Law that makes it a crime to lie about military honors could be overturned

Posted Saturday, Apr. 21, 2012  comments  Print Reprints
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More than any other person in the nation, B.G. Burkett is responsible for the Stolen Valor Act, which criminalizes lying about heroism.

An officer in the Army for just three years, one of them in Vietnam, Burkett emerged from a profitable career as a stockbroker more than 20 years ago to become a national expert on military phonies and frauds and the chief defender of Vietnam veterans' honor, a role that he says has easily cost him tens of thousands of dollars and drawn the ever-loving hatred of some people, including fellow veterans.

The term stolen valor didn't exist until Burkett wrote a book by that name in the '90s. Congress appropriated the language several years later when it made it illegal to falsely claim war-hero status, suddenly important again with the U.S. at war in Iraq and Afghanistan. But now the Supreme Court is debating whether the Stolen Valor Act violates the Constitution by stepping on people's First Amendment rights. If the court's rulings in First Amendment cases in recent years are any indication, the law may well fall.

However personally galled and angered Burkett is by phonies, he is equally frank about the possibility of losing the law that punishes them. He puts the odds of it surviving at less than 50-50.

"It's not a worthless law, but it's a weak law," Burkett said. "People expect me to be angry about the possibility that it will go down, but it doesn't bother me. The law isn't doing what it's supposed to do."

What it was supposed to do is protect the integrity of medals such as the Medal of Honor, Navy Cross, Distinguished Service Cross and Silver Star, which are awarded only for uncommon valor in combat and carry immense weight among those who have served in the armed forces.

The act, passed by Congress and signed into law by President George W. Bush in 2006, makes it a federal misdemeanor to falsely represent oneself, in writing or speaking, as having received a military decoration. The punishment includes a fine and up to a year in prison.

Burkett said only about 60 people have been charged with the crime. FBI agents are busy chasing terrorists, bank robbers and dangerous felons, he said, and don't spend a lot of time, money and energy on misdemeanors.

"I've gone to the Dallas office with a fully completed case, ready to prosecute, and they won't do anything," Burkett said. "Most of these people who would be convicted don't have a criminal record, so they get off with probation. It's not much of a priority."

The U.S. attorney's office in Dallas declined to comment on Burkett's assertions.

Lying 'is a crime'

Many of the men who have earned medals support the Stolen Valor Act and can't imagine that it isn't a crime for someone to falsely make such a boast.

"Lying about your service diminishes the value of those who have earned medals," said Dean DeTar, a retired Air Force colonel who lives in Azle and earned the Air Force Cross for his efforts to rescue a downed airman in Vietnam in 1970.

It happens frequently, even if it never makes news or grabs the attention of a U.S. attorney. Obituaries are rife with tales that sound implausible, not to mention résumés and stories on the golf course or bar stool. Sometimes the lies are part of political campaigns. U.S. Sen. Richard Blumenthal, D-Conn., was outed in 2009 after saying numerous times over the years that he had served in Vietnam when he never had.

Occasionally veterans themselves do the unthinkable. In 2007, Army veteran Richard David McClanahan boasted around Amarillo of having received the Medal of Honor, three Silver Stars, three Purple Hearts and more. He pleaded guilty and received probation for lying about his military service and making false statements for financial gain.

Dick Agnew, a Plano resident who earned a Distinguished Service Cross in action against the enemy on July 19, 1953, in Korea, leads the Dallas-Fort Worth chapter of the Legion of Valor, a national organization open only to those who have earned the Medal of Honor or the second-highest medal for heroism, the Distinguished Service Cross, Navy Cross or Air Force Cross. As a measure of how much Burkett is respected, he earned honorary membership in the Legion of Valor, an honor bestowed on no one else, ever.

Agnew virtually sneers at the comparison people have made between lying to gain a competitive edge at work and lying about earning decorations for heroism in combat.

"In many cases, people lost their lives for what they were honored for," Agnew said. "There's no comparison between that and lying about whether you got a degree from someplace. No comparison at all. When you start lying about combat awards you didn't earn, that is a crime."

But it may not be for long.

The nine justices have shown that they will make unpopular rulings on emotionally charged cases, including last year's 8-1 ruling that protected the right of members of Westboro Baptist Church in Topeka, Kan., to protest homosexuality at the funerals of troops killed in action.

Scot Powe, a professor at the University of Texas School of Law, said that's a bad sign for the Stolen Valor Act.

"The First Amendment is one of the few areas that is not politicized on the court," said Powe, who specializes in the Supreme Court and the First Amendment. "You get conservative justices joining with liberals on the First Amendment. I would expect there to be a pretty overwhelming majority ruling against the act."

Honoring Vietnam vets

For Burkett, this story started more than 25 years ago and for very personal reasons.

As chairman of the effort in the mid-1980s to build a memorial in Fair Park to the 3,400 Texans killed in Vietnam, Burkett discovered that almost no corporate executive, law partner or deep-pocketed philanthropist wanted to donate to the project.

It became clear to him that Vietnam and its veterans were tainted goods.

"I was naive. I thought it would be easy to raise the money in Texas," he said.

The memorial was eventually built -- and dedicated by President George H.W. Bush in 1989 -- but by then, Burkett had launched a crusade that would eventually become his primary professional legacy.

