Defense Articles

Security forces loyal to Palestinian President Mahmoud Abbas are seeking Israeli permission to import anti-tank missiles, grenades and other weapons to shore them up in their battle against Hamas, Israeli and Palestinian security officials said yesterday.

The request came as a truce ending the latest round of Palestinian infighting wobbled, with the first deadly clash since a ceasefire took hold more than two weeks ago. A Fatah activist was shot dead in a clash with Hamas in the southern Gaza town of Rafah, and at least 19 other people were hurt in daylong battles that spread to Gaza City.

A Hamas backer was blindfolded, handcuffed, shot in the legs and dumped on a street in Gaza City, and a Fatah militant was wounded by a grenade, security officials said.

Mr Abbas’s Fatah controls most of the security forces, though the Islamic Hamas is the dominant element in the coalition government. Frustrated by its inability to wrest the various forces away from Fatah, Hamas last year fielded its own armed contingent, the Executive Force, and clashes between the two sides followed quickly. Since May 2006, at least 198 people have died in the infighting.

Fatah’s main arm, National Security, boasts 30,000 officers, and thousands more belong to several other Fatah-linked militias. The Hamas Executive Force has about 6,000 armed fighters.

But Hamas has had the upper hand in fighting over the past year. Most of the people killed in clashes were linked to Fatah. Analysts say Hamas gunmen are better motivated and organised than Fatah.

With its request to Israel to allow more arms shipments, Fatah are ostensibly gearing up for the next round of confrontation with Hamas. On the list are armored vehicles, anti-tank missiles, grenades and millions of bullets. The apparent target of this proposed build-up, Hamas, did not comment about the reports. Israel is wary about adding to the weapons stores in the West Bank and Gaza. The Israelis are concerned the new weapons might fall into the hands of Hamas.

Palestinians have replenished their supplies through home weapons industries, smuggling and theft from Israel, acquiring rocket- propelled grenades, machine guns, rockets and mortars. Often these are used against Israelis.

In the past, Fatah has been wary of appearing to co-operate too closely with Israel, considered a common enemy by most Palestinians after more than six years of Israeli-Palestinian fighting. AP

I’ll bet most of you didn’t realize you could get two issues of GUNS Magazine each month instead of one–and it won’t cost you a penny more. That’s twice the issues, twice the articles….

What’s the catch? There are two, actually. First, you’ll need an Internet-connected computer. Oh, and the second issue you’ll be reading is 50-years old.

Every month this magazine presents on its Web site (www.gunsmagazine.com) a complete issue from the corresponding month of half a century ago. It’s like opening a time capsule and getting not just a glimpse, but a real understanding of what a different time that was. It’s proven to be one of the more popular features I link to on my own website, both for old-timers and especially for younger readers.

Culture Shock

Sure, by today’s standards, the graphics look dated, but that’s not where the culture shock sets in. Today’s celebrities and politicians make headlines disparaging guns and gun owners. Can you imagine them actually lending their names and images to a regular feature titled “My Favorite Gun”?

Yet there is Robert Ryan, proudly explaining how he taught his son to clean and carry his rifle, and to hunt, and Randolph Scott extolling the virtues of his “Peacemaker.” King Faisal II of Iraq praises his Holland & Holland double rifle and President Dwight D. Eisenhower occupies the cover of an issue featuring his hunting exploits.

And then there are the ads. Inflationary factors notwithstanding, modern readers find the following astonishing not just for the cost, but because of what is being offered. Imagine ordering a .55 caliber “Boyes [sic] anti-tank rifle” (”Most powerful rifle ever issued to any modern army … 5 shot mag., adjustable bipod; Recoil-dampening muzzle brake”) for $74.95 with “926 grain, armor piercing” ammunition for $7.50 “per box of 10 rds.” Then realize it’s “F.O.B. Los Angeles”!

