American Elephants


July, 1776 — General George Washington — New York by The Elephant's Child

Washington had been named Commander in Chief by the Second Continental Congress, meeting in Philadelphia in June 1775. He was forty-three years old. There was not yet any American army for him to command, only the militias ringing Boston, but the delegates of the increasingly rebellious colonies were seized by  fury for action and for war. “Oh that I was a soldier,” wrote John Adams, a radical lawyer from Massachusetts. “I will be. I am reading military books.  Everybody must and will, and shall be a soldier.” Adams never became a soldier, but Washington had already been one.  He had served in the Virginia militia during the French and Indian War twenty years earlier, rising to the rank of colonel.  In his old age, Adams would describe Washington’s selection as a political compromise—a southern commander, to lead what would at first be a mostly New England force—engineered by congressional wise-men, including Adams. But Congress did not have many other officers to choose from, Israel Putnam, of the Connecticut militia, was, at 57, too old.  Artemas Ward, the commander of the Massachusetts militia, was incompetent and suffering from the stone.

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The state begins in violence.  However lofty the ideals of a new country or a new regime, it encounters opposition, as most new regimes and countries do, it must fight. If it loses, its ideals join the long catalogue of unfulfilled aspirations.

At six o’clock on the evening of July 9, 1776, the soldiers of the main American army, stationed in New York, were paraded and read the Declaration of Independence. General George Washington, Commander in Chief, hoped this “important event” would inspire them, though when some soldiers joined a mob in pulling down a statue of George III, he deplored their “want of order.” Over the next two months the American army and its commander, orderly or not, were unable to offer much in defense of the Declaration’s sentiments. …

During the summer, the British assembled, on Staten Island and in the harbor, the largest expeditionary force of the eighteenth century: ten ships of the line, twenty frigates, and 32,000 regular troops.  On August 22, most of those troops began moving to Gravesend Bay on Long Island, in what is now southwest Brooklyn.  Anticipating a possible landing there, Washington had posted more than a third of his own force of 19,000 men on Brooklyn Heights, and on a line of hills to the  south.  But he expected the British to attack him on the harbor side of his position, where they could bring the guns of their ships into play. On the morning of the 27th, the British slipped a force through the hills five miles away in the opposite direction and hit the American front line from before and behind.

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These are excerpts from Richard Brookheiser’s Founding Father: Rediscovering George Washington, which he calls a moral biography, which has two purposes: to explain its subject, and to shape the minds and hearts of those who read it—by showing how a great man navigated politics and a life as a public figure.  Brookheiser says “If Washington’s contemporaries were too willing to be awed, we are not willing enough….We have lost the conviction that ideas require men to bring them to earth, and that great statesmen must be great men. Great statesmen are rare enough in their world. We believe they are mythical, like unicorns.” They are not.

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With this in mind, I present to you a chapter from my upcoming book, Fake Warriors. We need to protect the integrity of military medals and stop the impostors so the real heroes get the true honor they deserve.

Chapter 9

What is the Fake Warrior Act of 2012, and why is it needed?

The Stolen Valor Act [2006] infringes upon
speech protected by the First Amendment.
—Associate Justice Anthony Kennedy, U.S. v. Alvarez

In the Introduction to the First Edition of Fake Warriors: Identifying, Exposing, and Punishing Those Who Falsify Their Military Service, in 2003, we wrote that:

Unknown to most Americans, there is a virtual epidemic of imposters in this country—countless thousands of men who, since the Vietnam War, have been either inventing a non-existent military service, or inflating their war records. Veterans’ benefits amounting to hundreds of millions of dollars are being stolen. Military decorations are being falsely claimed, and often worn, by men never authorized to receive them—the kind of medals earned the hard way by genuine war heroes.
The next year, presidential candidate John Kerry’s campaign website claimed that he had been awarded not only three Purple Hearts and a Silver Star (all undeserved), but the Silver Star was adorned with a “Combat ‘V’.” That combination (Silver Star and “Combat ‘V’”) has never in all history been issued by the United States Navy because the “V” (for valor) is redundant to the Silver Star (for valor).

During the 2010 election it was revealed that the successful Democratic Party candidate for a Connecticut seat in the United States Senate, Richard Blumenthal—former United States Attorney for the District of Connecticut and State Attorney General—lied for years about serving in Vietnam. (If every veteran, their families and friends had voted against the Fake Warrior, perhaps the election’s outcome would have been different.)

In the first edition of Fake Warriors, we wrote that “[u]nless something is done about . . . Fake Warriors, their shameless, self-aggrandizing, and costly conduct will not only continue unabated, it will grow.”

