also appear in tomorrow's hardcopy WaPo, but I hope it does. Ostensibly it's an article about the so-called 527 organizations that have sprung up in the wake of recent campaign reform legislation, and it does indeed include some general discussion of issues common to those organizations. But almost the entire article is a discussion of the SwiftVets vs. Kerry controversy:

[T]his week it's another group, Swift Boat Veterans for Truth, that's getting all of the ink with ads accusing Kerry of being a liar and war coward.

Here's Mr. Neal's framing of the issues behind the controversy:

O'Neill and the group make the argument that Kerry lied or exaggerated facts to receive his three purple hearts, Bronze Star and Silver Star. O'Neill said he talked to more than 60 eyewitnesses, including former swift boat crewmen who served in the same division with Kerry during Vietnam and who take issue with his interpretation of events. It would take another book, or at least a long investigative report, to truth-squad every point made in the O'Neill book or the SBVT ads. And we won't attempt to do that here. We will, however, give you links to the organization's site, www.swiftvets.com, where, if you're really interested, you can get their side of the story — and view the anti-Kerry rhetoric — in detail. For the sake of fairness, we'll also provide you the link for David Brock's Media Matters website, which has done a comprehensive deconstruction of the SBVT's arguments. Media Matters also exposed anti-Catholic, anti-Islamic and otherwise outrageous statements made by Corsi over the years on the conservative FreeRepublic.com website. Instead, this column is meant to examine the larger issue of whether this group can rightly call itself non-partisan while suggesting that its goals are educational, rather than political.

Mr. Neal is absolutely right that it would take "another book, or at least a long investigative report, to truth-squad every point made in the O'Neill book or the SBVT ads." Among the rather major points that he neglects to mention at all, however, is the "Christmas in Cambodia" discrepancy — something that, compared to many of the other factual conflicts now being argued outside the mainstream media, is dirt simple. This omission is odd, especially given that the most recent example of Sen. Kerry claiming to have served in Cambodia was published by this very same Washington Post on June 1, 2003 — Kerry's "lucky CIA-guy hat" story that is now absolutely infamous outside the mainstream media, but as yet unmentioned within it. From a personal standpoint, I'm modestly proud to note that as of this moment, a Google search on the terms "Kerry lucky hat" or "Kerry hat Cambodia" turns up BeldarBlog as the number one or two search result. And yet, isn't that incredibly pathetic? Shouldn't the results of entering those search terms — which Google and similar search engines rank in order of relevance, which includes a heavy weighting for source credibility (as determined by super-secret algorithms which consider how often the source has been linked elsewhere on the net) — be giving off links to WaPo and the New York Times and the Los Angeles Times and the Associated Press and the Chicago Tribune and CNN and ... well, you get my point, I hope. If George W. Bush were to claim that Chuck Yeager had given him a lucky rabbit's foot just before they flew a secret joint mission together over Cuba, do you honestly think the mainstream media would ignore that story? ***** Moreover, his protestations to the contrary about being unable to "truth-squad" the factual disputes between the SwiftVets and Sen. Kerry, Mr. Neal proceeds to regurgitate, albeit in toned-down vitriol, virtually all of the Kerry-Edwards 2004 and DNC talking points that have been trotted out over the last week to attempt to discredit the SwiftVets, collectively and (in the case of their principle spokesmen like John O'Neill) individually. In reading them here, as elsewhere, I'm continually struck by one thing: Only one side's spokesmen ever use the terms "smear" or "sleazy." John O'Neill, for example, has been called a partisan thug, a Colson protege, a career-long Kerry-hater, a Republican tool, and much worse. He'll defend himself from those charges, when asked about them, with polite and calm factual rebuttals. But he keeps his cool, and he never plays the victim card, no matter how tempting that must be. Compare, for example, this, from O'Neill's interview with the WaPo's Neal:

O'Neill acknowledged that only one of the SBVT members actually served in Kerry's boat. But he said that misses the point — the other former crewmen worked in close proximity to Kerry and have eyewitness accounts that contradict the senator's version of events. While he said he respected the opinions of those like McCain who have criticized the group for distorting Kerry's record, he said SBVT's members have a duty and have earned the right to speak out "against a man who came back home and falsely accused us of being war criminals and lied about his own record."

— to this, from Salon's Martin Lewis (registration or annoying ad req'd to view):

In 1971, John O'Neill was Richard Nixon's personal choice to attack Veterans Against the War leader John Kerry. Thirty-three years later, O'Neill is still on the attack. And as his recent lie on CNN shows, he has no more credibility now than he did then.... Respected historian Douglas Brinkley, author of "Tour of Duty," has studied Kerry's Vietnam record exhaustively. "These are malicious fabrications in the heat of the election," Brinkley says. He adds that O'Neill; Adm. Roy Hoffman, his main source; and the other Swift Boat Veterans "are simply malcontents who have never forgiven Kerry for his actions in speaking out against the war. They seek retribution by fabricating stories to destroy him. Hoffman, in particular, lacks credibility. His claims against Kerry have changed frequently. And John O'Neill has zero credibility. He was — and still is — Richard Nixon's patsy."

