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Friday, September 03, 2004

Kerry apparently signed Form 180 for Brinkley, but Brinkley is cooperating in the cover-up

I had always assumed that Sen. Kerry had himself provided his biographer Douglas Brinkley with Kerry's official military records that were already in Sen. Kerry's hands.  But in reviewing Brinkley's citations and references for ToD, I came upon this statement at page 520 of his "Acknowledgements" section (boldface mine):

Also with Kerry's permission, I obtained his Navy records and have used them as a reliable source.

I don't know any other way to interpret this than to presume that Kerry signed, and gave to Brinkley for Brinkley's submission to the DoD, Standard Form 180.  Brinkley's wording — "I obtained" — indicates that he submitted the form and that the results were sent directly to him by the DoD.

If so, I believe that a strong argument can be made that by authorizing the DoD to release these confidential materials directly at the request, and into the hands of, one historian, Kerry thereby waived any and all rights to insist that he has a privilege to prevent their release to other interested members of the press, the academic community of historians, and the public.  Brinkley's not Kerry's lawyer, wife, priest, or otherwise in a position such that sharing privileged information with him might not constitute a waiver.  [Important Note: as discussed in an update below, I haven't been able to find caselaw under the Privacy Act of 1974 to support this broad waiver argument, and it may well be incorrect.]

The public disclosure of these records via Standard Form 180 is precisely what the SwiftVets have been demanding since May 2004.  WaPo's Michael Dobbs has pointed out Kerry's refusal to release these records — although he didn't use the perfectly apt phrases "cover-up" or "stonewall" — in the same August 22nd article that Kerry's sympathizers in the media claim to have "knocked down" the SwiftVets' claims:

Some of the mystery surrounding exactly what happened on the Bay Hap River in March 1969 could be resolved by the full release of all relevant records and personal diaries. Much information is available from the Web sites of the Kerry campaign and Swift Boat Veterans for Truth, and the Navy archives. But both the Kerry and anti-Kerry camps continue to deny or ignore requests for other relevant documents, including Kerry's personal reminiscences (shared only with biographer Brinkley), the boat log of PCF-94 compiled by Medeiros (shared only with Brinkley) and the Chenoweth diary.

Although Kerry campaign officials insist that they have published Kerry's full military records on their Web site (with the exception of medical records shown briefly to reporters earlier this year), they have not permitted independent access to his original Navy records. A Freedom of Information Act request by The Post for Kerry's records produced six pages of information. A spokesman for the Navy Personnel Command, Mike McClellan, said he was not authorized to release the full file, which consists of at least a hundred pages.

Brinkley insists — both in ToD's Author's Note (at page xiii) and in its Acknowledgements (at page 520) — that Kerry "had no editorial control" over Brinkley's book manuscript or the entire biography project.  Fine.  If that's so, and if Brinkley didn't obtain Kerry's military records from Kerry as part of the personal archives subject to Kerry's exclusive control and subject to some sort of contractual restriction that would bind Brinkley, then nothing prevents Brinkley from handing them over to WaPo's Dobbs or any other reporter (or blogger, or SwiftVet). 

Nothing, that is, except a partisan desire to help Kerry succeed in his cover-up.


Update (Fri Sep 3 @ 11pm):  My working assumption in writing this post is that the Privacy Act of 1974, 5 U.S.C. § 552a, is what creates Sen. Kerry's right to maintain the privacy of his military records.  This is similar to, but not quite the same as, common law rights to assert privileges against compelled disclosure (for instance, attorney-client).  Although I have a good familiarity with privileges and the ways in which they may be deliberately and inadvertantly waived, I'm not an expert on the Privacy Act.  Hence the qualification of my suggestion above that a "strong argument" can be made that if Kerry authorized Brinkley to receive his military records with Form 180, he's waived his right to continue to insist upon those records' privacy.  I'm doing some digging in the caselaw to see if this precise issue has come up under the Privacy Act, and may update this post, or start a new post, depending on what I find.

Update (Fri Sep 3 @ 11:50pm):  The relevant portion of the statute is 5 U.S.C. § 552a(b), which provides:

No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be [followed by a number of exceptions that don't appear to apply].

