Kerry should sue thr Swift Boat VfT / Bush should sue CBS

Both men have arguably been defamed by lies - Kerry by the Swift Boat Veterans’ debunked attacks, and Bush by the forged documents presented by CBS with not even minimal effort at due diligence.

Both should sue.

In 1964, another sitting Senator ran for President - unsuccessfully, as it happens. “AuH2O.” Barry Goldwater was the Republican candidate when “Fact” magazine published two articles about Goldwater. The first said that he was mentally ill – not hyperbole, but actually clinically paranoid and delusional. This conclusion was supported by the second article, which purported to be the result of a survey of several hundred psycholgists who had been asked the question, “Is Barry Goldwater mentally fit enough to be President of the United States?” The doctors surveyed allegedly responded overwhelmingly that Goldwater exhibited signs of mental illness, that he was a sadist and a schizophrenic, and compared him to Hitler, Stalin, and Castro.

To show defamation, a public figure must show the defamer acted with “actual malice” - knowledge of falsity, or reckless disregard for truth or falsity - as well as the fact of the defamation. It’s not enough, in other words, to show the allegation is false – the public figure must also show that the defamer either knew he was lying or was so reckless in his statements that a lie was reasonably foreseeable.

Goldwater sued Fact magazine, who claimed that they believed the statements to be true, and therefore had no actual malice. A jury disagreed, and the verdict for Goldwater was upheld on appeal.

I toyed with starting two threads here, because I have a funny feeling that there are some readers who heartily agree that Kerry should prevail in a similar suit but think Bush deserves to lose, and a smaller number of still-vocal readers that believe Kerry should lose such a suit but that Bush was wronged and should prevail.

I contend that both men have been damaged by knowing lies, and both should sue. And win.

  • Rick

Important point: Goldwater sued after the election.

Another important point: Wannabe presidents don’t sue for defamation.

A final important point: Kerry would win, because the SBVFTT assholes are demonstrably liars. Bush would lose because CBS actually believed their memos were authentic, thereby negating the malice requirement.

I don’t think either should sue.

The Swifties, while liars and patently malicious, have made precious few falsifiable claims. Differences in recollection are not actionable. The bulk of their claims are either subjective opinions (many of them from people who never even met John Kerry) or simply different recollections.

They have also been careful to couch everything as opinion or recollection so there isn’t anyway to prove that they deliberately stated anything which they knew wasn’t true.

In the case of CBS, I don’t see malice, just incompetence.

There is also the fact that Bush would be subject to deposition if he sued, during which time he might be asked about anything or everything related to his service in the ANG. Since the substance of the memos is true (even if they are forgeries), CBS would be well within bounds to grill him about the content of the memos and whether the events described in them were true.

Remember, this is how the pubs got Clinton. They got him under oath and then set a perjury trap. The same could be done to Bush. If he goes under oath and says anything at all that can later be proven false, we have a precedent that says he must be impeached. Since Bush would be asked a lot about the ANG he would be bound to prevaricate in some way and then the worm will have turned for the Pubs.

Plus, Bush just would never win anyway. I don’t think he could show either malice or deliberate falsity.

Precedent counts for nothing here. Whether to impeach a president or not is, constitutionally, a purely political decision to be made by the House of Representatives – which is, at present, controlled by Republicans.

True, but the Dems would have a great rhetorical device and the Pubs would have to explain why Bush is subject to different rules than Clinton. It would be politically embarrasing, it would dominate discussion and it would make the Pubs look like hypocrites.

So should Bush and Kerry.

Good point. By waiting until after the election, Bush can safely sue as he’s ineligible for a third term and Kerry can safely sue because he’s got four years before he’s an even potential candidate, and, frankly, I don’t see his star as a bright on in 2008.

That element may also be satisfied by reckless disregard.

Chapter Four: “I will tell you in all candor that the only baby killer I knew in Vietnam was John F. Kerry.” That’s a pretty blatant statement, and doesn’t seem to leave any room for ‘recollection’ differences…

I haven’t heard that “baby killer” quote before, Bricker. Could you tell me who said it and what the context was?

[QUOTE=Bricker]
Both men have arguably been defamed by lies - Kerry by the Swift Boat Veterans’ debunked attacks,

[quote]

I was not aware that Swiftvets have been conclusively debunked. Where are they lying? What did they falsify?

It’s a quote from one William Franke, a Swift Boat veteran. It preceeds discussion of Kerry’s Senate testimony.

