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The morning after the 2006 midterm elections, President Bush gave a press conference. The people had spoken, he said, and Donald Rumsfeld had to go. Most of Rumsfeld’s closest aides had already left by that point or they departed shortly afterwards: Paul Wolfowitz, Doug Feith and Stephen Cambone, for instance. But of the core group of hearty Neocons, one remains on the job. He is Don Rumsfeld’s lawyer, William J. Haynes II, the DOD’s general counsel. Haynes had his escape plan carefully charted. The president nominated him to be a judge on the Fourth Circuit Court of Appeals. He expected to have his nomination confirmed, and depart for the bench.
However, something got in the way of his plans. Even while the Republicans held a majority in the Senate, the Armed Services Committee started looking into detainee policy. They didn’t like what they saw, and they linked much of what they didn’t like to Haynes. South Carolina Republican Lindsey Graham played the leading role in blocking the nomination. Haynes didn’t get to worry about collecting Democratic support on the Judiciary Committee. He had to focus on the Republicans. His nomination went nowhere.
And that left Haynes to fight a Neocon rearguard action in the Pentagon’s corridors of power. With Robert Gates arriving and his friends leaving, Haynes had ever fewer allies. He’s had to seek support outside of the Pentagon.
But Haynes fights on in his own personal version of a Nietzschean battle into the twilight. Curiously his adversary in this battle is not the terrorist menace, but rather a foe he has long cultivated: the JAG corps. And the role played by Lindsey Graham in blocking his judicial appointment can be linked directly to it. Graham is a reserve JAG judge. Viewed in perspective, Haynes’s long campaign can be divided into a significant number of skirmishes. He’s lost all of them, and he just keeps getting more bitter. Just looking back over the last year, there have been four high-profile skirmishes, not counting the innumerable battles behind the scenes in the bureaucratic folds of the Pentagon.
Held Hostage! The Battle for the MCA
After the Supreme Court held the Bush Administration’s plan for Military Commissions to be unlawful in Rasul v. Bush, the White House rushed to present new legislation to replace the old plan. The legislation itself was crafted by a team of politcal lawyers at the White House and in the Justice Department, apparently because the career military lawyers who actually have expertise in such matters were considered “politically untrustworthy.” The leaders of the JAG corps were shown the legislation just before it was to be presented to Congress, and were presented with a letter which Haynes had prepared. He directed them to sign it. They were held captive in a room and pressured to sign the letter for four to five hours. It was an event without precedent in Pentagon history. Here’s how the incident played out at a press gaggle later the same day.
REPORTER: Senator Graham is telling reporters on Capitol Hill that the White House had them in a meeting for five hours last night and tried to force them to sign a prepared statement. And he said, Reading this JAG letter they ended up writing leaves total ambiguity on interpretation. This is Senator Lindsay Graham.
What’s your response to that?. . .
SNOW: The testimony — I don’t know if — there was not a White House meeting. I don’t think so. I don’t think there was a White House meeting. I do know that they were asked to express in a letter the opinions that they had expressed in open committee, in testimony before the United States Senate — I believe it was the Judiciary Committee; maybe Armed Services — in August…
QUESTION: … Jim Haynes, who’s the counsel at the Pentagon, convened this meeting and got these guys to write this letter and something they told people they didn’t agree with.
This quite vividly describes the relationship between Haynes and the JAG flag officers. Haynes cajoles them to issue ludicrous opinions and statements, and they refuse. The pressure tactics related to issues of great importance raising heavy legal, moral and ethical questions: the torture of detainees, the use of torture-induced evidence, the question of presumption of innocence, and the independence of the tribunals who would hear cases against detainees, for instance. Several senators have called for hearings into the pressure tactics used against the JAG flag officers, but they have not yet been held. My understanding is that’s largely in deference to the JAG officers, who have a strong distaste for airing their disagreements with political appointees in the Pentagon. They believe this undermines discipline and morale, and they’re certainly correct about that.
The Political Commissar Initiative
The next clash, which I chronicled here was Haynes’s attempt to seize control over the JAG appointments (i.e., promotions) process. It was an attempt to politicize the JAG corps by making political fidelity—by which we mean not willingness to follow orders, but an enthusiastic embrace of a partisan political agenda—a key consideration for JAGs securing appointment to higher levels. Of course, political skullduggery was long the bane of the American military. Any historian who has waded his way through the tall grass of the military history of the American Civil War knows the stories of political intrigue over military appointments that complicated every step of the way and that seriously undermined the effectiveness of the United States military. It took decades after the war to come to a broad realization of the damage that political patronage attitudes did to the self-image and competence of the military. Yet Haynes was essentially attempting to sweep away 120 years of reforms which have banished political hackery from the military, creating the basis for a professional officer corps which puts a premium on competence over political brown-nosing. John Yoo, who played a key role in working with Haynes on the introduction of torture policy and circumventing the JAG corps in the process, helped prepare the field for Haynes effort with an article in the UCLA Law Review in which Yoo assailed the JAG corps, essentially accusing them of disloyalty to the President, and insisting that their more vigorous subordination to political appointees was essential. Charlie Savage at the Boston Globe very accurately evaluated the essence of this maneuver and exposed it. Haynes folded and quit the field without obtaining his objective.