The question is whether Kerry's prior written consent for DoD to disclose Kerry's records directly to Brinkley would operate as a broad waiver and, in effect, consent for DoD to disclose Kerry's records to anyone else who might later ask.  Alas, and somewhat to my surprise, I cannot find a case in the annotations to the statute that's directly on point in either direction.  But given the prohibitory language of the statute as it applies to government agencies — and, frankly, given the purposes of the statute — it may be too great a stretch to argue that "consent for anyone equals consent for everyone."  This may indeed be a situation where a statutory privacy right differs from a common-law privilege.  I've deleted the phrase "thereby waiving confidentiality" from the original title of this post.  Mea culpa; I plead guilty to probably going off half-baked on the broad waiver argument.

My other main point in this post, however, I think is still valid.  On its face, once Brinkley has the records, nothing in the Privacy Act would appear to prevent him from making whatever further distribution of them he chooses.  {return to text}

Posted by Beldar at 07:30 PM in Books, Politics (2006 & earlier), SwiftVets | Permalink


Other weblog posts, if any, whose authors have linked to Kerry apparently signed Form 180 for Brinkley, but Brinkley is cooperating in the cover-up and sent a trackback ping are listed here:


(1) Patrick R. Sullivan made the following comment | Sep 3, 2004 7:40:30 PM | Permalink

I'm sure Chris Matthews will ask him about this the next time Brinkley appears on Hardball.

(2) Todd made the following comment | Sep 3, 2004 8:02:49 PM | Permalink

Great catch, Beldar. But with the Swiftees being discredited by the in-depth investigation of the traditional media (lol), there's really no reason to see Kerry's records anyway.

Seriously, the Judicial Watch action you mentioned a couple of weeks ago may result in at least some information leaking out about Kerry's service. According to a report by our pal Major Garrett, the matter has been referred to the Secretary of the Navy for investigation.

(3) LazyMF made the following comment | Sep 3, 2004 8:09:01 PM | Permalink

Good research, Beldar. But if you'll allow me to split hairs, I've not heard of any accountant/client privilege. I may be wrong.

(4) Beldar made the following comment | Sep 3, 2004 8:24:35 PM | Permalink

Lazy, you're right, and I appreciate the clarification. I was thinking of accountants who are often hired as consulting or testifying expert witnesses by lawyers and who, in the former instance, can review materials given them by the lawyers (as agents of those lawyers, regardless of their status as accountants) without that constituting a waiver of attorney-client or work product privileges. Brinkley's almost surely not a consulting expert retained for purposes of litigation — or at least he didn't get the records from DoD in that capacity, I'll wager. I've edited my post text above to remove the reference to accountants (leaving tracks of having done so here, as an ethical blogger should).

Todd, you're also right about Judicial Watch. Their press release from yesterday indicates that the ball has started rolling on their investigation request, but my guess is that's a pretty massive ball that won't roll very fast. (On the other hand, it might have a lot of heft once it does.)

(5) Birkel made the following comment | Sep 3, 2004 8:43:37 PM | Permalink

I wrote on Brinkley's appearance on Imus in the Morning here.

The man is a shill and needs to be exposed for it. He's lost all perspective while hustling for Senator Kerry, who by the way served in Vietnam.

(6) stevesturm made the following comment | Sep 3, 2004 8:50:08 PM | Permalink

I've long wondered about Kerry's refusal to release his records and speculated on a couple of reasons link. Would Brinkley have kept information out of the book that might have reflected badly on Kerry? inquiring minds want to know...

(7) Bains made the following comment | Sep 3, 2004 11:24:45 PM | Permalink

Based upon your high praise for Mr. O'Neill's ablilities as legal advocate, I'd be surprised if he hadn't explored this 'opening'.

Additionally, speculation is that Kerry's actual combat service is only secondary to the real case the SwiftVets will be bringing against the Mass. Senator.

(8) Cz made the following comment | Sep 3, 2004 11:34:53 PM | Permalink

"Also with Kerry's permission, I obtained his Navy records and have used them as a reliable source."

I don't know any other way to interpret this than to presume that Kerry signed, and gave to Brinkley for Brinkley's submission to the DoD, Standard Form 180. Brinkley's wording — "I obtained" — indicates that he submitted the form and that the results were sent directly to him by the DoD.

Actually, an alternative interpretation could be that Kerry just gave him the OK to use records that Kerry already had. Brinkley is, after all, a writer/historian and may use more "colorful" phrasing to mean a simple thing.

I strongly suspect that the SBVT would not be asking Kerry to disclose his military records, if they already did not know that there is something in them that he needs to conceal. They are Vets, and likely could have convinced a source in the records area to confirm their suspicions. Kerry knows this and is unlikely to authorize release of anything but the pre-selected records he has already shown.

