BeldarBlog

Sen. Kerry permits last statute of limitations for defamation to lapse, forever barring any defamation claim against SwiftVet authors O'Neill and Corsi

When I first brought it to his attention in September 2005, I reminded Sen. John F. Kerry that — based on the publication date on or about August 25, 2004, of Unfit for Command: Swift Boat Veterans Speak Out Against John Kerry by John E. O'Neill and Jerome R. Corsi — Sen. Kerry had already allowed the one-year statutes of limitations for defamation to expire in Texas (where Mr. O'Neill resides), New Jersey (where Dr. Corsi resides), and the District of Columbia (where their publisher Regnery Publishing, Inc. has its principal place of business and Sen. Kerry has his own regular place of business).

But as I noted then, Sen. Kerry's home state of Massachusetts has a very unusual, extremely generous and pro-plaintiff three-year limitations period for defamation claims. Massachusetts' three-year statute of limitations for defamation claims made it the very last feasible venue in which Sen. Kerry conceivably could file suit and gain his public vindication, if the SwiftVets' allegations about him were false. Those claims were certainly, indeed deliberately, injurious to his reputation; his damages arguably include the loss of the 2004 presidential election, however that might be valued in dollars and cents; and if John Kerry could hope to find a home-town advantage anywhere, surely it would be there. But now he's let the incredibly generous Massachusetts statute of limitations run out, too.

In my 2005 post, I offered this free and helpful legal advice to Sen. Kerry (who may need it, since his own bar membership is still on inactive status):

Seriously, though, Senator, some folks might draw the inference that rather than your having just forgotten the one-year anniversary of the publication of Unfit for Command — oopsies! — you're instead desperately afraid to ever face cross-examination under oath, or [to face] document subpoenas of yourself and your hagiographer Doug Brinkley, or the rest of the brilliant spotlight that accompanies a public lawsuit. Folks might become more and more convinced that you've very deliberately let most state statutes of limitations expire already, and that you'll continue to allow the clock to run on any that haven't yet.

So let's drop the snark and call a spade a spade: The very last thing John Kerry wants is to ever give the SwiftVets the legal tools they'd need to conclusively document their claims, because truth is, of course, a complete defense to defamation claims. Kerry doesn't deserve vindication, and he knows he could never get it in court. In court, there would be compulsory discovery of witnesses and documents, followed by a fair and disciplined adversary process, followed by a definitive determination of the truth or falsity of the SwiftVets' charges — a determination that he damn well knows would go against him. Instead, the haze of time and the near-universal bluster of his mainstream media allies (who continue to insist that the SwiftVets' claims were "debunked" and that Kerry was victimized) has given him a far better result than he could ever get in court.

I'll tell ya what, though, Senator: On the off chance that I'm misreading what's behind your allowing limitations to lapse against O'Neill and Corsi, and you really intended to sue them but just, I dunno, forgot:

You have a standing offer from me: Just sue me here in Houston for defamation. After all, I've republished most of the SwiftVets' claims here on my blog, and I've made many of them again in my own voice. I use a pseudonym for my blog name, but it's not anonymous — my name and address are linked on every page of this blog, and have been since the day it started. I'll waive any statute of limitations defense. I'll waive service of process. Hell, I'll meet you at the federal courthouse doors for the Southern District of Texas, Houston Division (you have diversity jurisdiction), and I'll even pay your filing fee!

You think it will be too expensive to have big teams of lawyers? Fine — since you were once a big-time courtroom lawyer, let's just you and me tangle one-on-one, both of us pro se. (I'll agree not to oppose your application for admission pro hac vice to the federal court here in Texas, and I'll even pay the fees to get your law license reinstated in Massachusetts.) Just me at my table, you at yours, and then a set of jurors good and true in the jury box. (I may need a napkin, though, or maybe even a drool-bucket, because the very notion of going one-on-one with you in court is causing me to salivate.) Or, hell, you can have as many lawyers as you want, and I'll still go pro se. Go fetch David Boies, he might do it for free (unless he's already figured out what a loser your case would be). Whatever. As long as there's a judge who can make you shut up each time your turn is over and who'll then give me a fair turn, I'll be satisfied.

My one stipulation is: No confidentiality orders, and no motions to quash. Everything that's uncovered in pretrial discovery has to become part of the public record without delay. We'll put it all on the internet via a neutral host (say, the WaPo). We'll do the pretrial depos on video, too, and jointly move the court to permit TV coverage of the trial, so that the public (and the jury, eventually) can see who sweats under oath under the bright lights.

Doesn't that sound like fun, Senator? Gosh, it does to me.

Kerry's and Beauchamp's shared pre-traumatic stress disorder

Others have noted the parallels between fraud Scott Thomas Beauchamp and fraud John F. Kerry in their lies about their fellow servicemen, but it wasn't until I read Charles Krauthammer's op-ed today — in which he noted (as have others) that the "whole point of [the "melted face in the Iraq mess hall"] story was to demonstrate how the war had turned an otherwise sensitive soul into a monster" — that I suddenly remembered Sen. Kerry's own episodes of pre-traumatic stress disorder, about which I blogged at some length (albeit without that wonderfully descriptive diagnosis) on August 29, 2004, in a post entitled "The war-torn soul of John Kerry."