Different Attitudes

The letters to the editor also reveal different expectations from those we have allowed ourselves to become accustomed to. A lady who was antigun wrote in to tell of her young son who “bought a pistol from one of his playmates at school and managed to find some bullets to shoot in it. The gun went off in his pocket, and badly burned the side of his leg …”.

And what happened when the investigating cop caught up with the delinquent pistolero?

“He is now a real friend to our family, because after seeing Johnny and talking with him, he bought us a copy of your magazine with a story on ‘When to Buy Your Son a Gun.’

“It has literally changed our whole lives and really opened my eyes to how harsh and unfeeling my attitude must have seemed to my son. He now has a gun, a proper .22 rifle and he is shooting on a boys team which is supervised by the Police Athletic League.”

And yes, all other considerations aside, the ultimate reason for having guns is also well understood and represented, as an ad from Southeastern Shooters Supply attests:

“READERS OF GUNS: Take a good look at our Second Amendment. Good weapons keep men free; when you forget that, tyranny increases.”

The National Institute of Justice published a fact sheet on body armor in response to testing of equipment that failed to meet its specified claims.

NIJ has determined that vests with Zylon may not provide the intended level of ballistic resistance.

Inf.: www.ojp.usdoj.gov/bvpbasi/docs/ BVP_ProgramFactSheet_08_18_05.doc.

The National Institute of Justice has adopted new minimum interim standards for bullet-resistant body armor vests that would become effective Sept. 26.

NIJ through extensive testing found that certain vests were subject to serious deterioration that made them less effective over time, and, in some cases, totally ineffective.

But NIJ recommended that officers continue to use defective armor until replacements are available.

To accelerate the process, the Justice Department has expanded its grants to state and local police for the purchase of vests to replace those found to be ineffective.

NIJ said the interim standards would apply until the completion of random tests on vests submitted by manufacturers to assure they are in compliance.

NIJ said it would probably issue advisory notices as the reviews continue.

Former Attorney General John Ashcroft ordered a study of the effectiveness of the vests in the summer of 2003 when a Forest Hills, Pa., officer wearing a vest was shot and seriously wounded. The assailant’s bullet penetrated the front panel of a second Chance vest made with Zylon.

NIJ suspended certification of body armor with Zylon on Aug. 24.

NIJ and the National Institutes of Standards and Technology jointly conducted studies into the durability of Zylon and found that it failed to meet the standards that the manufacturer’s promotional material claimed.

The National Law Enforcement and Corrections Technology Center also conducted tests.

Among the three testing agencies, technicians fired various types of bullets ranging from handguns to assault weapons into about 100 different types of vests.

During the past 18 months, the federal government and numerous law enforcement agencies have filed litigation against second Chance. The company has filed for bankruptcy and reached a tentative agreement to pay nearly $30 million to settle claims.

Under the interim standards, NU found that 12 manufacturers had products that achieved various minimum levels of protection.

NIJ has identified four levels of threat for body armor covered under the interim regulations that the 12 manufacturers comply with.

* Threat Level II requires armor must protect against .357 magnum JSP loads with 158 grains traveling at a velocity of 1,400 feet per second and 9-millimeter FMJ loads with 124 grains at velocity of 1,175 feet per second.

* Threat Level UA requires protection against .40 S&W FMJ 180 grain bullets to a velocity of 1,025 feet per second and 9-millimeter FMJ RN 124 grain bullets to a velocity of 1,090 feet per second.

* Threat Level III requires armor to protect against 7.62 millimeter (308 Winchester) FMJ 150 grain bullets to a velocity of 2,750 feet per second.

* Threat Level III requires armor to protect against .44 magnum SJHP 240 grain bullets and 9-millimeter FMJ 124 grain bullets with velocity of 1,400 feet per second.

NTJ posted information on the Internet that defines the new interim standards and the levels at which 12 manufacturers have been currently approved.

NIJ cautioned that it had reached any final conclusions on the safety of the body armor, but had relied on “specific certifications from manufacturers.”

NIJ recommended that law enforcement agencies purchasing vests in future select “models that comply with these interim requirements.”

