Memo to U.S. Sen. Lindsey Graham, chief roadblock to the
nomination of Pentagon General Counsel W. James Haynes II for the
U.S. Fourth Circuit Court of Appeals: If you, senator, will push
through the nomination of this supremely qualified attorney, I will
volunteer to undergo any five of the interrogation techniques
recommended by Haynes that you, senator, seem to so obstinately
oppose.
Make that any ten of them.
No, I’m not a masochist. The point is that Sen. Graham’s
objections are much ado about nothing. While fulminating against
“torture,” Graham has blocked the nomination of a lawyer
responsible for limiting the interrogation methods to be
used against “unlawful enemy combatants” (read: “almost certainly
terrorists”) to ones mild enough that I, a humble scribe, would not
mind being subjected to them.
To confuse those interrogation techniques with torture is akin
to confusing a church-picnic three-legged race with a marathon.
Here’s the background: As the American military sifted through
prisoners/terrorists taken in the course of liberating Afghanistan,
it sent a tiny proportion of them — based on their danger to
Americans and the value of the intelligence apparently to be
gleaned from them — to the base at Guantanamo Bay, Cuba, for
further interrogation. As these prisoners were not regular
soldiers, the interrogators wondered what rules applied to the
questioning of them. The interrogators sent through the chain of
command a request for approval of a number of techniques. The
Justice Department, not the Defense Department, pronounced most of
the techniques legal. Defense Secretary Donald Rumsfeld approved
them (with a number of appropriate safeguards) on Dec. 2, 2002.
And by the way, “waterboarding” was not, repeat
not, among those approved by the
secretary.
Enter Haynes. Receiving complaints from other observers and
policy-makers about some of the techniques, he was instrumental in
convincing Rumsfeld to allow a full review of the legality
and the wisdom of all of them. The review was conducted
over the course of nearly three months by a broad cross section of
legal and military personnel, of intensely varying opinions (at
least to begin with).
As a result of the review led by Haynes, nine of the original 35
approved techniques were disallowed for ordinary use at
Guantanamo. (Secretary Donald Rumsfeld eventually cut two more from
the list.) In other words, Haynes’s work was responsible for going
the extra mile to keep the interrogations well within humane
bounds.
Of the 26 techniques that were recommended by the working group,
18 already had been part of the officially approved armed forces
field manual for many years.
The other eight were and are well within reason.
To get a sense of how careful, how humane, are the approved
interrogation techniques, consider some of the nine that Haynes’s
review rejected for being too harsh:
“Prolonged Standing: Lengthy standing in a
‘normal’ position (non-stress). This has been
successful, but should never make the detainee exhausted to the
point of weakness or collapse. Not enforced by physical restraints.
Not to exceed four hours in a 24-hour period.”
“Physical Training: Requiring detainees to
exercise (perform ordinary physical exercises actions —STET)
(e.g., running, jumping jacks); not to exceed 15 minutes in a
two-hour period; not more than two cycles, per 24-hour periods.
Assists in generating compliance and fatiguing the detainees. No
enforced compliance.”
“Isolation: Isolating the detainee from other
detainees while still complying with basic standards of
treatment.”
Again, though, those techniques were not recommended to
Rumsfeld. Presumably, Sen. Graham’s objections stem from the
procedures that were approved. But (dear reader), consider
three of the harshest of them, and see if they seem out of line —
out of line, that is, for questioning hardened combatants who,
after a great deal of research by trained personnel, are believed
to possess information that could mean the difference between
saving or losing hundreds or thousands or many thousands of
American lives:
“Sleep Adjustment: Adjusting the sleeping times
of the detainee (e.g. reversing sleep cycles from night to day).
This technique is NOT sleep deprivation.”
“Dietary Manipulation: Changing the diet of a
detainee; no intended deprivation of food or water; no adverse
medical or cultural effect and without intent to deprive subject of
food or water, e.g. hot rations [replaced by] MREs.”
“Environmental Manipulation: Altering the
environment to create moderate discomfort (e.g. adjusting
temperature or introducing an unpleasant smell). Conditions would
not be such that they would injure the detainee. Detainee would be
accompanied by interrogator at all times.”
Read that last one again: The interrogator would be
subjected to whatever conditions the detainee is. That’s about
as sure a protection against “torture” as could possibly exist.
If Sen. Graham’s sensibilities are offended by these techniques,
maybe the senator ought himself to take refuge in a place safer
from the cold, hard, world. Perhaps the shop of the nearest
manicurist would suffice.
THE TRUTH APPARENT TO ANY FAIR-MINDED person who examines the
voluminous record is that Mr. Haynes conducted a full, thorough,
wide-ranging, fair-minded, and absolutely superb review that
carefully balanced the legal, technical, military, intelligence,
and (not least) philosophical considerations involved in a
brand-new form of conflict — and did so in a way that was a credit
to the nation he serves. If anything, the working group led by
Haynes erred not on the side of brutality, but on the side of
leniency.
So what is really eating Sen. Graham? Methinks he is carrying on
a private vendetta in the public realm. Graham is a longtime member
of the Air Force Judge Advocate General Corps. The JAG divisions
have intra-departmental rivalries with the various general
counsel’s divisions in each of the branches of the armed forces.
But the General Counsel of the Air Force (in effect, the head of a
bureaucratically rival line of lawyers in the Air Force umbrella)
was given the top job of “convening” the working group.
Lindsey Graham is carrying the water not for humane
international standards of detainee treatment, but for his buddies
in an intra-department rivalry. It’s the sort of thing seen in high
schools across the country, where the soccer players vie against
the cross-country runners for greater accolades and attention, or
the science geeks and the debaters struggle against each other for
the greater approval of the school administration.
Asked several times yesterday, politely, which specific
techniques the senator opposes, Sen. Graham’s spokesmen refused
comment.
At stake here are a number of important considerations. First is
that the once-conservative, 15-member Fourth Circuit now has three
vacancies, all of them formerly held by conservatives, with a
fourth and fifth on the way. Philosophical dominance on the court
hangs in the balance, as does a workload growing heavy enough to
risk a backlog of cases that would poorly serve the public. Second
is basic fairness: A nominee who has served his country well is
being held hostage, his career on hold, under false pretenses.
Third is that the people in the states of the Fourth Circuit are
being deprived of a supremely qualified judge. Jim Haynes is a
Harvard Law grad who served five years in the Army (rank: Captain),
clerked for a federal judge, served as General Counsel of the Army,
and served as a top lawyer in several private sector positions
before taking over as General Counsel for the whole Department of
Defense. The left-leaning American Bar Association, no friend of
conservatives, was nevertheless so impressed with this mainstream
conservative that it twice gave his nomination its highest
rating.
The best thing the Senate could do is to bring Haynes’s
nomination through the Judiciary Committee, with Sen. Graham
changing his mind and supporting it. Then the Senate should stay in
session long enough (into next week, not too tough an expectation
for a Senate that has spent less time in session than any in modern
history) to actually get the man confirmed.
Absent that, though, Graham should amend his ways and make clear
to the White House, before this Congress adjourns for
good, that he will fully support Haynes’s nomination early
next year if the president resubmits Haynes’s name for
consideration. With Graham, Haynes’s longtime opponent, instead
saying that he now considers Haynes a hero in the effort to balance
security with American values, Democrats would be hard-pressed to
find any other reason to kill the nomination.
Jim Haynes should be a federal judge, and Lindsey Graham damn
well knows it.
