The Charlotte News

Saturday, July 15, 1950

THREE EDITORIALS

Site Ed. Note: The front page reports that General MacArthur's headquarters had indicated that about a thousand to two thousand North Korean troops, some disguised as Americans and others as civilians, had waded across the Kum River at Samgyo and forced the Americans back along the left flank west of Taejon, the now abandoned provisional capital of South Korea. Heavy losses had been inflicted on the enemy from ground and air attacks. Only at the center of the line were American forces holding. American losses were small compared to heavier losses by the enemy forces. Four enemy tanks were knocked out on ferries crossing the stream and ten others were crippled. No enemy tanks were reported south of the river, but other enemy vehicles, including tractor-mounted 76-mm guns, had penetrated the line and American jeeps and trucks were seized by the invading troops. Three other efforts to cross had been thwarted by American and South Korean troops. South Korean forces near Chongju lost ground despite aid from U.S. warplanes. U.S. jets flew 190 sorties during the day.

The President was scheduled this date to hear directly from the chiefs of staff of the Army and Air Force after their trip to confer with General MacArthur in Japan anent the Korean situation. They had also toured the battle front. Their report was expected to be determinative of the extent to which mobilization would be ordered. Their judgment on progress of the war, as related to reporters, was that the American troops were "doing damn well" and that everything would "come out all right".

Representative James Van Zandt of Pennsylvania, a member of the Joint Atomic Energy Committee and House Armed Forces Committee, told the Pennsylvania convention of the V.F.W. that the U.S. might have to evacuate Korea within the following three days, acknowledging the possibility that the troops might take a stand around the port of Pusan. He informed that south of the Kum River were only rolling hills and plains, ill-suited to defensive action, and that the North Koreans could therefore overrun the whole country within a matter of days once they crossed the Kum, as America did not have the manpower to stop them.

Army authorities had refused permission to A.P. correspondent Tom Lambert and U.P. reporter Peter Kalischer, both of whom had been filing regular reports from the front, to return to the front. The Associated Press offices were subsequently told by an Army colonel that some of Mr. Lambert's reports were lending "aid and comfort to the enemy", such as a quote from a front line soldier that it was a "damned useless war". The spokesman agreed with the fact that similar statements had been related from the front by soldiers in World War II and that there were no factual inaccuracies in Mr. Lambert's reports. The United Press office received a similar explanation regarding the fubar of Mr. Kalischer.

You can report the news freely, fully, and fairly as long as you supply the favorable part only. That is the motto of Fox News today, of course, at least insofar as Republican news is concerned. If you want to be brainwashed, continue to listen to that hogwash and regard the rest as "fake news".

Fort Jackson in South Carolina was set to be re-opened, according to Congressman L. Mendel Rivers and Senator Olin Johnston.

A soldier from Charlotte, Sgt. Donald Earnhardt, 25, had been wounded in Korea and was evacuated to Japan. His mother, who received this date the Army telegram, dated the previous day, had no indication of how badly he was wounded. He had been in the Army about three years.

On the editorial page, "Partial Mobilization Needed" wonders why the Administration was waiting to make the decision to undertake at least partial mobilization for the Korean war and the inevitable wars which might follow, in Iran, Indo-China, or Germany.

The country had committed itself to guardianship of the free world, through the Truman Doctrine, the Marshall Plan, and participation in NATO, plus the military aid program for those nations, but thus far it was not equipping itself and its allies with enough manpower and materiel to back up the commitment.

The people of Charlotte, after being questioned in a News poll, showed their solid support for the call by Senator Lyndon Johnson to Federalize the National Guard and call to active duty the reservists.

While full-scale mobilization of industry and manpower was not yet necessary, partial mobilization which would enable backing up the country's commitments was desperately needed.

"Will the UN Meet This Challenge?" hopes that, at the urging of U.N. Secretary-General Trygve Lie the previous day, the member nations who had supported the U.N. resolution to stop the fighting in Korea would contribute substantial men and supplies to the effort and not just a token contribution. Britain and France were occupied elsewhere in the Far East and in Europe but had some available men to provide. Canada and Latin America had a lot more. It was to be hoped that India and Indonesia would also back up their moral support for the action with arms and men.

