[Senate Hearing 109-633] [From the U.S. Government Printing Office] S. Hrg. 109-633 CONFIRMATION HEARING ON THE NOMINATIONS OF WILLIAM JAMES HAYNES II TO BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT AND FRANCES MARIE TYDINGCO- GATEWOOD TO BE DISTRICT JUDGE FOR THE DISTRICT OF GUAM ======================================================================= HEARING before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED NINTH CONGRESS SECOND SESSION ---------- JULY 11, 2006 ---------- Serial No. J-109-96 ---------- Printed for the use of the Committee on the Judiciary CONFIRMATION HEARING ON THE NOMINATIONS OF WILLIAM JAMES HAYNES II TO BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT AND FRANCES MARIE TYDINGCO- GATEWOOD TO BE DISTRICT JUDGE FOR THE DISTRICT OF GUAM S. Hrg. 109-633 CONFIRMATION HEARING ON THE NOMINATIONS OF WILLIAM JAMES HAYNES II TO BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT AND FRANCES MARIE TYDINGCO- GATEWOOD TO BE DISTRICT JUDGE FOR THE DISTRICT OF GUAM ======================================================================= HEARING before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED NINTH CONGRESS SECOND SESSION __________ JULY 11, 2006 __________ Serial No. J-109-96 __________ Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 30-496 WASHINGTON : 2006 _____________________________________________________________________________ For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800 Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001 COMMITTEE ON THE JUDICIARY ARLEN SPECTER, Pennsylvania, Chairman ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin JOHN CORNYN, Texas CHARLES E. SCHUMER, New York SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois TOM COBURN, Oklahoma Michael O'Neill, Chief Counsel and Staff Director Bruce A. Cohen, Democratic Chief Counsel and Staff Director C O N T E N T S ---------- STATEMENTS OF COMMITTEE MEMBERS Page Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 79 Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts.................................................. 46 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared statement............................................. 296 Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 75 Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania................................................... 1 PRESENTERS Allen, Hon. George, a U.S. Senator from the State of Virginia presenting William J. Haynes II, Nominee to be Circuit Judge for the Fourth Circuit......................................... 4 Bordallo, Madeleine Z., a Delegate from the Territory of Guam presenting Frances Marie Tydingco-Gatewood, Nominee to be District Judge for the District of Guam........................ 6 Warner, Hon. John, a U.S. Senator from the State of Virginia presenting William J. Haynes II, Nominee to be Circuit Judge for the Fourth Circuit......................................... 1 STATEMENTS OF THE NOMINEES Haynes, William James, II, Nominee to be Circuit Judge for the Fourth Circuit................................................. 48 Questionnaire................................................ 54 Tydingco-Gatewood, Frances Marie, Nominee to be District Judge for the District of Guam....................................... 7 Questionnaire................................................ 8 QUESTIONS AND ANSWERS Responses of William J. Haynes II to questions submitted by Senator Specter................................................ 96 Responses of William J. Haynes II to questions submitted by Senator Leahy.................................................. 109 Responses of William J. Haynes II to questions submitted by Senators Specter, Leahy, and Kennedy........................... 136 Responses of William J. Haynes II to questions submitted by Senator Durbin................................................. 156 Responses of William J. Haynes II to questions submitted by Senator Feingold............................................... 181 Responses of William J. Haynes II to questions submitted by Senator Feinstein.............................................. 193 Responses of William J. Haynes II to questions submitted by Senator Kennedy................................................ 208 Responses of William J. Haynes II to follow-up questions submitted by Senators Durbin and Feingold...................... 250 SUBMISSIONS FOR THE RECORD Black, Scott, Major General, U.S. Army, Judge Advocate General, Charles J. Dunlap, Jr., Major General U.S. Air Force, Deputy Judge Advocate General, Bruce MacDonald, Rear Admiral, U.S. Navy, Judge Advocate General, James C. Walker, Brigadier General, U.S. Marine Corps, Staff Judge Advocate, and Ronald M. Reed, Colonel, U.S. Air Force, Legal Counsel to the Chairman of the Joint Chiefs of Staff, joint letters....................... 275 England, Gordon, Deputy Secretary of Defense, Department of Defense, Washington, D.C.: December 30, 2005, memorandum................................ 277 September 5, 2006, directive................................. 278 July 7, 2006, memorandum..................................... 289 Haynes, Williams J., II, Nominee to be Circuit Judge for the Fourth Circuit, prepared statement............................. 291 Mayer, Jane, The New Yorker: February 27, 2006, article................................... 301 July 3, 2006, article........................................ 314 Mora, Alberto R., General Counsel of the Navy, Department of the Navy, Washington, D.C., memorandum............................. 331 Rumsfeld, Donald, Secretary of Defense, Department of Defense, Washington, D.C., memorandum................................... 353 Smith, Dorrance, Assistant Secretary of Defense for Public Affairs, Washington, D.C., letter.............................. 357 Thompson, Larry D., James B. Comey, Jack Goldsmith and Patrick F. Philbin, joint letter.......................................... 359 CONFIRMATION HEARING ON THE NOMINATIONS OF WILLIAM JAMES HAYNES II TO BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT AND FRANCES MARIE TYDINGCO- GATEWOOD TO BE DISTRICT JUDGE FOR THE DISTRICT OF GUAM ---------- TUESDAY, JULY 11, 2006 U.S. Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 3:15 p.m., in room SD-226, Dirksen Senate Office Building, Hon. Arlen Specter, Chairman of the Committee, presiding. Present: Senators Hatch, Sessions, Graham, Cornyn, Leahy, Kennedy, and Durbin. OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Chairman Specter. Good afternoon. Today we have counsel for the Department of Defense, William James Hayes, II, to be U.S. Circuit Judge for the Fourth Circuit, and Justice Frances Marie Tydingco-Gatewood to be U.S. District Judge for the District of Guam. We had expected to start this hearing at 2:15, but the hearing we had on the Guantanamo Bay and Hamdan v. Rumsfeld lasted longer than we had anticipated. We had expected to begin at 3:00, judging from the number of Senators who were present at 2:30, but Senators came in, so we were delayed 15 minutes. I regret keeping you all here. We are joined by distinguished Members of the Senate and Members of the House. I, first, recognize Senator John Warner, of the Class of 1978, to introduce Mr. Haynes. PRESENTATION OF WILLIAM JAMES HAYNES II, NOMINEE TO BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT, BY HON. JOHN WARNER, A U.S. SENATOR FROM THE STATE OF VIRGINIA Senator Warner. Thank you very much for the opportunity to appear here a second time on behalf of this nominee for the Fourth Circuit Court of Appeals. I welcome the opportunity to be here today with the Chairman, Senator Specter, Senator Hatch, Senator Kennedy, Senator Sessions, Senator Cornyn, and my good friend from South Carolina. I am going to go through basically the same statement as I gave here some years ago in introducing this wonderful man and his wonderful family. At this point, I wonder if the Chair would entertain his introducing his wife, Meg, and two of his three children. Would you introduce your wife and two children? Chairman Specter. That is a splendid idea. Mr. Haynes, if you would do that, we would appreciate it. Mr. Haynes. Thank you, Mr. Chairman. Mr. Chairman, this is my wife, Margaret Campbell Haynes, of 24 years. My older son, Will, and my younger son, Taylor. Our daughter, Sarah, is at home, sick. Chairman Specter. Thank you very much, Mr. Haynes. Senator Warner. Thank you, Mr. Chairman. The court to which Mr. Haynes has been nominated by President Bush, the Court of Appeals for the Fourth Circuit, is one that I have had almost a lifetime of association with. The court serves our State of Virginia, West Virginia, Maryland, North Carolina, and South Carolina. Over the history of the Fourth Circuit, there have been a total of 43 judges who have served on that court. In my 28 years here in the Senate, I have had the opportunity of participating in the advice and consent procedure for 18 of these judges. In fact, of the 12 active judges today, only one, Judge Henry Widener, precedes my service here in the Senate. I want to say a word about Judge Widener. He and I both graduated from Washington Lee University, he a bit ahead of me. But I have to say, and I want the record to reflect, in my judgment, I think he is one of the most distinguished jurists I have ever met in my entire life. He served on this court for over 37 years, first as a District Judge and then as a Circuit Court Judge. He is just an extraordinary individual, and I am sure that Mr. Haynes is conscious of the fact that he would, if confirmed, take Judge Widener's seat on this court. Judge Widener decided to remain on the bench, even though he indicated to the President some years ago his intention to retire, until such time as the Senate confirms a Presidential nominee. Back to Mr. Haynes. He earned his Bachelor's degree from Davidson College in 1980, while receiving an Army ROTC scholarship. After graduating from college cum laude and Phi Beta Kappa, the nominee went to the Harvard Law School. Subsequent to his graduation from law school, he worked as a law clerk for Judge James McMillan on the U.S. District Court for the Western District of North Carolina. After completing his clerkship, he worked for over 4 years on active duty as a captain in the Army, in the Office of General Counsel. After leaving active service and practicing law in the private sector, he was nominated by President Bush to serve as General Counsel of the Department of the Army. He was confirmed by the Senate in 1990 for this position. In 1993, he reentered private practice and worked for a number of years. Then President George W. Bush nominated him to the current position as General Counsel of the Department of Defense. Again, he was confirmed by the Senate, this time by a voice vote. As General Counsel of the Department of Defense, there is no doubt that Jim Haynes has had a tough job, with great responsibility. I will put the balance of my statement in the record and just talk to the Committee in a personal sense. I was privileged to serve in the Department of Defense for 5 years during the war in Vietnam. That department is a real challenge, particularly in a time of war. I had to make a number of decisions which were bitterly contested. I appeared before many committees of the U.S. Senate and the House time and time again, questioning the judgment of colleagues that I served with in that period of time as to the correctness of our decisions. I mention that because anyone who accepts the challenge to serve in that department has got to be prepared to accept a very, very heavy burden--and I thought it was a privilege, not a burden--to appear before the Congress and answer the many questions that are asked of them. I remember very clearly a number of instances where I had to make tough decisions with regard to prisoners of war, not unlike situations that are facing us today, and there was considerable disagreement with what the then-Secretary of Defense and I, and others, did. I mention that because I have just come into possession today of two documents, one which is before the Committee already in the context of the earlier hearing today, and that is the memorandum issued to the Secretaries of military departments and many others, but it is the application in Common Article 3 of the Geneva Convention to the treatment of detainees by the Department of Defense. The memo says--and I will just read one paragraph--``The Supreme Court has determined that Common Article 3 to the Geneva Convention of 1949 applies as a matter of law to the conflict with Al Qaeda. The court found that the military commissions, as constituted by the Department of Defense, are not consistent with Common Article 3.'' Now, I talked with this nominee this morning, and he participated in drawing this memorandum up. It is a very constructive and correct management approach to this historic decision by the Supreme Court. I think it should be noted that this memorandum on that decision would be before the Senate here for some time. The distinguished Chairman of the Committee and Members of this Committee had a hearing on this subject this morning; my Committee will have a hearing on Thursday morning on the same subject. I just point that out as showing the constructive work that this lawyer has done for the Secretary of Defense, and indeed, others, in recognizing the importance of that decision. The second letter that was handed to me was addressed to you, Mr. Chairman, and to the Ranking Member, Mr. Leahy. It is signed by about a dozen or so very distinguished former retired officers of the military services, among them, several Judge Advocate Generals. I have just given a copy of this to the nominee. He looked it over and he said to me forthrightly, he welcomes the opportunity to appear before this Committee and address this letter. This is an important document, I say to the committee. I have been privileged to be associated with the men and women of the U.S. military for the better part of my life, and I have the highest regard for them. I have a very high regard for those individuals who are able to work up through the competitive system of the military departments and become Judge Advocate Generals of the Army, Navy, Air Force, and Marine Corps. Some of them are in this article, as well as other officers. So I hope the Committee views this letter and gives this nominee an opportunity to respond to the allegations that are raised in it, because it is a very important letter and it should not be dismissed lightly. Hopefully the nominee can provide for the Committee persuasive responses. I say this because my urging of the Committee is to just give this nominee of the President of the United States for the Fourth Circuit Court of Appeals a fair, objective hearing and render the decision as you see in the best interests of our Nation. I thank the Chair and the members of the committee. Chairman Specter. Thank you very much, Senator Warner. We turn now to Senator George Allen, former Governor and member of the Senate Class of 2000. Senator Allen? PRESENTATION OF WILLIAM JAMES HAYNES II, NOMINEE TO BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT, BY HON. GEORGE ALLEN, A U.S. SENATOR FROM THE STATE OF VIRGINIA Senator Allen. Thank you, Mr. Chairman, Senator Kennedy, Senators Hatch, Sessions, Graham, and Cornyn. Thank you for allowing me to come before you again on behalf of Jim Haynes. I come here again with my colleague, Senator Warner, to show and indicate to all of you my strong support for the nomination of Mr. Haynes to be on the Fourth Circuit Court of Appeals. Senator Warner went through Mr. Haynes' resume, education and professional career; you have that record and I will not reiterate it for you. Judge Widener is the one who he will be replacing, we hope. I have worked for a Federal Judge named Glen Williams. Judge Williams is in the District Court for the Western District of Virginia, based in Abingdon. Right across the hallway was Judge Widener. I have, over the years, from when I was just starting off in my career, admired Judge Widener as a very steady, principled, smart individual, and a character. That is important for southwest Virginia, that you have character, but that you are also a character, and he is an outstanding jurist. This country should be forever grateful for people of his capability to devote their lives on the bench. One of the reasons why people want to do it, is because they love their country. They care about justice, the fair administration of justice. As we look to the fair administration of justice, I would also hope that the Senate will show fair due process to nominations. It was about 3 years ago, Senator Warner and I were first introducing Mr. Haynes to you all. The Fourth Circuit means a great deal. I know Senator Graham knows that, being from South Carolina, and it is an outstanding court. Mr. Haynes, when you look at his record and capabilities, he will be one to contribute mightily and in an honorable way, bringing a unique perspective, but I think a helpful perspective, to the Fourth Circuit Court of Appeals. The American Bar Association has twice rated Mr. Haynes as ``well qualified,'' most recently just last year. He has worked as chief legal counsel for the Department of Defense. The Senate has unanimously, twice, confirmed him. I do note the letter that my colleague, Senator Warner, brought up from retired military officers. I will also note, though, and hope you will take into consideration, that Mr. Haynes gets bipartisan support, including that of prominent Democrats, including former U.S. Senator Bill Hathaway, U.S. former Attorney General Griffin Bell, Floyd