Although I wrote it during the middle of the SwiftVets controversy, that particular post — and the transparent phoniness it demonstrated — relied solely on Kerry's own wartime writing, and on the date and place from which he was writing to his then-sweetheart:

From biographer Douglas Brinkley's Tour of Duty: John Kerry and the Vietnam War, we get this powerful portrait of young John Kerry's anguish, quoting a lengthy letter he wrote to his sweetheart (pp. 82-83; boldface mine):

Judy Darling,

There are so many ways this letter could become a bitter diatribe and go rumbling off into irrational nothings.... I feel so bitter and angry and everywhere around me there is nothing but violence and war and gross insensitivity.  I am really very frightened to be honest because when the news [of the combat death of his college friend, Dick Pershing] sunk in I had no alternatives but  to carry on in the face of trivia that forced me to build a horrible protective screen around myself....

The world I'm a part of out there is so very different from anything you, I, or our close friends can imagine.  It's fitted with primitive survival, with destruction of an endless dying seemingly pointless nature and forces one to grow up in a fast — no holds barred fashion.  In the small time I have been gone, does it seem strange to say that I feel as though I have seen several years experience go by....  No matter [where] one is — no matter what job — you do not and cannot forget that you are at war and that the enemy is ever present — that anyone could at some time for the same stupid irrational something that stole Persh be gone tomorrow.

You can practically hear the mortar rounds shriek overhead Kerry's foxhole, can't you?  Everything around him "is nothing but violence and war" — "endless dying," the enemy "ever present."

Except that this letter was written in Febuary 1968, while Kerry was an ensign aboard the missile cruiser U.S.S. Gridley as it plied the dangerous waters of war-torn Pearl Harbor, Honolulu, Hawaii, USA.  The Gridley was still almost 6000 miles and many weeks away from the waters offshore of Vietnam....

Same sort of drama queens; same exaggeration; same self-aggrandizement; even the same bad writing (especially if the comparison is to Beauchamp's blog writing, which obviously lacks the benefit of TNR's copy editors). They're definitely birds of a feather, those two. Sort of a three-way cross between peacocks, vultures, and mocking-birds (although I suspect even vulture-lovers would object to that comparison, and it's definitely unfair to mocking-birds, but they're the first kind of bird I can think of who're frauds, sort of).

Memo to Sen. Kerry

TO:	Sen. John F. Kerry
FROM:	William J. Dyer (a/k/a Beldar)
RE:	Limitations

Spectacular lawyer though you may (or may not) be in your own right, I know your staff includes some agile and diligent legal minds. Nevertheless, in the interests of fairness, I feel obliged to remind you of the fact that Unfit for Command: Swift Boat Veterans Speak Out Against John Kerry by John E. O'Neill and Jerome R. Corsi — which spent several weeks at No. 1 on the NYT Bestsellers List before last year's presidential election — was published on or about August 25, 2004, just over one year ago.

I'm quite sure you'll recall that many of your supporters, defenders, and admirers argued enthusiastically that fall, and even after the election, that you ought to sue Mr. O'Neill, Dr. Corsi, and their publisher, Regnery Publishing, Inc., for defamation — more specifically, for libel based on the book and slander based on their public comments in connection with it.

I'm less sure — but will nevertheless give you the benefit of the doubt — that you'll remember from law school and perhaps from your bar review course that defamation lawsuits are generally are based on state law, and that they are generally subject to state statutes of limitations, regardless of whether they are filed in state or federal court.

My concern, however, is that you may not be aware that most state statutes of limitations for defamation are quite short. In Texas (where Mr. O'Neill resides), New Jersey (where Dr. Corsi resides), and the District of Columbia (where their publisher Regnery Publishing, Inc. has its principal place of business and you have your own regular place of business), those jurisdictions' respective statutes of limitations on defamation claims expire only one year after the alleged defamation is published.

Thus, in most of the logical, permissible, and likely venues in which you might have brought such a defamation lawsuit against Mr. O'Neill, Dr. Corsi, and Regnery Publishing, you've already allowed your potential claims to become time-barred, Sen. Kerry! D'oh! Why'd you let that happen?

There may be still be a few permissible venues — perhaps Massachusetts, which has a shamefully generous three-year statute of limitations for defamation — in which your sloth (or whatever else may explain your inaction to date) has not yet extinguished your potential claims.

Nevertheless, you're also doubtless aware that with each additional day that passes, the evidentiary trail grows colder; potential witnesses' memories fade; and the chances that jurors are likely to take your potential claims seriously continue to evaporate. There is no possible tactical or strategic benefit to your continuing to withhold your claims, and there are overwhelming downsides to doing so. Your delay is inexplicable if you believe your claims are meritorious.

On the other hand, regardless of limitations, truth is a defense to a defamation claim — whether that claim has been brought in days, weeks, months, years, or even decades after the alleged libel or slander is published. A defendant might even voluntarily choose to waive his or its limitations defenses. And even a defendant who has asserted an applicable statute of limitations as an affirmative defense may nevertheless choose, as a tactical preference, not to bring an early summary judgment motion. Indeed, some defendants may quite relish the opportunity to begin discovery on the merits, being delighted to finally have an opportunity to have subpoena power, oaths, and penalties of perjury to help them finally dig out the truth.