In addition to the actual impact of such a united effort, the psychological component would be significant and would establish a precedent and strengthen the resolve of the U.N. to form an international police force.

The U.N., which had, until the Korean invasion, been failing recently, with the boycott of Russia over the refusal to seat Communist China on the Security Council, had passed its first test after the invasion by passing the resolution and getting 53 of 59 nations onboard the effort. If it met the new challenge of supplying men and materiel, it would provide reasonable hope of peace for the future.

"A Simple Storm" tells of a summer storm hitting the area from the west.

A piece from the New York Times, titled "The Cost of Time", tells of the maps of the war effort showing consistently black arrows pointing further and further south, as the U.N. forces were forced back by the invading North Koreans. The lines which were repeatedly claimed as solid defense positions had been broken. The forces were trading space for buying time, but the cost came high in blood.

It correctly predicts that the only truly defensible line would be formed in a semi-circle around the port of Pusan.

Time bought the ability to bring up supplies and men from afar against a decision of the free world that the outrage of the attack would be punished so that it would not be repeated.

It urges that the country presently honor the young men who were dying as they bought time for the rest of the country at the cost of their lives.

Drew Pearson tells of a significant primary having been held in Oklahoma for the fact that the race issue, unlike that having pervaded the primaries in North Carolina, South Carolina, and Florida, had not been raised in the campaign. Congressman Mike Monroney, who had opposed the FEPC bill, had not used it against incumbent Senator Elbert Thomas, who supported FEPC. Despite the latter receiving the black vote and having the political backing of the utilities and the patronage accrued from 25 years in office, he had come in second in the initial primary though forcing a runoff. Mr. Monroney, however, despite little money with which to wage his campaign, had the advantage of being able to draw his support from those voters disaffected with Senator Thomas's history of using his position on the Agriculture Committee to accumulate insider knowledge on which he had been able to trade to his advantage on the commodities markets, utilizing surrogates to buy and sell at opportune times, exposed during the previous four years by columns of Mr. Pearson, which he revisits.

Marquis Childs tells of the time being at hand for crucial decisions to be made with regard to military build-up. Yet, no order had been placed for a single new plane since the beginning of the Korean war, despite planning ongoing for a six-month conflict and the consequent need for replacement planes.

Steel production was already at its limit and to add to it orders for military equipment without a system of allocation priorities in place would cause a grey market if not a black market to arise.

There was also a problem of probable competition between the services for men and materiel.

It led to the questions of whether there was a plan in place, as contemplated, on the part of the National Security Resources Board, chaired by Stuart Symington, and if such a plan did exist, whether it called for coordination of men and materiel.

There was a realistic concern that general mobilization would not only play havoc with the economy but also would trigger like mobilization in the Soviet Union with the ultimate result being world war.

There were those in Congress who argued that if mobilization would trigger the same in Russia, then it was time to know it, as the opportunity to prepare the country would be short in the event of general war.

Joseph & Stewart Alsop find that it was time to face the fact that America had a major war on its hands in Korea while lacking military strength to fight it properly. Having been caught by surprise, the American forces faced the first problem, as Pusan, with only one dock, was the only available port for the purpose. The opportunity for air transport of men and supplies was not yet available because of lack of suitable airfields in South Korea. The current American defense line behind the Kum River was concentrated in the center of the peninsula with the South Korean forces covering the flanks, the weak spots therefore for North Korean penetration, with the potential for encircling movements—a possibility, they concede, even by the time the piece would go to press. Flanking and encirclement had already occurred at Chonan, forcing withdrawal.

The shortage of American combat-ready troops and equipment for ground fighting compounded the difficulties of supply. These deficiencies would make it hard to convert from defensive strategy to offensive strategy once the difficulty of forming a line which could hold was resolved. The need for additional men was acute as the initial forces of North Koreans had been formidable, between 75,000 and 85,000 men, with reserves backing up those troops, estimated at between 125,000 and 250,000. These well-trained and seasoned fighters were made up of captives trained by the Russians in Siberia or former volunteers for the Chinese Communists.