Abrams, Thurgood Marshall, Jr., Newt Minnow, Judge William Webster--not necessarily a Democrat--but nonetheless has good bipartisan support from people who have seen him work and have worked with him. I am hopeful, Mr. Chairman and members of the committee, that you will accord him the opportunity to state his case. I know you will. I look forward to being able to vote on the confirmation of Jim Haynes on the floor of the Senate. I thank you all for the work that you all do on this committee. You have had a very heavy docket this year. Mr. Chairman, you have been an inspiration with what you have had to go through personally to keep your attention and to keep your eye on the ball on a lot of contentious issues. The judges are a very important aspect of our representative democracy, and I think it is vitally important that we have men and women who are nominated and can be confirmed to work in the District, Circuit, and Supreme Court of the United States who understand that their role is to apply the law, not invent the law, and show due deference to the representatives of the people in our Republic. I am very confident that Jim Haynes will be a jurist in that mold who will be perfect for the Fourth Circuit, but also one that we can be proud of for all of America. I look forward to a confirmation vote on the floor as soon as practicable. Thank you for your indulgence and the attention of all the members of this committee. Chairman Specter. Thank you very much, Senator Allen, especially for those kind personal words. I know how busy Senators are, so we would expect Senator Warner and Senator Allen to move on to other duties. We now turn to Hon. Madeleine Bordallo, a U.S. Representative from the District of Guam who is here today to introduce the nominee for the District Judge for the District of Guam. Representative Bordallo, we are pleased to have you here and we look forward to your introduction. PRESENTATION OF FRANCES MARIE TYDINGCO-GATEWOOD, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF GUAM, BY HON. MADELEINE Z. BORDALLO, A DELEGATE IN CONGRESS FROM THE TERRITORY OF GUAM Delegate Bordallo. Thank you very much, Mr. Chairman, Senator Kennedy, Senators Hatch, Sessions, Graham, and Cornyn. I am, indeed, honored, Mr. Chairman, to join you today to introduce Hon. Frances Tydingco-Gatewood, who has been nominated by the President to serve as a U.S. District Court Judge for the District of Guam. The book of Isaiah, chapter 17, verse 1 reads: ``Learn to do right, seek justice, encourage the oppressed, defend the cause of the fatherless, plead the case of the widow.'' Justice Tydingco-Gatewood has lived a life faithful to these Biblical words. She was born in Hawaii to a Chamorro family. She moved to Guam as a youngster and spent her childhood and early adult years growing up in a Chamorro community. It was in this principled environment that Justice Tydingco-Gatewood learned early on the importance of doing what is right. This ethic would prove ever present in her future life experiences. Justice Tydingco-Gatewood graduated from George Washington High School in Mangilao, Guam in 1976. She earned a Bachelor of Arts degree from Marquette University in 1980, and earned her law degree from the University of Missouri, Kansas City, in 1983. She had coupled her principled ethic with the hard work that leads to success as a student and as a young professional, and soon success did follow. Having graduated from law school, Justice Tydingco-Gatewood began her career as a law clerk, and soon thereafter became a prosecutor, first in Missouri, then on Guam, a position in which she sought justice on behalf of her people. As the first Chamorro woman prosecutor on Guam, she exhibited the professionalism and leadership skills that would earn her the respect of her peers, and later appointment as Guam's chief prosecutor. In 1994, Governor Joseph Ada appointed her to a seat on the bench of Guam's Superior Court, and in 2001 she was appointed by Governor Carl Gutierrez to her current position as an Associate Justice on the Supreme Court of Guam. Further, the words of the Biblical quote, ``Defend the cause of the fatherless, plead the case of the widow,'' like the others in the verse, are part of the fabric of Justice Tydingco-Gatewood's distinguished career and her life. She embraced public service as the co-chair person of the Family Violence Task Force, has been a constant advocate of families, and has been an unwavering leader in addressing domestic violence. It is Justice Tydingco-Gatewood's character, coupled with her formidable professional credentials, that leads me to confidently recommend her for the Federal bench. She is a leader, she is a role model for our young citizens, and she is a strong Chamorro woman who embodies the integrity and character of our people. It is, thus, my honor to introduce to the Committee today the person I urge the Senate to confirm as the first woman Federal District Court Judge for the District Court of Guam, Justice Frances Tydingco-Gatewood. She is joined today by her husband of 25 years, Dr. Robert Gatewood, and a number of her family and friends, Mr. Chairman, are in the audience today seated right behind her. They are the proud parents, she and her husband, of three fine young sons: Daniel, who is a recent graduate of the University of Hawaii at Manoa; Michael, a student at the University of Hawaii; and Stephen, a sophomore at Father Duenas Memorial High School on Guam. We are proud of Justice Frances Tydingco-Gatewood and the honor bestowed by the President in nominating her. She has the bipartisan support of our community, the Governor of Guam, the Guam Bar Association, and she is enthusiastically supported by my predecessor, former Republican Congressman and Brigadier General Ben Blaz, who asked me to inform you, Mr. Chairman, of his endorsement of Justice Tydingco-Gatewood and his recommendation for her confirmation. I urge your expeditious and favorable consideration of her nomination. Today, Mr. Chairman, is a great moment for the people of Guam as we present one of our island's finest to you: Hon. Justice Tydingco-Gatewood. Thank you. Chairman Specter. Thank you very much, Representative Bordallo. Would Mr. Haynes and Justice Tydingco-Gatewood please step forward? While you are up, if you would raise your right hand, we will administer the oath. [Whereupon, the nominees were duly sworn.] Chairman Specter. You may be seated. We met the family of Mr. Haynes. Justice Tydingco-Gatewood, would you oblige us by introducing your family and friends who are here? STATEMENT OF FRANCES MARIE TYDINGCO-GATEWOOD, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF GUAM Justice Tydingco-Gatewood. Yes, Chairman Specter. My husband, unfortunately, is at the hospital right now. He is quite ill, so he was not able to be here at the hearing. But I am joined, of course, by Congressman Bordallo and her staff. I consider them all family. They are seated behind me in the three or four rows directly behind me. I just wanted to let you know, my husband, Dr. Robert Gatewood, is not here at this moment. 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Thank you very much. Your resume and background has been covered on your introduction. We are going to begin with you, Justice Tydingco- Gatewood, because your hearing will be relatively brief, as is our custom when there is bipartisan support in a situation like yours. Let me begin by asking if you think your experience as a prosecutor will be of special assistance to you on the bench. Justice Tydingco-Gatewood. I do, Chairman Specter. As you see in the investigative report that you have before you, I was a prosecutor for 10 years, both on Guam and in Missouri. If confirmed by the Senate, I will be handling many criminal cases at the Federal District Court. So I think that all of the experiences I have had, having presented many hundreds, if not thousands, of cases before the grand jury, conducted preliminary hearings in Missouri, appearing before juries on criminal cases, I think that would be very instrumental. I have had the opportunity to work on Motions to Suppress and Motions in limine, and I think those will be helpful. Chairman Specter. Well, that covers the criminal. What would you say would be the background of your experience which would give you the qualifications to handle civil matters? Justice Tydingco-Gatewood. Civil? Did you say civil, sir? Chairman Specter. Civil. Justice Tydingco-Gatewood. Civil. Yes. In my experience on the civil matters, as a former prosecutor, I did not cover any civil matters. But as a former Superior Court Judge, I handled many civil matters. Chairman Specter. And how many years were you on the Supreme Court? Justice Tydingco-Gatewood. I am currently on the Supreme Court. I have been on the Supreme Court for four and a half years. Prior to that, I was a Superior Court Judge for seven and a half years, a trial judge, so I had criminal and civil dockets. Chairman Specter. Did you have any legal practice in the civil field? Justice Tydingco-Gatewood. Before I became an attorney, no, I have not. Chairman Specter. You once quoted Socrates as saying, ``Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially.'' That is reminiscent of some advice that I heard from Senator Thurmond shortly after I joined the Senate when he was Chairman of this committee, and he asked a judicial nominee, ``Do you promise to be cuhrteous?'' Translated into English, that is, ``Do you promise to be courteous?'' [Laughter.] I say that in the presence of Senator Sessions and Senator Graham, who do not need a translation. [Laughter.] Senator Graham. Socrates told him personally, so I know. [Laughter.] Chairman Specter. And the nominee responded, ``Yes.'' I said to myself, well, what would you expect a nominee to say except yes? Then Senator Thurmond said, ``The more power a person has, the more cuhrteous a person should be,'' translated, ``The more power a person has, the more courteous a person should be.'' I have since come to regard that as the most profound statement I have heard from this dais in the time that I have been on the Judiciary Committee. I think it is something which should be remembered. Nominees confirmed have said to me decades later about that, and how important they thought it was. You wrote in your first year as a Judge that you did not want to contract what you called ``robeitis.'' What did you mean by ``robeitis,'' and why not? Justice Tydingco-Gatewood. Right. When I was a prosecuting attorney for many years, I had appeared before many judges, both on Guam and in Missouri. Of course, most of the judges I appeared before were very courteous, very respectful, very open-minded. One, in particular, however, was not. You just said, ``the more powerful you are, the more courteous you should be, and the more respectful,'' and I felt that he was not during a big rape trial that I had in Missouri. So I feel that sometimes when people become powerful, when they put on the black robe, they forget their values of respect, the forget their character, and I did not want to become like that. Having been a lawyer for many years, I have always endeavored to be prepared before a judge and I had always hoped that a judge would be respectful towards me, and that is what I meant by that, Chairman Specter. Chairman Specter. Justice Tydingco-Gatewood, a standard question is, if confirmed, do you promise to interpret the law and not make law? Justice Tydingco-Gatewood. Yes, I do, sir. Chairman Specter. Senator Kennedy? Senator Kennedy. No questions. Just, congratulations on the nomination. Justice Tydingco-Gatewood. Thank you, Senator Kennedy. Chairman Specter. Senator Kennedy's congratulations is second best to no questions, Justice Tydingco-Gatewood. Justice Tydingco-Gatewood. Yes, I read the transcripts of some of the prior hearings, so I appreciate that. [Laughter.] Senator Kennedy. I am sure you meant that as a compliment. [Laughter.] Justice Tydingco-Gatewood. Yes, sir, I did. Senator Kennedy. Thank you. Chairman Specter. Thank you very much for being with us, Justice. You may be excused at this point. Justice Tydingco-Gatewood. Thank you. Chairman Specter. We turn, now, to the nomination of the General Counsel for the Department of Defense. I met with Mr. Haynes extensively yesterday to lay the groundwork for what I thought was going to be a contentious hearing, just to be very candid about it. Mr. Haynes come to us in the context of being General Counsel to the Department of Defense at a time when there has been a great deal of criticism and controversy about many practices of the Department of Defense. In that capacity as General Counsel, he is likely to be held responsible for many of the things which happened. In discussing the confirmation hearing with Mr. Haynes yesterday, I referred to the memorandum by Assistant Attorney General Jay Bybee dated August 1, 2002, which outlined very strong tactics on interrogation. Even realizing that we are a Nation at war and the memorandum was written less than a year after 9/11, and one of the comments from the introductory paragraph of this memorandum, Assistant Attorney General Bybee wrote, ``We further conclude that certain acts may be cruel, inhuman or degrading, but still not produce pain and suffering of the requisite intensity to fall within Section 234(a)'s proscription against torture.'' The memo then goes on to describe in some detail what is an appropriate line of interrogation, but in that context it is a very strong, strong standard. Senator Warner has referred to a letter dated July 7 that was sent to the committee. It sets the parameter of the hearing. I think it advisable to put it on the table so we can deal with it as directly as possible. I appreciate your understanding of that, Mr. Haynes. Let the record show, he nodded in agreement. The second paragraph says, from these 20 officials, ``What compels us to take the unusual step in writing is our profound concern about the role Mr. Haynes played in establishing, over the objections of uniformed military lawyers, to tension and interrogation policies in Iraq, Afghanistan, and Guantanamo which led not only to the abuse of detainees in U.S. custody, but to a dangerous abrogation of the military's longstanding commitment to the rule of law.'' Now, I had suggested to you that you take as much time as you need in your opening statement. Ordinarily, we try to be relatively brief, but you and I spent about three and a half hours yesterday going over the complexities of the role you had, and it was a difficult role, admittedly, in the context of 9/11 and in the context of trying to structure a response on interrogation to get information from an enemy and to protect the United States, to deal with detainees, to construct a system which would accord them basic fairness, to undertake interrogation tactics which were within the realm of reason, and I asked you to do that at some length. I also asked you, in your opening statement, to deal with the question of where we go next in light of the decision of the Supreme Court in Hamdan v. Rumsfeld as to what kind of a law we are going to structure, because your views on that were very germane as to your qualifications to be a Federal Judge, as to how you handle the interrogation issue, on the values that you saw and what you tried to accomplish and what you thought was right, and on the construction of the military tribunals and your evaluation as to those tribunals in light of the Supreme Court decision, and where your judgment is as to where we should go next, all very salient and very germane to the role of a Federal judge. This Committee is committed to giving you a full and fair hearing to explore your qualifications, your resume, and your work--you have outstanding academic qualifications, outstanding professional qualifications--then to deal with the issues which I have just raised. Senator Kennedy? STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE STATE OF MASSACHUSETTS Senator Kennedy. Thank you, Mr. Chairman. Two years ago, when our Committee met to consider Mr. Haynes for the Fourth Circuit, I opposed his nomination. Since then, we have learned far more about him, despite his consistent refusal to provide additional information or even to appear before this Committee or any of the other committees in his capacity as General Counsel of the Department of Defense. Every new piece of information has strengthened the case against him. Time and again, on some of the most fundamental questions of law and diplomacy that have come before the Department of Defense, Mr. Haynes has displayed a shocking failure of legal and moral leadership. It is astounding that the administration would continue to press the nomination, even though the subordinates who have followed the policies that he authorized have gone to prison. At the Pentagon, Mr. Haynes works closely with David Addington, John Yoo, and others to develop and implement policies on prisoner detention, executive power, and torture that made a mockery of the rule of law. Based on incompetent legal reasoning, these actions represented such an appallingly bad policy that most of them have been categorically repudiated by the Congress, the Supreme Court, and even the President himself. On torture, Mr. Haynes was personally responsible for the adoption of the Bybee torture memo as official Defense Department policy. First pursuing a harsh interrogation policy without consulting career military lawyers, he subsequently yielded to significant internal pressure and convened a working group to study the use of harsh interrogation techniques at Guantanamo, but later, he secretly forwarded a sham