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Jim Haynes As a Stalking Horse In Torturegate:
Why President Bush Renominated Him for A Federal Appellate Judgeship


Friday, Dec. 31, 2004

Recently, President Bush renominated twelve men and women whom he had previously nominated for federal appellate court judgeships. During Bush's first term, the Senate had refused to confirm any of the twelve - and had filibustered the nominations of seven. Now, Bush has asked the Senate to think again.

Bush is not the first president to resubmit judicial nominees. But he is the first to re-nominate seven who were blocked by Senate filibusters.

What is the thinking behind Bush's in-your-face strategy? I believe it is intended to test Senate Democrats in several ways - one obvious, and one much less so.

The first test is this: Will Democrats filibuster again - and risk having Republicans invoke the so-called "nuclear option" of rewriting the rules so a filibuster can be overridden? (I described this option in an earlier column.) If so, Democrats have opted to play a high-stakes game that could forever change the nomination process.

The second, subtler test is this: Will Democrats continue to oppose William J. "Jim" Haynes, currently the general counsel of the Department of Defense, to the point of filibustering his nomination if necessary?

It is the Haynes matter on which I will concentrate in this column.

Key Background: The Exchange of Letters Between Haynes and Leahy

To understand the nomination of Haynes, it's important to understand some key context. On June 2, 2003, the ranking Democrat on the Senate Judiciary Committee, Senator Patrick Leahy (D -VT), wrote to National Security Adviser Condoleezza Rice, concerned about reports and rumors of prisoner abuse and torture.

On June 25, 2003, in his capacity as Defense Department General Counsel, Haynes responded -- assuring the Senator in an artfully worded letter that the Administration's "policy" was "to comply with all of its legal obligations in its treatment of detainees, and in particular with legal obligations prohibiting torture."

Seeking further specifics, Leahy wrote back to Haynes. But months went by with no response. Meanwhile, on September 29, 2003, Hayes was nominated for a seat on the U.S. Court of Appeals for the Fourth Circuit. Haynes's confirmation hearing was scheduled for November 19, 2003.

Late at night, on the eve of the hearing, Senator Leahy received a letter -- not from Haynes but a subordinate. "That letter was completely unresponsive to my questions," Senator Leahy said. He also complained that earlier assurances Haynes had given to him and others "were not true." As a result, Senate Democrats tried to put the brakes on Haynes's nomination.

Blocking The Haynes Nomination: How and Why Democrats Did It

Haynes had a thin resume for an appointment to the U.S. Court of Appeals. Yet Republicans forced the nomination through the Senate Judiciary Committee on a straight party vote, with all ten of the Committee's Republicans approving. (Three Democrats voted against the Haynes nomination; six passed.)

Democrats asked to reopen Haynes's confirmation hearing. But the Republicans refused to do so. Nevertheless, the media, at least, pursued the case against Haynes.

The New York Times described Haynes's as "an architect of some of the Bush administration's most unenlightened policies" and opposed his confirmation. Senator Teddy Kennedy, laying out the case against Haynes in The Washington Post, said, "Nominations do not get much worse than this." And after CBS News revealed the Abu Ghraib photographs of American soldiers abusing Iraqi prisoners, the Wall Street Journal reported that even Senate Republicans believed Haynes's "chances for confirmation were slim."

In late May 2004, Senate Democrats and the White House struck a deal to clear the way for votes on some twenty-five of the less controversial judicial nominees. Haynes, however, was left behind.

The Torture Memoranda: They Emerged After Haynes's First Nomination

At the time, Haynes's - and others' - infamous memoranda on torture had not yet surfaced. When they did, they proved to be as shocking to lawyers as the Abu Ghraib photos had been to the general public.

There is no question that this country faces a difficult enemy: terrorists who don't fight by the rules of war. But no one could have expected this country's top government lawyers to respond to that reality by claiming that the Geneva Conventions and other international treaties to which the U.S. is a party - as well as related federal statutes -- simply do not bind the President at all.

After all, Haynes had specifically assured Senator Leahy, in so many words, in his letter, that the U.S. recognized its obligation to "conduct[] interrogations in a manner that is consistent with the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT)" and "the Federal anti-torture statute," which implements CAT.

Plainly, the case in favor of Haynes's nomination - extremely poor even before the torture memoranda came before the public eye - is now appallingly poor. So why in the world is Bush renominating Haynes?

There are two possibilities: One may be that Haynes is such a poor nominee, Democrats will feel they have no choice but to filibuster and thus invite the "nuclear option."

Another is that Bush is stealing a page from Nixon's strategy book, and "pricking the boil" - that is, seeking to defuse a festering scandal. The scandal, of course, is Torturegate. "I think we've got to prick that goddamn boil. And take the heat," Nixon would say. Perhaps Bush, behind closed doors, is saying the same thing.

"Pricking the Boil": Can Bush Control and Thus Survive Torturegate?

Here's the key: Torturegate isn't just about Haynes.

It's also about the former assistant attorney general, of the Office of Legal Counsel, Jay Bybee - now on the federal bench. Bybee stonewalled his way through his confirmation hearings. But now that the memos are out, there is a good case for Bybee's impeachment: He counseled the President to ignore the law.

More to the point, it is also about Alberto Gonzales -- heading for confirmation hearings for his Attorney General nomination. Perhaps Bush hopes that if Torturegate plays itself out in these nominations, it will end the scandal before it gets worse. After all, why bore viewers with the "same" issues they've already seen exhaustively debated?

Haynes, then, may prove to be a stalking horse, a clay pigeon, or a fall guy - choose your metaphor - for Torturegate. Of course, Haynes is entirely blameworthy too. Depending on which nomination proceeds first - Gonzales's or Haynes's - either nominee could cost the other his job (as well as costing himself his own). And this stalking horse business is risky.

The Parallel to Nixon: Attempting to Take the Steam Out of a Scandal

The "pricking the boil" strategy didn't work in the Nixon Administration. Let's hope it doesn't work here, either.

During the Watergate investigation, Pat Gray had been acting director of the FBI. He was actually proud of his work. (No doubt Haynes and Gonzales are proud of theirs, too.) To try to take away some of the steam of Watergate, Nixon nominated Pat Gray to head the FBI.

He knew it would be a bloody partisan battle: Democrats controlled the Senate. But he still thought the nomination would help, for, as he wrote in his diary at the time, "At least getting Gray before the committee he can tell a pretty good story."

No doubt Haynes and Gonzales are good storytellers as well. There's one problem, though: Gray's testimony only stoked the fires, and theirs may, as well..

But Bush, like Nixon, is a gambler. If his strategy succeeds, he can control the scandal over his use of torture in the war on terror. If it fails, war crimes are as ugly as it gets.

John W. Dean, a FindLaw columnist, is a former counsel to the President.

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