For all of those reasons, the wisest planners were comparing the action to the conquest of Italy in 1943-45, taking nearly two years of preparation and another nearly two years of combat to accomplish. The politics-as-usual approach to Korea therefore appeared both insane and suicidal.

Tom Schlesinger of The News, in his weekly "Capital Roundup", tells of Senator Frank Graham, who had lost in the Democratic primary in June to Willis Smith, having surprisingly failed to vote for cloture to bring the FEPC bill to the floor for a vote. He apparently objected to having it made a political football by Senate Majority Leader Scott Lucas. Senator Graham had said during the primary campaign that he did not support the bill in the form of a compulsory measure, but nevertheless, it had been surprising that he effectively supported the filibuster of the bill when he had not earlier done so.

Though Mr. Schlesinger does not offer the explanation, it was perhaps for the reason that, having lost to Mr. Smith in a campaign which had focused on this issue and Senator Graham's ostensible support of the bill by not having joined its filibuster, he felt the need to vote the expressed will of the people of North Carolina in the primary runoff—even if it would be doubtful, were the tables turned, that the opposition would do likewise.

Both Senator Graham and Senator Clyde Hoey had voted for confirmation of Sumner Pike for a new four-year term on the Atomic Energy Commission. The Senators, however, had opposite views on statehood for Alaska and Hawaii, Senator Hoey opposing it, as to Hawaii because it was not contiguous and as to Alaska for its sparse population of only 60,000, not entitling it to two Senators.

On most key issues, however, the two Senators had been found to agree.

Senator Hoey said that based on census tabulations, North Carolina might not lose a representative in Congress after all.

Congressional leaders had virtually abandoned plans for early adjournment for the elections, that limited leaves for campaigning were being discussed as an alternative.

Senator Hoey planned to hold hearings during the week on homosexuals in the Government. He denied making a statement attributed to him that there probably were 3,000 homosexuals in the Federal employ. He said that he had no idea how many there were and that neither did anyone else.

Incidentally, here is a little assistance in determining the hot legal issue of the moment in the non-fake news: Whether information solicited from a foreign national in the course of a Federal political campaign may be considered a "donation" of a "thing of value" for purposes of the Federal elections law prohibiting such solicitation, as defined by 11 CFR 100.20, "donation" being defined under 11 CFR 300.2(e) and "to solicit" being defined under the same regulation, 11 CFR 300.2(m)(1). In a different context, whereunder a defendant was charged with impersonating an IRS agent to obtain "a thing of value", U.S. v. Sheker, 618 F.2d 607, a 1980 9th Circuit Court of Appeals case, held that information does qualify as a "thing of value", stating as an example by way of dicta, "Information obtained for political advantage might have value apart from its worth in dollars."

Thus, it would appear, based on the foregoing, that setting up a meeting with a foreign national for the purpose of obtaining a "thing of value", i.e., potentially incriminating or adverse information on an opponent in an ongoing presidential campaign, would constitute the prohibited knowing solicitation of "anything of value" from such an individual or organization, per 52 USC 30121 and 11 CFR 100.20.

The counter-argument being advanced by some that the law is of questionable constitutionality as being violative of free speech appears to be a non-starter, as the issue was disposed of by Bluman v. F.E.C. in 2012, holding that foreign nationals, not lawful permanent residents of the United States, were not entitled to resort to the First Amendment under such circumstances, where contributions or donations were being made to a candidate.

Next arises the issue of an attempted violation of the law or conspiracy to commit the unlawful solicitation, and whether the statute and regulatory scheme applies to inchoate violations, that is where no donation or contribution was made. (Can there be, for instance, such a thing as attempted receipt of stolen property or conspiracy to commit that offense, where no stolen property was actually held by the person from whom one thought it was to be delivered? See discussion of intent in People v. Rojas, (1961) 55 Cal.2d 252, with emphasis on the citation to People v. Jaffe, 185 N.Y. 497, 501, 78 N.E. 169, a New York case from 1906, as the actions in question herein took place in New York. Are the facts of the instant matter more analogous to the pickpocket cases involving empty pockets, referenced by Jaffe, than to alleged attempted receipt of stolen property not in fact stolen?)