version of the working group's final report to Secretary Rumsfeld that closely followed the Bybee torture memo, without even informing dissenting administration and career military lawyers who were supposedly members of the working group. Yale Law School Dean Harold Koh, testifying before this committee, has called the Bybee torture memo ``perhaps the most clearly legally erroneous opinion I have ever heard,'' and ``a stain on our law'', and has been repudiated by the administration and the Attorney General. Mr. Haynes also failed to provide people captured on the battlefield with an immediate determination of their POW status. He ignored these hearing requirements in spite of the unequivocal warnings of scores of high-ranking military officials, including the senior Judge Advocates General of all the services and the legal advisor to the Chairman of the Joint Chiefs of Staff. We are now paying the price for that failure, trying to recreate those tribunals three or more years after capturing these combatants, when we should be prosecuting and convicting many of these individuals as terrorists. In addition, Mr. Haynes played a key role in establishing the fatally flawed military commissions process. Instead of following the established procedures for trying war criminals, Mr. Haynes and the Department ignored Congress and pursued a unilateral, unworkable commissions system. According to the Justice Department, 261 terrorists have been convicted in the civilian criminal justice system since 9/ 11, while not a single conviction has been obtained under the defective military commissions. Last week, the commissions process was invalidated by the Supreme Court, which held it unconstitutional. Mr. Haynes and his colleagues in the administration claimed that no American court could review the designation of an American citizen as an enemy combatant. Mr. Haynes is accountable for this policy, since it was executed by the military, not the Justice Department. In the Padilla case, the administration claimed in court documents that their ``determinations on this score are the first and final word'', notwithstanding the Constitution. The Fourth Circuit rejected that position as absurd. Mr. Haynes also interfered with Congress's ability to perform oversight over the detainee issue. Despite a standing invitation, he has never appeared before the Armed Services Committee, in direct contravention of his own statements in pre-confirmation questions indicating he would appear before the Committee when called. In addition, Mr. Haynes has ignored laws requiring protecting whistle blowers be protected from retaliation. Mr. Greenhouse, the highest ranking civilian in the Army Corps of Engineers, was demoted in retaliation for blowing the whistle on Halliburton's no-bid contracts. In ways like these, Mr. Haynes's actions as General Counsel of the Department of Defense have caused irreparable harm to our military, our foreign policy, and our reputation in the world. On torture, General Thomas Romig, the head of the Army Judge Advocate General Corps, wrote that ``implementation of questionable techniques will very likely establish a new baseline for acceptable practice in this area, putting our service personnel at far greater risk and vitiating many of the POW/detainee safeguards that the U.S. has worked hard to establish over the past five decades.'' The Guantanamo issue has continued to fester, becoming a blight on our international image, led to rebukes by the International Red Cross and the U.N. Human Rights Commission. The invalidated commissions process for handling Guantanamo has never produced, as I mentioned, a single conviction or even a charge against a high-ranking Al Qaeda figure in 5 years. The nomination of Mr. Haynes to the Fourth Circuit is as embarrassing as any that has ever come before this committee. His record clearly shows a deplorable lack of commitment to the fundamental rights and the principle of separation of powers that we all expect from the Federal courts. Former Chief Judge Advocate General of the Navy, Rear Admiral John Hutson, has said that ``[i]f civilian leadership of the military means anything at all, it must mean there is accountability for failures such as his.'' If we are not going to hold Mr. Haynes accountable, let us at least deny him a promotion to a lifetime seat on the Federal bench. I will urge my colleagues to reject the nomination. Chairman Specter. There will be order in this room. If anybody speaks--will you please have the lady removed? Have the lady removed. Have her removed. Mr. Haynes, the floor is yours. We are very interested in your testimony. You may proceed. STATEMENT OF WILLIAM JAMES HAYNES II, NOMINEE TO BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT Mr. Haynes. Thank you, Mr. Chairman, Senator Hatch, Senator Kennedy, Senator Sessions, Senator Cornyn. I appreciate the opportunity to appear before you again. It has been a little over 2 years since I was here last. Senator Leahy, thank you for coming as well. I must not let pass the kind words Chairman Warner and Senator Allen said a moment ago, introducing me and my family. Both of them have been so gracious in welcoming me to the Commonwealth of Virginia some three years ago. Like so many other people who have served in the Armed Forces around the world, when we chose to settle in Virginia we were welcomed as family. I thank my family, my wife Meg, of 24 years, who has been my rock, my children, Will, Sarah, and Taylor, who have grown quite a bit in these last 5 years that I have been so selfish as to work in the Department of Defense. Sarah and Taylor are moving up in school. Taylor will be a freshman at Yorktown High School, and Sarah, a first-year student at Davidson College. Will is already at Davidson. After trying to enlist twice in 2001 as a 14-year-old, he was determined to fight the terrorists who tried to kill his dad at the Pentagon. Will finally joined the Army. He is an ROTC scholarship student at Davidson, following in his father's footsteps, and his grandfather's before, who served 26 years as an Air Force officer after graduating ROTC at the University of South Carolina. I thank the President for his continued confidence in me, and for his nomination of me to be a judge. If confirmed, I pledge that I will be true to the Constitution and laws of the United States and that I will discharge my responsibilities without partisanship and without favoritism. I have served as the General Counsel of the Department of Defense for more than 5 years. If not already, within weeks I will have served longer than anyone else in this job, and it has been during war. My duties are much like those of a general counsel of a large corporation. The Department has many hundreds of thousands of employees and is responsible for the expenditure of more than $400 billion annually, and has presence worldwide ranging from industrial operations to environmental stewardship, from advanced research, to air, land, and rail transportation systems. My client, the Department of Defense, also must fight, and win, the Nation's wars. The soldiers, sailors, airmen, and marines around the world are performing magnificently, and it is my deep privilege to serve with them. We should all be thankful that they are out there every day, protecting us from our enemies. The attacks of September 11, 2001 demonstrated the kind of enemies that they, our soldiers, sailors, airmen, and Marines, and we face. These enemies are unique. They do not have uniformed armies or capitals to capture. They do not follow any rules, other than to exploit the rules of civilized society. This is a war that has presented many difficult questions for people like me, a lawyer working for the country and for our soldiers, sailors, airmen, and marines. I have, along with others, endeavored, along with my client, to develop appropriate guidelines for treatment and questioning of terrorists. Information is, after all, critical to protecting this Nation in this conflict. That approach has, from time to time, been adjusted. But from the beginning, and at all times, the rule has been clear: even the terrorists must be treated humanely and we must operate within the law as best we see it. This issue, getting information, in particular, has generated passionate debate that has been healthy and worthwhile, but there has been much misinformation about these debates. One episode in particular has been much in the news, the interrogation of the 20th highjacker, a man named Muhammad al Katani, at Guantanamo Bay, Cuba. Remember who he is. He is the man identified by the 9/11 Commission who flew into the Orlando, Florida airport in August of 2001 to be met by the lead highjacker, Muhammad Atta, and one other highjacker. Katani is said to have been likely the operative that would have rounded out the team on United Airlines Flight 93 which crashed into an empty field in Shanksville, Pennsylvania. Thankfully, an alert Customs official turned Katani away. He returned to Afghanistan and was captured after 9/11. Katani was brought to Guantanamo, but our soldiers did not learn who he was until the late summer of 2002, shortly before the first anniversary of 9/11. Now, what was happening then? As the anniversary approached, intelligence and threat warnings spiked, indicating that attacks might be imminent. Additionally, over the spring and summer there were deadly attacks in Tunisia and Pakistan. In October of 2002, Al Qaeda leader Ayman al-Zawahiri released a tape recording stating, ``God willing, we will continue targeting the keys of the American economy.'' In September and October, the FBI broke up the Lackawanna Six cell in New York. October 12, 2002, Al Qaeda affiliate Jama Islamia bombed the nightclub in Bali, killing more than 200 people and injuring about 300. Meanwhile, the interrogators of Katani were frustrated. Katani showed considerable skill in resisting established techniques developed for questioning prisoners of war, lawful combatants. He maintained his story that he went to purchase falcons. So, the commanding general of Guantanamo, an aggressive Major General, whose civilian job was to serve as a State court trial judge, sought permission from his superiors to employ more aggressive techniques than were traditionally employed by the U.S. Armed Forces over the decades for interrogating prisoners of war. His request came with a concurring legal opinion of his Judge Advocate and was forwarded to the commander of Southern Command, a four-star general named Hill, who in turn forwarded that request to the Joint Chiefs of Staff at the Pentagon, and on to the Secretary. In the succeeding weeks as the request passed up the line, many people struggled over that question. I struggled over that question. Like many questions I have had to deal with, these are difficult decisions, how to deal with this kind of enemy and this kind of war, and the balances that need to be struck in light of what the President has directed and what the laws and the Constitution demand of us in government. Ultimately, I joined the Chairman of the Joint Chiefs of Staff, the Deputy Secretary of Defense, and the Under Secretary for Policy in recommending--and I signed the memorandum--that some of the requested techniques be approved, the more extreme ones to be rejected, noting that while all of the techniques might be legal, as the opinion suggested, and as Chairman Specter pointed out, as the Justice Department might have determined, those techniques should not be approved in their entirety because, as I said in the memorandum, the Armed Forces operate with a tradition of restraint. Deep concerns regarding the interrogations at Guantanamo continued. The Secretary approved this approach in early December of 2002. Over the next few weeks, from time to time I would hear from others in the legal community that they were concerned about what might be going on hundreds of miles away in Guantanamo. In each case, I would alert the Secretary and the senior leadership of the concerns and I would go to the joint staff and seek assurances that the interrogations were being properly conducted. Nevertheless, the anxiety and concern continued. This is true of myself, as well. These are heavy responsibilities. I take responsibility for my part in them, and that is just part of the job. Eventually, in early January I went back to the Secretary again, asked him to rescind the approach approved for Mr. Katani, and give me some time to pull together all the interested stakeholders in the Department of Defense and give this approach further analysis. Now, I must point out that this is not something the Defense Department has had to deal with for quite some time. The decision of the Secretary and his subordinate commanders in how to question terrorists at a strategic interrogation facility such as that of Guantanamo Bay, Cuba, is something that the Department had not confronted, to my knowledge. I certainly found no documentation to suggest that it had ever been addressed before. What the Department had prepared for was interrogating prisoners of war in a traditional armed conflict between nation states. The Secretary approved my request and directed me to convene a working group, which I chartered on the 15th of January. I called together representatives, as I said, of all the stakeholders, representatives of the combatant commanders, the Chairman of the Joint Chiefs of Staff, all of the Judge Advocates General of the military services, the General Counsels of the military departments, the Director of the Defense Intelligence Agency, various law enforcement officials within the Department, and invited them to bring anybody else that they wanted to this deliberation. I asked the General Counsel of the Air Force to chair this group. Contemporaneous with that, I asked the Department of Justice for an opinion. This was new ground. The President had determined a year earlier that certain aspects of the Geneva Conventions did not apply, as a matter of law, to the Al Qaeda foes that we faced, based in part on a legal opinion by the Attorney General of the United States and the advice of his senior Cabinet officials. We were in new territory. There were still, however, rules that we had to consider. The Justice Department, charged by the executive with determining with finality what is the legal position of the executive branch, was the appropriate place to go for a definitive opinion. But that is not where it stopped, because just because the law might allow something does not mean that one must do what the law might allow. So the working group was requested to evaluate every consideration conceivable: from a policy perspective, from a legal perspective, from an effectiveness perspective, from a public affairs perspective, should any of it become known, from an international perspective, a diplomatic perspective: everything was on the table. The Secretary gave me two weeks to produce that. Two weeks came. The Justice Department had provided a draft legal opinion. A number of senior military offices, the four Judge Advocates General, expressed their strong reservations about the possible implications of that. I believe those opinions are already public. I know that Senator Graham held a hearing last summer in which he had a number of the people who participated in that process testify about their memorandum and he released those to the public. I note that they had been provided a year earlier in their classified form to the Armed Services Committee, but Senator Graham, in conducting his hearing, asked that they be declassified, and the Department did declassify those opinions. I went back to the Secretary and said to him, the Department is not ready to come to resolution on this issue. We took another almost 2 months, during which, of course, a number of things continued. I noted earlier, as General Counsel of the Department of Defense, how much my job is like a corporate counsel, and I had a number of other things to attend to. But this was very important and remained on my mind. From time to time, I would check in with the working group. We had a number of spirited discussions, mostly with the lawyers, which I think was a very good thing. In the end, on the 16th of April, after the working group had collected and written up three major components of their analysis: the legal analysis, which to be sure, was the Justice Department analysis, which, as a matter of tradition, practice, and regulation is the binding legal opinion within the executive branch, and which we, as part of the executive branch were bound to observe; a policy portion, which discussed all of those things that I highlighted a moment ago, and probably some more that I have forgotten, and a substantial appendix that described 35 separate techniques measured against each one of those criteria that I laid out just a moment ago as the working group found it appropriate to evaluate. In the course of assessing those 35 separate techniques, the group, with my full agreement, chose not even to evaluate certain techniques that had been collected from various quarters. Among them, the infamous water board technique that we have heard so much about in the press, was not even evaluated or considered, and certainly not recommended or approved. When the report had been fleshed out, there continued to be, as I understood it--again, the General Counsel of the Air Force chairing the working group--there continued to be give and take, mostly about the chart showing all the techniques and what safeguards ought to be employed, what approval levels, if approved, should be given. At that point, I went to the Secretary, and with his blessing, suggested that these