WASHINGTON - The Pentagon's top lawyer, nominated by President
Bush to the 4th U.S. Circuit Court of Appeals, is getting
heat from critics who contend his legal team argued that bombing
birds is good for bird-watching.
William J. Haynes II of Northern Virginia, the Pentagon's
general counsel, was nominated Sept. 29. At his confirmation
hearing last year, debate focused on the Bush administration's
treatment of detainees and prosecution of enemy combatants
since the Sept. 11 attacks.
Haynes, a 45-year-old native of Texas, drew strong support
from Republican senators who attended and sharp questioning
from some liberal Democrats. The Senate Judiciary Committee
held a hearing on his nomination Nov. 19 but did not vote
on it before adjourning last month. With additional time to
dig into his record, environmentalists and Bush opponents
recently spotlighted a case from 2002 in an effort to portray
Haynes' environmental record as wanting.
A federal judge appointed by Bill Clinton enjoined the U.S.
Navy from conducting joint live-fire military training exercises
on a small uninhabited island in the Western Pacific, Farallon
de Medinilla (FDM), in the Commonwealth of the Northern Mariana
Haynes has listed the case as the second-most significant
one he has litigated. While Haynes did not argue the case
in court, he said in papers submitted to the Judiciary Committee
that he participated primarily by "developing and approving
litigation strategy" and ensuring it matched administration
goals, while acting through a deputy.
Judge Emmet G. Sullivan halted military bombing on FDM in
response to a lawsuit by conservationists contending that
the island was an important nesting spot for migratory birds
and that the exercises violated the Migratory Bird Treaty
In a 43-page opinion, the judge, seated on the U.S. District
Court for the District of Columbia, agreed. He also questioned
the federal government's adopting a supportive argument by
the Washington Legal Foundation, that bird-watchers benefited
by the military's bird-killing. The foundation is a conservative
When bird-watchers see the birds that remain, they "
'get more enjoyment spotting a rare bird than they do spotting
a common one,'" Sullivan quoted from legal papers submitted
by the government.
"There is absolutely no support in the law for the view
that environmentalists should get enjoyment out of the destruction
of natural resources because that destruction makes the remaining
resources more scarce and therefore valuable," Sullivan
"The court hopes that the federal government will refrain
from making or adopting such frivolous arguments in the future,"
Bush critics used Sullivan's opinion to criticize Haynes
on BushGreenwatch.org. It is a new Web site by MoveOn.org,
an online liberal political-advocacy group, and Environmental
Media Services, a Washington-based group calling itself a
"The Pentagon didn't dispute they were killing birds,
but argued that because they were the military they should
be allowed to keeping doing it," said Paul Achitoff,
a Hawaii lawyer with Earthjustice who represented the conservationists.
Oakland, Calif.-based Earthjustice formerly was the Sierra
Club Legal Defense Fund.
"I would think long and hard about someone up for the
federal bench who argues the military - or anyone - is above
the law," Achitoff said.
"In the wake of such a strong court rebuke," said
Douglas T. Kendall, executive director of a Washington-based
group called Community Rights Counsel, "one would expect
the administration to chastise the attorneys making this frivolous
argument and begin complying with the law."
Their statements were published on the BushGreenwatch Web
site in December.
The Bush administration's disagreement with Sullivan's ruling
- and continuing support for lawyer Haynes - was reflected
by its pursuing an appeal in court, turning to Congress for
an exemption from the Migratory Bird Treaty Act and by Bush's
nominating Haynes to the Richmond, Va.-based 4th Circuit.
It is routine for federal judgeship nominees to decline news
media interviews about their legal views or record before
the Senate votes on confirming them.
A panel of appellate judges granted a government request
to stay, or hold off, Sullivan's injunction. In January of
last year, another appellate panel directed the case back
to the lower court with directions to dismiss it, in light
of fresh action by Congress.
The federal government had argued that the injunction would
seriously disrupt military preparedness and harm national
security. The Navy said its targets were placed away from
primary bird habitat, and it was budgeting $100,000 a year
to make bird habitats on neighboring islands better.
Congress acted in response to the military's concern. In
the 2003 defense-authorization bill, Congress adopted a temporary
exemption from the Migratory Bird Treaty Act for those in
the military who kill birds unintentionally. The exemption
was aimed at giving the Pentagon time while the Interior Department
crafted a long-term answer.
It was based on that congressional action that a federal
appeals panel ordered the lower court to dismiss the FDM case