Did Navy Lt. Kerry violate The UCMJ?

The Uniform Code of Military Justice (UCMJ) is a federal law, enacted by Congress. Its provisions are contained in United States Code, Title 10, Chapter 47. Article 36 of the UCMJ allows the President to prescribe rules and procedures to implement the provisions of the UCMJ. The President does this via the Manual for Courts—Martial (MCM) which is an executive order that contains detailed instructions for implementing military law for the United States Armed Forces.

The UCMJ states:

ART. 104. AIDING THE ENEMY 

Any person who——

(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or

(2) without proper authority, knowingly harbors or protects or gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly;

shall suffer death or such other punishment as a court—martial or military commission may direct.

What we know:

John Kerry, in sworn testimony before the Senate in April 1971, said he met with the North Vietnamese and Vietcong delegations in Paris in May 1970. He said they discussed their peace proposals —— especially the eight points of Madam Binh. Kerry strongly recommended that the Senate accept those proposals.

I have been to Paris. I have talked with both delegations at the peace talks, that is to say the Democratic Republic of Vietnam and the Provisional Revolutionary Government and of all eight of Madam Binh's points...

...I realize that even my visits in Paris, precedents had been set by Senator McCarthy and others, in a sense are on the borderline of private individuals negotiating, et cetera.

In the ensuing months, Kerry became even more strident in his insistence that the US accept Madam Binh's (and the NVM and VC's) peace proposals.

Meanwhile, other representatives of Kerry's group, the Vietnam Veterans Against The War (VVAW ), met with the NVM and VC delegations in Paris, in March 1971. They were even photographed sitting at a table with them, as in a photo displayed in Winter Soldiers, by Richard Stacewicz, page 284. 

Subsequently, VVAW representatives met with the North Vietnamese and Vietcong delegations on numerous occasions, both in Paris and even in Hanoi.

The VVAW even signed a treaty with the North Vietnamese which included all of Madam Binh's points, as noted by the historian of the anti—war movement, Gerald Nicosia, his book Home To War: 

These people signed their own symbolic "people's peace treaty" with the Vietnamese.  As Jan Barry recalls, the gesture was intended as a means of embracing the people they had harmed, of asking forgiveness for those they had killed.

You can read the "Peoples Peace Treaty" here:

According to Nicosia, FBI files show Kerry made another trip in 1971 to meet with the NVM and VC delegations:

The [FBI] files record that Kerry made another trip to Paris that summer to learn how the North Vietnamese might release prisoners.

It is quite likely that Kerry's actions were in violation of the so—called Logan Act: United States Code Title 18, Part I, Chapter 45, Sec. 953

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

Kerry's own comments in his Senate testimony show he might have been aware of this. But no one has ever been prosecuted under the Logan Act.

That might not be true of article 104 of the UMCJ, however.

Perhaps it is the fear of this legal liability that caused the Kerry camp to fudge the chronology of Kerry's service record to provide a two year gap, from (coincidentally) April 1970 to 1972. 
 
January 1, 1970 Kerry promoted to (full) Lieutenant

January 3, 1970 Kerry requests discharge

March 1, 1970 Kerry's date of separation from Active Duty

April 29, 1970 Kerry listed as Registrant who has completed service

And then here:

John Kerry joined the United States Navy after college and served from 1966 through 1970 rising to the rank of Lieutenant, Junior Grade. Afterwards, Kerry continued his military service in the United States Naval Reserves from 1972 through 1978.

But the official Navy records show that Kerry joined the Naval Reserves (inactive), not the United States Navy, per se, as his own campaign indicated. He commenced active duty six months later. He transferred from active duty to the Naval Reserve (inactive) on January 3, 1970. He was put on standby reserve on 1 July 1972. He was finally discharged from the Navy on February 16, 1978. Here's a link to Kerry's service record chronology as listed in the official Navy documents from Kerry's own site.

So Lt. Kerry was in the Naval Reserves during the time he was meeting with the enemy. Did his reported activity not violate the UMCJ? If not, why not?