proposed techniques, the 35 techniques, be evaluated by the other senior leaders of the Department. By that, I am referring to principally the chiefs of staff of the services and the secretaries of the military departments, in addition, of course, to the Secretary's other direct reports, and the Deputy Secretary of Defense. For three or four weeks in late March and early April of 2003, those proposals were evaluated at those levels, first by the three-star deputy chiefs of staff of the services, then the vice chiefs, then the chiefs, then the secretaries of the military departments. In the course of that, I conferred with the Chairman of the Joint Chiefs, General Dick Myers, and urged that we recommend, again, a substantial subset of what had been evaluated. So of those 35 techniques that were evaluated in that thorough way, the Chairman ended up recommending with my strong endorsement, and contrary, I might add, to some others in the Department who urged that all of them be approved, and the Secretary approved 24 of those 35 techniques. Of those 24, 17 are the 17 approaches in the field manual, then and now still in effect, drafted for interrogating prisoners of war in Geneva Convention-governed conflicts. The additional seven were highly regulated, two of which, arguably, were restatements of one or two of the 17 basic techniques. The Secretary approved them in April of 2003 only for unlawful combatants at Guantanamo Bay, Cuba. So again, the fact that the law was advised by the Justice Department in a definitive way for the executive branch, including my client, the Department of Defense, I recommended a subset and recommended rejecting a number of others. Now, all of this discussion is historical in nature. It is an example of the kinds of things your Defense Department has had to confront in 5 years of war. It is historical, more importantly, because, as Senator Kennedy has pointed out earlier, the legal opinion of the Department of Justice has been withdrawn, notwithstanding the fact that all of those 24 techniques approved by the Secretary were subsequently reviewed thoroughly by the Department of Justice and found to be lawful. Last year, when you, the members of the Senate and House of Representatives, and the President, when he signed the bill, passed the Detainee Treatment Act, requiring that interrogations within the Department of Defense be conducted only using techniques authorized and listed in the Army field manual may be used, the Department issued an order within hours of the President signing the bill directing that. Therefore, as we speak, within the Defense Department, only those techniques authorized and listed in the field manual, the 1992 version of the field manual for interrogations, are authorized. Now, I have been speaking as the General Counsel of the Department of Defense. This is one episode in my tenure in the executive branch. But I am, as you know, Mr. Chairman and Senators, a nominee to be a judge and I think it is appropriate for me to say something about that. My first job out of law school was as a law clerk for a judge, who remains one of my heroes. Judge James B. McMillan in the Western District of North Carolina was a great teacher. I learned a lot from him, of course, and carry many of those maxims with me today as I serve in the executive branch. He was a wonderful man. He is no longer with us. I remember a few of his sayings. Every day, I find some occasion to use one: ``never attribute to malice that which can be attributed to stupidity.'' It is a very useful thing to remember when you have contentious discussions with people of good faith. Another that he told me quite often was, ``your job as a law clerk is to keep me from making unintended error.'' Finally, he said quite frequently, ``Remember, Jim, government has no rights, only responsibilities.'' Now, I did not always agree with Judge McMillan, but I have not forgotten that the awesome powers that the government has are checked by the Constitution. And while I do not think that, as a legal principle--particularly as somebody who has to represent or advise a client who appears in court often--I do not think it is quite accurate to say that government has no rights, only responsibilities, but it is an awfully good maxim for a government official to follow. That is what guides me, and what has guided me for 5 years, and guides, I think, fairly stated, the men and women of the armed forces whose responsibility it is to protect all of us from a vicious enemy. If I am confirmed as a judge, I will remember that. I will have a different role. I will not be an advocate for a client, I will not be representing a point of view. I will be applying the law and the Constitution fairly, without partisanship, and with good faith. I thank you for the opportunity, Mr. Chairman, to make such a long statement, and look forward to your questions. [The updated biographical information of Mr. Haynes follows. The original biographical information can be found in Senate Hearing Number 108-135, Pt. 5, hearing date: November 19, 2003. A prepared statement of Mr. Haynes appears as a submission for the record.] [GRAPHIC] [TIFF OMITTED] T0496.036 [GRAPHIC] [TIFF OMITTED] T0496.037 [GRAPHIC] [TIFF OMITTED] T0496.038 [GRAPHIC] [TIFF OMITTED] T0496.039 [GRAPHIC] [TIFF OMITTED] T0496.040 [GRAPHIC] [TIFF OMITTED] T0496.041 [GRAPHIC] [TIFF OMITTED] T0496.042 [GRAPHIC] [TIFF OMITTED] T0496.043 [GRAPHIC] [TIFF OMITTED] T0496.044 [GRAPHIC] [TIFF OMITTED] T0496.045 [GRAPHIC] [TIFF OMITTED] T0496.046 [GRAPHIC] [TIFF OMITTED] T0496.047 [GRAPHIC] [TIFF OMITTED] T0496.048 Chairman Specter. Mr. Haynes, did you rely upon the memorandum prepared by Assistant Attorney General Jay Bybee in formulating the standards for interrogation? Mr. Haynes. I relied on a different, but substantially similar, opinion from the Office of Legal Counsel that was issued later. The one that you are referring to I believe is dated August of 2002, which I did not have at the time. I believe that one was addressed to the counsel to the President. Chairman Specter. Did you agree that there could be acts which could be ``cruel, inhuman, or degrading,'' as specified in the Bybee memorandum and still not constitute prohibited torture? Mr. Haynes. Well, sir, I was the recipient of an opinion from the Justice Department. And forgive me, sir. I am going to answer your question, but I want to just lay the groundwork. I received an opinion, which was the expressed view binding on the executive branch. Your direct question, did I agree that there is conduct that does not amount to torture that is what is described as ``cruel, inhuman, and degrading,'' I certainly agreed with that because it was a statement, at least insofar as you have described it--I think, anyway, if I heard you correctly--about what the law of the United States requires embodied in the-- Chairman Specter. Did you recommend any interrogation techniques which would be classified as ``cruel, inhuman or degrading''? Mr. Haynes. I do not believe so, certainly not at the time. The phrase ``cruel, inhuman and degrading,'' Senator, as you know--I should say, Chairman--is one that has vexed the Congress of the United States for some years. It is a term that comes from initially the convention against torture that was negotiated in the 1980's and ratified by the U.S. Senate in the 1990's. Chairman Specter. Aside from the history, Mr. Haynes, do you think that any of the techniques you had recommended would fall into those categories of ``cruel, inhuman or degrading''?' Mr. Haynes. I do not believe so, but I hasten to add, Senator, you all have defined that phrase in the interim to mean what is prohibited by the Fifth, Eighth, and Fourteenth Amendment to the U.S. Constitution. Chairman Specter. Mr. Haynes, have you seen this letter dated July 7 from General Joseph Bore and 19 others that was referred to by Senator Warner? Mr. Haynes. Yes, sir. Senator Warner handed that to me just a few minutes ago. Chairman Specter. Have you had an opportunity to read it? Mr. Haynes. I read it just a few minutes ago, but I believe that it addresses some of the episodes I have just described. Chairman Specter. Well, when you have had an opportunity to review it, you are welcome to file a detailed response with this committee. For the time being, I would like your response to the allegations which are set forth in the second paragraph, that you ``established policies over the objections of uniformed military lawyers.'' Is that true? Mr. Haynes. I am sure that in the course of five years serving as chief legal officer of 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 do not. I also would point out that there are thousands of Judge Advocates serving in the armed forces, many of whom are in my office. Chairman Specter. Let me move on to another point, because I have very little time left. Mr. Haynes. Sorry. Chairman Specter. The allegation is that those practices led not only to the abuse of detainees in U.S. custody, but to a dangerous abrogation of the military's longstanding commitment to the rule of law. There is too little time left to ask you to answer that, but these are very serious allegations--really, accusations--from a very prominent group of individuals. The Committee would like your response, and we would like included in your response the contacts you have had with these individuals, as to what basis they had for making these statements. Mr. Haynes. May I answer quickly? Chairman Specter. Before my red light goes on, I am going to ask my deputy to hand you a coded classification which you and I discussed at length yesterday, and will be made a part of the record. Explain what it means. Mr. Haynes. Thank you, Mr. Chairman. I would like to answer, very briefly, directly to that question about, did policies lead to abuses. Chairman Specter. Once my red light is on, I will not ask any questions, but you are free to respond. Mr. Haynes. All right, sir. I would like to say that, again, without having scrutinized that letter or knowing most of the members that signed that letter, having worked only with two that I can recall, one of whom was at least 15 years ago, I do not know exactly what they might be referring to. But I can say that the Defense Department has investigated allegations of abuse every time that it was alleged; that one of the things that the Defense Department is very good at is responding and self-correcting. The principal investigations of the most notorious abuse case, Abu Ghraib, found that those abuses were not a result of policies within the Defense Department. Indeed, they were in direct violation of all polices. Indeed, the abuses at Abu Ghraib were done not by interrogators at all. Only one of the individuals shown in those horrible photographs was even somebody of intelligence interest, according to the investigations. Their conclusions, which have been provided to the Armed Services Committee, and I think in large part to the public, concluded that that statement is not true. Thank you, sir. Chairman Specter. You have the color-coded charts, which I think ought to be made a part of the record, with your explanation. Mr. Haynes. Well, sir, the color-coded charts that you have just handed me and entered into the record are the third part of the working group report that I described a while ago, that, as you can see, is sometimes referred to as a stop-light chart because there are green, yellow and red circles that assess techniques that go down the left column by a number of different measures, only one or two of which are legal measures. They reflect the significant policy measures of the techniques that are included within the assessment done by this working group, including a number of safeguards recommended, and approval levels proposed. That is what this describes. Chairman Specter. Senator Leahy? Senator Leahy. Mr. Chairman, because of the extraordinary-- actually, unprecedented--length of the nominee's opening statement, and knowing we started late and his family has put up with a lot in being here, I will put my opening statement in the record. I was disappointed you could not testify this morning at the other hearing, but I appreciate your recitation here. Now I would like to ask you to supply copies of the documents relative to the matters you discussed, and their chronology, if you would do that, please. Mr. Haynes. Yes, sir. Senator Leahy. I think that would probably be helpful to us, and it would be helpful to the Armed Services Committee. Now, Alberto Mora, who is a former General Counsel of the U.S. Navy, this year received a Profile on Courage Award from the John F. Kennedy Library Foundation. That was for his efforts to resist the Bush administration's adoption of policies permitting and condoning cruel, inhuman, degrading interrogation techniques. Mr. Mora protested these policies, even though many higher- level Department of Defense and administration officials supported them. He told others in the administration that these were alien to our values as a Nation, and actually dangerous to our troops. Now, did you, like Mr. Mora, stand up against these policies, which many now in our military say endanger our troops and threaten our longstanding values? Mr. Haynes. Senator Leahy, thank you for that question. I think what you are referring to is exactly what I have been talking about, the process that led to-- Senator Leahy. I want to hear your answer specifically. I have heard a long opening statement. You and I spent nearly an hour-- Mr. Haynes. Over an hour. Yes, sir. Senator Leahy. Over an hour discussing this, at the request of Secretary Coleman and Generals Pace and Jones, and I appreciate. But on this specific question, go ahead. Mr. Haynes. There were a number of techniques that I recommended not be approved, and they were not approved in both significant instances that I described a moment ago. These were proposals, and I recommended against them. Senator Leahy. Why were you told that you were going to be promoted to one of the highest courts in our land? Why did they tell you you were? You have not had a significant practice in courts, you have certainly not argued before the court that you are being nominated to. What did they tell you when they nominated you? Why? Mr. Haynes. Well, I do not recall a specific conversation like that, Senator Leahy. That puts me in an awkward position, because it might demand that I toot my own horn, which I do not like to do. Senator Leahy. You have taken 24 minutes here to do that already, so it should not bother you. [Laughter.] I said that was an unprecedented and extraordinary length of an opening statement. So, go ahead. Why were you told that you were being nominated? Mr. Haynes. I do not recall being told a specific reason, except that I think that the President thought that I would be a good judge, a fair judge, one that would apply the law, not make law. Senator Leahy. Did he tell you that? Mr. Haynes. No, sir. The President did not tell me that. Senator Leahy. Who did? Mr. Haynes. But he said some nice things in the nomination. Senator Leahy. I understand that. I remember that. But did somebody approach you in the administration and say, hey, we want you on this court? Mr. Haynes. I do not remember. Senator Leahy. Or did you approach them? Mr. Haynes. I do not remember precisely how discussions began. There is a process where I guess the White House considers a number of different candidates. Having worked with some of the senior people in the administration, I think I must have come to their attention. I would point out, as somebody has already pointed out, that notwithstanding the fact that I have not gotten some of the same characteristics that some other nominees have, I have been rated by the American Bar Association twice as ``well qualified,'' in 2002 and then 2005. Senator Leahy. We do not seem to be getting to the point. I think, on something as significant as this, I think one would remember exactly how they got approached, than not. But I will accept your answer that you do not remember. Mr. Haynes. No, sir. I do not remember the first time. Senator Leahy. You are the first nominee in 32 years that I have ever asked that question of that did not remember, but I accept your answer. Now, I spoke of the 2006 Profile on Courage Award. Mr. Mora said of the administration's policies authorizing certain interrogation techniques, ``for as long as these policies were in effect, our government had adopted what can only be labeled as a policy of cruelty.'' He said, ``Cruelty disfigures our National character, is incompatible with our constitutional order, with our laws, with our most prized values. Cruelty can be effective as torture in destroying human dignity, and there is no moral distinction between one and the other.'' Do you agree with Mr. Mora's assessment of the administration's policies? Mr. Haynes. No, sir, I do not, if that is an accurate reflection of his statement. I would point out that there was a memorandum that I understand Mr. Mora wrote. I believe that in the same memorandum that that must have been drawn from, he concluded that the techniques approved by the Secretary in April of 2003 were well within the bounds of the law, or something like that, as I recall. Senator Leahy. Well, my time is up. I will have further questions later. As I said, Mr. Chairman, I will put my full statement in the record. [The prepared statement of Senator Leahy appears as a submission for the record.] Chairman Specter. Thank you, Senator Leahy. Your full statement will be made a part of the record, without objection. We follow the early bird rule on the committee, going to Senators in the order of their arrival. Among