The State (SC)
August 13, 2006

By JAMES ROSEN

WASHINGTON - If the defeat of a high-profile judicial nominee were probed like a homicide investigation, U.S. Sen. Lindsey Graham's fingerprints would be on the gun.

After Congress adjourned for its summer recess last week, the Senate quietly returned to the White House the nomination of William J. "Jim" Haynes to the 4th U.S. Circuit Court of Appeals.

The move effectively kills the push for Haynes. It also has fueled irritation among conservative activist groups, who blame the South Carolina Republican for the loss.
As general counsel at the Defense Department, Haynes helped craft the Bush administration's legal rationale for aggressive detainee interrogation techniques used by U.S. military and intelligence forces at the Abu Ghraib prison in Iraq, the Guantanamo Bay compound in Cuba and other sites.

Graham, a former military lawyer, widely is seen on Capitol Hill and beyond as the man most responsible for the Senate's failure to confirm Haynes. From his seat on the Senate Judiciary Committee, Graham expressed strong concerns about Haynes' fitness for the appellate court.

Graham's stand earned the admiration of many military lawyers and other senior officers. "To say the least, I have serious reservations about his nomination," Graham said Thursday. "This is not about being conservative. It's about being held accountable for what happened on your watch."

Graham drew heat from conservatives last year for his membership in the "Gang of 14" senators seven Republicans and seven Democrats who negotiated a compromise for handling judicial nominees.

Under the deal, Democrats pledged to use a filibuster only in rare circumstances, while Republicans backed away from their threat to change Senate rules so only 51 votes instead of 60 would be needed to break a filibuster.

This year, Democrats repeatedly vowed to filibuster Haynes' nomination. But it never reached the Senate floor because the Judiciary Committee failed to take a vote.
With nine Republicans and seven Democrats on the panel, opposition from a single Republican was enough to stymie the nomination.

Graham insisted he wasn't blocking Haynes' nomination, but his opposition is an open secret on Capitol Hill.

"There are lots of other Republicans who say he did block it," said Sean Rushton, executive director of the Committee for Justice, a group of prominent conservatives and Republicans who push for the appointment of "constitutionalist" judges to the federal bench.

"Jim Haynes was blocked in committee for months at the behest of Senator Graham."

Among the group's founders are former Republican Gov. John Engler of Michigan and former U.S. Sen. Connie Mack, R-Fla.

U.S. Sens. John McCain, R-Ariz., and Mike DeWine, R-Ohio, were among a handful of Republican senators who raised concerns about Haynes, but Graham was the most vocal.

On the Senate floor and in committee hearings, Graham said it would be unfair to reward a senior Pentagon official who helped devise now-repudiated interrogation procedures while at the same time prosecuting rank-and-file soldiers who practiced them.

Graham also said the policies crafted in Washington confused soldiers in Iraq, Afghanistan and elsewhere because they contradicted well-established military regulations on interrogating enemy detainees.

In a dramatic showdown last month, Graham grilled Haynes at his confirmation hearing, cutting him off in mid-sentence at several points. Graham highlighted contradictions between Haynes' testimony and that of military lawyers who said Haynes ignored their strong opposition to the interrogation techniques.

And Graham ridiculed Haynes' contention that he didn't set interrogation policies, but merely passed on the findings of Justice Department lawyers to Defense Secretary Donald Rumsfeld and the White House office of legal counsel.

John Hutson, a retired admiral and former judge advocate general of the Navy, joined 19 other retired military officers who opposed Haynes' nomination in a letter last month to U.S. Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee.

Hutson said it took political courage for Graham to oppose a high-profile nomination by a president of his own party.

"Senator Graham is doing exactly what he was elected to do and constitutionally is required to do," Hutson said. "If he's voting his conscience, then that's what we want U.S. senators to do. We don't want them to just automatically follow the party line. I admire him for it."

Rushton, executive director of the Committee for Justice, said Graham's opposition to Haynes has not been lost on conservative and GOP activists and leaders around the country.

"It will be remembered," Rushton said. "This is not an issue that is floating under the radar among conservatives and Republicans."

In an Aug. 3 news release by Rushton's organization, Graham was the only Republican senator grouped with Democrats for blocking Haynes and two other controversial judicial nominees, Terrence Boyle and William Myers.

Haynes' father, William Haynes, grew up in the Palmetto State, attended the University of South Carolina and served as colonel in the Air Force. He blames Graham at least partly for his son's failure to advance to the appellate court.

"Senator Graham has not lived up to his campaign promise to ensure that all nominees get an up-or-down vote," the elder Haynes said.

Bush originally nominated Haynes in 2003, and he moved through the Senate Judiciary Committee with Graham's support.

But that was before the Abu Ghraib prison scandal erupted and subsequent reports described Haynes' involvement in helping write memos justifying the use of water-boarding, sleep deprivation, stress positions and other aggressive interrogation techniques on detainees.

Haynes' nomination bogged down in the full Senate in 2004, and Bush resubmitted it last year to a new session of Congress.

Hutson, the former Navy judge advocate general, said Graham has joined McCain as Senate experts on the complex web of issues surrounding interrogation and prosecution of enemy combatants.

"He is a very influential force because of his military background," Hutson said of Graham. "Like McCain, he's one of the people that other senators listen to if not defer to on some of these issues."

In a June 8 letter responding to conservative activists upset by his stance on Haynes, Graham said he could not ignore the views of senior military officers.

"As a member of the Senate Armed Services Committee and a strong supporter of our men and women in uniform," Graham wrote, "I am troubled that very distinguished military leaders have expressed strong opposition to the Haynes nomination.

"As our defenders of freedom, I take their criticisms very seriously."

James Rosen covers Washington for McClatchy newspapers in South Carolina.

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