The New Book Attacking Kerry's War Record:
How It Defames the Candidate, and Why He Should Sue

By JOHN W. DEAN
Tuesday, Aug. 31, 2004

Vietnam swift boat veteran John O'Neill has picked up just where he left off in his 1971 debate with presidential candidate Senator John Kerry. O'Neill has joined with some of his former Navy comrades to oppose Kerry's candidacy. But this time, O'Neill is interested in a different kind of debate. It is called mudslinging.

The Swiftees-- as these Navy veterans like to call themselves -- have launched a series of vicious negative campaign television ads. The ads are meant to complement O'Neill's book Unfit For Command: Swift Boat Veterans Speak Out Against John Kerry.

O'Neill's coauthor is his old friend Jerome R. Corsi, an experienced mud thrower whose prior targets have been the Pope, Jews and Muslims. In Unfit For Command, they repeat many of the 1971 charges - and add more from other Swiftees. To assert that these stories are biased, one-sided, distorted, and incomplete would be overly kind.

Will the book do what its authors hope - and help George W. Bush in the election? I doubt it. This is exactly the type of campaign activity that turns off more voters than it turns on, as shown in Stephen Ansolabehere and Shanto Iyengar's insightful book, Going Negative: How Political Advertisements Shrink & Polarize the Electorate.

How should Kerry deal with the attacks? He should take a page from the playbook of the last U.S. Senator to receive his party's presidential nomination: Barry Goldwater, in 1964. Goldwater suffered the same type of attack, and set a precedent as to how to counter it: Sue.

Never has a book been more deserving of a defamation lawsuit. And Kerry has several reasons to sue. One is to put these false claims to rest forever. The other is to deter future, similar claims.

Recall the absurd 1992 charges that Bill Clinton was running drugs and murdering people. Most people laughed, and Clinton chose to do nothing about the claims, during the election or after. But the Clintons paid a cost for not suing: Even more ridiculous charges - claiming Vince Foster's suicide was a murder, and so on - followed, and critics were emboldened to say anything they wanted about the Clintons, regardless of veracity.

Kerry should take a stand not only for himself, but for future candidates and elected officials. Factually baseless attacks knowingly designed to destroy political opponents should be culled from our system: Defamation law is meant to serve that purpose, and so it is time for Kerry to file suit.

Charging Kerry With Horrendous Crimes

The book doesn't mince words. It accuses Kerry of a number of crimes: fraud, lying before the Senate, filing false reports, dereliction of duty, desertion, and treason -- to mention only a few. As an example, I will analyze just one such charge.

Chapter Four of the book opens with a quotation from William Franke, a swift boat veteran (and today an attorney/businessman): "I will tell you in all candor that the only baby killer I knew in Vietnam was John F. Kerry." (Emphasis added.)

Where's the support in the book for this? There is none. According to O'Neill, Kerry's swift boat gunner, Steve Gardner -- who is among the most hostile of the Swiftees toward Kerry - says there was a baby-killing incident, but he also says that Kerry had no idea it occurred, and tried to stop further fire at a civilian target. It seems from this that Kerry is better characterized as baby-saver than baby-killer!

According to O'Neill, Gardner "opened up [fire] (as did others), killing the father and, unintentionally, a child [on the sampan]." But only after the firing started, O'Neill says, did "Kerry finally appear[]; he ordered the crew to cease fire and then threatened them."

How does a man who is angered by a crew spontaneously firing on a Vietnamese family, and who tells them to cease and desist, suddenly turn into a baby-killer? Only in the authors' twisted logic, could this be anything but nonsense.

Perhaps because it's plain Kerry did nothing wrong in the sampan incident, O'Neill accused him of covering up the wrongs of others. Specifically, O'Neill writes that "Kerry filed a phony after-action operational report concealing the fact that a child had been killed during the attack on the sampan and invented a fleeing squad of Viet Cong."

Yet O'Neill claims this same report is mysteriously missing. No source at all is ever given for the report's supposed existence, its content, or the claim it is currently missing.

Striking Examples Of Actual Malice

To prove he has been defamed, a public figure like Kerry must show the defamer acted with "actual malice" - defined as knowledge of falsity, or reckless disregard for truth or falsity. Actual malice is often very hard to prove. But that's not so here.