the Republicans, I have Senator Hatch, Senator Sessions, Senator Cornyn, and Senator Graham, if that is accurate. I yield, first, to Senator Hatch. Senator Hatch. Well, thank you, Mr. Chairman. Mr. Haynes, just so we all know what a ``well qualified'' rating means, and you have had it twice now from the American Bar Association, let me remind my colleagues what that rating means. A rating of ``well qualified'' means, ``the nomination meets the committee's very high standards with respect to integrity, professional competence, and judicial temperament, and that the Committee believes that the nominee will be able to perform satisfactorily all of the duties and responsibilities required by the high office of the Federal judge.'' Integrity, professional competence, judicial temperament: you have them all. Do you know retired Army Major General Michael Marchand? Mr. Haynes. Yes, sir, I do. I worked with him for more than 4 years. Senator Hatch. In a letter to the Chairman of this committee, this is what he had to say about your relationship with the JAG Corps: ``In my experience, Mr. Haynes has been more inclusive of the Judge Advocates General and the senior service lawyers of the armed services than any General Counsel of the Department of Defense.'' I ask, Mr. Chairman, that a copy of that letter be placed in the record. Chairman Specter. Without objection, it will be made a part of the record. Senator Hatch. December 6, 2002, several JAG lawyers sent a letter to the Wall Street Journal, where they confirmed that they ``worked over the past months on many complex legal questions surrounding the war on terrorism and other issues. The interaction has been frequent and productive.'' Now, to be fair, these opinions are not universal, but it is worth noting the rationale behind some of the objections raised. We need to note that in a letter from 20 retired distinguished military officers, questions were raised about your judgment in recommending certain interrogation policies. This is what they had to say: ``Many of the legal positions put forward by Mr. Haynes in the course of formulating interrogation policy and many of the techniques he recommended to be authorized for use against prisoners in U.S. custody has since been repudiated and revoked.'' But that is precisely the point. When you recommended these policies, or the policies that you recommended, they were based on the judgment of the Department of Justice at the time as to what the law really is in this area. Is that right? Mr. Haynes. That is part of it, yes, sir. The legal component is one of many, but the legal component is certainly determinative. If something violates the law, it cannot be done. Senator Hatch. Well, that is right. Let me just put it this way. Your job was to inform the Pentagon what the law required. As those who wrote this letter noted, ``these policies may have since been repudiated and revoked.'' But was it your job to repudiate and revoke them? Mr. Haynes. No, sir. There is an important distinction that I think your question raises that I think is worth elaborating on, if I may. A lawyer's job is, in the first instance, to say what the law is. That is where he is expert. Senator Hatch. And here you were told what the law is. Mr. Haynes. And here I was told what the law is by the entity historically charged with making that definitive determination within the executive branch. Now, that is not the end of an inquiry. There can, beyond that, be policy choices made about what to do with that law. That decision is properly made by the lawyer's client, in my case the Department of Defense, as personified by the Secretary and the other senior leaders. Senator Hatch. So, after you brought all these people together and asked all of them to participate that you described in your opening remarks. Mr. Haynes. Yes, sir. Senator Hatch. And I can see why, with some of the criticisms that have been thrown your way, it took you a little bit of time to explain it. I think you certainly deserve that time without being criticized for it. But let me just say this. When confronted with a law you do not like, the answer is not to ignore the law or rewrite the law. Yet, even so, you brought everybody together and you did, in essence, say only parts of that opinion could be applied. Is that right? Mr. Haynes. That was our recommendation. My recommendation, I should say. Senator Hatch. And this is in a situation where we have a war on terrorism that we had never really fought before, with people who do not represent a country, do not wear uniforms, do not have any restraints, and do not abide by the Geneva Convention themselves, and do not abide by any common rules of decency. Mr. Haynes. You are absolutely right. Senator Hatch. My time is up, Mr. Chairman. I wish I had more time. Chairman Specter. Well, thank you. Thank you very much, Senator Hatch. Senator Kennedy? Senator Kennedy. Thank you. Just on this point here about the working group and the timing that you went through, talking about the working group, there was significant opposition to the Yoo memorandum. When Senator Leahy asked you to provide the memorandum, I assume that had been referred to in your earlier comments, that will include the Yoo memorandum? Mr. Haynes. Senator Kennedy, I am sorry. If that is what he requested, I can't provide it. Sir, let me, if I may, respond. Untold numbers of documents have been provided to the Armed Services Committee in the past year, and I am happy to provide all of that to the Committee because it is already public. I have, to the extent that there have been requests for other documents over which I have no control, I cannot, and am not, permitted to commit to that. I will have to take that question back to somebody who has the authority to do that. Senator Kennedy. That is the same answer you gave me 2 years ago, that you would take it back and look at it. This is the Yoo memorandum, which is the draft memorandum that was drawn down from the Bybee memorandum, which is the guiding document. That is the one you referred to in your earlier comments and exchanges with the Chairman. I assume, when Senator Leahy said, will you provide the documents that you referred to, that is extremely important, that is the Bybee memorandum for the Department of Defense. Is there any reason? We have the Bybee memorandum. You say this is a direct draft from that. Is there any reason we should not have that document? Mr. Haynes. Well, sir, again, I have to defer to somebody else who has got the authority to do that. Senator Kennedy. Moving on, then. We know there was significant opposition. The reason it is important, is because you talked about bringing all the JAGs together, working out a working group, all about this memorandum which we are not allowed to see, but is drawn basically from the Bybee memorandum, which effectively permits torture unless the purpose of the torture is going to be to cause harm or injury to the individual rather than gaining information. Now, the Yoo memorandum from the Judge Advocates General on the working group, when I asked Admiral Church, he was the investigator for the Armed Services Committee, who had overruled the well-reasoned objection in the working committee, he told me, ``I believe the answer was the Office of General Counsel.'' I asked, ``Is that Mr. Haynes?'' He replied, ``Yes, it was.'' Now, that is in the Church report that has been made available to the Armed Services Committee I was asking for before the Yoo memorandum. But in that report he goes into some detail about exactly what these Judge Advocates General concerns were, and about you overruling. Let me come back. Did you ever, after you were General Counsel, after 9/11, talk to anyone in the Office of Legal Counsel about the preparation of what we call the torture memorandum? Mr. Haynes. I am going to respond, first, Senator, to what you said just a moment ago. I am the General Counsel. I did advise, as I am required to do, the other legal officials within the Department of Defense that, as tradition and regulation requires, that a Justice Department opinion is binding, that that was in no way an establishment of policy, it merely laid out what the law is and what the boundaries of conduct would be for the policymakers to decide. Senator Kennedy. Now can I get back to my other question? Mr. Haynes. Yes, sir. Senator Kennedy. As General Counsel, when OLC was developing what we call the Bybee memorandum, did you ever have reason to call the OLC and to speak to anyone over there? Mr. Haynes. I have had, over the last 5 years, a number of conversations with the Office of Legal Counsel and other members of the Justice Department, and many members within the national security establishments, State Department, White House. Senator Kennedy. So is it safe to assume that in the fashioning and shaping of the Bybee memorandum, that you talked to members of the OLC about how that was being fashioned and being shaped? Mr. Haynes. As I said earlier, Senator Kennedy, the memorandum that is the basis of the working group report was addressed to me. If you are referring to the Bybee memo of August of 2002, I did not have a copy of that. I do not know how long it took them to draft that memorandum, but I certainly have talked with the members of the Office of Legal Counsel from the beginning of the war, because we needed to. Senator Kennedy. My time is going to run out. We will have to spend some time here. Let me ask you today, have you ever repudiated the legal justification of the Bybee memorandum? Mr. Haynes. What I have done, sir, is declare, within the Department, that the working group report, which was based on that, is null and void and of no operative effect, as indeed it was of no operative effect except to advise the Secretary for just Guantanamo Bay, Cuba, unlawful combatants. Senator Kennedy. I am just at my time. But in reading the Bybee memorandum, as a legal document, it is one that was repudiated effectively by the Attorney General. Have you ever effectively repudiated the legal reasoning of the Bybee memorandum? Mr. Haynes. Well, if you would like me to express an opinion now, I will. Senator Kennedy. I am just asking if you have ever done that in the past. My time is up. So I gather that you have not in the past, but you will express an opinion now. Is that about where we are? Mr. Haynes. Well, I am sure I have talked about that memorandum in a number of different contexts. I have not made a broad statement to the public, but I will now. I would say, sir, that it is no longer operative. It was withdrawn by the Attorney General. I accept that. I think it was the right thing to do. In retrospective, I think having requested an opinion, addressing such a difficult question hypothetically was not the best thing to do. Senator Kennedy. My time is just up. But just in ending this thought. The Yoo memorandum, which you acknowledged was really based upon the thinking, the reasoning, and the rationale of the Bybee memorandum, which was the operative document that you used as the legal justification, we have asked for that document that, virtually, you have indicated in your own kinds of expression, very, very similar to the Bybee memorandum. You indicated in earlier responses to that. But that is something that we requested from you the last time you appeared here, and you said you would go back to the Department and come back to us with an answer, which we never received. I do think that that is the one document which is key, because that is obviously the operative document that was drafted. As you effectively now, today, repudiated the Bybee memorandum, we would like to know what your view on that is. Have you repudiated the Yoo memorandum? My time is up. Mr. Haynes. I would like to respond, Senator. With all due respect, I have not been asked by this Committee for that document. I do not believe that this Committee knew that that document existed the last time I was here. So if I have failed to respond to a request from you, I did not know I had one, and I apologize. But I have responded to it today. Chairman Specter. Senator Kennedy's time is up. Senator Leahy asked you if you would provide all of the documents which you had referred to, and you said that you would. Does that include the memorandum that you got from the Department of Justice, Office of Legal Counsel? Mr. Haynes. I do not think I have the authority to agree to produce that document. Chairman Specter. Well, will you make a request to your Department to produce it? Mr. Haynes. Yes, sir, I will. Chairman Specter. We would like to see it. Mr. Haynes. I will take that back. Chairman Specter. So pass the request on to the Department that we would like to see it. Mr. Haynes. Yes, sir. Chairman Specter. Senator Sessions? STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE OF ALABAMA Senator Sessions. Thank you, Mr. Chairman. Mr. Haynes, it is great to have you with us. Before I get started, I just want to thank you for your service to your country. I am proud that your son is also serving the country in the Army now. You are an honors graduate, Phi Beta Kappa at Davidson; your son is at Davidson, a great school. You went to Harvard Law School. You were rated ``well qualified'' by the ABA for this position, the highest rating that they give. You were a partner at Jenner & Block, one of the world's great law firms, twice. It would be interesting to know how much money that has cost you, the public service that you have given to your Nation, to the Department of Defense, to our soldiers in the field by giving up a partnership in that great law firm. So I want to say thank you for your work. I am sorry you had to receive the criticism you received in an opening statement by Senator Kennedy. There is a litany of charges, exaggerations, inaccurate statements, and matters taken out context for which you have absolutely no opportunity to fully explain. And now we have a group of people dropping in a letter right here the day of the hearing, where you hardly have a chance to read it, that is critical. I just think that is not a healthy way for us to proceed. You have served your country with distinction, with fidelity. You have done your best to do the right thing in very, very difficult circumstances, and I, for one, want to say thank you. I noticed, first of all, that with regard to your position, you are counsel to the Secretary of Defense, a member of the President's Cabinet. Is that correct? Mr. Haynes. Yes, sir. Senator Sessions. And the President has the Attorney General as his top law officer in the country, and this Congress has created a position of Office of Legal Counsel. The person who fills that position is confirmed by the Senate, and that person is empowered to state the administration's legal position relevant to important issues involving any Cabinet department of the United States. Is that not correct? Mr. Haynes. That is correct. Senator Sessions. And whenever anyone in that office is given a responsibility, they understand what their responsibilities are. They understand they are making what may be a very momentous legal call, a legal opinion, do they not? Mr. Haynes. It is my experience, in dealing with virtually everyone in government, that they take their job very seriously and recognize the enormous obligations and responsibility inherent in the office. Senator Sessions. And they understand it is their responsibility. You asked them, when there were questions about how detainees should be treated and interrogated. And you did the proper thing, did you not, as a counsel in the Department of Defense--you asked the authoritative agency of the Department of Justice for the official opinion. Is that not correct? Mr. Haynes. That is what I did. Yes, sir. Senator Sessions. And they gave you that. There is nothing wrong if you called them several times to discuss it. There is nothing wrong with that. The person who issued that opinion, Mr. Bybee, knew it was his opinion. His name is on it, on behalf of the Attorney General of the United States. Is that not correct? Mr. Haynes. Yes, sir. Senator Sessions. So I just do not see how you can be blamed for that. As a matter of fact, you cannot be. It is wrong to do so. I know a lot of lawyers that come through here, and the wonderful nominee we just had in the hearing. She was a prosecutor who prosecuted cases, kind of like I did, doing your duty. Some have been in law firms, some have served as State judges and they just go right through. But here you are, a person giving up the opportunities at a great law firm to serve your country in the Department of Defense, having to make tough calls, and I do not think that ought to be held against you. I think that you have done a good job in serving your country. I noticed here there is a letter, signed by Larry Thompson, former Deputy Attorney General of the United States, and James B. Comey. I believe he was former Criminal Division. Mr. Haynes. He was the U.S. Attorney in the Southern District of New York, then later the Deputy Attorney General of the United States. Senator Sessions. Deputy Attorney General. And two others, Jack Goldsmith and Patrick Philbin. They were very, very strongly in support of your nomination. They note that when aggressive techniques were first requested by the joint task force at Guantanamo, you ``actually recommended that the Secretary of Defense restrict authorized techniques to a more limited set.'' Then they note that you reasoned, ``Our armed forces are trained to a standard of interrogation that reflects a tradition of restraint.'' Then they note that the opinions of the Office of Legal Counsel are binding on all executive agencies in the