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 

TYDINGCO-GATEWOOD TO BE DISTRICT JUDGE FOR THE DISTRICT OF GUAM TO BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT AND FRANCES MARIE 

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30–496 PDF 2006

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

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MICHAEL O’NEILL, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

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

Page

IV

England, Gordon, Deputy Secretary of Defense, Department of Defense, 

Washington, D.C.—Continued

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

(1)

CONFIRMATION HEARING ON THE NOMINATIONS OF WILLIAM JAMES HAYNES II TO 

BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT AND FRANCES MARIE TYDINGCOGATEWOOD 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 

2

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. 

3

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 ofVerDate 0ct 09 2002 15:17 Oct 30, 2006 Jkt 030496 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\30496.TXT SJUD4 PsN: CMORC
4

ficers 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 

5

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. 

6

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 cochair 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 

7

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 

44

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 

45

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 profesVerDate 0ct 09 2002 15:17 Oct 30, 2006 Jkt 030496 PO 00000 Frm 00051 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\30496.TXT SJUD4 PsN: CMORC
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sional 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. 

47

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 highranking 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 accountVerDate 0ct 09 2002 15:17 Oct 30, 2006 Jkt 030496 PO 00000 Frm 00053 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\30496.TXT SJUD4 PsN: CMORC
48

able, 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 

49

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. 

50

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 

51

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 measVerDate 0ct 09 2002 15:17 Oct 30, 2006 Jkt 030496 PO 00000 Frm 00057 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\30496.TXT SJUD4 PsN: CMORC
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ured 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 threestar 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 

53

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 

68

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. 

69

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. 

70

[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. 

71

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? 

72

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 

73

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. 

74

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. 

75

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 

76

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. 

77

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? 

78

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. 

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‘‘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 estabVerDate 0ct 09 2002 15:17 Oct 30, 2006 Jkt 030496 PO 00000 Frm 00085 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\30496.TXT SJUD4 PsN: CMORC
80

lishment 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. 

81

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, 

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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 

83

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? 

84

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. 

85

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.’’

86

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.’’

87

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. 

88

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. 

89

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. 

90

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. 

91

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 

92

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. 

93

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. 

94

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 

95

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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