The authors of Unfit For Command chose to include Franke's unsubstantiated claim that Kerry was a baby-killer - and Gardner's clear statement that Kerry was not, and passionately chastised soldiers who fired at civilians. Shouldn't Gardner's statement have caused them to deeply question the veracity of Franke's statement?

This is the rare case where actual malice may be easy to prove. We know what the authors knew, in part: We know they were aware of Gardner's statement, and that - as a Kerry enemy - he hardly had any reason to lie. We also know that they went on to print Franke's "babykiller" libel anyway. And their biased disposition toward Kerry is unquestioned. A clearer case for actual malice could hardly be made.

Sadly, this is only one of many such defamatory statements. As Kerry said over thirty years ago to John O'Neill, when first confronted with his irrational hostility (and that of others): "I'm somewhat surprised at the attitude of somebody who wore the same uniform as I did, and served in the same military, for the same kind, I hope, of patriotic reasons."

Goldwater's Lawsuit: A Perfect Precedent For Kerry

In 1964, when Senator Barry Goldwater ran against President Lyndon Johnson, he too suffered defamatory attacks. But he fought back and sued.

On October 1, 1964, Fact magazine published two articles - in a special sixty-four page issue purporting to be a "psychological study" of Goldwater. The first was "Goldwater: The Man and the Menace" - written by the editor/publisher. It claimed in no uncertain terms that Goldwater was paranoid and mentally ill - contending that he "shows unmistakable symptoms of paranoia" and that "[i]t is his paranoid divorce from reality that is the most dangerous facet of Goldwater's personality." It even asserted that "[m]any people around Goldwater think he needs a psychiatrist" - without ever mentioning who those people might be.

The second article was "What Psychiatrists Say About Goldwater" with the byline of the magazine's managing editor. There, Fact claimed to have polled 12,356 psychiatrists throughout the United States, posing a single question: "Do you believe Barry Goldwater is psychologically fit to serve as President of the United States?"

Fact said it had received 1846 replies to the poll - and offered excerpts from them. Goldwater biographer Rick Perlstein has summarized a few:

"I do not think his having two nervous breakdowns in the past should be held against him. The sickness of his character structure now present is his real psychological deficit," wrote one doctor…. Another called the Republican candidate a "compensated schizophrenic" like Hitler, Castro, and Stalin." … A Dr. Berlin singled out Goldwater's "frustrated and malcontented" followers, who "reflect his own paranoid and omnipotent tendencies … as was characteristic of dictators in the '30s and '40s," because Goldwater "appeals to the unconscious sadism and hostility in the average human being."

Not unlike today, the news reporters picked up the charges and repeated them. And while there was no evidence that the White House had any involvement, LBJ was not about to denounce the dirty tactic. (Sound familiar? Bush seems happy to benefit from the Swift Boat attacks, even as he offers lukewarm praise of Kerry's war record, and a general critique of 527 organizations.)

Goldwater lost the election, of course. In September 1965, he sued in New York federal court - for New York was both the corporate location of Fact magazine, and the residence of the editors. (I have little doubt, however, that Senator Goldwater would have similarly filed his lawsuit even had he become president, for he felt so strongly about the offensiveness of the charges. That would have been an even stronger precedent.)

In his suit, Goldwater alleged that Fact had defamed him. In particular, he claimed that its assertions that he was "mentally unbalanced," a "dangerous lunatic," a "coward," who had suffered two "nervous breakdowns," a "compensated schizophrenic" with "chronic psychosis" - and so on, and so on -- were false and defamatory, and had been published with "actual malice."

As always in such cases, the Fact magazine defendants claimed that they believed the statements were true, and therefore had no actual malice. Accordingly, they requested that the trial court dismiss the lawsuit.

The court said no. After trial, a jury found the publications defamatory and damaging - and rendered a verdict in Goldwater's favor. Then the U.S. Court of Appeals for the Second Circuit upheld the verdict - deeming the evidence to have shown both that the defendants "knowingly published defamatory statements" and they were motivated by actual malice when doing so.

Not unlike the infamous Goldwater issue of Fact magazine, John O'Neill's co-authored Unfit For Command reeks of actual malice. Whether Senator Kerry is elected or not, he should take these false charges to court in order to end this kind of campaigning. In so doing, he would protect not only himself, his campaign, and his legacy - he would also set a valuable precedent for future candidates, and do a public service by warding off future baseless attacks.


John W. Dean, a FindLaw columnist, is a former counsel to the President.

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