GOP Senator Criticizes Appeals Court Nominee

By Charles Lane
Washington Post Staff Writer
Wednesday, July 12, 2006

A key Senate Republican clashed yesterday with President Bush's pick for a federal appeals court, taking aim at the nominee's past support for harsh interrogation methods at the U.S. prison camp in Guantanamo Bay, Cuba.

At a Judiciary Committee hearing, Sen. Lindsey O. Graham (S.C.) said that Pentagon General Counsel William J. Haynes II had pushed for the tactics over the objections of top uniformed military lawyers who considered the policy process a "sham."

The result, Graham told reporters after the hearing, was "legal confusion" that contributed to the scandal at Iraq's Abu Ghraib prison -- and the attendant courts-martial and other career damage for those held responsible.

Noting that the U.S. commander in Iraq during Abu Ghraib, Lt. Gen. Ricardo S. Sanchez, has seen his career stall, Graham said, "The question is whether enough things went wrong on [Haynes's] watch that he needs to be held accountable."

With Democrats united against Haynes, Graham's position is crucial because without his support Haynes could have a hard time getting out of the Judiciary Committee, which has 10 Republicans and nine Democrats. Graham is also one of the Senate "Gang of 14" that has agreed to oppose filibusters of judicial nominees except in "extraordinary circumstances."

While conservatives have accused Graham of waging a "silent filibuster" against the nominee, Graham insisted yesterday that "I'm not holding up any nomination."

In a lengthy opening statement, Haynes, 48, portrayed the Pentagon general counsel's role as similar to that of a large company's in-house lawyer. He was responsible for identifying legal issues but not making policy, he said.

He began exploring the legality of harsher interrogation methods in the fall of 2002, Haynes said, after interrogators at Guantanamo reported that they were unable to crack a key al-Qaeda suspect, Mohamed al-Khatani, using conventional methods.

"I struggled over that question," Haynes noted, adding that he ultimately recommended against most of the proposed harsher tactics, while signing off on seven.

Haynes addressed the development of a memo that suggested it would be legal to subject some al-Qaeda prisoners to "cruel, inhumane or degrading" treatment. Responding to charges that he essentially collaborated with Justice Department lawyers on the memo, then ran roughshod over military lawyers who objected, Haynes acknowledged that there had been "spirited discussions" at the Pentagon but that everyone received a fair hearing.

But Graham said that the military lawyers "went ballistic" when they saw the "torture memo," believing that it contradicted established military practices and could put soldiers who followed it in legal jeopardy.

When Haynes responded by creating a "working group" to discuss the issues, the lawyers considered it a "sham," Graham noted, because "all of their concerns -- none of it made it into the final product."

The clash between Graham, who is a reserve Air Force lawyer, and Haynes showed how much the political climate has changed in the past two years.

Haynes cleared the committee in 2004, before the Abu Ghraib scandal broke, with Graham's support, but his nomination was not approved by the full Senate before the end of the first Bush term. The president renominated him last year for the Richmond-based U.S. Court of Appeals for the 4th Circuit.

Now the administration is facing a tough legislative battle to rebuild its legal approach to terrorism policies after the Supreme Court rejected its proposed military commissions on June 29.

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