Whatever the influence—Burkett and Whitley’s Stolen Valor, ourFake Warriors I, or something else—several years before the Blumenthal fiasco a dedicated group of patriots formulated an anti-Fake Warrior federal statute, lobbied fiercely for it, and succeeded in having it enacted by Congress and signed into law on December 20, 2006 by President George W. Bush. It was called the “Stolen Valor Act of 2006” (SVA).

The Act amended 18 U.S.C 704 (a), which for years had criminalized the wearing, manufacture, or sale of unauthorized military decorations, medals, and awards. Note the italicized words. They all constitute acts, not “pure speech.”

In support of the SVA, Congress made a finding that Section 704(a) had previously inadequately protected “the reputation and meaning of military decorations and medals.” (Put aside the question of whether “military decorations and medals” can themselves, rather than individuals, have a “reputation”).

Accordingly, the SVA amended, and broadened, Section 704, to read as follows:

(b) Whoever falsely represents himself or herself, verbally or inwriting, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both.

Note the two words I have italicized, which describe not acts—such as wearing, manufacturing or selling—but pure speech.

Under this amendment, if the Fake Warrior claims to have been awarded the Medal of Honor, Distinguished Service Cross, Navy Cross, Air Force Cross, Silver Star, or Purple Heart, punishment for the crime is enhanced to not more than one year in prison, or both.

Throughout the drafting of the SVA and the legislative process leading to its enactment—and, for that matter, later while the Act was in force and prosecutions were occurring—Professor Holzer repeatedly told the Act’s partisans and others that as admirable as the law’s intention was, because it punished pure speech it violated the First Amendment and was thus unconstitutional.

As an Army veteran who served in Korea in the mid-1950s, and co-author of this book who considers “Fake Warrior-ism” reprehensible, Professor Holzer much preferred to have reached the opposite conclusion.

But as a constitutional lawyer for over fifty years, it was clear to him that Section 704(b) of the SVA was a content-based suppression of pure speech that could not be justified by the kind of requisite narrowly tailored, “compelling” federal interest the Court has found in a very few other Free Speech cases—such as punishing defamation, “fighting words,” and hard-core pornography, and protecting the psychological and physical well-being of children. Indeed, the Supreme Court has more than once said that a “compelling government interest is an ‘interest of the highest order’.”

Professor Holzer’s legal conclusion was vindicated on June 28, 2012, by the 6-3 decision of the Supreme Court in the Alvarez case, holding Section 704(b) unconstitutional.
We have corrected the problem of unconstitutionally punishing pure speech in our FAKE WARRIOR ACT OF 2012.
An Act
To punish false and fraudulent claims to having received military decorations, medals and other awards authorized by the Congress and Armed Forces of the United States.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE. This Act may be cited as the “Fake Warrior Act of 2012.”

SECTION 2. FINDINGS. Congress makes the following findings:
(1) Citizens of the United States are justifiably grateful to members who currently serve, and have served, in the Armed Forces of the United States, and hold them in high esteem.

(2) Members of the Armed Forces of the United States who have been recipients of military decorations, medals and other awards are held in even higher esteem by citizens of the United States.

(3) Gratitude to members of the Armed Forces of the United States generally, and to those who have received military decorations, medals and other awards in particular, makes citizens of the United States susceptible to fraudulent claims by persons falsely purporting to have received such decorations, medals and awards.

(4) That susceptibility can and does result in citizens of the United States being fraudulently induced by persons who falsify their receipt of military decorations, medals and other awards to part with something of tangible or other actual value to which the fraudsters are not entitled and with which the victims would not otherwise have parted.

(5) Fraudulent claims of the receipt of military decorations, medals and awards results in serious harm to the citizens of the United States, including but not limited to unauthorized access to classified and other sensitive information and installations, undeserved receipt of veteran and related benefits, unwarranted leniency at sentencing for crimes, and by the unfair treatment of abuse victims by those claiming to have suffered trauma in military service.

(6) Legislative action by Congress is necessary to punish the false and fraudulent claims by persons purporting to have received military decorations, medals and awards.
SECTION 3. ESTABLISHMENT OF CRIMINAL OFFENSE RELATING TO FALSE AND FRAUDULENT CLAIMS ABOUT RECEIPT OF MILITARY MEDALS AND AWARDS.

