Defense Articles

POLITICAL commentators are scrambling to explain the extraordinary rise of former New York City mayor Rudy Giuliani in the 2008 GOP nomination contest. The conventional explanation is that, buoyed by his 9/11 heroism and accomplishments as mayor, he is riding a wave among Republican voters relatively unburdened by knowledge of his chaotic personal life and liberal social views. This is certainly true. But the Giuliani wave has been lent extra force by another factor shaping the political environment: the Bush administration’s increasing association with executive dysfunction.
The administration’s stumbles have created an implicit “competence primary” in the Republican race, one in which Giuliani–with his success running the fourth-largest government in the country–is particularly suited to thrive. The importance of this aspect of the race is another early drag on the candidacy of Arizona senator John McCain, who is: the only major Republican candidate currently in Washington, D.C.–as always, the focus of disgust with the federal government; the only major candidate without any executive experience whatsoever; and the major candidate–ironically enough–most closely associated with George W. Bush.

That “competence” would become a buzzword, not of Bush supporters but of his critics, is an unexpected turnabout from when he entered office six years ago. Then, it was common to note the experience and gravitas of the Bush team. They were the “adults” who would run Washington efficiently after the drama and dithering of the Clinton years. Bush was the first MBA and CEO president, who would rely on his management skills to harness the abilities of the heavyweights around him.
Instead, the incompetence charge has gained such traction that even many Republicans buy it. Some of Bush’s strengths as a political leader, particularly his loyalty and optimism, have proven to have a double edge when it comes to running the government. He has made a few key bad decisions about policy and personnel, compounded them by not reacting quickly enough when things began to go wrong, and failed to create a sense of accountability in his government. He has seemed to have a much stronger sense of ends than means, and neglected the relation between the two.

The upshot is that even Republican primary voters will be looking in 2008 for someone who doesn’t run the government like George W. Bush.

It must be said that running a $3 trillion government is too big a job for anyone. There is too much going on for any one person to control or manage it flawlessly, and in no circumstance will the federal government be a model of efficiency. Bush has been hurt particularly by two massive events that might have been beyond the managing of the most talented executive–a hurricane that devastated an area larger than Great Britain in the Gulf Coast and the “ungrateful volcano” of Iraq. But both still tell heavily against his administrative record.

Bush has certainly had successes. The prescription-drug program is, for better or worse, one of his most important domestic initiatives. Its design was hideously complex and its implementation a gargantuan bureaucratic task. Initial stumbles led Democrats and the press to lump it into a narrative of Bush incompetence. It was a high-profile example in an Alan Wolfe essay in The Washington Monthly titled “Why Conservatives Can’t Govern.” But the program has turned out to be popular, relatively well run, and less expensive then expected.

Alas, there are also plenty of lowlights. If they were to be turned into a trashy TV documentary, it would be billed, “When bureaucracy goes bad”: the CIA and FBI prior to 9/11 (the infamous failure to “connect the dots”); the CIA again in the run-up to the Iraq War (the over-interpretation of dated, incomplete intelligence); the State Department and the Pentagon in the planning for the post-combat phase of the Iraq War (no unified plan); FEMA and the Department of Homeland Security in the immediate aftermath of Hurricane Katrina and the recovery since (at first overwhelmed and then simply inefficient); the Pentagon, again, in the equipping of U.S. troops and the reaction to the growing insurgency in Iraq (too slow); the Committee on Foreign Investment in the United States in the handling of the Dubai ports deal (ham-handed); the Justice Department’s handling of the firing of U.S. attorneys (also ham-handed); the Army and VA in the Walter Reed scandal (plodding and unresponsive); the FBI, again, in the matter of national-security letters (inexcusably sloppy).

‘GOOD MAN’

Bush’s management problems begin with the way he evaluates and values people. Bush has a bad case of the “good man syndrome.” That is the tendency, on the slender evidence of a personal encounter or two, to pronounce someone a “good man,” on whom a geopolitical relationship can be based or major responsibilities placed. Personal relationships are important to all politicians, and all will rely to some extent or another on their gut instincts about people. But with Bush, it is particularly so.