NIJ said the regulations were “promulgated on an interim basis to address recent NIJ research findings that indicate that certain body armor models previously found by NIJ to be compliant with earlier NIJ requirements…may not adequately maintain ballistic performance during their service life.”

Two Civil War cannons that once guarded MTMC’s Western Area Headquarters in Oakland, Calif., are serving again at Fort Eustis.

The cannons flank the entrance of the Military Traffic Management Command at Fort Eustis now. Training and Support Center workers from Fort Eustis installed the cannons May 24.

“It was very thoughtful to bring them here” said Jimmie Fultz, a former Oakland employee who transferred to Fort Eustis.

“It helps keep the Western Area morale high.”

Fultz, a team leader in the Command Operations Center, is among 50 former Oakland employees working for the Military Traffic Management Command at Fort Eustis.

The cannon installation was the final step in a long process that began shortly after Oakland was selected for closing by the 1995 Base Realignment and Closure Commission.

Restoration of the cannons was spear headed by Barbara Bower, Director of the Army Transportation Museum.

“We’ve very proud to see these cannons back in a public area,” said Bower.

When the cannons arrived at Fort Eustis in 1997, they were in need of restoration.

“At the Oakland base the cannons were mounted in concrete bases and suffered a lot of wear and deterioration from constant polishing and resting on the concrete” said Bower.

In an effort to restore the Civil War artifacts, the tarnished and corroded cannons were cleaned with a pressure washing of baking soda, and polished with a mild abrasive.

Three coats of micro-crystalline wax were then applied to the cannons to prevent future discoloration.

The revitalizing process took nearly one year. This gave a center worker, Danny Winstead, a specialist in metals, design, milling and commercial exhibits, time to design the brass mounts and granite bases.

“These cannons show the shape and mode of history as a media form of their own” said Mike Bellafaire, Command Historian.

“As the Military Traffic Management Command continues to change, they represent our continuity and history.”

MTMC’s cannons were manufactured in 1857 and 1862 by the Revere Copper Co., according to markings on their muzzles.

The cannons are identified as bronze, Model 1857, 12-pound Napoleons, by the Center of Military History. They were used extensively by the Union Army. By 1863, Napoleons comprised 39 percent of the artillery in the Army of the Potomac.

In all, more than 1,000 of these cannons were manufactured for the Federal Government. Many are displayed today on Civil War battlefields.

THE OPENING earlier this year of the $90 million Lincoln Presidential Library and Museum in Springfield, Illinois, sparked a battle over the place of technology in museums. Traditionalists among historians and museum directors wrung their hands at the computer-generated special effects and lifelike fiberglass figures, deriding the effort to popularize history as “Six Flags over Lincoln” or “Lincoln Disneyfied.” But advocates for the futurized museum asked how, in an age of cell phones and ADHD, the interest of young people can be captured without a bit of whiz-bang.

The latter not only won this battle, but may have won the war over museum design for the foreseeable future. For the new Lincoln museum is often crammed full of visitors, and is receiving guests from other museums who are thinking of imitating what they see.

The museum is a success not just because the exhibits are so lifelike–Madame Tussaud’s wax museums can do that. It’s that they tell Lincoln’s story so well. There’s young Abe the rail-splitter educating himself by firelight as his family snores in a one-room log cabin. Here’s the young professional Lincoln draped over a couch in his law office, reading a newspaper, oblivious to his boys’ raucous behavior. Here he’s towering over political opponent Stephen Douglas; there he’s reading his newly drafted Emancipation Proclamation to an incredulous cabinet. And there’s a scene in which John Wilkes Booth makes his deadly approach at Ford’s Theatre. The sculptures and re-creations of whole rooms are stunning. None is more powerful than the one representing a New Orleans slave auction at which a family is being split apart. A child behind me asked, “Mommy, why are they in handcuffs?”

