Human Rights First Expresses Serious Concerns About the Nomination of William Haynes To Be U.S. Circuit Judge

Human Rights First has serious concerns about the nomination of William Haynes to the United States Court of Appeals for the Fourth Circuit. His comments and lack of candor at his confirmation hearing did nothing to allay our misgivings. We urge the Senate to closely examine his record, public statements and responses to Senators’ questions.

As General Counsel of the Department of Defense, Mr. Haynes helped to formulate policies governing detainee interrogation and detention that violated U.S. and international law. He recommended that detainees in Guantanamo could be subjected to abusive interrogation techniques, including stripping them naked, depriving them of light, forcing them into stress positions, forcibly shaving them, and using dogs to intimidate them. He also advised that using wet towels and dripping water to make the detainees believe they are suffocating (waterboarding) and threatening them and their families with death might be “legally available” options.

He continued to support many of these abusive techniques over the strenuous objections of uniformed military lawyers from each of the military services who argued that such techniques violated military law and the United States’ obligations under international treaties.

At his hearing, Mr. Haynes stated that he did not believe any of the techniques he approved and recommended constituted cruel, inhuman or degrading treatment, despite a wealth of case law holding the techniques do in fact violate the prohibition.

In recommendations to the Secretary of Defense, Mr. Haynes endorsed much of the now disavowed “torture memos,” including the views that an interrogator would not be guilty of torture even if he “knows that severe pain will result from his actions, if causing harm is not his objective,” and that the President, as Commander in Chief, could authorize violations of the laws against torture. Top military lawyers objected to these positions, but their views were dismissed. In practice, Mr. Haynes’ legal analyses were used by commanders at Guantanamo, and eventually found their way to Iraq and Afghanistan, leading to yet more abuses.

In his testimony before the Senate, Mr. Haynes revealed that he never questioned the legal reasoning of the torture memos and insisted they addressed only hypothetical situations. Mr. Haynes denied any connection between the policies he recommended and the abuses that transpired at Abu Ghraib and other detention facilities despite the fact that these polices were promulgated in near duplicate form in Iraq and Afghanistan. The Department of Defense has yet to provide one of the key torture memos (addressed to Mr. Haynes) that served as the basis for many of his recommendations on interrogation and torture to the Secretary of Defense.

“Mr. Haynes’ disregard for America’s commitment to the Geneva Conventions and other legal obligations helped create a climate of ambiguity about the rules which led to widespread abuse of detainees in Iraq, Afghanistan and Guantanamo,” said Avi Cover, Senior Associate in Human Rights First’s Law and Security Program.

Mr. Haynes also played a leading role in the construction of military commissions to try detainees at Guantanamo. In doing so he took the view that not even the minimum legal protections of Article 3 of the Geneva Conventions apply to these detainees. Last month, the Supreme Court rejected that view, and struck down the commissions as violating both the Uniform Code of Military Justice and Article 3 of the Geneva Conventions.

The legal positions Mr. Haynes has promoted have undermined this nation’s historic commitment to human rights under law. His nomination sends a troubling message to people in this country and around the world.

We strongly urge the Senate to question Mr. Haynes further on each of these issues. Senators should ask to review all of the memos and documents drafted by or approved by the office of the General Counsel relating to interrogation and detention policies and procedures. In particular, the Senate should ask Mr. Haynes if he believes the United States is bound to observe the Geneva Conventions. Senators also should inquire whether Mr. Haynes would uphold legal restrictions under U.S. and international law prohibiting all forms of torture and other cruel, inhuman and degrading treatment.


Published on July 14, 2006


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