IN THE SPRING OF 1997, DEMATRIC YOUNG was living at the Sunset Motel just off Highway 84 in North Lubbock, Texas. The Sunset is run-down place in a mainly Hispanic neighborhood and home to a constantly shifting roster of semi-permanent guests-low income, down-on-their-luck types, often a step away from the homeless shelter. From his room there, on two occasions, Young sold an undercover narcotics agent somewhere between two and four grams–around $400 worth–of cocaine. The normal sentence in the state of Texas for such a crime would have been around ten years. But Young discovered that he would be facing a much harsher sentence, because, unbeknown to him, his motel room was located in a “drug-free school zone.”
According to Texas state law, everywhere within 1,000 feet of a school constitutes a “drug-free zone.” Anyone convicted of selling or possessing drugs within such a zone is subject to an enhanced sentence–a five-year mandatory minimum over and above the sentence imposed for the original offense. Unfortunately for Young, the Sunset was within 1,000 feet of Cavazos Junior High School. He was never accused of selling drugs to children. Nor did he ever set foot inside the Cavazos schoolyard. But under the Texas drug-free school zone law, neither of these facts is relevant.

Texas law also requires that Young be tried separately for each charge, once for possession of cocaine and additionally for sales of cocaine within a drug free school zone. And it requires that any sentences be served consecutively rather than concurrently. As a result, Young–20 at the time of his arrest–is now serving a 38-year sentence, ineligible for parole until at least 2021. “His life is over,” says his lawyer, Bob Huddleston.
There’s little reason to expect that the Texas politicians who created the state’s drug-free zone laws would have much sympathy for Young, given that the crime he was convicted of corresponds perfectly with the law they wrote. But even the most tough-on-crime legislators might question whether the intention of a law designed to keep drug dealers away from school children is being well served by the imposition of a massive extra penalty on someone who was not selling to kids, who was nowhere near them, and who was essentially operating out of his home.

All together, drug-free zone laws rank among the country’s most specious criminal drug statutes. Over the years, states have created so many of these zones, of such immense scope, that they now encompass almost the entirety of some cities, rendering them overwhelmingly ineffective. Yet, drug-free zoning has hardly been inconsequential. It has helped send countless low-level drug offenders in inner cities–most of them minorities like Young, who’s black–to prison for much longer terms than those committing the same crimes in the suburbs, where drug-free zones occupy a dramatically smaller fraction of the overall space. At a time when Americans are increasingly questioning the fairness of drug laws that disproportionately affect minorities–as with the vastly higher penalties associated with crack versus powdered cocaine–the drug-free zone regime, though it has the same effect, is not even on the nation’s radar screen.

Marking Territory

Drug-free zone criminal statutes originated in the mid-1980s as the crack epidemic hit the country’s inner cities. The Comprehensive Crime Control Act of 1984 imposed enhanced federal penalties on those convicted of selling drugs near schools and other places occupied by kids. The law was, as it remains, remarkably broad–doubling the maximum punishment for possession or distribution of a controlled substance within 1,000 feet of “a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, or a playground, or a housing facility owned by a public housing authority, or within 100 feet of a public or private youth center, public swimming pool, or video arcade,’ It exempts only those offenses involving five grams or less of marijuana.

With the renewed public alarm that followed the 1986 death of the University of Maryland basketball star Len Bias from a cocaine overdose, states began creating their own drug-free zones, modeled on the federal statute. The rhetoric justifying these zones made for considerable political capital. Running for re-election in 1986, Massachusetts Gov. Michael Dukakis urged passage of the Massachusetts “school zone” law so that the state could “make schools drug-free by 1990″ D.C. Mayor Marion Barry even created drug-free zones in Washington a few months before being arrested for smoking crack.

More than 15 years after Congress passed the initial federal act, supporters of drug-free zone laws can point to countless low-level drug dealers like Dematric Young now behind bars. But they would be hardpressed to demonstrate that the laws have actually lived up to their most basic aim: reducing illicit drug use among school kids.

If the laws had been successful, drug use by school-age kids should have fallen following their implementation. Instead, while use among high-school students did decrease for virtually every type of illicit drug over the course of the ’80s–reaching a low around 1992–this decrease had already started by the time the zone laws took effect. Since 1992, levels of drug use have slightly increased.

