George W. Bush announced this morning that Solicitor General Paul Clement will serve as acting attorney general until he nominates and the Senate confirms a permanent replacement for Alberto Gonzales.
If you think Clement will be some sort of breath of fresh air, think again.
Clement has served as acting attorney general in a limited way before, overseeing the Justice Department's responses to congressional investigations into the firing of U.S. attorneys and other matters after Gonzales and Deputy Attorney General Paul McNulty both were forced to recuse themselves. In that role, Clement has helped arm the White House with the legal arguments it has been using to stonewall Congress on documents it wants to see and witnesses it wants to question.
Our concern about Clement is of a slightly older vintage. When Clement appeared before the Supreme Court on behalf of Secretary of Defense Donald Rumsfeld in the Jose Padilla case on April 28, 2004, skeptical justices asked him about the risk that a detainee like Padilla might be abused while in custody. Clement's response: "Where the government is on a war footing ... you have to trust the executive to make the kind of quintessential military judgments that are involved in things like that." When Justice Ruth Bader Ginsburg noted that some governments engage in "mild torture" to obtain information from detainees, Clement shot back: "Well, our executive doesn't."
Eight hours later, CBS News aired the first photographs of U.S. soldiers abusing detainees at Abu Ghraib.
The questions we asked at the time: Did Clement know, at the time of the Padilla argument, that the Department of Defense was investigating grave abuses at Abu Ghraib? Did he know that Joint Chiefs chairman Richard Myers had been working to keep CBS from broadcasting photographs of the abuse? Did he know, as some of his colleagues at Justice did, 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?
We don't have answers to those questions today. We certainly didn't have them back then. When we raised them with Clement's office in 2004, we were referred to a Justice Department spokeswoman who told us, "We wouldn't have any comment." The spokeswoman's name? Monica Goodling.