NO ISSUES have dominated recent political debate more than the fight over President Bush's judicial nominees and the controversy over U.S. treatment of detainees in the war on terrorism. The two issues will merge when the Senate considers the nomination of William James Haynes, general counsel of the Department of Defense, to the U.S. Court of Appeals for the Fourth Circuit.

When the gang of 14 senators struck their deal on filibusters a few weeks ago, Haynes was neither among the three whose confirmation was assured nor among the two who apparently will be thrown overboard. However, the compromisers agreed not to countenance a filibuster of any nominee who does not present "extraordinary circumstances." No such circumstances justify a filibuster of Haynes.

Haynes is a first-rate lawyer and a patriot. His career represents an unusual blend of high-power law firm and corporate experience, service to the disadvantaged, and service to country. Haynes' résumé includes: partner in a prestigious law firm; senior executive and associate general counsel at General Dynamics Corporation; volunteer consultant for a non-governmental relief organization in Kazakhstan; pro bono counsel to indigent clients in criminal cases; active duty captain in the United States Army; general counsel of the Army; and for the last four years general counsel of the Department of Defense. The American Bar Association has twice given him its highest rating, and he has been endorsed by Floyd Abrams, one of our foremost First Amendment advocates.

Democrats nonetheless oppose Haynes because of legal advice he transmitted as

The OLC reportedly prepared its memorandum in the context of requests to bring additional pressure to bear on a key terrorist, Abu Zubaydah, who had turned uncooperative. It is quite possible that information obtained using tactics approved in the memorandum saved lives.

However, as a legal matter the OLC's advice was problematic, and no longer represents the Justice Department's position. For one thing, the memorandum reached the dubious conclusion that for the infliction of physical pain to amount to torture, the pain must be "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." In addition, the memorandum took the controversial position that even acts that meet this high threshold, and thus are clearly barred by statute, may be exempt from prosecution in the context of the war against terrorism because enforcement of the statute in that context would represent an unconstitutional infringement of the president's authority to conduct war.

On April 4, 2003, a Defense Department "working group" under Haynes's direction issued its report on Detainee Interrogations in the Global War on Terrorism. The report tracked the legal analysis of the OLC memorandum and made recommendations with respect to 35 specific interrogation techniques. None of the techniques approved by the working group constitutes torture as defined by the OLC memo. Nor did the group approve sexual humiliation, as occurred at Abu Ghraib, or the controversial practice of "water-boarding."