Elliot D. Cohen: POW/MIA Families Alleged McCain Assault: Senate Ethics Committee Failed to Investigate

A BUZZFLASH GUEST CONTRIBUTION
by Elliot D. Cohen

On June 20, 1996, Senator John McCain allegedly assaulted a family member of a Vietnam War prisoner of war (POW) who was missing in action (MIA), as a group of about 15 family members of POW/MIAs watched in astonishment. Within about one month, five ethics complaints had been filed with the Senate Ethics Committee by five eyewitnesses. But the Senate Ethics Committee refused to investigate the matter.

According to eyewitness Carol Hrdlicka, wife of Vietnam War POW/MIA air force pilot Col. David Hrdlicka, the group had been waiting in the hall of the Russell Office Building in Washington, D.C. for McCain to come out of an office in order to hand deliver letters asking him to forego an amendment to the Missing Service Personnel Act (MSPA) of 2005. The MSPA had been signed into law in February 1996 as part of the Defense Authorization Act of 1996 (P.L. 104-106). This law, which updated a 1942 law, had been a major victory for the families of POW/MIAs who worked tirelessly to get it through Congress.

The MSPA required the Pentagon to beef up its resources to find and rescue missing service personnel in a timely manner. For instance, it required the filing of reports on missing persons within 48 hours. Among other substantive provisions, it also criminalized withholding information from the families of POWs by broadly stipulating that "any person who knowingly and willfully withholds from the personnel file of a missing person any information relating to the disappearance or whereabouts and status of a missing person shall be fined as provided in title 18 or imprisoned not more than one year, or both." McCain's amendment eviscerated these new changes. For instance, it increased the reporting time to 10 days, and it deleted entirely the stated provision penalizing the withholding of information.

These family members of POW/MIAs had come to speak with McCain to try to convince him to leave the law alone. Mrs. Hrdlicka gives the following description of what happened:

When he [McCain] realized who we were, his face turned red and he became enraged. He would not accept the letters we had brought, he burst through our group assaulting the niece of Jane Duke Gaylor, mother of a MIA. I followed Senator McCain down the hall asking that he leave the legislation alone and all the while he is denying that he knew anything about the Missing Personnel Act. ...As we reached the elevator he said to me that I didn't know what he had been through ... I then stated I understood what he had been through and David Hrdlicka was still going through it. I had the capture picture of my husband and tried to show the picture to him but he would not look at it. ...The elevator arrived and Senator McCain quickly jumped in -- that ended our conversation. After this incident we went to the Capitol Police and filed a report. We also sent complaints to the ethics committee on the Senator's behavior.

"He went from a smiling, congenial, happy face to a beet red, totally enraged face in an instant," she said. "I have never seen a senator act in this way. We were all dumbfounded how this happened. He threw his arm up, and she goes flying and Jane [who was in a wheelchair] gets pushed aside as he brushes by her. All I see is people flying and I'm behind him [McCain]... This was assault."

According to Black's Law Dictionary (6th Edition) assault and battery consists of "any unlawful touching of another which is without justification or excuse. ... battery requires physical contact of some sort (bodily injury or offensive touching), whereas assault is committed without physical contact...." Given Mrs. Hrdlicka's description of what happened (which was generally consistent with that given by other eyewitnesses), it would appear that McCain engaged in "offensive touching" of another "without justification or excuse." Yet neither the Capitol Police nor the Senate Ethics Committee investigated the incident.

An August 2, 1996 letter to Hrdlicka from the Senate Ethics Committee stated, "To the extent that your complaint appears to relate to alleged physical acts, it would appear that appropriate action has been taken by informing the Capitol Police of the alleged incident. Thus, based upon the information which you have provided, no further action is intended with respect to this matter." The Committee therefore claimed to have rested its decision not to take any action regarding the "alleged physical acts" entirely on the fact that these acts were reported to the Capitol Police. However, the fact that a case is reported to the Capitol Police does not in and of itself constitute an adequate disposition of an ethics problem.