At its most virulent — as practiced by James Carville and Lanny Davis in what can only be described as a gang-rape on national television — the Kerry supporters' tactics consist of continuous shouting to block O'Neill from speaking. They literally will not allow O'Neill to get in a word edgewise. O'Neill neither ramps up to argue that John Kerry was "Ho Chi Minh's patsy" nor complains about the personal attacks that have been made on himself. Rather, O'Neill has the calm poise of an experienced courtroom lawyer who's fought hard cases in tough venues before. He knows from experience that eventually, if only one side is shotgun-blasting the loaded rhetoric while the other side is rifle-shooting the objective facts, the jury will eventually notice. Some of them will be swayed and inflamed by the rhetoric, but as the voice tones and the body language and the sputtering and the ugliness begin to penetrate into their collective unconsciousness, the jury will draw the appropriate inferences. ***** WaPo's Mr. Neal eventually gets back to the ostensible subject of his piece, the 527s. After characterizing the SwiftVets' arguments as thinly veiled attempts to promote Bush's re-election rather than educate the public about Sen. Kerry, he offers a nice and rather important factual counterpoint:

However much Kerry supporters may gripe about SBVT, the non-partisan Center for Public Integrity — which has filed its own complaints against SBVT — has found that almost 95 percent of contributions to 527 groups this year have gone to Democratic-leaning organizations. Democrats can complain about SBVT, but it may be a can of worms they opened themselves with their aggressive efforts to navigate around the spirit of the very campaign finance law they championed.

In plain terms, if the campaign finance laws are being broken — a subject on which I have no firm opinion, because I can't make sense of the new laws and strongly suspect that they make no sense and are incapable of meaningful enforcement — the (not-so-secretly) pro-Kerry team has been breaking the law ninety-five times for every five times the (not-so-secretly) pro-Bush team has done so. (In fact, given the polarization of current politics, it may actually be more accurate to describe the opposing 527 organizations as genuinely anti-Bush or anti-Kerry, rather than pro-anybody.) ******* One of the things I tell my clients is that lawsuits aren't like soccer games or hockey games, where one or two big plays decide the outcome and the final score is 2-1 or 3-0. They're more like pro basketball games, in the old ABA days, when the final score may be 148-144 after three overtimes. I'm not sure how far either sports or courtroom metaphors can be extended to politics, but that won't stop me from trying. My sense is that the refs still aren't calling any but the most obvious of one team's fouls, and they're whistling dead some shots from the other team that would have overwise counted because they clearly caught nothing but net. They're still ignoring altogether about half, or maybe two-thirds, of the playing court. They know who they would like to see win, or maybe who they think ought not to win. But O'Neill and the SwiftVets are scoring some points. The fans are beginning to heckle some of the more egregious fouls and the refs for refusing to call them. The team that was heavily favored coming into the game has thrown some bricks and some clangers and some airballs; they're not winning by the forfeit they expected, and they're starting to sweat; and that team's star player has got to be worried that he's close to being in foul trouble. The game's a long way from being over. Just speaking for myself, I like the trends. BeldarBlog may yet lose its place in the Google rankings — and on the day when WaPo links top BeldarBlog links for "Kerry lucky hat," I'll be lifting a glass to the SwiftVets. Update (Sat Aug 14 @ 9:15am): Just ran a Technorati search on the URL for this story — precisely one match, that being, of course, this post. Why do I get the feeling that poor Mr. Neal's mother and I are the only two people in the world who've read his story? I tried to find Neal's email address, but it's not in the list of WaPo staff writer emails — perhaps because he's only staff for the online edition? I did note that since I first posted it, however, they've changed the title of Mr. Neal's article to "'Nonpartisan' Swift Boat Ad?" Still no MSM mentions of Christmas in Cambodia, though.

More re John O'Neill's and the SwiftVets' "Tar Baby" strategy

It's always gratifying to a lawyer who's laid out his legal analysis of an issue when other lawyers — including a law professor — come to essentially the same conclusions, working independently.  I therefore enjoyed reading "Legal Terrorism," an article by Brooklyn Law School Professor Emeritus Henry Mark Holzer and lawyer-novelist Erika Holzer that appeared Tuesday in FrontPageMag.com and has now been reprinted on the SwiftVets website (where I came across it today). 

The Holzers' legal analysis — although written in response to the joint DNC/Kerry-Edwards 2004 threat letter intended to scare media outlets away from accepting the SwiftVets' video as a paid 527 political advertisement — closely tracks my own conclusions from my fisking of Kenneth Baer's piece in The New Republic Online entitled "Frontal Assault," in which Mr. Baer urged Kerry to sue the SwiftVets for defamation.

