<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:30496.wais]
S. Hrg. 109-633
CONFIRMATION HEARING ON THE NOMINATIONS OF WILLIAM JAMES HAYNES II TO
BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT AND FRANCES MARIE TYDINGCO-
GATEWOOD TO BE DISTRICT JUDGE FOR THE DISTRICT OF GUAM
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
----------
JULY 11, 2006
----------
Serial No. J-109-96
----------
Printed for the use of the Committee on the Judiciary
CONFIRMATION HEARING ON THE NOMINATIONS OF WILLIAM JAMES HAYNES II TO
BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT AND FRANCES MARIE TYDINGCO-
GATEWOOD TO BE DISTRICT JUDGE FOR THE DISTRICT OF GUAM
S. Hrg. 109-633
CONFIRMATION HEARING ON THE NOMINATIONS OF WILLIAM JAMES HAYNES II TO
BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT AND FRANCES MARIE TYDINGCO-
GATEWOOD TO BE DISTRICT JUDGE FOR THE DISTRICT OF GUAM
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
JULY 11, 2006
__________
Serial No. J-109-96
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
30-496 WASHINGTON : 2006
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512ÿ091800
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 79
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 46
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 296
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 75
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
PRESENTERS
Allen, Hon. George, a U.S. Senator from the State of Virginia
presenting William J. Haynes II, Nominee to be Circuit Judge
for the Fourth Circuit......................................... 4
Bordallo, Madeleine Z., a Delegate from the Territory of Guam
presenting Frances Marie Tydingco-Gatewood, Nominee to be
District Judge for the District of Guam........................ 6
Warner, Hon. John, a U.S. Senator from the State of Virginia
presenting William J. Haynes II, Nominee to be Circuit Judge
for the Fourth Circuit......................................... 1
STATEMENTS OF THE NOMINEES
Haynes, William James, II, Nominee to be Circuit Judge for the
Fourth Circuit................................................. 48
Questionnaire................................................ 54
Tydingco-Gatewood, Frances Marie, Nominee to be District Judge
for the District of Guam....................................... 7
Questionnaire................................................ 8
QUESTIONS AND ANSWERS
Responses of William J. Haynes II to questions submitted by
Senator Specter................................................ 96
Responses of William J. Haynes II to questions submitted by
Senator Leahy.................................................. 109
Responses of William J. Haynes II to questions submitted by
Senators Specter, Leahy, and Kennedy........................... 136
Responses of William J. Haynes II to questions submitted by
Senator Durbin................................................. 156
Responses of William J. Haynes II to questions submitted by
Senator Feingold............................................... 181
Responses of William J. Haynes II to questions submitted by
Senator Feinstein.............................................. 193
Responses of William J. Haynes II to questions submitted by
Senator Kennedy................................................ 208
Responses of William J. Haynes II to follow-up questions
submitted by Senators Durbin and Feingold...................... 250
SUBMISSIONS FOR THE RECORD
Black, Scott, Major General, U.S. Army, Judge Advocate General,
Charles J. Dunlap, Jr., Major General U.S. Air Force, Deputy
Judge Advocate General, Bruce MacDonald, Rear Admiral, U.S.
Navy, Judge Advocate General, James C. Walker, Brigadier
General, U.S. Marine Corps, Staff Judge Advocate, and Ronald M.
Reed, Colonel, U.S. Air Force, Legal Counsel to the Chairman of
the Joint Chiefs of Staff, joint letters....................... 275
England, Gordon, Deputy Secretary of Defense, Department of
Defense, Washington, D.C.:
December 30, 2005, memorandum................................ 277
September 5, 2006, directive................................. 278
July 7, 2006, memorandum..................................... 289
Haynes, Williams J., II, Nominee to be Circuit Judge for the
Fourth Circuit, prepared statement............................. 291
Mayer, Jane, The New Yorker:
February 27, 2006, article................................... 301
July 3, 2006, article........................................ 314
Mora, Alberto R., General Counsel of the Navy, Department of the
Navy, Washington, D.C., memorandum............................. 331
Rumsfeld, Donald, Secretary of Defense, Department of Defense,
Washington, D.C., memorandum................................... 353
Smith, Dorrance, Assistant Secretary of Defense for Public
Affairs, Washington, D.C., letter.............................. 357
Thompson, Larry D., James B. Comey, Jack Goldsmith and Patrick F.
Philbin, joint letter.......................................... 359
CONFIRMATION HEARING ON THE NOMINATIONS OF WILLIAM JAMES HAYNES II TO
BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT AND FRANCES MARIE TYDINGCO-
GATEWOOD TO BE DISTRICT JUDGE FOR THE DISTRICT OF GUAM
----------
TUESDAY, JULY 11, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 3:15 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Arlen
Specter, Chairman of the Committee, presiding.
Present: Senators Hatch, Sessions, Graham, Cornyn, Leahy,
Kennedy, and Durbin.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. Good afternoon.
Today we have counsel for the Department of Defense,
William James Hayes, II, to be U.S. Circuit Judge for the
Fourth Circuit, and Justice Frances Marie Tydingco-Gatewood to
be U.S. District Judge for the District of Guam.
We had expected to start this hearing at 2:15, but the
hearing we had on the Guantanamo Bay and Hamdan v. Rumsfeld
lasted longer than we had anticipated. We had expected to begin
at 3:00, judging from the number of Senators who were present
at 2:30, but Senators came in, so we were delayed 15 minutes. I
regret keeping you all here.
We are joined by distinguished Members of the Senate and
Members of the House. I, first, recognize Senator John Warner,
of the Class of 1978, to introduce Mr. Haynes.
PRESENTATION OF WILLIAM JAMES HAYNES II, NOMINEE TO BE CIRCUIT
JUDGE FOR THE FOURTH CIRCUIT, BY HON. JOHN WARNER, A U.S.
SENATOR FROM THE STATE OF VIRGINIA
Senator Warner. Thank you very much for the opportunity to
appear here a second time on behalf of this nominee for the
Fourth Circuit Court of Appeals. I welcome the opportunity to
be here today with the Chairman, Senator Specter, Senator
Hatch, Senator Kennedy, Senator Sessions, Senator Cornyn, and
my good friend from South Carolina.
I am going to go through basically the same statement as I
gave here some years ago in introducing this wonderful man and
his wonderful family.
At this point, I wonder if the Chair would entertain his
introducing his wife, Meg, and two of his three children. Would
you introduce your wife and two children?
Chairman Specter. That is a splendid idea. Mr. Haynes, if
you would do that, we would appreciate it.
Mr. Haynes. Thank you, Mr. Chairman. Mr. Chairman, this is
my wife, Margaret Campbell Haynes, of 24 years. My older son,
Will, and my younger son, Taylor. Our daughter, Sarah, is at
home, sick.
Chairman Specter. Thank you very much, Mr. Haynes.
Senator Warner. Thank you, Mr. Chairman.
The court to which Mr. Haynes has been nominated by
President Bush, the Court of Appeals for the Fourth Circuit, is
one that I have had almost a lifetime of association with. The
court serves our State of Virginia, West Virginia, Maryland,
North Carolina, and South Carolina.
Over the history of the Fourth Circuit, there have been a
total of 43 judges who have served on that court. In my 28
years here in the Senate, I have had the opportunity of
participating in the advice and consent procedure for 18 of
these judges. In fact, of the 12 active judges today, only one,
Judge Henry Widener, precedes my service here in the Senate.
I want to say a word about Judge Widener. He and I both
graduated from Washington Lee University, he a bit ahead of me.
But I have to say, and I want the record to reflect, in my
judgment, I think he is one of the most distinguished jurists I
have ever met in my entire life.
He served on this court for over 37 years, first as a
District Judge and then as a Circuit Court Judge. He is just an
extraordinary individual, and I am sure that Mr. Haynes is
conscious of the fact that he would, if confirmed, take Judge
Widener's seat on this court.
Judge Widener decided to remain on the bench, even though
he indicated to the President some years ago his intention to
retire, until such time as the Senate confirms a Presidential
nominee.
Back to Mr. Haynes. He earned his Bachelor's degree from
Davidson College in 1980, while receiving an Army ROTC
scholarship. After graduating from college cum laude and Phi
Beta Kappa, the nominee went to the Harvard Law School.
Subsequent to his graduation from law school, he worked as a
law clerk for Judge James McMillan on the U.S. District Court
for the Western District of North Carolina.
After completing his clerkship, he worked for over 4 years
on active duty as a captain in the Army, in the Office of
General Counsel. After leaving active service and practicing
law in the private sector, he was nominated by President Bush
to serve as General Counsel of the Department of the Army. He
was confirmed by the Senate in 1990 for this position.
In 1993, he reentered private practice and worked for a
number of years. Then President George W. Bush nominated him to
the current position as General Counsel of the Department of
Defense. Again, he was confirmed by the Senate, this time by a
voice vote.
As General Counsel of the Department of Defense, there is
no doubt that Jim Haynes has had a tough job, with great
responsibility.
I will put the balance of my statement in the record and
just talk to the Committee in a personal sense. I was
privileged to serve in the Department of Defense for 5 years
during the war in Vietnam. That department is a real challenge,
particularly in a time of war.
I had to make a number of decisions which were bitterly
contested. I appeared before many committees of the U.S. Senate
and the House time and time again, questioning the judgment of
colleagues that I served with in that period of time as to the
correctness of our decisions.
I mention that because anyone who accepts the challenge to
serve in that department has got to be prepared to accept a
very, very heavy burden--and I thought it was a privilege, not
a burden--to appear before the Congress and answer the many
questions that are asked of them.
I remember very clearly a number of instances where I had
to make tough decisions with regard to prisoners of war, not
unlike situations that are facing us today, and there was
considerable disagreement with what the then-Secretary of
Defense and I, and others, did.
I mention that because I have just come into possession
today of two documents, one which is before the Committee
already in the context of the earlier hearing today, and that
is the memorandum issued to the Secretaries of military
departments and many others, but it is the application in
Common Article 3 of the Geneva Convention to the treatment of
detainees by the Department of Defense.
The memo says--and I will just read one paragraph--``The
Supreme Court has determined that Common Article 3 to the
Geneva Convention of 1949 applies as a matter of law to the
conflict with Al Qaeda. The court found that the military
commissions, as constituted by the Department of Defense, are
not consistent with Common Article 3.''
Now, I talked with this nominee this morning, and he
participated in drawing this memorandum up. It is a very
constructive and correct management approach to this historic
decision by the Supreme Court. I think it should be noted that
this memorandum on that decision would be before the Senate
here for some time.
The distinguished Chairman of the Committee and Members of
this Committee had a hearing on this subject this morning; my
Committee will have a hearing on Thursday morning on the same
subject.
I just point that out as showing the constructive work that
this lawyer has done for the Secretary of Defense, and indeed,
others, in recognizing the importance of that decision.
The second letter that was handed to me was addressed to
you, Mr. Chairman, and to the Ranking Member, Mr. Leahy. It is
signed by about a dozen or so very distinguished former retired
officers of the military services, among them, several Judge
Advocate Generals.
I have just given a copy of this to the nominee. He looked
it over and he said to me forthrightly, he welcomes the
opportunity to appear before this Committee and address this
letter. This is an important document, I say to the committee.
I have been privileged to be associated with the men and
women of the U.S. military for the better part of my life, and
I have the highest regard for them. I have a very high regard
for those individuals who are able to work up through the
competitive system of the military departments and become Judge
Advocate Generals of the Army, Navy, Air Force, and Marine
Corps.
Some of them are in this article, as well as other
officers. So I hope the Committee views this letter and gives
this nominee an opportunity to respond to the allegations that
are raised in it, because it is a very important letter and it
should not be dismissed lightly. Hopefully the nominee can
provide for the Committee persuasive responses.
I say this because my urging of the Committee is to just
give this nominee of the President of the United States for the
Fourth Circuit Court of Appeals a fair, objective hearing and
render the decision as you see in the best interests of our
Nation.
I thank the Chair and the members of the committee.
Chairman Specter. Thank you very much, Senator Warner.
We turn now to Senator George Allen, former Governor and
member of the Senate Class of 2000.
Senator Allen?
PRESENTATION OF WILLIAM JAMES HAYNES II, NOMINEE TO BE CIRCUIT
JUDGE FOR THE FOURTH CIRCUIT, BY HON. GEORGE ALLEN, A U.S.
SENATOR FROM THE STATE OF VIRGINIA
Senator Allen. Thank you, Mr. Chairman, Senator Kennedy,
Senators Hatch, Sessions, Graham, and Cornyn. Thank you for
allowing me to come before you again on behalf of Jim Haynes.
I come here again with my colleague, Senator Warner, to
show and indicate to all of you my strong support for the
nomination of Mr. Haynes to be on the Fourth Circuit Court of
Appeals.
Senator Warner went through Mr. Haynes' resume, education
and professional career; you have that record and I will not
reiterate it for you.
Judge Widener is the one who he will be replacing, we hope.
I have worked for a Federal Judge named Glen Williams. Judge
Williams is in the District Court for the Western District of
Virginia, based in Abingdon. Right across the hallway was Judge
Widener.
I have, over the years, from when I was just starting off
in my career, admired Judge Widener as a very steady,
principled, smart individual, and a character. That is
important for southwest Virginia, that you have character, but
that you are also a character, and he is an outstanding jurist.
This country should be forever grateful for people of his
capability to devote their lives on the bench.
One of the reasons why people want to do it, is because
they love their country. They care about justice, the fair
administration of justice. As we look to the fair
administration of justice, I would also hope that the Senate
will show fair due process to nominations.
It was about 3 years ago, Senator Warner and I were first
introducing Mr. Haynes to you all. The Fourth Circuit means a
great deal. I know Senator Graham knows that, being from South
Carolina, and it is an outstanding court.
Mr. Haynes, when you look at his record and capabilities,
he will be one to contribute mightily and in an honorable way,
bringing a unique perspective, but I think a helpful
perspective, to the Fourth Circuit Court of Appeals.
The American Bar Association has twice rated Mr. Haynes as
``well qualified,'' most recently just last year. He has worked
as chief legal counsel for the Department of Defense. The
Senate has unanimously, twice, confirmed him.
I do note the letter that my colleague, Senator Warner,
brought up from retired military officers. I will also note,
though, and hope you will take into consideration, that Mr.
Haynes gets bipartisan support, including that of prominent
Democrats, including former U.S. Senator Bill Hathaway, U.S.
former Attorney General Griffin Bell, Floyd Abrams, Thurgood
Marshall, Jr., Newt Minnow, Judge William Webster--not
necessarily a Democrat--but nonetheless has good bipartisan
support from people who have seen him work and have worked with
him.