He pored over Labor Department statistics on employment, education and income, seeking to debunk the idea that a large portion of Vietnam veterans were homeless, uneducated and unemployed, a stereotype he felt many people had.

Separately, he hunted through VA records, looking for men who he believed were gaming the compensation system by saying they had post-traumatic stress disorder. (His dismissive attitude about many people's PTSD diagnosis has occasionally raised the ire of fellow veterans.)

Most publicly, he began looking into the backgrounds of veterans who appeared in newspapers and on television claiming that their service in Vietnam mitigated whatever crime they committed. He contacted police and the FBI and started exposing phonies, all done mostly for reasons of moral outrage.

"Men served honorably in Vietnam and no one knew it, and there were these scumbags who never served who were being given sympathy," he said.

He showed law officers how to order official copies of military records and demonstrated how people could forge their personal copies of records. He started testifying in trials and at sentencings, and he became one of the nation's most prolific users of the Freedom of Information Act. He has exposed hundreds of phonies over the years.

"I filed one or two FOIAs a day," he said.

Armed with a staggering amount of research material, he and co-author Glenna Whitley in 1998 published Stolen Valor: How the Vietnam Generation Was Robbed of Its Heroes and Its History and launched a website, www.stolenvalor.com.

In 2003, at a ceremony at Texas A&M University, the elder Bush pinned the Distinguished Service decoration on Burkett. It is the highest honor a civilian can receive from the Army.

Bush, at the time, said Burkett "almost single-handedly set the record straight on Vietnam veterans."

Court decisions at odds

Xavier Alvarez was an elected member of the board of directors of a water district in California when he made the following declaration at a public meeting in 2007: "I'm a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I'm still around."

Bizarrely, Alvarez also posed for a photograph in an Army dress uniform with his chest full of ribbons and decorations.

Of course, none of it was true. Alvarez never served in the military.

Before the Stolen Valor Act became law, Alvarez might well have been just embarrassed publicly by the likes of Burkett.

Alvarez was prosecuted for the crime. But his legal team persuaded a federal judge that his falsehoods were protected by the First Amendment's guarantee of free speech. The 9th U.S. Circuit Court of Appeals in San Francisco agreed with the lower court, rejecting the government's appeal.

"Saints may always tell the truth, but for mortals, living means lying," Chief Justice Alex Kozinski wrote in the majority opinion. He said the government is in no position to act as the "truth police" and pursue lies and exaggerations criminally.

The 10th U.S. Circuit Court of Appeals in Denver came up with the opposite conclusion, ruling in a case involving a man who set up a veterans organization and told people that he was a Silver Star recipient.

"The Stolen Valor Act does not impinge on or chill protected speech, and therefore does not offend the First Amendment," Judge Timothy Tymkovich wrote in that majority opinion.

That divided federal opinion is why the Supreme Court agreed to look at the Alvarez case.

Supporting the government's position are the Veterans of Foreign Wars, the American Legion, the Congressional Medal of Honor Foundation, other veterans groups and 20 state attorneys general, including those from Texas, New Mexico, Oklahoma, Colorado and Louisiana.

"Our nation's interest in protecting and preserving the value of its system of honors for the armed forces far outweighs whatever minimal First Amendment value may exist for the utterance of lies," according to the brief filed by the Congressional Medal of Honor Foundation.

On the other side, supporting Alvarez's position, are the First Amendment Coalition, the American Civil Liberties Union, the Reporters Committee for Freedom of the Press and 23 news organizations, including the McClatchy Co., which owns the Star-Telegram.

"The purposes of the Stolen Valor Act are better served by reliance on the marketplace of ideas than by criminalizing pure speech," according to a brief filed by the Reporters Committee and news organizations.

"As Alvarez and others like him have learned at their peril, veterans groups, medal winners and the press work tirelessly to expose false claims of heroism."

Possible change

If the Supreme Court rules the law unconstitutional, Burkett hopes it makes a comeback.

If there is a next time, he said, he'd prefer to drop the criminalization of mere talk and concentrate on those phonies who put on a uniform bedecked with medals and actually act like a war hero. He'd also like to make the crime a felony to attract greater attention from law enforcement.

"Every state in the union has a law making it illegal to impersonate a police officer," he said.

"I wouldn't think it would be that hard to craft a law making it illegal to impersonate a military person. I hope that there is some way to craft a bill that protects the military system of honors instead of protecting some loser who buys his medals from a catalog."

Powe, the UT law professor, said that if the law is ruled unconstitutional, any new law would probably have to tie a person's lies to "a demonstrable harm."

"I'm very skeptical of 'soft injuries' that can't be proven," Powe said."'I feel bad' just isn't tangible."

Retired Navy Vice Adm. David Robinson, a Dallas resident, earned the Navy Cross for combat in August 1970 in Vietnam and finds it "ludicrous" that lying would be protected speech.

But if the law is struck down, Robinson won't actually care much.

"If it goes under, what do we lose?" he said. "... Phonies don't upset me as much as I feel sorry for them."

Robinson adds just one more thing to the conversation.

What he says is almost always true, that those who seek adoration and adulation for their service should be viewed with suspicion.

"Those who have earned awards don't broadcast it," Robinson said.

"If someone ever tells you all the wondrous things they did in war and all the medals they've won, chances are they're a fake."

Chris Vaughn, 817-390-7547

Twitter: @CVaughnFW

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