In fact, just based on my own personal experience with him, Senator, I'd sorta bet that John O'Neill would not only waive limitations, but even pay your filing fees for you!

Seriously, though, Senator, some folks might draw the inference that rather than your having just forgotten the one-year anniversary of the publication of Unfit for Command — oopsies! — you're instead desperately afraid to ever face cross-examination under oath, or document subpoenas of yourself and your hagiographer Doug Brinkley, or the rest of the brilliant spotlight that accompanies a public lawsuit. Folks might become more and more convinced that you've very deliberately let most state statutes of limitations expire already, and that you'll continue to allow the clock to run on any that haven't yet.

The 2008 campaign season is right around the corner, Senator, and nobody is likely to forget the SwiftVets' allegations before then. If you believe that you have a legitimate defamation lawsuit, sir, you must use it or lose it. Put up or shut up. You snooze, you lose.

Tick-tock, Senator. Tick-tock!

Kranish and the Boston Globe should post Kerry's records for public review

Today's Boston Globe contains two articles by staff reporter Michael Kranish that discuss Navy records pertaining to Senator (and failed presidential candidate) John F. Kerry.  The articles say that the Globe obtained the records pursuant to a Standard Form 180, signed by Sen. Kerry, which named the Globe as the party to whom the records were to be directly released. In one article, Mr. Kranish asserts:

The lack of any substantive new material about Kerry's military career in the documents raises the question of why Kerry refused for so long to waive privacy restrictions. An earlier release of the full record might have helped his campaign because it contains a number of reports lauding his service. Indeed, one of the first actions of the group that came to be known as Swift Boat Veterans for Truth was to call on Kerry to sign a privacy waiver and release all of his military and medical records.

The second article focuses on Kerry's Yale undergraduate grades and concludes that Kerry was a "lackluster student" whose grade average was "virtually identical" to Dubya's. (Although in fact Kerry's grades appear to be slightly worse, both can fairly be characterized as "lackluster.")

Although both articles make interesting reading, I can't help feeling considerable skepticism about their conclusions.

Mr. Kranish and the Globe have indeed sometimes been critical of Sen. Kerry. But at other times — in particular with their trashy and unethical treatment of Captain George Elliott — they've skewed facts in ways that have been extremely beneficial to Sen. Kerry. And sometimes they've simply made incredible and inexcusable factual bloopers that likewise worked to Sen. Kerry's benefit — as, for example, in their biographical book "John F. Kerry: The Complete Biography by the Boston Globe Reporters Who Know Him Best," in which they described Sen. Kerry as "a man who was severely wounded in combat [and] who watched men under his command die." As I wrote last summer, the first statement is absolutely false. Kerry's wounds were trivial, but this egregious factual mistake about them wasn't. The second statement is unsupported and almost certainly an exaggeration.

Moreover, despite Mr. Kranish's subjective conclusion that the records he's reviewed contain no "substantive new material," his articles utterly fail to address, either in detail or in summary form, some of the most controversial questions about Sen. Kerry's war service — including in particular the questions regarding Sen. Kerry's discharge.

The Boston Globe should immediately post all the records, and the signed Standard Form 180, as .pdf scans on their website. Perhaps they already plan to do so, and simply haven't gotten the scans made yet. But even were there no past examples to create doubts about the Globe's and Mr. Kranish's objectivity and accuracy, those members of the public who are inclined to study the actual source documents — rather than accepting as gospel Mr. Kranish's pre-digested conclusions — should have the chance to do so.

If the Globe and Mr. Kranish feel themselves to be precluded from posting the source documents because of some lack of further authorization from Sen. Kerry or other privacy concerns, they should disclose the facts about that.

The Ra^thergate memos were only debunked when the public was able to examine them. Perhaps Mr. Kranish's and the Globe's analysis of the new records has been fair, balanced, accurate, and complete. But there's no excuse for preventing the public from seeing the source documents.

(Mr. Kranish's email address is kranish@globe.com, and the Globe's online feedback form can be accessed through this link. And there are many, many links to blogospheric reactions similar to mine at Michelle Malkin's, Captain Ed's, and Tom Maguire's blogs.)

---------------

Update (Tue Jun 07 @ 7:30pm): Hugh Hewitt and N.Z. Bear also had reactions very similar to mine.

Kerry: "I didn't flip-flop on anything"

By far the funniest line I've read since the 2004 election comes from the conclusion of Michael Kranish's interview of Sen. John F. Kerry in today's Boston Globe (hat-tip to an alert reader who emailed me the link):

Asked what hurt him the most during the campaign, Kerry mused about how ''all of us are flawed as human beings" and ''I think I have a strong record" before raising his voice and declaring: ''One thing I know is that I didn't flip-flop on anything."

