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Haynes to Leave DoD:

The Department of Defense announced yesterday that William J. Haynes will be stepping down from his post as DoD General Counsel. Haynes' tenure was particularly controversial, due to his involvement in the development of rules governing the detention and interrogation of enemy combatants. He was also nominated by President Bush to the U.S. Court of Appeals for the Fourth Circuit, but his nomination never went very far. A handful of Senate Republicans joined Senate Democrats to stall his confirmation.

Over at Obsidian Wings, Hilzoy is dancing and "cackling with glee" at the news.

Thorley Winston (mail) (www):
So after holding the position of DOD General Counsel longer than anyone else (nearly 7 years), he’s leaving at the end of the Bush administration. This is surprising how exactly?
2.26.2008 10:52am
Orielbean (mail):
Is it surprising? Maybe not. Newsworthy / notable? Yes.
2.26.2008 10:58am
GV:
It's not surprising. Who said it was? Generally, when you admit that you're trying to set up shame trials, you quickly quit in disgrace. Surprised? No. Dancing and cackling with glee? Yup.
2.26.2008 10:58am
Anderson (mail):
Did anyone say it was "surprising"? Overdue, well-deserved, an occasion for celebration ... I missed any implication that it was "surprising."
2.26.2008 11:05am
Anderson (mail):
Ach, shoulda refreshed before posting ....
2.26.2008 11:06am
J. F. Thomas (mail):
An advocate of torture and show trials--what a prince.
2.26.2008 11:09am
GV:
Geez. I guess my comment wasn't all that original since two other people said it at the same time I did.
2.26.2008 11:15am
Anderson (mail):
Original? No. Correct on the merits? Yup.
2.26.2008 11:16am
A.S.:
Haynes appears to have done a good job for a long time during a trying period. Too bad the far Left have used him for their partisan political ends. I would have hoped that Bush would recess appoint him to the 4th circuit at the end of 2008, but I would think that Haynes already has a job lined up if he is quitting a few months early.
2.26.2008 11:22am
Thorley Winston (mail) (www):
Haynes appears to have done a good job for a long time during a trying period. Too bad the far Left have used him for their partisan political ends.


I guess the real story is that after seven years of whining and outcry by the BAFers, he essentially served until the end of the administration and left under his own terms, which is what most political appointees do. Actually come to think of it, most of them leave a lot sooner than that which I guess makes his service during this difficult period all the more laudable for serving longer than anyone else in the position.
2.26.2008 11:38am
frankcross (mail):
"We can't have acquittals" Not what I would call laudable.
2.26.2008 11:45am
sashal (mail):
good riddance for another Bush's fascist
2.26.2008 11:53am
Bob from Ohio (mail):
Who is replacing him? Not Anderson or JF Thomas I think.

Daniel J. Dell'Orto has been deputy since June 2000. Who was president then?

Do you really think that Haynes made policy? Or that policy will now change? Or that Dell'Orto favors a change?
2.26.2008 11:57am
Humble Law Student (mail):
I'm guessing that his old firm, Jenner &Block, won't take him back.
2.26.2008 11:57am
Davebo (mail):

"In this amazing brief, Haynes argued that bombing a nesting site for migratory birds would benefit birdwatchers, since "bird watchers get more enjoyment spotting a rare bird than they do spotting a common one." Moreover, he added, the birds would benefit as well, since using their nests as a bombing range would minimize "human intrusion". The judge's comment on this novel line of argument: "there is absolutely no support in the law for the view that environmentalists should get enjoyment out of the destruction of natural resources because that destruction makes the remaining resources more scarce and therefore more valuable. The Court hopes that the federal government will refrain from making or adopting such frivolous arguments in the future." (pp. 27-8)"



See, he wasn't one dimensional.
2.26.2008 12:00pm
J. F. Thomas (mail):
Haynes appears to have done a good job for a long time during a trying period.

Yep, when a judge describes your argument this way:


there is absolutely no support in the law for the view that environmentalists should get enjoyment out of the destruction of natural resources because that destruction makes the remaining resources more scarce and therefore more valuable. The Court hopes that the federal government will refrain from making or adopting such frivolous arguments in the future


That indicates a lawyer of impeccable judgment and competence.
2.26.2008 12:01pm
JohnO (mail):
GV:

It's a sentiment you can Xerox.*


*Xerox, please do not sue me.
2.26.2008 12:10pm
EH (mail):
My sense is that yes, he is leaving on his own terms, but the "no acquittals" comment was just a parting shot reflecting plans already made. It certainly wouldn't be beneath him.