Some of the much-discussed special effects, designed by the former Disney executive in charge of BRC Imagination, who was paid a tidy $54 million, turn out to be unremarkable. During a film sequence on the Civil War, cannons explode, smoke rings fly through the air and the theater seats shake. Everyone giggles, and then it’s over. In a feature called “Ghosts in the Library” the viewers sees holographic images–like one of a feather quill for writing the Gettysburg Address. If museums expect these cheap thrills alone to attract a new generation, they will be disappointed. I was reminded of Lisa Simpson’s assessment of Epcot Center on The Simpsons: “It was designed in 1975 to show people how great life would be in 1987.” I asked one teenager what she thought of the special effects, and she shrugged. “It’s pretty cool, I guess”–she barely glanced up from the video game on her cell.

One of the newfangled exhibits that has generated controversy is a TV control room that runs commercials for the 1860 elections, each introduced by NBC’s Tim Russert, complete with a cable news–style ticker at the bottom of the screen. An ad for John C. Breckenridge’s southern Democratic campaign complains about politicians who “want to take away your property and trample on your state’s constitution.” Each ad ends with a voiceover, such as “paid for by citizens for John C. Bell.” Russert comments on Lincoln’s pro-union platform and his successful political strategy of winning the White House without support from a single slaveholding state.

Traditionalists will complain: “But there was no television in 1860!” But that mastery of the obvious misses the museum’s delightful frankness. All museums offer a constructed memory, not the real thing, whatever that might be. Why not introduce the candidates in 2005 style, especially when it can be done effectively in two minutes? The museum winks at us, and those not intent on playing Scrooge will get the joke. In any case, there is no less information here than in any other museum, and perhaps there is more. A plaque behind each exhibit asks “Read more?” and offers an extended annotated bibliography.

The title of another exhibit, “The Civil War in 4 Minutes,” might suggest the sort of dumbed-down experience that traditionalists would deride. They would be wrong. A wall-sized plasma screen shows the slow, four-year Union advance, with explosions representing battles and with mournful period music in the background. A ticker counts the casualties. Visitors paused longer here than anywhere else, caught short by the staggering numbers–l.3 million total, 600,000 of whom died.

The “Whispering Gallery” displays quotes from Lincoln haters while voices mock Mary Todd Lincoln’s manners and cartoonists lampoon her husband’s oafish looks and perceived imbecility. Even students of history who know that Lincoln had fierce enemies will be struck by those antagonists’ cruelty and cleverness.

It was an age of eloquence. To hear the Gettysburg Address or the Second Inaugural Address, intoned by an actor, is to experience awesome rhetorical power.

But the museum’s own efforts to praise Lincoln fall short. The biographical film Lincoln’s Eyes describes his rags-to-riches story as a quintessential American story, and asks if we don’t all “see a little bit of ourselves in Lincoln’s eyes.” In another clip a Union soldier who died in battle summarizes “our ideals”: “We despise tyranny, love freedom, and are willing to fight and, if need be, die for our ideals.” He then dons his army coat and salutes us, “Now the best part of us lives on in you.” This schmaltzy rhetoric is a hallmark of our age, not Lincoln’s. It would have been better to let Lincoln’s own eloquence wash over us without updating.

Senator John Warner (R-VA), chairman of the Senate Armed Services Committee, and Senator Carl Levin, ranking member, announced today that the Senate and House conferees reached agreement on the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005. The bill authorizes funding for the Department of Defense and the national security programs of the Department of Energy.

“We remain a nation at war against terrorism, and we will win because of the extraordinary Americans who volunteer to serve the cause of peace and freedom. All Americans are in their debt, and they and their families deserve our unwavering support,” said Warner. “I can think of no better way to honor the service and sacrifice of our servicemen and women and their families than to provide them with a higher level of pay and benefits and to give them the equipment they need to carry out their critical missions on behalf of our nation. I think it is particularly fitting that this bill is named after President Reagan,” Warner added.

