July 1, 2006  

To the Bush administration

For nominating Pentagon General Counsel William Haynes for a seat on the Fourth Circuit Court of Appeals. In his Pentagon post, Haynes has been one of the principal architects of administration policy on detainees and, more generally, has guided the ways in which military legal traditions are adapted to a new kind of war.

Conceivably, Haynes might be seen in history as a perceptive innovator. But the legal mechanisms employed by the Bush administration to deal with the global war on terrorism or the increased presence of irregular combatants on the modern battlefield ought not to be regarded as settled law yet; these are policies for advocates to argue, including advocates like Haynes, more than judges to decide by.

There is not yet much broad agreement on what the legal codes governing war in the 21st century should be, beyond the most general principles. What is torture? Who is a lawful combatant? Which branch of government should decide these matters — or is it all a matter of the executive? The Haynes nomination can only fuel the growing perception that the Bush administration is in a rush to enshrine its views on these issues as a matter of precedent rather than political or legal consensus.