Last November’s Democratic victory catapulted party leaders like Nancy Pelosi, Harry Reid, and Rahm Emanuel into prominence. But it’s not just those with a capital D after their names whose fortunes are on the rise these days. The changeover on Capitol Hill has reordered virtually every aspect of Washington’s political culture. In so doing, it has strengthened hands of a slew of unelected Democratic power players–Hill staffers, lobbyists, political consultants, activists, fund-raisers, even socialites–whose sway is often all the greater for being wielded largely behind the scenes.
Of course, almost every Democrat in town is feeling pretty good about himself lately, and coming up with a comprehensive list of those who’ve seen their power enhanced in the new Washington would keep us here through 2008. But some of the capital’s new influence brokers haven’t received a level of attention commensurate with their clout. As we gear up for the major political battles of the next two years–from Iraq to congressional oversight to the presidential race–here are a few of this city’s under-covered inside players who’ll now be getting their calls returned more quickly than ever.

THE RESISTANCE

Jonathan Adelstein and Michael Copps

FCC commissioners

The Democratic takeover of Congress won’t change the composition of the executive-branch commissions that write and enforce key regulations, and that remain largely majority Republican. But that doesn’t mean the shift on Capitol Hill won’t dramatically affect those commissions’ balances of power.
Perhaps the best example is the Federal Communications Commission (FCC), which is gearing up to address a host of thorny issues, from media consolidation to net neutrality. The FCC’s two Democratic commissioners, Jonathan Adelstein and Michael Copps, will still be going up against three Republicans, including Chairman Kevin Martin, but they’ll have a lot more weapons in their arsenal. That’s because they’re close with newly powerful Democratic committee chairs like John Dingell, Ed Markey, and Daniel Inouye, who’ll use high-profile hearings to advance the Democratic commissioners’ priorities. With the help of their allies in Congress, Adelstein and Copps will “put [the Republican commissioners] in a vise in the hearings,” according to one Washington Democrat who follows communications issues. “It’s like the cavalry coming over the hill.”

What will that mean in practice? On media consolidation, it should allow Adelstein and Copps to begin laying the groundwork for reversing former chair Michael Powell’s 2003 round of deregulation, which made it easier for big media companies to own multiple outlets in a single market. And it will almost certainly ensure that additional GOP deregulatory efforts are dead on arrival.

On net neutrality, the effects could be even more far-reaching. Already, the commission’s Democrats have been working on an ad hoc basis to get telecommunications companies to agree to adhere to the neutrality principle–that is, not giving discounts to big Web content providers while charging little guys more. But their task will be much easier with Markey, a strong neutrality supporter, chairing the telecommunications subcommittee. Whether or not Markey succeeds in passing legislation ensuring neutrality, as he’s said he intends to, his mere presence gives Adelstein and Copps vastly increased leverage. Says one expert: “It’s certainly going to put a lot of telecom companies on notice that they shouldn’t engage in discriminatory practices unless they want the wrath of the Hill.”

THE MODERATOR

Perry Apelbaum

Staff director, House Judiciary Committee

Oversight figures to be perhaps the most important task of the next Congress, and many of the key areas that demand investigation–from torture to warrantless wiretapping to manipulation of Iraq intelligence–fall at least in part under the authority of the judiciary committees. The trick for Democrats will be to delve deeply into the failures and cover-ups of the Bush administration in these areas, without allowing the GOP or the press to portray their probes as needlessly partisan, vindictive, and backward-looking.

On that score, House Judiciary chair John Conyers (D-Mich.) has already made some Democrats nervous. Last year, he raised the possibility of impeachment–which Republicans quickly seized on to argue that a Democratic Congress would plunge the nation into turmoil. The impeachment talk was quickly slapped down by Nancy Pelosi, but fears remain in Democratic circles that Conyers’s desire for justice could undercut the party’s effort to present an image of constructive bipartisanship.

That’s where Perry Apelbaum, the committee’s staff director, could come in. Apelbaum has worked for Conyers since the congressman became the top Democrat on the committee in 1995, and by all accounts he enjoys his boss’s absolute trust. But he also has good relations with the committee’s Republican staff–in November, he had colleagues on both sides over to his house to watch the Ohio State-Michigan game. Just as important, as the top committee lawyer for the Democratic minority in the late 1990s, Apelbaum played a role in the impeachment defense of President Clinton, so he’s seen firsthand how politically motivated congressional investigations can backfire. “Perry would be a moderating influence,” says one Democratic insider who has worked closely with him.

