Checking on Chertoff

Ever since President Bush nominated former Assistant Attorney General Michael Chertoff on Jan. 11, 2005 to be the new Secretary of the Department of Homeland Security, Chertoff has been widely viewed as a non-controversial nominee whose three previous Senate confirmations virtually guaranteed him a smooth confirmation.
However, a close look at Chertoff’s previousconfirmations, and his record as a prosecutor and head of the JusticeDepartment’s criminal division, reveal a much more complex—andcontroversial — record.
The Judicial Watch complaint
When the Senate Judiciary Committeeconsidered his nomination to the Third Circuit Court of Appeals on June9, 2003, Democrats on the committee stalled the head count after theconservative-leaning special interest group Judicial Watch raisedallegations of wrongdoing by Chertoff. The group claimed it had“important evidence concerning the misuse of organized crime operativesby the FBI and other government agencies” in New Jersey when Chertoffwas US attorney there from 1987 to 1994.
After a short interlude to explorethegroup’s charges, Chairman Sen. Orin Hatch (R-Utah) and RankingDemocrat, Sen. Patrick Leahy (D-Vt.), jointly stated they had“determined that there is no credible evidence linking Mr. Chertoffwith any of the wrongdoing alleged by Judicial Watch.” The vote washeld and six of the committee’s Democrats abstained. The full Senatevoted 88-1.
During those hearings, Leahy raised an issue that went to the heart of Chertoff’s conduct as a federal prosecutor.
In the matter of Chertoff’s prosecution ofUnited States v. Figueroa, Leahy noted that “at trial, you introducedhearsay testimony about the contents of a telephone call, withoutcalling a participant in the call as a witness, by representing to thedistrict court that the testimony was not offered to prove the truth ofthe matters asserted and was therefore not hearsay.”
Continuing, Leahy pointed out that “onappeal, the Second Circuit rejected that argument as ‘disingenuous’ andreversed the defendant’s conviction. The court found that you hadrelied upon the disputed evidence to supply ‘critical’ information toits case and had also relied upon the truth of the hearsay evidence inits summation. The court found that the government had violated theruling of one its prior cases, stating that ‘[t]he whole point of ourdecision in [the prior case] was to stop prosecutors from circumventingthe hearsay rule by the kind of atomization here sought to bedefended.’ A concurring judge even went so far as to describe yoursummation as ‘wholly inappropriate.’ ”
Chertoff responded, stating “I tried UnitedStates v. Figueroa several months after I was as sworn in as anassistant US attorney; it was my second trial as a prosecutor. Myinexperience led me to mishandle the introduction of hearsay testimony,and the subsequent argument relating to that testimony in summation.Needless to say, the reversal was an educational, and chastening,experience. With the benefit of time, my handling of evidentiary andother elements of trial practice became more surefooted.”
Chertoff emphasized that “I personally retried the defendant, who was again convicted. The conviction was affirmed on appeal.”
Responding to terrorism
As the chief architect of the Bushadministration’s legal response to terrorism, Chertoff chartedunexplored territory in the prosecutorial handling of both known andsuspected terrorists, and the government’s investigative powers.
While taking no official position onChertoff’s nomination, the American Civil Liberties Union (ACLU) hasmade its concerns about his conduct known. Gregory Nojeim, associatedirector of the ACLU Washington legislative office and chieflegislative counsel, said “we are troubled that [Chertoff’s] publicrecord suggests he sees the Bill of Rights as an obstacle to nationalsecurity, rather than a guidebook for how to do security properly.”
Nojeim said Chertoff “has been a vocalchampion of the Bush administration’s pervasive belief that theexecutive branch should be free of many of the checks and balances thatkeep it from abusing its immense power over our lives and liberty.”
Two reports by the Justice Department’sInspector General were sharply critical of the department’s use ofrarely enforced and minor immigration violations to hold non-citizensin the wake of the 9/11 attacks for as long as possible, without bailor access to a lawyer. More than 700 illegal immigrants were locked upafter the Sept. 11 attacks, most of whom turned out to have noconnections to terrorism.
