Michael Chertoff, a rabbi’s son from northern New Jersey, is widely
respected for his razor-sharp mind and fearsome courtroom demeanor. While at
Harvard Law School, he was a classmate of Scott Turow, whose semi-fictional
memoir about law school, One L, was based in part on his memories of
Chertoff’s brutal yet incisive manner of legal argument. (1)
A political partisan, Chertoff became special counsel to the Whitewater Commission
established in 1994 by the Republican-led Congress to investigate the involvement
of Bill and Hillary Clinton in real estate deals in Arkansas and other business
deals. Now widely regarded as a political witch hunt spearheaded by Sen. Alfonse
D’Amato (R-NY) and Independent Counselor Kenneth Starr, the Whitewater
Commission spent $40 million on the investigation, which ultimately failed
to find that the Clintons had done anything illegal.
Chertoff is a longtime member and activist in the Federalist
Society. This national association of right-wing lawyers and judicial
reform activists is dedicated to realigning the country’s legal system
to reflect a more conservative interpretation of the Constitution. The Federalist
Society, which since its founding in 1982 has been closely linked to the
neoconservative political camp, aims to rid the system of liberal judges
and stamp out what it sees are its overly egalitarian and secular impulses.
Many association members believe that the Constitution and the country’s
laws should primarily serve to ensure order and social orthodoxy rather than
democracy and human rights.
As U.S. Attorney General in New Jersey, appointed by President George H.W.
Bush in 1990, Chertoff gained a reputation as a political attack dog for the
Republican Party. Leveraging his strong political base in New Jersey, Chertoff
served as financial vice chair for Bush’s 2000 campaign in the Garden
State. (2)
Chertoff was Bush’s second nominee to head Homeland Security, following
the failed nomination of former New York City Police Chief Bernie Kerik, who
admitted that he neglected to pay taxes for the “illegal immigrant” nanny
he employed.
Chertoff himself has a less-than-stellar record on immigration issues. During
his short stint as federal appeals court judge in the Third Court District,
Chertoff demonstrated a generally dismissive attitude toward asylum claims—ruling
against immigrants in 14 of 18 immigration cases. In one case, he denied asylum
to a Bangladeshi man who was imprisoned, severely beaten in jail, and forced
to denounce his dissident political party. Despite his requiring 19 days of
medical care after his release, Chertoff denied asylum on the grounds that
the treatment didn’t constitute torture. (3) Chertoff also overruled
a lower-court immigration judge’s decision to question the credibility
of the asylum petition of a Chinese man who was seeking refuge because his
wife was involuntarily sterilized.
As the architect of the post-September 11th initiatives on the domestic war
on terror, Chertoff supervised the round-up of 750 Arabs and other Muslims
on suspicion of immigration violations. Treated as suspected terrorist sympathizers
or material witnesses, the “suspects” were held without bond for
as long as three months, often in solitary confinement, despite having never
been charged with any crime. Eventually, most were released or deported after
secret tribunals.
In a 2003 report, the Justice Department’s inspector general criticized
these draconian measures as “indiscriminate and haphazard.” The
report also concluded that Chertoff and other top government officials had
instituted a “hold until clear” policy for immigrant detainees,
even though immigration officials questioned the policy’s legality. In
his book After, author Steven Brill describes how Chertoff obstructed
the access by the post-9/11 detainees to lawyers, reasoning that they “could
be questioned without lawyers present because they were not being charged with
any crime.”
Not one of the almost exclusively Muslim “detainees” was indicted
for terrorism-related crimes. Chertoff, who also coordinated the aggressive
questioning of more than 5,000 Arab Americans immediately after the 9/11 attacks,
remains unapologetic and continues to argue that the “war on terrorism” justifies
the government’s right to hold suspects indefinitely without counsel
as possible “enemy combatants.” (4)
“A look at Chertoff’s strong, aggressive record and statements
on homeland security shows that Chertoff supports the kind of hard-headed,
threat profiling measures and immigration enforcement opposed by the anti-profiling
zealots,” wrote Michelle Malkin, author of Invasion: How America Welcomes
Terrorists, Criminals, and Other Foreign Menaces to Our Shores and In
Defense of Internment. (5)
Writing in the Weekly Standard in December 2003, Chertoff defended
himself and the Justice Department against charges that the Bush administration
had gone beyond the historical precedents in its determination of what is permissible
under the U.S. Constitution. According to Chertoff, President Bush has “avoided
the kind of harsh measures common in previous wars.”
Although engaged in a war on both domestic and international fronts, the
president has not authorized “evacuation or preventive detention of American
citizens based on ethnic heritage.” Nor has there been any “government
suppression of dissent or criticism,” wrote Chertoff, adding that unlike
such respected predecessors as John Adams or Woodrow Wilson, Bush “has
not prosecuted those who argue against the administration, nor has the government
seized newspapers or banned them from the mails, as Lincoln did.”
Concerning the detention of “enemy combatants,” Chertoff argued
that the Bush administration followed “customary and well-accepted practice
of incapacitating enemy soldiers overseas.” Regarding such matters as
deciding “how long combatants can be held when we are fighting a war
of extended or indefinite duration,” Chertoff said we must “think
outside the box but not outside the Constitution.” (6)
In a June 2004 op-ed in the Wall Street Journal, Chertoff wrote that
we cannot win the war against terrorism if we “fight in a legal fog,
constantly speculating and litigating piecemeal about what the law might be.
A murky legal climate only obscures our options and hamstrings our forces.”
What about the role of the U.S. military or the CIA in home-front operations?
Chertoff, writing as an appeals court judge, said: “Basic policy questions
like this cannot be simply left to the judiciary.” (7)
Chertoff believes that it is time for “the most creative legal thinking” about
the role of the U.S. justice system in “fighting a war of extended duration.” According
to Chertoff, “We are at a transition point in the evolution of legal
doctrine to govern the armed conflict of terror.” (8)