I am hopeful, Mr. Chairman and members of the committee,
that you will accord him the opportunity to state his case. I
know you will. I look forward to being able to vote on the
confirmation of Jim Haynes on the floor of the Senate. I thank
you all for the work that you all do on this committee. You
have had a very heavy docket this year.
Mr. Chairman, you have been an inspiration with what you
have had to go through personally to keep your attention and to
keep your eye on the ball on a lot of contentious issues.
The judges are a very important aspect of our
representative democracy, and I think it is vitally important
that we have men and women who are nominated and can be
confirmed to work in the District, Circuit, and Supreme Court
of the United States who understand that their role is to apply
the law, not invent the law, and show due deference to the
representatives of the people in our Republic.
I am very confident that Jim Haynes will be a jurist in
that mold who will be perfect for the Fourth Circuit, but also
one that we can be proud of for all of America. I look forward
to a confirmation vote on the floor as soon as practicable.
Thank you for your indulgence and the attention of all the
members of this committee.
Chairman Specter. Thank you very much, Senator Allen,
especially for those kind personal words.
I know how busy Senators are, so we would expect Senator
Warner and Senator Allen to move on to other duties.
We now turn to Hon. Madeleine Bordallo, a U.S.
Representative from the District of Guam who is here today to
introduce the nominee for the District Judge for the District
of Guam.
Representative Bordallo, we are pleased to have you here
and we look forward to your introduction.
PRESENTATION OF FRANCES MARIE TYDINGCO-GATEWOOD, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF GUAM, BY HON. MADELEINE Z.
BORDALLO, A DELEGATE IN CONGRESS FROM THE TERRITORY OF GUAM
Delegate Bordallo. Thank you very much, Mr. Chairman,
Senator Kennedy, Senators Hatch, Sessions, Graham, and Cornyn.
I am, indeed, honored, Mr. Chairman, to join you today to
introduce Hon. Frances Tydingco-Gatewood, who has been
nominated by the President to serve as a U.S. District Court
Judge for the District of Guam.
The book of Isaiah, chapter 17, verse 1 reads: ``Learn to
do right, seek justice, encourage the oppressed, defend the
cause of the fatherless, plead the case of the widow.'' Justice
Tydingco-Gatewood has lived a life faithful to these Biblical
words.
She was born in Hawaii to a Chamorro family. She moved to
Guam as a youngster and spent her childhood and early adult
years growing up in a Chamorro community. It was in this
principled environment that Justice Tydingco-Gatewood learned
early on the importance of doing what is right. This ethic
would prove ever present in her future life experiences.
Justice Tydingco-Gatewood graduated from George Washington
High School in Mangilao, Guam in 1976. She earned a Bachelor of
Arts degree from Marquette University in 1980, and earned her
law degree from the University of Missouri, Kansas City, in
1983.
She had coupled her principled ethic with the hard work
that leads to success as a student and as a young professional,
and soon success did follow.
Having graduated from law school, Justice Tydingco-Gatewood
began her career as a law clerk, and soon thereafter became a
prosecutor, first in Missouri, then on Guam, a position in
which she sought justice on behalf of her people.
As the first Chamorro woman prosecutor on Guam, she
exhibited the professionalism and leadership skills that would
earn her the respect of her peers, and later appointment as
Guam's chief prosecutor.
In 1994, Governor Joseph Ada appointed her to a seat on the
bench of Guam's Superior Court, and in 2001 she was appointed
by Governor Carl Gutierrez to her current position as an
Associate Justice on the Supreme Court of Guam.
Further, the words of the Biblical quote, ``Defend the
cause of the fatherless, plead the case of the widow,'' like
the others in the verse, are part of the fabric of Justice
Tydingco-Gatewood's distinguished career and her life. She
embraced public service as the co-chair person of the Family
Violence Task Force, has been a constant advocate of families,
and has been an unwavering leader in addressing domestic
violence.
It is Justice Tydingco-Gatewood's character, coupled with
her formidable professional credentials, that leads me to
confidently recommend her for the Federal bench. She is a
leader, she is a role model for our young citizens, and she is
a strong Chamorro woman who embodies the integrity and
character of our people.
It is, thus, my honor to introduce to the Committee today
the person I urge the Senate to confirm as the first woman
Federal District Court Judge for the District Court of Guam,
Justice Frances Tydingco-Gatewood.
She is joined today by her husband of 25 years, Dr. Robert
Gatewood, and a number of her family and friends, Mr. Chairman,
are in the audience today seated right behind her.
They are the proud parents, she and her husband, of three
fine young sons: Daniel, who is a recent graduate of the
University of Hawaii at Manoa; Michael, a student at the
University of Hawaii; and Stephen, a sophomore at Father Duenas
Memorial High School on Guam.
We are proud of Justice Frances Tydingco-Gatewood and the
honor bestowed by the President in nominating her. She has the
bipartisan support of our community, the Governor of Guam, the
Guam Bar Association, and she is enthusiastically supported by
my predecessor, former Republican Congressman and Brigadier
General Ben Blaz, who asked me to inform you, Mr. Chairman, of
his endorsement of Justice Tydingco-Gatewood and his
recommendation for her confirmation.
I urge your expeditious and favorable consideration of her
nomination. Today, Mr. Chairman, is a great moment for the
people of Guam as we present one of our island's finest to you:
Hon. Justice Tydingco-Gatewood.
Thank you.
Chairman Specter. Thank you very much, Representative
Bordallo.
Would Mr. Haynes and Justice Tydingco-Gatewood please step
forward? While you are up, if you would raise your right hand,
we will administer the oath.
[Whereupon, the nominees were duly sworn.]
Chairman Specter. You may be seated.
We met the family of Mr. Haynes. Justice Tydingco-Gatewood,
would you oblige us by introducing your family and friends who
are here?
STATEMENT OF FRANCES MARIE TYDINGCO-GATEWOOD, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF GUAM
Justice Tydingco-Gatewood. Yes, Chairman Specter. My
husband, unfortunately, is at the hospital right now. He is
quite ill, so he was not able to be here at the hearing. But I
am joined, of course, by Congressman Bordallo and her staff. I
consider them all family. They are seated behind me in the
three or four rows directly behind me.
I just wanted to let you know, my husband, Dr. Robert
Gatewood, is not here at this moment.
[The biographical information of Justice Tydingco-Gatewood
follows.]
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Chairman Specter. Thank you very much.
Your resume and background has been covered on your
introduction. We are going to begin with you, Justice Tydingco-
Gatewood, because your hearing will be relatively brief, as is
our custom when there is bipartisan support in a situation like
yours.
Let me begin by asking if you think your experience as a
prosecutor will be of special assistance to you on the bench.
Justice Tydingco-Gatewood. I do, Chairman Specter. As you
see in the investigative report that you have before you, I was
a prosecutor for 10 years, both on Guam and in Missouri. If
confirmed by the Senate, I will be handling many criminal cases
at the Federal District Court.
So I think that all of the experiences I have had, having
presented many hundreds, if not thousands, of cases before the
grand jury, conducted preliminary hearings in Missouri,
appearing before juries on criminal cases, I think that would
be very instrumental. I have had the opportunity to work on
Motions to Suppress and Motions in limine, and I think those
will be helpful.
Chairman Specter. Well, that covers the criminal. What
would you say would be the background of your experience which
would give you the qualifications to handle civil matters?
Justice Tydingco-Gatewood. Civil? Did you say civil, sir?
Chairman Specter. Civil.
Justice Tydingco-Gatewood. Civil. Yes. In my experience on
the civil matters, as a former prosecutor, I did not cover any
civil matters. But as a former Superior Court Judge, I handled
many civil matters.
Chairman Specter. And how many years were you on the
Supreme Court?
Justice Tydingco-Gatewood. I am currently on the Supreme
Court. I have been on the Supreme Court for four and a half
years. Prior to that, I was a Superior Court Judge for seven
and a half years, a trial judge, so I had criminal and civil
dockets.
Chairman Specter. Did you have any legal practice in the
civil field?
Justice Tydingco-Gatewood. Before I became an attorney, no,
I have not.
Chairman Specter. You once quoted Socrates as saying,
``Four things belong to a judge: to hear courteously, to answer
wisely, to consider soberly, and to decide impartially.''
That is reminiscent of some advice that I heard from
Senator Thurmond shortly after I joined the Senate when he was
Chairman of this committee, and he asked a judicial nominee,
``Do you promise to be cuhrteous?'' Translated into English,
that is, ``Do you promise to be courteous?''
[Laughter.]
I say that in the presence of Senator Sessions and Senator
Graham, who do not need a translation.
[Laughter.]
Senator Graham. Socrates told him personally, so I know.
[Laughter.]
Chairman Specter. And the nominee responded, ``Yes.'' I
said to myself, well, what would you expect a nominee to say
except yes? Then Senator Thurmond said, ``The more power a
person has, the more cuhrteous a person should be,''
translated, ``The more power a person has, the more courteous a
person should be.''
I have since come to regard that as the most profound
statement I have heard from this dais in the time that I have
been on the Judiciary Committee. I think it is something which
should be remembered. Nominees confirmed have said to me
decades later about that, and how important they thought it
was.
You wrote in your first year as a Judge that you did not
want to contract what you called ``robeitis.'' What did you
mean by ``robeitis,'' and why not?
Justice Tydingco-Gatewood. Right. When I was a prosecuting
attorney for many years, I had appeared before many judges,
both on Guam and in Missouri. Of course, most of the judges I
appeared before were very courteous, very respectful, very
open-minded. One, in particular, however, was not.
You just said, ``the more powerful you are, the more
courteous you should be, and the more respectful,'' and I felt
that he was not during a big rape trial that I had in Missouri.
So I feel that sometimes when people become powerful, when
they put on the black robe, they forget their values of
respect, the forget their character, and I did not want to
become like that.
Having been a lawyer for many years, I have always
endeavored to be prepared before a judge and I had always hoped
that a judge would be respectful towards me, and that is what I
meant by that, Chairman Specter.
Chairman Specter. Justice Tydingco-Gatewood, a standard
question is, if confirmed, do you promise to interpret the law
and not make law?
Justice Tydingco-Gatewood. Yes, I do, sir.
Chairman Specter. Senator Kennedy?
Senator Kennedy. No questions. Just, congratulations on the
nomination.
Justice Tydingco-Gatewood. Thank you, Senator Kennedy.
Chairman Specter. Senator Kennedy's congratulations is
second best to no questions, Justice Tydingco-Gatewood.
Justice Tydingco-Gatewood. Yes, I read the transcripts of
some of the prior hearings, so I appreciate that.
[Laughter.]
Senator Kennedy. I am sure you meant that as a compliment.
[Laughter.]
Justice Tydingco-Gatewood. Yes, sir, I did.
Senator Kennedy. Thank you.
Chairman Specter. Thank you very much for being with us,
Justice. You may be excused at this point.
Justice Tydingco-Gatewood. Thank you.
Chairman Specter. We turn, now, to the nomination of the
General Counsel for the Department of Defense. I met with Mr.
Haynes extensively yesterday to lay the groundwork for what I
thought was going to be a contentious hearing, just to be very
candid about it.
Mr. Haynes come to us in the context of being General
Counsel to the Department of Defense at a time when there has
been a great deal of criticism and controversy about many
practices of the Department of Defense. In that capacity as
General Counsel, he is likely to be held responsible for many
of the things which happened.
In discussing the confirmation hearing with Mr. Haynes
yesterday, I referred to the memorandum by Assistant Attorney
General Jay Bybee dated August 1, 2002, which outlined very
strong tactics on interrogation.
Even realizing that we are a Nation at war and the
memorandum was written less than a year after 9/11, and one of
the comments from the introductory paragraph of this
memorandum, Assistant Attorney General Bybee wrote, ``We
further conclude that certain acts may be cruel, inhuman or
degrading, but still not produce pain and suffering of the
requisite intensity to fall within Section 234(a)'s
proscription against torture.''
The memo then goes on to describe in some detail what is an
appropriate line of interrogation, but in that context it is a
very strong, strong standard.
Senator Warner has referred to a letter dated July 7 that
was sent to the committee. It sets the parameter of the
hearing. I think it advisable to put it on the table so we can
deal with it as directly as possible. I appreciate your
understanding of that, Mr. Haynes. Let the record show, he
nodded in agreement.
The second paragraph says, from these 20 officials, ``What
compels us to take the unusual step in writing is our profound
concern about the role Mr. Haynes played in establishing, over
the objections of uniformed military lawyers, to tension and
interrogation policies in Iraq, Afghanistan, and Guantanamo
which led not only to the abuse of detainees in U.S. custody,
but to a dangerous abrogation of the military's longstanding
commitment to the rule of law.''
Now, I had suggested to you that you take as much time as
you need in your opening statement. Ordinarily, we try to be
relatively brief, but you and I spent about three and a half
hours yesterday going over the complexities of the role you
had, and it was a difficult role, admittedly, in the context of
9/11 and in the context of trying to structure a response on
interrogation to get information from an enemy and to protect
the United States, to deal with detainees, to construct a
system which would accord them basic fairness, to undertake
interrogation tactics which were within the realm of reason,
and I asked you to do that at some length.
I also asked you, in your opening statement, to deal with
the question of where we go next in light of the decision of
the Supreme Court in Hamdan v. Rumsfeld as to what kind of a
law we are going to structure, because your views on that were
very germane as to your qualifications to be a Federal Judge,
as to how you handle the interrogation issue, on the values
that you saw and what you tried to accomplish and what you
thought was right, and on the construction of the military
tribunals and your evaluation as to those tribunals in light of
the Supreme Court decision, and where your judgment is as to
where we should go next, all very salient and very germane to
the role of a Federal judge.
This Committee is committed to giving you a full and fair
hearing to explore your qualifications, your resume, and your
work--you have outstanding academic qualifications, outstanding
professional qualifications--then to deal with the issues which
I have just raised.
Senator Kennedy?
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Thank you, Mr. Chairman. Two years ago,
when our Committee met to consider Mr. Haynes for the Fourth
Circuit, I opposed his nomination. Since then, we have learned
far more about him, despite his consistent refusal to provide
additional information or even to appear before this Committee
or any of the other committees in his capacity as General
Counsel of the Department of Defense. Every new piece of
information has strengthened the case against him.
Time and again, on some of the most fundamental questions
of law and diplomacy that have come before the Department of
Defense, Mr. Haynes has displayed a shocking failure of legal
and moral leadership.
It is astounding that the administration would continue to
press the nomination, even though the subordinates who have
followed the policies that he authorized have gone to prison.
