Abu Ghraib Rewarded

NYT Editorial

William Haynes II, the Pentagon’s general counsel, has been closely involved in shaping some of the Bush administration’s most legally and morally objectionable policies, notably on the use of torture. The last thing he is suited to be is a federal judge, but that is just what President Bush wants to make him. The Senate has been far too willing to rubber-stamp the president’s extreme judicial nominees. But there is reason to hope that strong opposition to Mr. Haynes, including from the military, may block this thoroughly inappropriate choice.

Mr. Haynes has been nominated for a seat on the United States Court of Appeals for the Fourth Circuit, based in Richmond, Va., a court that has heard some of the most important cases about the constitutional limits on the war on terror. This is a subject on which Mr. Haynes has no business posing as an impartial jurist. He has for years been part of a small group of insiders who have mapped out the Bush administration’s policies on questioning detainees and declaring American citizens to be “enemy combatants.” The administration’s policies in this area have been indecent and lawless, and the Supreme Court has repeatedly had to step in to rein them in.

Mr. Haynes was by many accounts a key player in the administration’s development of its shamefully narrow definition of “torture,” which gave the green light for a wide array of abuses. The decisions made in Washington cleared the way for abusive treatment of the detainees being held in Guantánamo Bay, and created the environment necessary for the Abu Ghraib torture scandal to occur. It is disturbing that while low-level soldiers have been convicted for their actions at the Iraqi prison, Mr. Haynes has been rewarded with a coveted judicial nomination.

The administration likes to blame opposition to its judicial nominees on “liberal activists,” but Mr. Haynes’s most high-profile opposition comes from the military itself. Twenty retired military officers, including a retired Army colonel who served as chief of staff to Secretary of State Colin Powell, wrote to the Senate to express their concern that the policies Mr. Haynes helped develop “compromised military values, ignored federal and international law and damaged America’s reputation and world leadership.” The officers expressed their “deep concern” about his fitness for the court.

At Mr. Haynes’s confirmation hearing, some of the most pointed questioning came from Senator Lindsey Graham, Republican of South Carolina. Mr. Graham, who has served as a military lawyer, takes the law of combat seriously, and he seemed to be genuinely offended by Mr. Haynes’s record. Democrats are, quite properly, talking about filibustering Mr. Haynes’s nomination if it comes to that, but it should not. This is one judicial nomination that moderate, and even independent conservative, Republicans should join Senate Democrats in defeating.