October 20, 2004

Is Kerry Disqualified?

The US Constitution's 14th amendment has a section disqualifying those who turn on the US:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Apparently some people are starting to sniff around the idea that John Kerry falls under this provision based on his wartime activities against the Vietnam war while he was still a Lt. in the US Navy. Prof. Eugene Volokh is on the case and Clayton Cramer joins in. Both say that they doubt that Kerry is in trouble on this. I'm not so sure.

Cramer's thoughts are derivative of Prof. Volokhs so I'll concentrate there. Where I disagree with the good professor is that he believes that Lt. Kerry's Paris trip was not that significant and it's the case that his domestic criticisms are what really matter:

Kerry, the argument goes, gave "aid or comfort" to the North Vietnamese by opposing the war, and by apparently meeting with a North Vietnamese peace delegation in Paris in 1971. One or both of these things (probably the former much more than the latter) may have emboldened our enemies and sapped our soldiers' morale, thus giving the enemy aid or comfort.

The counter to the argument in Prof. Volokh's view is northern politicians in the Civil War often advocated peace terms to end the war with particulars that were advantageous for the CSA. And that's fine and dandy for Kerry's Senate testimony, his frequent antiwar speeches, his book, all the stuff that N. Korean interrogators threw in the faces of US prisoners at the Hanoi Hilton. What it doesn't work for is speaking with the two negotiating delegations of a hostile power at war with the US. Any aid and comfort that was rendered there is of a different kind entirely than some sort of domestic tussle over policy conducted "in-house" in the US.

If John Kerry wins the election (and I pray he does not), this will come up in a growing crescendo over his four years in office. It won't be healthy for Kerry's term in office, for either party, for the country itself, but that doesn't mean that it won't come up and it doesn't mean that the people raising the issue won't have the law on their side. Too little is publicly known about Kerry's activities in Paris to be sure. And if French Intelligence recorded the conversation or even does a very good fake, this is something that they could use to extract concessions out of Kerry to avoid impeachment.

There really is only one cure. For the good of the nation, one order of business in a 2004 lame duck session (the session is already scheduled, I believe) would need to be for Sen. Frist and for Rep Hastert to introduce a bill conditionally removing any potential disability under the 14th Amendment for Kerry's 70s activism on Vietnam. It would set a tone of reconciliation while closing a potential opening for international blackmail and tinfoil hattery.

Posted by TMLutas at October 20, 2004 09:29 PM