Steve Gilbert is a New York City—based writer.

[Ed.] UPDATE: Two readers, one of them from the JAG corps, have written in to supply the information that Kerry is in the clear, with regard to the UCMJ:

(3) Members of a reserve component while on inactive—duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal Service.

are still subject to this body of law.

See Baldilocks; and

See 10 U.S.C. 802(a)(1) and (3) (which is Article 2, UCMJ); see also Rules for Courts—Martial (RCM) 202 (found in the Manual for Courts—Martial, or MCM).

There are also cases interpreting this, but the statute is clear enough.  You have to be serving in a regular component, i.e., active—duty, or performing inactive—duty training in order to be subject to the UCMJ.

Our thanks to both readers. So we only have a moral, not a legal case against his behavior. Unless someone cares to make the case for charges of treason against Kerry, a charge that is extremely difficult to sustain in court.

FURTHER UPDATE: A reader writes that charges might indeed be viable. The explanation follows. Let us stipulate that the reason we have courts and appellate courts is that the law can be argued. Here is what the reader adds to the consideration of the matter:

In the UCMJ, Article 104 has this under "Explanation" section:
 
Explanation.
(1) Scope of Article 104. This article denounces offenses by all persons whether or not otherwise subject to military law. Offenders may be tried by court—martial or by military commission.

This seems to imply that in the case of Article 104, Aiding the enemy, individuals become subject to the provisions of the UCMJ whether or not they are subject to military law as it states above in (1).

Why would this be? Well think about it. If citizen "X" all of a sudden starts communicating or giving aid or information to sworn enemies, he then has entered the realm of military affairs and has made himself subject to certain governing rules.  In effect, he has stopped being solely an observing civilian and crosses the line to that of a "militant".   He could of course be charged with espionage or even treason under civilian statutes. However the UCMJ was designed to be robust, flexible and enforceable in any theater of the world.

Therefore if an American is caught in Afghanistan fighting with the Taliban, trial by UCMJ military commission (tribunal) would be an option. And Article 104 powers that option.

Certainly in Kerry's case, the UCMJ would have been very appropriate to use considering he did his communicating with the enemy as a ready reservist, fully commissioned naval officer.  And he is lucky he did not get charged.  The FBI was certainly monitoring his many VVAW activities. The reason he probably wasn't charged is insufficient hard evidence but more likely the reason was political.  It would have politically disastrous for the Nixon administration. 

YET ANOTHER UPDATE:

Steve Gilbert writes:

I wrote the UCMJ piece before I managed to get my hands on a copy of Unfit For Duty. It addresses much of what I brought up on pp 161—65:
 
What John Kerry Does Not Want You to Know about His Naval Reserve Status

Early in the 2004 campaign, Kerry presented his Navy service record with a convenient gap. The year 1971 was presented as if John Kerry had no military obligation at this time. The year was important because 1971 was the time of many important VVAW protest activities. Early in 2004, the following language describing Kerry's military service appeared on Kerry's campaign website, www.JohnKerry.com. By June 2004, this paragraph had been removed:

John Kerry is a Decorated Combat Veteran of the Vietnam War: Kerry volunteered for the United States Navy after college and served from 1966 through 1970 rising to the rank of Lieutenant, Jr Grade. Afterwards, Kerry continued his military service e United States Naval Reserves from 1972 though 1978.

The year 1971 is left out of the description. This omission was desceptive.

