Hmm, but does it prohibit Bush. Or Cheney. Cheney could be at risk given his actions as Haliburton CEO - setting up a subsidiary in Bermuda so that the company could do business in Iraq is a bit more direct Aid and Comfort me thinks.
Give me a break! Just because someone opposes a war, they are giving “aid and comfort” to an enemy? I don’t think so. It would be one thing if Kerry had invited some VC troop for dinner on his Swift Boat, that would be one thing.
But exercizing one’s free speech to speak out against a war?
Puh-lease. If that were the case, you can make the argument that Bush gave “aid and comfort” to the enemy by not serving his full time in the National Guard.
And Franklin Roosevelt “aided” the Nazis by not going to war right away with Germany.
Josh, did you read the whole post? It addresses the free-speech question, the intent question, and others. The issue is, in my opinion at least, more interesting than it appears at first glance. The point is that, under a purely textual analysis, there’s a decent case to be made, if you accept that Kerry’s actions (whatever their intent) did in fact give aid and comfort to the enemy. Of course, if you go beyond textuality and bring policy considerations into the mix, or even just the intent of the writers, the argument falls apart. But given the propensity of certain people on this website, myself included, to look at things in a very textual manner, I thought it was at least intriguing.
Excellent piece of work by Volokh; and a very worthwhile, not wasteful, use of his valuable time.
Dane: no, not Cheney, because (a) at the time Iraq — albeit Sanctioned & Inspected & Resolutioned & NoFlyZoned & just generally Pariahed up the wazoo — was not “the enemy” under either the Domestic Rebellion or Foreign Foe standard (see Volokh); and (b) even if it were, the Bigstick Dick :) can’t be shown to have fulfilled Volokh’s “intent” requirement. He didn’t Intend to aid Saddam. He merely Intended to make a lotta Mullah. :)
Now, as to Bush: you presented no prima faciae Case against him, Dane. :) I might argue that having taken the Oath of an Officer (see 14th Amendment) in the Texas Air National Guard, his subsequent dereliction of duty left the Lone Star Republic naked & undefended against aggression by its mortal Enemy, Oklahoma. :) OTOH the Okies got all preoccupied with the Wind come sweepin’ down their Plain and the Invasion never came off. Further, the Counterclaim arises: that W’s AWOLism gave aid & comfort not to any Enemy you may care to name, but rather to OUR Boys in the Cockpit, whose warrior Morale was hugely boosted by Yer Man’s no-shows whilst awa’ for th’ courtin’ of his darlin’ Nancy Whiskey (even if she WAS a crossdresser name o’ Jim Beam. :)