Here's one bit of information, however, that was new to me, but completely unsurprising in hindsight, given what I know from personal experience about John O'Neill's abilities as a legal strategist:

John O’Neill, partner in a Houston law firm and a founding member of Swift Boat Veterans for Truth, anticipating the controversy the TV spot would generate and the need for documentation, sent a letter to station managers on August 2 (three days before the team of Elias and Sandler [lawyers for the DNC and KE2004] shifted into gear).  The letter itself, eight pages long, is buttressed with 27 exhibits — roughly 100 pages of what O’Neill correctly labeled “factual support for the advertisement.” 

Reading this, I let loose a long, low, and sincere whistle of admiration, and muttered the name "Brer Fox."  Yes, of course, the Kerry camp's reaction — to lawyer up and threaten lawsuits — was predictable.  But still.

Say it with me now:  "Tar Baby."

*******

By the way, I've added a new archival category to BeldarBlog, stickied in my sidebar, to conveniently collect all of my posts regarding the controversy between Sen. Kerry and the SwiftVets, and I've added the appropriate tag to my prior posts to make sure they're included in that archive.

Note to readers:  I've only been able to find some of the affidavits that were referenced in John O'Neill's cover letter to the media outlets, and as far as I know, the SwiftVets themselves haven't yet put them all up in .pdf scan form on their own website.  Does anyone by chance have links to the complete set?  If so, please pass them along via email or comments.  Thanks!

I appreciate that fact, Mr. President

I was reminded of my recent post that included, as part of its overlong title, "Why I'm glad Dubya didn't get into Texas Law School," when I read this paragraph in Chris Suellentrop's recent article in Slate entitled "The Right Rev. George W. Bush:  Among the worshippers at the president's traveling revival show":

Bush says a CEO in the audience has an interesting idea to share. The man doesn't say anything. "Flex time," Bush says. "I'm glad you told me what my interesting idea was," the CEO says appreciatively. Bush replies, "I'm not a lawyer, but it looks like I'm leading the witness." "I appreciate that," the CEO says, and Bush shoots back, "You appreciate the fact that I'm not a lawyer?"

Yessir.  Oddly enough, even though I'm one myself, I do.

Kerry's positive campaign

Can anyone explain to me why Chris Muir's comic strip Day by Day isn't in every major American newspaper that has a comics section?  He shoots, he scores again:

Most deft insult I've heard today

Hugh Hewitt — whom I'm happy to report is no longer perma-linkless — has up a transcript of his live interview from his talk radio show today with Vice President Dick Cheney.  (As I noted on Tuesday, Hugh's most recent show can be heard either live — or any time, any day of the week, via a 24/7 looped streaming audio feed — from his program's flagship station, KRLA-AM in Los Angeles. Heckuva deal!)

The Vice President is known for his dry, deadpan wit, but that wit can have a sharp barb to it as well, as we see in this exchange:

HH: "Mr. Vice President, a few weeks ago I covered the DNC back in Boston, and Michael Moore was really the crown prince of that party.  You have been a public servant for three decades, have you ever seen anything like this, to happen inside one of the major parties?"

VP:  "(Laughter)  I can't think of anything like that, the equivalent, where somebody outside takes on such a prominent role. Maybe that's a comment on the weakness of the political leadership that we see on the other side of the aisle today."

Talk about skewering two big ole meatballs with one deft thrust!  That's actually the best offensive use of Michael Moore I've seen by any conservative.  Now I'm waiting for the Kerry campaign to react — can they admit how crushing an insult they've just been handed?  I imagine it might go something like this:

[John Kerry's stentorian baritone voice:]  How dare the Vice President ... stoop to such low, partisan politics of personal destruction ... as to demean ... and insult ... the noble men and women of this great national Party — some of them ... like me, for example ... who once sweated under the hot sun ... in the jungle-choaked rivers ... in or around Cambodia — by linking us with that—

[At this point an aide franticly tugs on Kerry's sleeve and whispers in his ear about the just-completed focus group report which reveals that Michael Moore polls 88.4 percent better with the Dems' vital Angry-Right base than Kerry himself does.]

As I was saying, how dare the Vice President ... ummm ... continue to ... ummm ... try to stiffle dissent ... and the free exercise of opinion ... by the underdog, by the politically powerless ... by the circumferentially challenged ... like my great good friend, Michael Moore ... to whom I'm now pleased to tender ... a sincere invitation ... that he formally join the Kerry-Edwards 2004 Campaign ... as our fact-checker in chief!

