NO ISSUES have dominated recent political debate more than the fight over President Bush’s judicial nominees and the controversy over U.S. treatment of detainees in the war on terrorism. The two issues will merge when the Senate considers the nomination of William James Haynes, general counsel of the Department of Defense, to the U.S. Court of Appeals for the Fourth Circuit.
When the gang of 14 senators struck their deal on filibusters a few weeks ago, Haynes was neither among the three whose confirmation was assured nor among the two who apparently will be thrown overboard. However, the compromisers agreed not to countenance a filibuster of any nominee who does not present “extraordinary circumstances.” No such circumstances justify a filibuster of Haynes.
Haynes is a first-rate lawyer and a patriot. His career represents an unusual blend of high-power law firm and corporate experience, service to the disadvantaged, and service to country. Haynes’ résumé includes: partner in a prestigious law firm; senior executive and associate general counsel at General Dynamics Corporation; volunteer consultant for a non-governmental relief organization in Kazakhstan; pro bono counsel to indigent clients in criminal cases; active duty captain in the United States Army; general counsel of the Army; and for the last four years general counsel of the Department of Defense. The American Bar Association has twice given him its highest rating, and he has been endorsed by Floyd Abrams, one of our foremost First Amendment advocates.
Democrats nonetheless oppose Haynes because of legal advice he transmitted as general counsel of the Defense Department regarding the torture of detainees. That advice was based on a memorandum prepared by the Justice Department’s Office of Legal Counsel (OLC) at the request of Alberto Gonzales, then White House counsel and now attorney general.
The OLC reportedly prepared its memorandum in the context of requests to bring additional pressure to bear on a key terrorist, Abu Zubaydah, who had turned uncooperative. It is quite possible that information obtained using tactics approved in the memorandum saved lives.
However, as a legal matter the OLC’s advice was problematic, and no longer represents the Justice Department’s position. For one thing, the memorandum reached the dubious conclusion that for the infliction of physical pain to amount to torture, the pain must be “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” In addition, the memorandum took the controversial position that even acts that meet this high threshold, and thus are clearly barred by statute, may be exempt from prosecution in the context of the war against terrorism because enforcement of the statute in that context would represent an unconstitutional infringement of the president’s authority to conduct war.
On April 4, 2003, a Defense Department “working group” under Haynes’s direction issued its report on Detainee Interrogations in the Global War on Terrorism. The report tracked the legal analysis of the OLC memorandum and made recommendations with respect to 35 specific interrogation techniques. None of the techniques approved by the working group constitutes torture as defined by the OLC memo. Nor did the group approve sexual humiliation, as occurred at Abu Ghraib, or the controversial practice of “water-boarding.”
It is difficult to make a principled argument that Haynes’s legal advice amounts to an “extraordinary circumstance” that justifies filibustering his nomination. The OLC, not the Department of Defense, has the statutory authority to develop the government’s position on this matter. Thus, Haynes acted properly in providing advice that followed the OLC’s analysis. Indeed, providing legal advice inconsistent with that of the OLC would have demonstrated a lawlessness that might constitute an “extraordinary circumstance.”
Those who nonetheless contend that Haynes can be filibustered in good faith under the “extraordinary circumstances” exception should be asked to reconcile that position with the confirmation, without a filibuster, of Alberto Gonzales as attorney general. Gonzales’s confirmation occurred prior to the “deal” and did not involve a judgeship. Thus, the gang of 14 was free to filibuster his nomination even in the absence of extraordinary circumstances. Yet none did. This is significant because Gonzales’s role with respect to the legal positions contained in the OLC memorandum is more problematic than Haynes’s. The memorandum, after all, was prepared for Gonzales, who at the time was the president’s counsel. Gonzales arguably was in a position do something about what OLC wrote; Haynes was not.
As a practical matter, however, the seven Democrats in the gang of 14 are free to plead “exceptional circumstances” and support a filibuster of Haynes regardless of the merits. And they may well do so. The confirmation of several strongly conservative nominees has caused the Democrats’ liberal base to question the wisdom of the deal. Collecting only the two scalps which are already considered severed will not change this perception. And given the frenzy into which the left has worked itself over Guantanamo Bay and interrogations generally, Haynes may be the next target.
The question thus becomes whether Republican members of the gang will rescue Haynes. It is difficult at this point to imagine the Republican deal-makers getting behind the nuclear option in order to salvage any one court of appeals nominee. Moreover, a key Republican in the gang, Senator Lindsay Graham, may have problems with Haynes over the issue of detainee interrogation. Graham represents South Carolina, one of our most pro-military states. In the past, however, some career military personnel reportedly have raised concerns about the authorization by civilian leaders at the Pentagon of unusually coercive interrogation practices. Thus, Graham may feel that there is little political cost associated with letting Haynes be derailed.
But the tide may be turning, as attacks on American detention practices become increasingly shrill and the analogies drawn (with the Soviet gulag and the Holocaust) increasingly slanderous. Reasonable people can criticize our government’s efforts to strike the correct balance between humane treatment of prisoners and the need to obtain information. But today, with the original OLC memo revoked, Defense Department policy calling for reverential treatment of the Koran, and reports of abuse painstakingly investigated with confirmed instances punished, the ongoing attacks are seen by most who respect the military for what they are–manifestations of the “America does nothing right” mentality.
Thus, Thomas Cadmus, the National Commander of the American Legion has written a piece castigating the ACLU for its highly distorted claims about torture, and its series of lawsuits against Secretary Rumsfeld and Haynes. And the July issue of the American Legion’s magazine, to be sent to the Legion’s 2.7 million members, will feature Haynes.
It was around this time last year that veterans emerged as a potent political force in reaction to the candidacy of John Kerry, who had slandered the military all those years ago. The attempt by the left unfairly to impugn our military today may now bring about a similar reaction. And that might make the political cost of sacrificing Haynes too high to pay.
Paul Mirengoff is a contributor to the blog Power Line and a contributing writer to The Daily Standard.