A.S.: You damn him with faint praise by using such boilerplate.
2.26.2008 12:10pm
Anderson (mail):
Who is replacing him? Not Anderson

I would not hesitate to serve my country in this important office, and I'll let you know just as soon as Secretary Gates e-mails me with his offer.
2.26.2008 12:41pm
ejo:
if only he had been a little bit more pro-terrorist instead of actually believing his job was to protect this country-he might have earned plaudits from the NYT and had the seat warm for him at some Biglaw firm hoping to attract jihadist/ME retainers.
2.26.2008 1:06pm
Oren:
I would have hoped that Bush would recess appoint him to the 4th circuit at the end of 2008, but I would think that Haynes already has a job lined up if he is quitting a few months early.
There will be no more recess appointments from W. I imagine the pro forma sessions will continue until Jan 2009.
2.26.2008 1:09pm
J. F. Thomas (mail):
if only he had been a little bit more pro-terrorist instead of actually believing his job was to protect this country

His job is not to protect the country, it is to provide competent legal advice to the DoD.
2.26.2008 1:31pm
J. F. Thomas (mail):
And apparently some of the attorneys in the DoD that had the biggest problem with him were uniformed military. Are you saying that the military is pro-terrorist? Remember, despite the urging of Rumsfeld and Haynes' office, the Army published a new Field Manual on Interrogation that was practically identical to the old one and explicitly rejected the coercive and abusive methods Haynes is so enamored of.

I suppose you think the Army is "pro-terrorist" too along with the NYT.
2.26.2008 1:35pm
ejo:
so, a military lawyer has no obligation to think about the protection of this country? that's an interesting concept. As to the Army Field Manual, I could care less-they hand the tough cases off to intelligence, right? as to other military lawyers having a problem with things, it still has never been explained to me how the growth of the legal branches of the armed forces has correlated with improving our ability to fight wars. all in all, I am glad there are people out there on our side more worried about what our enemy is trying to do to us than what the NYT's editorial pages will comment.
2.26.2008 1:42pm
PLR:
Good riddance to bad rubbish, and I trust that his future employment will not involve giving legal advice for money.
2.26.2008 1:56pm
sashal (mail):
ejo , short:

"I am all for Stalin's "troika"s. We need 100% conviction.
Law be damned, hooray to totalitarianism."

What a douche...
2.26.2008 1:58pm
AnonLawStudent:

His job is not to protect the country, it is to provide competent legal advice to the DoD.


That sure isn't part of any oath of office that I've ever seen.
2.26.2008 2:00pm
PersonFromPorlock:

That sure isn't part of any oath of office that I've ever seen.

Actually, the oath is to defend the Constitution. There appears to be some room for doubt that he did this.
2.26.2008 2:19pm
Anderson (mail):
Paperwight points us to Haynes's oath of office:

''I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

Three strikes right there? Paperwight's post is worth reading, as is the one by Von of ObWi that he links:

The folks [who] drafted the DoD's torture memorandum ... forgot their oath. They lost their compass. They ignored the law. They forgot that there is a difference between right and wrong, and that it doesn't change just 'cause you want it to. I'm disgusted, I'm sickened, I'm in despair. I am more ashamed of my profession now than I ever have been in my life. Because these folks -- these trusted lawyers, far more learned and careful and smart than I -- should've known better. They should've known better. They must have known better.

Both posts from 2004.
2.26.2008 2:22pm
ejo:
yep, what we are doing at Gitmo is so stalinesque. granting people captured on foreign battlefields more rights than have ever been granted in any past wars. wailing and gnashing our teeth about their rights while their compatriots are still trying to kill americans. at least, with Nuremburg, we weren't pretending we had such a noble view about due process until after we had actually defeated the enemy. we weren't fretting over the rights of our Nazi enemies in 1942, thank god.
2.26.2008 2:30pm
AnonLawStudent:

The folks [who] drafted the DoD's torture memorandum ... forgot their oath. They lost their compass. They ignored the law.


That's kind of question-begging isn't it? A common thread among anti-Gitmo/torture advocates is that whatever Congress said, that's the law. It's a superficial analysis that is fine for high school civics, but that has no place in a SoP debate. The documents in question, however, go to (1) exactly what DID Congress say, and (2) just because Congress passes a statute doesn't make it the LAW. See Art. VI, clause 2; cf. the War Powers Resolution, and applications thereof. Just because the President and his legal advisers read the law differently than you do doesn't make them wrong.
2.26.2008 2:48pm
A.S.:
My sense is that yes, he is leaving on his own terms, but the "no acquittals" comment was just a parting shot reflecting plans already made. It certainly wouldn't be beneath him.

A.S.: You damn him with faint praise by using such boilerplate.