In response to a request by Senator Kerry, the Department of the leased a letter detailing the missing period. In a letter dated , 1986, the Navy listed the following:

18 Feb 1966: Enlisted as an OCSA (E—2), USNR (inactive)

19 Aug 1966: Commenced Active Duty as an OCIU2 (E—5)

15 Dec 1966: Honorably Discharged as an OCIU2 to accept commission in United States Naval Reserve

16 Dec 1966: Accepted Commission, Ensign, United States 1 Reserve, continued active duty

16 Jun 1968: Date of Rank as Lieutenant (Junior Grade) (0—2), States Naval Reserve

1 Jan 1970: Date of Rank as Lieutenant (0—3), United States 1 Reserve

3 Jan 1970: Released from Active Duty, transferred to the Naval ve (inactive)

1 July 1972: Transferred to the Standby Reserve (inactive)

16 Feb 1978: Honorably Discharged from the United States I Reserve as a Lieutenant (0.3)

This record makes it clear that John Kerry was always in the Naval Reserves while he served in the military. He enlisted in the Naval Reserves and was initially inactive. He commenced his active duty in August 1966 and was commissioned as an ensign, again in the U.S. Naval Reserves, in December 1966. John Kerry enlisted in the U.S. Naval Reserves, and he never left the U.S. Naval Reserves.

The letter dated January 2, 1970, releasing John Kerry from active duty and transferring him to inactive duty in the Naval Reserve stated in paragraph six:

You are advised that your release from active duty does not terminate your status as a member of the U.S. Naval Reserve. On the day following the effective date of your release from active duty as specified in paragraph 3 of this endorsement, you will assume the status of a member of the Naval Reserve on inactive duty. While on inactive duty you are subject to involuntary recall to active duty to the extent authorized by federal statute.

There is an important distinction between being in the Naval Reserves on inactive duty and being in the Standby Reserves on inactive duty. Standby Reserve status would permit a person to argue that he was a civilian for all intents and purposes. A person in the Naval Reserves is still considered in the Navy; inactive duty means that the individual or the unit to which that individual has been assigned has not been called up for active duty. Again, note the similarity: John Kerry, when he entered the Navy on February 18, 1966, entered the Naval Reserves on inactive duty. He did not commence active duty until August 19, 1966.

As a member of the Naval Reserves, Kerry would have held a Naval Reserve identification card; he would have received Navy pay; and he would have had continuing, though minimal, obligations to report to official Navy requests for training and to respond to any inquiries advanced to him. In 1971, John Kerry was still in the ven though his status was Naval Reserves, inactive duty.

To put Kerry's antiwar activities in context, we must remember that he was a member of the Naval Reserves until July 1972, when he was placed on Standby Naval Reserve. Kerry's antiwar activities included:

Meeting with the enemy in Paris and coordinating ongoing meet­ings with various members of the VVAW, both in Paris and Hanoi, to arrange the release of American POWs to the VVAW. These meetings also provided aid and support to the North Vietnamese Communists in the form of radio broadcasts and other indoctrina­tion methods aimed at encouraging U.S. soldiers in the field to lay down their arms and desert the military.

Testifying before the Senate Foreign Relations Committee that the United States was implementing a military policy in Vietnam that caused American soldiers to commit war crimes and atrocities, and that this criminal military policy extended up the entire chain of command.

Giving a press conference in Washington, D.C., in which he advo­cated a Vietnamese Communist peace proposal that would have called for a complete withdrawal of the United States military and an abandonment of the government of South Vietnam, in other words, a surrender on enemy terms, followed by the payment of war damage reparations by the United States to the Vietnamese Communists.

Continuing his representation of the VVAW even after he was aware that various VVAW leaders had falsified their credentials and were not in fact Vietnam veterans.

Telling many slanderous and otherwise damaging lies in numerous public speeches, the effect of which was to malign the purpose and morality of the United States service personnel in the field in Vietnam, fighting and dying as he spoke.

Allowing his speeches and testimony to be used by the enemy in their propaganda efforts, including but not limited to the replaying of these speeches and testimony to the American POWs being held in captivity by our enemies.

What is clear from the record is that Kerry lied or otherwise misrepresented his continued service in the Naval Reserves so as to give the impression that he was not affiliated in any way with the U.S. military when he engaged in his radical protest activities. The truth is that Kerry was still in the military when he protested against his own brothers in arms. This raises the additional concern that Kerry's antiwar activities may well have been in direct violation of the obligations of the Uniform Code of Military Justice, which prohibit him from making adverse charges against his chain of command or statements against his country, especially in time of war.