The Political Prosecutions Initiative
This led to Haynes’s third assault, for which the field was moved to Guantánamo. Haynes sought to transform the Guantánamo military commissions into a form of marionette theater. He wanted to assume control over the decisions and actions of the prosecution and to manipulate the conduct of the convening authority as well. However, Haynes’s manipulations were so crude and heavy-handed that they soon became plain to all involved. At one point he directed Moe Davis, the chief prosecutor in Guantánamo, to commence some nice juicy terrorist prosecutions and to line this up to match the 2008 elections season. Haynes apparently reasoned that a steady feed of terrorist prosecutions would provide the perfect news background for the Republican presidential campaign.
Haynes’s third skirmish was also a disaster. It put an indelible stain on the military commissions, leading leaders around the world to condemn them, and humiliating the dedicated career professionals who were working on the cases forwarded to the commissions. About this time the Supreme Court, which had passed on exercising its jurisdiction on cases coming out of Guantánamo, changed its mind and slated two cases for hearing. The condemnations of the United States around the world, the tarnishing of the U.S. military’s once excellent reputation for the administration of justice in cases involving combatants, and the Supreme Court’s decision to stick its nose once more under the tent—all of this arguably resulted from Haynes’s highly unskillful efforts to game the system to help the sagging fortunes of the Republican Party at the polls.
The Three-Star Wars
And that brings us to the fourth skirmish, which we might subtitle “two stars or three?” This is very subtle indeed, and even more a show of personal pique than the three prior confrontations. It has a long background. In the immediate wake of the Abu Ghraib scandal, Senator Lindsey Graham felt that the Bush Administration’s political bullying of military lawyers was a major reason for the disaster that had unfolded. He proposed that the TJAGs, that is, the commanding general or admiral of the JAG corps of each uniformed service branch, be designated for three-stars (i.e., Lieutenant General or Vice Admiral). This guaranteed the JAG corps a higher level of access in Pentagon decision-making. Graham’s proposal received broad, bipartisan support in Congress, but was vehemently opposed by Haynes, who not unreasonably saw it as a swipe against him and a counter to his efforts to subordinate the JAG corps to his political skullduggery. The Senate passed this measure several times, and ultimately–in the 2008 Defense Authorizations Act–President Bush signed it into law. However, Bush issued one of his infamous weasly Signing Statements on the bill, suggesting that he wasn’t necessarily prepared to implement all the law and he wasn’t willing to say clearly what he wouldn’t implement. So, although now law, Haynes has been feverishly looking for a way to undermine the legislation’s clear mandate that the TJAGs each be given a third star. The way he going about this would be comical if it weren’t also tragic. But it tells us a lot about the current political dynamic surrounding the Neocons in the Bush Administration and how they band together to fight their rear-guard battles.
But this fourth skirmish requires a little legal background. The question here is whether and how the TJAGs will get the third star that Congress awarded them. The legal issues are fairly arcane, though for those who want to know more, I set them out a bit in the next paragraph (those who are happy not to be introduced to the arcana please skip right over it).
Military Law Arcanae
As is typical for such legislation, the Defense Authorizations Act of 2008 does not address the question explicitly how the third star is to be awarded, and neither does the accompanying legislative report. The issue falls under article II, section 2, clause 2 of the Constitution. There are three ways of approaching the question. The first is that the grade increase is self–executing, i.e., the TJAGs can simply pin on a third star – no presidential and senatorial action required. The second is that all that needs to happen is for the President to appoint the TJAGs to three-star grade–no Senate confirmation necessary. The third takes the position that the three-star grade (Lieutenant General and Vice Admiral) is a superior office in and of itself, even when appointment to that grade is unaccompanied by appointment to the office of TJAG. Clearly, the three-star grade is not an inferior office in the Constitution’s parlance. There are arguments to be mustered for each approach, but the safe one is number three: the incumbent TJAGs, to be brought up to the new three-star grade, must be nominated by the President for three-star grade, confirmed by the Senate for three-star grade and then appointed by the President to three-star grade. (This is not to say that the incumbent TJAGs need to be reappointed as TJAGs, since that’s already been done.) This is not a recurrent matter; it will happen only this one time. In the future, when an officer is appointed as TJAG, the appointment will carry the third star with it automatically.
So what, you might ask, is the big deal here? Haynes’s posture is that he wants to control the award of rank, and he’s not much enamored of the incumbents, who defied him in the fall of 2006 by appearing on Capitol Hill and opposing the Military Commissions Act proposal put forward by Attorney General Gonzales, in which Haynes had a hand, but from which the TJAGs were excluded.