“This bill improves the quality of life for our men and women in uniform, provides the equipment they need to perform their important and dangerous missions, and makes the investments we need to meet the challenges of the 21st century,” said Levin. “I am especially pleased that this bill increases the active duty end strength of the Army and Marine Corps, and increases the benefits for our active duty, National Guard, and Reserve forces, and for their families,” he added.

CONFERENCE REPORT HIGHLIGHTS

This conference report underscores the Committee’s strong support for the men and women of the armed forces who are fighting so bravely in the global war on terrorism. The conference report includes a 3.5 percent across-the-board increase in pay for all uniformed service personnel. It creates a new healthcare benefit for reservists by authorizing TRICARE coverage for Reserve members who served on extended active duty. It authorizes a permanent increase in special pay for duty subject to hostile fire or imminent danger and for family separation allowances, and increases special pays for members of the National Guard and Reserve for enlistment and reenlistment.

The conferees agreed to authorize a multiyear procurement for 100 new aerial refueling aircraft, while prohibiting the lease of KC-767A tanker aircraft by the Air Force. They also agreed to require that any contract for the maintenance and logistics support for new aerial refueling aircraft be competitively awarded.

The conferees reached an agreement that will maintain the authority for the Department of Defense to conduct a round of base realignment and closure in 2005. Warner stated, “This top Administration priority is absolutely essential and necessary for 2005, to allow the Department to evaluate its infrastructure and to make smart decisions to support a well-postured 21st century military. We must complete this crucial process over the next year in order to reduce aging [and] excess infrastructure, provide resources for the military where they need it the most, and provide investment and development opportunities for the local communities that so strongly support our military forces.”

In addition, the conferees:

* Authorized a 3.5 percent across-the-board pay raise for all uniformed service personnel

* Authorized increases in active-duty end strength of 20,000 for the Army and 3,000 for the Marine Corps

* Authorized an increase in the Survivor Benefit Plan annuity that will be phased in over 3.5 years and, by 2008, eliminate the existing two tier system

* Approved permanent eligibility for up to 90 days of TRICARE coverage for Reserve members and their families prior to mobilization, and 180 days of transitional health benefits for Reserves, active duty members, and their families when the member separates from active duty service

* Authorized a new program of educational assistance to members of the Selected Reserve, providing varying amounts of aid depending on the length of time mobilized

* Authorized immediate concurrent receipt, without phase-in, of military retired pay and veterans’ disability compensation for retirees who are rated at 100 percent disabled

* Included a provision that would expand criminal jurisdiction over federal employees and contractor personnel supporting the DoD mission overseas

* Removed the existing funding limitations on the military housing privatization authorities, which will allow the military services to continue to partner with the private sector to provide the highest quality housing for military members and their families in the shortest amount of time

* Authorized $10 billion for ballistic missile defense, and provided additional funding for the ground-based midcourse missile defense segment.

* Established new benefits under the Energy Employee Occupational Illness Compensation Program Act to compensate energy employees for illnesses resulting from exposure to toxic substances at a Department of Energy facility; the provision would direct the Department of Labor to administer this new benefit program, which is intended to provide a simple, fair, and uniform workers compensation system

IN December, after a federal jury convicted Virginia pain doctor William Hurwitz of running a drug-trafficking operation, the jury’s foreman made a puzzling comment to the Washington Post: “He wasn’t running a criminal enterprise.” Hurwitz, who was sentenced to 25 years in prison on April 14, was charged with drug trafficking because some of his patients abused or sold the narcotic painkillers he prescribed for them. Calling him a “major and deadly drug dealer,” prosecutors argued that his practice amounted to a “criminal enterprise” because he charged for his services and should have known that some of his patients were faking or exaggerating their pain.

