The Washington Times

August 11, 2002

The case against Jane Fonda, her actions during Vietnam War

Reviewer: Mackubin Thomas Owens,

SPECIAL TO THE WASHINGTON TIMES

Section: BOOKS. Page: B08

The case of Robert Walker Lindh, the so-called "American Taliban," has resurrected the issue of treason. What constitutes treason? What are the precedents? Why wasn't Lindh, who was captured early in the war in Afghanistan, charged with treason?

The answers to these and many other questions can be found in a very useful new book about another high-profile case involving an American citizen, who like Lindh, arguably adher[ed] to [America's] enemies, giving them aid and comfort"- Jane Fonda.

"'Aid and Comfort:' Jane Fonda in North Vietnam" by Henry Mark Holzer and Erika Holzer is a veritable sourcebook on treason. While the book is fairly short, it contains a great deal of documentation, including transcripts of Miss Fonda's propaganda broadcasts and other interviews, long passages from court decisions, and congressional testimony. But the Holzers, both attorneys (Mr. Holzer is also professor emeritus at Brooklyn Law School) succeed remarkably well in making a notoriously difficult topic understandable to the non-lawyer.

The first part of the book, while interesting, is probably the least useful. Based on the work of other writers, it provides a summary of the evolution of Jane Fonda from young starlet to left-wing radical. The second part of the book examines the treatment of U.S. prisoners of war (POWs) by the North Vietnamese and Viet Cong and Miss Fonda's actions during her visit to North Vietnam in July 1972. The evidence against her is to be found in this section.

In the third and by far the most important section of "Aid and Comfort," the Holzers provide a history of the concept of treason and its place in constitutional law. This part is very helpful in thinking about the case of Lindh. Here the Holzers also make a very strong case that Miss Fonda should have been indicted on the charge of treason for her actions in North Vietnam. Indeed, the case against her is actually stronger than the one against Lindh.

As the Holzers point out, the constitutional and legal foundation for the crime of treason was laid in England nearly seven centuries ago during the reign of Edward III. The wording of the Statute of Edward served as the basis for treason legislation passed during the American Revolution and the text of Article III, Section 3 of the Constitution, which defines treason as "levying war" against the United States, "or in adhering to their enemies, giving them aid and comfort."

Miss Fonda's defenders claim that her propaganda broadcasts on behalf of the North Vietnamese did not constitute treason against the United States because Congress did not declare war in the case of Vietnam. Besides, they claim, she was only exercising her right to free speech. The Holzers make mincemeat of these defenses.

They point out that Aaron Burr was indicted for the "levying war" prong of treason even though the United States was not at war with anyone at the time. This principle was reinforced in United States vs. Greathouse (1863). In this case, Justice Stephen Field made the point that "the term 'enemies,' as used in [the treason clause of Art. III, Sec. 3], according to its settled meaning, at the time the constitution was adopted, applies only to the subjects of a foreign power in open hostility with us." As the authors observe, "if, [Justice Field] meant to refer to 'war,' he certainly would have done so. Instead, he chose the word hostility,' denoting a very different relationship: one not of war."

The Holzers could also have made the point that the Gulf of Tonkin Resolution constituted a contingent declaration of war. In retrospect we may say that the resolution was an abdication of congressional responsibility, but it did give the president the authority to use force against a state in open hostility to the United States. According to the principle established by Greathouse, the charge of treason was appropriate during the Vietnam War.

No one accuses Miss Fonda of "levying war" against the United States, but they do contend that she adhered to America's enemies during the Vietnam War and gave them "aid and comfort." Most of the treason cases arising from World War II were of this nature - involving Americans who broadcast propaganda for the enemy - and the courts routinely rejected the "free speech" defense.

These cases were decided in federal Courts of Appeal according to certain principles established by the Supreme Court in Cramer vs. United States and Haupt vs. United States: a charge of treason requires proof, which can be circumstantial, of treasonable intent and at least one overt act of betrayal; and that the overt act, proved by two witnesses, must provide actual aid and comfort to the enemy.

The Holzers demonstrate beyond the shadow of a doubt that, based on cases that included the United States vs. "Tokyo Rose" and "Axis Sally," Jane Fonda could have been indicted for treason and that the government might well have won its case. For reasons, the Holzers show to be very weak, the government chose not to proceed against her.

The Holzers conclude with the observation that there will never be a legal indictment of Jane Fonda for treason. "But there is another kind of indictment: a moral one. And that one, too, has no statute of limitations. Nor should it."

The Holzers need not worry. For most Americans, the name of Jane Fonda is infamous, conveying the image of a dim bulb, an empty vessel filled with the half-baked ideas of the closest alpha male, who lent her celebrity and wealth to the cause of America's enemies. But her fate may be even worse than infamy - she is an object of ridicule.

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Mackubin Thomas Owens is professor of strategy and force planning at the Naval War College in Newport, R.I.

"AID AND COMFORT:" JANE FONDA IN VIETNAM

By Henry Mark Holzer and Erika Holzer,

McFarland and Co., $39.95, 206 pages, illus.

Caption:

[Photo from the book cover]

Record Number: 200208121245190013