Oppose the Confirmation of William J. Haynes, II

Recipient: Senators Arlen Specter and Patrick Leahy

Dear Chairman Specter and Ranking Member Leahy:

On behalf of the Leadership Conference on Civil Rights (LCCR), the nation’s oldest, largest, and most diverse civil and human rights coalition, we urge you to oppose the confirmation of Department of Defense General Counsel William J. Haynes, II, to the U.S. Court of Appeals for the Fourth Circuit. We believe that Mr. Haynes’ record as a chief architect and defender of the Administration’s policies regarding interrogation of detainees in Iraq, Afghanistan, Guantánamo Bay and elsewhere, as well as those regarding the treatment of “enemy combatants” in the United States, raises serious doubts about his commitment to the most rudimentary principles of due process and human rights.

As Department of Defense General Counsel, Mr. Haynes oversaw the development of detention, interrogation, and torture policies for the military’s handling of prisoners in Iraq, Afghanistan, Guantánamo Bay and elsewhere. Under the watch of Mr. Haynes, Secretary Donald Rumsfeld, and other high-level civilian officials, the Department of Defense approved tactics and eliminated safeguards that were meant to prevent the abuse of detainees. Mr. Haynes played a role in:

• Advising the Administration to find the Geneva Conventions inapplicable to persons captured in Afghanistan;
  
  
• Assisting in creating a definition of torture that was so narrow that it was ultimately disavowed by the Administration in December 2004;
  
  
• Participating in meetings of officials in which “waterboarding” was found to be permissible;
  
  
• Writing guidelines for military commissions, “established to try accused terrorists of war crimes,” that did not include all of the protections of the Uniform Code of Military Justice (UCMJ);ⁱ
  
  
• Ending the practice of having Army Judge Advocate General (JAG) officers observe interrogation sessions, and;
  
  
• Lifting the bar on participation in interrogations by private civilian contractors.

Such changes appear to have paved the way for recent horrific incidents of abuse at Abu Ghraib, Guantanamo, and elsewhere. Mr. Haynes’ willingness to change long-established U.S. policy, reinterpret international law, and his recent resistance in 2005 to efforts which would “make it official Pentagon policy to ban the cruel, inhuman and degrading treatment of detainees,” raises serious questions as to whether he will follow the law if confirmed to the Fourth Circuit, or change it to achieve a desired result.ⁱⁱ

Mr. Haynes has failed, both during and after his last Senate confirmation hearing, to directly and clearly respond to questions about his role in setting the Department of Defense policies that led to abuses. However, numerous articles, memoranda, and reports have surfaced that effectively describe Mr. Haynes’ role “in this Administration’s ‘unlawful combatant’ policies” as “integral.”ⁱⁱⁱ LCCR believes that the Senate Judiciary Committee should address Mr. Haynes’ role in the creation and development of controversial Department of Defense torture policies in a second hearing on his nomination.

Mr. Haynes has been a staunch defender of the Administration’s “enemy combatant” policy. This policy asserts that the U.S. government has the inherent authority to imprison United States citizens and other individuals indefinitely as “enemy combatants,” without access to counsel, trial, or judicial review. Under this policy, the government claimed – including before the Fourth Circuit, on which Mr. Haynes now seeks to sit – that the courts have virtually no judicial review power over the government’s decision to label a citizen as an enemy combatant, and that judicial review is permissible only to “confirm” that there is some basis for the Administration’s designation. Mr. Haynes even went so far as to publicly dismiss constitutional concerns that have been raised over the policy as mere “rhetoric.” His position was so radical, and so out of touch with fundamental notions of due process, that it was ultimately rejected by an 8-1 majority of the U.S. Supreme Court in Hamdi v. Rumsfeld.^iv

LCCR is extremely concerned about preserving individuals’ access to the judiciary. While we hold dear all laws that protect civil rights, the right for an individual to access the courts perhaps stands out above all else. Without a strong, effective, accountable way for people to enforce their rights, all of those rights themselves stand in danger of being eviscerated – being reduced to nothing more than general principles that sound compelling on paper but lack the necessary mechanisms to be truly meaningful. As such, we must oppose in the strongest terms the confirmation of anyone to the bench who subscribes to the radical notion that some individuals are simply not entitled to come before him in search of relief.

The Fourth Circuit is often viewed as the most conservative federal appeals court in the country, and has a long history of making decisions that show insufficient concern for important civil rights principles. Given his record, we believe the confirmation of Mr. Haynes would move the court in a far more radical – and even dangerous – direction. We therefore urge senators to reject his nomination. If you have any questions or need further information, please feel free to contact LCCR Counsel Rob Randhava at (202) 466-6058, or Nancy Zirkin at (202) 263-2880.

Footnotes:
ⁱAlliance for Justice. (2006). Report on the Nomination of William James Haynes, II to the U.S. Court of Appeals for the Fourth Circuit. Washington D.C., U.S, p. 1.
ⁱⁱIbid.
ⁱⁱⁱLetter from Sen. Lindsey Graham. June 8, 2006. Nomination of William Haynes to the Fourth Circuit Court of Appeals.
^iv542 U.S. 507 (2004).