(9) Beldar made the following comment | Sep 4, 2004 12:15:20 AM | Permalink

Cz, I doubt that the SwiftVets have a mole in the DoD. First, that would require that someone in a records-keeping position deliberately violate the Privacy Act, which could lead to some fairly harsh consequences. Second, I doubt that the SwiftVets would enter into a conspiracy with an insider to violate federal law.

It is conceivable to me, however, that someone in the SwiftVets personally recalls from his Navy days seeing or even creating specific unflattering records that Kerry hasn't yet released. And at a minimum, it's likely that they have well-informed guesses about what kinds of unflattering information might be in the as-yet-unreleased records. Plus there's the natural inference that someone who's released only selected portions of his records is hiding something. I suspect that those factors amply explain the SwiftVets' motivations in calling for the full release of the military records.

(10) Deaton made the following comment | Sep 4, 2004 1:01:42 AM | Permalink

There is also an even greater psychological probability at work here..."me thinkest thou dost protest too loudly". The more he denies access to his military records, the more likely it is he has something to hide.

Most people, I've read so far, don't come right out and say it but it bubbles beneath the surface daring to erupt. Kerry wrote his reports to DEMAND medals, in the literary sense. If the accounts I've read on his Silver Star are true, and he ran as they say he did, then it's obvious through inference he had a reason to falsify reports, get the PH's and scram.

The JudicialWatch inquiry will probably be set aside. If the MSM gets a hold of the results, AND they are bad for Kerry, we all know who will get the blame for dirt that shows.

(11) Clyde made the following comment | Sep 4, 2004 6:40:04 AM | Permalink

Brinkley has or had the documents. Brinkley must have read each and every one in order to allow his historian roots to sink in and ensure he was writing at least a passingly accurate book as opposed to propaganda. So, did he maintain his files or destroy them? Did Kerry mandate a records retention policy? If so, what was it? Did Kerry limit the release of records from the Navy to Brinkley? Is a form to allow release of the records (SF180) integral or collateral to the records themselves and therefore obtainable without an additional SF180? Further, it is reasonable to presume that the discharge papers were there and that Brinkley saw the date: if Kerry's final discharge was after the Paris meetings, then Kerry may be up for court martial (recall the descrepancies in the dates) - if Brinkley has information material to a federal crime, albeit past, can he be compelled to disclose it?

(12) Todd made the following comment | Sep 4, 2004 7:57:57 AM | Permalink

Re: The Swiftees

I read somewhere on the net, and I don't remember where, that there is a rumor of an "October surprise" by the Swiftees. Anyone else see anything about that? It's possible that it could be a rumor planted by the Swiftees just to give Kerry something else to worry about. On the other hand, what if they did have something to spring on him? Could some of his records be part of that?

(13) ncoic6 made the following comment | Sep 4, 2004 8:48:08 AM | Permalink

Brinkley was used extensively as a consultant by MSNBC during the Republican convention. You have raised a legitimate question about a "contract employee" for a news organization. MSNBC should be contacted and asked for clarification on whether their contractor had full access to all Kerry records, did he get a DD180 from Kerry etc. In the interest of "full disclosure" MSNBC should comply for this information. Also, Lisa Meyers should be contacted to do a story on the same. Don Imus, if approached properly, might be willing to put on a guest, but at the very least should be contacted.

(14) Xrlq made the following comment | Sep 4, 2004 12:05:48 PM | Permalink

"Brinkley's not Kerry's ... wife..."

Sure had me fooled.