Judging from the comments of their foreman, Ralph Craft, the jurors didn’t really buy this theory. But they convicted Hurwitz anyway, because they felt he was “a bit cavalier” in the way he prescribed opioids. They confused their role as jurors in a criminal case with the roles of the state medical board that regulates doctors and the civil courts that hear malpractice lawsuits. By convicting Hurwitz of, in essence, trusting his patients too much, they put physicians on notice that they can go to prison for prescribing opioids to people who turn out to be addicts or dealers. That knowledge is bound to have a chilling effect on pain treatment, which is already scandalously inadequate because of the fear instilled by the war on drugs.

The prosecutors did not dispute that Hurwitz, a widely known pain specialist and prominent critic of federal drug policy, had helped hundreds of patients recover their lives by prescribing the narcotics they needed to control their chronic pain. Instead they pointed to the small minority of his patients–5 to 10 percent, by his attorneys’ estimate–who were misusing the painkillers, selling them on the black market, or both. The prosecutors did not claim that Hurwitz got so much as a dime from illegal drug sales. Instead they pointed to his income as a physician, which they said was boosted by fees from bogus patients. The prosecutors did not allege that Hurwitz had any sort of explicit arrangement with those patients. Instead they described a “conspiracy of silence,” carried out by “a wink and a nod.”

The evidence supporting this theory was ambiguous at best, leaving plenty of room for reasonable doubt. None of the surreptitiously recorded conversations with patients-turned-informants presented by the prosecution included any acknowledgment of the conspiracy Hurwitz supposedly led. To the contrary, the testimony of former patients convicted of drug dealing tended to confirm Hurwitz’s defense that he was tricked by “predators” who always knew the right thing to say to get more drugs.

A former patient called as a prosecution witness testified, “I had a lot of pain, but I exaggerated it, trying to get the drugs.” On cross-examination, he added that he had “played a lot of doctors” over the years. He characterized Hurwitz as naive, saying, “He was concerned about me and my wife [also a patient]. Dr. Hurwitz is always concerned.” Another former patient recalled using makeup to cover injection marks on his arm and smoking crack before appointments so he would not seem suspiciously sleepy. All described the lies they told: complaints of unrelieved pain, reports of lost prescriptions, explanations for brushes with the law.

If there was a conspiracy, asked defense attorney Patrick Hallinan, “why would you have to lie?” And if Hurwitz and his patient-dealers were in cahoots, why would he carefully record all the potential signs of trouble the prosecution would later cite as evidence of his “head-in-the-sand attitude”? Hallinan conceded that Hurwitz may have displayed “a degree of naivet,” and “even foolishness” in accepting some of his patients’ stories. But he persuasively portrayed Hurwitz as “the perfect mark for these people”: a doctor dedicated to helping patients in pain and reluctant to cut them off when they misbehaved.

Prosecutors maintained that Hurwitz’s intentions didn’t matter. As they put it in a post-verdict brief: “It is sufficient to prove a physician prescribed controlled substances while acting outside the bounds of medicine, regardless of whether he had a good faith belief that he was fulfilling a legitimate medical purpose.” Since Hurwitz was “acting outside the bounds of medicine,” the government argued, his prescriptions amounted to drug trafficking.

Hence the death of one patient from a morphine overdose that the government attributed to Hurwitz’s excessive prescribing (the defense emphasized that the dose she took was smaller than what she had safely tolerated the day before) was not simply malpractice; it was “drug trafficking resulting in death.” More generally, the prosecution criminalized (and federalized) what would ordinarily be treated as allegations of medical negligence. The point is not that Hurwitz’s practice was beyond reproach. When the Virginia Board of Medicine reviewed allegations similar to those underlying the Justice Department’s case, it considered them serious enough to place him on probation (although it did not revoke his license). But Hurwitz’s performance as a doctor is not the proper concern of federal drug agents and prosecutors.