(1) This directive establishes a national policy to defend the agriculture and food system against terrorist attacks, major disasters, and other emergencies.

Background

(2) The United States agriculture and food systems are vulnerable to disease, pest, or poisonous agents that occur naturally, are unintentionally introduced, or are intentionally delivered by acts of terrorism. America’s agriculture and food system is an extensive, open, interconnected, diverse, and complex structure providing potential targets for terrorist attacks. We should provide the best protection possible against a successful attack on the United States agriculture and food system, which could have catastrophic health and economic effects.

Definitions

(3) In this directive:

(a) The term “critical infrastructure” has
the meaning given to that term in section
1016(e) of the USA PATRIOT
Act of 2001 (42 U.S.C. 5195c(e)).

(b) The term “key resources” has the
meaning given that term in section
2(9) of the Homeland Security Act of
2002 (6 U.S.C. 101(9)).

(c) The term “Federal departments and
agencies” means those executive departments
enumerated in 5 U.S.C.
101, and the Department of Homeland
Security; independent establishments
as defined by 5 U.S.C. 104(1);
Government corporations as defined
by 5 U.S.C. 103(1); and the United
States Postal Service.

(d) The terms “State,” and “local government,”
when used in a geographical
sense, have the same meanings given
to those terms in section 2 of the
Homeland Security Act of 2002 (6
U.S.C. 101).

(e) The term “Sector-Specific Agency”
means a Federal department or agency
responsible for infrastructure protection
activities in a designated critical
infrastructure sector or key resources
category.

Policy

(4) It is the policy of the United States to protect the agriculture and food system from terrorist attacks, major disasters, and other emergencies by:

(a) identifying and prioritizing sector-critical
infrastructure and key resources
for establishing protection requirements;

(b) developing awareness and early warning
capabilities to recognize threats;

(c) mitigating vulnerabilities at critical
production and processing nodes;

(d) enhancing screening procedures for
domestic and imported products; and

(e) enhancing response and recovery procedures.

(5) In implementing this directive, Federal departments and agencies will ensure that homeland security programs do not diminish the overall economic security of the United States.

Roles and Responsibilities

(6) As established in Homeland Security Presidential Directive-7 (HSPD-7), the Secretary of Homeland Security is responsible for coordinating the overall national effort to enhance the protection of the critical infrastructure and key resources of the United States. The Secretary of Homeland Security shall serve as the principal Federal official to lead, integrate, and coordinate implementation of efforts among Federal departments and agencies, State and local governments, and the private sector to protect critical infrastructure and key resources. This directive shall be implemented in a manner consistent with HSPD-7.

(7) The Secretaries of Agriculture, Health and Human Services, and the Administrator of the Environmental Protection Agency will perform their responsibilities as Sector-Specific Agencies as delineated in HSPD-7.

Awareness and Warning

(8) The Secretaries of the Interior, Agriculture, Health and Human Services, the Administrator of the Environmental Protection Agency, and the heads of other appropriate Federal departments and agencies shall build upon and expand current monitoring and surveillance programs to:

(a) develop robust, comprehensive, and
fully coordinated surveillance and
monitoring systems, including international
information, for animal disease,
plant disease, wildlife disease,
food, public health, and water quality
that provides early detection and
awareness of disease, pest, or poisonous
agents;

(b) develop systems that, as appropriate,
track specific animals and plants, as
well as specific commodities and
food; and

(c) develop nationwide laboratory networks
for food, veterinary, plant
health, and water quality that integrate
existing Federal and State laboratory
resources, are interconnected,
and utilize standardized diagnostic
protocols and procedures.

(9) The Attorney General, the Secretary of Homeland Security, and the Director of Central Intelligence, in coordination with the Secretaries of Agriculture, Health and Human Services, and the Administrator of the Environmental Protection Agency, shall develop and enhance intelligence operations and analysis capabilities focusing on the agriculture, food, and water sectors. These intelligence capabilities will include collection and analysis of information concerning threats, delivery systems, and methods that could be directed against these sectors.

Since the signing of the Ottawa Treaty on landmines in December 1997, the big `G8′ countries and their arms-manufacturing companies have been seeking to circumvent it. Research published in a new report from the charity Landmine-Action(*) has revealed the continued manufacture and use of anti-vehicle mines fitted with anti-handling devices or sensitive fuses. These modified weapons can be accidentally detonated by civilians and so act like powerful anti-personnel mines.

