Congress this week is considering a flag-desecration amendment to the Constitution, a move that Lawrence J. Korb, a Senior Fellow at the Center for American Progress and a Senior Adviser to the Center for Defense Information, believes is seriously ill-considered. In a statement sent to Congress, the former assistant secretary of defense and retired naval officer says that if the purpose of the so called flag burning amendment to the Constitution is to honor those in uniform, then Congress would do better to address the failings of the Bush administration to support current and future veterans.

And as a matter of principle, Korb finds any move to amend the Constitution in way that restricts the freedoms guaranteed to all Americans in the Bill of Rights simply bad policy. Below is his entire statement to Congress.

Statement of Lawrence J. Korb
Senior Fellow at the Center for American Progress
Regarding the Flag “Desecration” Amendment to the Constitution

June 12, 2006

I appreciate this opportunity to voice my opposition to the proposal to amend the Constitution to give Congress the power to prohibit the physical desecration of the flag of the United States.

Although I am employed by the Center for American Progress and have part-time affiliations with the Center for Defense Information and the Council on Foreign Relations, I am speaking for myself.

As a 23-year navy and Vietnam veteran, as a former official in the Reagan Defense Department, as a former professor at the Navy War College and the Coast Guard Academy, as a second generation American, as a lifelong Republican, and as a longtime member of the American Legion, I revere the flag and that "for which it stands." As much as any citizen, I still get a lump in my throat when I see the flag raised or lowered. Nonetheless, I am unalterably opposed to S.J. Res. 12.

As I understand it, one of the main goals of passing the amendment at this time is to show support for those currently serving in the armed forces in the war against terrorists with a global reach, as well as our veterans of previous wars; I would suggest that the Congress could help them much more by addressing the failings of the Bush administration that adversely impact our current and future veterans. Let me mention but a few:

First, the administration refuses to endorse Congressional proposals to allow Guard and Reserve members to participate fully in the military’s Tricare Health System. This coverage should be available regardless of whether or not their units are currently deployed, rather than limiting access to deployed reservists or cutting off coverage eight years after the end of any deployment.

Not only is it the right thing to do, but it will help retain those reservists who have been called up more frequently and for longer periods than the norm.

Second, the administration has failed to appropriately fund the VA. Last year the Department of Veterans Affairs admitted that it lacked the necessary resources to meet health care demands. The Bush administration’s FY07 budget also falls $1.3 billion short of what is needed for medical services according to the Independent Budget for FY 2007.

Third, in an effort to raise $800 million from veterans, the Bush administration has continued to recommend a $250 enrollment fee for Priority 7 and 8 veterans. The administration has also called for an increase in prescription drug copayments from $8 to $15.

Fourth, the Bush administration’s failure to provide body armor has cost lives. The New York Times reported that a “secret Pentagon study has found that as many as 80 percent of the marines who have been killed in Iraq from wounds to the upper body could have survived if they had had extra body armor.” Body armor “has been available since 2003, but until recently the Pentagon has largely declined to supply it to troops despite calls from the field.” Additionally, the Pentagon has refused to reimburse troops who purchased their own armor.

Fifth, the administration has fought tooth and nail to prevent disabled veterans who are also military retirees from getting “concurrent receipts” of both their retired and disability pays. Were it not for the Congress, disabled military retirees would still be getting shortchanged. As it is, they will have to wait until 2010 until this system is completely changed.

Sixth, the Bush administration actively sought to reduce hostile fire pay and family separation pay while our troops were fighting wars in two countries and our troops were spending an unprecedented amount of time away from their home bases.

Finally, in spite of the unprecedented strain being placed on the active duty Army and its reserve component, the administration continues to resist permanently adding 40,000 troops to the active Army.

Members of the Senate, if you are concerned about those who have and are serving in our Armed forces, you will deal with these six issues promptly. They need this much more than a constitutional amendment that infringes on our freedom of speech. But having said that, let me give you my reasons for opposing the amendment.

First, during my years of military and civilian service during the cold war, I believed I was working to uphold democracy against the totalitarianism of Soviet Communist expansionism. I did not believe then, nor do I believe now, that I was defending just a piece of geography, but a way of life. If this amendment becomes a part of our Constitution, this way of life will be diminished. America will be less free and more like the former Soviet Union, present-day China, Iraq under Saddam Hussein, or Afghanistan under the Taliban.

Second, the proposed amendment is bad public policy. During our 214 years of history, the Bill of Rights has never been restricted by a constitutional amendment. If ratified by the Congress and the states, this amendment would be the first in our history to cut back on the First Amendment's guarantee of that freedom of expression that is so necessary to ensure the vigorous debate and dissent that is imperative to prevent the abuse of power in our democracy. This amendment could set a dangerous precedent for limiting our other fundamental freedoms. We must be especially careful about limiting our freedoms at this time in our history. We all know that in the aftermath of September 11, 2001, there was a tendency to overreact and pass legislation, like the Patriot Act, that gave the federal government too much power or to characterize those who criticized the Bush National Security Strategy as unpatriotic=

Third, the amendment is poorly drafted. It is phrased in such broad and vague language that it can and will have unintended consequences. These could include censorship of images of the flag in works of art, advertising, or commerce. Moreover, the amendment would permit indictments and prosecutions not only of protestors, but individuals who purchase these works of art, or who use advertisements that desecrate the flag. This could happen even though these consumers intend no disrespect.

Fourth, the people, the Supreme Court, and previous Congresses do not support the basis for this amendment. Although some opinion polls indicate that a majority of Americans support the amendment in the abstract, opinion polls also demonstrate that the majority of Americans reject such an amendment when they discover that it would be the first amendment in our history to restrict our First Amendment freedoms. The highest court in the land has twice ruled that destruction of the flag for political purposes, although highly offensive to almost all Americans, is undeniably a political statement and a political expression. See Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990). The Court has held that it is a bedrock principle underlying the First Amendment that the government may not prohibit the expression of an idea simply because society finds the idea offensive and disagreeable. See Texas, 491 U.S. at 414. Furthermore, four times in the past 14 years the Congress has rejected this amendment, most recently in March 2000.

Fifth, the amendment is unnecessary to punish most incidences of flag burning or mutilations. Desecrating a flag belonging to the government or a non-consenting individual is punishable under existing statutes. See 4 U.S.C.A. §§ 1-10 (1998) (The Federal Flag Code). Moreover, flag desecration performed for the purpose of breaching the peace or with knowledge that it will produce an immediate danger is already punishable consistent with the First Amendment.

Finally, flag burning is exceedingly rare in this country. Since the Supreme Court's 1990 flag decision in United States v. Eichman, there have been less than 70 burning incidents.

In conclusion, I think that the motives of the sponsors and supporters of this amendment are beyond reproach. Indeed, I understand why they and so many Americans have such a strong reaction to the idea of flag desecration. But, for the reasons I mentioned above, I believe they are wrong and that the Congress should focus more on the immediate needs of our troops and veterans.

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