The American Bar Association (”ABA”) Model Rules of Professional Conduct (”Model Rules”) guide an attorney in his relationship with the media.’ The standards articulated in the Model Rules strive to maintain the delicate balance between the defendant’s right to a fair trial, the public’s right to safety and to knowledge of the trial, and the attorney’s right to free speech.2 Failure to abide by the rules of the jurisdiction can result in criminal sanctions and even disbarment. Most trials fail to attract media attention; however, those few high-profile cases test the effectiveness of the standard.4

This note will consider whether, in a media-saturated society, it is possible to preserve a defendant’s right to a fair trial in a high-profile case. It will specifically consider whether the prospective defendant in the Anthrax case and the defendants in the Sniper case could obtain a fair trial after all the media attention the cases have received.5 Part I will provide a background of the competing interests surrounding trial publicity and the history of Model Rule 3.6, including current standards governing lawyer communication with the media. Part II will lay out the differing expectations of the bar, as expressed in Rule 3.6, for prosecutors and defense attorneys when communicating with the press in light of the special duties and functions of each attorney. Part III will introduce two recent high-profile cases, consider the actions of each attorney involved in light of the duties enunciated in Model Rule 3.6, and pose the question and evaluate whether the defendant or defendants in each case may be able to obtain a fair trial. Finally, in addition to the limits on extrajudicial speech considered in the other sections of this note, Part IV will consider alternative remedies of ensuring a fair trial to defendants involved in high-profile cases.

I. BACKGROUND

A. COMPETING INTERESTS SURROUNDING TRIAL PUBLICITY

Many competing interests are involved in the debate about trial publicity. The most discussed interests are the lawyer’s First Amendment right to free speech and the defendant’s right to a fair trial.6 Other issues include the public’s right to know,7 the prosecutor’s right to enlist the aid of the public in performing his law enforcement function,8 the professionalism of the legal community,9 and the lawyer’s right not to speak.10

The lawyer’s first duty is to be an advocate for his client.” This duty, in turn, implicates the right of the attorney to speak on the client’s behalf.12 The attorney’s right to free speech is not absolute, however.13 For example, where the lawyer’s duty to advocate for his client or speak on his client’s behalf conflicts with a court order not to speak, the attorney must abide by his duty as officer of the court - the lawyer is not above the law.14 Prosecutors, in particular, whose client is the public, are limited by conflicting duties to their client and to the justice system: prosecutors may not speak where such speech would prejudice a trial.15

Under American constitutional law, this result may seem counterintuitive, for the classic justification against censorship provides that the remedy for bad speech is not prior restraint of such speech but rather more speech.16 This presumes a faith in the public and its ability to weed out unsound speech from sound speech.17 Accordingly, the best speech, which makes the most sense, should win out in the marketplace of ideas.18

It is not clear whether a further restriction on attorney speech would withstand constitutional scrutiny. Technically, however, the First Amendment applies only to government restraint on speech,19 and it is not the government but the bar which restricts the speech of its attorneys.20 Accordingly, when the bar, which is not a government actor, chooses to restrain attorney speech, the First Amendment may allow the restraint.21

Scholars disagree about the desirability of a rule limiting attorneys’ speech about trials in which the attorneys are involved. Professor Judith L. Maute believes that “[cjriminal cases should be tried in court, not in the media. Period.”22 Maute would “urge” all attorneys involved in the administration of criminal justice “steadfastly to refrain from all, or practically all, extrajudicial communications about the case.”23 Such silence would promote public confidence in the integrity of the criminal justice system and the outcome of trials by supporting a belief that the trials were “fundamentally fair” based on the procedure involved.24 Because the media’s objective is to report a newsworthy (and possibly sensational) story, the result of speech is very rarely helpful to the defendant in a criminal proceeding.25 Furthermore, silence would prevent lawyers whose interests are tainted by a desire for their own publicity from prejudicing their clients’ chances of obtaining a fair trial.26

Another justification for limiting attorneys’ speech is the promotion of the long-term interests of criminal defendants as a class.27 Professor David A. Strauss has argued that, as a general rule, defense attorneys likely would be “unwilling to appear to lend their personal reputation and credibility … to their client’s cause.”28 A defense attorney’s job is to represent his clients in court, not to vouch for his clients’ characters out of court.29 Moreover, even a defense attorney who would be willing to speak may appear to “lack . . . enthusiasm” in his client’s cause; and failure to speak in a society where out-of-court advocacy is the norm risks damaging the interests of the defendant in the courtroom.30

Here is how our executive branch last week waged its legal war on terrorism against the detainees at Guantanamo Bay, Cuba. While federal lawyers and intelligence officials earnestly prepared behind the scenes to put on trial some of the major terror suspects, a skuzzy Pentagon lawyer was front and center on the radio attacking the motives and integrity and even the patriotism of detainee defense attorneys and the law firms that support them.