I want to commend Hugh for his questioning as well — substantive, topical, and articulate.  Hugh used every second that the Vice President could spare from his schedule to excellent effect.  When I read a series of tight Q&A like this, I think to myself, "Man, if only the network correspondents could do half this well, I'd turn my TV back on sometime other than just on Sunday mornings!"  But ... they don't, so I won't. 

Anyway, congrats, Hugh, ya done us all proud, my friend!  (And thanks, incidentally, for the link!)

WaPo enters the SwiftVets fray

Thursday's Washington Post includes an editorial entitled "Swift Boat Smears" that will doubtless comfort Sen. Kerry and his allies.

To its considerable credit, the WaPo's editorialists don't altogether ignore the competing evidence.  For example:

Dr. Letson isn't listed on Mr. Kerry's medical record at the time. That doesn't disprove his claim to have treated Mr. Kerry, who received a superficial shrapnel injury to his arm. But neither does the account of Dr. Letson or others about the incident indicate that Mr. Kerry was lying.

Bravo, WaPo, for not falling for the Carreon Signature Fallacy!  But you're missing the point, my friends in Washington.  Kerry claims to have been wounded by the enemy.  Dr. Letson's statements about the physical evidence indicate that the fragment he removed from Kerry's arm was from American munitions — and that, as Dr. Letson has testified in his affidavit, "[t]he crewmen with Kerry told [Dr. Letson] that there was no hostile fire, and that Kerry had inadvertently wounded himself with an M-79 grenade."  Everyone agrees that Kerry had a trivial injury — but if it was self-inflicted, then that Purple Heart wasn't justified.

Elsewhere, the WaPo duly notes some of the conflicts in the versions of events regarding the Rassman rescue and Kerry's Bronze Star.  "But the weight of the evidence supports Mr. Kerry," opines the WaPo. 

Well, okay — that's one conclusion that can be drawn, and it depends on how you assess the credibility of the witnesses and the evidence.  Given that this is on the editorial page, I can't fault WaPo's editorial writer(s) for coming to, and expressing, an opinion. 

Personally, however, I'd find that opinion more persuasive if, for example, on the question of whether there was hostile fire from the shores, WaPo could give a better reason for believing Rassman, Sandusky, and Wasser on the one hand, over O'Dell, Chenoweth, and Thurlow on the other — beyond the fact that the SwiftVets' largest financial backer is a Texas Republican.  Yes, it's certainly worth considering what motivations these conflicting witnesses have when one's deciding whom among them to believe.  But I find it rather hard to accept that the hulls and superstructures of the Swift Boats involved in this rescue — none of which displayed any bullet holes when they returned — were guilty of partisan bias.

Still, I didn't expect WaPo to write its first editorial on this subject with a title like "John Kerry's Got Some Serious 'Splainin' to Do!"  The fact that this mainstream media outlet is beginning to react to the SwiftVets controversy in a serious manner is significant.  This editorial may calm the butterflies in the stomachs of Sen. Kerry's supporters — until they realize that the "ignore it and it will go away" dike has now been thoroughly broken.

(Hat-tip to PrestoPundit, with thanks, too, for his link to my post on the Baer article.  And don't miss Patterico's excellent take on this editorial, about which I can only say, great minds think alike.  Update:  Captain Ed also has a typically thoughtful take on the WaPo editorial, and was kind enough to link my own post.)  Update:  Patterico also shines the bright lights on his most regular and shameless target, the LA Times.

Impermeable to the facts: Kenneth Baer's article "Frontal Assault" in The New Republic Online

Sometimes when I'm casting around, looking for a paradigmatic example from the political left, the fates will hand me someone like Kenneth Baer to illustrate in one fell swoop how the Dems so often come up so badly wrong on matters political, legal, and factual.  This is as fine a specimen of impermeability to the facts — with the inevitable political and legal misjudgments that follow — as I could ever dream up.

Mr. Baer says a defamation
case can and should be made

Writing today in The New Republic Online, former Gore speechwriter and Democratic consultant Baer weighs in on the Kerry vs. SwiftVets controversy in a new article today that's aptly entitled "Frontal Assault."  In it, he argues that in response to the SwiftVets' video and the upcoming publication of John O'Neill's book Unfit for Command,

the Kerry campaign should do the political equivalent of steering a swift boat into enemy fire: sue SBVT for libel.

Now, any political consultant worth his retainer would say that for any candidate — much less a presidential candidate with a trial lawyer running-mate — to sue his opponents is political suicide. Doing so would magnify the impact of the charges made in the ads, which as of now are only playing in seven small media markets, and keep them in the news for the duration of the campaign. It would also derail the campaign from its message, underscore the litigious history of his vice presidential pick, and open the candidate up to a possibly invasive subpoena.

All of this might happen, and are serious risks to consider. But the Kerry campaign — and a potential Kerry presidency — may not be able to afford to keep silent and allow the right to practice this kind of character assassination with impunity.

