For all the attention on the president's judicial nominees,
one of his most recent candidates has remained under the radar
screen -- despite a legal record that includes arguing on
behalf of the Bush Administration that bombing birds is good
William Haynes II's nomination for a seat on the 4th U.S.
Circuit Court of Appeals is pending in the Senate. As general
counsel for the Defense Department, Haynes now serves as the
military's top lawyer.
In the bird bombing case, conservationists sued to protect
an important nesting island for migratory birds in the Pacific.
They established that the U.S. military's bombing of the island
during live-fire training exercises violated the Migratory
Bird Treaty Act.
Haynes' team argued in a legal brief that conservationists
actually benefit from the military's killing of birds because
it helps make some species more rare -- and "bird watchers
get more enjoyment spotting a rare bird than they do spotting
a common one." They argued the bombing was good for the
birds too, as it kept the island free of other "human
A federal judge ruled against the military in 2002, saying
"there is absolutely no support in the law for the view
that environmentalists should get enjoyment out of the destruction
of natural resources ... . The Court hopes that the federal
government will refrain from making or adopting such frivolous
arguments in the future."
"In the wake of such a strong court rebuke, one would
expect the Administration to chastise the attorneys making
this frivolous argument and begin complying with the law,"
said Doug Kendall, executive director of the Community Rights
Instead, President Bush nominated Haynes to a lifetime appointment
on the federal appeals court. His nomination hearing was held
Nov. 18 and he awaits a Senate Judiciary Committee vote. On
his Senate questionnaire, Haynes listed the bird case as the
second most significant case of his career. (Also significant
is Haynes' role as the architect of the Administration's policy
of holding U.S. citizens as enemy combatants without access
"The Pentagon didn't dispute they were killing birds,
but argued that because they were the military they should
be allowed to keep doing it," said Paul Achitoff, an
Earthjustice attorney representing the conservationists. "I
would think long and hard about someone up for the federal
bench who argues the military -- or anyone -- is above the
As for the military complying with the Migratory Bird Treaty
Act, the Administration got its allies in Congress to exempt
the Defense Department from compliance with the law last year.
 Center for Biological Diversity press release
 Center for Biological Diversity v. Pirie, 191 F. Supp.
2d 161 (D.D.C., 2002)
 National Defense Authorization Act for 2003