Chertoff reminded Congress, however, that“let’s be clear, those are people who have essentially overstayed theirwelcome in this country … They don’t belong here.”
Chertoff oversaw the changing of JusticeDepartment policy to allow the FBI to infiltrate religious andpolitical gatherings with undercover agents; the federal Bureau ofPrisons’ rule change that permits federal agents to eavesdrop onpreviously confidential attorney-client conversations; and the“voluntary” dragnet interviews of thousands of Arabs and Muslims livingin the United States.
Responding to internal government concernsthat important terror suspects would slip out of the country, Chertoffreinterpreted the “Material Witness Statute” by declaring suspectedterrorists to be “material witnesses” so that they could be locked upwithout having to charge them with a crime.
Chertoff employed this same tactic as afederal prosecutor in New Jersey to get convictions of the leaders ofthe Genovese, Colombo and Lucchese crime families, and a captain of theBonanno crime syndicate.
In a report on the use of this radical new tactic in the war on terror, though, the New York Timeson Aug. 19, 2004 said “scholars and critics say the government hasradically reinterpreted what it means to be a material witness inrecent years. These days, people held as material witnesses interrorism investigations are often not called to testify againstothers; instead, frequently they are charged with crimes themselves.They lack constitutional protections like the requirement that criminalsuspects in custody be informed of their Miranda rights. Moreover, theyare often held for long periods in the same harsh conditions as thosesuspected of very serious crimes.”
The New York Times storycontained the account of someone who was held as a material witness forsixteen months without being asked to testify or charged with a crime.
In the prosecution of John Walker Lindh, whowas sentenced to 20 years in prison for fighting on the side of theTaliban in Afghanistan, Democrats chided Chertoff at his confirmationhearing for the Court of Appeals for allowing the FBI to interviewLindh without his attorney being present. His family had hired a lawyerto represent him.
Chertoff speaks
Speaking to the American Bar Association in2002, Chertoff said “we are in a time of war. If you step back and lookat the total picture, the government has been very restrained.”Nevertheless, Chertoff stated “we owe it to ourselves to get as closeto [the Al Qaeda terror] network as possible as we can. And that meansusing techniques that may be unfamiliar. They may be uncomfortable, butthey are well within the Constitution.”
Chertoff also said October 10, 2003 in anaddress to the University of North Carolina at Chapel Hill law school,“what we can say is that the government’s actions after Sept. 11reflected a consciousness of history and of the historical moment.Excesses of the past were not repeated. A balance was sought and, Ihope, achieved. That balance was struck in the first flush of theemergency. If history shows anything, however, it shows that we must beprepared to review and if necessary recalibrate that balance. We shouldget about doing so, in the light of the experience of our forebears andthe experience of our own time.”
Chertoff has, in fact, distanced himself fromadministration policies, and has actually questioned the practice ofholding enemy combatants indefinitely without charges.
David Cole, a law professor at GeorgetownUniversity critical of the Justice Department, said of Chertoff in astatement to the New York Times in January, ‘’We’ve differed on manyaspects of the war on terrorism, but I think he’s a thoughtful andindependent thinker on a lot of these issues, and not insensitive tocivil liberties concerns.’’
On the issue of Justice’s use of racialprofiling, Chertoff vigorously opposed it during the May 2001 hearingon his nomination to head Justice’s criminal division. In 2000,Chertoff signed on as pro bono counsel to a New Jersey legislativeprobe of racial profiling by state police. That investigation led tothe removal of former New Jersey Attorney General Peter Verniero fromhis seat on the state Supreme Court for having been involved in hidingevidence of profiling from the US Department of Justice.
Juxtaposed with his conduct as head ofJustice’s criminal division after 9/11, though, Chertoff came underfire for the department’s reputed profiling of Arab Americans. Thedepartment oversaw a program—described as legal, voluntary andnecessary for uncovering terrorist ‘sleepers—to interview thousands ofArab immigrants.
“This is the least intrusive type ofinvestigative technique that one can imagine,” Chertoff told Congressat the time. “This is not rousting people, this is not detainingpeople, this is not arresting people. This is approaching people andasking them if they will respond to questions.”