government, and I would offer this for the record. Mr. Chairman, I note that my time is out. Chairman Specter. Without objection, that letter will be made a part of the record. Senator Durbin? Senator Durbin. Thank you, Mr. Chairman. Mr. Haynes, we have been here before. I asked you questions the last time your nomination was up and you did not answer them, and that is why I opposed you. I am going to give you another chance. Our State Department issues a report card on human rights each year. The State Department has characterized the use of dogs as an interrogation aid as ``torture, and cruel, inhuman, and degrading treatment.'' We have publicly condemned the countries of Libya and Burma for using dogs in interrogation. In November of 2002, you recommended that Secretary Rumsfeld approve the use of dogs to intimidate detainees at Guantanamo. The Department of Defense's own investigation concluded this technique migrated from Guantanamo to Iraq and Abu Ghraib. At least two members of the Armed Forces have now been convicted, under the Uniform Code of Military Justice, for using dogs to frighten detainees. It is striking that while these soldiers were prosecuted, you were being promoted. What message are we sending our troops, and what message are we sending the world in light of your role in promulgating abusive interrogation techniques like the use of dogs, stress positions, and forced nudity? What message are we sending if we promote you to the second-highest court in the land? Mr. Haynes. Senator Durbin, thank you for your question. I want to make one very important point at the outset about Abu Ghraib, which is what you are alluding to in your statement about the use of dogs. What the photographs at Abu Ghraib showed was not interrogation, was not authorized, was not the result of any policy, was not at all sanctioned by anyone. It was not an accurate depiction even of what was authorized at Guantanamo, as I understand it. I deplore it and I regret that it happened. To the extent that some, as you have just said, attribute that to me, I say, I do not think that is the case and I deplore it. Now, your question is, what message would you send? Senator Durbin. Yes. And I might add, incidentally, I am going to share with you this record from an investigation of Abu Ghraib. It was your interrogation technique that they believe migrated into the very conduct of our soldiers. It is the same message that is included in this letter, not a letter from some random individuals, but people who have served our country in uniform and asked us not to approve your nomination, believing that it is unfair to hold these soldiers accountable for using the very technique you approved, then promote you to the Federal court. What message do we send to our soldiers if we ignore the obvious? Every time something like this happens you think, well, they are going to dispatch a few privates, a few corporals, a sergeant, maybe get to a lieutenant, but it will never get upstairs. That is the message of this letter. Apparently, upstairs there is a promotion party; downstairs, people are being sent to prison. Mr. Haynes. Well, Senator, I appreciate your concern. It is an important concern. Again, I saw this letter this morning for the first time, but I did read it so I know what it says. To my knowledge, none of the people who signed that letter has worked in the Defense Department during the period of time at issue, so they are expressing an opinion, so far as I know, based on news reports, many of which are inaccurate. The investigations of the conduct at Abu Ghraib consistently found that what happened there was not authorized, it was not condoned, it was not a result of policy, it was not even interrogation, and it certainly was not a result of something that the Secretary of Defense approved a year earlier, half a world away, for unlawful combatants in the war on terror. Senator Durbin. Mr. Haynes, at Abu Ghraib, those images, which members of the Senate went up to watch in gruesome detail, hundreds and thousands of images, included the use of dogs, included forced standing, included nudity, the things which you approved in the memo you sent to the Secretary of Defense. Now you are arguing that there was no connection between this official policy and what happened later, that it is just happenstance that the same thing occurred, to the embarrassment of the United States of America? Mr. Haynes. What I am saying, Senator, is what the investigations concluded, that it was neither condoned, nor even an interrogation. None of the individuals in those photographs, except one, as I am told, was even of interest, from an intelligence standpoint or from an information standpoint. What occurred at Abu Ghraib, as the Schlesinger report said, was the work of the night shift, without any authority whatsoever, for sport. The use of dogs in those photographs was horrible. Senator Durbin. I read from the Schlesinger report, ``It is important to note that techniques''-- Chairman Specter. Senator Durbin, how much more time would you like? Senator Durbin. Could I have one minute? Chairman Specter. Sure. Senator Durbin. Thank you. ``It is important to note that techniques effective under carefully controlled conditions at Guantanamo became far more problematic when they migrated and were not adequately safeguarded.'' So to argue there is no connection--let me just close. Yesterday, I was at Guantanamo. I sat down with our lead interrogator and I asked him point-blank, ``If you were told tomorrow that you have to follow the Geneva Conventions and the Uniform Code of Military Justice, what would you change here?'' He said, ``Nothing.'' We can interrogate these prisoners effectively without throwing away a lifetime of values this country has stood for. You had your chance. You had your moment. You made a decision, which history will not judge kindly. When you made that judgment, you really used all of your professional ability and training, which has been referred to. Now you are asking for a lifetime appointment to the second-highest court of the land. I am sorry, it does not follow. Chairman Specter. Thank you, Senator Durbin. Senator Cornyn? STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF TEXAS Senator Cornyn. Thank you. Mr. Haynes, thank you for being here today, particularly to your family for being here. I know it is not easy for you, or them, to sit here and listen to some pretty nasty things being said about you, being attributed to you. I want to just tell you straight up, if I believed half of the allegations that have been made against you today and that have been repeated elsewhere, I would not support your nomination. But it is because I do not believe them, that I do believe you have a distinguished record of public service, I do believe you are an honorable person who has tried to do the right thing in a very difficult job, that I am proud to support your nomination. What I do not really get, and maybe you can explain it to us, is the first detainees made their way to Guantanamo Bay on January 11, 2002. January 11, 2002. But it was not until April 16, 2003 that the various working groups that you have already testified to ultimately promulgated the approved interrogation techniques, the 24 techniques that went into effect on April 16, 2003. For the life of me, I cannot understand. If you were intent on violating the law, if you were intent on torturing detainees without regard to international conventions or basic human decency, why in the world did you spend from January 11, 2002 until April 16, 2003 studying the law, having these meetings, trying to develop a policy? Why in the world would you do that? Mr. Haynes. To clarify, Senator, there is one intermediate step. That is the one that Senator Durbin was referring to, which was in late November of 2002, which is when the urgent need for guidance on how to interrogate the twentieth highjacker came up. It was from the period right after that until April 16, 2003 that all the analysis was conducted. But your point is absolutely right, which is that, notwithstanding the urgent need expressed by some quarters of the defense establishment for information necessary to protect American lives and soldiers' lives, perhaps, overseas, the Department went to great lengths to look hard at this question--perhaps too long, but they did take that amount of time. Senator Cornyn. And is the reason that you took as long as you did and that you convened as many meetings as you did among lawyers and other policy advisors because you were trying to figure out how to strike the right balance? Mr. Haynes. Absolutely right. But I should say, I was not the decision maker. I was trying to be very clear about my role, as the lawyer: what is the law, then what is the policy? Senator Cornyn. Point well taken. You were not the ultimate decision maker, but you were trying to provide your best professional advice to Secretary Rumsfeld. Mr. Haynes. Yes, sir. Senator Cornyn. And, in turn, to the President of the United States. Is that not right? Mr. Haynes. Certainly to Secretary Rumsfeld. I did not advise the President. Senator Cornyn. I want to make sure that we all understand what the context is. I mean, it is easy for us to sit here today, 5 years after our country was attacked and 3,000 people died at the hand of a new and different kind of enemy unlike any that our country has ever dealt with before, but I would just like to tell us what was in your head as you were trying to develop these interrogation techniques about both the value of the intelligence that you would be able to get, or that our interrogators would be able to get, from terrorists that might prevent future 9/11s, or injury or death to our troops on the battlefield, and whether that was a factor weighing on your mind in trying to figure out, number one, how to do the right thing, but number two, to do it in expeditious a way as possible so we could get information that might, indeed, save American lives. Mr. Haynes. There is a phrase that comes to mind that was coined by somebody a lot smarter than I am, and I do not use it regularly but it seems appropriate now, and that is ``cognitive dissonance.'' These are hard questions. As many of us experienced on 9/11, I knew some people killed. Working in the Defense Department, I worked all the time with people who put their lives at risk. The value of information about what Al Qaeda might be planning to do to our soldiers or to our citizens in this country is hard to overstate. On the other hand, there are other important concerns that all of us share. We are all Americans and we stand for things. How one strikes that balance is difficult. Who makes that decision is sometimes extraordinarily important. The lawyer, such as I, is an important player in that and must say what the law is, and what it is not. The client needs to make the decision about what to do with the discretion available to him. So these are hard calls. I am not complaining about that, either. It is an honor to be serving in the Defense Department and the people that I work with are, without exception, extraordinary people. But that is what we face. Chairman Specter. Thank you, Senator Cornyn. Senator Graham? Senator Graham. Thank you, Mr. Chairman. Mr. Haynes, my analysis of how to dispose of your nomination is not going to be based on holding you responsible for every mistake or every bad thing that happened; that is not fair. I do not believe anyone has actually gone to jail for following a policy you instituted. I think people have gone to jail because of personal misconduct. I think it is fair to say that our troops have been confused for quite a while, and some people have lost their jobs because the bad things that happened on their watch, they were held responsible for. I am all for civilian control of our military; I am also for civilian accountability when required. Did you, at any time, meet with Mr. Yoo or Mr. Bybee to discuss what went into the memo? Mr. Haynes. Absolutely. I certainly did. Senator Graham. Would it be fair to say that you were part of the architecture team that came up with the Bybee/Yoo memo? Mr. Haynes. Well, I do not know what an ``architecture team'' is, Senator. Senator Graham. Maybe that is a bad way to say it. Basically what I am saying is, did they do this in the darkness, without your input, or did you have input in creating the final product? Mr. Haynes. When the memorandum that was addressed to me was being drafted, not only did I talk with the author, but every member of that working group had an opportunity to talk with that author. In fact, many of them did talk with the author. Senator Graham. Wait a minute, Mr. Haynes. I am talking about, the Department of Defense received a legal memo from the Office of Legal Counsel. During the drafting of that memo, were you involved in its content, its legal reasoning? Mr. Haynes. Well, as I was trying to explain, sir--I hope I am not missing your point--if your question is, did I talk with the author of the memorandum as it was being drafted, the answer is yes. I had to start the question. I had to ask for it. But what I was trying to say, sir, as part of this process where I wanted everyone to have an opportunity to express their views, I asked those people at the Office of Legal Counsel to come over and meet with the members of the working group as many times as anybody wanted to meet with them. Senator Graham. If we could, in sake of fairness to Mr. Mora, when the contents of the Yoo memo were known to Mr. Mora and the Judge Advocate individuals long before the working group, the working group comes up later after many, many complaints, is it a fair characterization that when the military legal officers and Mr. Mora saw what you were proposing, Mr. Yoo was proposing, they went ballistic because you were going to get our own troops in trouble if they followed this legal road map, that if you go down the legal road map Mr. Yoo and Mr. Bybee came up with, you are going to violate the UCMJ and get our own guys in trouble. Was that not their initial reaction? Mr. Haynes. Well, sir, I think you may not quite have the sequence. Let me try to restate it. In November of 2002 is when I recommended that the Secretary approve that subset of techniques, and December 2, 2002 is when the Secretary approved it. Now, that was after it had come up through the hierarchy of the Defense Department. Senator Graham. My question, Mr. Haynes, is when the JAGs, whatever moment in time they saw the proposal, did they not push back strongly? Mr. Haynes. They did, but it was in February of 2003. That is why it is important for me to make clear to you, sir, the sequence of events, because their staffs had seen no opinion from the Justice Department. Senator Graham. Did Mr. Mora meet with you in January of 2003, long before February? I would like to introduce his memo of July 7, 2004 into the record, in complete. Chairman Specter. Without objection, it will be made a part of the record. Senator Graham. January 9, he says he meets with you. ``Mr. Haynes said little during our meeting. Frustrated by not having made much apparent headway, I told him that the interrogation policies could threaten Secretary Rumsfeld's tenure and could even damage the presidency. `Protect your client,' I urged Mr. Haynes.'' That was January 9, 2003. So apparently long before February, these people were very concerned about the road you were going down. Is that not true? Mr. Haynes. Well, I have already testified to that, Senator Graham, that there was substantial anxiety within the Defense Department after the Secretary approved the techniques on the twentieth highjacker in early December, until he stopped them on the 12th of January. Senator Graham. Did you share those concerns? Mr. Haynes. Absolutely. Senator Graham. Did you have any legal writings back with the Office of Legal Counsel that your proposal is way off base, it is going to get people in trouble? Mr. Haynes. The Office of Legal Counsel had not expressed a view to me at that time. I asked for the opinion from the Office of Legal Counsel. Senator Graham. My time is up. You have 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 have talked to them--and that the final product coming out of the working group went back to where you started. All of their concerns, none of them made it into the final product. Is that not true? Mr. Haynes. I do not want to answer a question quite like that. But what I will say, is what, for example, General Romig said in your hearing last June or July, where he said, as I recall, ``our concerns were listened to and many of them were accepted.'' Because what they expressed, and I think what you are referring to, Senator, is a series of memorandum they wrote in February. Senator Graham. Why did they need to write the memorandum? What compelled them to put on paper their strong objections? Why did they feel the need to write the memo? Mr. Haynes. I believe the reason they felt the need to write the memos that they wrote at the time, is that the two- week period that the Secretary had given us to come back with recommendations was expiring, and there was a draft legal opinion that they had been provided from Department of Justice that they did not like the consequences of. Now, as each one of their letters reflects, they were concerned about the policy implications of accepting such a legal memorandum and employing the breadth of authority that that might allow. So what they suggested were, as you point out, and quite appropriately, concerns about, among other things, the impact on our soldiers. Those were reflected in the policy component of the working group report, and ultimately