Surely that line must induce soda-through-the-nose chortling among even many loyal but clear-eyed Democrats. It would be like Dubya declaring, "One thing I know is that I don't have a Texas accent." It leaves one wondering — actually, it leaves me in a state of absolute conviction as to — whether John Kerry really does inhabit an alternate, not-quite-parallel universe.

But now that Sen. Kerry's a big-time national loser, previously friendly MSM interviewers like Kranish or Meet the Press' Tim Russert have become strangely, very belatedly interested in whether he'll finally sign Standard Form 180. Sen. Kerry responds exactly like a child who's already been grounded but is still being questioned about the neck of the broken cookie jar draped around his wrist (bracketed portion by the Globe):

The furor over military credentials hasn't ended with the campaign. Kerry pledged to sign Form 180, releasing all of his military records, but challenged his critics, including Bush, to do the same.

''I want them to sign it, I want [swift boat veterans] John O'Neill, Roy Hoffmann, and what's their names, the guys on the other boat," Kerry said. ''I want their records out there. They have made specific allegations about my record, I know things about their records, I want them out there. I'm willing to sign it, to put all my records out there. I'm willing to sign it, but I want them to sign it, too."

Kerry later confirmed that his decision to sign the form is not conditional on any others signing, but he expressed lingering bitterness over double standards on military service.

''Let me make this clear: My full military record has been made public," Kerry said. ''All of my medical records and all of my fitness reports, every fitness report involving each place I served, is public. Where are George Bush's still? Where are his military records? End of issue."

End of issue? End of issue?!? I suppose that's true in the sense that the 2004 election effectively destroyed John Kerry as a politician of national scope — to the point that I feel slightly frivolous in bothering to write this post.

But doesn't this sound a lot like the "Tommy was stealing cookies too" defense? Earth to Astronaut Kerry: The "guys on the other boat" — which boat, which "guys"? shouldn't it be "guys on the other boats" (plural), plus "the guy on my boat"? — and even your opponent weren't running for President as self-proclaimed war heroes. You were.

And Dubya's military records have been sliced, diced, puréed, and even (when the real records were not deemed sufficiently damning by his enemies) forged and promulgated worldwide through a mainstream media conspiracy that, thank goodness, the blogosphere exploded.

By contrast —

• An official Navy Department spokesman confirmed during the campaign that the Navy had "withheld thirty-one (31) pages of documents from the responsive military personnel service record as we were not provided a release authorization" — i.e., the now-finally-promised (but still-not-signed) Form 180.
• WaPo's Michael Dobbs wrote way back on August 22nd (and then seemed, conveniently, to forget he'd written) that only selected medical records had been shown (and then snatched back) from the press; that the Kerry campaign was "continu[ing] to deny or ignore requests for other relevant documents, including Kerry's personal reminiscences (shared only with biographer [Douglas] Brinkley) [and] the boat log of PCF-94 compiled by Medeiros (shared only with Brinkley)"; and that there were "at least a hundred pages" of records that the Navy Department had withheld on privacy grounds (again, no signed Form 180) in response to WaPo's Freedom of Information Act request.
• Kerry's own pet biographer, Douglas Brinkley, has said to the press of the "massive archive" of Kerry's private papers that he (Brinkley) had reviewed in writing his book, "go bug John Kerry" since "the papers are the property of the senator and in his full control."

In short, not only many details of John Kerry's active duty service record, but of his discharge status and his Paris trips (plural) to meet with the Viet Cong and North Vietnamese, still remain shrouded behind Sen. Kerry's very effective stonewall.

If the American public had come to believe that Sen. Kerry had the sort of passionate dedication to protecting us that I believe he has for protecting his own secrets, the guy might actually have been elected. To complete my backhanded compliment, I'll add that John Kerry could have taught Richard Nixon the true meaning of the terms "brazen" and "cover-up."

And yet John F. Kerry, the self-promoting "war hero" and former presidential candidate, has the unmitigated gall to suggest that the "guys on the other boat[s]" be put under the microscope he's repeatedly and successfully deflected from himself.

I suppose to have a sense of shame, one must first have a sense of reality — and John Kerry is so shameless precisely because he lacks any grip on reality. He's still living in the fantasy world of his Super 8 home movies and war diaries — the noble, tragically misunderstood Last Action Hero of his own peculiar alternate universe.  Of course, he's got friends who live there with him — Michael Moore, Garrison Keillor, Al Gore, Jimmy Carter, Al Sharpton, etc. The question confronting the Democratic Party, however, is whether they all want to live there with him.

NYPost gossips about possible Kerry defamation lawsuit against SwiftVets

Reader and frequent commenter "Raving Atheist" emailed me a link to a very amusing blurb written by Richard Johnson in the New York Post's "Page Six" column entitled "Kerry Fit to Sue 'Unfit' Author," which begins:

Liberal loser John Kerry might be planning to strike back at John O'Neill, the "Unfit for Command" author who claims some of the credit for Kerry's defeat, sources say.

In the book, published by Regnery not long before the election, O'Neill — who, like Kerry, commanded swift boats in Vietnam — attacked Kerry's war record and branded him a traitor.

(Another reader thoughtfully emailed me with this link to a NewsMax write-up on Johnson's blurb, but it doesn't add much to the NYPost's own gossip.)

