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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.
The Patriot Act has been at the center of a heated struggle between civil libertarians and the Executive Branch. Passed in the aftermath of the Sept. 11, 2001 attacks, the Act is a sweeping set of laws providing unprecedented power to law enforcement to conduct investigations. Widespread grassroots organizing has sprung up in communities throughout the nation as people have realized that some of the provisions give authorities increased surveillance and search abilities and inflated powers to obtain personal information.
To date, four states and 365 cities and counties have passed resolutions condemning various aspects of the Patriot Act and reaffirming their commitment to protecting civil liberties.
When asked by Sen. Mark Dayton (D-Minn.) if there are aspects of the Patriot Act that should be changed, Chertoff responded, "I don't know as I sit here that I am aware of any particular systemic criticism of that Act that comes to mind."
Kareem Shora, director of legal policy for the Arab-American Anti-Discrimination Committee, said their members are worried about Chertoff. "Definitely we have concerns given his history with the Department of Justice," Shora told The NewStandard. "We certainly hope the Senate exercises its powers to review his record in protecting the Constitution."
Though Chertoff is reported to have been one of the architects behind the campaign of "voluntary" interviews held between federal agents and thousands of Muslim and Arab immigrants, which led to several hundred deportations but netted no viable terrorism suspects, no senator asked him about that policy during the hearing.
Along with his investigations of Middle Easterners and people suspected by the government of involvement in terrorism, Chertoff is known for having prosecuted high profile mob and white collar criminal cases in his previous role as federal prosecutor.
Additionally, civil rights groups have praised Chertoff for the key role he played in shaking up a campaign of racial profiling among New Jersey's state police force in 2000, though they note the apparent transition from condemnation of such practices to the aggressive application of them on a nationwide basis.
Chertoff has earned the respect of many Democrats by declining to align himself with the far right of the Republican Party, especially on charged issues like school prayer and abortion. But the Alliance for Justice, a national association of environmental, civil rights, mental health, women's, children's and consumer advocacy organizations, notes that from 1994 to 1996, Chertoff served as special counsel in the Whitewater investigation, which yielded no charges and which many Clinton supporters saw as a politically motivated campaign.
"[He] has had a long career in Republican legal circles," wrote the Alliance in a report on Chertoff. "His behavior in the Whitewater investigation and his current role in the War Against Terrorism raise questions about his partisanship and his belief in the civil liberties of all people."
"It's quite obvious [Chertoff] is completely willing to take any part of American due process and throw it out the window if it suits our security needs," Leonard Cavise, a professor of criminal law and evidence at Chicago's DePaul University law school, told The NewStandard.
During the confirmation hearings, there also took place a series of questions from senators about a recent New York Times article that anonymously quotes "current and two former senior officials with firsthand knowledge of the interaction between the CIA and the Justice Department," who claim that the Central Intelligence Agency consulted Chertoff on the legality of various interrogation techniques. According to the Times' sources, Chertoff, then head of the FBI's criminal division, told the CIA that some techniques were legal under some circumstances. One such technique is known as "water-boarding," a procedure in which a detainee is strapped down and made to feel as if he is drowning. Others, including injecting detainees with mind-altering drugs and threatening subjects' families were deemed not acceptable, the Times article said.
When asked about that piece, Chertoff denied under oath that he had ever endorsed specific techniques and insisted that he did not think it was his institutional role to condone certain actions ahead of time. Instead, insisted Chertoff, he told lawyers for the intelligence community that they should study the law carefully and make sure to act well within it.