First, as the Senate Ethics Manual explicitly acknowledges, findings of law and findings of ethics are not necessarily the same. Even in cases where a senator may not have violated a specific law, he or she may still have acted unethically or in a manner unbefitting a member of the Senate. For example, when Senator Larry Craig was arrested by police for disorderly conduct in a police sex sting at the Minneapolis-St. Paul Airport, the Senate Ethics Committee eventually sent Craig a letter of admonition. The letter did not merely admonish Craig for unlawful activity (he had originally pleaded guilty but then attempted to withdraw his guilty plea) but for bringing discredit to the Senate. Citing the Senate Ethics Manual, the Committee stated that Senate Resolution 338 (S. Res. 338) "gives the Committee the authority to investigate Members who engage in "improper conduct which may reflect upon the Senate," regardless of whether such conduct violates a specific statute, Senate Rule, or regulation." And it added, "the Committee has stated that the Senate "may discipline a Member for any misconduct, including conduct or activity which does not directly relate to official duties, when such conduct unfavorably reflects on the institution as a whole."

Craig had allegedly tapped his fingers under an adjacent toilet stall occupied by a police officer. But McCain had allegedly assaulted and battered a woman who came to speak to him about a matter of State. In its August 2, 1996 letter to Hrdlicka, the Committee also cited S. Res. 338 as giving it the authority to "receive and investigate allegations of improper conduct which may reflect upon the Senate." Yet, in McCain's case, the Ethics Committee did not perceive the need to investigate this serious complaint, nor to take issue with McCain's conduct.

Second, according to Hrdlicka and two other complainants, Capitol Police did not investigate the matter after the incident was reported. On this assumption, there appears to be no evidentiary basis for the Senate Ethics Committee to have concluded that the matter was appropriately resolved. If the Ethics Committee wished to rest its conclusion on the fact that a report was filed with the Capitol Police, then it needed at least to order an investigation. The mere filing of a report does not itself dispose of a complaint.

Hrdlicka's burning question regarding McCain has been a resounding "Why?" Why did the Senator deny that he knew anything about the Missing Personnel Act? "That," she said, "was a lie," because "at that moment he was working behind the scenes to gut the legislation."

And she queried, "Why does he get so angry at the families? The only thing the families are trying to do is get the truth. He of all senators ought to understand and ought to try and help us because he knows what it is to be a POW. We fought for his rights when he was in captivity." As late as 1992, Hrdlicka said she had received documented reports of live sightings of her husband. So, after three decades of living with the uncertainty of whether she would ever see her husband alive again, it was reasonable for her to expect a compassionate hearing from the Senator known to be an ardent supporter of the rights of POW/MIAs and their families.

The callous, hostile reception Hrdlicka described was anything but compassionate: physical assault on a family member of a POW/MIA; a concerted effort to eviscerate law that protects POW/MIAs and their families; refusal to speak candidly to those who have suffered for decades; lying about knowledge of the MSPA while all along working to dismantle it -- all of these allegations, viewed in relation to one another, paint a coherent, unsettling picture that belies basic tenets of human decency such as doing for others what you would have others do for you. This portrays John McCain in a way that an Ethics Committee with jurisdiction over "improper conduct" of senators sworn to uphold a sacred public trust should not ignore, especially when this profile include allegations of assault and battery.

Hrdlicka finds it hard to palate the possibility that John McCain, the man she says assaulted a family member of a POW/MIA right before her eyes, could be the next Commander in Chief of the United States. Contemplating what a McCain Presidency might portend, Hrdlicka asks, "If he [McCain] will not support the family members of our MIAs, what makes anyone think he will show compassion to any of the people he will be sending off to get maimed?"

So it is understandable why she would see the need to speak out now about the 1996 incident. Viewed in the context of the upcoming Presidential election, the failure of the Senate Ethics Committee to pursue these allegations back in 1996 underscores the present urgency to bring the matter into public view. The court of public opinion may now be the only court left through which a sound verdict might be reached.

A BUZZFLASH GUEST CONTRIBUTION

Elliot D. Cohen, Ph.D. is a political analyst and media critic. His most recent book is The Last Days of Democracy: How Big Media and Power-Hungry Government are turning America into a Dictatorship. He is the first prize winner of the 2007 Project Censored Award.

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