Did John Kerry violate the UCMJ in Paris?

[ChrisM]

On several other sites I’ve encountered people who have claimed that, when Kerry visited Paris in 1970 and met with various Vietnamese delegations, that he was in violation of Article 104 of the UCMJ, forbidding communication with the enemy. I can’t find any discussion of this, however, that isn’t arguing FOR this claim, and I was wondering what the merits of it are, or whether there are arguments against it.

I wasn’t sure whether to put this in Great Debates or General Questions, so I thought I would start with the latter.

[UncleBill]

Article 104 states:

904. 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.

For reference.

So if he did do this while still in the service, without proper authority, it would appear that this article would apply. He seperated from Active Service on March 1, 1970.

[UncleBill]

His Paris trip was his honeymoon, and he and Julia Stimson Thorne were married on May 23, 1970, so it appears he was out of the service. He would have been possibly in violation of 18 U.S.C. Section 953, which states:

Sec. 953. - Private correspondence with foreign governments

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.

This section shall not abridge the right of a citizen to apply, himself or his agent, to any foreign government or the agents thereof for redress of any injury which he may have sustained from such government or any of its agents or subjects.

[Omphaloskeptic]

Here’s the text of [UCMJ Article 104](http://www.au.af.mil/au/awc/awcgate/ucmj2.htm#904. ART. 104. AIDING THE ENEMY):

904. 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.

There’s some elaboration on what this means in the Manual for Courts Martial) (here’s an excerpt from the explanation section for Article 104):

(6) Communicating with the enemy.

(a) Nature of the offense. No unauthorized communication, correspondence, or intercourse with the enemy is permissible. The intent, content, and method of the communication, correspondence, or intercourse are immaterial. No response or receipt by the enemy is required. The offense is complete the moment the communication, correspondence, or intercourse issues from the accused. The communication, correspondence, or intercourse may be conveyed directly or indirectly. A prisoner of war may violate this Article by engaging in unauthorized communications with the enemy. See also paragraph 29c(3). 

(b) Knowledge. Actual knowledge is required but may be proved by circumstantial evidence.

(c) Citizens of neutral powers. Citizens of neutral powers resident in or visiting invaded or occupied territory can claim no immunity from the customary laws of war relating to communication with the enemy.

IANAL, but it looks to me like Kerry’s meeting satisfies the definition of “communication with the enemy.” I don’t know what sort of “communications” are typically prosecuted under this code, though. I’m also not sure quite what the scope of the article is. Presumably, though, it includes both active and reserve duty (Kerry was in the Naval Reserves during the time period in question).

[UncleBill]

The fun part about being in the Reserves is the UCMJ only applied to you while in a duty status, or while traveling to or from a duty status from your home.

[Diogenes_the_Cynic]

Who exactly are these “delegations” that he “met” with?

I see no reason to even accept that premise.

[UncleBill]

From a heavily slanted website:

On April 22, 1971, as he testified before Senator Fulbright’s Committee on Foreign Relations, John Kerry mentioned that in Paris he had meetings with “both sides” of the Paris Peace Talks.

and

When John Kerry testified before the Senate Foreign Relations Committee in April 1971, he admitted that he had probably broken the law by going to Paris and meeting with North Vietnamese and Viet Cong leaders. (From page 188 of the hearing record: “I realize that even my visits in Paris . . . in a sense are on the borderline of private individuals negotiating, et cetera. I understand these things.”

I tend to read that parts in quotes, and try to ignore the commentary.

[Omphaloskeptic]

@UncleBill

The fun part about being in the Reserves is the UCMJ only applied to you while in a duty status, or while traveling to or from a duty status from your home.

Does that apply to this article? The explanation I linked to above says

(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.

which seems broader than just active duty. (The same “any person” is used in Article 106 (Spying) and seems to apply to civilians and even noncitizens, not just active-duty military officers.)

[Zoe]

So, according to John Kerry’s testimony, he was, as a private citizen, in a sense on the borderline of at least attempting to negotiate peace at the Paris Peace Talks.

And he was willing to admit to it in 1970 when the country was still so divided and when most citizens were still unaware of how much Johnson, McNamara and Nixon, among others, had lied to us?

That is impressive. He didn’t just talk the talk like so many of us. And he didn’t just protest in the streets. And he didn’t just organize and testify before Congress. This part of his testimony had slipped past me.

[Julius_Henry]

I think if this really was an issue, the Navy would have done something about it in 1970. I also think the economy, the environment, civil rights, and war in Iraq is a more important issue in this election than the war in Viet Nam, so what do I know.

[testride]

Sec. 953. - Private correspondence with foreign governments

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.

This section shall not abridge the right of a citizen to apply, himself or his agent, to any foreign government or the agents thereof for redress of any injury which he may have sustained from such government or any of its agents or subjects.

Without expressing any opinion on the Kerry business, I wonder if someone could explain how this law is actually applied and enforced. It seems entirely too broad. It seems as if it could be applied to any lobbyist attempting to influence foreign aid appropriations or foreign policy in any way, or really anyone representing anyone else in foreign trade negotiations or any other kind of international dispute. If, say, the Mexican and American governments disagree about some provision of NAFTA, could an American lawyer representing Mexico be accused of a federal crime? If a relative of somebody being held at Guantanamo asks, say, the Swiss Red Cross to help free his relative, is that a crime? Who is this law aimed at and what behavior is prohibited?