(1) FALSE AND FRAUDULENT CLAIMS ABOUT RECEIPT OF MILITARY DECORATIONS, MEDALS AND AWARDS.
Whoever knowingly and falsely, with the intent to obtain something of tangible or other actual value to which he or she is not entitled, represents himself or herself, verbally or in writing, under circumstances where such representation may reasonably be expected to be believed, to have been awarded any military decoration, medal or award authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the member of such forces, the ribbon, button, or rosette of any such badge, decoration, medal, award, or any colorable imitation of such item, and who as a result of such representation obtains something of tangible or other actual value to which he or she is not entitled, shall be fined $5,000, imprisoned not more than six months, or both.
(2) ENHANCED PENALTY FOR OFFENSES INVOLVING CERTAIN OTHER MEDALS.

If a military decoration, medal or award involved in an offense described in Section 3 (1) is a Medal of Honor, Distinguished Service Cross, Navy Cross, Air Force Cross, Silver Star, POW Medal or Purple Heart, in lieu of the punishment provided in such section the offender shall be fined $10,000, imprisoned not less than nine months nor more than twelve months, or both.

You will note that the FAKE WARRIOR ACT OF 2012 differs from the 2006 Act in at least two significant ways.

First, we have grounded the government’s interest not in punishing pure speech because, as the Alvarez Court demonstrated, in the Fake Warrior context there is no narrowly tailored compelling government interest that will justify doing so. Instead, we have rested that interest on criminalizing a traditional type of fraud, one that has been a common law and statutory crime for centuries.

And we have supported the government’s interest with “Findings” that emphasize the statute’s anti-fraud intention, instead of resting it on the suppression of pure speech (as Section 704(b) of the SVA regrettably and unconstitutionally did). These Findings will provide a reviewing court with an unambiguous understanding of the legislation’s sole anti-fraud purpose.

A word of warning, however.
On May 5, 2011, while litigation was occurring in the federal courts over Section 704(b) of the Stolen Valor Act of 2006, and its constitutional infirmity was becoming more apparent, Representative Joe Heck (R-NV-3) introduced the Stolen Valor Act of 2011 (H.R. 1775). On October 18, 2011, Senator Scott Brown introduced the identical bill in the Senate (S. 1728). Heck’s bill was referred to the House Committee on the Judiciary, and Brown’s to the Senate Committee on the Judiciary.
While we respect and applaud their desire to rectify the constitutional problem of the Stolen Valor Act of 2006 with their new bills, regrettably the proposed legislation is woefully inadequate to deal with Fake Warrior claims and, like the SVA of 2006, on shaky ground constitutionally.
The core of the Heck-Brown bills is this: “Whoever, with intent to obtain anything of value, knowingly makes a misrepresentation regarding his or her military service. . . .”
The proposed law then limits the “misrepresentations” to individuals who “served in a combat zone, served in a special operations force, or was awarded the Congressional Medal of Honor.”
There are many problems with these bills, among them that:
• Our Fake Warrior Act’s requirement of “falsity,” has been replaced with mere “misrepresentation”—a milder word which has a different legal meaning.
• The word “value” in the proposed SVA of 2011 is too vague, compared to our Fake Warrior Act’s use of “tangible or other actual value.”
• Since one could intentionally misrepresent to obtain something of value to which he was entitled, our Fake Warrior Act’s requirement of “not entitled” is crucial.
• The Heck-Brown bills do not specify whether the misrepresentation must or can be written or oral. Our Fake Warrior Act does.
• The proposed SVA of 2011 imposes no reliance by the recipient of the misrepresentation, compared to our Fake Warrior Act of 2012 which requires that the claimant have a reasonable expectation that he will be believed.
• Under our Fake Warrior Act the false statement must succeed, and the claimant actually receive something of “tangible or other actual value.” Not so under the Heck-Brown bills.
• In the Heck-Brown bills, the misrepresentation must be about “military service,” which is defined, among other ways, as “receipt of any decoration or medal authorized by Congress for the Armed Forces of the United States.” Presumably, this includes the Good Conduct Medal, a trivial award in the company of those our Fake Warrior Act criminalizes: “Medal of Honor, Distinguished Service Cross, Navy Cross, Air Force Cross, Silver Star, POW Medal or Purple Heart….”
• For “misrepresentations” about these seven, our Fake Warrior Act has a penalty enhancement. The Heck-Brown bills do not.
We stress these differences not to nit-pick either the laudable intention of the Heck-Brown bills, but rather because, as the Congressman and Senator themselves realize, the Fake Warrior scandal must be dealt with through Congressional legislation that will successfully get the job done. And for that to happen, a statute must be comprehensive and constitutional. Unfortunately, the Heck-Brown bills are neither. (They should be either withdrawn or buried in committee.)
In their place, our FAKE WARRIOR ACT OF 2012 should promptly be introduced, enacted, and become law.
Then, and only then, will federal prosecutors have the weapon they need to identify, expose, and punish those who falsify their military service.

Comment by Henry Holzer




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