Baer argues that the risks of a defamation lawsuit are justified here because "[i]f Kerry does not pull these right-wing weeds now, they may choke his candidacy — and overrun his presidency."  And with remarkable candor, he concedes the purpose that such a lawsuit might serve (emphasis added):

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.

Even though, Mr. Baer, you have "eyes mercifully saved from law school," you've almost correctly (with some bracketed changes made by me) described the key 1964 US Supreme Court decision, New York Times Co. v. Sullivan, which requires that "to prove [defamation,] a public figure must show that what was written or said about him was false and that those who said it had 'actual malice'; that is, that [the defendant] knew it was false [or] had reckless disregard for [the truth or falsity] of that [factual assertion]."  Modern American defamation law does indeed draw a sharp distinction between statements of opinion and fact — opinion being simply non-actionable — and it creates an especially high bar for public-figure plaintiffs.

So let's start with the supposed "facts" that lead Mr. Baer to conclude that "it appears that Kerry would have a fairly strong case" — in the process of which we must first test Mr. Baer's characterization of them as being matters of fact rather than of opinion, then test the truth or falsity of genuinely factual matters, and only then assess whether any false statements of fact might be able to hurdle the bar of New York Times v. Sullivan.

Mr. Baer misses the distinctions between fact and
opinion, and between opinions on different topics

Immediately after discussing the Sullivan standard, Mr. Baer writes:

At this point, we only can assume that the SBVT knew what it was saying was false: 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.

Congratulations, Mr. Baer.  In less than a paragraph, you've demonstrated not only that you have a poor grasp of what's already been reported widely about these matters, but that you utterly fail to understand either the difference between fact and opinion, or the crucial legal and logical concepts of relevance.

Talk about waving a red flag: "[W]e can only assume that the SBVT knew what it was saying was false."  Mr. Baer, when we lawyers ply our profession in court — unlike your own professions as a speechwriter, consultant, or journalist — we're bound by canons of ethics and both procedural and substantive rules of law.  If we file a defamation case in which "we have only assumed" that the defendant "knew what it was saying was false," we've violated the rules that require us to have a reasonable and objective basis from which to believe that the claims we're asserting are well founded.  Stated another way, filing a defamation suit in which I have "only assume[d] that [the defendant] knew what it was saying was false" will very likely get my pleadings stricken and the lawsuit promptly dismissed, and it may also very likely get me fined and sanctioned, with a possible risk of losing my law license.  As much as some of us lawyers enjoy being pretend journalists when we blog, Mr. Baer, most of us prefer to keep open the possibility of continuing to practice law.

I've already written three separate posts about Captain Elliott's "terrible mistake," Mr. Baer, and I commend them to you as a demonstration for why Captain Elliott's phrases, almost certainly wrenched out of context by Boston Globe reporter Mike Kranish to produce a sensational "retraction" story, do not in fact undercut any of the factual claims that Captain Elliott has made as part of the SwiftVets' efforts.  The bottom line, sir, is that the so-called "retraction" — when handled in the way courts and lawyers actually deal with such evidence — is unlikely even to be persuasive impeachment of Captain Elliott's factual claims regarding the state of information that was available to him when he recommended approval of Lt. Kerry's Silver Star nomination.  The notion that his "retraction" could prove in court that his own or any other of the SwiftVets' factual assertions were false — much less that they were made with actual malice — is simply hilarious.

Likewise, the statements made by George Elliott and Adrian Lonsdale in connection with Sen. Kerry's 1996 re-election campaign — when, ironically, they appeared to defend John Kerry against the same sorts of charges that Kerry himself had leveled against his fellow veterans as an antiwar activist — were extremely broad and general assertions of opinions, along the lines of, "The successes we had were due to our officers' bravery, and Kerry was no exception."  Statements as to whether someone is "brave" or "honorable" or "truthful" — just like statements to the contrary — are classic examples of statements of opinion.  Neither these gentlemen's 1996 statements, nor any conflicting ones made by them as part of the SwiftVets' ad, are going to be the basis for anyone's defamation lawsuit — period, end of paragraph, please turn out the lights as you exit the courtroom. 

I will grant that the 1996 statements can be argued — in a political debate — to be inconsistent with the opinions presently expressed by the SwiftVets.  But even in a political debate, one has to ask — opinions on what?  Is it inconsistent to simultaneously hold an opinion that John Kerry wasn't a war criminal, but that he's unfit to be Commander-in-Chief?  In 1996, these men weren't even endorsing Kerry's fitness to be re-elected as a United States Senator; rather, they were extending to him the loyalty that he himself had refused to show to them or his fellow veterans when they were being blasted (including by Kerry) as active conspirators in war crimes and baby-killings. 