I first wrote on the topic of the Kerry campaign's threats of a defamation lawsuit last August 11th, when The New Republic's Kenneth Baer argued (in an article that's now been moved to TNR's subscription-archive, but that I quoted extensively) that such a lawsuit would be well-founded. For reasons both legal and factual, I rather strongly disagreed, and for reasons entirely political, I thought that such a lawsuit would not possibly be filed during the campaign season. Nothing that happened later during the SwiftVets vs. Kerry saga in any way changed any of my original opinions as to the lack of legal and factual bases for such a lawsuit. But Mr. Johnson's unnamed source apparently thinks that the political dynamics no longer would prohibit such a case from being filed:

Now, "the Kerry camp is thinking about filing a libel lawsuit against Regnery and O'Neill," a source close to the candidate's inner circle tells PAGE SIX. "I don't know if they will actually go forward, but consideration is serious. If Kerry plans on running again in 2008 — and I'm hearing he will — it would make sense that he'd file the suit."

Kerry's rep, David Wade, said he hadn't heard about any proposed lawsuit, but promised to look into it.

Let's just say I'm not holding my breath waiting for this lawsuit to be filed. Nor, I strongly suspect, is SwiftVets' spokesman John O'Neill. According to Mr. Johnson's blurb,

O'Neill, who charged that Kerry faked his wounds and won his medals under false pretenses, says he won't write another book if Kerry runs in 2008, but will definitely campaign against him again.

That's actually a substantial overstatement of the SwiftVets' allegations — they never claimed that Kerry "faked his wounds." They did claim, however, that all three of Sen. Kerry's Purple Heart wounds (or four, if you count the bruised elbow) were trivial, and that two of the three Purple Hearts were undeserved because they resulted not from enemy action, nor even from someone else's "friendly fire" while there was incoming enemy fire, but rather from Kerry's own unintentional carelessness (on one occasion while firing a M-79 grenade launcher and on another when using a hand grenade to scatter a rice pile thought to be a Viet Cong food cache).

Regardless, however, if these or the SwiftVets' larger set of allegations were altogether false and groundless, they could have been exploded with a stroke of Sen. Kerry's pen on a Standard Form 180 — during his just-past campaign. The undisclosed military records still being withheld by the Navy Department, Sen. Kerry's and a crewman's wartime journals, and other documents that Sen. Kerry successfully stonewalled throughout the campaign would all become grist for the pretrial discovery mill in the early stages of any defamation case he ever files, however. I remain confident in my previous inference that if those documents were uniformly flattering to and supportive of Sen. Kerry, we'd have long since seen them, and in my further inference that because they aren't, we never will.

Beldar continues to confidently predict: Ain't gonna be no defamation lawsuit. If there is, I'll gladly eat Sen. Kerry's lucky CIA hat.

Former Navy Sec'y Middendorf delivers broad hints on Kerry's discharge

Art Moore at WorldNetDaily.com just put up a stunning article — not for what it says directly, but for what figuratively bounces off the page at anyone willing to read between the lines even just a little bit:

A former secretary of the Navy is urging Sen. John Kerry to open up his personnel files to resolve the question of whether the Democratic presidential nominee received a less-than-honorable discharge from the Navy.

William Middendorf, the Navy chief from 1974 to 1977, told WorldNetDaily today that Kerry, who began inactive reserve status in 1972, would have been issued a document three years later either for a reserve reaffiliation or a separation discharge.

An "honorable discharge" from 1978 appears on the Kerry campaign's website, but a Navy lawyer who served under Middendorf believes that document is a substitute for one that would have been issued in 1975.

However, no such document can be found among the records Kerry has made available.

"I should think it would be in his interest to open up the files, to clear up any misunderstanding," said Middendorf, who later served as ambassador to the Netherlands, European Union and Organization of American States.

Middendorf said he cannot comment specifically on any action taken on Kerry, because he is barred, under the 1974 Privacy Act, from discussing personnel matters.

However, he enthusiastically vouches for the character of Mark Sullivan, who formed the basis for a story today in the New York Sun by Thomas Lipscomb, the first to report discrepancies in Kerry's discharge record.

Sullivan, who served in the secretary of the Navy's office in the Judge Advocate General Corps Reserve between 1975 and 1977, says the "honorable discharge" on the Kerry website appears to be a Carter administration substitute for an original action expunged from Kerry's record, Lipscomb reported.

Asked by WorldNetDaily to address Sullivan's findings, Middendorf cited the Privacy Act.

"I shouldn't comment other than to say I respect Mark Sullivan as one of the finest Navy officers we had."

Friends and neighbors, I know that hard-core Kerry partisans will pooh-pooh this because of its source.  "Right-wing hacks," they'll fume, "hatchet jobs, quotes Corsi too (and he's a racist thug)," etc., etc.  I wish this had been on the front page of the WaPo, the NYT, and the LAT, and leading Dan Rather's and Tom Brokaw's nightly news broadcasts, a month ago.  It wasn't — and that in itself is an ugly story.