One hand of government prepares in secret for the upcoming battle by identifying workarounds to constitutional due process and the congressional mandate that information gleaned from torture may not be used in the military commissions that may be up and running this summer. The other hand of government works in broad daylight to undercut perceptions about the loyal opposition by suggesting that the law firms whose attorneys work for free on these detainee cases — it’s called pro bono work and it is the law’s highest calling — may be taking money from terrorists or other nefarious sources.

On Friday we learned from the New York Times that the “Bush administration has set up a secret war room in a Virginia suburb” so that government attorneys and military officials can sort through “classified files” containing among other things the “interrogation reports” of top-shelf detainees like Khalid Sheik Mohammed. Their goal is to prepare to try Mohammed and other high-level terror suspects (like fellow 9/11 planner Ramzi Binalshibh) under the Military Commissions Act of 2006, a new federal law that set the rules that govern how the men may be tried.

“Prosecutors could use hearsay evidence or second-hand testimony, but could not use information obtained under torture,” report the Times’ Neil Lewis and David Johnston. “Even so,” they add, “that would mean virtually any information obtained by the C.I.A would appear to be admissible because, under Justice Department legal opinions, none of the harsh techniques amounted to torture.” That’s certainly convenient in theory — we’ll see how viable it is in practice. Remember, the new Congress has the right to look anew at the Commissions Act and the federal courts have yet to resolve the new questions it raises.

If there is nothing surprising about a group of prosecutors preparing for trial — even the sort of one-sided terror mega-trial that U.S v. Mohammed would become — it is, as The Washington Post suggested Friday, downright shocking that a government attorney would denigrate the work of attorneys and their colleagues who have chosen to help men who sometimes quite literally have no one else on their side. The malfeasant culprit is a man named Charles “Cully” Stimson, deputy assistant secretary of defense for detainee affairs, and there is simply no excuse for the tone or the tenor of the remarks he made Thursday on Federal News Radio.

Usually, administration officials take pot shots at the detainees — calling them “killers,” for example, even when the vast majority of them are not. But Stimson took his shots at the powerful law firms that have allowed and in many cases encouraged their bright attorneys to represent the detainees. According to The Post, Stimson said: “when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms….”

Stimson also attacked the motives of the men and women, and their bosses, who have accomplished so much in defending the rights of the grim men in Guantanamo Bay. “Some will maintain that they are doing it out of the goodness of their heart, that they’re doing it pro bono, and I suspect they are; others are receiving monies from who knows where, and I’d be curious to have them explain that.” You don’t need to understand the rich history of pro bono work in this country to understand how odious Stimson’s remarks are, or how much of a threat they constitute to men and women of goodwill everywhere.

For the sake of argument, however, let’s look a bit at the American Bar Association’s Model Rules of Professional Conduct — guidelines for how lawyers ought to behave. Rule 6.1 “Voluntary Pro Bono Publico Service” states that “every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono… legal services per year and should “provide any additional services through delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights.” I can think of no other cause that better satisfies this solemn responsibility than providing legal help to the Gitmo detainees. Can you?

Now let’s spend a minute looking at Stimson’s responsibilities as a government lawyer or as a spokesman for federal attorneys. First, Rule 3.4 “Fairness to Opposing Party and Counsel” states that a lawyer “shall not… allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witnesses, the culpability of a civil litigant or the guilt or innocence of an accused.”