Likewise, that some of the SwiftVets may have given Kerry good ratings in official reports was, at best, an expression by them of an opinion regarding his subjective qualities that may arguably be different from the opinions they're expressing today regarding his subjective qualities.  As a matter of law, the opinions today can't qualify as legal defamation, nor can inconsistent opinions from yesterday make them so.  And again, even in the purely political arena, one has to ask other important questions to evaluate the supposed inconsistencies.  Has (as in the case of George Elliott, for example) new factual information become available to the speaker that he lacked when he gave his previous opinion?  If so, the prior statement of opinion is not even good impeachment for the current, very different one.

As for not "initiat[ing] official proceedings to challenge the Navy's decision to award Kerry these medals":  please, this is too silly to waste much of my bandwidth on.  The SwiftVets aren't trying to strip Kerry of his medals now.  They do want to raise arguments in the political arena, however, to dispute Kerry's claims that those medals help establish his fitness to be elected President.  It's hugely funny to watch Kerry's allies try to smear John O'Neill as a "career Kerry hater" for speaking out in opposition to his antiwar spiel in 1972, while simultaneously faulting other SwiftVets for waiting until Kerry is on the cusp of the Presidency for doing so.

Mr. Baer repeats the "Carreon signature" fallacy but
fails to shake Dr. Letson's evidence about treating Kerry

So we come now to what Mr. Baer considers his best evidence:

More critical to going forward with a case, from what we know about the two central factual claims made in the ad, we can say more definitively that they are false.

First, Medical Officer Lewis [sic] 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."

Again, Mr. Baer makes the nonlawyer's mistake of failing to distinguish between fact and opinion.  "I know John Kerry is lying about his first Purple Heart" is, by definition, a statement of opinion.  It's Dr. Letson's opinion about what was, or is, inside Kerry's head, and such a statement can't be anything other than an opinion.  Maybe it's a well-founded and persuasive opinion, or maybe — depending on matters of objective fact from which one draws such inferences — it isn't.  But it can't be a basis for a defamation claim — ever.  The lawyer who tried to make it such would end up asking Dr. Letson to treat the contusions on his backside from the courthouse door swinging closed behind him.

The next phrase, "I treated him for that injury," by contrast is indeed a statement of fact.  Can it be defamation?  Well, no — by itself, it does nothing to injure Kerry's reputation.  Elsewhere than in the SwiftVets' video, however, Dr. Letson has offered considerable other assertions of objective fact — about the nature of the wound, about the characteristics of the fragment he removed from Kerry's arm, and about what both Kerry and the others who accompanied him said, as part of the taking of Kerry's medical history for this injury, about how it was inflicted.  (The last, though second-hand descriptions and arguably hearsay, have independent legal significance that would make them admissible into evidence for at least some purposes.)  So let's cut Mr. Baer some slack here, and assume for the present that Dr. Letson's statements on factual matters could, arguably, be defamatory — a stretch, but one worth indulging in for the moment so that we can get along to the heart of Dr. Letson's claimed falsehood.

So did Dr. Louis Letson treat Kerry or not?  What's Mr. Baer's "definitive" proof that Dr. Letson didn't?  "Letson offers no proof for his assertion, just details about the dates and places surrounding the injury that are readily available."  Well, here's a news flash, Mr. Baer:  Both in courtrooms and in the political arena, a sworn, first-hand assertion — what both lawyers and lay people call "eye witness" testimony — is indeed considered "proof."  In fact, the conventional wisdom is that it's the best type of proof.  And indeed, in addition to his first-hand recollection, Dr. Letson has offered corroborating details — evidence that is consistent with, and therefore supports the credibility of, his first-hand recollection.

Like any other witness' first-hand recollections, Dr. Letson's could be subject to impeachment by surrounding circumstances.  One of these "damning" details, argues Mr. Baer, 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.'"  I apologize, for I'm about to lapse into technical legal jargon here.  My considered professional reaction to this argument as a practicing courtroom lawyer for the last 24 years — and I will spare you the Latin version, at least — is this:  Duh!

Mr. Baer, when is the last time you had a medical problem that was only treated by one professional, with no support staff?  Only a moron would suggest that the existence of one person's signature on a medical record negates the possibility that any others were involved — even more directly involved — in the treatment that was given.

How does Dr. Letson respond, when confronted with this "damning" proof that he's lied?  From Jim Geraghty's "The Kerry Spot" on National Review Online, we get this quote from Dr. Letson (some bracketed portions inserted by Geraghty, some by me):

"I am the doctor [who treated Kerry]," he said. "Let me explain that. My critics are pointing to the [signature on the medical record], J.C. Carreon. If they look [at] it carefully [they'll see] a scribble after the words, saying, "HM1." HM1 is a hospital man first class. Jesus C. Carreon was one of my medics at that naval base. He was a top-notch fella. Real prince of a fella."

"Unfortunately, my friend Carreon died about 1992. He’s not around to back this up," he said.

