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Sunday, February 7. 2010
Is wearing fraudulent medals of valor just a harmless pick-up line?
The AP reports that defense attorneys in two Stolen Valor prosecutions are challenging the constitutionality of the Stolen Valor Act, passed unanimously in the US Senate and by acclamation in the House in late 2006. They say, the AP reports, “the First Amendment protects almost all speech that doesn't hurt someone else. Neither man has been accused by prosecutors of seeking financial gain for himself.” In rebuttal, “Craig Missakian, a federal prosecutor in the
First Amendment scholars may find this case "interesting," but it means more than an item of interest to those affected.
A noted First Amendment defender, law professor Eugene Volokh filed an amicus brief, in which his draft says, although “the [Supreme] Court has never articulated a clear rule for which knowingly false statements of fact are constitutionally protected and which are not,”
I spoke with BJ Burkett, whose book Stolen Valor led to the 2006 Act. Burkett says, as does the federal prosecutor above,“The decorations are part and parcel of the Constitution creating the military, and anything that denigrates that weakens the Constitution.” In an age where strict respect for the Constitution is chancy, that argument may not hold. But, the fraud statutes are not challenged, at least where fraudulent gain is involved, and specific frauds do have additional prohibitions. Further, false claims that demonstrably cause harm to others are upheld, from “yelling fire in a crowded theater” to falsely claiming not to carry H.I.V. and infecting a bar pick-up.
So, where does that leave the constitutional issue in the Stolen Valor challenges? Many liberals and conservatives should be in a quandary. Many liberals support “hate crime” and “hate speech” laws when aimed at designated groupings. Many conservatives oppose restrictions on “freedom of speech.” On the other hands, veterans in general, and medals of valor recipients in particular, are a grouping that earned elevated respect, and free speech is constitutionally limited when causing demonstrable harm.
So, is there demonstrable harm in falsely claiming medals of valor?
It is clear that almost all veterans and medals of valor recipients, along with a unanimous Congress, believe there is, which should be prosecuted. It is clear that such frauds gain honors they do not deserve. Indeed, many also materially gain, in direct benefits and prestige used to further their careers. For example, there are more claimants at the VA to being POWs, who receive a medal, than were. Taxpayers are harmed, as well as other vets who are placed on lower priority.
This is not a right to burn the flag, our nation’s flag not being specifically mentioned in the Constitution, and not analogous in that burning a symbol may hurt patriots’ feelings but falsely claiming medals of valor directly contravenes the sole lawful authority of the DOD to issue them.
It is important to note here that the reluctance of the DOD to create a comprehensive database of legitimate medals of valor recipients is inexcusable. (I wrote about it here.)
Burkett hopes that the prominence of this challenge may lead to the DOD getting its act together, and to raising the penalty from a misdemeanor to a felony. Look at this gay clown claiming unearned medals of valor to support "gay rights."
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Dawn Patrol 02/07/2010
Welcome to the Dawn Patrol, our daily roundup of information on the War on Terror and other topics - from the MilBlogs and various sources around the world. If you're a blogger, you can join the conversation. If you link to any of these stories, add a link to the...
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Tracked: Feb 08, 11:33
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Bruce my friend ... "So is there demonstrable harm in falsely claiming medals of valor?" you ask. You know there is. As a 'former Marine,' [is there such a thing?] you know that stealing someone else's heroism is a crime against our society and those of us who live in it. "Who steals my purse steals trash," Shakespeare said. "But he who filches from me my good name, takes that which not enriches him, and makes me poor indeed."
There are always cowards who do this, cowards who do not have the guts to go forth themselves and do heroic deeds and protect the weak and the innocent. But they deserve contempt for what they do. The Navy SEALs have on their website a page they call the "Wall of Shame" where they list the names of those who have impersonated SEALs. Good for the SEALs.
There is no excuse which justifies this. The puny souls who try to co-opt someone else's courage disgust all of us, and denigrate the brave souls in all of our wars who have sacrificed everything to protect us and our country.
False claims to military Medals is the same as counterfiting money, or falsely claiming a diploma or academic honor or falsifying a resume. It is lying cheating stealing deceitful and fraudulant; there are already laws against those things. By devaluing a thing it hurts everybody. It is not a question free speech or the constitution. (you can't falsely yell fire in a theater)
In my opinion any lawyer who would make that claim should be disbarred on principle of giving lawyers a bad name for devaluing the Bar and the JD diploma.