At the Pentagon, Mr. Haynes works closely with David
Addington, John Yoo, and others to develop and implement
policies on prisoner detention, executive power, and torture
that made a mockery of the rule of law. Based on incompetent
legal reasoning, these actions represented such an appallingly
bad policy that most of them have been categorically repudiated
by the Congress, the Supreme Court, and even the President
himself.
On torture, Mr. Haynes was personally responsible for the
adoption of the Bybee torture memo as official Defense
Department policy. First pursuing a harsh interrogation policy
without consulting career military lawyers, he subsequently
yielded to significant internal pressure and convened a working
group to study the use of harsh interrogation techniques at
Guantanamo, but later, he secretly forwarded a sham version of
the working group's final report to Secretary Rumsfeld that
closely followed the Bybee torture memo, without even informing
dissenting administration and career military lawyers who were
supposedly members of the working group.
Yale Law School Dean Harold Koh, testifying before this
committee, has called the Bybee torture memo ``perhaps the most
clearly legally erroneous opinion I have ever heard,'' and ``a
stain on our law'', and has been repudiated by the
administration and the Attorney General.
Mr. Haynes also failed to provide people captured on the
battlefield with an immediate determination of their POW
status. He ignored these hearing requirements in spite of the
unequivocal warnings of scores of high-ranking military
officials, including the senior Judge Advocates General of all
the services and the legal advisor to the Chairman of the Joint
Chiefs of Staff.
We are now paying the price for that failure, trying to
recreate those tribunals three or more years after capturing
these combatants, when we should be prosecuting and convicting
many of these individuals as terrorists.
In addition, Mr. Haynes played a key role in establishing
the fatally flawed military commissions process. Instead of
following the established procedures for trying war criminals,
Mr. Haynes and the Department ignored Congress and pursued a
unilateral, unworkable commissions system.
According to the Justice Department, 261 terrorists have
been convicted in the civilian criminal justice system since 9/
11, while not a single conviction has been obtained under the
defective military commissions. Last week, the commissions
process was invalidated by the Supreme Court, which held it
unconstitutional.
Mr. Haynes and his colleagues in the administration claimed
that no American court could review the designation of an
American citizen as an enemy combatant. Mr. Haynes is
accountable for this policy, since it was executed by the
military, not the Justice Department.
In the Padilla case, the administration claimed in court
documents that their ``determinations on this score are the
first and final word'', notwithstanding the Constitution. The
Fourth Circuit rejected that position as absurd.
Mr. Haynes also interfered with Congress's ability to
perform oversight over the detainee issue. Despite a standing
invitation, he has never appeared before the Armed Services
Committee, in direct contravention of his own statements in
pre-confirmation questions indicating he would appear before
the Committee when called.
In addition, Mr. Haynes has ignored laws requiring
protecting whistle blowers be protected from retaliation. Mr.
Greenhouse, the highest ranking civilian in the Army Corps of
Engineers, was demoted in retaliation for blowing the whistle
on Halliburton's no-bid contracts.
In ways like these, Mr. Haynes's actions as General Counsel
of the Department of Defense have caused irreparable harm to
our military, our foreign policy, and our reputation in the
world.
On torture, General Thomas Romig, the head of the Army
Judge Advocate General Corps, wrote that ``implementation of
questionable techniques will very likely establish a new
baseline for acceptable practice in this area, putting our
service personnel at far greater risk and vitiating many of the
POW/detainee safeguards that the U.S. has worked hard to
establish over the past five decades.''
The Guantanamo issue has continued to fester, becoming a
blight on our international image, led to rebukes by the
International Red Cross and the U.N. Human Rights Commission.
The invalidated commissions process for handling Guantanamo has
never produced, as I mentioned, a single conviction or even a
charge against a high-ranking Al Qaeda figure in 5 years.
The nomination of Mr. Haynes to the Fourth Circuit is as
embarrassing as any that has ever come before this committee.
His record clearly shows a deplorable lack of commitment to the
fundamental rights and the principle of separation of powers
that we all expect from the Federal courts.
Former Chief Judge Advocate General of the Navy, Rear
Admiral John Hutson, has said that ``[i]f civilian leadership
of the military means anything at all, it must mean there is
accountability for failures such as his.'' If we are not going
to hold Mr. Haynes accountable, let us at least deny him a
promotion to a lifetime seat on the Federal bench. I will urge
my colleagues to reject the nomination.
Chairman Specter. There will be order in this room. If
anybody speaks--will you please have the lady removed? Have the
lady removed. Have her removed.
Mr. Haynes, the floor is yours. We are very interested in
your testimony. You may proceed.
STATEMENT OF WILLIAM JAMES HAYNES II, NOMINEE TO BE CIRCUIT
JUDGE FOR THE FOURTH CIRCUIT
Mr. Haynes. Thank you, Mr. Chairman, Senator Hatch, Senator
Kennedy, Senator Sessions, Senator Cornyn.
I appreciate the opportunity to appear before you again. It
has been a little over 2 years since I was here last. Senator
Leahy, thank you for coming as well.
I must not let pass the kind words Chairman Warner and
Senator Allen said a moment ago, introducing me and my family.
Both of them have been so gracious in welcoming me to the
Commonwealth of Virginia some three years ago.
Like so many other people who have served in the Armed
Forces around the world, when we chose to settle in Virginia we
were welcomed as family.
I thank my family, my wife Meg, of 24 years, who has been
my rock, my children, Will, Sarah, and Taylor, who have grown
quite a bit in these last 5 years that I have been so selfish
as to work in the Department of Defense.
Sarah and Taylor are moving up in school. Taylor will be a
freshman at Yorktown High School, and Sarah, a first-year
student at Davidson College. Will is already at Davidson. After
trying to enlist twice in 2001 as a 14-year-old, he was
determined to fight the terrorists who tried to kill his dad at
the Pentagon.
Will finally joined the Army. He is an ROTC scholarship
student at Davidson, following in his father's footsteps, and
his grandfather's before, who served 26 years as an Air Force
officer after graduating ROTC at the University of South
Carolina.
I thank the President for his continued confidence in me,
and for his nomination of me to be a judge.
If confirmed, I pledge that I will be true to the
Constitution and laws of the United States and that I will
discharge my responsibilities without partisanship and without
favoritism.
I have served as the General Counsel of the Department of
Defense for more than 5 years. If not already, within weeks I
will have served longer than anyone else in this job, and it
has been during war.
My duties are much like those of a general counsel of a
large corporation. The Department has many hundreds of
thousands of employees and is responsible for the expenditure
of more than $400 billion annually, and has presence worldwide
ranging from industrial operations to environmental
stewardship, from advanced research, to air, land, and rail
transportation systems. My client, the Department of Defense,
also must fight, and win, the Nation's wars.
The soldiers, sailors, airmen, and marines around the world
are performing magnificently, and it is my deep privilege to
serve with them. We should all be thankful that they are out
there every day, protecting us from our enemies.
The attacks of September 11, 2001 demonstrated the kind of
enemies that they, our soldiers, sailors, airmen, and Marines,
and we face. These enemies are unique. They do not have
uniformed armies or capitals to capture. They do not follow any
rules, other than to exploit the rules of civilized society.
This is a war that has presented many difficult questions
for people like me, a lawyer working for the country and for
our soldiers, sailors, airmen, and marines.
I have, along with others, endeavored, along with my
client, to develop appropriate guidelines for treatment and
questioning of terrorists. Information is, after all, critical
to protecting this Nation in this conflict.
That approach has, from time to time, been adjusted. But
from the beginning, and at all times, the rule has been clear:
even the terrorists must be treated humanely and we must
operate within the law as best we see it.
This issue, getting information, in particular, has
generated passionate debate that has been healthy and
worthwhile, but there has been much misinformation about these
debates.
One episode in particular has been much in the news, the
interrogation of the 20th highjacker, a man named Muhammad al
Katani, at Guantanamo Bay, Cuba. Remember who he is. He is the
man identified by the 9/11 Commission who flew into the
Orlando, Florida airport in August of 2001 to be met by the
lead highjacker, Muhammad Atta, and one other highjacker.
Katani is said to have been likely the operative that would
have rounded out the team on United Airlines Flight 93 which
crashed into an empty field in Shanksville, Pennsylvania.
Thankfully, an alert Customs official turned Katani away.
He returned to Afghanistan and was captured after 9/11. Katani
was brought to Guantanamo, but our soldiers did not learn who
he was until the late summer of 2002, shortly before the first
anniversary of 9/11.
Now, what was happening then? As the anniversary
approached, intelligence and threat warnings spiked, indicating
that attacks might be imminent. Additionally, over the spring
and summer there were deadly attacks in Tunisia and Pakistan.
In October of 2002, Al Qaeda leader Ayman al-Zawahiri
released a tape recording stating, ``God willing, we will
continue targeting the keys of the American economy.'' In
September and October, the FBI broke up the Lackawanna Six cell
in New York. October 12, 2002, Al Qaeda affiliate Jama Islamia
bombed the nightclub in Bali, killing more than 200 people and
injuring about 300.
Meanwhile, the interrogators of Katani were frustrated.
Katani showed considerable skill in resisting established
techniques developed for questioning prisoners of war, lawful
combatants. He maintained his story that he went to purchase
falcons.
So, the commanding general of Guantanamo, an aggressive
Major General, whose civilian job was to serve as a State court
trial judge, sought permission from his superiors to employ
more aggressive techniques than were traditionally employed by
the U.S. Armed Forces over the decades for interrogating
prisoners of war.
His request came with a concurring legal opinion of his
Judge Advocate and was forwarded to the commander of Southern
Command, a four-star general named Hill, who in turn forwarded
that request to the Joint Chiefs of Staff at the Pentagon, and
on to the Secretary.
In the succeeding weeks as the request passed up the line,
many people struggled over that question. I struggled over that
question. Like many questions I have had to deal with, these
are difficult decisions, how to deal with this kind of enemy
and this kind of war, and the balances that need to be struck
in light of what the President has directed and what the laws
and the Constitution demand of us in government.
Ultimately, I joined the Chairman of the Joint Chiefs of
Staff, the Deputy Secretary of Defense, and the Under Secretary
for Policy in recommending--and I signed the memorandum--that
some of the requested techniques be approved, the more extreme
ones to be rejected, noting that while all of the techniques
might be legal, as the opinion suggested, and as Chairman
Specter pointed out, as the Justice Department might have
determined, those techniques should not be approved in their
entirety because, as I said in the memorandum, the Armed Forces
operate with a tradition of restraint.
Deep concerns regarding the interrogations at Guantanamo
continued. The Secretary approved this approach in early
December of 2002. Over the next few weeks, from time to time I
would hear from others in the legal community that they were
concerned about what might be going on hundreds of miles away
in Guantanamo.
In each case, I would alert the Secretary and the senior
leadership of the concerns and I would go to the joint staff
and seek assurances that the interrogations were being properly
conducted. Nevertheless, the anxiety and concern continued.
This is true of myself, as well. These are heavy
responsibilities. I take responsibility for my part in them,
and that is just part of the job.
Eventually, in early January I went back to the Secretary
again, asked him to rescind the approach approved for Mr.
Katani, and give me some time to pull together all the
interested stakeholders in the Department of Defense and give
this approach further analysis.
Now, I must point out that this is not something the
Defense Department has had to deal with for quite some time.
The decision of the Secretary and his subordinate commanders in
how to question terrorists at a strategic interrogation
facility such as that of Guantanamo Bay, Cuba, is something
that the Department had not confronted, to my knowledge. I
certainly found no documentation to suggest that it had ever
been addressed before. What the Department had prepared for was
interrogating prisoners of war in a traditional armed conflict
between nation states.
The Secretary approved my request and directed me to
convene a working group, which I chartered on the 15th of
January. I called together representatives, as I said, of all
the stakeholders, representatives of the combatant commanders,
the Chairman of the Joint Chiefs of Staff, all of the Judge
Advocates General of the military services, the General
Counsels of the military departments, the Director of the
Defense Intelligence Agency, various law enforcement officials
within the Department, and invited them to bring anybody else
that they wanted to this deliberation. I asked the General
Counsel of the Air Force to chair this group.
Contemporaneous with that, I asked the Department of
Justice for an opinion. This was new ground. The President had
determined a year earlier that certain aspects of the Geneva
Conventions did not apply, as a matter of law, to the Al Qaeda
foes that we faced, based in part on a legal opinion by the
Attorney General of the United States and the advice of his
senior Cabinet officials. We were in new territory.
There were still, however, rules that we had to consider.
The Justice Department, charged by the executive with
determining with finality what is the legal position of the
executive branch, was the appropriate place to go for a
definitive opinion.
But that is not where it stopped, because just because the
law might allow something does not mean that one must do what
the law might allow. So the working group was requested to
evaluate every consideration conceivable: from a policy
perspective, from a legal perspective, from an effectiveness
perspective, from a public affairs perspective, should any of
it become known, from an international perspective, a
diplomatic perspective: everything was on the table. The
Secretary gave me two weeks to produce that.
Two weeks came. The Justice Department had provided a draft
legal opinion. A number of senior military offices, the four
Judge Advocates General, expressed their strong reservations
about the possible implications of that.
I believe those opinions are already public. I know that
Senator Graham held a hearing last summer in which he had a
number of the people who participated in that process testify
about their memorandum and he released those to the public.
I note that they had been provided a year earlier in their
classified form to the Armed Services Committee, but Senator
Graham, in conducting his hearing, asked that they be
declassified, and the Department did declassify those opinions.
I went back to the Secretary and said to him, the
Department is not ready to come to resolution on this issue. We
took another almost 2 months, during which, of course, a number
of things continued.
I noted earlier, as General Counsel of the Department of
Defense, how much my job is like a corporate counsel, and I had
a number of other things to attend to. But this was very
important and remained on my mind. From time to time, I would
check in with the working group. We had a number of spirited
discussions, mostly with the lawyers, which I think was a very
good thing.
In the end, on the 16th of April, after the working group
had collected and written up three major components of their
analysis: the legal analysis, which to be sure, was the Justice
Department analysis, which, as a matter of tradition, practice,
and regulation is the binding legal opinion within the
executive branch, and which we, as part of the executive branch
were bound to observe; a policy portion, which discussed all of
those things that I highlighted a moment ago, and probably some
more that I have forgotten, and a substantial appendix that
described 35 separate techniques measured against each one of
those criteria that I laid out just a moment ago as the working
group found it appropriate to evaluate.
In the course of assessing those 35 separate techniques,
the group, with my full agreement, chose not even to evaluate
certain techniques that had been collected from various
quarters. Among them, the infamous water board technique that
we have heard so much about in the press, was not even
evaluated or considered, and certainly not recommended or
approved.
When the report had been fleshed out, there continued to
be, as I understood it--again, the General Counsel of the Air
Force chairing the working group--there continued to be give
and take, mostly about the chart showing all the techniques and
what safeguards ought to be employed, what approval levels, if
approved, should be given.