The Uniform Code of Military Justice (UCMJ) is a federal law, enacted by Congress. Its provisions are contained in United States Code, Title 10, Chapter 47. Article 36 of the UCMJ allows the President to prescribe rules and procedures to implement the provisions of the UCMJ. The President does this via the Manual for Courts—Martial (MCM) which is an executive order that contains detailed instructions for implementing military law for the United States Armed Forces.

The UCMJ states:

ART. 104. AIDING THE ENEMY 

Any person who——

(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or

(2) without proper authority, knowingly harbors or protects or gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly;

shall suffer death or such other punishment as a court—martial or military commission may direct.

What we know:

John Kerry, in sworn testimony before the Senate in April 1971, said he met with the North Vietnamese and Vietcong delegations in Paris in May 1970. He said they discussed their peace proposals —— especially the eight points of Madam Binh. Kerry strongly recommended that the Senate accept those proposals.

I have been to Paris. I have talked with both delegations at the peace talks, that is to say the Democratic Republic of Vietnam and the Provisional Revolutionary Government and of all eight of Madam Binh's points...

...I realize that even my visits in Paris, precedents had been set by Senator McCarthy and others, in a sense are on the borderline of private individuals negotiating, et cetera.

In the ensuing months, Kerry became even more strident in his insistence that the US accept Madam Binh's (and the NVM and VC's) peace proposals.

Meanwhile, other representatives of Kerry's group, the Vietnam Veterans Against The War (VVAW ), met with the NVM and VC delegations in Paris, in March 1971. They were even photographed sitting at a table with them, as in a photo displayed in Winter Soldiers, by Richard Stacewicz, page 284. 

Subsequently, VVAW representatives met with the North Vietnamese and Vietcong delegations on numerous occasions, both in Paris and even in Hanoi.

The VVAW even signed a treaty with the North Vietnamese which included all of Madam Binh's points, as noted by the historian of the anti—war movement, Gerald Nicosia, his book Home To War: 

These people signed their own symbolic "people's peace treaty" with the Vietnamese.  As Jan Barry recalls, the gesture was intended as a means of embracing the people they had harmed, of asking forgiveness for those they had killed.

You can read the "Peoples Peace Treaty" here:

According to Nicosia, FBI files show Kerry made another trip in 1971 to meet with the NVM and VC delegations:

The [FBI] files record that Kerry made another trip to Paris that summer to learn how the North Vietnamese might release prisoners.

It is quite likely that Kerry's actions were in violation of the so—called Logan Act: United States Code Title 18, Part I, Chapter 45, Sec. 953

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

Kerry's own comments in his Senate testimony show he might have been aware of this. But no one has ever been prosecuted under the Logan Act.

That might not be true of article 104 of the UMCJ, however.

Perhaps it is the fear of this legal liability that caused the Kerry camp to fudge the chronology of Kerry's service record to provide a two year gap, from (coincidentally) April 1970 to 1972. 
 
January 1, 1970 Kerry promoted to (full) Lieutenant

January 3, 1970 Kerry requests discharge

March 1, 1970 Kerry's date of separation from Active Duty

April 29, 1970 Kerry listed as Registrant who has completed service

And then here:

John Kerry joined the United States Navy after college and served from 1966 through 1970 rising to the rank of Lieutenant, Junior Grade. Afterwards, Kerry continued his military service in the United States Naval Reserves from 1972 through 1978.

But the official Navy records show that Kerry joined the Naval Reserves (inactive), not the United States Navy, per se, as his own campaign indicated. He commenced active duty six months later. He transferred from active duty to the Naval Reserve (inactive) on January 3, 1970. He was put on standby reserve on 1 July 1972. He was finally discharged from the Navy on February 16, 1978. Here's a link to Kerry's service record chronology as listed in the official Navy documents from Kerry's own site.

So Lt. Kerry was in the Naval Reserves during the time he was meeting with the enemy. Did his reported activity not violate the UMCJ? If not, why not?

