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Sunday, Nov 8, 2009
Paul Clement has what the Washington legal newspaper Legal Times calls a "perfectly appointed conservative résumé." And indeed, before Attorney General John Ashcroft appointed him to the No. 2 job in the Solicitor General's Office, Clement had built a career as a well-connected insider in Washington's Republican legal circles.
After graduating from Harvard Law School, Clement clerked for Laurence Silberman -- the controversial D.C. Circuit judge Bush has appointed to head the inquiry into pre-war intelligence on Iraq -- and then for Supreme Court Justice Antonin Scalia. He took a job working for Kenneth Starr at Kirkland & Ellis in Washington, but missed the chance to work under him when Starr left to become the Whitewater (and later Monica Lewinsky) independent counsel. He later worked for John Ashcroft in the U.S. Senate, then returned to private practice at King & Spaulding, where he collaborated on legal briefs that took the side of the Republicans in the Supreme Court case of Bush vs. Gore.
As the principal deputy solicitor general, Clement has been assigned to oversee the Bush administration's most critical terrorism-related cases. Having argued the cases of alleged "20th hijacker" Zacarias Moussaoui in Virginia and alleged dirty-bomb plotter Jose Padilla in New York, Clement was a natural choice to appear on behalf of Rumsfeld when the Supreme Court took up the cases of Padilla and his fellow "enemy combatant," Yaser Hamdi, in April.
The question is, what did Clement know when he climbed the steps of the Supreme Court building on the morning of April 28? Did he know what his client knew -- that the Department of Defense was investigating grave abuses at Abu Ghraib, that the brigadier general in charge of the prison had already been removed from her post? Did he know what his client's staff knew -- that Joint Chiefs chairman Myers had been working to keep CBS from broadcasting photographs of the abuse? Or did he know what the New York Times says some of his colleagues at the Justice Department knew -- that the Bush administration, with the approval of the Justice Department, had instituted policies allowing the CIA to use "severe" interrogation techniques on detainees suspected of being high-level al-Qaida members?
The Justice Department won't say. An employee in Clement's office referred a call from Salon last week to Justice Department spokesperson Monica Goodling. Asked what Clement or Ashcroft knew of the Abu Ghraib situation at the time of oral arguments in the Hamdi and Padilla cases, Goodling said: "We wouldn't have any comment." Pressed further, Goodling said the Justice Department would not have any comment at all about the Padilla or Hamdi cases.
Jenny Martinez, the Stanford Law School professor who represented Padilla in the arguments before the Supreme Court on April 28, says there are just two ways to explain Clement's representations to the court. "When Mr. Clement said to the court that we wouldn't engage in that kind of behavior, either he was deliberately misleading the court or he was completely out of the loop. Either one would be disturbing when the government's main argument is 'trust us.'"
Lawyers involved in the Padilla case and others who are watching it carefully tend to believe that the latter explanation is the right one. Clement has a reputation as a straight shooter, and they say it's unlikely that he would have misled the court intentionally.
Even James Fitzpatrick, the Washington lawyer who first called attention to Clement's comments in a May 6 letter to the Washington Post, told Salon he has "no reason to think" that Clement was "dissembling." Although Fitzpatrick argues that Gen. Myers "deprived the country of a full and forthright oral argument before the Supreme Court" by successfully delaying CBS's broadcast of the Abu Ghraib photographs, he does not lay the blame at the door of Clement or his colleagues in Ted Olson's Solicitor General's Office. "The guys in the S.G.'s office are of unimpeachable integrity," Fitzpatrick said. "It's highly unlikely that information [about Abu Ghraib] would have come across their path."
Still, it's hard to imagine that someone as dialed in as Clement is -- someone so well connected, someone so immersed in the legalities of the war on terror, someone with such a reputation for immersing himself in the facts of the cases he handles -- could have been so clueless about the government's interrogation practices and policies, especially as the Pentagon was scrambling to deal with the damning report on Abu Ghraib prepared by Maj. Gen. Antonio Taguba.
"If what we're to believe is that the Solicitor General's Office was not aware of the existence of a Pentagon report that was floating around at the highest levels of government months before oral argument, a report that said that the United States was engaging in torture -- well, that's not a good answer," said Deborah Pearlstein, a lawyer for Human Rights First.
Eric Muller, a former federal prosecutor and University of North Carolina law professor, said he believes that there's enough information in the record now to warrant a congressional inquiry into whether Clement made a "knowingly or recklessly false assertion to the United States Supreme Court in order to bolster the government's legal position" in the enemy combatant cases.
Muller made his call for an investigation in an entry in his blog last week, setting off a small but fast-growing brushfire in the closely linked legal blogosphere. Some writers have leapt to Clement's defense, arguing that when he assured the court that "our executive" doesn't engage in what Justice Ginsburg called "mild torture," Clement was suggesting only that the practices the administration has approved do not meet a narrow legal definition of "torture," at least as the word has been interpreted by the Justice Department.
Muller doesn't buy it. "In a response to a question from Justice Stevens, Clement gave assurances not just that the executive wasn't engaged in torture as it might be legally or technically defined, but that the government wasn't engaged in torture 'or that sort of thing,' and he said the government wouldn't want to 'torture somebody or try to do something along those lines,'" Muller told Salon. "It's quite clear to me that Clement was not subjectively, in that moment, speaking of some narrowly defined legalistic concept called 'torture.' He was referring to a more ordinary, everyday, pedestrian use of 'torture' as 'really nasty, brutal, unseemly interrogation practices.'"