However, there is absolutely no recounting of any incident in which Kerry killed a child. Swift boat gunner Steve Gardner does recount an incident in which a baby was accidentally killed, but in this account, Kerry appears after the gunfire started and orders a cease-fire. (The account criticizes Kerry for allegedly falsifying the after-action report to shift blame for the deaths to a phantom VC squad).

Kerry is not a baby-killer. The inclusion of the Gardner story shows that the authors know this, yet they printed the accusation anyway.

  • Rick

Page 51, Spoken by William Franke.

It appears to me Bricker that this OP is inspired by the following article authored by John Dean:

This article doesn’t really do a fair job representing either Gardner’s or Franke’s actual argument in context.

I’ll get the book back this weekend, but I still have my notes. The incident the book describes, and the context of Franke’s quote is as follows, IIRC.

John Kerry is on the record telling a story about how he personally shot this woman and this child in a Sampan by accident. That’s John Kerry personally claims to have done the shooting.

Franke’s comment is in response to this claim of Kerry’s.

Gardner has a different version of the story, than Kerry, and one that is poorly represented in Dean’s article. Gardner says Kerry is lying. Kerry did not personally kill these people. Gardner did. Gardner was the gunner on the boat, and Kerry never fired the .50 caliber guns. It would have been difficult for Kerry to do since he was on the bridge, running the boat and Gardner was in the gun tub.

On the evening of 1/26/69 a Sampan was allowed to get too close to Kerry’s Swiftboat. Gardner maintains that this would have been impossible had Kerry been monitoring the radar properly. The Swiftboat took fire from a male occupant of the Sampan with an ak-47 and Gardner returned fire killing the shooter, a woman, and a small child. Gardner claims that had Kerry been doing his job properly he (Gardner) would not have had to kill these two innocents.

Further, Gardner claims that Kerry lied in his after action report to make this regrettable incident seem heroic claiming 4 KIAs and 3 captured VC.

The after action report can be viewed here:

http://www.2100weekly.com/images/kerry/SpotReports_January1969.pdf

Kerry had told a version of the story which agrees with Gardner’s version with two major exceptions. There is no mention of radar in Kerry’s version, and Kerry is the shooter in his version (to which Franke made his comment.)

Kerry’s after action report disagrees with Kerry’s subsequant story about having killed these people personally and claims the 4 KIA and 3 CIA. They cannot both be correct. Gardner claims that neither is, as Gardner was the gunner and manning the guns while Kerry drove the boat and watched radar (or was supposed to be watching radar, and therefore did not fire the guns)

This article contains the relevant excerpts from the book and clears up an error I made:

I erroneously stated that Kerry claims to have fired the shots that killed the baby, confusing this with an aspect of the Fulbright testimony where Kerry says that he personally used the .50 calibers against Sampans and villagers.

I apologize for this accidental misrepresentation.

A legal question:

Does the guy suing have to show that actual damage was done in order to have a case? If that is so, then Bush clearly isn’t in a position to sue. This story was debunked within hours of its airing on CBS, and if anything, it helped Bush rather than hurt him.

IIRC from class discussions about this, there do have to be actual damages. Bush can go forward with a suit, but would probably find it dismissed because it can be shown that he actually benefited from the resulting publicity. OTOH, had Bush been provably damaged, that’s a different story. But he wasn’t.

Robin

No problem – but you can see, I hope, that this is a crucial matter. The book - or at least Franke - calls Kerry a baby-killer, but in recounting the only evidence that comes close, acknowleges that this isn’t so. This alone defeats any claim they might make about “different interpretations” or “we believed it was true.”

And yes, the Dean article inspired the OP.

When I posted the OP, there were still many True Believers here who were insisting that it was perfectly reasonable that the Texas ANG, in 1972, would spend $4,000 on a typewriter to write one memo in proportional spacing, and with remarkable prescience carefully have customized that typewriter to produce output exactly like that of modern-day MS Word. Indeed, when I posted the OP, Dan Rather was still insisting that the memos were genuine.

Since CBS has stepped back from that claim now, and since the TB here have subtly shifted from their stance to “Karl Rove planted the memos to make us look bad!” I agree that Bush’s damages are, at best, highly theoretical.

Kerry, arguably, can claim he lost the election because of the SBVfT. He’s got a case.

  • Rick

Not really. Kerry was the Captain of the boat. He is responsible for what happens on that boat. That’s what it means to be Captain.

