By Edward M. Kennedy

Friday, April 2, 2004; Page A25

President Bush's nomination of William Haynes to be a federal judge on the U.S. Court of Appeals for the 4th Circuit puts squarely before the Senate the administration's flagrant rejection of even the most basic principles of the rule of law in the war on terrorism.

Contrary to the administration's ridiculous partisan attack in the current presidential campaign, no one claims that terrorists must be treated like any other criminals in our law enforcement system. But the administration has gone to the opposite extreme. Ever since the atrocities of Sept. 11, 2001, it has been using the war on terrorism to justify an "anything goes" rule to handcuff federal judges, deny any access to counsel, carry out unreasonable searches, harass Muslims and Arabs, conduct secret criminal proceedings and deportation hearings, implement arbitrary immigration orders, and impose endless detentions.

Haynes has been nominated to the influential 4th Circuit on the basis of his work as general counsel for the Department of Defense. In that capacity he has developed and defended three of the administration's most controversial policies: the refusal to treat any of the hundreds of prisoners at Guantanamo Bay as prisoners of war under the Geneva Conventions of 1949; the department's military tribunal plan for trying suspected war criminals; and even the incarceration of U.S. citizens without counsel or judicial review.

The administration claims inherent authority to do all this. Not until December, when the Supreme Court was about to decide whether to review this harsh and unacceptable policy, did the administration grudgingly concede that its authority to detain these citizens indefinitely and without access to counsel is limited in any way.

An essential part of winning the war on terrorism is protecting the ideals that the United States stands for at home and around the world. The basic checks and balances in the Constitution are indispensable to our democracy and a continuing source of our country's strength, not luxuries or inconveniences to be jettisoned in times of crisis. The mass detentions at Guantanamo have clearly damaged our reputation abroad, caused serious tensions with our allies, and violated fundamental principles of international law that have long protected U.S. soldiers serving abroad and American citizens traveling in other countries.

With Haynes playing a key role, the administration arrogantly refuses to follow the plain language of the Geneva Conventions, which guarantee basic legal protections to soldiers of all nations. It categorically denies that any of the more than 600 detainees at Guantanamo -- even those who served in the army of the former Afghan government -- qualify as prisoners of war. It flatly refuses to convene the special tribunals required by the Geneva Conventions to resolve doubts about the status of particular prisoners, even though we have routinely done so in such cases in the past.

Haynes denies that any doubt exists about the identity and status of any of the detainees, in spite of multiple reports that dozens of those being held at Guantanamo are innocent noncombatants with no ties to the Taliban or al Qaeda. Surely when even our closest ally in the war on terrorism, Great Britain, decides within 24 hours that the five British citizens recently transferred at its insistence from Guantanamo to British custody pose no threat to public safety, and can be immediately released, it is time to rethink what we are doing. Does the president think Prime Minister Tony Blair is soft on terrorism?

The rules that Haynes has prepared for the Defense Department's military tribunal plan at Guantanamo have been condemned by human rights organizations and our allies. "Unjust, unwise, unAmerican" was the judgment of the Economist magazine. The military lawyers assigned to represent the detainees complain that they can appeal a verdict only to a panel chosen by Defense Secretary Donald H. Rumsfeld. Final judgment is made by President Bush, who has said of the detainees that "the only thing I know for certain is that these are bad people."

"Trust us," says the administration, when trust is what is lacking most about our policy on Iraq in the court of world opinion.

Given William Haynes's deep involvement in these issues, it is especially troubling that he has been nominated to the 4th Circuit -- the extremely conservative court that is the Bush administration's preferred venue for controversial cases on the detention of foreign nationals and other civil liberties issues. Because the Supreme Court can review only a few cases each year, the 4th Circuit often has the last word on these issues. Haynes has refused to say when, if ever, he would recuse himself in such cases.

Nominations do not get much worse than this. Haynes does not come anywhere close to the commitment to fundamental rights and the principle of separation of powers that we all expect from the federal courts. He would be a poster boy on the 4th Circuit for denying the rule of law, and he should not be confirmed.

The writer is a Democratic senator from Massachusetts.