Kennedy on Haynes Nomination
Statement before the Senate Judiciary Committee
"Two years ago, when our committee met to consider Mr. Haynes for the Fourth Circuit, I opposed his nomination. Since then, we have learned far more about him, despite his consistent refusal to provide additional information or even to appear before this committee or any other committee in his capacity as General Counsel of the Department of Defense. Every new piece of information has strengthened the case against him.
Time and again, on some of the most fundamental questions of law and policy that have come before the Department of Defense, Mr. Haynes has displayed a shocking failure of legal and moral leadership. It is astounding that the Administration would continue to press his nomination, even though the subordinates who have followed the policies he authorized have gone to prison.
At the Pentagon, Mr. Haynes worked closely with David Addington, John Yoo and others to develop and implement policies on prisoner detention, executive power, and torture that made a mockery of the rule of law. Based on incompetent legal reasoning, these actions represented such appallingly bad policy that most of them have been categorically repudiated by the Congress, the Supreme Court, and even the President himself:
* On torture, Mr. Haynes was personally responsible for the adoption of the Bybee Torture Memo as official Defense Department policy. First pursuing a harsh interrogation policy without consulting career military lawyers, he subsequently yielded to significant internal pressure and convened a working group to study the use of harsh interrogation techniques at Guantanamo, but later, he secretly forwarded a sham version of the working group's final report to Secretary Rumsfeld that closely followed the Bybee Torture Memo, without even informing dissenting administration and career military lawyers who were supposedly members of the working group. Yale Law School Dean Harold Koh, testifying before this committee, has called the Bybee Torture Memo "perhaps the most clearly legally erroneous opinion I have ever heard," and "a stain on our law", and it has been repudiated by the Administration and the Attorney General.
* Mr. Haynes also failed to provide people captured on the battlefield with an immediate determination of their POW status. He ignored these hearing requirements in spite of the unequivocal warnings of scores of high-ranking military officials, including the senior Judge Advocates General of all the services and the legal advisor to the Chairman of the Joint Chiefs of Staff. We're now paying the price for that failure, trying to recreate those tribunals three or more years after capturing these combatants, when we should be prosecuting and convicting many of these individuals as terrorists.
* In addition, Mr. Haynes played a key role in establishing the fatally flawed military commissions process. Instead of following established procedures for trying war criminals, Haynes and the Department ignored Congress and pursued a unilateral, unworkable commissions system. According to the Justice Department, 261 terrorists have been convicted in the civilian criminal justice system since 9/11 while not a single conviction has been obtained under the defective military commissions. Last week, the commissions process was invalidated by the Supreme Court, which held it unconstitutional.
* Mr. Haynes and his colleagues in the administration claimed that no American court could review the designation of an American citizen as an enemy combatant. Mr. Haynes is accountable for this policy since it was executed by the military, not the Justice Department. In the Padilla case, the Administration claimed in court documents that their "determinations on this score are the first and final word", notwithstanding the Constitution. The Fourth Circuit rejected that position as absurd.
* Mr. Haynes has also interfered with Congress's ability to perform oversight over detainee issues. Despite a standing invitation, he has never appeared before the Armed Services Committee in direct contravention of his statement in pre-confirmation questions indicating that he would appear before the committee when called.
* In addition, Mr. Haynes has ignored laws requiring protecting whistleblowers be protected from retaliation. Bunnatine Greenhouse, the highest ranking civilian in the Army Corps of Engineers, was demoted in retaliation for blowing the whistle on Halliburton's no-bid contracts.
In ways like these, Mr. Haynes' actions as General Counsel of the Department of Defense have caused irreparable harm to our military, our foreign policy, and our reputation in the world. On torture, General Thomas Romig, the head of the Army Judge Advocate General Corps, wrote that "implementation of questionable techniques will very likely establish a new baseline for acceptable practice in this area, putting our service personnel at far greater risk and vitiating many of the POW/detainee safeguards that the U.S. has worked hard to establish over the past five decades."
The Guantanamo issue has continued to fester, becoming a blight on our international image, and has led to rebukes by the International Red Cross and the U.N. Human Rights Commission. The invalidated commissions process for handling Guantanamo detainees never produced a single conviction or even a charge against a high-ranking Al Qaeda figure in five years.
The nomination of Mr. Haynes to the Fourth Circuit is as embarrassing as any that has ever come before this Committee. His record clearly shows a deplorable lack of commitment to fundamental rights and the principle of separation of powers that we all expect from the federal courts. Former Chief Judge Advocate General of the Navy, Rear Admiral John D. Hutson, has said that "[i]f civilian leadership of the military means anything at all, it must mean there is accountability for failures such as his." If we aren't going to hold Mr. Haynes accountable, let us at least deny him a promotion to a lifetime seat on the federal bench. I urge my colleagues to reject this nomination."
Following today's Judiciary Committee on the controversial judicial nomination of William J. Haynes, Senators Kennedy and Feinstein sent the following letter calling for more hearings so that the Committee can hear testimony from the twenty high-ranking former military leaders who have spoken out against his confirmation. The Senators contend that when a nominee to high judicial or executive office has been alleged to have engaged in serious and disqualifying activities, hearings should be extended, as they have in the past, and witnesses with first-hand knowledge of the facts should be invited to appear.