daveman
Diamond Member
I don't know why he wasn't charged with treason.From the link that you obviously didn't read:Then why wasn't he charged? Or is it that he wasn't on Active Duty at the time....If you are a Reservist and it is not your drill weekend or two weeks active duty, are you still subject to the UCMJ?
In the UCMJ, Article 104 has this under "Explanation" section:
Explanation.
(1) Scope of Article 104. This article denounces offenses by all persons whether or not otherwise subject to military law. Offenders may be tried by court—martial or by military commission.
This seems to imply that in the case of Article 104, Aiding the enemy, individuals become subject to the provisions of the UCMJ whether or not they are subject to military law as it states above in (1).
Why would this be? Well think about it. If citizen "X" all of a sudden starts communicating or giving aid or information to sworn enemies, he then has entered the realm of military affairs and has made himself subject to certain governing rules. In effect, he has stopped being solely an observing civilian and crosses the line to that of a "militant". He could of course be charged with espionage or even treason under civilian statutes. However the UCMJ was designed to be robust, flexible and enforceable in any theater of the world.
Therefore if an American is caught in Afghanistan fighting with the Taliban, trial by UCMJ military commission (tribunal) would be an option. And Article 104 powers that option.
Certainly in Kerry's case, the UCMJ would have been very appropriate to use considering he did his communicating with the enemy as a ready reservist, fully commissioned naval officer. And he is lucky he did not get charged. The FBI was certainly monitoring his many VVAW activities. The reason he probably wasn't charged is insufficient hard evidence but more likely the reason was political. It would have politically disastrous for the Nixon administration.
So....it comes back to, why wasn't he court martialed? Nixon would have LOVED shutting him up...and for you to state that the Watergate President was worried about this one guy being "politically disastrous" is quite laughable....incredibly laughable.
Because he sure did commit it.