[Senate Hearing 109-633]
[From the U.S. Government Publishing 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
_____________________________________________________________________________
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                       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.
    [The biographical information of Justice Tydingco-Gatewood 
follows.]

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    Chairman Specter. 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.]

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    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.
    [Whereupon, at 6:00 p.m. the hearing was concluded.]
    [Questions and answers and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]

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