But, of course, the "no acquitals" smear is just that - a smear. It is no different than any prosecutor telling a subordinate that they've got to do their job and get a conviction of a guilty criminal.
2.26.2008 2:52pm
PC:
t is no different than any prosecutor telling a subordinate that they've got to do their job and get a conviction of a guilty criminal.


Are you saying that anyone charged with a crime is guilty? Or are you saying that anyone that has been sent to Gitmo is de facto a terrorist, otherwise they wouldn't be there?
2.26.2008 3:03pm
Anderson (mail):
It is no different than any prosecutor telling a subordinate that they've got to do their job and get a conviction of a guilty criminal.

But was Haynes in charge of the prosecutions? Or was he in charge of both sides, prosecution and defense?

I had thought it was both sides. The "convening authority" was Susan Crawford; did she answer to Haynes? Anyone got a link on this?

Crawford was appointed by Gates, at whose pleasure I am supposing Haynes also served. Morris Davis, the ex-chief prosecutor at Gitmo, quit when he was placed under Haynes, but I'm not at all clear what Haynes's title or place in the hierarchy was, in that role.
2.26.2008 3:13pm
PLR:
Just because the President and his legal advisers read the law differently than you do doesn't make them wrong.

Post of the day.
2.26.2008 3:15pm
Anderson (mail):
Currently, in his capacity as Pentagon general counsel, Haynes oversees both the prosecution and the defense for the Guantánamo commissions.

That's from the Nation article where Col. Davis recounted Haynes's "we can't have acquittals" remark. If that's accurate, then it's pretty obvious that A.S.'s analogy won't work.

Anyone got anything else on the chain of command?
2.26.2008 3:21pm
A.S.:
But was Haynes in charge of the prosecutions? Or was he in charge of both sides, prosecution and defense?

For purposes of this discussion, it doesn't make a difference. Haynes allegedly made the "no acquittals" remark to the prosecutor, not to defense counsel or a judge. Accordingly, it was an entirely appropriate statement that the prosecutor ought to do his job.
2.26.2008 3:22pm
frankcross (mail):
Even prosecutors are not supposed to be dedicated to gaining convictions, though I know some are. They certainly shouldn't be told that this is their job by highers up. They are not supposed to pursue cases if they develop evidence that calls the accused's guilt into question and are certainly supposed to keep an open mind about such possible innocence.
2.26.2008 3:26pm
Anderson (mail):
For purposes of this discussion, it doesn't make a difference. Haynes allegedly made the "no acquittals" remark to the prosecutor, not to defense counsel or a judge. Accordingly, it was an entirely appropriate statement that the prosecutor ought to do his job.

Oh, good heavens. Thanks for Mr. Cross for dismissing this nonsense.

Still curious about whether Haynes was the SecDef's delegaged "convening authority" or superior thereto.
2.26.2008 3:30pm
A.S.:
Even prosecutors are not supposed to be dedicated to gaining convictions

Prosecutors most certainly are "supposed to be dedicated to gaining convictions" of people they think are guilty.

They are not supposed to pursue cases if they develop evidence that calls the accused's guilt into question and are certainly supposed to keep an open mind about such possible innocence.

And nowhere does Haynes say anything to the contrary.
2.26.2008 3:35pm
ejo:
no acquittals of terrorists trying, successfully in some instances, to murder our soldiers. horrors, I am getting the vapors over this outrageous statement. that monster isn't neutral on the issue.
2.26.2008 3:45pm
frankcross (mail):
If you read Haynes statement, it is quite clear that the "no acquittals" point had nothing to do with the guilt or innocence of the individuals, he was concerned that if we had held someone for years and then saw them acquitted, that this would produce bad press for the government and detainee system.

A.S. your post is quite knee-jerk, Haynes said something exactly to the contrary -- that we could have no acquittals (independent of guilt/innocence) or the Bush Administration would take a PR hit. He didn't say "no acquittals of the guilty" he said "no acquittals" without reference to guilt and without reference to any evidence the defense might produce. It was clearly an issue of worry about PR.
2.26.2008 3:59pm
A.S.:
Haynes said something exactly to the contrary -- that we could have no acquittals (independent of guilt/innocence)

But he said nothing at all in respect of the parenthetical. You're are simply making that part up. You can infer it if you are interested in making an anti-Haynes inference; however, there is no reason to make that inference, and I think the more reasonable inference is the inference I make - that he thinks the accused are guilty and he is telling the prosecutor to do his job.

And he was quite right to point out that if clearly guilty people are acquitted, the prosecution would look pretty foolish.
2.26.2008 4:11pm
PLR:
... I think the more reasonable inference is the inference I make - that he thinks the accused are guilty and he is telling the prosecutor to do his job.

