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Streetcar Line

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And as Haynes described it, "The additional seven were highly regulated, two of which, arguably, were restatements of one or two of the 17 basic techniques." Those extra seven were approved only for use with the terrorist combatants being held at Guantanamo Bay. And not a single one of those 24 techniques involves anything like "torture" as the word is commonly used: no infliction of pain or severe emotional degradation.

One result of the approved techniques was that interrogators finally were able to secure useful information from so-called "20th hijacker" Muhammad al Katani, information which almost certainly saved lives.

Meanwhile, for those of my colleagues obsessed with the abuse at Abu Ghraib, the facts are these: First, the memo in question applied only to Guantanamo Bay, not to Abu Ghraib, which was governed by the Geneva Conventions. And every official investigation of Abu Ghraib, in Captain Haynes' accurate words, "found that those abuses were not a result of policies within the Defense Department; indeed, they were in direct violation of all policies. Indeed, the abuses at Abu Ghraib were not done by interrogators at all," but as a sick lark by low-level soldiers serving as prison guards.

So what we have here is a nominee being held up because of a memo that he not only did not write but also did not adopt without significant modification, and being blamed for "torture" in a place to which the memo did not even apply, against the rules the nominee approved, carried out by people completely unaware of the memo, which memo itself did not, repeat not, express an approval of torture. Furthermore, of the 20 former JAG Corps who so notably oppose Haynes, the nominee has only ever worked with two of them, and one of those a full 15 years ago. But retired Army Major Gen. Michael Marchand, who has worked closely with Captain Haynes, wrote of him that "in my experience, Mr. Haynes has been more inclusive of the Judge Advocates General and the senior service lawyers of the armed services than any General Counsel of the Department of Defense."

Meanwhile, I don't necessarily hold the American Bar Association in high esteem for its ratings of judicial nominees, because the ABA is biased against conservatives -- but when even the ABA committee rates this conservative, not once but twice, "well qualified," which is its highest rating; and when the Senate twice has unanimously confirmed him for other posts...well, both of those things say that the nominee's qualifications are superb.

His nomination is endorsed not just by conservative Republicans but by Democrats such as former U.S. Sen. Bill Hathaway of Maine, former U.S. Attorney Griffin Bell, liberal Pentagon Papers attorney Floyd Abrams, and Thurgood Marshall Jr. Why, then, should it be politically tough to stand with such a nominee?

THE UNDERLYING PRINCIPLES OF THIS situation are these: First, a man who has served his country long and well and with integrity, who is by all accounts well credentialed, and who has already once been approved by the Senate Judiciary Committee, deserves to have the full Senate debate his nomination -- especially when the only black mark against him isn't black at all, but a record of taking seriously his job as an attorney trying to figure out the new rules in a war against terrorists who would destroy our American freedoms and our lives.

Second, judicial nominees who reach the floor are entitled, by 214 years of tradition and by clear intent of the Constitution and the explanations of the Founders, to an actual, up-or-down, vote-by-simple-majority on the floor of the Senate. My Republican colleagues who abide by unconstitutional filibusters of judicial nominees are defending never-before-used senatorial "prerogatives" against the clarion call of fidelity to constitutional intent -- the intent being that judicial nominees be accepted or rejected by majority vote.

The amazing thing is that, as is so often the case, the principles involved actually complement the politics involved, and both are supported by the actual substance of the dispute -- and yet my colleagues, out of fear of Abu Ghraib, are forswearing substance, principle and politics at the same time.

Demagogues might accuse my colleagues who oppose Captain Haynes of being "soft on terrorism." But at the very least, my colleagues' logic and principles are soft-headed. In contrast, it is the voters who might give them a hard time, a deservedly hard time, for blocking a nominee who is superbly qualified for the bench and who has helped keep us all safe from terrorists' murderous schemes.

topics:
John McCain, Islam, Constitution, Law, Supreme Court, Iraq, Israel, NATO