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NEW YORK � Things aren’t looking so good for Pentagon General Counsel William Haynes II in his quest for a seat on the Fourth Circuit U.S. Court of Appeals. For more than a year he’s drawn scattered attacks, mostly from Democrats, for his 2003 decision to sanction the use of aggressive methods in military interrogations. But in July, Haynes started taking fire from a new front. Twenty retired military leaders came out against his nomination, arguing that he ignored the views of other Pentagon lawyers in approving the interrogation procedures. In a letter to the Senate Judiciary Committee that was sent just days before the panel heard from Haynes, the retired leaders expressed their “profound concern” about Haynes’ role in establishing policies that “led not only to the abuse of detainees in U.S. custody, but to a dangerous abrogation of the military’s long-standing commitment to the rule of law.” The letter has taken a toll on Haynes’ prospects. Previously he only faced serious grilling from the Democratic senators on the Judiciary Committee. But now some of the committee’s Republican members � most notably Lindsey Graham of South Carolina, himself a former military lawyer � have said they have more questions for the nominee. Haynes, who declined to comment for this story, isn’t without his supporters. But Stephen Saltzburg, the general counsel of the National Institute of Military Justice, thinks that Haynes’ nomination is in trouble. “It looks to me like Sen. Graham shares a lot of the Democrats’ concerns that Haynes didn’t do his job as general counsel,” says Saltzburg, who is also a professor at George Washington University Law School. “I think the odds are that he won’t make it out of committee.” Haynes seemed like a strong candidate when President George Bush first nominated him for the Fourth Circuit seat in September 2003. Prior to becoming the U.S. Department of Defense’s general counsel in 2001, Haynes served as GC of the Army in the early ’90s and as associate GC of General Dynamics Corp. several years later. But Haynes’ nomination soon became dogged by questions about his role in revising the military’s interrogation guidelines. In January 2003 Navy GC Alberto Mora approached Haynes about stories that brutal techniques were being used on prisoners held at the U.S. naval base in Guantanamo Bay, Cuba. According to an internal report that Mora wrote two years later, he told Haynes that the methods � which included stress positions, hooding, isolation and the use of dogs � were, “at a minimum, cruel and unusual treatment, and, at worst, torture.” (Mora, who is now GC for international operations at Wal-Mart Stores Inc., did not return calls for comment for this article.) Mora writes in his report that his concerns were conveyed by Haynes to defense secretary Donald Rumsfeld, who ordered Haynes to convene a “working group” to study the issue of procedures for military interrogations. The group consisted of the JAGs and GCs of each of the service branches, along with other Pentagon officials. But the working group didn’t have the last word. Haynes also requested an opinion from John Yoo, the deputy chief of the Office of Legal Counsel at the U.S. Department of Justice. Yoo had previously worked on an OLC opinion, later tagged “the torture memo,” that authorized the use of extreme methods in interrogations conducted by Central Intelligence Agency officers. According to memos written by the JAGs on the working group, as well as Mora’s internal report, the analysis that Yoo produced contained a narrow definition of torture and a broad definition of the president’s powers to determine prisoner treatment. Permissible techniques included sleep deprivation, 20-hour interrogations, forced stripping and threatening to send the prisoner to a country where he’d be tortured or killed. (The actual opinion that Yoo wrote for the working group has yet to be released by the Justice Department. Yoo is now a professor at UC-Berkeley.) The JAGs blasted Yoo’s analysis in their memos to Haynes. “The use of the more extreme interrogation techniques simply is not how the U.S. armed forces have operated in recent history,” wrote Major General Jack Rives, then deputy JAG of the Air Force, in a memo that became declassified last year. But Haynes overrode the JAGs’ objections. The final report that he sent to Rumsfeld in April 2003 recommended the adoption of all but nine of the 35 controversial techniques sanctioned in Yoo’s opinion. The new guidelines went into effect with Rumsfeld’s approval. And though the final report was attributed to the working group, many of its members � including the JAGs and Navy GC Mora � say that they didn’t see the document until much later. Rives told the Senate Judiciary Committee in July that he first saw the report “about 14 months after it was issued.” The working group’s report became public in March 2005, at which point the Pentagon declared it “a nonoperational ‘historical’ document.” But Haynes still defends his decision to side with Yoo instead of the JAGs on interrogation procedures. In his testimony before the Judiciary Committee, Haynes said that since Yoo’s opinion was an analysis from the Justice Department, it was “the binding legal opinion within the executive branch, and which we [in the Defense Department], as a part of the executive branch, were bound to observe.” The question remains whether Haynes, as the Pentagon’s GC, should have done more to alert his client �Rumsfeld � to the JAGs’ concerns. George Terwilliger III, a deputy attorney general under President George H.W. Bush and now a partner at White & Case, says that Haynes’ role as GC was only to issue a judgment about the legality of the extreme interrogation methods, not their merits. “You must be careful to distinguish between policy positions and the role of a lawyer advising his client on the law,” Terwilliger says. Charles Gittins, an officer in the Marine Corps Reserve and a lawyer who has defended military officials in several high-profile cases, agrees that Haynes’ role as GC “is to give objective legal advice.” But Gittins feels that Haynes should have done more to incorporate the JAGs’ views into his advice, even if that wasn’t what other Pentagon officials wanted to hear. According to Gittins, Haynes as GC “has to be the bearer of bad news when [something] can’t be done.” Daphne Eviatar is a reporter with Corporate Counsel magazine, a Recorder affiliate based in New York City.

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