(15) Gary made the following comment | Sep 4, 2004 2:10:08 PM | Permalink

I am new to your blog but enjoy reading it very much. You are very informative. I also enjoy the excellent commentary by many of your readers. This is my 1st time posting a comment which is actually more of a question. I'll preface by saying I am not a lawyer nor do I know much about the law, especially Federal Law. I'm just a concerned former US Marine, Vietnam veteran,(1968 & 69),and I'm sure most of the commentors here are better informed and smarter than I am. John Kerry,a US Senator from MA.is running for the highest office in the land and Commander and Chief of the US Military largely based on his rather suspect war record as a decorated hero in the Vietnam War. He also has a rather shameful and scandalous if not colorful history as a war protester and war crime accuser of all other VietVets. I personally consider his actions as tantamount to treason and aiding and abetting the enemy in a time of war. The Swiftboat Vets.,comprising over 200 men have leveled some very serious charges against the validity of Mr.Kerry's service. The media,however,seems content to take Mr. Kerry's word that his record is true and the other 200 plus men, many of whom are heros themselves, are liars. If they were all lying, wouldn't that constitute a conspiracy? And, what would be their motive for signing on to such a thing, knowing the potential for pro-Kerry media scrutiny and character assination ie: Chris Matthews, with potential law suits,and ruination of their individual and collective reputations? The preponderance of evidence and detailed testimony, ie: the book "Unfit for Command",however,seems to be on their side. I wonder why there is no mandatory DoD or even a Congressional investigation to look into Mr. Kerry's real record and why the public doesn't demand such? After all, this guy is running for President and in the middle of a global war on terrorism is no time for the American people to be decieved by the would be Commander and Chief. These days, there seems to be a major investigation if not Congressional into everything where government is concerned and Kerry is a Senator. Even Pres. Bill Clinton,as I recall, got a Special Prosecutor, a Congressional hearing, and an impeachment hearing for lying to us all about getting a
---- --- (you insert the letters)and having sex with that woman. It seems to me that fabricating and/or contriving ones military experience in war to gain awards and self aggrandizement for political gain and then covering up or misrepresenting it all to gain the White House is a far worse crime. Something needs to be done to force the disclosure of the DD180 in question and a review of all of Kerry's military documents and records. If Kerry is what he says he is and I personally think he is not then why is he not eager to get everything out into the light of day. It smells of cover up and something is very rotten here but it needs resolution before this turkey should ever be allowed to take the oath of office. We deserve better and I can think of nothing that would be more demoralizing to the US Military than having John Kerry sworn in as Commander and Chief. God help us if he is.

(16) Zizka made the following comment | Sep 4, 2004 2:12:19 PM | Permalink

Did Bush sign his 180? Just curious.

By now 3 of the supposed SBV's have testified that their names were used without their permission. Several eyewitnesses have appeared to support Kerry over O'Neill. Most of the 200+ affidavits simply testified to hearsay, which is meaningless if it isn't false swearing (though if the affidavits were all faxed as Elliot's, I wonder if they were even witnessed or notarized at all).

But the silly Christmas in Cambodia issue still remains standing, barely, so you're flogging it to death. Good for you. I'd like to see the musical commedy, by Mel Brooks or someone. Fun!

(17) Beldar made the following comment | Sep 4, 2004 6:07:04 PM | Permalink

Zizka! I had no idea you still occasionally looked at my blog! But you're welcome, as always, sir.

Re Bush's records, I've recently read somewhere, but can't find a link back to it, that Bush used an executive order rather than Standard Form 180.

On the "supposed SBV's [who] have testified that their names were used without their permission," I assume you're referring to the Billings Gazaette report about Bob Anderson and Bob Wedge.

Here's the SwiftVets' prompt response, sent the same day the Gazette article appeared:

Official response to Billings Gazette:

Swift Boat Veterans for Truth
Post Office Box 26184
Alexandria, Virginia 22313

Billings Gazette
Via Email

To the Editors:

We read with concern “Columbus Swift Boat Vet Angry About Letter” (September 1), and Swift Boat Veterans for Truth (SwiftVets) wanted to set the record straight.

On April 27, 2004, Rear Admiral Roy Hoffmann, U.S. Navy (Ret.), founder and chairman of SwiftVets, wrote an email appeal to many former officers and enlisted men who served in Swift boats and related commands and staffs.

His proposed letter to Senator John Kerry was attached. The Admiral concluded the email with this appeal: "We want you to join us, by lending your name to the letter to Senator Kerry...You need to let us know...[if] we can use your name. You can do so by replying to this email, with a ‘yes’…”

In addition, the Admiral added: "If you have other Swift sailors that you know of who might be interested in this, please forward this email to them..."

Many did forward the Admiral's email to other former Swift boat veterans, and the requested emails with “Yes” rolled in.

On Tuesday, April 27 at 9:43 p.m., an individual who identified himself as Robert Wedge said “yes” in the following email to the Admiral:

"Robert T. Wedge jr.
QM1 USN/Ret.
YES to Letter"

An individual who identified himself as Robert Andersen said “Yes” in this email to the Admiral May 6:

"Yes; I was on swifts July 1, 1969 to June 23, 1970…bob anderson EN2"

Admiral Hoffmann will endeavor to contact former Petty Officers Anderson and Wedge personally to confirm their desire to be removed from the letter.