By 2002, Justice had created a database from the interviews.
Two months after 9/11, Chertoff told the NewJersey State Bar Association “we are not looking at people because theyare part of an ethnic group. We are looking at where people have been,the locations they traveled to and from, and the visas they sought …These are voluntary characteristics of how people behave … It would befoolish not to take account of that in figuring out how we will conductthe investigation.”
Chertoff also said in testimony before theSenate Judiciary Committee on Nov. 28, 2003, “without understanding thechallenge we face, one cannot understand the need for the measures wehave employed. Are we being aggressive and hard-nosed? You bet. In theaftermath of September 11th, how could we not be? Our fundamental dutyto protect America and its people requires no less.”
On June 19, 2003, Chertoff wrote in a Wall Street Journalop-ed ( that “casespresenting novel issues raised by the war on terror are now windingthrough the courts. While courts set forth constitutional ground rules,however, we judges cannot and should not be expected to construct a newlegal architecture for the war on terror. This involves weighty policy,and that is the domain of Congress and the executive branch. Yet sofar, neither has systematically sketched the legal framework for thedemands of this new kind of war. They seem to hope the courts will cometo the rescue.”
The legal record
As for the most high-profile terror casesinitiated during Chertoff’s reign as head of Justice’s criminaldivision, some have either been lost or are stalled in legal imbroglios.
The first post-Sept. 11 prosecution of analleged terrorist sleeper cell was thrown out because of misconduct byprosecutors. In that case a Saudi college student in Boise, Idaho wasacquitted for lack of evidence on charges he created an Internetnetwork that prosecutors claimed fostered Islamic extremism andrecruited terrorists.
The case against Zacarias Moussaoui, the onlyperson charged in the United States with having been part of the AlQaeda 9/11 conspiracy, is bogged down in legal missteps and minutiae.The latest slowdown occurred in June when it was learned prosecutorsfailed to inform the court of contacts they had with suspected Al Qaedaprisoners.
Prosecutors attempted to indirectly associateMohamed Hussein, a Canadian of Somali descent charged with operating amoney transfer business without a license in Boston, with the financingof Al Qaeda. Upon his conviction of the lesser offense, governmentprosecutors asked for the maximum six-year jail term. US District JudgeRobert Keeton refused to sentence him as a terrorist, and chidedfederal prosecutors for their tactics. “That shocks my conscience thatI would even be asked to do that,” Keeton declared. “It is plainly nota just and a proper and appropriate and a fair sentence in this case.”
Nevertheless, Chertoff cited the Hussein caseby name as evidence that the “fight against terrorist financing is abroad-based effort extending well beyond the Al Qaeda network” when hetestified at a Senate banking committee hearing on the anti-moneylaundering provisions of the USA PATRIOT Act in January 2002. HST
The Chertoff Resumé
Birth: November 28, 1953, Elizabeth, New Jersey
Legal Residence: New Jersey
Education: 1971-1975 Harvard University, magna cum laude, 1975-1978, Harvard Law School, J.D. degreemagna cum laude
Bar Admittance: 1980 District of Columbia, 1987 New York, 1990 New Jersey
Experience: 1978 Miller, Cassidy, Larroca & Lewin, Summer Associate
1978-1979 — Law Clerk to the Hon. Murray Gurfein, United States Court of Appeals, Second Circuit
1979-1980 — Law Clerk to the Hon. William J. Brennan, Jr. Supreme Court of the United States
1980-1983 — Latham & Watkins, Associate
1983-1987 — United States Attorney’s Office, Southern District of New York, Assistant United States Attorney
1987-1994 — United States Attorney’s Office, District of New Jersey, First Assistant United States Attorney
1987-1990 — United States Attorney 1990-1994
1994-1996 — United States Senate, Special Counsel for Whitewater Committee
1994-2001 — Latham & Watkins, Partner
2001-2003 — United States Department of Justice, Assistant Attorney General, Criminal Division
June 9, 2003 — Confirmed as Justice for Third Circuit Court of Appeals, Philadelphia, Pa.
Sources: Department of Justice, HSToday research

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