"Kerry might have thought my name was J.C. Carreon. I was the only medical officer at that base. September 68 to Sept. 1969. I can verify that with [my] commanding officer."

Dr. Letson's assertions of fact about his treatment of Kerry aren't new.  They were reported in detail, for example, by that right-wing rag The Los Angeles Times as early as May 5th, and the Kerry partisans were already making the "Carreon signature" argument back then.  It is genuinely pathetic to see someone like Mr. Baer — and countless other Kerry partisans — still repeating that sputtering non-refutation today!  This particular old dog won't hunt, but it just won't seem to die, either.  For pete's sake — in the sacred name of Old Yeller! — won't someone please put it out of its misery?

In a defamation case — as in the political arena — if you want to prove that Dr. Letson's eyewitness testimony is false, it's your obligation to bring forth the contrary evidence.  Have the Kerry Campaign or its allies produced an affidavit from a controverting eye-witness?  Have they produced documents to show that Dr. Letson was not, in fact, the base medical officer at Cam Ranh Bay in December 1968?   Have they produced a prior inconsistent statement by Dr. Letson?

Nuh-uh.  Nope.  Nada.  Squat.  Bupkiss.  (Those are also technical legal terms, but I think their meaning is understandable from the context.)  More than three months after Dr. Letson went public, instead, we still have Kerry flacks saying, "But look at the signature!"  Indeed, yesterday's ballyhooed report by the Annenberg Foundation's supposedly nonpartisan FactCheck.org again repeats the "Carreon signature" fallacy as if it's a big "Gotcha!" — instead of just a big joke.

Mr. Baer can't find a defamatory
factual assertion from Van O'Dell

Back to Mr. Baer and the second "definitively false" factual claim from the SwiftVets ad:

Second, 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 Rassman, the man who Kerry pulled out of the river. Either O'Dell is right, and Rassman, Kerry, and the US Navy are wrong — or O'Dell has a big legal problem on his hands.

Again, a statement that someone else "lied" is a statement of opinion as to someone else's state of mind.  Nothing here can possibly be a basis for a defamation claim.  By contrast, Mr. O'Dell's sworn affidavit and other public statements are indeed full of factual assertions.  But which of them are the crucial ones that Mr. Baer believes to be false?

That O'Dell wasn't on Kerry's own boat is absolutely irrelevant.  The issue is whether he had the opportunity to observe the facts he's recounting — and there is no dispute, in fact, that O'Dell was there, on the scene.  Much of what O'Dell has testified to — for example, that he personally was there aboard another boat, and that Swift Boat PCF 3 hit a mine, throwing two of its crewmen into the water, who were rescued by other Swift Boats — isn't disputed by anyone.  No one disputes that Kerry did, in fact, pluck Rassman from the water.

And indeed, although Mr. Baer refers to O'Dell's "account," we simply have no clue what Mr. Baer thinks were the factual assertions, as recounted by O'Dell, that were false.  Again, Mr. Baer, any lawyer who wants to avoid a prompt dismissal with sanctions will tell you that when you file a defamation case, you have to be very specific about the factual assertions that you claim were defamatory.

I could guess what specific factual assertions Mr. Baer had in mind as being "false and defamatory."  There is indeed some conflict among the various witnesses' accounts — Mr. Rassman, for example, can't seem to tell a straight story about whose boat he'd been on before he went into the water, and there's some dispute over whether there was a second mine.  There's certainly a dispute over whether there was or was not enemy fire coming from one or both shores — and to me, this seems to be the most interesting dispute for purposes of making a subjective judgment call as to whether Lt. Kerry's actions in plucking out Mr. Rassman were significantly more heroic than his actions some years later in rescuing Licorice the Unlucky Hamster.

But if there's a defamation case to be made — or even a political argument to be made that O'Dell or any of the other SwiftVets have made false statements of fact — the proponents of that argument have to point to the specific factual assertions, and then produce more credible evidence to show that those factual assertions were false.  And then you have to show malice.  With due respect, Mr. Baer, you not only aren't even to third base yet, you're still struggling to find the entrance to the ball park.

Conclusion:  Mr. Baer, I wish Sen. Kerry would
"bring it on!" in court — but he can't and won't

I've written recently that the prospect of Kerry filing a defamation lawsuit — either against the SwiftVets, individually or collectively, or their publisher, or media outlets who broadcast their video as a paid political advertisement by a 527 organization — might have been much welcomed by the potential defendants as part of a "tar baby" strategy.  I have no doubt that John O'Neill and his fellow SwiftVets would love nothing better than to submit their assertions, both of fact and opinion, to the microscopic scrutiny of public court proceedings — and better still, to submit the Kerry camp's counterspin to that same scrutiny in a place where a judge will enforce the rules of evidence and hatchet jobs like that done to Captain Elliott tend to blow up in the hatchet wielder's face.

