While Lindsey Graham publicly insists that he is not denying Fourth Circuit nominee Jim Haynes an up-or-down vote, all indications are that he is working overtime behind the scenes to do just that. For example, Graham reportedly is lobbying hard against Haynes with key gang of 14 members such as Senator Collins of Maine, trying to persuade them that the Haynes’ nomination constitutes an “extraordinary circumstance” which would justify a filibuster. I understand that Haynes has the support of gang members like Senator De Wine, but his supporters within the group are at a disadvantage when it comes to countering Graham. For one thing, unlike the South Carolina Senator, they don’t see themselves as on “a mission from God” when it comes to the Haynes nomination. For another, they are not on top of the substantive issue that is the key to Graham’s anti-Haynes campaign — what Haynes did and did not do with respect to setting our policy on treatment of terrorist detainees, and especially the extent to which he included the JAGs in the process.
Thus, they are unable, for example, to explain to members like Sen. Collins that, contrary to what Sen. Graham apparently is telling them, Haynes did not mislead the Judiciary Committee during the following exchange:
Graham: But did the JAGs ever receive the final product of the working group for their input?
Haynes: The final working group report was limited to one copy.
Graham: Did they ever see it?
Haynes: I believe they did.
Graham objects to this testimony because Major General Jack L. Rives, the Air Force JAG, testified before the Senate Armed Services Committee that “I saw the April 13, 2003 report about 14 months after it was issued. No one in the Air Force JAG had seen it before then, to my knowledge.” But General Rives has affirmed that, while he did not see the signed April 2003 report until June 2004, he had seen earlier versions of the report, including a version from March 2003. General Rives also affirms that the April 2003 report is substantially similar if not identical to the early March 2003 report that he reviewed.
All of this is set forth in a letter from Haynes to Judiciary Committee Chairman Arlen Specter dated July 15, 2006. The letter states that “General Rives agrees that my testimony is accurate” and that “General Rives has reviewed this letter and he agrees with this account in its entirety.” General Rives is copied on the letter.
The underlying issue here is whether the JAGs had a meaningful opportunity to review and provide input regarding the DoD policy in question. Graham contends that the JAGs were not afforded meaningful process because they only saw a “draft” final report (March 2003) and not the “final” final report (April 2003). But the JAGs had already seen and commented on an earlier “draft” final report (February 2003). And many of their comments were incorporated into the March 2003 product, which they also reviewed. While the JAGs certainly didn’t get everything they desired substance-wise, they were hardly “shut out of the process.”
Finally, why was the final report not circulated in April 2003? My understanding is that Defense Secretary Rumsfeld approved only 24 of the report’s 35 recommended interrogation techniques. The final report was not distributed throughout the DoD (and was limited, as Haynes testified, to one copy) in order to avoid any confusion that the 11 rejected interrogation techniques represented Department policy.
JOHN adds: I must be missing something here. Graham’s suggestion that the JAGs were left out of the process because they only saw a draft of the final report, not the “final final” report, makes no sense. If you only see something after it’s final, then you don’t have an opportunity for input. If you see a report when it is still in draft form and have an opportunity to comment before it is finalized, then you did have input. Graham’s complaint seems entirely backwards.
PAUL adds: Exactly. I think what’s happening is that, as the Haynes forces explode one Graham charge (i.e., that the JAGs lacked an opportunity to be heard), the Senator shifts his ground. He’s now focusing, as I understand it, on the the alleged lack of candor in Haynes’ testimony that the JAGs saw the final report. Supposedly, Haynes misled the Senate since he didn’t tell the committee that the JAGs didn’t see it for many months. But Haynes’ testimony is accurate (the JAGs saw the report) and not misleading (they had plenty of opportunity to comment and there is a perfectly good reason why they didn’t see the report in April 2004). Haynes’ testimony seems to be good enough for General Rives, upon whose statement Graham relies to attack Haynes, so it should be good enough for Republican gang of 14 members other than Graham. But that assumes that they take their own look at the matter, and don’t simply rely on Graham’s distorted view.