If we can't make it illegal, how about we make it a $20 maximum fine to beat the shit out of anybody we catch doing it?
There is tangible harm caused by the wearing of medals not earned or the claim of service never rendered. That harm is both to the reputations of those who rightly earned medals and honor and to the respect which the public has for those who serve honorably.
The idea that simply stating that you are a medal winner when you are not is a "no harm no foul" free speech issue is the same twisted logic used to claim that, for example, Jane Fonda's traitorous actions during the Vietnam war were nothing more than her constitutionally protected right of free speech or to claim that those who reveal military secrets during a time of war are not agents of the enemy but "heroes" of free speech.
Fonda should have been executed as a traitor, those who reveal secrets should be severely punished and all those who falsely claim military service or honors should be jailed and fined. It's past time for this country to stand up for the men and women of honor who give their lives in the service of freedom.
Make those "heroes" do a year of unpaid work in a VA hospital. It is theft of a value. I am sure those defense attorneys would raise hell if they learned of people falsely claiming law degrees.
When I was a young (14?) lad, I was given an old OD blouse by a friend that still had two Corporal's chevrons sewed on. I almost didn't survive the encounter between my Dad (USN Submarine Service, 1943-1945) and the shirt; the shirt was returned. His admonition was that you did not wear any designation of rank or honor unless you earned it. He told me that if I accompanied him to the Naval Recruiting office in a few years time, he would gently guide my hand as I signed on the dotted line as a first step in earning such honors. In the future, I was to show proper respect for the rank, the service, and especially, the person serving. I saw his point immediately - it is theft.
If they make something like this a felony, then every single bar attached to a VFW will have to close down because of drunken loud claims of being something, earning something or having been somewhere when they weren't, didn't and never got close to.
I have to be very careful with my opinion because it is a very sensitive and hot button issue. It's simply this.
Where do we stop with stolen valor? Claiming military honors is the first step. What's next? Claiming to be a soldier when one wasn't? Telling a war story that isn't true?
Give you an example. How do you make the distinction between a front line jarhead and a rear echelon supply clerk? They both serve in a war zone, one saw action and one didn't. Neither were awarded anything of significance. By coincidence, they join the same VFW and start swapping war stories. One is obviously true, the other isn't. Is that "stolen valor" and prosecutable? Or the reverse - the clerk says openly that he never saw anything other than shelves and requisition forms while the front line grunt expands on his roles a little beyond what actually happened. It that "stolen valor"?
Asshats like Michael Patrick McManus (the guy pictured) are always going to be around at various levels of impersonation. Anybody with half a brain could figure out that all those decorations, devices weren't real - the guy looks like he's 20 years old. A general? Please. What exactly would prosecuting him prove anway - that's he's a moron?
You know - I think about my parents who served during WWII in the USCG attached to the Navy. All I ever knew was that my Dad was XO and eventually CO on two DEs and served in both the North Atlantic and South Pacific theatres. Joined in 1936 and was discharged 1947. My Mom was a SPAR, joined January 2nd, 1943. Other than the basic details of their service, I never knew about my Dad's exploits on North Atlantic convoy duty and his participation during various island invasions or my Mother's achievements at the famous USCG Cape Cod radio station until after they passed on and while arranging for thier veterans Honor Plaque for their graves. I knew that my Mother's younger brother was a Marine Corps pilot during WWII and the Korean War - what I never knew was that he was a B-25 pilot, 85 WWII missions and 20 odd Korea missions, shot down twice, narrowly escaped becoming a POW during Korea and decorated for it, etc.
With all due respect and honor to Mr. Burkett, it is not the same as shouting fire in a crowded theatre nor is it the same as the HIV example. It's simple braggadocio - a form of lying for effect and, in truth, is harmless. Our heros are honored and deservedly so. Are our heros so insecure that they need the validation of a felony conviction to further secure their contributions to our citizens and nation? I submit that they don't and if asked, they would just rather have the whole thing dropped and go away. Punishing this kind of stupidity is useless.
Before anybody goes running to look, I was not awarded combat decorations beyond those for participation. The two that I could have qualified for I refused because the situations were embarrassing to me personally - call them John Kerryesque "scratches" if you will. I was one of the more fortunate ones as my wounds were mostly mental not physical. I'm just a grunt with an opinion.
Instead of all this effort to make Stolen Valor a felony, I would think that it should be more important to create a registry of the various awards and decorations and publish those as a reference. Make it widely known that these reference works exist and that if somebody claims an award or honor, it can be easily looked up and refuted if necessary.