At that point, I went to the Secretary, and with his
blessing, suggested that these proposed techniques, the 35
techniques, be evaluated by the other senior leaders of the
Department.
By that, I am referring to principally the chiefs of staff
of the services and the secretaries of the military
departments, in addition, of course, to the Secretary's other
direct reports, and the Deputy Secretary of Defense.
For three or four weeks in late March and early April of
2003, those proposals were evaluated at those levels, first by
the three-star deputy chiefs of staff of the services, then the
vice chiefs, then the chiefs, then the secretaries of the
military departments.
In the course of that, I conferred with the Chairman of the
Joint Chiefs, General Dick Myers, and urged that we recommend,
again, a substantial subset of what had been evaluated.
So of those 35 techniques that were evaluated in that
thorough way, the Chairman ended up recommending with my strong
endorsement, and contrary, I might add, to some others in the
Department who urged that all of them be approved, and the
Secretary approved 24 of those 35 techniques.
Of those 24, 17 are the 17 approaches in the field manual,
then and now still in effect, drafted for interrogating
prisoners of war in Geneva Convention-governed conflicts.
The additional seven were highly regulated, two of which,
arguably, were restatements of one or two of the 17 basic
techniques. The Secretary approved them in April of 2003 only
for unlawful combatants at Guantanamo Bay, Cuba.
So again, the fact that the law was advised by the Justice
Department in a definitive way for the executive branch,
including my client, the Department of Defense, I recommended a
subset and recommended rejecting a number of others.
Now, all of this discussion is historical in nature. It is
an example of the kinds of things your Defense Department has
had to confront in 5 years of war. It is historical, more
importantly, because, as Senator Kennedy has pointed out
earlier, the legal opinion of the Department of Justice has
been withdrawn, notwithstanding the fact that all of those 24
techniques approved by the Secretary were subsequently reviewed
thoroughly by the Department of Justice and found to be lawful.
Last year, when you, the members of the Senate and House of
Representatives, and the President, when he signed the bill,
passed the Detainee Treatment Act, requiring that
interrogations within the Department of Defense be conducted
only using techniques authorized and listed in the Army field
manual may be used, the Department issued an order within hours
of the President signing the bill directing that.
Therefore, as we speak, within the Defense Department, only
those techniques authorized and listed in the field manual, the
1992 version of the field manual for interrogations, are
authorized.
Now, I have been speaking as the General Counsel of the
Department of Defense. This is one episode in my tenure in the
executive branch. But I am, as you know, Mr. Chairman and
Senators, a nominee to be a judge and I think it is appropriate
for me to say something about that.
My first job out of law school was as a law clerk for a
judge, who remains one of my heroes. Judge James B. McMillan in
the Western District of North Carolina was a great teacher. I
learned a lot from him, of course, and carry many of those
maxims with me today as I serve in the executive branch.
He was a wonderful man. He is no longer with us. I remember
a few of his sayings. Every day, I find some occasion to use
one: ``never attribute to malice that which can be attributed
to stupidity.'' It is a very useful thing to remember when you
have contentious discussions with people of good faith.
Another that he told me quite often was, ``your job as a
law clerk is to keep me from making unintended error.''
Finally, he said quite frequently, ``Remember, Jim, government
has no rights, only responsibilities.''
Now, I did not always agree with Judge McMillan, but I have
not forgotten that the awesome powers that the government has
are checked by the Constitution. And while I do not think that,
as a legal principle--particularly as somebody who has to
represent or advise a client who appears in court often--I do
not think it is quite accurate to say that government has no
rights, only responsibilities, but it is an awfully good maxim
for a government official to follow.
That is what guides me, and what has guided me for 5 years,
and guides, I think, fairly stated, the men and women of the
armed forces whose responsibility it is to protect all of us
from a vicious enemy.
If I am confirmed as a judge, I will remember that. I will
have a different role. I will not be an advocate for a client,
I will not be representing a point of view. I will be applying
the law and the Constitution fairly, without partisanship, and
with good faith.
I thank you for the opportunity, Mr. Chairman, to make such
a long statement, and look forward to your questions.
[The updated biographical information of Mr. Haynes
follows. The original biographical information can be found in
Senate Hearing Number 108-135, Pt. 5, hearing date: November
19, 2003. A prepared statement of Mr. Haynes appears as a
submission for the record.]
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Chairman Specter. Mr. Haynes, did you rely upon the
memorandum prepared by Assistant Attorney General Jay Bybee in
formulating the standards for interrogation?
Mr. Haynes. I relied on a different, but substantially
similar, opinion from the Office of Legal Counsel that was
issued later. The one that you are referring to I believe is
dated August of 2002, which I did not have at the time. I
believe that one was addressed to the counsel to the President.
Chairman Specter. Did you agree that there could be acts
which could be ``cruel, inhuman, or degrading,'' as specified
in the Bybee memorandum and still not constitute prohibited
torture?
Mr. Haynes. Well, sir, I was the recipient of an opinion
from the Justice Department. And forgive me, sir. I am going to
answer your question, but I want to just lay the groundwork. I
received an opinion, which was the expressed view binding on
the executive branch.
Your direct question, did I agree that there is conduct
that does not amount to torture that is what is described as
``cruel, inhuman, and degrading,'' I certainly agreed with that
because it was a statement, at least insofar as you have
described it--I think, anyway, if I heard you correctly--about
what the law of the United States requires embodied in the--
Chairman Specter. Did you recommend any interrogation
techniques which would be classified as ``cruel, inhuman or
degrading''?
Mr. Haynes. I do not believe so, certainly not at the time.
The phrase ``cruel, inhuman and degrading,'' Senator, as you
know--I should say, Chairman--is one that has vexed the
Congress of the United States for some years. It is a term that
comes from initially the convention against torture that was
negotiated in the 1980's and ratified by the U.S. Senate in the
1990's.
Chairman Specter. Aside from the history, Mr. Haynes, do
you think that any of the techniques you had recommended would
fall into those categories of ``cruel, inhuman or degrading''?'
Mr. Haynes. I do not believe so, but I hasten to add,
Senator, you all have defined that phrase in the interim to
mean what is prohibited by the Fifth, Eighth, and Fourteenth
Amendment to the U.S. Constitution.
Chairman Specter. Mr. Haynes, have you seen this letter
dated July 7 from General Joseph Bore and 19 others that was
referred to by Senator Warner?
Mr. Haynes. Yes, sir. Senator Warner handed that to me just
a few minutes ago.
Chairman Specter. Have you had an opportunity to read it?
Mr. Haynes. I read it just a few minutes ago, but I believe
that it addresses some of the episodes I have just described.
Chairman Specter. Well, when you have had an opportunity to
review it, you are welcome to file a detailed response with
this committee. For the time being, I would like your response
to the allegations which are set forth in the second paragraph,
that you ``established policies over the objections of
uniformed military lawyers.'' Is that true?
Mr. Haynes. I am sure that in the course of five years
serving as chief legal officer of the Department of Defense I
have made decisions that some uniformed lawyers have not been
happy with, some of them I know about, some of them I do not. I
also would point out that there are thousands of Judge
Advocates serving in the armed forces, many of whom are in my
office.
Chairman Specter. Let me move on to another point, because
I have very little time left.
Mr. Haynes. Sorry.
Chairman Specter. The allegation is that those practices
led not only to the abuse of detainees in U.S. custody, but to
a dangerous abrogation of the military's longstanding
commitment to the rule of law. There is too little time left to
ask you to answer that, but these are very serious
allegations--really, accusations--from a very prominent group
of individuals.
The Committee would like your response, and we would like
included in your response the contacts you have had with these
individuals, as to what basis they had for making these
statements.
Mr. Haynes. May I answer quickly?
Chairman Specter. Before my red light goes on, I am going
to ask my deputy to hand you a coded classification which you
and I discussed at length yesterday, and will be made a part of
the record. Explain what it means.
Mr. Haynes. Thank you, Mr. Chairman. I would like to
answer, very briefly, directly to that question about, did
policies lead to abuses.
Chairman Specter. Once my red light is on, I will not ask
any questions, but you are free to respond.
Mr. Haynes. All right, sir. I would like to say that,
again, without having scrutinized that letter or knowing most
of the members that signed that letter, having worked only with
two that I can recall, one of whom was at least 15 years ago, I
do not know exactly what they might be referring to.
But I can say that the Defense Department has investigated
allegations of abuse every time that it was alleged; that one
of the things that the Defense Department is very good at is
responding and self-correcting.
The principal investigations of the most notorious abuse
case, Abu Ghraib, found that those abuses were not a result of
policies within the Defense Department. Indeed, they were in
direct violation of all polices. Indeed, the abuses at Abu
Ghraib were done not by interrogators at all.
Only one of the individuals shown in those horrible
photographs was even somebody of intelligence interest,
according to the investigations. Their conclusions, which have
been provided to the Armed Services Committee, and I think in
large part to the public, concluded that that statement is not
true.
Thank you, sir.
Chairman Specter. You have the color-coded charts, which I
think ought to be made a part of the record, with your
explanation.
Mr. Haynes. Well, sir, the color-coded charts that you have
just handed me and entered into the record are the third part
of the working group report that I described a while ago, that,
as you can see, is sometimes referred to as a stop-light chart
because there are green, yellow and red circles that assess
techniques that go down the left column by a number of
different measures, only one or two of which are legal
measures.
They reflect the significant policy measures of the
techniques that are included within the assessment done by this
working group, including a number of safeguards recommended,
and approval levels proposed. That is what this describes.
Chairman Specter. Senator Leahy?
Senator Leahy. Mr. Chairman, because of the extraordinary--
actually, unprecedented--length of the nominee's opening
statement, and knowing we started late and his family has put
up with a lot in being here, I will put my opening statement in
the record.
I was disappointed you could not testify this morning at
the other hearing, but I appreciate your recitation here.
Now I would like to ask you to supply copies of the
documents relative to the matters you discussed, and their
chronology, if you would do that, please.
Mr. Haynes. Yes, sir.
Senator Leahy. I think that would probably be helpful to
us, and it would be helpful to the Armed Services Committee.
Now, Alberto Mora, who is a former General Counsel of the
U.S. Navy, this year received a Profile on Courage Award from
the John F. Kennedy Library Foundation. That was for his
efforts to resist the Bush administration's adoption of
policies permitting and condoning cruel, inhuman, degrading
interrogation techniques.
Mr. Mora protested these policies, even though many higher-
level Department of Defense and administration officials
supported them. He told others in the administration that these
were alien to our values as a Nation, and actually dangerous to
our troops.
Now, did you, like Mr. Mora, stand up against these
policies, which many now in our military say endanger our
troops and threaten our longstanding values?
Mr. Haynes. Senator Leahy, thank you for that question. I
think what you are referring to is exactly what I have been
talking about, the process that led to--
Senator Leahy. I want to hear your answer specifically. I
have heard a long opening statement. You and I spent nearly an
hour--
Mr. Haynes. Over an hour. Yes, sir.
Senator Leahy. Over an hour discussing this, at the request
of Secretary Coleman and Generals Pace and Jones, and I
appreciate. But on this specific question, go ahead.
Mr. Haynes. There were a number of techniques that I
recommended not be approved, and they were not approved in both
significant instances that I described a moment ago. These were
proposals, and I recommended against them.
Senator Leahy. Why were you told that you were going to be
promoted to one of the highest courts in our land? Why did they
tell you you were? You have not had a significant practice in
courts, you have certainly not argued before the court that you
are being nominated to. What did they tell you when they
nominated you? Why?
Mr. Haynes. Well, I do not recall a specific conversation
like that, Senator Leahy. That puts me in an awkward position,
because it might demand that I toot my own horn, which I do not
like to do.
Senator Leahy. You have taken 24 minutes here to do that
already, so it should not bother you.
[Laughter.]
I said that was an unprecedented and extraordinary length
of an opening statement. So, go ahead. Why were you told that
you were being nominated?
Mr. Haynes. I do not recall being told a specific reason,
except that I think that the President thought that I would be
a good judge, a fair judge, one that would apply the law, not
make law.
Senator Leahy. Did he tell you that?
Mr. Haynes. No, sir. The President did not tell me that.
Senator Leahy. Who did?
Mr. Haynes. But he said some nice things in the nomination.
Senator Leahy. I understand that. I remember that. But did
somebody approach you in the administration and say, hey, we
want you on this court?
Mr. Haynes. I do not remember.
Senator Leahy. Or did you approach them?
Mr. Haynes. I do not remember precisely how discussions
began. There is a process where I guess the White House
considers a number of different candidates. Having worked with
some of the senior people in the administration, I think I must
have come to their attention.
I would point out, as somebody has already pointed out,
that notwithstanding the fact that I have not gotten some of
the same characteristics that some other nominees have, I have
been rated by the American Bar Association twice as ``well
qualified,'' in 2002 and then 2005.
Senator Leahy. We do not seem to be getting to the point. I
think, on something as significant as this, I think one would
remember exactly how they got approached, than not. But I will
accept your answer that you do not remember.
Mr. Haynes. No, sir. I do not remember the first time.
Senator Leahy. You are the first nominee in 32 years that I
have ever asked that question of that did not remember, but I
accept your answer.
Now, I spoke of the 2006 Profile on Courage Award. Mr. Mora
said of the administration's policies authorizing certain
interrogation techniques, ``for as long as these policies were
in effect, our government had adopted what can only be labeled
as a policy of cruelty.''
He said, ``Cruelty disfigures our National character, is
incompatible with our constitutional order, with our laws, with
our most prized values. Cruelty can be effective as torture in
destroying human dignity, and there is no moral distinction
between one and the other.''
Do you agree with Mr. Mora's assessment of the
administration's policies?
Mr. Haynes. No, sir, I do not, if that is an accurate
reflection of his statement. I would point out that there was a
memorandum that I understand Mr. Mora wrote.
I believe that in the same memorandum that that must have
been drawn from, he concluded that the techniques approved by
the Secretary in April of 2003 were well within the bounds of
the law, or something like that, as I recall.
Senator Leahy. Well, my time is up. I will have further
questions later. As I said, Mr. Chairman, I will put my full
statement in the record.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Specter. Thank you, Senator Leahy. Your full
statement will be made a part of the record, without objection.
We follow the early bird rule on the committee, going to
Senators in the order of their arrival. Among the Republicans,
I have Senator Hatch, Senator Sessions, Senator Cornyn, and
Senator Graham, if that is accurate. I yield, first, to Senator
Hatch.
Senator Hatch. Well, thank you, Mr. Chairman.
