General
Richard B. Myers at
The Pentagon on October 1, 2001. Shortly after his inauguration,
President George W. Bush appointed Haynes to be
General Counsel of the Department of Defense.
Donald Rumsfeld was the 21st Secretary of Defense from 2001 to 2006 under President George W. Bush. In his capacity as general counsel, Haynes oversaw some 10,000 lawyers, and advised on the department's internal affairs and its relations with other government and non-government agencies at home and abroad. Because of the position's wide-ranging responsibility for overseeing thousands of ongoing cases, legislative matters, and policy decisions, the DoD's general counsel has been described as "one of the most powerful and influential lawyers in the entire federal government." Haynes was in one of the Pentagon's command centers on
September 11, 2001, when
American Airlines Flight 77 crashed into the western face of the building. At the time, Haynes was on the far side of
the Pentagon. Later, during the 2008
Lewis F. Powell, Jr. Lecture before the
American College of Trial Lawyers, he recalled feeling "a shudder pulse the monstrous concrete structure," and that he sent a deputy of his to a survival site, in case any additional attacks were to affect the Pentagon. As general counsel, Haynes was often sent to meet with foreign officials. In 2003, for instance, he met with
British Attorney General Peter Goldsmith to discuss the cases of two British men held in Guantanamo Bay (a total of six British residents were held there). Haynes also advised the Bush administration in its effort to create military commissions that would try detainees held at the
Guantanamo Bay detention camp. The commissions were authorized by
Military Commission Order No. 1, which
Secretary of Defense Donald Rumsfeld issued on March 21, 2002. No detainees were tried under the provisions of that order. In 2006, the
Supreme Court ruled in
Hamdan v. Rumsfeld that the commissions were unconstitutional, and that congressional authorization was required before any commissions could commence. Col.
Morris Davis, the former chief prosecutor of military commissions at Guantanamo described how he was pressured into indicting Guantanamo prisoners for war crimes as soon as the Military Commissions Act was signed into law by Bush in October 2006 and even before the "Manual for Military Commissions" was prepared and no "convening authority" to oversee was appointed yet. His experience was that of receiving a call from Haynes as early as January 2007 asking him how quickly he could charge the Australian prisoner David Hicks. . In chapter 13 (pp. 213–237) of her book
The Dark Side,
Jane Mayer describes how
Alberto Mora, then the general counsel of the US Navy, as early as 2003 mounted a challenge to the interrogation policy used by the United States which he saw as potentially leading to war crimes charges. Mora reportedly warned Haynes, Donald Rumsfeld's chief counsel, to "protect your client!" To rebut Mora's and others' concerns about the legality of the conduct of the interrogation policy followed not only by DoD personnel but also by the CIA, Haynes apparently solicited an opinion from
John C. Yoo, then in the Justice Department's Office of Legal Counsel, which opinion, in spite of being based on a questionable legal foundation, countenanced "enhanced interrogation techniques." For reasons which Haynes never disclosed, this opinion was adopted as official policy in spite of Mora's objections. Underlining his rebuke, Haynes never informed Mora that the policy adopted by the DoD took no account of Mora's objections. Harvard law professor
Jack Goldsmith, who briefly worked at the Pentagon as Special Counsel under Haynes before becoming head of the Office of Legal Counsel, United States Department of Justice (2003-2004), notes in his book,
The Terror Presidency (2007), that at the time Haynes did urge the powers that be in the Bush administration to seek and obtain congressional authorization for the policy and military commissions, but that others in the administration felt doing so was unnecessary. In November 2002, Haynes wrote a memo for Rumsfeld concerning interrogation techniques to be used at Guantanamo Bay. This followed what were known as the
Torture Memos of August 2002, largely written by Yoo and issued by the
Office of Legal Counsel to the CIA and DOD, with two signed as well by
Jay S. Bybee. These also authorized the use of so-called "
enhanced interrogation techniques," brutal interrogation tactics that are widely considered to be torture. Haynes's memo, which the Secretary of Defense approved, recommended authorizing several techniques, but advised against the authorization of three more-aggressive techniques, including one that resembled
waterboarding. Such treatment of detainees, Haynes noted, would be inconsistent with American Armed Forces' "tradition of restraint." That memo led journalist
Stuart Taylor to write, in a 2008 article for the
National Journal, that Haynes "is the only former [Bush administration] official whose paper trail also shows that he blocked a request to use waterboarding and two other harsh methods that administration lawyers had advised were legal...."
Brookings Institution fellow
Benjamin Wittes went further in the pages of
The New Republic, claiming Haynes's memo was "the reason that the military, unlike the CIA, never waterboarded anybody." While the memo was criticized for recommending techniques that were used abusively at
Abu Ghraib in
Iraq and elsewhere, it did not apply to interrogators working anywhere outside Guantanamo Bay. But, on March 14, 2003, five days before the United States began the
invasion of Iraq,
John Yoo of the DOJ
Office of Legal Counsel issued a legal opinion/memo to Haynes, concluding that federal laws related to the use of torture of prisoners and suspects did not apply to interrogations overseas. In August 2004, the Independent Panel to Review Department of Defense Detention Operations, which was convened in the wake of the
Abu Ghraib scandal that broke in April 2004, issued a report claiming that the methods Haynes recommended were "strictly limited for use at Guantanamo" and that officers there "used those...techniques with only two detainees, gaining important and time sensitive information in the process." The panel's report faulted Haynes for formulating his November 2002 interrogation memo to the Secretary of Defense without giving greater consideration to the input of
Judge Advocates General and the general counsels of the armed services. The authors of the report suggest that had Haynes done so, the military might not have needed to revise its Guantanamo interrogation standards in April 2003, following objections from some within the military that the standards adopted in late-2002 might lead to abuse of detainees. Upon his departure, Secretary of Defense
Robert Gates awarded Haynes the
Department of Defense Medal for Distinguished Public Service, the highest award for a civilian appointee. ==Fourth Circuit nomination==