For more than two years now, the Bush administration has been seeking to place the Pentagon's top lawyer, William Haynes II, on the U.S. Court of Appeals for the Fourth Circuit (see BushGreenwatch, 12/18/03 and 3/16/04). Haynes' nomination stalled for various reasons, but the Bush team is nothing if not persistent.
With crucial congressional elections less than five months away, the administration is under increasing pressure from its right wing base to stack the federal bench with more of their kind of guy. As a key player in developing the Pentagon's military tribunal plan for suspected terrorists (which the Supreme Court firmly tossed out last month) Haynes definitely fits the bill. Hence his nomination is again before a Senate Judiciary Committee hearing this afternoon.
Also active in proposing ways the U.S. could circumvent international treaties banning torture, as well as supporting indefinite detentions of American citizens without benefit of legal counsel or meaningful judicial review, Haynes came to the attention of environmental advocates early in the Bush administration with what will surely stand as one of the strangest arguments in the history of environmental law.
Seeking an exemption from the Migratory Bird Treaty Act in order to enable the military to resume bombing on a remote Pacific island as part of live-fire training exercises, Haynes prepared a legal brief arguing that even though the island is an important nesting site for such migratory birds as great frigate birds, red-footed boobies and Pacific golden plovers, bird lovers should have no problem with the bombing.
Indeed, argued the Haynes brief, conservationists would actually benefit from the destruction of such birds, because it makes the birds rarer - and "bird watchers get more enjoyment spotting a rare bird than they do spotting a common one." Moreover, Haynes noted, the bombing is good for the birds, too - because it keeps the island free of other "human intrusion."
Somehow the Haynes logic did not fare well. A federal judge ruled against the military in 2002. The judge's decision included one particularly memorable line: "The Court hopes that the federal government will refrain from making such frivolous arguments in the future." [1]
If the Senate Judiciary Committee approves Haynes' nomination, his name could come up for a vote in the full Senate as soon as this summer.
You can send a message to Congress on this important issue on Friends of the Earth’s web site. Take Action!
Postscript: Although Haynes' argument lost in Federal court, the Bush administration promptly moved its allies in Congress to exempt the Pentagon from compliance with the law anyway. And on his Senate questionnaire back in 2003, Haynes described his bird-bombing effort as the second most significant case of his career.
Also, the Haynes hearing may be webcast at www.capitolhearings.org click on SD-226 link at or around 2:15 pm EST, Tuesday, July 11.
Note:
[1] Center for Biological Diversity vs. Pirie, 191 F. Supp. 2d 161 (D.D.C. 2002).
