Haynes Wears Well - The American Spectator | USA News and Politics
Haynes Wears Well
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The emcee has just introduced U.S. Sen. Winthrop Nigel Principle, Republican of the state of Madisonia…

Hello, I’m Win N. Principle, and I’m here today to talk about judges. Or, in this case, specifically one nominee for a judgeship, W. James Haynes II, currently the General Counsel for the Department of Defense.

It seems that Mr. Haynes’ nomination is in trouble, not just from the usual, leftist, Democratic suspects, but from several of my fellow Republicans as well — especially from South Carolina’s Sen. Lindsey Graham, my colleague who loves to follow John McCain’s lead in playing the maverick.

My good friends on my side of the aisle who have gone squishy on Mr. Haynes are supposedly concerned, yes “deeply concerned,” that at one point the Pentagon’s so-called “torture memo” actually crossed Mr. Haynes’ desk. Somehow they appear to fear that if they confirm Mr. Haynes for a judgeship, their support for him will be conflated with support for torture at Abu Ghraib in Iraq, or something like that.

To which I say my colleagues are wrong on three fronts. They are wrong in giving credence to the substance of the allegation. They are wrong on the underlying principles involved in the whole debate. And they are wrong, amazingly wrong, on the politics of the issue.

First, as to the politics: Most of you are aware that my great home state of Madisonia is neither “red” nor “blue,” politically speaking, but perfectly purple. George W. Bush lost Madisonia by very narrow margins in both 2000 and 2004. But I, a conservative Republican, won both of my Senate races with at least 54 percent of the vote. You see, voters will support you even if they disagree with you on two or three big issues — if, that is, they believe you are standing firm on principle rather than pandering for political reasons; and if you explain to them in clear and consistent terms why you believe as you do; and if you make clear that you respect those of differing opinions.

Iowans, for instance, can consistently support both Democrat Tom Harkin and Republican Chuck Grassley, because both men are seen as authentic. Another purple state, Minnesota, likewise has one Democrat and one Republican, as does purple Nevada, as does purple New Mexico. The point is that voters will reward authenticity.

And they especially will reward authenticity when it comes to big, fundamental issues — especially when it comes to protecting them from murderous Islamist terrorists. I submit to you that Joe Lieberman will, one way or the other, be re-elected with room to spare in Connecticut even though a large majority of Connecticut voters disagree with his support of the war in Iraq.

BUT BACK TO MR. HAYNES — or, I should say, Captain Haynes, who served our country in the army and then as General Counsel for the Department of the Army. Then, after a vice presidency and top counsel job at General Dynamics Corporation, and partnership at a top law firm — obviously, this Phi Beta Kappa and Harvard Law grad is no legal slouch — he has served with distinction for five full years as DoD’s top lawyer in an incredibly difficult time when war against us by Islamist terrorists has raised questions and challenges of a sort that have never before been on the Pentagon’s plate.

And lemme tell you something: When it comes to the war against these terrorists, the American people “get it.” They understand that it’s dangerous, that it’s deadly, and they understand that not all the answers are obvious. They understand that the absolute first priority must be to try to stop 9/11-type atrocities from happening again. And they understand that it is not only no crime to explore all sorts of options, but an absolute necessity.

As Captain Haynes testified last week to the Senate, “Information is, after all, critical to protecting this nation in this conflict.” Indeed, the American people know that officials would be derelict in their duty if those officials do not consider whether the new threat from terrorists necessitates new sorts of measures to thwart them.

Politically, then, it is not a detriment but an asset for an official to explore all options. When it comes to terror, the American people do not side with the New York Times. Americans overwhelmingly disagreed with the Times‘ publication of the SWIFT banking program details. Most Americans did not cotton to the Supreme Court’s Hamdan decision. And today especially, with Hezbollah and Hamas rampant against Israel, Americans see the evil inherent in terrorism, and Americans want it stopped.

It is in that light that the American people will consider the Haynes nomination — that is, if in the midst of their everyday lives they consider it at all.

FORTUNATELY, THE SUBSTANCE of the situation as well as the politics argues not against Captain Haynes, but in his favor. The fact of the matter is that there was a big debate at the Pentagon and at the Justice Department about what sorts of interrogation measures are wise and what sorts are legal when fighting murderers who represent no particular nation and who themselves recognize no rules of warfare. And the fact is that it is the Justice Department whose decision on legality is binding on the rest of the executive branch, meaning that the Pentagon’s counsel in the end must defer to DoJ’s legal judgment.

Nevertheless, when Justice officials drew up a memo listing 35 types of possible interrogation techniques, all of which Justice found to be legally allowable, Captain Haynes established broad-based “working groups” to analyze not just the legality but the wisdom and morality of using those techniques. Eventually, Haynes recommended, and Secretary Donald Rumsfeld agreed, that 11 of those techniques be rejected. Of the remaining 24, 17 were already approved under the Geneva Conventions.

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.

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