One example is the German AT-2, a scatterable anti-vehicle mine equipped with an anti-handling device and magnetic fusing. It is sensitive enough to be detonated by someone stumbling over it or even by their proximity. As a result, the Italian Government destroyed all its AT-2 mines in 1997. The British Ministry of Defence continues to hold an estimated 100,000 AT-2s in its stocks.

BAE Systems, Hunting Engineering, Marconi, GEC Avionics and Hughes Microelectronics are all part of a European consortium that developed the MLRS artillery launcher that can dispense AT-2 mines.

`At the time the Ottawa Treaty was signed it was recognized that all landmines which could be set off by a person should be banned’, says Richard Lloyd, director of Landmine Action.

`But what has happened since is that more countries are producing anti-tank mines with sensitive fuses to replace anti-personnel mines. It is a devious way to circumvent the treaty’. The Ottawa Treaty defines anti-personnel landmines by their design, not by their effect. This means that manufacturers can escape liability by arguing that a weapon was designed for another purpose — the fact that it has an anti-personnel effect then becomes immaterial. It is this loophole that is allowing companies to build bigger and more lethal landmines than ever before.

Research and development funds are also pouring into ever-more-lethal anti-personnel devices. The Taser Area Denial Device shoots electrical darts carrying up to 50,000 volts. Victims remain conscious but are unable to control their muscles. The Taser has already been identified as one of the US Army’s favoured alternatives to anti-personnel mines, says the Landmine Action report.

Other methods of `area denial’ under development include microwave devices which create fields with graduated layers of pain for the victims, and tranquillizing chemicals that can cause temporary blindness and extreme anxiety. Acoustic weapons vibrate inside the human body to stun, nauseate and — in the words of a Pentagon official — liquefy their bowels.

Rather than act in the spirit of the Ottawa Treaty to clear the world of anti-personnel landmines, governments and arms companies have busied themselves finding ways to profit from new, ever-more lethal technology. Effective campaigning evidently demands more than signatures on pieces of paper.

REPORTS about Lynne Stewart will tell you how sweet and warm and cuddly she is. And it’s true: She’s sweet and warm and cuddly. Heavyset and endearingly disheveled, Stewart comes to court in a faded cotton housedress and likes to refer to people, even relative strangers, as “dear.” You’d never think this charming, grandmotherly figure–someone who refuses to defend childabusers because she believes children are true innocents–would be accused of helping Islamist terrorists. But appearances can be deceiving.

On February 26, 1993, Muslim terrorists set off a powerful bomb in the World Trade Center, killing six people and injuring a thousand. The man widely recognized as the terrorists’ “spiritual leader,” the Egyptian sheikh Omar Abdel Rahman, had previously claimed credit on behalf of his group for the murder of Egyptian president Anwar Sadat and was revered by Osama bin Laden. In July 1993 the “blind sheikh” was arrested on immigration charges. In January 1996 he was convicted and sentenced to life in prison for conspiring to wage a war of urban terror against the United States that included the World Trade Center attack and a foiled plan to simultaneously bomb the U.N. complex and the Lincoln and Holland Tunnels.

Lynne Stewart is the radical leftist lawyer who defended Rahman in 1995 and continued to serve as one of his attorneys thereafter. During the trial she argued the sheikh was not a terrorist but a venerable Islamic scholar who was not responsible for the actions of his followers and shouldn’t be punished “for his outspoken ideas.” Clearly, those responsible for deciding his case didn’t buy it. As Andrew McCarthy, who led the prosecution, documented in the Middle East Quarterly after the trial, Rahman had long incited violence against those he considered “enemies of Islam,” America foremost among them. “Every conspiracy against Islam,” he once said, “its source is America.” He had even issued a warning to this country just a month before the attack: “We must be terrorists and we must terrorize the enemies of Islam and frighten them and disturb them and shake the earth under their feet.” His organization, Gama’a al-Islamiyya, or the Islamic Group, which he had led for over two decades before his imprisonment, was designated a foreign terrorist organization by the State Department in 1997.

