Paul Clement and the Guantanamo Lawyers

By Benjamin Wittes
Monday, April 25, 2011, 8:27 PM

For what it's worth, I hate the Defense of Marriage Act and always have. I want it repealed and will shed no tears if it gets struck down in the courts. On its face, moreover, what happened today between former Solicitor General Paul Clement and his now-ex-law firm, King & Spalding, has nothing whatsoever to do with the subject matter of this blog. Yet I think it's important today to stand up for what Clement did--that is, resigned when King & Spalding this morning pulled the plug on his defense of DOMA--and to insist that it actually does have something to do with the subject of this blog.

Barely a year ago, I found myself writing this statement in defense of Justice Department attorneys who had previously represented Guantanamo detainees. For present purposes, the important passages are the following:

The American tradition of zealous representation of unpopular clients is at least as old as John Adams’s representation of the British soldiers charged in the Boston massacre. . . . The War on Terror raised any number of novel legal questions, which collectively created a significant role in judicial, executive and legislative forums alike for honorable advocacy on behalf of detainees. . . .

Good defense counsel is . . . key to ensuring that military commissions, federal juries, and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests.

To delegitimize the role detainee counsel play is to demand adjudications and policymaking stripped of a full record. Whatever systems America develops to handle difficult detention questions will rely, at least some of the time, on an aggressive defense bar; those who take up that function do a service to the system.

These points all apply to this case as well. Sometimes, the politically unpopular client is the House of Representatives, not a Guantanamo detainee. Sometimes, the contested legal questions are not ones related to counterterrorism but involve marriage and equality and tradition. But good counsel is still critical to ensuring that tribunals have access to the best arguments and most rigorous factual presentations before making crucial decisions. When interest groups pressure law firms to drop such representations, they are still demanding adjudications stripped of a full record--or objecting to the right of their opponents to have adjudications at all. And if major law firms will buckle under such political pressures before defending a (rightly, in my view) disfavored federal statute, can anyone really imagine that they will not also abandon other disfavored clients?

Paul is a friend. I do not know his personal views on DOMA and would never ask them. But I ask readers to consider whether we would consider what King & Spalding did in this matter honorable had the firm done it to a different firm client--say, Mohammed Al Adahi--and how we would consider a lawyer who resigned in protest if it did.

Paul's letter of resignation is available here.