Readers of BushGreenwatch continue to marvel at the strange case of William Haynes II, the Pentagon's top lawyer, who advanced the memorable argument that when the U.S. military bombs migratory birds on an important Pacific ocean nesting island, birdwatchers should be pleased.
Under Haynes' reasoning, he wrote in a legal brief, killing birds makes them more scarce, and "bird watchers get more enjoyment spotting a rare bird than they do spotting a common one." Haynes added that bombing was good for the birds too, since it protected them from "human intrusion."[1]
The case stemmed from an exemption the Defense Department had won to the Migratory Bird Treaty Act. The exemption enabled the Pentagon to use the Pacific island for live-fire training exercises. The island is an important nesting site for migratory birds, including great frigatebirds, red-footed boobies and Pacific golden plovers.
The public interest law firm Earthjustice successfully argued in federal court that bombing the island violated the Act. The judge in the case rebuked Haynes and his team, writing "The Court hopes that the federal government will refrain from making or adopting such frivolous arguments in the future."[2]
The court set a December, 2003 deadline for the Defense Department to submit a plan for minimizing damage to the birds -- a deadline the Pentagon has missed. In late February, a spokesman said the plan would be ready "soon," but none has been forthcoming.
Meanwhile President Bush has nominated Mr. Haynes for a seat on the 4th U.S. Circuit Court of Appeals -- a lifetime appointment -- and his nomination could come up for a floor vote in the Senate any day now. (On his Senate questionnaire, Haynes listed the bird-bombing case as the second most significant of his career.)
Last Thursday, however Sen. Charles Grassley (R-IA) pledged to put a hold on Haynes' nomination unless he agrees to appoint an independent counsel in the Pentagon's office of the Inspector General (IG). An IG is an independent watchdog within a department, whose role is to look out for fraud and waste.
The Defense Department currently has the government's only Inspector General office without an independent legal counsel. The current arrangement will expire this Sunday, when the IG will be free to appoint his own counsel, unless Haynes objects -- and Grassley is watching.
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SOURCES:
[1] Center for Biological Diversity v. Pirie, 191 F. Supp. 2d 161 (D.D.C., 2002)
[2] Ibid.