That seems to me to be the best defense against "stolen honor".
Tom, you are one of the few vets or valor medal recipients who do not feel that wearing unearned medals is a legal offense, as well as a severe moral one. So be it. But you conflate that with the telling war stories, which is a separate matter. War stories all seem to begin with, "Now, this is true sh*t." And, blowhards are recognized as such. However, wearing medals to get ahead, get over, or get advantages and benefits, is a crime and must be treated as such. It is simply theft, of honor, of rewards, and of taxpayer funds.
Well I feel the need to chip in. One of the first things I noticed in the Army was you were supposed to earn respect. I only climbed to the rank of Spec 4 before I was honorably discharged in 1983. I left with more than the rank. I gained a sense of honor and brotherhood.
The slippery slope argument has merits but what happens when you reverse it? What happens in a society where nothing is sacred? Where all honor is debatable? These decisions we make on small issues do matter. It changes the trajectory of a nation. It is not the fallen hero who suffers this diminution. It is the country longing for heros and honor that suffers.
The arbiters of sensibility would tell us all men lie so don't punish lying. All men steal so don't punish stealing? We are either trying to become a better people or a worse people. There is nothing in between.
So make it legal - as long as the ensuing beat-down is legal as well.
I agree anyone who wears medals they dont deserve is a low life.
I also know that anyone who served as a grunt in RVN in the US Army knows how corrupt the awarding of medals was, a situation aggravated by the organizational chaos that was then commonplace.
Arcoms, Bronze Stars, and Silver stars were routinely awarded through "allocation", which is to say an infantry unit would receive a certain # of each to pass out to whoever the CO saw fit. Many were received by those who did only what was a normal days work for grunts and air crew. Incidentally in the infantry, at least in 1970 in RVN, you got a Bronze Star automatically after 4 months(I think) in the field regardless of enemy contacts or personal courage.
Later there was the disgracefully large number of medals for valor given out during the Grenada invasion. This seems to have led to a backlash in the other direction. For instance, not a single MofH awarded in Iraq. Ridiculous.
All this is to say that the whole subject is saturated with politics, favoritism and fashion. Anyone who has been thru the grinder knows enough to treat the whole subject with cynicism.
More important to know yourself then worry about what others think they know of you.
I write as one who spent 6 monthe in the field as a grunt and recieved many awards some earned some not.
People lie all the time to gain advantages in various ways. People lie about the college they went to, or whether they earned a degree, on their resumes. They lie about jobs they have held, and about their GPAs and so forth. We do not criminalize these things (unless it rises to the level of fraud). The onus is on the receiver of the information to verify it. The price for being detected is not a criminal penalty, but the potential loss of one's job and public embarrassment injurious to one's career prospects.
So -- if the government has such a strong interest in discouraging false claims, why not simply publish an accessible list of all awarded honors? Or give people an ID? This is how it works for everything else -- driver's licenses -- proving age, diplomas -- proving degree, etc. As it stands, I believe the law actually DE-values the worth of the medals, as it almost creates a presumption that a person claiming such honor is lying.
I knew that I was going to get into trouble Bruce - I just knew it. :>) That's the problem with this form of communication sometimes - you can only express to much in so many words before the ideas get lost.
I did not mean to imply that these actions are acceptable if they are used to obtain benefits such as VA care or win an election or a job or other financial benefit. That is fraud and should be punished as such. Certainly, there are boundries beyond which any person steps which are irredeemable socially and/or morally and that is one of them. I could not agree more.
However a situation like that facing McManus is something a little different. If you followed the blogswarm on this, it's pretty obvious that this guy is sick - seriously sick and needs help - not prosecution. And I'm not sure exactly what he hoped to gain - the whole DADT thing seems a little simplistic and his reaction a little over the top. He did step over the line. I just think the reaction to it is also a little over the top.
I'll readily admit that I'm in the minority here and I accept that. I mean no disrespect to any hero past, present or future.
I guess I'm reflecting the lessons and examples my parents and relatives set for me. It's enough to know that I served with honor and that others served with honor. The liars and fakers are just that to me - flawed, silly and stupid.
I'm sorry if that seems offensive - I don't mean it to be - like I said - it's just one grunts opinion.
So, if some received less than fully deserved medals but were still at serious risk, those who did fully deserve should be robbed of honor along with others by those devoid of any honor and exploiting and devaluing further. Upside down argument, like cutting off arm for a hangnail.
Not offensive, Tom.