led me to recommend that the Secretary not approve them all. Senator Graham. But did the JAGs ever receive the final product of the working group for their review or input? Mr. Haynes. The final working group report was limited to one copy. Senator Graham. Did they ever see it? Mr. Haynes. I believe that they did. Senator Graham. Did Mr. Mora ever threaten that, if you do not change these policies, I am going to go public? Mr. Haynes. I do not know. I do not remember that. Senator Graham. Thank you. No further questions. Chairman Specter. Thank you, Senator Graham. Mr. Haynes, you testified earlier in your presentation that the request was made for more direct techniques against al Katani. Were they successful in eliciting any additional information from al Katani? Mr. Haynes. It is my understanding that he did provide significant additional information, including about Mr. Reid, the shoe bomber, and about some other events that I do not recall. Chairman Specter. Do you know whether the additional information he provided was the result of the new techniques, the additional techniques, of interrogation? Mr. Haynes. I believe that during the period that he was interrogated, he did provide some additional information. Of course, he is still at Guantanamo. Chairman Specter. Mr. Haynes, yesterday in our meeting you told me about requests for three different categories for al Katani, and that you had recommended to the Secretary that they not use certain facets of Category 3. Would you state for the record now what occurred in that respect? Mr. Haynes. The Secretary accepted that recommendation. Chairman Specter. Well, what were the three categories? Provide just a little background. Mr. Haynes. I do not have the list in front of me, but there were three. When General Dunlavey asked for additional authority to interrogate, he proposed three categories of technique in ascending order of aggressiveness. There were not equal numbers in each category. Chairman Specter. Had he asked for specific techniques to be approved? Mr. Haynes. Yes, sir. And as I said, his request came with a legal opinion and then was recommended up the line. Chairman Specter. With the legal opinion from whom? Mr. Haynes. From his Judge Advocate assigned to him at Guantanamo. Chairman Specter. The Judge Advocate asked that those techniques be endorsed, permitted? Mr. Haynes. The Judge Advocate provided an opinion that those techniques would be allowable, in accordance with the applicable law, as that person saw it. Chairman Specter. So that opinion was submitted to you for your ratification, for your approval? Mr. Haynes. The way a proposal like that works in the Pentagon, in the Defense Department, is that if the Secretary's approval is sought from somebody in the field, as in this case, there is a proposal put together by the commander. Chairman Specter. All right. That is enough history. Mr. Haynes. Sorry. Chairman Specter. Tell me what the techniques were. Time is always limited here. Mr. Haynes. All right. I am sorry. Chairman Specter. So we will go right to the point of interest. Mr. Haynes. I cannot remember precisely which ones are in each category, but Category 1 were the least. Chairman Specter. What did you recommend not be approved? Mr. Haynes. Not be approved. I got it. All right. There were, in Category 3, which was the most aggressive, the one that is most memorable in the press is something that I believe is called water boarding. I think it was called something else. Chairman Specter. What did you recommend with respect to water boarding? Mr. Haynes. I recommended that it not be approved. Chairman Specter. And was it approved? Mr. Haynes. It was not approved. Chairman Specter. And was it done? Mr. Haynes. To my knowledge, it has never been done in DoD. Chairman Specter. Were there any other techniques that you recommended not be approved? Mr. Haynes. There were a few other techniques in Category 3, and I should say, to my knowledge, those were not employed by the Defense Department. Chairman Specter. Do you recollect what they were? Would you provide them to the committee, please? Mr. Haynes. I will provide them to the committee. Yes, sir. I am sorry I do not have them on me. Chairman Specter. That is all right. Just let us have them so we know what they are, for the record. Mr. Haynes. Yes, sir. Chairman Specter. We talked, yesterday, extensively about the decision in Hamdan v. Rumsfeld, and where we go from here. Have you had a chance to review the proposed legislation which I introduced? Mr. Haynes. I have looked at it again, after our meeting. It is such a substantial piece that I would still like to study it more closely, because it has a lot in it. But there are a number of significant and important components that would, I believe--and again, I cannot speak for the executive branch, I am here as a nominee. Chairman Specter. All I am looking for is your judgment. Mr. Haynes. Well, I think, in my personal judgment, that your proposal has a number of very important proposals that would address the Supreme Court's opinion. Chairman Specter. All right. My red light is on. Senator Kennedy? Senator Kennedy. Thank you. Thank you, Mr. Chairman. You did list water boarding on your list, did you not? Mr. Haynes. I did not have a list, sir. But the proposal that came up from Guantanamo did include something described as ``use of a wet cloth on a face,'' and I think that is what-- Senator Kennedy. A misperception of suffocating. With the misperception of suffocation. I am just reading what I had understood were the interrogations recommended as lawful by you here. ``The following techniques were recommended by Haynes in the memo to Secretary of Defense Rumsfeld.'' I guess we have got that here. Mr. Haynes. Sir, I think that is incorrect. I did not recommend that. Senator Kennedy. All right. Mr. Haynes. I think I recommended against it. Senator Kennedy. Well, I will not take the time. I will give it to you so you can look at it later on and let me know. All right? Mr. Haynes. Yes, sir. Senator Kennedy. Thanks. Mr. Haynes. I can tell you with certainty, I recommended against that. Senator Kennedy. All right. But this was, at least, on the list. Let me get back to where we are after 9/11, when we have the Bybee memorandum drafted, because the people that were working at OLC and the drafting of the Bybee memorandum were involved and instrumental in the drafting of the Yoo memorandum. That is according to Church, the Armed Services Committee. I want to keep moving. The Bybee memorandum was released in 2002, so we have got that background. The Bybee memorandum has been out there and it has been effectively understood as the law, the legal policy. Then we have your other statements about the recommendations in November of 2002, the working group in 2003. But in 2002, this is the document that is out there. Now, let me ask you this. The Bybee memorandum, we can see how, late in 2002, the JAG in Guantanamo says that he thinks it is legal to do all of these bad things. Well, sure he is, because the Bybee memorandum is out there. That is the guiding document which everything is going to be all right, legal, effectively. So when we keep hearing about what is legal and what is not, the Bybee memorandum was effectively in place, and finally repudiated by General Gonzales in December of 2004. Now, this is my question to you. Just on the legal reasoning, the torture memorandum says that ``any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution's sole vesting of the commander in chief authority in the President.'' It concludes that the statute banning torture ``does not apply to the President's detention and interrogation of enemy combatants, pursuant to his commander in chief authority.'' That is the Bybee memorandum. Do you believe that American officials could torture prisoners with impunity, in violation of the anti-torture statutes? Mr. Haynes. Not only do I not believe that, the President made very clear that the United States will not, and as a matter of policy does not, do that. I would like to say, sir, you made a statement earlier that I think is incorrect. That is that the August 2002 memorandum signed by Assistant Attorney General Bybee, to my knowledge, was not available to the officer at Guantanamo Bay who wrote that. Senator Kennedy. It would not have been. That is what Mr. Gonzales, as the legal counsel, as I understand, asked for. That is what was turned over as the recommendation of OLC. Mr. Haynes. You are right about that. It was addressed to General Gonzales. Senator Kennedy. And I think Mr. Gonzales, when he testified, said that that was made available to the Defense Department, was it not? Mr. Haynes. I do not recall him saying that at all. Senator Kennedy. All right. Mr. Haynes. In fact, I think it was made public in 2004, I believe. That is when it was withdrawn. Senator Kennedy. It was in effect for over two years. I want to get back, and we can come to that. But you are not doubting that it was in effect for over two years, effectively, the rule? Mr. Haynes. I do not doubt that, just looking at the dates. Senator Kennedy. Well, you must have known about it. It was in effect for two and a half years. You are the legal counsel. You did not know that it was in effect? Mr. Haynes. Well, sir, that opinion, if I am recalling correctly-- Senator Kennedy. The Bybee memorandum. Mr. Haynes. [Continuing]. It was addressed to Judge Gonzales. It was not addressed to me. I asked for an opinion, and received an opinion, in 2003 that is similar to that memorandum. Senator Kennedy. All right. That was in effect, right? That was repudiated as well when Gonzales repudiated the Bybee memorandum. Did he repealed yours as well? Mr. Haynes. Yes, sir. Those were withdrawn and have no operative effect. Senator Kennedy. All right. Well, in effect, as I understand--and that is why it would be worthwhile getting the information so we know it on the Yoo memorandum, is that it is virtually similar to the Bybee memorandum. I am interested in your legal understanding. In the Bybee memorandum it argues that ``an individual who willfully tortures a prisoner, in violation of the anti-torture statute, may avoid prosecution through the defense of necessity. The defense apparently applies to torture, since any harm that might occur during an interrogation would pale to insignificance compared to the harm avoided by preventing an attack.'' Do you really believe that flimsy justification would excuse the torture of prisoners? Mr. Haynes. Senator Kennedy, one of the problems with that memorandum that I acknowledge, that General Gonzales and others have acknowledged, is that it was so hypothetical, not tied to a particular request, to my knowledge, certainly not in our case. What was asked for--and this is something I regret--was an opinion on the extent of the authority available to the President, if necessary. It is something I regret, as I said. It addressed hypothetical situations. In order to apply legal reasoning of that nature, one needs to have some facts to apply it against. Now, the facts are that when we received that memorandum, we said, all right, that is fine. That tells us that there is a lot of latitude available to the Department of Defense at Guantanamo for use with unlawful combatants, if the Nation's security required it. What we then did, was apply a series of policy assessments, brought in by everybody involved, that led to the Secretary approving a subset of possible techniques, well short of what the Justice Department said might be legal under certain circumstances. Senator Kennedy. Well, the fact is that this was in effect for two and a half years, the Bybee memorandum. The Yoo memorandum is very similar to it. I understand that this is the first time. This is the rationale. You can say, we do not know really what was going to go on. Everybody knew what was going on. You have got the Red Cross talking about what was happening to these prisoners and prisoners of war. We have had it repeated in the Armed Services Committee. I do not want to get away from what exactly, because I want to find out about your thinking when you read this Bybee memorandum. There are people that are absolutely appalled by it. Appalled by it. Ronald Reagan was the signer on the convention on torture. This is not a Democrat or Republican issue, or left/right issue. It is an issue because we are interested in protecting Americans. Mr. Haynes. You are absolutely right, Senator. Senator Kennedy. That is why all of this has gone on. This is the further reasoning. Chairman Specter. Senator Kennedy, how much more time would you like? Senator Kennedy. If I may get two minutes. Chairman Specter. Go ahead. We are going to take it out of your next round, Senator. Senator Kennedy. All right. That will be fine. Let me just get on to this part here. The memo continues, ``There can be little doubt that the Nation's right to self-defense has been triggered under our law due to 9/11, and that if a government defendant were to harm an enemy combatant during an interrogation, in violation of the torture statute, he could argue his actions were justified by the executive branch's constitutional authority to protect the Nation from attack.'' Therefore, school is virtually out. Anyone can do anything in terms of torture if the purpose is to get information, as long as you do not have a specific intent to do injury to that individual, because you are going to get pardoned effectively because of the President's power. Do you really believe that, as we have listened to Mr. Koh at Yale Law School, who said that is the most cockamamie legal reasoning that he has ever read in his entire life? I am just interested, as you, as an attorney. Were you persuaded by that kind of reasoning in terms of your own thinking? Chairman Specter. You may answer that question, then we are going to move on. Mr. Haynes. Yes, sir. A number of points. The President has made clear, we do not torture, and the policy is not to torture. What you are describing is a discussion of a hypothetical situation, not applied to facts. If your question is, do I--I am not sure what the question is. But I have already told you that-- Senator Kennedy. It is the memorandum. It is the official guidance to the President of the United States. We will look back in the record, but I believe Mr. Gonzales said that it was made available to the Defense Department. Chairman Specter. Mr. Haynes, the question is whether you agree with that memo. Mr. Haynes. I think that that memo should not have been requested, and I am the one who requested a version of that memo, for the reasons that I have already said: that it was unnecessary and invited speculation about hypotheticals that need not have been requested. It certainly did not reflect policy, Senator Kennedy. It was in answer to a legal question addressed to a lawyer, who is not a decision maker, about what interrogation to employ. Certainly I would take issue with your understanding of it in that respect. Chairman Specter. Thank you. Senator Cornyn? Senator Cornyn. Mr. Haynes, you have been asked about whether certain Judge Advocate General officers within the military had a different conclusion than that that you ultimately reached in your recommendations with regard to interrogation policy. Do you remember the questions that Senator Graham asked you about that? Mr. Haynes. I was a little confused by Senator Graham because I think I was not clear to him in my presentation about the sequence of events. Senator Cornyn. Let me ask these questions maybe to help clarify it. Was there any source of information, pro, con or neutral, with regard to what the interrogation policy of the government ought to be that you refused to consider? Mr. Haynes. No, sir. As I have tried to say, I wanted everything on the table. Senator Cornyn. And there were eventually, you would concede, some people whose arguments you did not agree with. Mr. Haynes. That is true. Senator Cornyn. Is that unusual in your experience as a lawyer to have a divergence of views among lawyers involved in a legal question? Mr. Haynes. It is not unusual to have two lawyers disagree, much less thousands. Senator Cornyn. He asked you about Mr. Mora. Who is Mr. Mora? Mr. Haynes. Mr. Mora is the previous general counsel of the Department of the Navy. Senator Cornyn. Do you believe Mr. Mora was ultimately satisfied with the interrogation policies, the conclusions of the working group that were ultimately approved in April of 2003, notwithstanding some earlier concerns he might have expressed? Mr. Haynes. Here is what I think. I certainly cannot speak for Mr. Mora. I know that he was concerned in the period between early December of 2002 and the middle of January, 2003 when the interrogation of the twentieth highjacker was being conducted. I know that he had strong views about what the ultimate policy ought to be. I do not know what he thinks for sure. I know he expressed his views publicly in recent times. I believe that the memorandum that Senator Graham introduced into the record has a number of statements, but I think that memorandum includes a statement, if it is the one I have seen in recent months, to the effect that the techniques ultimately approved by the Secretary of Defense in April of 2003 were well within the bounds of the law. Senator Cornyn. The quote I have in front of me from Mr. Mora's memo is, ``To my knowledge, all interrogation techniques authorized for use in Guantanamo after January 15, 2003 fell well within the boundaries authorized by law.'' Does that refresh your memory? Mr. Haynes. That sounds familiar. Yes, sir. Senator Cornyn. What I really find so repugnant about all of the