More on Paul Clement and the Guantanamo Lawyers

By Benjamin Wittes
Tuesday, April 26, 2011, 8:05 AM

One of the few bright spots when the flap over the Justice Department lawyers who previously had Guantanamo clients broke last year was the rapidity with which prominent conservatives denounced the attacks once given the chance by the statement I drafted. As I later described it in the New Republic,

The overwhelming response from centrists and conservatives would have been more overwhelming still had the statement not leaked before I was ready to release it, thus forcing me to let it go early. Still, it included a large number of moderate, conservative, and very conservative luminaries of the bar who work in this area—many of them members of the prior administration, and all of them wanting to have the debate over law and terrorism on a civilized basis; that is, on the merits of difficult issues.

It is very important in situations like this for prominent members of the bar of the opposite party, ideology, and perceived position on the specific issues at hand to take strong and public stands in support of the right of unpopular clients to vigorous representation and for the value to our system of attorneys' undertaking such representations. For this reason, I was heartened this morning to see National Public Radio reporting these comments from Seth Waxman and Steve Gillers on the situation that developed yesterday between Paul Clement and King & Spalding:

NYU Law professor Stephen Gillers, a specialist in legal ethics, says Clement was "entirely right," and that "King & Spalding was scared off by the prospect of becoming a pariah." Former Clinton administration Solicitor General Seth Waxman, whose firm is on the other side of the DOMA case in opposition to the law, added that Clement's representation in support of DOMA "is in fact in the very highest and finest traditions of our legal system."

In the New York Times, Gillers goes further--making a similar point to the one I made last night:

But Stephen Gillers, an expert in legal ethics at the New York University law school, said the firm caved in, adding that the “firm’s timidity here will hurt weak clients, poor clients and despised clients.”

UPDATE: When I wrote this post, I was unaware of these more extensive comments from Seth Waxman, published on the Washingtonian's web site:

Seth Waxman, a partner at WilmerHale who served as solicitor general during the Bill Clinton administration, agrees. “I think it’s important for lawyers on the other side of the political divide from Paul, who’s a very fine lawyer, to reaffirm what Paul wrote. Paul is entirely correct that our adversary system depends on vigorous advocates being willing to take on even very unpopular positions. Having undertaken to defend DOMA, he’s acting in the highest professional and ethical traditions in continuing to represent a client to whom he had committed in this very charged matter.” Waxman’s firm is fighting against DOMA in one of the lawsuits challenging the statute.