But Haynes has run out of allies in the Pentagon. So he’s run for cover to the bastion of Neocon assistance and protection in the Bush Administration, the Department of Justice’s Office of Legal Counsel. As you will recall, the Bush Administration’s OLC now has a perfect record of opining on military law issues which have been pitched to it—usually by Haynes. It has never rendered a correct opinion. The OLC’s masterwork is of course its torture memoranda.
Remember that the TJAGs testified that waterboarding was unlawful under U.S. law and that there was no difficult or trying issue about it. Correct. Moreover, it’s a well settled issue under military law, with precedents going back to 1902. One of the waterboarding cases, in fact, is included in the standard JAG lawyer casebooks. So while the OLC insists there is no precedent on the issue, the JAG officers know this is untrue–the question is long and clearly resolved. Steve Bradbury is the man Haynes has sought out for an opinion. What Bradbury knows about military law would fill a small thimble. But one area in which Bradbury is quite expert: rendering opinions that say exactly what the man who commissioned them wants to hear. Haynes’s request to Bradbury, dated January 20, 2008, can be read here, together with his cover memo to the branch secretaries. (Examine, by the way, the date stamp. Was this back-dated?)
There are a number of striking things about Haynes’s memo. One is that he leaves nothing to the imagination. He has a view and he wants Bradbury to confirm it. This is for purposes of silencing any debate or discussion of the issue within the Pentagon. Under the Judiciary Act of 1789, the OLC exercises the Attorney General’s power to render opinions. Once given, they bind all government agencies. Another is that his presentation of the facts is highly tendentious and incomplete. Haynes’s animosity toward the incumbent TJAGs veritably gushes from his OLC request. He is retaliating against them, sullying their reputations with a devious insinuation that, regardless of what the law is, they should not be elevated from two- to three-star grade because they have done something wrong.
No one who’s read these documents doubts for a second what the “wrong” is—they rejected the torture program, starting with waterboarding. And they testified about this before Congress. They also questioned the wisdom of the original Gonzales-Addington draft of the Military Commissions Act. In sum, what was their offense? They did what an attorney is duty bound to do: they exercised independent professional judgment and they advised their client of that judgment. In so doing, they contradicted Haynes, Gonzales and Steven Bradbury. Now Bradbury’s connivance is being enlisted to mete out retribution. Note that Haynes’s insinuations have no bearing on the legal issue presented. He makes them as a wink and nod to remind Bradbury–this is your opportunity to “get even.” So this mission presents a challenge: just how petty is Steve Bradbury? We’ll know soon enough.
Bradbury is certainly unfamiliar with general and flag officer numbers management and thus will not understand much of the discussion in the Haynes memo. It talks about the “Service Option,” namely the notion that the additional star for the TJAGs would come out of the reserve otherwise allowed for each service. But that isn’t an issue, because Congress “stretched” the allocation of officer ranks to provide an additional three-star space for the TJAGs. Haynes’s presentation on this is arcane, but also extremely disingenuous. Again, he is distorting the facts to help support the preordained result–to justify his vindictive treatment of the TJAGs.
So a lot of questions arise about the Haynes documents. The first is why he sent the cover memo to the service secretaries? Certainly he wanted to foreclose their taking action by awarding the promotions that Congress enacted. But it also appears that he wanted to advertise his pique and displeasure with the TJAGs. Either way, Haynes’s managerial style is heavy-handed, crude and offensive, adding to the already high level of distrust and irritation between senior brass and the few remaining Rumsfeld-legacy politicos. (My sense by contrast is that Secretary Gates commands high respect, as do many of the new senior personnel he has brought in with him).
But this offers another set of insights. The Neocons have burrowed into a handful of powerful redoubts and they maintain close contact with and support one another. Their bastion was once the Defense Department, but they have been pushed to the margins by Secretary Gates. But OLC and the Dick Cheney’s office remain their last strongholds. Interesting how they work in tight connection to fend off attacks and mete out retribution against the enemy. And interesting that they consider competent, totally apolitical professional soldiers who refuse to be intimidated and cajoled as the “enemy.”
Black as things are, the future holds worse for Jim Haynes. One of Britain’s formost international law experts, Philippe Sands, is on the verge of publishing a major study of the introduction of torture techniques at the Defense Department. His book will be excerpted in the April issue of Vanity Fair. And it puts Haynes right at the center of the tale’s darkest chapters.
More from Scott Horton:
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"It is an interesting and somewhat macabre parlor game to play at a large gathering of one’s acquaintances: to speculate who in a showdown would go Nazi. By now, I think I know. I have gone through the experience many times—in Germany, in Austria, and in France. I have come to know the types: the born Nazis, the Nazis whom democracy itself has created, the certain-to-be fellow-travelers. And I also know those who never, under any conceivable circumstances, would become Nazis."