The 64-year-old Stewart has now been indicted for helping relay messages between the imprisoned sheikh and members of the Islamic Group in violation of government-imposed security measures. The official charges against her are conspiring to defraud the United States, conspiring to provide and conceal material support to terrorist activity, actually providing and concealing that support, and making false statements (two counts). In just a couple of months, a New York jury will decide whether she’s guilty; if convicted, she could spend over 30 years in prison. Regardless of the verdict, her story is a powerful illustration of how easily radical leftist dissatisfaction with America becomes cheerful support for America’s enemies–even the most destructive of them–and how a so-called defender of the public becomes a defender of the public’s enemies.

A GIRL FROM QUEENS

Stewart’s defense is that she was just doing her job as an attorney –”nothing more than what any lawyer would ever do under any circumstances.” But she also admits that her notion of good lawyering goes beyond the traditional lawyer’s role. She is a self-described “political” or “movement” lawyer, in the mold of William Kunstler and Ron Kuby. Stewart proudly acknowledges that she goes the “extra yard” for her clients–which means being an activist, sometimes breaking the rules, making a client’s cause her own.

To anyone unaware of the alliance between the radical Left and fundamentalist Islam, it may be hard to believe that a ’60s radical would go out of her way to help an Islamist sheikh. Stewart, a Protestant girl from Queens, turned political in the 1960s while working as a public-school librarian in Harlem. There she met her second and current husband, Ralph Poynter, a black militant and then schoolteacher who would later lose his job and serve six months on Rikers Island for assaulting a police officer. Stewart went to law school angry at America for its racial and economic injustices, and after graduating started a criminal practice defending underground groups such as the Ohio Seven and the Black Liberation Army. As those movements dwindled, she moved on to defending individual cop killers and drug dealers, all of whom, according to her worldview, had been in some way betrayed by “the system.”

Having spent her life defending homegrown miscreants, Stewart didn’t know much about the Egyptian sheikh in 1994. But famed radical Ramsey Clark persuaded her to take his case. As George Packer told it in the New York Times Magazine, Clark said that the Arab world would feel betrayed by the American Left if Stewart didn’t step up. And for her, Rahman is a natural fit. Like many of her previous clients, he is a public enemy and a revolutionary: anti-liberal, anti-bourgeois, and most of all anti-American. Stewart has always seen violence as the unavoidable result of the struggle of the oppressed against their oppressors, and though she might not say it explicitly these days, “Amerika” is Oppressor No. 1.

Trial publicity has been an issue since the early days of the Republic.l The concern at its core involves a balancing between protecting the right to a fair trial and safeguarding the right of free expression.2 Trial publicity also implicates important societal interests such as the free dissemination of information, especially concerning the public interests in knowing of threats to safety and information generally concerning judicial proceedings and the public policy involved.3

In adopting the Model Rules of Professional Conduct (”Model Rules”), the American Bar Association (”ABA”) has sought to balance those interests.4 To that end, Model Rule 3.6 limits the public communications of attorneys during an investigation or litigation.5 High-profile cases are most likely to involve concerns under Rule 3.6.6 One such case is that of David Hicks of Australia, who was captured in December 2001, in Afghanistan by the Northern Alliance.7 Hicks was among the first detainees transferred to Guantanamo Bay, Cuba.8 He was the first such detainee to be assigned a military defense attorney,9 and the third detainee to be charged.10 Soon after being appointed as defense counsel for Hicks, United States Marine Corps Major Michael Mori called a press conference at which he denounced the military commission as incapable of granting his client a fair and impartial trial.11

This Note will focus on two extrajudicial statements made by Major Mori. Specifically, this Note will analyze the sources and scope of his ethical responsibilities and whether or not those two extra-judicial statements violated these responsibilities. Part I provides a description of Model Rule 3.6 and its competing purposes, as well as a description of the military trial publicity rules.12 Part II provides a brief history of the military commissions for the Guantanamo detainees and discusses the military commission of David Hicks. Part III analyzes Major Mori’s extrajudicial statements under Model Rule 3.6, Navy Rule 3.6, and the various rules specific to practice in military commissions.13 Part IV concludes that Major Mori’s statements did not violate Model Rule 3.6 and that sanctions against Major Mori for any potential violation under Navy Rule 3.6 or the military commission rules may run afoul of the Constitution.14

I. TRIAL PUBLICITY RULES

Every military attorney is required to be admitted to a state bar, and military attorneys are subject to both the ethical requirements of their respective state bars and their respective military services.15 The following discussion considers these rules as they relate to trial publicity.