Mr. Haynes, just so we all know what a ``well qualified''
rating means, and you have had it twice now from the American
Bar Association, let me remind my colleagues what that rating
means.
A rating of ``well qualified'' means, ``the nomination
meets the committee's very high standards with respect to
integrity, professional competence, and judicial temperament,
and that the Committee believes that the nominee will be able
to perform satisfactorily all of the duties and
responsibilities required by the high office of the Federal
judge.'' Integrity, professional competence, judicial
temperament: you have them all.
Do you know retired Army Major General Michael Marchand?
Mr. Haynes. Yes, sir, I do. I worked with him for more than
4 years.
Senator Hatch. In a letter to the Chairman of this
committee, this is what he had to say about your relationship
with the JAG Corps: ``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.'' I ask, Mr. Chairman, that a
copy of that letter be placed in the record.
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Hatch. December 6, 2002, several JAG lawyers sent a
letter to the Wall Street Journal, where they confirmed that
they ``worked over the past months on many complex legal
questions surrounding the war on terrorism and other issues.
The interaction has been frequent and productive.''
Now, to be fair, these opinions are not universal, but it
is worth noting the rationale behind some of the objections
raised. We need to note that in a letter from 20 retired
distinguished military officers, questions were raised about
your judgment in recommending certain interrogation policies.
This is what they had to say: ``Many of the legal positions
put forward by Mr. Haynes in the course of formulating
interrogation policy and many of the techniques he recommended
to be authorized for use against prisoners in U.S. custody has
since been repudiated and revoked.'' But that is precisely the
point.
When you recommended these policies, or the policies that
you recommended, they were based on the judgment of the
Department of Justice at the time as to what the law really is
in this area. Is that right?
Mr. Haynes. That is part of it, yes, sir. The legal
component is one of many, but the legal component is certainly
determinative. If something violates the law, it cannot be
done.
Senator Hatch. Well, that is right. Let me just put it this
way. Your job was to inform the Pentagon what the law required.
As those who wrote this letter noted, ``these policies may have
since been repudiated and revoked.'' But was it your job to
repudiate and revoke them?
Mr. Haynes. No, sir. There is an important distinction that
I think your question raises that I think is worth elaborating
on, if I may. A lawyer's job is, in the first instance, to say
what the law is. That is where he is expert.
Senator Hatch. And here you were told what the law is.
Mr. Haynes. And here I was told what the law is by the
entity historically charged with making that definitive
determination within the executive branch. Now, that is not the
end of an inquiry. There can, beyond that, be policy choices
made about what to do with that law. That decision is properly
made by the lawyer's client, in my case the Department of
Defense, as personified by the Secretary and the other senior
leaders.
Senator Hatch. So, after you brought all these people
together and asked all of them to participate that you
described in your opening remarks.
Mr. Haynes. Yes, sir.
Senator Hatch. And I can see why, with some of the
criticisms that have been thrown your way, it took you a little
bit of time to explain it. I think you certainly deserve that
time without being criticized for it.
But let me just say this. When confronted with a law you do
not like, the answer is not to ignore the law or rewrite the
law. Yet, even so, you brought everybody together and you did,
in essence, say only parts of that opinion could be applied. Is
that right?
Mr. Haynes. That was our recommendation. My recommendation,
I should say.
Senator Hatch. And this is in a situation where we have a
war on terrorism that we had never really fought before, with
people who do not represent a country, do not wear uniforms, do
not have any restraints, and do not abide by the Geneva
Convention themselves, and do not abide by any common rules of
decency.
Mr. Haynes. You are absolutely right.
Senator Hatch. My time is up, Mr. Chairman. I wish I had
more time.
Chairman Specter. Well, thank you. Thank you very much,
Senator Hatch.
Senator Kennedy?
Senator Kennedy. Thank you.
Just on this point here about the working group and the
timing that you went through, talking about the working group,
there was significant opposition to the Yoo memorandum. When
Senator Leahy asked you to provide the memorandum, I assume
that had been referred to in your earlier comments, that will
include the Yoo memorandum?
Mr. Haynes. Senator Kennedy, I am sorry. If that is what he
requested, I can't provide it. Sir, let me, if I may, respond.
Untold numbers of documents have been provided to the Armed
Services Committee in the past year, and I am happy to provide
all of that to the Committee because it is already public.
I have, to the extent that there have been requests for
other documents over which I have no control, I cannot, and am
not, permitted to commit to that. I will have to take that
question back to somebody who has the authority to do that.
Senator Kennedy. That is the same answer you gave me 2
years ago, that you would take it back and look at it. This is
the Yoo memorandum, which is the draft memorandum that was
drawn down from the Bybee memorandum, which is the guiding
document. That is the one you referred to in your earlier
comments and exchanges with the Chairman.
I assume, when Senator Leahy said, will you provide the
documents that you referred to, that is extremely important,
that is the Bybee memorandum for the Department of Defense. Is
there any reason? We have the Bybee memorandum. You say this is
a direct draft from that. Is there any reason we should not
have that document?
Mr. Haynes. Well, sir, again, I have to defer to somebody
else who has got the authority to do that.
Senator Kennedy. Moving on, then. We know there was
significant opposition. The reason it is important, is because
you talked about bringing all the JAGs together, working out a
working group, all about this memorandum which we are not
allowed to see, but is drawn basically from the Bybee
memorandum, which effectively permits torture unless the
purpose of the torture is going to be to cause harm or injury
to the individual rather than gaining information.
Now, the Yoo memorandum from the Judge Advocates General on
the working group, when I asked Admiral Church, he was the
investigator for the Armed Services Committee, who had
overruled the well-reasoned objection in the working committee,
he told me, ``I believe the answer was the Office of General
Counsel.'' I asked, ``Is that Mr. Haynes?'' He replied, ``Yes,
it was.''
Now, that is in the Church report that has been made
available to the Armed Services Committee I was asking for
before the Yoo memorandum. But in that report he goes into some
detail about exactly what these Judge Advocates General
concerns were, and about you overruling.
Let me come back. Did you ever, after you were General
Counsel, after 9/11, talk to anyone in the Office of Legal
Counsel about the preparation of what we call the torture
memorandum?
Mr. Haynes. I am going to respond, first, Senator, to what
you said just a moment ago. I am the General Counsel. I did
advise, as I am required to do, the other legal officials
within the Department of Defense that, as tradition and
regulation requires, that a Justice Department opinion is
binding, that that was in no way an establishment of policy, it
merely laid out what the law is and what the boundaries of
conduct would be for the policymakers to decide.
Senator Kennedy. Now can I get back to my other question?
Mr. Haynes. Yes, sir.
Senator Kennedy. As General Counsel, when OLC was
developing what we call the Bybee memorandum, did you ever have
reason to call the OLC and to speak to anyone over there?
Mr. Haynes. I have had, over the last 5 years, a number of
conversations with the Office of Legal Counsel and other
members of the Justice Department, and many members within the
national security establishments, State Department, White
House.
Senator Kennedy. So is it safe to assume that in the
fashioning and shaping of the Bybee memorandum, that you talked
to members of the OLC about how that was being fashioned and
being shaped?
Mr. Haynes. As I said earlier, Senator Kennedy, the
memorandum that is the basis of the working group report was
addressed to me. If you are referring to the Bybee memo of
August of 2002, I did not have a copy of that. I do not know
how long it took them to draft that memorandum, but I certainly
have talked with the members of the Office of Legal Counsel
from the beginning of the war, because we needed to.
Senator Kennedy. My time is going to run out. We will have
to spend some time here.
Let me ask you today, have you ever repudiated the legal
justification of the Bybee memorandum?
Mr. Haynes. What I have done, sir, is declare, within the
Department, that the working group report, which was based on
that, is null and void and of no operative effect, as indeed it
was of no operative effect except to advise the Secretary for
just Guantanamo Bay, Cuba, unlawful combatants.
Senator Kennedy. I am just at my time. But in reading the
Bybee memorandum, as a legal document, it is one that was
repudiated effectively by the Attorney General. Have you ever
effectively repudiated the legal reasoning of the Bybee
memorandum?
Mr. Haynes. Well, if you would like me to express an
opinion now, I will.
Senator Kennedy. I am just asking if you have ever done
that in the past. My time is up. So I gather that you have not
in the past, but you will express an opinion now. Is that about
where we are?
Mr. Haynes. Well, I am sure I have talked about that
memorandum in a number of different contexts. I have not made a
broad statement to the public, but I will now. I would say,
sir, that it is no longer operative. It was withdrawn by the
Attorney General. I accept that. I think it was the right thing
to do.
In retrospective, I think having requested an opinion,
addressing such a difficult question hypothetically was not the
best thing to do.
Senator Kennedy. My time is just up. But just in ending
this thought. The Yoo memorandum, which you acknowledged was
really based upon the thinking, the reasoning, and the
rationale of the Bybee memorandum, which was the operative
document that you used as the legal justification, we have
asked for that document that, virtually, you have indicated in
your own kinds of expression, very, very similar to the Bybee
memorandum. You indicated in earlier responses to that.
But that is something that we requested from you the last
time you appeared here, and you said you would go back to the
Department and come back to us with an answer, which we never
received.
I do think that that is the one document which is key,
because that is obviously the operative document that was
drafted. As you effectively now, today, repudiated the Bybee
memorandum, we would like to know what your view on that is.
Have you repudiated the Yoo memorandum? My time is up.
Mr. Haynes. I would like to respond, Senator. With all due
respect, I have not been asked by this Committee for that
document. I do not believe that this Committee knew that that
document existed the last time I was here. So if I have failed
to respond to a request from you, I did not know I had one, and
I apologize. But I have responded to it today.
Chairman Specter. Senator Kennedy's time is up. Senator
Leahy asked you if you would provide all of the documents which
you had referred to, and you said that you would. Does that
include the memorandum that you got from the Department of
Justice, Office of Legal Counsel?
Mr. Haynes. I do not think I have the authority to agree to
produce that document.
Chairman Specter. Well, will you make a request to your
Department to produce it?
Mr. Haynes. Yes, sir, I will.
Chairman Specter. We would like to see it.
Mr. Haynes. I will take that back.
Chairman Specter. So pass the request on to the Department
that we would like to see it.
Mr. Haynes. Yes, sir.
Chairman Specter. Senator Sessions?
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman.
Mr. Haynes, it is great to have you with us. Before I get
started, I just want to thank you for your service to your
country. I am proud that your son is also serving the country
in the Army now.
You are an honors graduate, Phi Beta Kappa at Davidson;
your son is at Davidson, a great school. You went to Harvard
Law School. You were rated ``well qualified'' by the ABA for
this position, the highest rating that they give.
You were a partner at Jenner & Block, one of the world's
great law firms, twice. It would be interesting to know how
much money that has cost you, the public service that you have
given to your Nation, to the Department of Defense, to our
soldiers in the field by giving up a partnership in that great
law firm. So I want to say thank you for your work.
I am sorry you had to receive the criticism you received in
an opening statement by Senator Kennedy. There is a litany of
charges, exaggerations, inaccurate statements, and matters
taken out context for which you have absolutely no opportunity
to fully explain. And now we have a group of people dropping in
a letter right here the day of the hearing, where you hardly
have a chance to read it, that is critical. I just think that
is not a healthy way for us to proceed.
You have served your country with distinction, with
fidelity. You have done your best to do the right thing in
very, very difficult circumstances, and I, for one, want to say
thank you.
I noticed, first of all, that with regard to your position,
you are counsel to the Secretary of Defense, a member of the
President's Cabinet. Is that correct?
Mr. Haynes. Yes, sir.
Senator Sessions. And the President has the Attorney
General as his top law officer in the country, and this
Congress has created a position of Office of Legal Counsel.
The person who fills that position is confirmed by the
Senate, and that person is empowered to state the
administration's legal position relevant to important issues
involving any Cabinet department of the United States. Is that
not correct?
Mr. Haynes. That is correct.
Senator Sessions. And whenever anyone in that office is
given a responsibility, they understand what their
responsibilities are. They understand they are making what may
be a very momentous legal call, a legal opinion, do they not?
Mr. Haynes. It is my experience, in dealing with virtually
everyone in government, that they take their job very seriously
and recognize the enormous obligations and responsibility
inherent in the office.
Senator Sessions. And they understand it is their
responsibility. You asked them, when there were questions about
how detainees should be treated and interrogated. And you did
the proper thing, did you not, as a counsel in the Department
of Defense--you asked the authoritative agency of the
Department of Justice for the official opinion. Is that not
correct?
Mr. Haynes. That is what I did. Yes, sir.
Senator Sessions. And they gave you that. There is nothing
wrong if you called them several times to discuss it. There is
nothing wrong with that. The person who issued that opinion,
Mr. Bybee, knew it was his opinion. His name is on it, on
behalf of the Attorney General of the United States. Is that
not correct?
Mr. Haynes. Yes, sir.
Senator Sessions. So I just do not see how you can be
blamed for that. As a matter of fact, you cannot be. It is
wrong to do so. I know a lot of lawyers that come through here,
and the wonderful nominee we just had in the hearing. She was a
prosecutor who prosecuted cases, kind of like I did, doing your
duty. Some have been in law firms, some have served as State
judges and they just go right through.
But here you are, a person giving up the opportunities at a
great law firm to serve your country in the Department of
Defense, having to make tough calls, and I do not think that
ought to be held against you. I think that you have done a good
job in serving your country. I noticed here there is a letter,
signed by Larry Thompson, former Deputy Attorney General of the
United States, and James B. Comey. I believe he was former
Criminal Division.
Mr. Haynes. He was the U.S. Attorney in the Southern
District of New York, then later the Deputy Attorney General of
the United States.
Senator Sessions. Deputy Attorney General. And two others,
Jack Goldsmith and Patrick Philbin. They were very, very
strongly in support of your nomination. They note that when
aggressive techniques were first requested by the joint task
force at Guantanamo, you ``actually recommended that the
Secretary of Defense restrict authorized techniques to a more
limited set.''
Then they note that you reasoned, ``Our armed forces are
trained to a standard of interrogation that reflects a
tradition of restraint.'' Then they note that the opinions of
the Office of Legal Counsel are binding on all executive
agencies in the government, and I would offer this for the
record.
Mr. Chairman, I note that my time is out.
Chairman Specter. Without objection, that letter will be
made a part of the record.
Senator Durbin?
Senator Durbin. Thank you, Mr. Chairman.
Mr. Haynes, we have been here before. I asked you questions
the last time your nomination was up and you did not answer
them, and that is why I opposed you. I am going to give you
another chance.
Our State Department issues a report card on human rights
each year. The State Department has characterized the use of
dogs as an interrogation aid as ``torture, and cruel, inhuman,
and degrading treatment.'' We have publicly condemned the
countries of Libya and Burma for using dogs in interrogation.
