The Torture Test

A few months ago, LA Times columnist and Georgetown Law professor Rosa Brooks observed a new trend: ultraconservatives seemingly creating a new litmus test for political candidates and appointees. According to Brooks, “torture is the new abortion”—illustrated by the increasingly high profile nature of the debate over waterboarding and other “enhanced interrogation techniques.” If one had any doubts about the emphasis being placed on a willingness to toe the Bush administration’s line on torture, those doubts were dispelled this week, as three Bush nominees suffered the consequences of their extreme positions on detainee treatment and interrogations.

On Monday, William Haynes II, General Counsel of the Department of Defense and head of the Military Commissions at Guantanamo Bay, abruptly announced his resignation. Haynes was embroiled in controversy last week when, in an interview with The Nation, the military commissions’ former chief prosecutor, Col. Morris Davis, accused Haynes of politicizing the commission trials and interfering with military prosecutors. According to Col. Davis, Haynes (who was charged with overseeing both the prosecution and defense at Gitmo) said, “We can't have acquittals, we have to have convictions…if we've been holding these people for so long, how can we explain letting them get off?”

This recent episode is not the first controversy Mr. Haynes has encountered—he was nominated in 2003 to a seat on the powerful Fourth Circuit Court of Appeals, but his confirmation was derailed by bipartisan concerns about his role in the creation and implementation of the Bush administration’s harsh interrogation policies. The New York Times editorialized against the nomination saying:

Mr. Haynes was by many accounts a key player in the administration’s development of its shamefully narrow definition of “torture,” which gave the green light for a wide array of abuses. The decisions made in Washington cleared the way for abusive treatment of the detainees being held in Guantánamo Bay, and created the environment necessary for the Abu Ghraib torture scandal to occur. It is disturbing that while low-level soldiers have been convicted for their actions at the Iraqi prison, Mr. Haynes has been rewarded with a coveted judicial nomination.

Mr. Haynes wasn’t the only one slated for promotion after his invention of legal loopholes for cruel interrogations. Judge Jay Bybee was confirmed to a seat on the Ninth Circuit in 2003—before the public learned of controversial Justice Department memos redefining torture and authorizing waterboarding. Although Judge Bybee escaped Haynes’ fate and nabbed a lifetime appointment because of lucky timing, his luck may have just run out. The Justice Department’s Office of Professional Responsibility has confirmed that they have been investigating “whether Bush administration lawyers violated professional standards by issuing legal opinions that authorized the CIA to use waterboarding and other harsh interrogation techniques.” For Judge Bybee, who signed the discredited 2002 “torture memo” that was later rescinded by the Bush administration, this investigation could prompt sanctions as serious as impeachment and criminal prosecution.

The newly announced investigation also implicates another Bush nominee—Steven Bradbury, the acting head of the Office of Legal Counsel. The Senate has refused to confirm Mr. Bradbury’s pending nomination to that post because of secret memos he wrote authorizing waterboarding and other coercive interrogation techniques—even after the administration had publicly rescinded the Bybee memo.

Mr. Haynes’ resignation, in conjunction with the investigations of Mr. Bradbury and Judge Bybee, reinforces the notion that defense of “enhanced” interrogation is a prerequisite for promotion in the Bush administration. The torture test explains Attorney General Mukasey’s cagey answers at his confirmation hearing, and it casts doubt upon the advisability of confirming any more Bush nominees to the federal courts, where the effects of his lifetime appointments will be felt long after he has left the White House.