That is the unreasonable inference. Haynes would not have the same level of familiarity with the evidence against each of the detainees that the chief prosecutor would have.
2.26.2008 4:15pm
Anderson (mail):
Thanks to commenter Batocchio at ObWi, here's Scott Horton on the command structure (go to his post for the links):

Apparently judging the military commissions process as a matter of tight personal concern, Jim Haynes decided he needed to have tighter and more direct control over them. He then proposed a change in the command structure for the participants. They were to be subordinated directly to his command.

Haynes crafted and secured Deputy Secretary of Defense Gordon England’s signature on two documents. The first, which can be examined here, directs that Brigadier General Thomas Hartmann, Legal Advisor to the convening authority and the person who effectively manages her office, reports to Paul Ney, DOD Deputy General Counsel (Legal Counsel), who, of course, in turn, reports to Jim Haynes.

The second memorandum, which can be examined here directs that Colonel Morris Davis, the Chief Prosecutor, reports to Brigadier General Hartmann, who reports to Ney, who reports to Haynes. This memorandum was particularly necessary as an after-the-fact adjustment to cover Haynes’s manipulation of the Hicks case, establishing a chain-of-command justification for his intervention to direct the plea bargain resolution of the case.

Same relationship exists for the Chief Defense Counsel, who reports to Paul Koffsky, DOD Deputy General Counsel (Personnel &Health Policy) who, like Ney, reports to Haynes.


So, the guy in charge of both the prosecution and the defense, is saying "no acquittals."

As I observed the other day, at Nuremberg there was one judge who consistently voted to convict every Nazi defendant. No exceptions.

That was the Soviet judge.
2.26.2008 4:21pm
A.S.:
Haynes would not have the same level of familiarity with the evidence against each of the detainees that the chief prosecutor would have.

Whether or not this is true, it has nothing to do with which inference is more reasonable.
2.26.2008 4:31pm
A.S.:
As I observed the other day, at Nuremberg there was one judge who consistently voted to convict every Nazi defendant.

Luckily, in our system of justice, the chief prosecutor is not a Soviet judge, your odd insistence to the contrary notwithstanding.
2.26.2008 4:43pm
ejo:
nuremberg-isn't that the tribunal that took place after the Allied Forces won WWII? it's almost as though they had enough common sense back then to achieve victory before being concerned about the due process rights of the enemy.
2.26.2008 4:47pm
ejo:
nuremberg-isn't that the tribunal that took place after the Allied Forces won WWII? it's almost as though they had enough common sense back then to achieve victory before being concerned about the due process rights of the enemy.
2.26.2008 4:47pm
ejo:
by the way, wouldn't that example make the Nuremburg trials illegitimate. after all, if one of the jurists was prejudiced to the degree you are stating, the entire process was obviously tainted (ignoring the issue of victor's justice, of course). thus, the perfect tribunal you are seeking didn't take place back then, either.
2.26.2008 4:57pm
Adam J:
Ejo- when do you think they caught the people who were tried at Nuremberg? After WWII maybe, when Germany surrendered?
2.26.2008 5:02pm
frankcross (mail):
AS, I'm not making anything up, and I don't need inferences. He explicitly said that the reason for "no acquittals" was the amount of time the detainees had been held. He said that. He said nothing about guilt, however. You want to make up a better reason, but you have no basis for that. My position has actual support -- what he said.
2.26.2008 5:25pm
hattio1:
Anderson;

As I observed the other day, at Nuremberg there was one judge who consistently voted to convict every Nazi defendant. No exceptions.


So, why were you at Nuremberg the other day?
2.26.2008 5:40pm
Anderson (mail):
That would be a good gotcha, Hattio, if the comma were after "Nuremberg" and not "day."

But since you ask, I thought a fact-finding mission might be nice for my CV, when Secretary Gates gets around to requesting it.

Executive summary: Nuremberg has much better beer than Gitmo is likely to offer.
2.26.2008 6:02pm
Bob from Ohio (mail):
Well, the Soviet judge was more right than the western judges. The guilt or "innocence" of the defendants was totally besides the point. The defendants were all high ranking Nazi officials, part of a very evil regime. They all deserved death, it was a pity that any were aquitted or got prison terms.

After the major war criminal trial, there were other trials in the American and other western sectors. A few hangings but most of the criminals there were released after the Cold War got really going. Less due process and quicker ropes would have served justice a lot better.
2.26.2008 8:54pm
Barry P. (mail):
no acquittals of terrorists trying, successfully in some instances, to murder our soldiers.

Huh? So now "terror" includes attempting to kill soldiers on an active battlefield? I guess that word really is totally meaningless now.