In November of 2002, you recommended that Secretary
Rumsfeld approve the use of dogs to intimidate detainees at
Guantanamo. The Department of Defense's own investigation
concluded this technique migrated from Guantanamo to Iraq and
Abu Ghraib.
At least two members of the Armed Forces have now been
convicted, under the Uniform Code of Military Justice, for
using dogs to frighten detainees. It is striking that while
these soldiers were prosecuted, you were being promoted.
What message are we sending our troops, and what message
are we sending the world in light of your role in promulgating
abusive interrogation techniques like the use of dogs, stress
positions, and forced nudity? What message are we sending if we
promote you to the second-highest court in the land?
Mr. Haynes. Senator Durbin, thank you for your question. I
want to make one very important point at the outset about Abu
Ghraib, which is what you are alluding to in your statement
about the use of dogs.
What the photographs at Abu Ghraib showed was not
interrogation, was not authorized, was not the result of any
policy, was not at all sanctioned by anyone. It was not an
accurate depiction even of what was authorized at Guantanamo,
as I understand it. I deplore it and I regret that it happened.
To the extent that some, as you have just said, attribute
that to me, I say, I do not think that is the case and I
deplore it.
Now, your question is, what message would you send?
Senator Durbin. Yes. And I might add, incidentally, I am
going to share with you this record from an investigation of
Abu Ghraib. It was your interrogation technique that they
believe migrated into the very conduct of our soldiers.
It is the same message that is included in this letter, not
a letter from some random individuals, but people who have
served our country in uniform and asked us not to approve your
nomination, believing that it is unfair to hold these soldiers
accountable for using the very technique you approved, then
promote you to the Federal court.
What message do we send to our soldiers if we ignore the
obvious? Every time something like this happens you think,
well, they are going to dispatch a few privates, a few
corporals, a sergeant, maybe get to a lieutenant, but it will
never get upstairs. That is the message of this letter.
Apparently, upstairs there is a promotion party; downstairs,
people are being sent to prison.
Mr. Haynes. Well, Senator, I appreciate your concern. It is
an important concern. Again, I saw this letter this morning for
the first time, but I did read it so I know what it says.
To my knowledge, none of the people who signed that letter
has worked in the Defense Department during the period of time
at issue, so they are expressing an opinion, so far as I know,
based on news reports, many of which are inaccurate.
The investigations of the conduct at Abu Ghraib
consistently found that what happened there was not authorized,
it was not condoned, it was not a result of policy, it was not
even interrogation, and it certainly was not a result of
something that the Secretary of Defense approved a year
earlier, half a world away, for unlawful combatants in the war
on terror.
Senator Durbin. Mr. Haynes, at Abu Ghraib, those images,
which members of the Senate went up to watch in gruesome
detail, hundreds and thousands of images, included the use of
dogs, included forced standing, included nudity, the things
which you approved in the memo you sent to the Secretary of
Defense.
Now you are arguing that there was no connection between
this official policy and what happened later, that it is just
happenstance that the same thing occurred, to the embarrassment
of the United States of America?
Mr. Haynes. What I am saying, Senator, is what the
investigations concluded, that it was neither condoned, nor
even an interrogation. None of the individuals in those
photographs, except one, as I am told, was even of interest,
from an intelligence standpoint or from an information
standpoint.
What occurred at Abu Ghraib, as the Schlesinger report
said, was the work of the night shift, without any authority
whatsoever, for sport. The use of dogs in those photographs was
horrible.
Senator Durbin. I read from the Schlesinger report, ``It is
important to note that techniques''--
Chairman Specter. Senator Durbin, how much more time would
you like?
Senator Durbin. Could I have one minute?
Chairman Specter. Sure.
Senator Durbin. Thank you.
``It is important to note that techniques effective under
carefully controlled conditions at Guantanamo became far more
problematic when they migrated and were not adequately
safeguarded.'' So to argue there is no connection--let me just
close.
Yesterday, I was at Guantanamo. I sat down with our lead
interrogator and I asked him point-blank, ``If you were told
tomorrow that you have to follow the Geneva Conventions and the
Uniform Code of Military Justice, what would you change here?''
He said, ``Nothing.'' We can interrogate these prisoners
effectively without throwing away a lifetime of values this
country has stood for.
You had your chance. You had your moment. You made a
decision, which history will not judge kindly. When you made
that judgment, you really used all of your professional ability
and training, which has been referred to. Now you are asking
for a lifetime appointment to the second-highest court of the
land. I am sorry, it does not follow.
Chairman Specter. Thank you, Senator Durbin.
Senator Cornyn?
STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF
TEXAS
Senator Cornyn. Thank you.
Mr. Haynes, thank you for being here today, particularly to
your family for being here. I know it is not easy for you, or
them, to sit here and listen to some pretty nasty things being
said about you, being attributed to you.
I want to just tell you straight up, if I believed half of
the allegations that have been made against you today and that
have been repeated elsewhere, I would not support your
nomination.
But it is because I do not believe them, that I do believe
you have a distinguished record of public service, I do believe
you are an honorable person who has tried to do the right thing
in a very difficult job, that I am proud to support your
nomination.
What I do not really get, and maybe you can explain it to
us, is the first detainees made their way to Guantanamo Bay on
January 11, 2002. January 11, 2002. But it was not until April
16, 2003 that the various working groups that you have already
testified to ultimately promulgated the approved interrogation
techniques, the 24 techniques that went into effect on April
16, 2003.
For the life of me, I cannot understand. If you were intent
on violating the law, if you were intent on torturing detainees
without regard to international conventions or basic human
decency, why in the world did you spend from January 11, 2002
until April 16, 2003 studying the law, having these meetings,
trying to develop a policy? Why in the world would you do that?
Mr. Haynes. To clarify, Senator, there is one intermediate
step. That is the one that Senator Durbin was referring to,
which was in late November of 2002, which is when the urgent
need for guidance on how to interrogate the twentieth
highjacker came up. It was from the period right after that
until April 16, 2003 that all the analysis was conducted.
But your point is absolutely right, which is that,
notwithstanding the urgent need expressed by some quarters of
the defense establishment for information necessary to protect
American lives and soldiers' lives, perhaps, overseas, the
Department went to great lengths to look hard at this
question--perhaps too long, but they did take that amount of
time.
Senator Cornyn. And is the reason that you took as long as
you did and that you convened as many meetings as you did among
lawyers and other policy advisors because you were trying to
figure out how to strike the right balance?
Mr. Haynes. Absolutely right. But I should say, I was not
the decision maker. I was trying to be very clear about my
role, as the lawyer: what is the law, then what is the policy?
Senator Cornyn. Point well taken. You were not the ultimate
decision maker, but you were trying to provide your best
professional advice to Secretary Rumsfeld.
Mr. Haynes. Yes, sir.
Senator Cornyn. And, in turn, to the President of the
United States. Is that not right?
Mr. Haynes. Certainly to Secretary Rumsfeld. I did not
advise the President.
Senator Cornyn. I want to make sure that we all understand
what the context is. I mean, it is easy for us to sit here
today, 5 years after our country was attacked and 3,000 people
died at the hand of a new and different kind of enemy unlike
any that our country has ever dealt with before, but I would
just like to tell us what was in your head as you were trying
to develop these interrogation techniques about both the value
of the intelligence that you would be able to get, or that our
interrogators would be able to get, from terrorists that might
prevent future 9/11s, or injury or death to our troops on the
battlefield, and whether that was a factor weighing on your
mind in trying to figure out, number one, how to do the right
thing, but number two, to do it in expeditious a way as
possible so we could get information that might, indeed, save
American lives.
Mr. Haynes. There is a phrase that comes to mind that was
coined by somebody a lot smarter than I am, and I do not use it
regularly but it seems appropriate now, and that is ``cognitive
dissonance.'' These are hard questions.
As many of us experienced on 9/11, I knew some people
killed. Working in the Defense Department, I worked all the
time with people who put their lives at risk. The value of
information about what Al Qaeda might be planning to do to our
soldiers or to our citizens in this country is hard to
overstate.
On the other hand, there are other important concerns that
all of us share. We are all Americans and we stand for things.
How one strikes that balance is difficult. Who makes that
decision is sometimes extraordinarily important.
The lawyer, such as I, is an important player in that and
must say what the law is, and what it is not. The client needs
to make the decision about what to do with the discretion
available to him.
So these are hard calls. I am not complaining about that,
either. It is an honor to be serving in the Defense Department
and the people that I work with are, without exception,
extraordinary people. But that is what we face.
Chairman Specter. Thank you, Senator Cornyn.
Senator Graham?
Senator Graham. Thank you, Mr. Chairman.
Mr. Haynes, my analysis of how to dispose of your
nomination is not going to be based on holding you responsible
for every mistake or every bad thing that happened; that is not
fair.
I do not believe anyone has actually gone to jail for
following a policy you instituted. I think people have gone to
jail because of personal misconduct. I think it is fair to say
that our troops have been confused for quite a while, and some
people have lost their jobs because the bad things that
happened on their watch, they were held responsible for. I am
all for civilian control of our military; I am also for
civilian accountability when required.
Did you, at any time, meet with Mr. Yoo or Mr. Bybee to
discuss what went into the memo?
Mr. Haynes. Absolutely. I certainly did.
Senator Graham. Would it be fair to say that you were part
of the architecture team that came up with the Bybee/Yoo memo?
Mr. Haynes. Well, I do not know what an ``architecture
team'' is, Senator.
Senator Graham. Maybe that is a bad way to say it.
Basically what I am saying is, did they do this in the
darkness, without your input, or did you have input in creating
the final product?
Mr. Haynes. When the memorandum that was addressed to me
was being drafted, not only did I talk with the author, but
every member of that working group had an opportunity to talk
with that author. In fact, many of them did talk with the
author.
Senator Graham. Wait a minute, Mr. Haynes. I am talking
about, the Department of Defense received a legal memo from the
Office of Legal Counsel. During the drafting of that memo, were
you involved in its content, its legal reasoning?
Mr. Haynes. Well, as I was trying to explain, sir--I hope I
am not missing your point--if your question is, did I talk with
the author of the memorandum as it was being drafted, the
answer is yes. I had to start the question. I had to ask for
it.
But what I was trying to say, sir, as part of this process
where I wanted everyone to have an opportunity to express their
views, I asked those people at the Office of Legal Counsel to
come over and meet with the members of the working group as
many times as anybody wanted to meet with them.
Senator Graham. If we could, in sake of fairness to Mr.
Mora, when the contents of the Yoo memo were known to Mr. Mora
and the Judge Advocate individuals long before the working
group, the working group comes up later after many, many
complaints, is it a fair characterization that when the
military legal officers and Mr. Mora saw what you were
proposing, Mr. Yoo was proposing, they went ballistic because
you were going to get our own troops in trouble if they
followed this legal road map, that if you go down the legal
road map Mr. Yoo and Mr. Bybee came up with, you are going to
violate the UCMJ and get our own guys in trouble. Was that not
their initial reaction?
Mr. Haynes. Well, sir, I think you may not quite have the
sequence. Let me try to restate it. In November of 2002 is when
I recommended that the Secretary approve that subset of
techniques, and December 2, 2002 is when the Secretary approved
it. Now, that was after it had come up through the hierarchy of
the Defense Department.
Senator Graham. My question, Mr. Haynes, is when the JAGs,
whatever moment in time they saw the proposal, did they not
push back strongly?
Mr. Haynes. They did, but it was in February of 2003. That
is why it is important for me to make clear to you, sir, the
sequence of events, because their staffs had seen no opinion
from the Justice Department.
Senator Graham. Did Mr. Mora meet with you in January of
2003, long before February? I would like to introduce his memo
of July 7, 2004 into the record, in complete.
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Graham. January 9, he says he meets with you. ``Mr.
Haynes said little during our meeting. Frustrated by not having
made much apparent headway, I told him that the interrogation
policies could threaten Secretary Rumsfeld's tenure and could
even damage the presidency. `Protect your client,' I urged Mr.
Haynes.'' That was January 9, 2003. So apparently long before
February, these people were very concerned about the road you
were going down. Is that not true?
Mr. Haynes. Well, I have already testified to that, Senator
Graham, that there was substantial anxiety within the Defense
Department after the Secretary approved the techniques on the
twentieth highjacker in early December, until he stopped them
on the 12th of January.
Senator Graham. Did you share those concerns?
Mr. Haynes. Absolutely.
Senator Graham. Did you have any legal writings back with
the Office of Legal Counsel that your proposal is way off base,
it is going to get people in trouble?
Mr. Haynes. The Office of Legal Counsel had not expressed a
view to me at that time. I asked for the opinion from the
Office of Legal Counsel.
Senator Graham. My time is up. You have told the story, Mr.
Haynes, as if the JAGs were fully and completely consulted. The
working group was a sham, according to them--and I have talked
to them--and that the final product coming out of the working
group went back to where you started. All of their concerns,
none of them made it into the final product. Is that not true?
Mr. Haynes. I do not want to answer a question quite like
that. But what I will say, is what, for example, General Romig
said in your hearing last June or July, where he said, as I
recall, ``our concerns were listened to and many of them were
accepted.'' Because what they expressed, and I think what you
are referring to, Senator, is a series of memorandum they wrote
in February.
Senator Graham. Why did they need to write the memorandum?
What compelled them to put on paper their strong objections?
Why did they feel the need to write the memo?
Mr. Haynes. I believe the reason they felt the need to
write the memos that they wrote at the time, is that the two-
week period that the Secretary had given us to come back with
recommendations was expiring, and there was a draft legal
opinion that they had been provided from Department of Justice
that they did not like the consequences of.
Now, as each one of their letters reflects, they were
concerned about the policy implications of accepting such a
legal memorandum and employing the breadth of authority that
that might allow.
So what they suggested were, as you point out, and quite
appropriately, concerns about, among other things, the impact
on our soldiers. Those were reflected in the policy component
of the working group report, and ultimately led me to recommend
that the Secretary not approve them all.
Senator Graham. But did the JAGs ever receive the final
product of the working group for their review or input?
Mr. Haynes. The final working group report was limited to
one copy.
Senator Graham. Did they ever see it?
Mr. Haynes. I believe that they did.
Senator Graham. Did Mr. Mora ever threaten that, if you do
not change these policies, I am going to go public?
Mr. Haynes. I do not know. I do not remember that.
Senator Graham. Thank you. No further questions.
Chairman Specter. Thank you, Senator Graham.
Mr. Haynes, you testified earlier in your presentation that
the request was made for more direct techniques against al
Katani. Were they successful in eliciting any additional
information from al Katani?
Mr. Haynes. It is my understanding that he did provide
significant additional information, including about Mr. Reid,
the shoe bomber, and about some other events that I do not
recall.