Yet these are direct quotes, on the record and with attribution, from someone of spotless record who demonstrably was in a position to have personal knowledge of whether John Kerry was attempting to get an originally less than fully honorable discharge upgraded.  Former Navy Secretary Middendorf just can't — because of the privacy laws that Sen. Kerry is hiding behind — simply come out and tell what he knows while Kerry continues to stonewall on signing Standard Form 180.

But this is a pretty broad hint.  In fact, it couldn't get any broader without breaking the law.

Can America take a hint?

Today's NY Sun article on Kerry's discharge status

Reporter Thomas Lipscomb's article in today's New York Sun — which Big Trunk at Power Line correctly describes as the "capstone of a series of pieces this year that should earn him a Pulitzer Prize for Journalism" —  is entitled "Kerry's Discharge Is Questioned by an Ex-JAG Officer."  The lede:

A former officer in the Navy's Judge Advocate General Corps Reserve has built a case that Senator Kerry was other than honorably discharged from the Navy by 1975, The New York Sun has learned.

This article builds and expands upon Mr. Lipscomb's October 13th article in the Sun, which has since been moved to a subscription-only archive.  I blogged at considerable length about that article, with meaty quotes, in a post entitled "Was Kerry's original discharge less than honorable?" and no doubt Mr. Lipscomb's October 13th article can be found in full various other places on the net.  My commenters have done a commendable job of providing additional links and arguments, pro and con, both on my original thread and in a newer one from last Friday.  If you have the patience to parse through Mr. Lipscomb's two articles and my two prior posts and their comments, I daresay you'll be about as well informed as any layman in the country on the question of whether an inferential case can be built that Sen. Kerry's original discharge was less than fully honorable — based on the records reproduced on Sen. Kerry's website and the records that experts say should be there, but aren't, if Sen. Kerry's original discharge was indeed fully honorable.  What Mr. Lipscomb's article today adds to the inferential case are the opinions of Navy lawyers — JAG lawyers — who have first-hand experience in dealing with these regulations and procedures from within the Navy Department that I certainly lack. 

What fascinates me most about Mr. Lipscomb's new article, however, is this quote — purportedly based on first-hand recollection rather than inference (boldface added):

Certainly something was wrong as early as 1973 when Mr. Kerry was applying to law school.

Mr. Kerry has said, "I applied to Harvard, Boston University, and Boston College. I was extremely late. Only BC would entertain a late application."

It is hard to see why Mr. Kerry had to file an "extremely late" application since he lost the congressional race in Lowell, Mass., the first week of November 1972 and was basically doing nothing until he entered law school the following September of 1973. A member of the Harvard Law School admissions committee recalled that the real reason Mr. Kerry was not admitted was because the committee was concerned that because Mr. Kerry had received a less than honorable discharge they were not sure he could be admitted to any state bar.

Both law school and bar applications require quite comprehensive disclosures from the applicants and inquire specifically about past military service and the conditions of the applicant's discharge.  And given young John Kerry's then-existing fame, it is entirely unsurprising that a member of Harvard Law School's admissions committee would clearly remember discussing the circumstances of his application, even thirty-odd years later.  On its face, then, this report from Mr. Lipscomb's source definitely qualifies as someone with first-hand knowledge of Sen. Kerry's application and his statements therein about the character of his then-existing discharge status.

But is the source reliable?  I'm quite certain that Mr. Lipscomb, and his editors at the Sun, would have much preferred to use an on-the-record quotation attributed to his source by name.  However, the reasons why such a source would decline to speak on the record and for attribution are obvious:  although probably not protected by legal teeth comparable to those in the federal privacy laws that govern Sen. Kerry's military records, both Sen. Kerry's application and the Harvard Law School admissions committee's deliberations on it were undoubtedly considered by the committee to be confidential, both in the interests of the applicant and of the institution.  Whether one characterizes this source as a deplorable "leaker" or a courageous "whistleblower" largely depends, of course, on one's political predispositions.  But either way, this clearly is a classic example of a situation in which reporters have traditionally relied upon and reported information from confidential sources.

Here's another important bit from Mr. Lipscomb's article:

Kerry spokesman David Wade did not reply when asked if Mr. Kerry was other than honorably discharged before he was honorably discharged.

If I'd asked the same question of the Kerry campaign — here on my blog, or in an email or a telephone call — the campaign would have almost certainly ignored me.  But there can be no doubt that the Kerry campaign is aware of Mr. Lipscomb (who, I'm told, earned his spurs as a journalist at the New York Times) and his previous reporting on Sen. Kerry's military record in the Sun and the Chicago Sun-Times, and they've explicitly responded to his questions and reacted to his reporting in the past.  The odds that the Kerry campaign simply ignored Mr. Lipscomb's inquiry altogether (as they would have my own) are therefore nil.  Rather, Sen. Kerry and his surrogates deliberately decided not to respond.  If Sen. Kerry's original discharge was fully honorable — if the Harvard Law School admissions committee member is mistaken or lying, and if the inferential case argued from Sen. Kerry's records is mistaken — why did the Kerry campaign not simply flatly answer with an affirmative assertion that his original discharge was fully honorable?