If and when confirmed, we will remove their names. In the meantime, we wanted your readers to be aware of the the emails we received.

Additionally, we would ask all journalists to file inquiries with SwiftVets when their stories concern us. Channels for media and public inquiries can be found at www.swiftvets.com.


Thomas C. Wyld
Communications Coordinator
Swift Boat Veterans for Truth

Re affidavits and false swearing as to personal knowledge: One of my first set of posts on the SwiftVets controversy (here, here, and here) was about the inartfully drafted affidavit that permitted the Boston Globe's Michael Kranish to pull a sleazy lawyer trick to rattle Captain George Elliott into making statements that Kranish could quote out of context to make it look like Elliott was retracting that affidavit. (That an affidavit may have been faxed after it's been duly executed and notarized is legally meaningless, by the way; details in the second post linked just above.)

I don't believe that the SwiftVets have claimed to have sworn affidavits from all their members; I'm almost certain they don't. And the broader point you make is also a fair one — only a small portion of their total membership claims to have personal knowledge of anything John Kerry did. (Given that he only served four months in the Swifts, and one of those in training before he had his own boat, it would be surprising were it otherwise.) Nevertheless, all of those men can speak out based on first-hand knowledge of what they themselves saw and did — and thus are competent to rebut Kerry's 1971 Fulbright Committee testimony and other contemporaneous statements that accused the American military in general, and the Swiftees in particular, of participating in war crimes on a routine basis with the complicity of their commanders. And all of those men were aggrieved by his statements; they have "standing" to complain, as lawyers would say.

The SwiftVets have never relied on hearsay to make their case against Kerry's combat record, however. They've not, for example, paraded those 250+ vets to say, "I heard Kerry was a crummy skipper," etc. Rather, they've offered up testimony from men like Thurlow and Gardner who have first-hand knowledge of the key events because they were there, on the scene. In some instances, they've also offered up testimony from some like Captain Elliott, who wasn't present for the combat, but whose knowledge of the state of the information available to him when he approved Kerry's medals recommendations is, by definition, "non-hearsay"; it has independent legal significance when it's being offered to show what Elliott had been told (and not necessarily to show whether what he'd been told was itself true).

Finally, I agree with you about Mel Brooks. For a good month now, I've found myself singing under my breath a showtune from "The Producers," with slightly different lyrics. I can't name the song here without violating Godwin's Law, but the revised lyrics run,

Christmas! In Cambodia!
For John Ker-reeee!
Christmas! With spooks and
A hat!

One way or another, though, the play will close come November 2. (I guess there's always the possibility of a revival, though — "The Producers" is one itself, as was Adlai Stevenson.) Stay tuned, and thanks again for dropping by!

(18) Beldar made the following comment | Sep 4, 2004 6:18:07 PM | Permalink

Gary, thanks for your comments and question. I've been pondering a post on whether Kerry's Paris meeting(s) with the representatives of the North Vietnamese government and Viet Cong may have violated the relevant federal statute and/or regulations governing the conduct of Naval Reserve officers, but I haven't done the legal research yet that I'd like to do, and there've been rumors of more factual details possibly being released soon that might or might not affect that issue.

As to Kerry's stonewalled military records, there's some chance that the pending Judicial Watch complaint to the DoD might bear fruit, although the timetable for that is uncertain at best. My main hope is that the mainstream media, prodded by the blogosphere, talk radio, and — most importantly — letters and calls and emails from the public, will finally exert more pressure on Kerry than he can bear. But that will only happen when a substantial portion of the public comes to understand that he is stonewalling, that the records are essential, and that it's reasonable to infer that his reason for refusing to release them is because they're unflattering.

(19) Larry made the following comment | Oct 12, 2004 5:17:48 AM | Permalink

On Kerry's web site where his military records are posted why we view the entire copy of his DD-214? Only about 1/4 of the page will display and also out of all the records this is the only one you are not able to copy to a local printer or email etc.
I was trying to see under what conditions he was separated from active duty and all it states on the portion you can view is "DISCHARGED"...

(20) Frank Dukes made the following comment | May 5, 2005 11:12:21 AM | Permalink

I thought the controversy over whether Brinkley had access to ALL of Kerry's military records was settled when Brinkley said he had only what Kerry had given him. Brinkley added that he thought Kerry should sign the SF 180.
Kerry is now making motions of a renewed run for the prize. That is ample reason why he will not sign the SF 180, and the mainstream press will not hold him to his promise, made twice to Russert.

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