Chairman Specter. Do you know whether the additional
information he provided was the result of the new techniques,
the additional techniques, of interrogation?
Mr. Haynes. I believe that during the period that he was
interrogated, he did provide some additional information. Of
course, he is still at Guantanamo.
Chairman Specter. Mr. Haynes, yesterday in our meeting you
told me about requests for three different categories for al
Katani, and that you had recommended to the Secretary that they
not use certain facets of Category 3. Would you state for the
record now what occurred in that respect?
Mr. Haynes. The Secretary accepted that recommendation.
Chairman Specter. Well, what were the three categories?
Provide just a little background.
Mr. Haynes. I do not have the list in front of me, but
there were three. When General Dunlavey asked for additional
authority to interrogate, he proposed three categories of
technique in ascending order of aggressiveness. There were not
equal numbers in each category.
Chairman Specter. Had he asked for specific techniques to
be approved?
Mr. Haynes. Yes, sir. And as I said, his request came with
a legal opinion and then was recommended up the line.
Chairman Specter. With the legal opinion from whom?
Mr. Haynes. From his Judge Advocate assigned to him at
Guantanamo.
Chairman Specter. The Judge Advocate asked that those
techniques be endorsed, permitted?
Mr. Haynes. The Judge Advocate provided an opinion that
those techniques would be allowable, in accordance with the
applicable law, as that person saw it.
Chairman Specter. So that opinion was submitted to you for
your ratification, for your approval?
Mr. Haynes. The way a proposal like that works in the
Pentagon, in the Defense Department, is that if the Secretary's
approval is sought from somebody in the field, as in this case,
there is a proposal put together by the commander.
Chairman Specter. All right. That is enough history.
Mr. Haynes. Sorry.
Chairman Specter. Tell me what the techniques were. Time is
always limited here.
Mr. Haynes. All right. I am sorry.
Chairman Specter. So we will go right to the point of
interest.
Mr. Haynes. I cannot remember precisely which ones are in
each category, but Category 1 were the least.
Chairman Specter. What did you recommend not be approved?
Mr. Haynes. Not be approved. I got it. All right. There
were, in Category 3, which was the most aggressive, the one
that is most memorable in the press is something that I believe
is called water boarding. I think it was called something else.
Chairman Specter. What did you recommend with respect to
water boarding?
Mr. Haynes. I recommended that it not be approved.
Chairman Specter. And was it approved?
Mr. Haynes. It was not approved.
Chairman Specter. And was it done?
Mr. Haynes. To my knowledge, it has never been done in DoD.
Chairman Specter. Were there any other techniques that you
recommended not be approved?
Mr. Haynes. There were a few other techniques in Category
3, and I should say, to my knowledge, those were not employed
by the Defense Department.
Chairman Specter. Do you recollect what they were? Would
you provide them to the committee, please?
Mr. Haynes. I will provide them to the committee. Yes, sir.
I am sorry I do not have them on me.
Chairman Specter. That is all right. Just let us have them
so we know what they are, for the record.
Mr. Haynes. Yes, sir.
Chairman Specter. We talked, yesterday, extensively about
the decision in Hamdan v. Rumsfeld, and where we go from here.
Have you had a chance to review the proposed legislation which
I introduced?
Mr. Haynes. I have looked at it again, after our meeting.
It is such a substantial piece that I would still like to study
it more closely, because it has a lot in it. But there are a
number of significant and important components that would, I
believe--and again, I cannot speak for the executive branch, I
am here as a nominee.
Chairman Specter. All I am looking for is your judgment.
Mr. Haynes. Well, I think, in my personal judgment, that
your proposal has a number of very important proposals that
would address the Supreme Court's opinion.
Chairman Specter. All right. My red light is on.
Senator Kennedy?
Senator Kennedy. Thank you. Thank you, Mr. Chairman.
You did list water boarding on your list, did you not?
Mr. Haynes. I did not have a list, sir. But the proposal
that came up from Guantanamo did include something described as
``use of a wet cloth on a face,'' and I think that is what--
Senator Kennedy. A misperception of suffocating. With the
misperception of suffocation. I am just reading what I had
understood were the interrogations recommended as lawful by you
here. ``The following techniques were recommended by Haynes in
the memo to Secretary of Defense Rumsfeld.'' I guess we have
got that here.
Mr. Haynes. Sir, I think that is incorrect. I did not
recommend that.
Senator Kennedy. All right.
Mr. Haynes. I think I recommended against it.
Senator Kennedy. Well, I will not take the time. I will
give it to you so you can look at it later on and let me know.
All right?
Mr. Haynes. Yes, sir.
Senator Kennedy. Thanks.
Mr. Haynes. I can tell you with certainty, I recommended
against that.
Senator Kennedy. All right. But this was, at least, on the
list.
Let me get back to where we are after 9/11, when we have
the Bybee memorandum drafted, because the people that were
working at OLC and the drafting of the Bybee memorandum were
involved and instrumental in the drafting of the Yoo
memorandum. That is according to Church, the Armed Services
Committee.
I want to keep moving. The Bybee memorandum was released in
2002, so we have got that background. The Bybee memorandum has
been out there and it has been effectively understood as the
law, the legal policy. Then we have your other statements about
the recommendations in November of 2002, the working group in
2003. But in 2002, this is the document that is out there.
Now, let me ask you this. The Bybee memorandum, we can see
how, late in 2002, the JAG in Guantanamo says that he thinks it
is legal to do all of these bad things. Well, sure he is,
because the Bybee memorandum is out there.
That is the guiding document which everything is going to
be all right, legal, effectively. So when we keep hearing about
what is legal and what is not, the Bybee memorandum was
effectively in place, and finally repudiated by General
Gonzales in December of 2004.
Now, this is my question to you. Just on the legal
reasoning, the torture memorandum says that ``any effort by
Congress to regulate the interrogation of battlefield
combatants would violate the Constitution's sole vesting of the
commander in chief authority in the President.''
It concludes that the statute banning torture ``does not
apply to the President's detention and interrogation of enemy
combatants, pursuant to his commander in chief authority.''
That is the Bybee memorandum.
Do you believe that American officials could torture
prisoners with impunity, in violation of the anti-torture
statutes?
Mr. Haynes. Not only do I not believe that, the President
made very clear that the United States will not, and as a
matter of policy does not, do that. I would like to say, sir,
you made a statement earlier that I think is incorrect.
That is that the August 2002 memorandum signed by Assistant
Attorney General Bybee, to my knowledge, was not available to
the officer at Guantanamo Bay who wrote that.
Senator Kennedy. It would not have been. That is what Mr.
Gonzales, as the legal counsel, as I understand, asked for.
That is what was turned over as the recommendation of OLC.
Mr. Haynes. You are right about that. It was addressed to
General Gonzales.
Senator Kennedy. And I think Mr. Gonzales, when he
testified, said that that was made available to the Defense
Department, was it not?
Mr. Haynes. I do not recall him saying that at all.
Senator Kennedy. All right.
Mr. Haynes. In fact, I think it was made public in 2004, I
believe. That is when it was withdrawn.
Senator Kennedy. It was in effect for over two years.
I want to get back, and we can come to that. But you are
not doubting that it was in effect for over two years,
effectively, the rule?
Mr. Haynes. I do not doubt that, just looking at the dates.
Senator Kennedy. Well, you must have known about it. It was
in effect for two and a half years. You are the legal counsel.
You did not know that it was in effect?
Mr. Haynes. Well, sir, that opinion, if I am recalling
correctly--
Senator Kennedy. The Bybee memorandum.
Mr. Haynes. [Continuing]. It was addressed to Judge
Gonzales. It was not addressed to me. I asked for an opinion,
and received an opinion, in 2003 that is similar to that
memorandum.
Senator Kennedy. All right. That was in effect, right? That
was repudiated as well when Gonzales repudiated the Bybee
memorandum. Did he repealed yours as well?
Mr. Haynes. Yes, sir. Those were withdrawn and have no
operative effect.
Senator Kennedy. All right. Well, in effect, as I
understand--and that is why it would be worthwhile getting the
information so we know it on the Yoo memorandum, is that it is
virtually similar to the Bybee memorandum. I am interested in
your legal understanding.
In the Bybee memorandum it argues that ``an individual who
willfully tortures a prisoner, in violation of the anti-torture
statute, may avoid prosecution through the defense of
necessity. The defense apparently applies to torture, since any
harm that might occur during an interrogation would pale to
insignificance compared to the harm avoided by preventing an
attack.''
Do you really believe that flimsy justification would
excuse the torture of prisoners?
Mr. Haynes. Senator Kennedy, one of the problems with that
memorandum that I acknowledge, that General Gonzales and others
have acknowledged, is that it was so hypothetical, not tied to
a particular request, to my knowledge, certainly not in our
case.
What was asked for--and this is something I regret--was an
opinion on the extent of the authority available to the
President, if necessary. It is something I regret, as I said.
It addressed hypothetical situations. In order to apply legal
reasoning of that nature, one needs to have some facts to apply
it against.
Now, the facts are that when we received that memorandum,
we said, all right, that is fine. That tells us that there is a
lot of latitude available to the Department of Defense at
Guantanamo for use with unlawful combatants, if the Nation's
security required it.
What we then did, was apply a series of policy assessments,
brought in by everybody involved, that led to the Secretary
approving a subset of possible techniques, well short of what
the Justice Department said might be legal under certain
circumstances.
Senator Kennedy. Well, the fact is that this was in effect
for two and a half years, the Bybee memorandum. The Yoo
memorandum is very similar to it. I understand that this is the
first time. This is the rationale. You can say, we do not know
really what was going to go on. Everybody knew what was going
on. You have got the Red Cross talking about what was happening
to these prisoners and prisoners of war.
We have had it repeated in the Armed Services Committee. I
do not want to get away from what exactly, because I want to
find out about your thinking when you read this Bybee
memorandum. There are people that are absolutely appalled by
it. Appalled by it.
Ronald Reagan was the signer on the convention on torture.
This is not a Democrat or Republican issue, or left/right
issue. It is an issue because we are interested in protecting
Americans.
Mr. Haynes. You are absolutely right, Senator.
Senator Kennedy. That is why all of this has gone on. This
is the further reasoning.
Chairman Specter. Senator Kennedy, how much more time would
you like?
Senator Kennedy. If I may get two minutes.
Chairman Specter. Go ahead. We are going to take it out of
your next round, Senator.
Senator Kennedy. All right. That will be fine. Let me just
get on to this part here. The memo continues, ``There can be
little doubt that the Nation's right to self-defense has been
triggered under our law due to 9/11, and that if a government
defendant were to harm an enemy combatant during an
interrogation, in violation of the torture statute, he could
argue his actions were justified by the executive branch's
constitutional authority to protect the Nation from attack.''
Therefore, school is virtually out. Anyone can do anything
in terms of torture if the purpose is to get information, as
long as you do not have a specific intent to do injury to that
individual, because you are going to get pardoned effectively
because of the President's power.
Do you really believe that, as we have listened to Mr. Koh
at Yale Law School, who said that is the most cockamamie legal
reasoning that he has ever read in his entire life? I am just
interested, as you, as an attorney. Were you persuaded by that
kind of reasoning in terms of your own thinking?
Chairman Specter. You may answer that question, then we are
going to move on.
Mr. Haynes. Yes, sir.
A number of points. The President has made clear, we do not
torture, and the policy is not to torture. What you are
describing is a discussion of a hypothetical situation, not
applied to facts. If your question is, do I--I am not sure what
the question is. But I have already told you that--
Senator Kennedy. It is the memorandum. It is the official
guidance to the President of the United States. We will look
back in the record, but I believe Mr. Gonzales said that it was
made available to the Defense Department.
Chairman Specter. Mr. Haynes, the question is whether you
agree with that memo.
Mr. Haynes. I think that that memo should not have been
requested, and I am the one who requested a version of that
memo, for the reasons that I have already said: that it was
unnecessary and invited speculation about hypotheticals that
need not have been requested.
It certainly did not reflect policy, Senator Kennedy. It
was in answer to a legal question addressed to a lawyer, who is
not a decision maker, about what interrogation to employ.
Certainly I would take issue with your understanding of it in
that respect.
Chairman Specter. Thank you.
Senator Cornyn?
Senator Cornyn. Mr. Haynes, you have been asked about
whether certain Judge Advocate General officers within the
military had a different conclusion than that that you
ultimately reached in your recommendations with regard to
interrogation policy. Do you remember the questions that
Senator Graham asked you about that?
Mr. Haynes. I was a little confused by Senator Graham
because I think I was not clear to him in my presentation about
the sequence of events.
Senator Cornyn. Let me ask these questions maybe to help
clarify it. Was there any source of information, pro, con or
neutral, with regard to what the interrogation policy of the
government ought to be that you refused to consider?
Mr. Haynes. No, sir. As I have tried to say, I wanted
everything on the table.
Senator Cornyn. And there were eventually, you would
concede, some people whose arguments you did not agree with.
Mr. Haynes. That is true.
Senator Cornyn. Is that unusual in your experience as a
lawyer to have a divergence of views among lawyers involved in
a legal question?
Mr. Haynes. It is not unusual to have two lawyers disagree,
much less thousands.
Senator Cornyn. He asked you about Mr. Mora. Who is Mr.
Mora?
Mr. Haynes. Mr. Mora is the previous general counsel of the
Department of the Navy.
Senator Cornyn. Do you believe Mr. Mora was ultimately
satisfied with the interrogation policies, the conclusions of
the working group that were ultimately approved in April of
2003, notwithstanding some earlier concerns he might have
expressed?
Mr. Haynes. Here is what I think. I certainly cannot speak
for Mr. Mora. I know that he was concerned in the period
between early December of 2002 and the middle of January, 2003
when the interrogation of the twentieth highjacker was being
conducted. I know that he had strong views about what the
ultimate policy ought to be. I do not know what he thinks for
sure. I know he expressed his views publicly in recent times.
I believe that the memorandum that Senator Graham
introduced into the record has a number of statements, but I
think that memorandum includes a statement, if it is the one I
have seen in recent months, to the effect that the techniques
ultimately approved by the Secretary of Defense in April of
2003 were well within the bounds of the law.
Senator Cornyn. The quote I have in front of me from Mr.
Mora's memo is, ``To my knowledge, all interrogation techniques
authorized for use in Guantanamo after January 15, 2003 fell
well within the boundaries authorized by law.'' Does that
refresh your memory?
Mr. Haynes. That sounds familiar. Yes, sir.