A. MODEL RULE 3.616

Model Rule 3.6 includes a general rule against trial publicity, but strives to strike a balance among the interests of the defendant, the attorney, and the public. According to Model Rule 3.6(a):

A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.17

The Rule governs the conduct of lawyers who are involved or have been involved in an investigation or litigation, and includes in this group lawyers in the same firm or government agency.18 Model Rule 3.6 only prohibits extrajudicial statements when the lawyer “knows or reasonably should know”19 that (1) the information will be publicly communicated and (2) “will have a substantial20 likelihood of materially prejudicing an adjudicative proceeding in the matter.”21 Model Rule 3.6 provides three different factors to aid in determining whether this “substantial likelihood test” is implicated. First, part (b) of the Rule provides a list of types of information that a lawyer may publicly communicate, with six types of information that are generally applicable and four additional types applicable only to criminal trials.22 second, Comment 5 to Model Rule 3.6 provides a list of six improper types of extrajudicial statements.23 Finally, Comment 6 considers the importance of the nature of the proceeding in determining whether extrajudicial statements will prejudice the proceeding, finding criminal jury trials to be the most sensitive to extrajudicial statements.24

Model Rule 3.6 does contain an exception for extrajudicial statements made to protect a client from undue prejudicial effect of adverse publicity.25 This exception requires that: (1) the adverse publicity was not initiated by the lawyer or client; (2) a “reasonable lawyer” would believe a statement is required to protect the client from “substantial undue prejudicial effect;” and (3) the statement is limited to the information necessary to mitigate the recent adverse publicity.26

Rule 3.6 addresses a number of competing interests, most notably a balance between a defendant’s right to a fair trial and an attorney’s right to free expression.27 The rule is based on the following three grounds.

INTRODUCTION

In the spring of 2004, federal prosecutors sought the cooperation of Matthew Cooper of Time magazine and Judith Miller of the New York Times in revealing the name of their confidential source who disclosed that Valerie Plame was a Central Intelligence Agency operative.1 Plame’s name was leaked to the press by senior government administration officials, in apparent retaliation for an article Flame’s husband wrote criticizing the administration.2 Cooper and Time eventually cooperated with investigators, but Miller refused to divulge her source and spent eighty-five days in jail for contempt.3

The subpoena of such high-profile journalists comes during a time of low public confidence in the media as well as uncertainty regarding exactly what type of legal protection is afforded to journalists seeking to protect confidential sources.4 This Note advocates the formation of a stronger and broader reaching reporter’s privilege so as to better protect confidential sources. The technicalities of creating the privilege and determining exactly what should lie within the privilege’s scope falls outside the reach of this Note, however. Rather, this Note looks to the well-established and well-maintained attorney-client privilege as a basis for advocating for the strengthening and broadening of the reporter’s privilege-during a time in which it has come under fire-because of the public policy benefits it provides to society.

This Note is divided into three parts. Part I traces the origins and developments of the two privileges, noting the contrast between the attorney-client privilege’s deep roots in notions of a contractual and ethical relationship between attorneys and their clients, and the lack of such a foundation in the reporter’s privilege. Part II summarizes the current state of each privilege, noting that the attorney-client privilege receives broad and uniform treatment in courts, whereas the state of the reporter’s privilege is much more unsettled. Part III points out the problems that arise from application of both privileges and argues that just as the benefits derived from the attorney-client privilege are deemed to outweigh its downsides, so too do the benefits of the reporter’s privilege outweigh the problems that may surface in its application. This section concludes by noting that although the reporter’s privilege may lack strong historical foundations, today it enjoys constitutional, legislative, and judicial support, each of which are strong factors favoring broad recognition.

