Letter to the Senate Judiciary Committee from Retired General Robert G. Gard, Jr. Urging the Committee to Oppose the Proposed Flag Desecration Constitutional Amendment

Senator Orrin Hatch, Chairman
Senate Committee on the Judiciary

Senator Patrick Leahy, Ranking Minority Member
Senate Committee on the Judiciary

Dear Senators Hatch and Leahy,

I appreciate the opportunity to offer my views on the proposed Constitutional Amendment to ban Flag Desecration. I wish that my schedule had permitted me to attend the Senate Judiciary Committee’s hearing. As a veteran with 31 years of service in the U.S. Army, including combat duty in both Korea and Vietnam, I believe that I may be able to offer a useful perspective on this controversial proposal.

I must admit that when I try to identify the most pressing issues facing veterans today, flag burning does not make my list. To be clear, I have no patience with those who defile our national standard. It is wrong, it is unpatriotic and it is deeply offensive to those of us who serve or have served in uniform. But, in a new era of global conflict and threat, is it really the issue that should be taking up the valuable time of Congress?

This month, the Defense Department is coordinating the largest troop rotation since World War II. The operation is so dangerous that Army truck drivers received special forces training in Kuwait, learning, for instance, how to fire accurately from the wheel while evading an enemy ambush.

This spring, Task Force 121, the unit that found Saddam Hussein, will launch a newly concerted campaign to capture Osama Bin Laden in the mountains of Afghanistan. The region in which it will be operating is one of the most forbidding in the world. Lying on the border with Pakistan, the area is fraught with hidden peril, so much so that the terrain itself played a big part in defeating the Soviet war machine in the 1980s.

On the home front, our military is receiving rhetorical laurels for its splendid achievements in Iraq, but our veterans are still fighting for richly deserved access to medical care, mental health services, adequate housing, disability assistance and other essential services. The President’s 2005 budget cuts funding for veteran nursing home beds, reduces the number of people dedicated to solving the federal backlog in processing disability claims, and forces veterans to pay a fee just to access their health care system. It is such an anemic measure that Edward S. Banas Sr., commander in chief of the Veterans of Foreign Wars, called it a “”disgrace and a sham.””

But, instead of addressing these issues, Congress is spending its time debating flag burning. For lawmakers unwilling to actually face the tough questions, this may provide an appealing smoke screen. At first blush, it sounds a patriotic note that they believe will appeal to veterans, but it requires no allocation of resources. And, I fear, it allows politicians to be in favor of an empty patriotic gesture without doing anything substantive to assist veterans.

Just as bad, however, this amendment also subverts the very principles for which the flag flies. The amendment wrongly answers the chicken and the egg debate – it assumes that America is special because of the flag, not that the flag is special because of America. It is the unparalleled amount of personal freedom and opportunity that makes America what it is. The important principles include the right to gather with whomever we want whenever we want; the right to worship however we like, regardless of prevailing religious winds; the right to be free from an invasive or meddlesome government; and, perhaps most important, the right to speak our minds, regardless of what anyone else thinks.

But, for the first time in our history, the Constitution would tell you what you cannot say, rather than what you can, if this amendment were to be enacted. It would create a class of non-violent expression – abhorrent expression, yes, but non-violent – which is illegal and punishable by criminal sanction.

Worse, it would do so in a vague and undefined way, in which the decision as to what actions are criminal would have to be determined subjectively. For instance, would it be all right to neglect the flag on your car antenna and let it become soiled and weather-beaten? Or would that be desecration? Would it be okay to get wet in a flag-decorated bathing suit, or wear a flag T-shirt or cap?

And, what if personal animus or ambition got in the mix? Would you have a problem neighbor calling the police if during a barbecue your flag apron caught fire? Indeed, Secretary of State Colin Powell recognized this danger when he wrote in 1999, “”I shudder to think of the legal morass we will create trying to implement the body of law that will emerge from such an amendment.””

There is no question in my mind that it is unnecessary to enact this measure. But this is not to say that the flag is a trifle. It does not mean that veterans are not entitled to feeling outraged when they see somebody step on the banner that led them into battle. It does not mean that we should not revere and honor the flag, and remember the sacrifice of those who died to keep it on our flagpoles.

With all the other challenges and hardships facing those who served today, is this really an appropriate legislative initiative to occupy the valuable time of the Congress? No. Is it wise to silence dissent with the hydrogen bomb of a constitutional amendment? No.

True patriots face difficult choices head-on; they do not wrap themselves in the flag every time their electoral meal ticket comes due to be punched. I salute those in Congress who oppose this measure, and I salute those in Congress who are willing to deal with the really important issues facing veterans today.

Let’s bring our men and women home safely, and make sure that they’ve got a roof over their heads, access to an education, health care when they get old, and support when reliving the traumas of their service. I pray that Congress will come out from behind the camouflage of this amendment and address more important issues.

Sincerely,

Lt. General Robert G. Gard, Jr. (USA, Ret.)