You don't have to be a crusty old trial lawyer, with many seasons of cross-examining reluctant witnesses, to spot that as a huge red flag and draw appropriate inferences from it.  But the Kerry campaign — perhaps correctly, if audaciously — is gambling that because Mr. Lipscomb's article is in the New York Sun instead of in the New York Times, no significant portion of the voting public will notice. 

John Kerry is stonewalling, and he's gambling that he'll get away with it, at least through the close of the last poll tomorrow.

Rumor mill buzzing on Kerry's discharge status

Update (Sat Oct. 30 @ 12:50am): This rumor hasn't yet panned out, as acknowledged by its original source, and may or may not ever pan out; see Update #3 below if you want the details.  I'm leaving the original text of this post in the extended entry/archive version, marked with strikethroughs.

If the rumor is not true, of course, it could be definitively proved so were Sen. Kerry to sign Standard Form 180.  That probably isn't going to happen, at least not before the election.  One remains free to draw whatever inferences one thinks are justified based on Sen. Kerry's refusal, but they are, at best, only inferences — in this context, guesses.  — Beldar

-----[original post and numbered updates follow]-----

My email inbox is brimming. 

Yes, I'm aware that there are rumors buzzing about a breaking big story on Sen. Kerry's Navy discharge, about which I last wrote in a post entitled "Was Kerry's original discharge less than honorable?" on October 13th.  My conclusion then was that records analyzed by reporter Thomas Lipscomb in a New York Sun article could support the hypothesis that Sen. Kerry received something other than a full-fledged honorable discharge.  But as you'll see if you read my comments thread, there were lots of contrary arguments as well.  And as I recognized in my last update to that post, there was at least one other plausible contrary inference from the records — equally speculative — that could have explained what seemed to be an odd statutory reference in a page from Kerry's records displayed on his campaign website.

The immediate source of the rumors is a [since-pulled —  see updates below] post by "NavyChief" on the SwiftVets site (but their server is likely to be overwhelmed shortly):

Okay, folks.

We got it finally. We have the Former Secretary of the Navy who stated, "Yes, Kerry did receive an Other Than Honorable Discharge".

Stay tuned for more...

Now to MAKE THE MEDIA AND CONGRESS LISTEN!

Go my brothers and sisters -- spread the news to everyone!!!!

- Chief

PoliPundit, Power Line, and Redstate all have threads up, plus check the Trackback link from Power Line and also the Trackbacks to my post here.

I have no inside info at this point, although I would not be surprised if, as PoliPundit's post suggests, this rumor may refer to something about to be published by Mr. Lipscomb.  I know he's been continuing to work on the story, but I don't know any details. 

I repeat that these are, at this stage, rumors, and I humbly request that anyone linking this post make clear that such is my present opinion. 

Based on my past experience with him and reading of his work, though, like many others, I've found NavyChief — a retired Navy Chief Petty Officer and father of five named Troy Jenkins from San Antonio, who's included (at about the 3-minute, 55-second mark) in the fourth of the SwiftVets' "mini-documentaries" released yesterday, entitled "No Man Left Behind (Pt. 1)" — to be a diligent, bright, and knowledgeable fellow.  Like all of us, he's human, and he's occasionally stumbled in his digging through Kerry's records, but when he's done so, he's acknowledged it quickly.  His new post on the SwiftVets site certainly indicates, however, that this is more than an inference drawn from records — and instead a former Navy Secretary, speaking, one would presume, from personal knowledge.  (See also this very provocative post, from a blogger I'm unacquainted with and hence cannot vouch for even by reputation.)

As they say ... "developing."  If this falls through, I'll be among the first to concede that point.  If it pans out, I admit that I'll be tickled pink.

---------------------

Update #1 (Fri Oct 29 @ 2:35pm):  The original thread on the SwiftVets forum has been pulled.  Make of that what you will; I don't know what to make of it, but it would seem to be equally consistent with either (1) a glitch in the story that casts doubt upon it or (2) a desire to release the story in a less haphazard fashion.

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Update #2 (Fri Oct 29 @ 2:52pm):  This thread suggests that NavyChief's post was pulled because it represented his personal statement rather than something that the SwiftVets organization is yet ready to be identified with:

We have been advised that material was recently posted to this forum referencing the nature of John Kerry's discharge from the military service. That material has been deleted from this forum.

Please be advised that posts made to this forum express the views and opinions of the author and do not necessarily reflect the views and opinions of Swift Vets and POWs for Truth.

That strikes me as prudent at this point, regardless of whether the rumor turns out to be well-founded or not.  This is still just a rumor.

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Update #3 (Sat Oct 30 @ 12:50am):  From a post on the SwiftVets forums from NavyChief:

New information has developed on Kerry's Discharge. We have been proven correct in our assertions, however without the proper folks coming forward this will not be public until after the elections.

- Chief

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Update #4 (Sat Oct 30 @ 3:18am):  D'oh!  A sharp-eyed reader emailed me to note that the link just above is a very old one going back to Thursday, Oct. 28th.  Mea culpa maxima.  I'm not sure what the current status of efforts/research is, but we still seem to be somewhere in the rumors stage.