McManus exploited our respect for medals of valor for gain of a political position. That is clearly fraud for personal gain. That deserves full prosecution.
It's irrelevant if he's a fool, as he made bigger fools of others who respect medals of valor, as well as those who promoted his fraud.
It is not, by any means, acceptable to accept a defense for a crime of being a fool. Otherwise, our prisons would be emptied.
It is not, by any means, acceptable for the deserving to be robbed or devalued.
Those are all good points Brian and I agree with you for the most part.
But I don't think that my opinion is one of my most pet of peeves - moral relativism. It really isn't - I do draw a line, as I said to Bruce - fraud is the line at where someone draws a benefit or gains somehow financially.
I guess I'll just have to remain odd man out on this one. :>)
We wouldn't need a stolen honor law, were dueling still legal. That prescribed a code for the general or specific retrieval of honor allegedly stolen.
Dueling, unfortunately, has been outlawed. Therefore we need another mechanism to wrest stolen honor from those who have not earned it, and to return the appropriate amount of honor due those who have.
The theft of honor isn't a crime against the services or even a particularly heinous act in and of itself; rather, it's effect is what is invidious. It lowers and cheapens that which is earned at great price by investment of blood and sweat. To preserve the value of honor, it is necessary to punish those who cheapen it. To ignore the theft of honor, might give the impression we do not hold honor sufficiently dear.
What I find interesting about this is that none of the likely many people this guy was around saw and understood.
This is a function of a small number of Americans who are or who have served in the armed forces.
That's a part of the tragedy that a small number are sharing and bearing the burden of fighting this country's wars.
I live in Massachusetts, and many years ago an election was held for the seat in the US Senate of a retiring liberal. One of the candidates was a man who was a Vietnam veteran, highly decorated for his service with three purple hearts, a Bronze and a Silver Star. I was a young man trying to earn a living at the time and what newspaper coverage there was had nothing contrary to my impression of this man as a brave and honorable soldier and worth my vote.
That is the only time I've ever voted for John Kerry.
There is a definite political value to military awards. If military command sometimes does a poor job of recognizing the right (or wrong) soldiers for awards, the politicians getting involved, before or after the award process, will make it much, much worse. Since, in my opinion, anything can happen when The Congress gets involved and politicians will always try to get an advantage out of any situation lets leave this one alone.
It is most certainly a criminal act to impersonate a government employee. An award of valor usually goes to government employees and marks a distinction of service.
I see no issue with the government acting against those who impersonate exceptional current or former government employees.
I was wondering if you might be interested in including us on your blog list? The address is www.letthemfight.blogspot.com.
I am a retired Marine and my only Son was killed in Afghanistan 14 August 2009. I have dedicated the Blog to educating the general population about Rules of Engagement issues, strategy, Islam and many things as they pertain to the ROE and it's detrimental effect on our American Warriors. If you have any questions please feel free to e-mail me or call 207 628 4000.
Thanks for your time;
1stSgt, USMC ret.
Tom, I was awarded the good conduct medal. That was only because I did not get caught. You have earned your opinion.
Note to Jim at #11 ... Our military, a tightly organized hierarchy, has a long-standing way to discipline those within the ranks of fellow soldiers who seem slow at 'getting it,' whatever 'it' happens to be. If the individual performance of a member of the unit seems to be pulling the rest down, the other members initiate "wall to wall" counseling, a thought-inducing procedure characterized by members of the group first getting the outlaw member's attention by a little physical knocking about, then conveying the group's disapproval and suggestions for improvement by the outlaw member. Bruce would probably disagree with my description of this, and my recommendation of its employment in certain circumstances, but some posters above seem to agree.
It's like the farmer said after he hit his mule over the head and an onlooker protested. "First you've got to get his attention ..."
This form of attention getting has been outlawed in the U.S. military for quite some time. Those who continue to practice this form of "leadership: are disciplined under Article 93, UCMJ, for maltreatment, as well as assault under Article 128, UCMJ.
In a Stolen Valor case, see the US Government's position on harms done, at the pdf link : http://volokh.com/2010/02/08/federal-government-argues-that-ban-on-false-claims-of-having-gotten-a-military-medal-is-content-neutral/
This rebuts the contentions of several comments that there is no harm done or it's just bragging, and similar excuses.
Assault is outlawed, counseling is not. I've seen some real losers try unsuccessfully to find a witness to an alleged assault after they were counseled.
They should have arrested the guy for contempt of face. What sort of assclown would go to the trouble of using a razor to make his face look like that?