Friday, March 12, 2010

Stolen valor is offensive, but is it a crime?

Those who wear unearned military medals are a sad lot. The constitutional question is: Should they be treated as criminals?

By Jonathan Turley

Across the country, police are rounding up a growing class of felons: valor thieves. With two wars, valor has become a valuable commodity for individuals who want to skip enlistment and combat and go directly to the hero adoration stage. Under the Stolen Valor Act of 2005, it is a federal crime to claim unearned military decorations or medals. While widely popular, these prosecutions raise constitutional questions of free speech. From judges to admirals to bank employees, citizens are facing accusations of felonious bravado.

When President Bush signed the act into law, he was probably thinking of people such as Steve Burton. Burton, of Palm Springs, Calif., appeared at his high school reunion in 2009 in the uniform of a Marine lieutenant colonel supporting enough medals to make a Soviet general blush. Unfortunately for him, he ran into a former classmate who is a real Navy commander, and she reported the possible fraudulent medals, including a Purple Heart, Bronze Star and the Navy Cross. His claim to have fought in Afghanistan and Iraq also drew suspicion.

Burton actually works in a bank. He is one of many people who struggle to reinvent themselves in a more heroic image with the help of Internet sites selling uniforms, medals and ribbons. They are the modern-day Walter Mittys — bank tellers and office workers who want to snatch notoriety from the jaws of mediocracy.

From 2005 to 2009, federal prosecutors charged 48 people under the Stolen Valor Act.

Ironically, it is often the irresistible impulse to add medals and heroic accounts that prove the undoing of the faux warriors. Last month, Michael Patrick McManus was arrested after a veteran spotted him at the December party for Houston Mayor-elect Annise Parker. McManus was wearing an Army uniform supporting a virtually solid front of decorations, from parachute wings to the Purple Heart to two distinguished service crosses and other decorations. Most notable was a medal around his neck that appeared to make him a Commander of the British Empire.

Notable 'insolence'

McManus might have found a sympathetic judge in Michael F. O'Brien. The Illinois circuit judge claimed not one but two medals of honor — with a display in chambers for visitors. It was only after he applied for Medal of Honor license plates in 1992 that he was eventually uncovered and forced to resign from the bench or face prosecution.

Some imposters served but gave themselves post-service promotions. David Weber was a Marine staff sergeant but later promoted himself by adopting the uniform of a retired two-star major general with two Purple Hearts. He pleaded guilty in January in San Diego.

George Washington himself created the forerunner of the Purple Heart for those who have "given of his blood in the defense of his homeland" and declared that "should any who are not entitled to these honors have the insolence to assume the badges of them, they shall be severely punished."

While most people, no doubt, share the anger and disgust with people claiming such honors, the question is where to draw the line between free speech and criminal conduct. Citizens have a right to burn an American flag as a form of protected speech. However, if they do so while wearing a single falsely claimed medal, they can be prosecuted. If Congress can criminalize such claims, it could make half of the pick-up lines used in bars across the country crimes. It could theoretically criminalize other false claims from architects to accountants to anthropologists.

Where to draw the line

Moreover, if Congress can criminalize the wearing of false medals, it could theoretically criminalize claims of military service or the use of military symbols under the same authority.

Craig Missakian, a California prosecutor, insists that Congress can ensure prosecution of such cases under the Constitution's grant of authority to raise and support an army, and that includes, by extension, "protecting the worth and value of these medals."Yet, such an interpretation would defy any meaningful limits on Congress' ability to criminalize acts. In the past, a useful line has been drawn between simple acts of false bravado and false statements used to secure financial gain. The latter cases are routinely prosecuted as simple fraud. The Stolen Valor Act is obviously intended for other cases, where people wear medals for their simple adoration and public acclaim.

In pending cases, two men are challenging the constitutionality of the Stolen Valor Act. Water-district board member Xavier Alvarez of Pomona, Calif., made the mistake of claiming to be a retired Marine and recipient of the Medal of Honor during a public meeting in 2007. Rick Glen Strandlof claimed before his arrest in 2009 in Colorado to be a wounded Marine veteran who received a Purple Heart and Silver Star. Such "semper frauds" enrage actual Marines who take well-earned pride in the corps and its traditions.

We can all agree that false claims of military honors are repugnant and worthy of social condemnation. These men deserve to be social pariahs, but there remains a serious question over whether they deserve to be criminal defendants. We should spend our time and resources on creating easily accessible resources to uncover false claims. We also need to remember that, in the end, true valor cannot be stolen. It can only be earned. What is left are pathetic pretenders who should not add constitutional injury to social insult.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY's board of contributors.

(Illustration by Web Bryant, USA TODAY.)

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