SwiftVets release five powerful new "must-view!" videos

This, obviously, isn't the post I teased about below; I'm still working on that one.  But wow.  Wow x 5!  And this won't wait.

You may think you're "SwiftVetted out."  You may have made up your mind one way or the other — you believe 'em, you disbelieve 'em, you think it doesn't make a damn one way or the other.

But if you have any opinion whatever on the SwiftVets and the allegations they've made about Sen. John Kerry's war record, you need to spend the few minutes it takes to watch each of the five short video clips — "mini-documentaries" — that you can access here.

John O'Neill, as he has throughout, serves as spokesman and narrator.  But most of the videos are composed of extended statements by eyewitnesses to each of the events being discussed (which O'Neill concededly is not, and has never claimed to be).  I'm tremendously impressed with all five. 

The first one, entitled "The Sampan Coverup," covers the least well-known of the incidents — a night encounter on 20Jan69 with a sampan that Kerry, who wasn't paying attention to his Swift Boat's radar, had allowed to approach too close without warning his crewmen.  When Kerry's crew noticed the sampan and lit it up with a spotlight, Gunners Mate Steve Gardner, manning the twin .50-caliber machine guns in the gun tub atop the Swift Boat, saw a man aboard the sampan run over to grab an AK-47.  Gardner explains in the video that he opened fire, killing the man and causing damage to the sampan that would result in it sinking within seconds.  But the crewmen then saw, to their collective horror, that in addition to the man who'd been going for the AK-47, Gardner's shots had killed a young boy around 10 years of age.  The crew rescued a woman and her small baby before the sampan sank.  Gardner says in the video — his voice thick with emotion, in what must have been an incredibly difficult statement for him to make — "There was only two people killed in the boat, and I killed both of them, and I'll take that to my grave with me."  But the child's death might not have happened had Kerry been paying attention to the radar.  Regardless of that, it was a tragedy that should have been reported.  Instead, Kerry falsely wrote the event up as a great victory — two VC captured in action, and five (!) killed. 

The second video, "Christmas in Cambodia," covers territory (so to speak) that's now familiar to anyone who's been following the controversy, but like a "Greatest Hits" reprise, it's still entertaining.  The third, entitled "John Kerry's first Purple Heart," is likewise familiar, but worth watching especially for the eyewitness statements of Skip Hibbard and Louis Letson about how they'd refused Kerry's request for the medal.  Captain Charley Plumley is presented as "speaking for" Adm. Bill Schachte; I wish they could have persuaded Adm. Schachte to speak out again in person, although what Plumley relates is exactly the same as what Schachte himself reported to Lisa Myers and Bill Novak.

The stars of the quintet, though, to my mind, are the fourth and fifth videos, both covering the Bay Hap River action that resulted in Kerry's Bronze Star and third Purple Heart.  (Kerry's Silver Star isn't covered by any of these five.)  And oh! Calm thyself, Beldar's heart!  For whether prompted by my suggestion back on September 6th or not, these clips include animated graphics that exactly match the multiple eyewitnesses' telling of the sequence of events and the locations and actions of the various boats.  In particular, the "5000 meters of enemy fire" claim is exposed to be completely ridiculous.  And another point that suddenly became clear to me for the first time while watching these videos was that the whole group of boats was traveling down-river, and continued moving down-river after the first mine explosion while the rescue of PCF 3 and its crew took place.

The production values on all five videos are okay — neither flashy nor crude enough to be noticeable.  There's a sad trumpet and snare-drum background score, with occasional intercuts of blow-ups from documents and some generic stock footage of Swift Boats zooming down-river or peasants in sampans, just to break up what would otherwise be nonstop "talking heads." 

But with the exception of the extremely helpful (and therefore powerfully persuasive) graphics mentioned above, these videos are mostly indeed about the personal stories of the men telling them.  Their credibility is on the line, and it's important that you get a fair chance to size them up — to hear them speak in the way real humans tell what's happened (instead of like actors or, God forbid, politicians).   As someone who sizes up witnesses and the truthfulness of their testimony for a living, I continue to be impressed by the dignity and inherent credibility of these men when they're allowed to simply tell what they know, without interruption and without some maniac shouting "Creepy liar!" to drown them out.

Remember when the SwiftVets' controversy first broke back in August, and there were threats of defamation litigation from the Kerry camp?  That was all bluff, of course, as I said at the time.  But watching these clips, I continue to ache for the opportunity for someone — some reasonably competent trial lawyers — to develop these controversies in the methodical fashion we use in courtrooms.  Could a seasoned Kerry advocate land some blows if he were allowed to cross-examine the men you see in these videos?  Yes, of course.  But in very vivid contrast to the men from Kerry's "band of brothers, these guys speak out at length, in detail, and without falling back on stock "talking points."  I think they'd eagerly agree to be grilled under oath and in a public spotlight, provided that their counterparts from the Kerry campaign were similarly subject to close questioning.  I've got a pretty good idea whose fleet of witnesses would end up shredded by skilled cross-examination, and whose would still be steaming proudly.

Update (Fri Oct 29 @ 3:30pm):  I neglected to note that the entire "Stolen Honor" documentary can also now be viewed for free, in multiple streaming video formats, from their website.