Or is it just terror when "they" try to do it?
2.26.2008 11:48pm
Anderson (mail):
Well, the Soviet judge was more right than the western judges. The guilt or "innocence" of the defendants was totally besides the point. The defendants were all high ranking Nazi officials, part of a very evil regime. They all deserved death, it was a pity that any were aquitted or got prison terms.

Wow. Just "wow."
2.27.2008 9:38am
ejo:
they did deserve death. I guess a few acquittals were served up to make the show trials look good. of course, some nazis were convicted for massacres that were committed by the Soviets. that is what they call victor's justice. you can afford to be merciful when you have actually won the war, something we seem to forget today.

As to Barry, do you really think islamic terror organizations aren't trying to kill American soldiers today or is your argument that killing soldiers doesn't count as a terror attack? Would you put your stamp of approval on the Cole bombing or, I suppose, any bombing in Israel given the likelihood that some member of the military is killed in the attack?
2.27.2008 9:56am
Anderson (mail):
I guess a few acquittals were served up to make the show trials look good.

"Wow," again.
2.27.2008 10:54am
PLR:
"Wow," again.

You've been here long enough to know there's a crowd that cares less about the rule of law than exacting random vengeance for others' wrongs.
2.27.2008 11:26am
Bob from Ohio (mail):

random vengeance


What was random about the Nazis tried at Nuremburg? These were men that held senior positions and were responsible for the murder of six million Jews plus millions or others.

The "rule of law" let many, many mass murderers live out their lives without facing the justice they deserved. Which was the rope or the bullet.

So "Wow" all you want, the moral position is mine, not yours here.
2.27.2008 12:03pm
Adam J:
ejo- "is your argument that killing soldiers doesn't count as a terror attack?" I thought that was generally understood... Is it terrorism when a member of a "terrorist organization" that we have declared war on engages our armed soldiers? I thought the answer was an obvious No. Of course, I'm sure your next step in your little rhetoric game to say "I don't support the soldiers" because I don't think an attack on soldiers by enemy combatants we are at war with constitutes terrorism.
2.27.2008 12:13pm
ejo:
I don't see how one can dispute they were show trials, knowing that Nazis were prosecuted for massacres conducted by the Soviets and pointing out that one judge always voted to convict, implying he ignored the facts and the non-existent law. I don't have a particular problem with show trials given that we won the war. Again, we were wise enough back then to have waited for that to occur. as a general matter, I don't see any real reason why summary executions wouldn't have worked just as well with the Defendants. would it have been somehow necessary to the cause of justice to try Hitler? I think not.
2.27.2008 12:19pm
ejo:
so, a bombing in a German disco which targets our soldiers/military is not terrorism? it's not a rhetorical game-let me know your position.
2.27.2008 12:34pm
ejo:
how about sending a retarded person strapped with bombs into a marketplace in the hope of killing some of us and sowing terror-still not terrorism in your rhetorical opinion? what is wrong with you people?
2.27.2008 12:36pm
PLR:
What was random about the Nazis tried at Nuremburg? These were men that held senior positions and were responsible for the murder of six million Jews plus millions or others.

The "rule of law" let many, many mass murderers live out their lives without facing the justice they deserved. Which was the rope or the bullet.

So "Wow" all you want, the moral position is mine, not yours here.

As to the group charged with criminal activities, Nazis were not randomly selected.

I don't think it's too much to ask that people who are charged with specific acts, including conspiracies, be criminally punished only where they have actually committed those acts. If your morality will not allow for that, you have proven my point.
2.27.2008 2:22pm
Bob from Ohio (mail):

I don't think it's too much to ask that people who are charged with specific acts, including conspiracies, be criminally punished only where they have actually committed those acts.


I am afraid I don't understand this. You will have to rephrase before a response.
2.27.2008 3:13pm
PLR:
I think it's clear enough. Reread your earlier post of 2.26.2008 8:54 pm. Or rephrase it if you think it appropriate.
2.27.2008 5:46pm
Barry P. (mail):
ejo, my punctuationally challenged friend, I'll make it simple for you: attacking soldiers on a battlefield is not terrorism. Attacking civilian targets (where off-duty soldiers might happen to be) is terrorism.

A necessary component of the generally-accepted defintion of "terrorism" involves attacking non-military persons in non-military theaters. Thus, attacking soldiers on a battlefield or in a base (or on a warship) is not terrorism, but military conflict, sometimes called battle, or, if you wish, war. Is that too hard for you to grasp?

By the way, my approval or non-aproval of any such acts is irrelevant to the defintions explained for you above.
2.27.2008 7:57pm