The incoherence of Jim Haynes’ critics

According to the Washington Post, “some retired military officers have served notice” that they will oppose the nomination of Jim Haynes in the event of a confirmation battle. The two officers mentioned by the Post are both former military lawyers.

This is old news to anyone who has been reading Power Line. Indeed, as we have long noted, Sen. Lindsey Graham reportedly has been preventing a confirmation battle based partly on reports from military lawyers who are unhappy with Haynes about his role regarding the administration’s policy towards war on terrorism detainees.

One of the officers, retired Rear Admiral John Hutson, claims that Haynes’ “unwillingness to listen to others caused him to preside over the DOD legal system during the time of its greatest debacle in memory, the abuse of detainees by military personnel around the world.” This is the familiar argument of the bureaucrat on the losing side — “they didn’t listen to me,” which almost always means “they didn’t agree with me.” In Haynes’ case, moreover, it was his obligation to defer to the legal advice and policy preferences of the Justice Department and the White House, not those of career military lawyers.

As for the “great debacle” claim, Hutson’s tortured formulation, (“caused [Haynes] to preside over the legal system in the time of its greatest debacle,” not “caused a debacle”), betrays the weakness of his argument. And what precisely was the debacle? If Hutson is referring to Abu Ghraib, he’s talking nonsense. Nothing Haynes (or Justice Department lawyers) did caused that debacle; otherwise, whatever they did to cause it would have caused other Abu Ghraibs. Indeed, the controversial memo that Haynes produced (which adhered to the legal position laid out by the Justice Department) did not include sexual humiliation as one of the permitted interrogation devices. If Hutson is referring to Guantanamo Bay, then there is no debacle. Evidence of mistreatment of prisoners there is scant. It can be argue that the decision to hold so many people at Gitmo indefinitely (regardless of how they are treated) has been a public relations set-back. But that decision was not made by Haynes.

Meanwhile, retired Rear Admiral Donald Guter, apparently in response to the argument that Haynes was following Justice Department policy as he was obliged to, doubts that as a judge Haynes would have the independence or judgment to oppose unwise policies being pushed by his superiors. Either Guter is being misquoted or he was absent the day they taught law in law school. As an appeals court judge, Haynes’ “superiors” would be the Supreme Court, and it would be Haynes’ obligation not to oppose their decisions. It would also be Haynes’ obligation as a judge not to focus on whether policies being “pushed” by the executive or the legislature are “unwise,” as opposed to unlawful.

Against the incoherent views of the retired admirals, we have the testimony of Bernard Meltzer, a distinguished law professor and former assistant trial counsel at Nuremberg, who worked with Haynes in formulating the procedure for trying detainees before military tribunals. Meltzer apparently had no difficulty in getting Haynes to “listen.” He reports that Haynes showed “informed and sensitive concern for the rights and legitimate interests of those who might be tried before a military commission.”

No wonder Lindsey Graham has been trying to prevent a debate on the merits of Haynes.

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