"[L]ies are different [than inflammatory opinions]," concludes Mr. Baer, "and those that tell them with the intent to distort our politics should be held accountable."  On this much we can agree, Mr. Baer.  The calling to account here, however, will likely be in a political arena.  Trust me on this, Mr. Baer — your man will be in far better shape even on that spongy ground than he ever would be in a courtroom.

A talk radio virgin no longer

There's a new archival category on BeldarBlog — "Talk Radio."   I lost my talk radio virginity early this evening, during a thunderstorm — and I just want to say, Hugh Hewitt was very, very gentle. 

I blush to think how brazen I was — I made the first move, on the 800-number.  I tried to prepare myself while I was waiting (six browser windows open, notes, cold water, and a towel).  I really felt like he respected me afterwards — no, really! — even though I know he'd been carrying on just before I got there with that Roger Simon and that Captain Ed.  And I was followed by a surfer girl vocalist named Daisy Shane (who sounded gorgeous), and then by Byron York from NRO.  They were all very good — much more "experienced" than me, if you know what I mean.  They've done this before and it was my first time.  But it really was pretty painless, and I might do it again some time, if I can get up my nerve again.

[Disclosure:  In a different millenium, my high school job was as a radio announcer — a "DJ" in the days when the disks weren't shiny silver — on KPET-AM in Lamesa, Texas, where we ruled the High Plains of West Texas with our pulsating 250mw of power.  Meaning that after sunset, it's unlikely the young Dubya, while courting Laura back in Midland some 60 miles away, ever listened to my country-western tunes and snappy patter.  But you know, that was so long ago, and such a far cry from going all the way coast-to-coast on national talk radio — I don't feel like that really counts.]

My impression is that Hugh's one of the most popular and effective — yet least offensive and dogmatic — interviewers on talk radio.  And certainly since he effectively links the blogosphere to the talk radio universe and is a blogger himself, he's got quite a following on the net.  If, like me, you live in a city where none of the local stations carries Hugh live, or if you miss a show or want to hear Hugh at odd hours, you can access a good-quality 24/7 repeating internet feed of his show from his program's flagship station, KRLA-AM in Los Angeles.  Heckuva deal!  So how come Prof. Reynolds wrote yesterday, "I'M ON HUGH HEWITT: His website is down, though so you can't listen live over the Internet."  Glenn, Glenn, Glenn — you didn't know about the 24/7 repeating feed, huh?  It's almost as useful as carrying around a digital camera!

Okay, okay, I can tell you want all the details!  [Warning: 1.75MB .mp3 file lasting 3min 43sec — you're welcome to listen if you're really a voyeur, but right-click and save target to your hard drive for best results and to avoid abusing my bandwidth, please!]  Well, I've corresponded some with Hugh before by email and he's been kind enough to link to BeldarBlog a time or two (foreplay?), and he greeted me, to my surprise, like a long-lost friend.  No, I won't try to reprise my call here (most of what I talked about, I've recently blogged about anyway).  He did give me far more time than I'd expected — such a gentleman, not hurrying me!  He even laughed at my lame jokes — what more could a virgin ask for?

Anyway, thanks Hugh.  I'll always remember you — it was genuinely good for me, and I hope you will remember also that I chose you for my first time.

VodkaPundit lays out a Game Plan

"Well, damn!" Beldar exclaims admiringly.  Stephen Green sounds like Victor Davis Hanson in his new post entitled "Game Plan."

Okay, I guess Dr. Hanson wouldn't write this paragraph exactly this way:

That's what gets me about all the complaints that President Bush "didn't have a plan" to "win the peace" in Iraq. Oh, blow me. Nobody ever has a plan for the peace. Or if they do, it will prove useless. "No peace plan survives the last battle" is the VodkaPundit corollary to Clausewitz's dictum that no battle plan survives first contact with the enemy.

But it's a damned nice piece of work — well-argued, with persuasive historical references and analogies — and with which I agree entirely.

War heroes in the White House

Hugh Hewitt's "Col. Kurtz" meme finally clarified in my mind — an epiphany! — when I read this comment from "Chad" on Wizbang:

John Kerry was in Cambodia. It's all a conspiracy. Didn't you see Apocalypse Now? It was based on the life of John Kerry. He was an assassin and a war hero.

I sort of agree with Chad.  I've come to the sudden realization that it's only fair that Kerry take over the White House now from its current war-hero occupant — President Josiah Bartlet, who, as we all know, brought Kurtz to justice (or justice to Kurtz). 

The GOP will get its chance again in 2008, when The Terminator will win big-time.  We won't need to amend the Constitution; the great irony will be that the Kerry Administration will have removed all legal barriers that would have prevented us from cloning a version of the Big T who will have been born (or at least decanted) in the USA.