Joint Statement of Senator John Cornyn and Senator Jon Kyl in Defense of the War on Terrorism and Nomination of Wiliam James Haynes II

STATEMENT OF U.S. SENATORS

JOHN CORNYN
Chairman, Senate Subcommittee on the Constitution,
Civil Rights and Property Rights

AND JON KYL
Chairman, Senate Subcommittee on
Terrorism, Technology and Homeland Security

IN DEFENSE OF THE WAR ON TERRORISM AND THE NOMINATION OF WILLIAM JAMES HAYNES II TO THE U.S. COURT OF APPEALS FOR THE FOURTH CIRCUIT

This morning, our colleagues on the Senate Judiciary Committee attacked the nomination of the general counsel of the U.S. Department of Defense, William J. Haynes II, to the U.S. Court of Appeals for the Fourth Circuit.

Mr. Haynes is rated well-qualified by the American Bar Association. A graduate of Harvard Law School, Mr. Haynes has a distinguished track record of public service - including five years as a captain in the United States Army, and numerous tours of duty as a Defense Department lawyer. He has ably served our nation - as an attorney representing our fighting men and women, and as a soldier himself. He deserves swift confirmation to the federal bench.

Opponents of his nomination, however, have criticized Mr. Haynes for his legal work on behalf of the U.S. Armed Forces and the Administration's efforts to fight and win the war against terrorism. This is grossly unfair and wrong for a number of reasons.

First, we have long believed that it is unfair to criticize a judicial nominee for positions taken on behalf of a client. Moreover, it is doubly unfair to ask a judicial nominee, as a condition of confirmation, to state his personal opinion of the strength or weakness of a legal position taken by his client - and it is especially dangerous to do so with respect to pending cases. In courts of law, attorneys are strictly forbidden from stating their personal opinions about the strength of positions taken by their clients. There is good reason for such rules. Expressions of personal opinion hurt every client and every litigant, because attorneys will often be uncomfortable making such personal representations, and the negative inference that inevitably results in such cases jeopardizes the ability of litigants to obtain the effective representation of counsel. Finally, we continue to believe that one's personal political ideology is, in any event, irrelevant to the job of judging - because judges are supposed to follow the law, and not their own personal political ideology.

Second, we are concerned that the on-going, partisan, and unfortunate war over the composition of the federal judiciary has now met and infected the war on terrorism. The successful prosecution of the war on terrorism should not be a partisan issue. Republicans and Democrats alike should agree that the President and his attorneys should take all legal steps needed to win the war on terrorism - consistent with the constitutional civil rights and civil liberties protections guaranteed to all Americans.

The legal positions taken by the Administration involve areas of national security law, constitutional law, and international law that are foreign to most Americans, and to indeed most attorneys. We have studied those positions carefully, however, and we are firmly of the belief that the Administration's legal positions are correct, critical to our national security, and in any event fall well within the mainstream of American jurisprudence.

If some members disagree with the positions taken by the Administration, as a policy matter, that is their right. But it is unfair and wrong for them to argue that the Administration's legal positions have no legal basis. And it is doubly unfair, and doubly wrong, to punish one of the Administration's attorneys for legal positions taken, not on their own personal behalf, but on behalf of the President, the war on terrorism, and the national security of the United States.

A short review of the relevant law will help demonstrate how strong the Administration's legal positions are, how weak the opposition's legal arguments are, and how unfair it is to hold up a judicial nominee for the lawful and constitutional efforts of his client to win the war against terrorism. In each and every case, the U.S. Supreme Court has previously spoken on the issue, and provided judicial precedents that squarely support the legal positions taken by the Administration.

Detainees at Guantanamo Bay. Some object to the current detention of al Qaeda and Taliban fighters at Camp X-Ray in Guantanamo Bay, Cuba. The U.S. Supreme Court has firmly held, however, that federal courts simply have no jurisdiction to consider habeas petitions filed by enemy aliens held outside the United States. See Johnson v. Eisentrager, 339 U.S. 763 (1950). In addition, the U.S. Supreme Court has firmly held that Guantanamo Bay, Cuba, is outside the United States. See Vermilya-Brown Co. v. Connell, 335 U.S. 377 (1948). These are not only firm precedents of the U.S. Supreme Court - they are perfectly reasonable ones. Imagine if it were otherwise: Should Saddam Hussein - currently detained presumably in an area of Iraq subject to the control of the U.S. Armed Forces - have the right to seek habeas relief in a federal court in the United States?

The U.S. Supreme Court will soon revisit this issue. If a majority of justices decide to overrule their own prior precedents, so be it. The case nevertheless remains that the Administration's legal position is firmly supported by Supreme Court precedents.

Designation of U.S. citizens as unlawful combatants. Some object to the designation of U.S. citizens as unlawful combatants. Yet the U.S. Supreme Court has explicitly - and unanimously - held that the long-standing constitutional wartime power of the President to detain enemy combatants applies equally to citizens and non-citizens alike. See Ex parte Quirin, 317 U.S. 1 (1942).

Again, the U.S. Supreme Court plans to revisit this issue soon. And again, if a majority of justices decides to overrule or undermine its unanimous prior ruling in Quirin, so be it - but the Administration's legal position today remains firmly supported by current Supreme Court precedent.

Treatment of unlawful combatants under the Geneva Convention. Some object that there is no such thing as an "unlawful combatant" - that all individuals are either "prisoners of war" protected by the Geneva Convention respecting prisoners of war, or "civilians" otherwise protected under international law. The Supreme Court explicitly - and unanimously - held otherwise, however, in Ex parte Quirin, 317 U.S. 1 (1942). The Supreme Court has further held that the Geneva Conventions are legally unenforceable in federal court. See Johnson v. Eisentrager, 339 U.S. 763 (1950). Moreover, a federal district court has already concluded that al Qaeda and Taliban fighters are unlawful combatants, not entitled to the prisoner of war protections of the Geneva Convention. See United States v. Lindh, 212 F. Supp. 2d 541 (E.D. Va. 2002).

In light of these strong supporting judicial precedents, it is grossly unfair to charge the Administration - let alone one of its attorneys - with taking unjustified legal positions.

We can all agree that, as we fight the war against terrorism, we must also uphold our nation's constitutional commitments to preserving the civil rights and civil liberties of all Americans. At the same time, we should also recognize how dangerous and unprecedented it would be to litigate every aspect of the war on terrorism. As the U.S. Supreme Court explained in Johnson v. Eisentrager: "It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States."

The Administration has thus far successfully fought the war on terrorism, because it has used the traditional, constitutional, legal tools available to any Commander in Chief in time of war. Its legal positions are firmly supported by U.S. Supreme Court precedent.

Senators may oppose the Administration's policies in the war on terrorism. They have every opportunity to express that disagreement on the merits of those policies. If they wish to change the Defense Department's conduct of the war by giving al Qaeda fighters and terrorists the protections that our justice system provides to U.S. civilians accused only of committing a crime, that is their choice. They can introduce legislation that seeks to expand the writ of habeas corpus, or even cut off funding for the detention of al Qaeda operatives by the Defense Department. What they should not do, however, is to oppose the Administration through the backdoor of unjustly attacking one of its officials who so richly deserves promotion to the federal bench. We shudder to think what message this sends to the men and women of the Armed Forces and in law enforcement who are honest and in good faith doing everything they can within the law to fight enemies who only three years ago successfully launched a treacherous and murderous attack on American soil.

The men and women of the U.S. Armed Forces deserve our support. And their top attorney, William J. Haynes II, deserves to be confirmed. He does not deserve to be punished for serving his country and for defending the Administration's legal efforts to win the war against terrorism.