Steve Gilbert is a New York City—based writer.

[Ed.] UPDATE: Two readers, one of them from the JAG corps, have written in to supply the information that Kerry is in the clear, with regard to the UCMJ:

(3) Members of a reserve component while on inactive—duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal Service.

are still subject to this body of law.

See Baldilocks; and

See 10 U.S.C. 802(a)(1) and (3) (which is Article 2, UCMJ); see also Rules for Courts—Martial (RCM) 202 (found in the Manual for Courts—Martial, or MCM).

There are also cases interpreting this, but the statute is clear enough.  You have to be serving in a regular component, i.e., active—duty, or performing inactive—duty training in order to be subject to the UCMJ.

Our thanks to both readers. So we only have a moral, not a legal case against his behavior. Unless someone cares to make the case for charges of treason against Kerry, a charge that is extremely difficult to sustain in court.

FURTHER UPDATE: A reader writes that charges might indeed be viable. The explanation follows. Let us stipulate that the reason we have courts and appellate courts is that the law can be argued. Here is what the reader adds to the consideration of the matter:

In the UCMJ, Article 104 has this under "Explanation" section:
 
Explanation.
(1) Scope of Article 104. This article denounces offenses by all persons whether or not otherwise subject to military law. Offenders may be tried by court—martial or by military commission.

This seems to imply that in the case of Article 104, Aiding the enemy, individuals become subject to the provisions of the UCMJ whether or not they are subject to military law as it states above in (1).

Why would this be? Well think about it. If citizen "X" all of a sudden starts communicating or giving aid or information to sworn enemies, he then has entered the realm of military affairs and has made himself subject to certain governing rules.  In effect, he has stopped being solely an observing civilian and crosses the line to that of a "militant".   He could of course be charged with espionage or even treason under civilian statutes. However the UCMJ was designed to be robust, flexible and enforceable in any theater of the world.

Therefore if an American is caught in Afghanistan fighting with the Taliban, trial by UCMJ military commission (tribunal) would be an option. And Article 104 powers that option.

Certainly in Kerry's case, the UCMJ would have been very appropriate to use considering he did his communicating with the enemy as a ready reservist, fully commissioned naval officer.  And he is lucky he did not get charged.  The FBI was certainly monitoring his many VVAW activities. The reason he probably wasn't charged is insufficient hard evidence but more likely the reason was political.  It would have politically disastrous for the Nixon administration. 

YET ANOTHER UPDATE:

Steve Gilbert writes:

I wrote the UCMJ piece before I managed to get my hands on a copy of Unfit For Duty. It addresses much of what I brought up on pp 161—65:
 
What John Kerry Does Not Want You to Know about His Naval Reserve Status

Early in the 2004 campaign, Kerry presented his Navy service record with a convenient gap. The year 1971 was presented as if John Kerry had no military obligation at this time. The year was important because 1971 was the time of many important VVAW protest activities. Early in 2004, the following language describing Kerry's military service appeared on Kerry's campaign website, www.JohnKerry.com. By June 2004, this paragraph had been removed:

John Kerry is a Decorated Combat Veteran of the Vietnam War: Kerry volunteered for the United States Navy after college and served from 1966 through 1970 rising to the rank of Lieutenant, Jr Grade. Afterwards, Kerry continued his military service e United States Naval Reserves from 1972 though 1978.

The year 1971 is left out of the description. This omission was desceptive.

In response to a request by Senator Kerry, the Department of the leased a letter detailing the missing period. In a letter dated , 1986, the Navy listed the following:

