Detainee Questions Trip Federal Court Nominee

William Haynes nomination to the federal bench appears to be on life support after a hearing before the Senate Judiciary committee. Lawmakers questioned his actions as the top lawyer for the Pentagon. Haynes was intimately involved with decisions about handling prisoners by the U.S.

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RENEE MONTAGNE, host:

This is MORNING EDITION from NPR News. I'm Renee Montagne.

STEVE INSKEEP, host:

And I'm Steve Inskeep. Nearly five years after the September 11 attacks, the U.S. government is rethinking the way it treats detainees. The Defense Department yesterday gave new instructions to military personnel. The memo says they should comply with a key part of the Geneva Conventions. We'll hear more on that in a moment from a former military lawyer who backed the detainees.

Senator are also considering ways to change the trial for detainees. They're trying to comply with a Supreme Court ruling that threw out the Bush administrations plan for tribunals. In another hearing, lawmakers considered whether one of the architects of that now defunct policy should be promoted to an important federal judgeship. Here's NPR Legal Affairs Correspondent Nina Totenberg.

NINA TOTENBERG reporting:

The day started with administration officials telling the Senators that using the court-martial system to try accused terrorists at Guantanamo wouldn't work. That it's impractical to follow the rules that bar second-hand testimony or coerced testimony, impractical to follow rules requiring the defendant see all the evidence against him, including classified evidence.

Instead, administration officials urged Congress to reconstitute the war crimes tribunals by passing a law giving the rulemaking power to the president. Democrats and some key Republicans, however, resisted that advice.

Committee Chairman Arlen Specter remarked dryly, I doubt Congress is going to do that.

And Republican Lindsey Graham, of South Carolina, the only Senator in the National Guard or Reserves, urged the administration to use the Uniform Code of Military Justice as its baseline and then to tell Congress which portions need to be amended for war crimes trials.

Senator LINDSEY GRAHAM (Republican, South Carolina): If you'll adopt that attitude and that approach, we can get a product not only will pass court muster, but the nation can be proud of. If you fight that approach, it's going to be a long, hot summer.

TOTENBERG: Graham would play a key role later in the day when one of the architects of the now void military tribunal system came before the Judiciary Committee as a nominee to a federal appeals court judgeship.

He's Defense Department counsel William Haynes whose nomination has been held up for three years amid questions about his role in a large number of controversial policies.

He's been linked to the infamous torture memos that contended the president as commander in chief was free to disregard laws against torture; and he helped to formulate rules for the treatment of detainees, rules that allowed the detainees to be stripped naked, deprived of light and food, put in stress positions, and menaced by dogs.

Yesterday, he conceded under questioning that he had considerable input on the torture memos, but he disavowed any ultimate responsibility.

Mr. WILLIAM HAYNES (General Counsel, Department of Defense): I wasn't the decision maker. I was trying to be very clear about my role as the lawyer, what is the law.

TOTENBERG: Yes, he said, he did help set policy for the Defense Department on a treatment of detainees. But, he said, of the 35 coercive interrogation methods he considered, he only recommended 24. Haynes said he'd given all the top military brass and their lawyers ample input on these questions, but that's not what some 20 returned generals said in their letter to the committee.

The 20, including retired top legal officers from all the services, said the role Haynes played in establishing interrogation policies over the objections of the Uniform Military lawyers led to the abuse of detainees in military custody.

Haynes' policies, they said, put U.S. military personnel at great risk, jeopardizing detainee safeguards this country has fought hard to establish for the last five decades, and undermined rather than enhanced intelligence gathering efforts.

Haynes rejected any notion that his interrogation rules had led to the abuse at Abu Ghraib, even though the techniques were the same.

Mr. HAYNES: What the photographs in Abu Ghraib showed was not interrogation, was not authorized, was not the result of any policy, was not at all sanctioned by anyone, and I deplore it.

TOTENBERG: He also rejected the generals' contention that they were not seriously consulted.

Mr. HAYNES: I am sure that in the course of five years, serving as chief legal officer for 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 don't.

TOTENBERG: That prompted Senator Graham to make this observation.

Sen. GRAHAM: You've 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've talked to them.

TOTENBERG: Outside the hearing room, Graham was asked if he thought he'd gotten straight answers from Haynes.

Sen. GRAHAM: Yeah, I am not satisfied with the description of how things unfolded. The objections were louder than being portrayed and the input was taken less seriously than being described now.

TOTENBERG: In short, by day's end, it looked as though the Haynes nomination was on life support.

Nina Totenberg, NPR News, Washington.

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