I. HISTORY AND DEVELOPMENT OF THE PRIVILEGES

A. ATTORNEY-CLIENT PRIVILEGE

The attorney-client privilege precludes disclosure to third parties of communications between attorneys and their clients.5 The privilege’s foundation lies in the contractual and ethical relationship between lawyers and their clients. The concept of the privilege, however, first arose in Roman law, which stated that slaves could not reveal their masters’ secrets.6 Perhaps somewhat unceremoniously grouped with slaves and servants, attorneys too, were not permitted to testify against their “masters,” so as to avoid corruption and promote notions of confidence and trust within a master’s family.7 Elizabetheans in fifteenth century England narrowed the scope of the privilege to protect only communications made in the course of an attorney-client relationship; an attorney, it was reasoned, took a “code of honor” and refused to turn “informer” against a client.8

The rationale underlying the privilege changed in eighteenth century England, as notions of oath and honor to the client were supplemented by the goal of promoting an attorney’s fact-finding process.9 American jurisprudence espoused a similar rationale when it adopted the attorney-client privilege, for its purpose was to “promote freedom of consultation of legal advisers by the clients” and “remove the apprehension of compelled disclosure by the legal advisers.”10 Thus, this aspect of the privilege honors the sanctity of the contractual relationship, based on the theory that the quality of attorney representation relies upon open and frank communication with a client. Additionally, the privilege retains the traditional belief that an attorney takes on an ethical obligation-an “oath”-not to violate a client’s trust and confidence.

B. REPORTER’S PRIVILEGE

The reporter’s privilege protects both the source of information and the information that is provided in confidence to reporters. Unlike the attorney-client privilege, however, the reporter’s privilege lacks the ethical and contractual foundations of the attorney-client privilege. Journalists have sought to protect confidential sources since at least 1848, when a reporter refused to reveal the identity of a source who gave him a draft of a secret treaty.11 Various motivations spurred these early claims for recognizing a reporter’s privilege. First, journalists hoped to elevate the status of their profession. As Stephen Bates argues, the issue of reporter’s privilege first arose during the “dawn of the nation’s age of professionalism,” and journalists who sought a privilege were “equating their work, and its social value” to that of more established professions with certain protections, such as attorneys.12 second, and more persuasively, journalists argued that protecting a promise of confidentiality to a source ensured a greater flow of information to the press; no protection for confidential sources, they reasoned, would result in a chilling effect, causing sources to be afraid to speak with reporters.13 Third, some reporters opted for a more ethical route, claiming that the “norms of their profession” and “personal codes of honor” mandated that they not reveal confidential sources.14 Although early court decisions generally did not recognize a reporter’s privilege, state legislatures began enacting statutory shield laws granting reporters protection of confidential sources as early as 1896.15

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.”

Lasar v. Ford Motor Co., - F. Supp. 2d -, No. CV 99-177-M-WNM, 2003 WL 29882 (D. Mont. Jan. 2, 2003).

A U.S. district court granted a mistrial and imposed sanctions against a defense attorney who used his opening statement to suggest that plaintiff might have been intoxicated at the time of his automobile accident.

Here, Lasar was injured when the 1986 Ford Ranger pickup truck he was driving rolled several times. He filed a products liability suit against Ford. The judge ruled there was no evidence to establish that plaintiff was intoxicated at the time of the accident, and excluded any evidence of his alcohol consumption from the trial.

In his opening statement, defendant’s lawyer told the jury that plaintiff and friends “spent the day playing pool, visiting some local establishments,” and that plaintiff “made the decision to drive himself home.” Plaintiff moved for a mistrial, arguing that defense counsel was suggesting that plaintiff’s injury was caused by alcohol use.

Granting the motion, the court said that defendant’s lawyer had set forth a series of facts in his statement from which the jury was expected to draw logical inferences. The statement that plaintiff had been playing pool and visiting “establishments” was clearly intended to suggest that he had been drinking at several bars. Had the attorney been referring to churches or restaurants, he would have said as much, the court said.

Similarly, the comment that plaintiff “made the decision to drive himself home” implies that plaintiff made a conscious decision to drive even though he knew he was intoxicated. There is no reason for using the phrase “made the decision” unless defense counsel was attempting to imply that plaintiff made an incorrect decision when he decided to drive home.

In a products liability case, the focus must be on the design of the product, not the conduct of the parties, the court said. Here, defendant not only failed to establish any causal link between the accident and any alcohol use by plaintiff, it admitted that it did not have any evidence that plaintiff was intoxicated. Defendant’s opening comments regarding alcohol show contempt for the court’s orders precluding any mention of alcohol use, the court concluded.

Accordingly, the court granted a mistrial, cited defense counsel for contempt of court, and sanctioned defense counsel and his client.

Plaintiff’s Counsel

*Patrick Ardis, Memphis, Tenn.

Paul Meismer, Missoula, Mont.

*Michael Weisman, Boston, Mass.