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WASHINGTON – Debate on a judicial nominee in the Judiciary Committee Thursday devolved into a partisan attack on the administration’s prosecution of the war on terror. In response, U.S. Sens. John Cornyn (R-Texas) and Jon Kyl (R-Ariz), submitted a rebuttal, reminding their colleagues that “The successful prosecution of the war on terrorism should not be a partisan issue.” Cornyn, chairman of the Constitution subcommittee, and Kyl, who chairs the Terrorism, Technology and Homeland Security subcommittee, noted that the attacks were not on the nominee alone, but attacks on the President’s homeland and national security policies as well. the senators said that the nominee, William James Haynes II, was criticized “for his legal work on behalf of the U.S. armed forces and the Administration’s efforts to fight and win the war against terrorism.”"We have long believed that it is unfair to criticize a judicial nominee for positions taken on behalf of a client. Moreover, it is doubly unfair to ask a judicial nominee, as a condition of confirmation, to state his personal opinion of the strength or weakness of a legal position taken by his client – and it is especially dangerous to do so with respect to pending cases,” the Senators stated. "Republicans and Democrats alike should agree that the President and his attorneys should take all legal steps needed to win the war on terrorism – consistent with the constitutional civil rights and civil liberties protections guaranteed to all Americans,” the senators said. “The men and women of the U.S. Armed Forces deserve our support. And their top attorney, William J. Haynes II, deserves to be confirmed. He does not deserve to be punished for serving his country and for defending the Administration’s legal efforts to win the war against terrorism. - Joint statement follows - STATEMENT OF U.S. SENATORS JOHN CORNYNChairman, Senate Subcommittee on the Constitution, Civil Rights and Property Rights and JON KYLChairman, Senate Subcommittee on Terrorism, Technology and Homeland Security in DEFENSE OF THE WAR ON TERRORISM AND the NOMINATION OF WILLIAM JAMES HAYNES II TO the U.S. COURT OF APPEALS FOR THE FOURTH CIRCUIT This morning, our colleagues on the Senate Judiciary Committee attacked the nomination of the general counsel of the U.S. Department of Defense, William J. Haynes II, to the U.S. Court of Appeals for the Fourth Circuit. Mr. Haynes is rated well-qualified by the American Bar Association. A graduate of Harvard Law School, Mr. Haynes has a distinguished track record of public service – including five years as a captain in the United States Army, and numerous tours of duty as a Defense Department lawyer. He has ably served our nation – as an attorney representing our fighting men and women, and as a soldier himself. He deserves swift confirmation to the federal bench. Opponents of his nomination, however, have criticized Mr. Haynes for his legal work on behalf of the U.S. Armed Forces and the Administration’s efforts to fight and win the war against terrorism. This is grossly unfair and wrong for a number of reasons. First, we have long believed that it is unfair to criticize a judicial nominee for positions taken on behalf of a client. Moreover, it is doubly unfair to ask a judicial nominee, as a condition of confirmation, to state his personal opinion of the strength or weakness of a legal position taken by his client – and it is especially dangerous to do so with respect to pending cases. In courts of law, attorneys are strictly forbidden from stating their personal opinions about the strength of positions taken by their clients. There is good reason for such rules. Expressions of personal opinion hurt every client and every litigant, because attorneys will often be uncomfortable making such personal representations, and the negative inference that inevitably results in such cases jeopardizes the ability of litigants to obtain the effective representation of counsel. Finally, we continue to believe that one’s personal political ideology is, in any event, irrelevant to the job of judging – because judges are supposed to follow the law, and not their own personal political ideology. Second, we are concerned that the on-going, partisan, and unfortunate war over the composition of the federal judiciary has now met and infected the war on terrorism. The successful prosecution of the war on terrorism should not be a partisan issue. Republicans and Democrats alike should agree that the President and his attorneys should take all legal steps needed to win the war on terrorism – consistent with the constitutional civil rights and civil liberties protections guaranteed to all Americans. the legal positions taken by the Administration involve areas of national security law, constitutional law, and international law that are foreign to most Americans, and to indeed most attorneys. We have studied those positions carefully, however, and we are firmly of the belief that the Administration’s legal positions are correct, critical to our national security, and in any event fall well within the mainstream of American jurisprudence. if some members disagree with the positions taken by the Administration, as a policy matter, that is their right. But it is unfair and wrong for them to argue that the Administration’s legal positions have no legal basis. And it is doubly unfair, and doubly wrong, to punish one of the Administration’s attorneys for legal positions taken, not on their own personal behalf, but on behalf of the President, the war on terrorism, and the national security of the United States. A short review of the relevant law will help demonstrate how strong the Administration’s legal positions are, how weak the opposition’s legal arguments are, and how unfair it is to hold up a judicial nominee for the lawful and constitutional efforts of his client to win the war against terrorism. In each and every case, the U.S. Supreme Court has previously spoken on the issue, and provided judicial precedents that squarely support the legal positions taken by the Administration.

• Detainees at Guantanamo Bay. Some object to the current detention of al Qaeda and Taliban fighters at Camp X-Ray in Guantanamo Bay, Cuba. The U.S. Supreme Court has firmly held, however, that federal courts simply have no jurisdiction to consider habeas petitions filed by enemy aliens held outside the United States. See Johnson v. Eisentrager, 339 U.S. 763 (1950). In addition, the U.S. Supreme Court has firmly held that Guantanamo Bay, Cuba, is outside the United States. See Vermilya-Brown Co. v. Connell, 335 U.S. 377 (1948). These are not only firm precedents of the U.S. Supreme Court – they are perfectly reasonable ones. Imagine if it were otherwise: Should Saddam Hussein – currently detained presumably in an area of Iraq subject to the control of the U.S. Armed Forces – have the right to seek habeas relief in a federal court in the United States? the U.S. Supreme Court will soon revisit this issue. If a majority of justices decide to overrule their own prior precedents, so be it. The case nevertheless remains that the Administration’s legal position is firmly supported by Supreme Court precedents.

• Designation of U.S. citizens as unlawful combatants. Some object to the designation of U.S. citizens as unlawful combatants. Yet the U.S. Supreme Court has explicitly – and unanimously – held that the long-standing constitutional wartime power of the President to detain enemy combatants applies equally to citizens and non-citizens alike. See Ex parte Quirin, 317 U.S. 1 (1942). Again, the U.S. Supreme Court plans to revisit this issue soon. And again, if a majority of justices decides to overrule or undermine its unanimous prior ruling in Quirin, so be it – but the Administration’s legal position today remains firmly supported by current Supreme Court precedent.

• Treatment of unlawful combatants