18 Feb 1966: Enlisted as an OCSA (E—2), USNR (inactive)

19 Aug 1966: Commenced Active Duty as an OCIU2 (E—5)

15 Dec 1966: Honorably Discharged as an OCIU2 to accept commission in United States Naval Reserve

16 Dec 1966: Accepted Commission, Ensign, United States 1 Reserve, continued active duty

16 Jun 1968: Date of Rank as Lieutenant (Junior Grade) (0—2), States Naval Reserve

1 Jan 1970: Date of Rank as Lieutenant (0—3), United States 1 Reserve

3 Jan 1970: Released from Active Duty, transferred to the Naval ve (inactive)

1 July 1972: Transferred to the Standby Reserve (inactive)

16 Feb 1978: Honorably Discharged from the United States I Reserve as a Lieutenant (0.3)

This record makes it clear that John Kerry was always in the Naval Reserves while he served in the military. He enlisted in the Naval Reserves and was initially inactive. He commenced his active duty in August 1966 and was commissioned as an ensign, again in the U.S. Naval Reserves, in December 1966. John Kerry enlisted in the U.S. Naval Reserves, and he never left the U.S. Naval Reserves.

The letter dated January 2, 1970, releasing John Kerry from active duty and transferring him to inactive duty in the Naval Reserve stated in paragraph six:

You are advised that your release from active duty does not terminate your status as a member of the U.S. Naval Reserve. On the day following the effective date of your release from active duty as specified in paragraph 3 of this endorsement, you will assume the status of a member of the Naval Reserve on inactive duty. While on inactive duty you are subject to involuntary recall to active duty to the extent authorized by federal statute.

There is an important distinction between being in the Naval Reserves on inactive duty and being in the Standby Reserves on inactive duty. Standby Reserve status would permit a person to argue that he was a civilian for all intents and purposes. A person in the Naval Reserves is still considered in the Navy; inactive duty means that the individual or the unit to which that individual has been assigned has not been called up for active duty. Again, note the similarity: John Kerry, when he entered the Navy on February 18, 1966, entered the Naval Reserves on inactive duty. He did not commence active duty until August 19, 1966.

As a member of the Naval Reserves, Kerry would have held a Naval Reserve identification card; he would have received Navy pay; and he would have had continuing, though minimal, obligations to report to official Navy requests for training and to respond to any inquiries advanced to him. In 1971, John Kerry was still in the ven though his status was Naval Reserves, inactive duty.

To put Kerry's antiwar activities in context, we must remember that he was a member of the Naval Reserves until July 1972, when he was placed on Standby Naval Reserve. Kerry's antiwar activities included:

Meeting with the enemy in Paris and coordinating ongoing meet­ings with various members of the VVAW, both in Paris and Hanoi, to arrange the release of American POWs to the VVAW. These meetings also provided aid and support to the North Vietnamese Communists in the form of radio broadcasts and other indoctrina­tion methods aimed at encouraging U.S. soldiers in the field to lay down their arms and desert the military.

Testifying before the Senate Foreign Relations Committee that the United States was implementing a military policy in Vietnam that caused American soldiers to commit war crimes and atrocities, and that this criminal military policy extended up the entire chain of command.

Giving a press conference in Washington, D.C., in which he advo­cated a Vietnamese Communist peace proposal that would have called for a complete withdrawal of the United States military and an abandonment of the government of South Vietnam, in other words, a surrender on enemy terms, followed by the payment of war damage reparations by the United States to the Vietnamese Communists.

Continuing his representation of the VVAW even after he was aware that various VVAW leaders had falsified their credentials and were not in fact Vietnam veterans.

Telling many slanderous and otherwise damaging lies in numerous public speeches, the effect of which was to malign the purpose and morality of the United States service personnel in the field in Vietnam, fighting and dying as he spoke.

Allowing his speeches and testimony to be used by the enemy in their propaganda efforts, including but not limited to the replaying of these speeches and testimony to the American POWs being held in captivity by our enemies.

What is clear from the record is that Kerry lied or otherwise misrepresented his continued service in the Naval Reserves so as to give the impression that he was not affiliated in any way with the U.S. military when he engaged in his radical protest activities. The truth is that Kerry was still in the military when he protested against his own brothers in arms. This raises the additional concern that Kerry's antiwar activities may well have been in direct violation of the obligations of the Uniform Code of Military Justice, which prohibit him from making adverse charges against his chain of command or statements against his country, especially in time of war.