Senator Cornyn. What I really find so repugnant about all
of the discussion about torture, which we all condemn, is the
suggestion that somehow, notwithstanding the statements by the
President, your statements, statement by Secretary Rumsfeld,
and other prominent government officials, that people still
want to believe and want to allege, without any factual basis
whatsoever, that our government engages in torture of detainees
and others engaged in this global war on terror.
But you have been at the Department of Defense now 5 years.
As a member of the Armed Services Committee, along with
Senators Sessions, Senator Graham, Senator Kennedy and others,
it is my recollection that there have been 12 major
investigations conducted by the Department of Defense or
independent entities into these allegations, whether they arise
out of Guantanamo Bay or they arise out of Abu Ghraib. Is that
correct?
Mr. Haynes. That is correct. There have been a number of
less significant, but thorough, investigations.
Senator Cornyn. Well, in the suggestion that we heard from
Senator Durbin, that somehow the big guys get off scott free,
but the little folks are the ones who get nailed, I know there
have been 500 criminal investigations, roughly 100 disciplinary
actions or other criminal actions.
I seem to recall that the highest-level officer that was
disciplined as a result of Abu Ghraib was a Brigadier General,
if I am not mistaken. Is that not correct?
Mr. Haynes. I think that is right.
Senator Cornyn. Do you know of any basis whatsoever for the
allegation that some were treated differently from others? In
your view, were there repetitive comprehensive investigations
undertaken in an effort to get to the bottom of these charges?
Mr. Haynes. Certainly the latter statement that you made, I
would think it is so. I think it is important to reemphasize
something I said earlier, and that is one of many things about
the Defense Department that should make the country proud, is
that it is a self-correcting mechanism.
In other words, everybody is trained to raise their hand
and report improprieties. When those things are reported, they
are investigated. Then if the facts warrant it, then corrective
actions, ranging from criminal prosecutions, to policy changes,
to determinations that the allegation was unsubstantiated,
happen. That is what continues to be the case within the
Defense Department.
Senator Cornyn. Mr. Chairman, if I can ask one last quick
question.
Mr. Haynes, is it not a fact that the interrogation
techniques approved on April 16, 2003 are the same
interrogation techniques currently in effect today?
Mr. Haynes. No, sir, that is not true. They did prevail
until the end of last year, when the Congress passed, and the
President signed, the Detainee Treatment Act, which had, among
other things, a requirement that only techniques listed and
authorized in the Army field manual may be used. So as soon as
the President signed that bill, an order went out from the
Pentagon putting that into effect.
Senator Cornyn. I thank you for that correction. That is
exactly right. Congress passed that legislation and now all of
the interrogation techniques are published in the Army field
manual. Is that correct?
Mr. Haynes. Yes, sir. The 1992 version is the one that is
in effect.
Senator Cornyn. Thank you.
Chairman Specter. Senator Sessions?
Senator Sessions. Mr. Haynes, thank you for your service to
your country, and your patriotism and your many, many hours of
hard work for your Nation.
I want to get a couple of things straight, just so
everybody knows what has occurred. There was an open discussion
within the Department of Defense about these interrogation
techniques, were there not?
Mr. Haynes. Yes, sir. It was no holds barred.
Senator Sessions. And JAG officers were free to speak up,
and did speak up. You had the Chief Judge Advocates for all of
the services discussing all of these things. Is that correct?
Mr. Haynes. Yes, sir.
Senator Sessions. And you did not just impose some personal
opinion on these techniques. You also asked the Office of Legal
Counsel of the U.S. Department of Justice for an official
opinion of the Attorney General, which is the authoritative
agency, before you approved any techniques.
Mr. Haynes. That is correct, with this clarification. I did
not approve any techniques.
Senator Sessions. Well, that is correct.
Mr. Haynes. Before I made any recommendations, I asked for
all of those things that you have just described. Yes, sir.
Senator Sessions. And that office is the one that is sworn
and has the official responsibility to evaluate legal matters,
and the Secretary of Defense is the one that is authorized and
required to set the policy ultimately. Is that not correct?
Mr. Haynes. Yes, sir. The Secretary runs the Department.
Senator Sessions. And you make advice to him.
Mr. Haynes. Yes, sir.
Senator Sessions. First of all, the Bybee memo that came
out, you did not recommend to the Secretary of Defense that our
military use every technique that the Bybee memo authorized,
did you?
Mr. Haynes. You are correct about that. But let me also
make clear that what you are calling the Bybee memo was
actually not signed by Bybee, but somebody else in that office,
and did not recommend any techniques at all.
It was an exposition of what law applied at Guantanamo for
unlawful combatants in the global war on terror, in their
opinion. So they did not propose any techniques, nor evaluate
any techniques at that time or in that memorandum.
Senator Sessions. And you considered techniques that would
have been acceptable under that memo, presumably, and rejected
those techniques. Is that correct? Or the team that you put
together did.
Mr. Haynes. Well, there were a number of people who
expressed views. My personal view was that a number of
techniques should not even be considered at all. Then yet
another substantial number of techniques that had been
evaluated under the criteria that the working group came up
with also should not be considered or recommended, and I, in
fact, recommended that those be rejected.
Senator Sessions. Well, I think this is all important. You
did not ask the Office of Legal Counsel to tell you everything
you could do, then do everything they said you could do, and
more. You did not even do all the things they said you could
do, number one.
Mr. Haynes. That is correct.
Senator Sessions. I think that is important. Did you want
to respond further?
Mr. Haynes. No, sir. I think I agree with your statement.
Senator Sessions. You prepared these color-coded charts. I
remember when we had the complaint about, I believe General
Sanchez in Iraq, and there were all kinds of approval
practices.
Even if you approved the technique, you did not give that
power, or the DOJ opinion did not give that power,
unreviewable, to an interrogation officer. The more significant
techniques had to be approved higher up in the chain of
command. Is that not correct?
Mr. Haynes. That is correct. But there is an important
point I need to make here. That is that what these charts
reflect are for unlawful combatants at Guantanamo Bay, Cuba in
the global war on terrorism only. It had nothing to do with
anything in Iraq.
Senator Sessions. That is very important. I am glad you
mentioned that, because the President said we would let the
Geneva Conventions apply with regard to Iraq, even though they
do not, because those soldiers do not really meet the
standards, in my view, and do not come close. Those terrorists
do not come close to meeting those standards. But he said we
will do it in Iraq.
But with regard to the Al Qaeda types that were captured
and held at Guantanamo, these are the techniques and they
required review up the chain if somebody were using an enhanced
technique. Is that correct?
Mr. Haynes. That is correct.
Senator Sessions. Well, I think, Mr. Chairman, this counsel
is not operating as a rogue person. The Department of Defense
is not operating as an independent agency, trying to violate
people's rights.
From the very, very beginning, they have had the best legal
advice they could get. They have worked at it, they have had
full debate among JAG officers. Some had a different policy
view about how these things ought to be handled. They thought
they just ought to stick with the Uniform Code of Military
Justice.
But this was a different kind of war, and the President
basically did not agree with that, so they went forward. But
they strictly controlled what they were doing. It is
reviewable. The policies are made available to the Congress and
key leaders.
So I think, Mr. Haynes, you have done your best and have
served your country well under difficult circumstances and you
have reflected credit on you and your fine family.
Mr. Haynes. Thank you.
Chairman Specter. Thank you very much, Senator Sessions.
Mr. Haynes, just a few more questions about looking forward
and where we go from here.
With respect to trial procedures to meet the requirements
of the Supreme Court of the United States in Hamdan v.
Rumsfeld, do you believe that evidence should be used in the
trials which are the result of coerced confessions or
involuntary statements by the detainees?
Mr. Haynes. Senator, if you will bear with me just one
second, I feel schizophrenic. I am here, I am a government
official. I am here as a nominee. You are asking my view about
what the Congress should do. Is that correct, what the Congress
should propose?
Chairman Specter. Mr. Haynes, you are here today as a
nominee for a Federal Judgeship.
Mr. Haynes. Yes, sir.
Chairman Specter. This Committee is interested in your
judgment. The issue as to how you treat detainees and what you
have on trial practice falls squarely within the ambit of
judgment. We are not asking you for the views of the
administration; that has already been made clear. You have
already expressly stated that.
Now do you think, as a matter of policy, in your judgment
as an individual, that we should use coerced confessions in a
trial?
Mr. Haynes. I do not like the idea of coercing anybody as a
general matter. In our conversations yesterday, one of the
things that we talked about was--
Chairman Specter. Let me ask you to respond in writing,
after you have had a chance to think about it, so that we can
move to another question.
Mr. Haynes. Yes.
Chairman Specter. In the same context, do you believe that
a defendant in one of these trials ought to be entitled to
exculpatory evidence? That is, evidence which would tend to be
probative on his innocence.
Mr. Haynes. My view is that if somebody is being tried, all
relevant information, especially of that nature, ought to be
available to the decision maker, especially exculpatory--
Chairman Specter. So it should be made available to defense
counsel?
Mr. Haynes. My personal view is that exculpatory
information absolutely must be.
Chairman Specter. Do you think that defense counsel ought
to be entitled to have access to classified information which
may be relevant to the trial, even though that would not be
necessarily shown to the defendant, but made available to
counsel?
Mr. Haynes. I would observe, on the question of making
classified information available to somebody, the reason that
information is classified--
Chairman Specter. Would the counsel or JAG be cleared to
handle classified information?
Mr. Haynes. Let me try answering it this way, sir.
Chairman Specter. No. Answer it in writing. I want to move
on.
Mr. Haynes. All right. I will.
Chairman Specter. With respect to the treatment of enemy
combatants and detainees who are held for the duration of the
war against terror, which has no ending boundary in sight, if
you have a prisoner of war they are held until the war is over,
then they are released. Where you have detainees, enemy
combatants, in the legislation which I have proposed, there
will be periodic reviews.
What is the kind of information which would be requisite to
holding them as enemy combatants and detainees, the standard
being essentially whether they are a threat, that if they are
released they will go back to the battlefield and kill
Americans?
Mr. Haynes. That has been the traditional standard. That
would be something that would make sense to me.
Chairman Specter. Well, what kind of information? You
cannot have, necessarily, competent evidence that would be
admitted in a proceeding in a criminal trial in a Federal court
in the United States.
But what kind of information would be appropriate to be
received to protect the interests of the United States, the
administration, the President in protecting Americans,
contrasted with sufficient reason for continued attention?
Mr. Haynes. Well, from the country's perspective, the
interest would be to make sure that somebody who is trying to
kill citizens should be detained. So, any information--
Chairman Specter. What kind of data and information would
be appropriate to establish that? That is my last question. My
red light is about to go on.
Mr. Haynes. I will take that for the record. If I may take
that for the record, I will give you writing on that as well.
Chairman Specter. That would be fine.
Senator Kennedy, you have minus one minute for your last
round.
Senator Kennedy. Thank you, Mr. Chairman.
Let me ask you--
Chairman Specter. No, he took six minutes of overtime, so
he would have less than one minute to go. But we have another
round, so start him at five, not at four.
Senator Kennedy. That is awfully kind. I will not take all
that time.
Chairman Specter. You say you will not take all that time?
Senator Kennedy. No.
Let me ask you, did you ever request a judgment by Mr.
Bybee on specific techniques from the Office of Legal Counsel?
Mr. Haynes. No, sir. I never asked Mr. Bybee for judgment
on specific techniques. I did ask his successor at the Office
of Legal Counsel to review the techniques approved by the
Secretary of Defense in April of 2003.
Senator Kennedy. All right. And did you receive that?
Mr. Haynes. I received the judgment--
Senator Kennedy. Is that known, sort of, as the Bybee two
memorandum?
Mr. Haynes. I do not know.
Senator Kennedy. All right. Well, let us just stick with
that. Can you make that available to us?
Mr. Haynes. Bybee two?
Senator Kennedy. Well, the memorandum that you just
mentioned that you received about the techniques.
Mr. Haynes. I do not recall if I did, but if I did receive
a memorandum to that effect, it may be that I can do that,
because, as I said earlier, there has been an enormous
disgorgement of data related to Guantanamo to the Armed
Services Committee already. If that is available, if there is
such a thing--and I think there is--then I will do everything I
can to make it available.
Senator Kennedy. Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Kennedy.
Senator Sessions, would you like another round?
Senator Sessions. Well, I would just say that, with regard
to some of the specific questions you asked, like coerced
confessions, what we define as ``coerced'' in America is a very
low threshold.
For example, if a police officer stands in front of
somebody and asks them, were they involved in a crime, that can
be considered coercion if they feel like the person may have
been threatened. We do not want to exclude confessions or
admissions made to soldiers who make inquiry of people they
apprehend on the battlefield.
With regard to torture, we have a statute that, if I am not
mistaken, senior members of this Committee all voted for that
defined ``torture'' as an intention to inflict severe physical
or mental pain, and defined ``severe mental pain or suffering''
as ``prolonged mental harm resulting from severe physical
pain.''
You are a lawyer. You are required to follow the laws that
Congress passes. That is what we passed as the definition of
torture some years ago in the U.S. Congress. I think President
Clinton signed it.
But I just hope that as we go forward with the overall
process of dealing with detainees, that we will be realistic
and understand the exigencies of the threat this Nation faces
and the difficulties and challenges our soldiers on the
battlefield face.
How do you feel about those soldiers out there, trying to
serve their country, trying to find out information that could
preserve Iraqi lives or American soldiers' lives, or Americans
in the homeland's lives? Would you share any thoughts with us
about how you feel about them and your responsibility to them?
Mr. Haynes. I feel grateful for what they are doing. I feel
humbled by what they are putting at stake. I feel concerned at
what they risk. I feel a fiduciary responsibility, both as a
government official and as a citizen, because they are out
there for us. That is just the beginning.
Senator Sessions. Let me ask you about Abu Ghraib. You are
blamed for it, but in fact the Army found out about that and
brought it forward and, I presume with your advice, the
Secretary of Defense said go full force and investigate and
prosecute whoever was wrong.
Mr. Haynes. Absolutely. That is the standard response when
any allegation comes in, and I believe it was Specialist Darby
is the one who brought that to light and presented that to his
chain of command. The first thing General Sanchez did, was call
in the Criminal Investigative Division of the Army to
investigate it.
Chairman Specter. Senator Sessions, I have just been
advised that there is an unidentified bag in the anteroom. If
we are going to be concluding promptly, fine. If not, the
Capitol Police would like us to vacate the room.
Senator Sessions. We will wrap right up, I am sure.
Were you involved at some point, aware of, and supportive
of the full-fledged investigation and prosecution?
Mr. Haynes. I supported it fully.
Senator Sessions. That is all, Mr. Chairman.
Chairman Specter. That concludes the hearing. Thank you
very much, Mr. Haynes.
[Whereupon, at 6:00 p.m. the hearing was concluded.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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