For all the attention on the president's judicial nominees, one of his most recent candidates has remained under the radar screen -- despite a legal record that includes arguing on behalf of the Bush Administration that bombing birds is good for birdwatching.
William Haynes II's nomination for a seat on the 4th U.S. Circuit Court of Appeals is pending in the Senate. As general counsel for the Defense Department, Haynes now serves as the military's top lawyer.
In the bird bombing case, conservationists sued to protect an important nesting island for migratory birds in the Pacific. They established that the U.S. military's bombing of the island during live-fire training exercises violated the Migratory Bird Treaty Act.[1]
Haynes' team argued in a legal brief that conservationists actually benefit from the military's killing of birds because it helps make some species more rare -- and "bird watchers get more enjoyment spotting a rare bird than they do spotting a common one." They argued the bombing was good for the birds too, as it kept the island free of other "human intrusion."[2]
A federal judge ruled against the military in 2002, saying "there is absolutely no support in the law for the view that environmentalists should get enjoyment out of the destruction of natural resources because that destruction makes the remaining resources more scarce and therefore valuable. The Court hopes that the federal government will refrain from making or adopting such frivolous arguments in the future."[3]
"In the wake of such a strong court rebuke, one would expect the Administration to chastise the attorneys making this frivolous argument and begin complying with the law," said Doug Kendall, executive director of the Community Rights Counsel.
Instead, President Bush nominated Haynes to a lifetime appointment on the federal appeals court. His nomination hearing was held Nov. 18 and he awaits a Senate Judiciary Committee vote. On his Senate questionnaire, Haynes listed the bird case as the second most significant case of his career. (Also significant is Haynes' role as the architect of the Administration's policy of holding U.S. citizens as enemy combatants without access to attorneys.)
"The Pentagon didn't dispute they were killing birds, but argued that because they were the military they should be allowed to keep doing it," said Paul Achitoff, an Earthjustice attorney representing the conservationists. "I would think long and hard about someone up for the federal bench who argues the military -- or anyone -- is above the law."
As for the military complying with the Migratory Bird Treaty Act, the Administration got its allies in Congress to exempt the Defense Department from compliance with the law last year.[4]
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SOURCES:
[1] Center for Biological Diversity press release
[2] Center for Biological Diversity v. Pirie, 191 F. Supp. 2d 161 (D.D.C., 2002)
[3] Ibid.
[4] National Defense Authorization Act for 2003
