NEW YORK – Like President George W. Bush’s nominee for attorney general, his choice for Homeland Security czar is likely to face stiff opposition from some Democratic senators and human rights advocates because of what they say were abuses of civil liberties during his service in the Justice Department.
Michael Chertoff was assistant attorney general in charge of the Justice Department’s criminal division from 2001 to 2003, when Bush nominated him to be a federal judge.
"Mike has shown a deep commitment to the cause of justice and an unwavering determination to protect the American people," Bush said in his announcement Tuesday. "Mike has also been a key leader in the war on terror."
But with his nomination only days old, the American Civil Liberties Union (ACLU), a leading human rights advocacy group, says it is "troubled that his 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."
Gregory T. Nojeim, the ACLU’s chief legislative counsel, called Chertoff "a vocal champion of the Bush administration’s pervasive belief that the executive branch [of government] should be free of many of the checks and balances that keep it from abusing its immense power over our lives and liberty."
He hoped the senators would question him "aggressively to ensure his fitness for the position, and the strength of his dedication to the Bill of Rights."
The controversy surrounding Judge Chertoff stems largely from his role in developing and supervising policies by the Justice Department (DOJ) and Federal Bureau of Investigation (FBI) in the months immediately following the attacks of Sept. 11, 2001.
It was during this period that the DOJ and FBI rounded up over 1,000 immigrants and visitors to the U.S., mostly Arabs and other Muslims, and South Asians.
Chertoff told the Senate Judiciary Committee in Nov. 2003 that "the detentions, the targeted interviews, and the other aggressive investigative techniques we are currently employing are all legal under the Constitution and applicable federal law."
"Nobody is being held incommunicado; nobody is being denied the right to an attorney; nobody is being denied due process," he said. "Every detention is fully consistent with established constitutional and statutory authority. Every person detained has been charged with a violation of either immigration law or criminal law, or is being lawfully detained on a material witness warrant."
But some of Judge Chertoff’s post-Sept. 11 policies have been repudiated by others in the government, principally in two highly critical reports by the DOJ’s inspector general, released in June and December 2003.
The inspector general found that Chertoff used rarely enforced and minor immigration violations to hold non-citizens shortly after Sept. 11 for as long as possible, without bail or access to a lawyer.
The ACLU determined that none of these noncitizens were found to have any connection to the Sept. 11 attacks.
The report also said that the government process for clearing immigrants of any connection to the terrorist attacks was understaffed and not given "sufficient priority" – clearance took an average of 80 days and in some instances took more than 200 days. It criticized the "indiscriminate and haphazard manner" in which immigrants "who had no connection to terrorism" were labeled as possible suspects.
The DOJ has never refuted the charge that "in the strategy sessions at the Justice Department, Chertoff agreed that detainees should be held for long periods of questioning."
Even if some got a hearing, the inspector general said, "the hearings could not only be done in secret, but also could be delayed, and that even after the hearings were held and they were ordered deported [usually for only minor immigration violations], there was nothing in the law that said they absolutely had to be deported immediately. They could be held still longer."
According to Steven Brill’s authoritative book, After: How America Confronted the September 12 Era, Chertoff knew that prisoners "were entitled to call a lawyer from jail, but the lists the INS provided of available lawyers invariably had phone numbers that were not in service."
The INS was the Immigration and Naturalization Service, now part of the Department of Homeland Security.
"Immigrants weren’t the enemy," Anthony D. Romero, the ACLU’s executive director, said at the time of the report. "But the war on terror quickly became a war on immigrants. The inspector general’s findings confirm our long-held view that civil liberties and the rights of immigrants were trampled in the aftermath of 9/11."
Chertoff was also an architect of the USA PATRIOT Act, which has come under increasing fire from conservatives and progressives alike since its passage in 2001.
He was instrumental in revising the internal "Attorney General Guidelines" to allow the FBI to infiltrate religious and political gatherings with undercover agents, and he was apparently the catalyst behind the Bureau of Prisons rule change permitting agents to eavesdrop on previously confidential attorney-client conversations in federal prisons. He also directed the initial "voluntary" dragnet interviews of thousands of Arabs and other Muslims.
During Chertoff’s confirmation hearings to the U.S. Court of Appeals for the Third Circuit (one level directly below the Supreme Court), the Alliance for Justice, a Washington-based legal watchdog group, gave him a generally favorable rating, but reported: "His current role in the War Against Terrorism raise[s] questions about his partisanship and his belief in the civil liberties of all people."
No date has yet been set for Chertoff’s confirmation hearing to replace Tom Ridge as secretary of the Department of Homeland Security.
