Brandishing the "liar finger" in the SwiftVets vs. Kerry dispute

It's been my privilege to practice law for twenty-four years now, almost exclusively in a civil litigation practice that has always had me in the midst of disputes over facts and opinions, and frequently in courtrooms trying to resolve those disputes.  In that time, I've yet to have a "Perry Mason moment" in which I've leapt to my feet, brandished my index finger at a witness, and shouted, "You're lying!"  It's almost always a singularly stupid tactic for a lawyer and a disasterous example of overplaying one's hand.

With that frame of reference, it occurs to me that today's appearance of another eyewitness speaking out on the subject of the Bay Hap River action and the Rassmann rescue, Butch Vorphal, demonstrates some points worth pondering about the list of "Dramatis Personae" in the SwiftVets vs. Kerry controversy, and the various subheadings and cross-references among them.  Those points, in turn, lead me to some gentle ranting about what strikes me as too great a readiness among both sides and their supporters to brandish the "liar finger" at the other.

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The Swift Boat Veterans for Truth, an organization that I've generally referred to with the shorthand reference of "SwiftVets," claim over 250 men among their membership — which by definition "is limited to former military officers and enlisted men who served in Vietnam on U.S. Navy 'Swift Boats' or in affiliated commands."  All of these men have taken affirmative steps to align themselves with the SwiftVets and at least some of their explicit goals.

I and others have, by contrast, used the term "Swiftees" to refer to all of the men who served on the Swift Boats during the Vietnam War — which is a much larger group than the still-considerable number who've stepped forward to join the SwiftVets.  In this arbitrary but useful terminology, both Sen. John Kerry and Adm. Bill Schachte, for example, are "Swiftees" — but neither is a "SwiftVet." 

There are also apparent eyewitnesses to some of the key events under dispute who are neither Swiftees nor SwiftVets — Jim Rassmann, for example, who was an Army lieutenant; so, too, Jim Russell, who's described as a Navy lieutenant but appears to have been a PsyOps officer who likely was part of a different command structure.

Among both the SwiftVets and the broader group of Swiftees, many of them, one presumes, may have no other connection to the dispute than having been in the same unit (Coastal Division One) in which John Kerry also served — that is, they may not have been present during any of the events out of which Kerry's medals were awarded, and/or they may not have ever met John Kerry while he was in Vietnam.  John O'Neill is one such example.

Some Swiftees, like Adm. Schachte and now Butch Vorphal, are not among the SwiftVets, yet have given their recollections of events that are decidedly unflattering to Sen. Kerry's war record.  Other non-SwiftVet Swiftees, like Rich McCann and Rich Baker, have expressed their support for Sen. Kerry's candidacy without having yet weighed in on any of the factual disputes now being waged.  Some non-SwiftVet Swiftees, like Bill Rood, have done the converse — that is, offered up factual recollections that support the Kerry team's version of events, without having broadly endorsed Kerry's candidacy.  And some non-SwiftVet Swiftees, like Robert E. Lambert, may dislike and disapprove of Sen. Kerry, yet offer factual testimony favorable to him on one or another of the incidents being debated.

So it's hard to put these men into neat columns of names under clear subject headings, or even to draw a Venn diagram in which they'd appear as points among partially overlapping oval fields.

The press report of Mr. Vorphal's recollections that appeared today demonstrates that even among the SwiftVets — who by definition have taken affirmative steps to join those opposed to Sen. Kerry as a prospective Commander in Chief — there may be many important, competent eyewitnesses whose first-hand accounts of crucial events the SwiftVets' leaders have yet to find out about, much less publicize.  And the same is undoubtedly true of the Kerry campaign, which is also finding and publicizing new witnesses on a near-daily basis.

The notion here that either side in this dispute is orchestrating a well-coordinated and effective conspiracy of deliberate liars and lies therefore strikes me as highly improbable.  The public spokesmen for both sides are obviously still scrambling to add names to the list of Dramatis Personae, grasp even the roughest outlines of the facts and opinions of these various players, and adjust their talking points and strategies accordingly.

So what's going on now bears only the most remote resemblance to an organized presentation of a courtroom trial after comprehensive pretrial discovery.  For those, like me, who are trained in the particular and peculiar disciplines of that method of truth-seeking, this is a frustrating and chaotic process to observe.

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But that chaos makes me even less willing than I would be in the more organized setting of civil litigation to start pointing the "liar finger" at any of these men, or to posit the existance of well-organized and competent ringleaders who are directing their efforts as part of an organized "smear campaign."

To the contrary — even moreso than I would to members of the general public — I'm inclined to grant all of the participants at least an initial presumption of veracity and good faith.  Remember, please, that we're talking here about a diverse set of individuals whose single common attribute is that they served this country in uniform during wartime.  Every man jack of them, on either "side" of this controversy, deserves respect for that much at a minimum.

One of my recent pro-Kerry commenters, in the midst of some other fairly astute arguments, has indulged in one that I think is profoundly unwise.  He insists that this is an "either-or" situation, in which one must conclude that all of the pro-Kerry Swiftees-plus-other-eyewitnesses are liars, or that all of them are truthtellers whose accounts must be accepted as entitled to conclusive weight.  Well, that's just not the way things work, even in courtrooms, and certainly not in politics. 

Rather, to decide what weight any individual's recollections and opinions should be entitled to, one must start with much more mundane considerations.  What was the individual's opportunity to observe?  What training and experience did he have, or lack, to appreciate and correctly understand what he thought he was observing?  Precisely what facts does he claim to be relating?  Are they internally consistent with one another?  If he's rendering an opinion, what qualifications does he have or lack which might lead one to credit or be skeptical of that opinion? 

As a lawyer whose daily job it's been to serve as the proponent of many witnesses and the opponent of many others, only after I've exhausted my efforts to get answers to these questions — and to reconcile as many conflicts and inconsistencies as I can using them — do I then move on to questions of veracity like "what motive does this witness have to lie?" or "what biases has this witness displayed that might affect his credibility?" 

For most of these men — and especially for new ones who pop suddenly into public view, with a big splash like Bill Rood or a little one like Butch Vorphal — I'm a long, long way from having enough contextual information to render anything remotely approaching a well-informed judgment as to whether any of them are "liars"!

So:  To my readers who are SwiftVet partisans, and alike to those who are Kerry partisans, I ask that you temper your passions a bit, and that you let the better angels of your nature hold you back from pointing the "liar finger" too quickly at any, much less all, of these supporting cast members on one side or the other of this great drama.  And if you see me violating my own advice on this point, please don't hesitate to point it out to me.

I'm trying to retain some objectivity, despite my obvious leanings, in assimilating and processing all this information.  And both as an observer, and even as a pundit-advocate for one side, I think I'll do a more effective job if I try to keep my "liar finger" mostly in my pocket, instead of in these witnesses' faces.