discussion about torture, which we all condemn, is the suggestion that somehow, notwithstanding the statements by the President, your statements, statement by Secretary Rumsfeld, and other prominent government officials, that people still want to believe and want to allege, without any factual basis whatsoever, that our government engages in torture of detainees and others engaged in this global war on terror. But you have been at the Department of Defense now 5 years. As a member of the Armed Services Committee, along with Senators Sessions, Senator Graham, Senator Kennedy and others, it is my recollection that there have been 12 major investigations conducted by the Department of Defense or independent entities into these allegations, whether they arise out of Guantanamo Bay or they arise out of Abu Ghraib. Is that correct? Mr. Haynes. That is correct. There have been a number of less significant, but thorough, investigations. Senator Cornyn. Well, in the suggestion that we heard from Senator Durbin, that somehow the big guys get off scott free, but the little folks are the ones who get nailed, I know there have been 500 criminal investigations, roughly 100 disciplinary actions or other criminal actions. I seem to recall that the highest-level officer that was disciplined as a result of Abu Ghraib was a Brigadier General, if I am not mistaken. Is that not correct? Mr. Haynes. I think that is right. Senator Cornyn. Do you know of any basis whatsoever for the allegation that some were treated differently from others? In your view, were there repetitive comprehensive investigations undertaken in an effort to get to the bottom of these charges? Mr. Haynes. Certainly the latter statement that you made, I would think it is so. I think it is important to reemphasize something I said earlier, and that is one of many things about the Defense Department that should make the country proud, is that it is a self-correcting mechanism. In other words, everybody is trained to raise their hand and report improprieties. When those things are reported, they are investigated. Then if the facts warrant it, then corrective actions, ranging from criminal prosecutions, to policy changes, to determinations that the allegation was unsubstantiated, happen. That is what continues to be the case within the Defense Department. Senator Cornyn. Mr. Chairman, if I can ask one last quick question. Mr. Haynes, is it not a fact that the interrogation techniques approved on April 16, 2003 are the same interrogation techniques currently in effect today? Mr. Haynes. No, sir, that is not true. They did prevail until the end of last year, when the Congress passed, and the President signed, the Detainee Treatment Act, which had, among other things, a requirement that only techniques listed and authorized in the Army field manual may be used. So as soon as the President signed that bill, an order went out from the Pentagon putting that into effect. Senator Cornyn. I thank you for that correction. That is exactly right. Congress passed that legislation and now all of the interrogation techniques are published in the Army field manual. Is that correct? Mr. Haynes. Yes, sir. The 1992 version is the one that is in effect. Senator Cornyn. Thank you. Chairman Specter. Senator Sessions? Senator Sessions. Mr. Haynes, thank you for your service to your country, and your patriotism and your many, many hours of hard work for your Nation. I want to get a couple of things straight, just so everybody knows what has occurred. There was an open discussion within the Department of Defense about these interrogation techniques, were there not? Mr. Haynes. Yes, sir. It was no holds barred. Senator Sessions. And JAG officers were free to speak up, and did speak up. You had the Chief Judge Advocates for all of the services discussing all of these things. Is that correct? Mr. Haynes. Yes, sir. Senator Sessions. And you did not just impose some personal opinion on these techniques. You also asked the Office of Legal Counsel of the U.S. Department of Justice for an official opinion of the Attorney General, which is the authoritative agency, before you approved any techniques. Mr. Haynes. That is correct, with this clarification. I did not approve any techniques. Senator Sessions. Well, that is correct. Mr. Haynes. Before I made any recommendations, I asked for all of those things that you have just described. Yes, sir. Senator Sessions. And that office is the one that is sworn and has the official responsibility to evaluate legal matters, and the Secretary of Defense is the one that is authorized and required to set the policy ultimately. Is that not correct? Mr. Haynes. Yes, sir. The Secretary runs the Department. Senator Sessions. And you make advice to him. Mr. Haynes. Yes, sir. Senator Sessions. First of all, the Bybee memo that came out, you did not recommend to the Secretary of Defense that our military use every technique that the Bybee memo authorized, did you? Mr. Haynes. You are correct about that. But let me also make clear that what you are calling the Bybee memo was actually not signed by Bybee, but somebody else in that office, and did not recommend any techniques at all. It was an exposition of what law applied at Guantanamo for unlawful combatants in the global war on terror, in their opinion. So they did not propose any techniques, nor evaluate any techniques at that time or in that memorandum. Senator Sessions. And you considered techniques that would have been acceptable under that memo, presumably, and rejected those techniques. Is that correct? Or the team that you put together did. Mr. Haynes. Well, there were a number of people who expressed views. My personal view was that a number of techniques should not even be considered at all. Then yet another substantial number of techniques that had been evaluated under the criteria that the working group came up with also should not be considered or recommended, and I, in fact, recommended that those be rejected. Senator Sessions. Well, I think this is all important. You did not ask the Office of Legal Counsel to tell you everything you could do, then do everything they said you could do, and more. You did not even do all the things they said you could do, number one. Mr. Haynes. That is correct. Senator Sessions. I think that is important. Did you want to respond further? Mr. Haynes. No, sir. I think I agree with your statement. Senator Sessions. You prepared these color-coded charts. I remember when we had the complaint about, I believe General Sanchez in Iraq, and there were all kinds of approval practices. Even if you approved the technique, you did not give that power, or the DOJ opinion did not give that power, unreviewable, to an interrogation officer. The more significant techniques had to be approved higher up in the chain of command. Is that not correct? Mr. Haynes. That is correct. But there is an important point I need to make here. That is that what these charts reflect are for unlawful combatants at Guantanamo Bay, Cuba in the global war on terrorism only. It had nothing to do with anything in Iraq. Senator Sessions. That is very important. I am glad you mentioned that, because the President said we would let the Geneva Conventions apply with regard to Iraq, even though they do not, because those soldiers do not really meet the standards, in my view, and do not come close. Those terrorists do not come close to meeting those standards. But he said we will do it in Iraq. But with regard to the Al Qaeda types that were captured and held at Guantanamo, these are the techniques and they required review up the chain if somebody were using an enhanced technique. Is that correct? Mr. Haynes. That is correct. Senator Sessions. Well, I think, Mr. Chairman, this counsel is not operating as a rogue person. The Department of Defense is not operating as an independent agency, trying to violate people's rights. From the very, very beginning, they have had the best legal advice they could get. They have worked at it, they have had full debate among JAG officers. Some had a different policy view about how these things ought to be handled. They thought they just ought to stick with the Uniform Code of Military Justice. But this was a different kind of war, and the President basically did not agree with that, so they went forward. But they strictly controlled what they were doing. It is reviewable. The policies are made available to the Congress and key leaders. So I think, Mr. Haynes, you have done your best and have served your country well under difficult circumstances and you have reflected credit on you and your fine family. Mr. Haynes. Thank you. Chairman Specter. Thank you very much, Senator Sessions. Mr. Haynes, just a few more questions about looking forward and where we go from here. With respect to trial procedures to meet the requirements of the Supreme Court of the United States in Hamdan v. Rumsfeld, do you believe that evidence should be used in the trials which are the result of coerced confessions or involuntary statements by the detainees? Mr. Haynes. Senator, if you will bear with me just one second, I feel schizophrenic. I am here, I am a government official. I am here as a nominee. You are asking my view about what the Congress should do. Is that correct, what the Congress should propose? Chairman Specter. Mr. Haynes, you are here today as a nominee for a Federal Judgeship. Mr. Haynes. Yes, sir. Chairman Specter. This Committee is interested in your judgment. The issue as to how you treat detainees and what you have on trial practice falls squarely within the ambit of judgment. We are not asking you for the views of the administration; that has already been made clear. You have already expressly stated that. Now do you think, as a matter of policy, in your judgment as an individual, that we should use coerced confessions in a trial? Mr. Haynes. I do not like the idea of coercing anybody as a general matter. In our conversations yesterday, one of the things that we talked about was-- Chairman Specter. Let me ask you to respond in writing, after you have had a chance to think about it, so that we can move to another question. Mr. Haynes. Yes. Chairman Specter. In the same context, do you believe that a defendant in one of these trials ought to be entitled to exculpatory evidence? That is, evidence which would tend to be probative on his innocence. Mr. Haynes. My view is that if somebody is being tried, all relevant information, especially of that nature, ought to be available to the decision maker, especially exculpatory-- Chairman Specter. So it should be made available to defense counsel? Mr. Haynes. My personal view is that exculpatory information absolutely must be. Chairman Specter. Do you think that defense counsel ought to be entitled to have access to classified information which may be relevant to the trial, even though that would not be necessarily shown to the defendant, but made available to counsel? Mr. Haynes. I would observe, on the question of making classified information available to somebody, the reason that information is classified-- Chairman Specter. Would the counsel or JAG be cleared to handle classified information? Mr. Haynes. Let me try answering it this way, sir. Chairman Specter. No. Answer it in writing. I want to move on. Mr. Haynes. All right. I will. Chairman Specter. With respect to the treatment of enemy combatants and detainees who are held for the duration of the war against terror, which has no ending boundary in sight, if you have a prisoner of war they are held until the war is over, then they are released. Where you have detainees, enemy combatants, in the legislation which I have proposed, there will be periodic reviews. What is the kind of information which would be requisite to holding them as enemy combatants and detainees, the standard being essentially whether they are a threat, that if they are released they will go back to the battlefield and kill Americans? Mr. Haynes. That has been the traditional standard. That would be something that would make sense to me. Chairman Specter. Well, what kind of information? You cannot have, necessarily, competent evidence that would be admitted in a proceeding in a criminal trial in a Federal court in the United States. But what kind of information would be appropriate to be received to protect the interests of the United States, the administration, the President in protecting Americans, contrasted with sufficient reason for continued attention? Mr. Haynes. Well, from the country's perspective, the interest would be to make sure that somebody who is trying to kill citizens should be detained. So, any information-- Chairman Specter. What kind of data and information would be appropriate to establish that? That is my last question. My red light is about to go on. Mr. Haynes. I will take that for the record. If I may take that for the record, I will give you writing on that as well. Chairman Specter. That would be fine. Senator Kennedy, you have minus one minute for your last round. Senator Kennedy. Thank you, Mr. Chairman. Let me ask you-- Chairman Specter. No, he took six minutes of overtime, so he would have less than one minute to go. But we have another round, so start him at five, not at four. Senator Kennedy. That is awfully kind. I will not take all that time. Chairman Specter. You say you will not take all that time? Senator Kennedy. No. Let me ask you, did you ever request a judgment by Mr. Bybee on specific techniques from the Office of Legal Counsel? Mr. Haynes. No, sir. I never asked Mr. Bybee for judgment on specific techniques. I did ask his successor at the Office of Legal Counsel to review the techniques approved by the Secretary of Defense in April of 2003. Senator Kennedy. All right. And did you receive that? Mr. Haynes. I received the judgment-- Senator Kennedy. Is that known, sort of, as the Bybee two memorandum? Mr. Haynes. I do not know. Senator Kennedy. All right. Well, let us just stick with that. Can you make that available to us? Mr. Haynes. Bybee two? Senator Kennedy. Well, the memorandum that you just mentioned that you received about the techniques. Mr. Haynes. I do not recall if I did, but if I did receive a memorandum to that effect, it may be that I can do that, because, as I said earlier, there has been an enormous disgorgement of data related to Guantanamo to the Armed Services Committee already. If that is available, if there is such a thing--and I think there is--then I will do everything I can to make it available. Senator Kennedy. Thank you, Mr. Chairman. Chairman Specter. Thank you, Senator Kennedy. Senator Sessions, would you like another round? Senator Sessions. Well, I would just say that, with regard to some of the specific questions you asked, like coerced confessions, what we define as ``coerced'' in America is a very low threshold. For example, if a police officer stands in front of somebody and asks them, were they involved in a crime, that can be considered coercion if they feel like the person may have been threatened. We do not want to exclude confessions or admissions made to soldiers who make inquiry of people they apprehend on the battlefield. With regard to torture, we have a statute that, if I am not mistaken, senior members of this Committee all voted for that defined ``torture'' as an intention to inflict severe physical or mental pain, and defined ``severe mental pain or suffering'' as ``prolonged mental harm resulting from severe physical pain.'' You are a lawyer. You are required to follow the laws that Congress passes. That is what we passed as the definition of torture some years ago in the U.S. Congress. I think President Clinton signed it. But I just hope that as we go forward with the overall process of dealing with detainees, that we will be realistic and understand the exigencies of the threat this Nation faces and the difficulties and challenges our soldiers on the battlefield face. How do you feel about those soldiers out there, trying to serve their country, trying to find out information that could preserve Iraqi lives or American soldiers' lives, or Americans in the homeland's lives? Would you share any thoughts with us about how you feel about them and your responsibility to them? Mr. Haynes. I feel grateful for what they are doing. I feel humbled by what they are putting at stake. I feel concerned at what they risk. I feel a fiduciary responsibility, both as a government official and as a citizen, because they are out there for us. That is just the beginning. Senator Sessions. Let me ask you about Abu Ghraib. You are blamed for it, but in fact the Army found out about that and brought it forward and, I presume with your advice, the Secretary of Defense said go full force and investigate and prosecute whoever was wrong. Mr. Haynes. Absolutely. That is the standard response when any allegation comes in, and I believe it was Specialist Darby is the one who brought that to light and presented that to his chain of command. The first thing General Sanchez did, was call in the Criminal Investigative Division of the Army to investigate it. Chairman Specter. Senator Sessions, I have just been advised that there is an unidentified bag in the anteroom. If we are going to be concluding promptly, fine. If not, the Capitol Police would like us to vacate the room. Senator Sessions. We will wrap right up, I am sure. Were you involved at some point, aware of, and supportive of the full-fledged investigation and prosecution? Mr. Haynes. I supported it fully. Senator Sessions. That is all, Mr. Chairman. Chairman Specter. That concludes the hearing. Thank you very much, Mr. Haynes. 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