Is the solicitation, itself unlawful per 52 USC 30121(a)(2), sufficient for the violation, regardless of attempt or conspiracy?

The Bluman opinion also raises the issue of whether actual knowledge of the law is required for the violation to be "willful" and thus criminal, citing United States v. Moore, 612 F.3d 698, at 702-04 (D.C. Cir. 2010), the concurring opinion. Query, in that regard, whether the fact that the violation was not reported until over a year later suggests, circumstantially, willfulness. Does the byzantine nature of the election laws serve as a proper excuse to a campaign manager for not being aware of a particular law governing conduct of the campaign in a presidential election? If it does, does that not render the whole statutory scheme a virtual nullity, such that when a violator is caught in the act, they can, to avoid the worst penalties, simply plead ignorance of the law?

And does the fact that 52 USC 30109(d)(1)(A)(i) and (ii) prescribes criminal penalties for violations of section 30121 only where there is a minimum of $2,000 involved, negate the notion that information, in this context, insofar as criminal liability, is the equivalent of a "thing of value", and, in any event, bar any criminal prosecution when the amounts stated are not in issue?

But, even if not subject to prosecution under Federal campaign laws, could, on the basis of People v. Dlugash, (1977) 41 N.Y.2nd 725, and New York Penal Law section 110.10, the party or parties attending or setting up the meeting in question with knowledge of its object, assuming that to have been to obtain information which, if in the possession of the person from whom it was sought, necessarily had to have been the result of theft of the information from private computers, be subject to prosecution under New York laws governing either attempted cyber crime or attempted possession of stolen property or conspiracy to commit same, notwithstanding the 1906 holding in Jaffe, that is despite the fact that no actual theft of information had occurred and no information was in fact possessed by the person from whom it was sought? For the statute in question, 110.10, as quoted in Dlugash and as it still reads in 2017, expressly negates any defense of either legal or factual impossibility of occurrence of the crime,"if such crime could have been committed had the attendant circumstances been as such person believed them to be." Thus, in Dlugash, the court held that since there was not adequate evidence to show that the victim was not already dead at the time the defendant fired shots into the body, it was not possible for the crime of murder to have taken place, that a murder legally could not have been committed, it was possible for attempted murder to take place under 110.10 for the fact that the jury implicitly and necessarily found, by convicting of murder, that the defendant believed the victim was still alive when he fired the shots.

In other words, as applied to the facts herein, if the persons attending the meeting believed that they would receive possession of the adverse information had it in fact been possessed and those persons attending the meeting also believed, either subjectively or as the only available reasonable conclusion to reach, that the information, for it to have been in the hands of a Russian foreign national, had to have come from an illicit source of acquisition, would they then be subject to prosecution under New York law for attempted possession of stolen property or conspiracy to commit same? (Penal Law section 165.40, a misdemeanor, does not have a monetary value limitation, as do other sections of New York law prohibiting possession of stolen property. See also Penal Law sections 156.10, 156.30 and 156.35, regarding computer trespass and possession of unlawfully duplicated computer related material.)

But, under the facts in issue here, would it be fair, as a matter of policy, not to afford an opportunity to the person at the meeting to ask the crucial question of the would-be provider of the information as to how the information was obtained and whether legally, the basis for that inquiry having been rendered moot by the fact of the person not having any information to provide, whereas if in fact the person had information, the question might have been asked and if the answer was either that it was obtained illegally or an answer provided which was not enough explanatory of its origins to the satisfaction of the participants, then the meeting could have been terminated without receipt of the information? By attending the meeting without first ascertaining the source of the information and whether it was legally obtained, have the participants evinced an intent to receive the information, regardless of the legality of its obtention? The fact that a foreign-national prosecutor was believed to be ready to provide the information does not necessarily dispel an illegal source, whether from wire-tapping, hacking, or illegally acquired state documents.

If nothing else comes of this particular matter, we expect Republicans to shut up, once and for all, about use of a home e-mail server over five years ago by then-Secretary of State Clinton. That, plainly, was far less serious conduct, however negligent it may or may not have been, than the blatant solicitation, during a presidential campaign, of a foreign national to commit a violation of U.S. election laws, whether willfully in violation of the law or not...

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