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 â€˜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.
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