Straight to the Top

By Kari Lydersen, The NewStandard. Posted February 3, 2005.

While President Bush's initial nominee for director of the Homeland Security Department, Bernard Kerik, withdrew himself from consideration amidst questions over numerous scandals, civil libertarians say the administration's new pick to head the department raises other serious concerns.

Michael Chertoff, Bush's new nominee to replace outgoing Secretary Tom Ridge, faced a congressional hearing today, as lawmakers questioned him on plans for security budget priorities, labor relations within the department, and other issues surrounding protection of national security. Senators also asked Chertoff about his commitment to balancing national security concerns with protecting civil liberties and about his prior involvement in designing post-Sept. 11 detention and interrogation policies.

It is Chertoff's previous role in the Justice Department as assistant attorney general in charge of the Criminal Division and his reported involvement in many of that agency's most controversial policies that has rights groups questioning his fitness to serve as head of what the American Civil Liberties Union dubbed "a new and untested agency with great influence on civil liberties."

A long-time lawyer, Harvard graduate and past editor of the Harvard Law Review, Chertoff earned a rating of "well qualified" from the American Bar Association, and few doubt his talents as an attorney or thinker. Chertoff most recently served as a federal judge, a post he resigned for the opportunity to head the Department of Homeland Security. But human and civil rights groups are raising serious questions about Chertoff's respect for constitutional rights and his role in the domestic "war on terror."

If his nomination is approved, Chertoff will be charged with overseeing everything from legal immigration and the granting of foreign workers' visas to guarding the country against terrorism.

At the top of the list of his critics' concerns is that Chertoff is credited as the architect of a post-9/11 government policy to hold hundreds of people indefinitely for minor visa violation or under the premise that they were "material witnesses" in terrorism investigations, without having to provide evidence they were involved in any criminal activity.

This controversial policy was the subject of a harsh Department of Justice Inspector General report, which found that shortly after 9/11, the government cast a very wide net in its investigation into the terrorist attacks on the World Trade Center and Pentagon, detaining hundreds of immigrants, most of whom had virtually no connection to people involved in the attacks. The inspector general further found that many of the individuals were held for weeks and even months without access to legal counsel or information about the charges against them. Many of the detainees suffered brutality at the hands of guards while in detention, as evidenced by videotape.

A few senators brought up Chertoff's involvement in crafting the Justice Department's investigation and subsequent detentions and asked him if he believed the policies carried out by the Department as detailed in the inspector general's report were appropriate.

Chertoff responded that the abuse was illegal and that he hopes in the future prison authorities will be better trained in dealing with detainees. He also expressed hope that improvements in information gathering and sharing will enable the FBI to more quickly clear and release people detained under suspicion of involvement in terrorism.

He did not, however, eschew the policy of detaining people who are merely suspected of being involved in terrorism, but against whom there is no evidence.

Civil liberties advocates also criticize Chertoff for his key role in developing the USA Patriot Act and other laws giving the FBI increased powers of secret domestic surveillance; his direction of the widely criticized systematic interviews of Middle Eastern men after 9/11; his participation in revising the internal Attorney Guidelines to allow the FBI to infiltrate religious and other gatherings with undercover agents; and his co-authorship of a brief in the Supreme Court case, Chavez v. Martinez, in which Chertoff argued that there is no constitutional right to be free from coercive police questioning as long as the resulting statements are not intended for use in a criminal trial.

"We are troubled that [Chertoff's] public record suggests he sees the Bill of Rights as an obstacle to national security, rather than a guidebook for how to do security properly," the American Civil Liberties Union's Washington legislative office associate director Gregory T. Nojeim, said in a press statement.

Kari Lydersen, a regular contributor to AlterNet, also writes for The Washington Post and is an instructor for the Urban Youth International Journalism Program in Chicago.

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