Further, if you find Gardner’s story credible (as I would guess Franke does) then Kerry is responsible for this child’s death in an even more direct way, as it was Kerry’s negligence in failing to attend the radar that caused the death.

So, Franke is not lying if this incident is the source of the babykiller comment. There’s clearly a rationale there.

Is this personal ad hominem issued by Franke the source by which you insist some 300 decorated war vets and POWs including Kerry’s entire chain of command are lying? If you’re saying that the Swiftvets are discredited liars, then that is what you’re saying, you know?

It’s also important to realize how the Swiftvets have organized their attack against Kerry before you insist that they are all liars.

The vast majority are simply signatories to a letter condemning Kerry’s actions with VVAW against the war and his Wintersoldier testimony as lies, and a betrayal of his country and his fellow soldiers.

You may read the letter here:

http://hail.he.net/~danger/swift/article.php?story=20040629220813790
This stance is backed up in two different ways throughout Unfit for Command.

The first, and it is the bulk of the book, is simply Kerry’s own words; his testimony, interviews, his authorized biographies. In many instances Kerry directly contradicts himself. You saw a few examples from the article I cited.

The second is by witnesses. Some of these are eyewitnesses to key events, some simply character and procedural type witnesses. In crafting the book, O’neil has gone so far as to authenticate the bonafides of his witnesses and have them sign afidavits as to what they are saying. Kerry himself did no such thing during the Wintersoldier investigation as he gathered the evidence for his testimony on the record. Basically anyone could get up and tell stories about atrocities and no attempt was made to determine whether or not these stories were true, or if the people telling them were actually who they said they were or were in a position to witness what they said they witnessed. In fact, Hubbard, Kerry’s cofounder of VVAW was in fact an imposter himself and had never been in Vietnam.

It seems to me that if one is to say that the Swiftvets are irresponsible or are liars, the Kerry is far worse as the standard he used at Wintersoldier is nowhere near as high.

FInally, there is this:

http://hail.he.net/~danger/swift/index.php?topic=WarCrimes

"On June 6, 1971, John Kerry described the work of the Swift boats to the Washington Star as follows:

“We established an American presence in most cases by showing the flag and firing at sampans and villages along the banks. Those were our instructions, but they seemed so out of line that we finally began to go ashore, against our orders, and investigate the villages that were supposed to be our targets. We discovered we were butchering a lot of innocent people, and morale became so low among the officers on those ‘swift boats’ that we were called back to Saigon for special instructions from Gen. Abrams. He told us we were doing the right thing. He said our efforts would help win the war in the long run. That’s when I realized I could never remain silent about the realities of the war in Vietnam.”

What John Kerry told the Washington Star was a lie."

This appears to me to be a direct indictment of those who served on the Swiftboats, and general Abrams by name. As far as I can tell it is an obvious, blatant lie which simply does not stand up to scrutiny.

Kerry has directly impugned and called into question the integrity and service of his fellow Swiftboat Veterans. I understand their anger, and respect their right to respond.

As for who’s lying, the Swiftvets or Kerry, we can judge at least in part by seeing that the Swiftvets have caused Kerry or his spokesmen to back off of several claims and change their story.

Kerry’s biographer has claimed that the Christmas in Cambodia thing is obviously wrong, the campaign has conceded that the 1st purple heart came from Kerry’s own fire, and we’ve seen a change in the Rasmussen incident. During the convention Kerry gives his “No man left behind version,” in which Kerry’s boat alone comes back to save this man, braving fire and Kerry pull him aboard as the gunnels are running with blood. It is now as far as I can tell, pretty much conceded by everybody that what in fact happened was the other boats stayed, while Kerry’s boat accelerated away and then came back. Kerry himself has told several different versions of this story.

When you say that they are debunked or liars and that Kerry should sue, I’m wondering how you arrive at this conclusion.

Welcome back, Scylla. Since you seem to have missed it, here are 22 full pages on “John Kerry and Vietnam”. Merely substitute your name for Sam Stone’s and it will be like you never left.

Public figure defamation plaintiffs are always required to prove actual damages. Non-public figure defamation plaintiffs may, in certain cases (known as “libel per se”, have their damages presumed by the law. Examples of libel per se include defamatory statements about the plaintiff’s business or false statements that the plaintiff has a “loathsome disease.”

Been there, done that, mg. Our friend’s analysis of that thread precedes his questions “Where are they lying? What did they falsify?”

It’s good to know there are constants in this world.

Constant as the Northern Star, and equally out of reach.