Michael Chertoff

In an April 22, 2007 op-ed for the Washington Post, Chertoff repeated the oft-used rhetoric of neoconservatives and hardliners comparing al-Qaida and Islamic radicals to villains of the past like Hitler and Stalin. Criticizing Zbigniew Brzezinski, President Jimmy Carter's national security adviser, and other scholars for arguing that the government officials are "falsely depicting or hyping a 'war on terror' to promote a 'culture of fear,'" Chertoff wrote that the United States is "at war with a global movement and ideology whose members seek to advance totalitarian aims through terrorism." He added: "Today's extreme Islamist groups such as al-Qaida do not merely seek political revolution in their own countries. They aspire to dominate all countries. Their goal is a totalitarian, theocratic empire to be achieved by waging perpetual war on soldiers and civilians alike."

Commenting on the op-ed, Ivan Eland, an author based at the Independent Institute, argued that many of Chertoff's characterizations were simply wrong, including the assertion that al-Qaida wanted to "dominate all countries," which Eland pointed out has never been on al-Qaida's agenda. Wrote Eland: "The 9/11 attacks were treacherous acts of terrorism, but Chertoff and the Bush administration, the U.S. foreign policy establishment, and the American media act as if they were the beginning of history. Only in religion and quantum physics are there events without cause. Most Americans are unaware of their government's history of unnecessary and profligate meddling in the affairs of countries throughout the Middle East. For their own safety and security, Americans cannot continue to ignore that the Islamist venom resulting in 9/11 was rooted in this U.S. interventionist and quasi-imperial foreign policy. Instead of perpetuating the myth that the United States is at war with 'fanatics' who have a reflexive hatred of America, the nation's homeland security chief could better spend his time examining the real motivator for such terrorism—U.S. foreign policy—and recommending a policy of military restraint in the Middle East to reduce the chances of terrorist attacks at home" (Independent Institute, April 23, 2007).

In late 2006, Chertoff defended the Bush administration's domestic anti-terror tactics, such as wire-tapping, while speaking at his alma mater, Harvard. Arguing that fighting terror required tools that went beyond mere law enforcement, Chertoff asserted that, "Before 9/11, the tools that existed had not been fashioned for a war on terror, but on criminal prosecution." Al-Qaida's activities, he said, "revealed three fundamental elements" that placed the anti-terror struggle in the category of a war: they have well-defined political aims, attempt to acquire territory, and can cause wide-scale damage. He also argued that critics of the "war" fail to come up with reasonable alternatives. "The consequences have to be measured with real world decisions when deciding on matters that deal with life or death. Terrorism in real life doesn't wait until you are done reviewing the evidence" (Harvard Crimson, October 17, 2006).

A sign of Chertoff's political partisanship is his longtime association with the Federalist Society, a national organization of rightist lawyers and judicial reform activists dedicated to realigning the U.S. legal system to reflect a more conservative interpretation of the Constitution. One of Chertoff's earliest appointments in the George W. Bush administration was to work alongside Ashcroft, another Federalist Society associate, in investigating the 9/11 attacks. Chertoff also served as financial vice chair for Bush's 2000 campaign in New Jersey (LA Weekly, January 12, 2005).

Chertoff served as special counsel to the Whitewater Commission established in 1994 by the Republican-led Congress to investigate the involvement of Bill and Hillary Clinton in Arkansas real estate deals 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 contributed a total of $2,000 to the "Friends of Senator D'Amato Committee" in 1997 and 1998 (NewsMeat.com).

Chertoff's nomination as DHS secretary was received with mixed signals by immigration rights activists because of his mixed record on asylum claims. During his short stint as a federal appeals court judge in the Third Court District, a post he held before taking over at DHS, Chertoff often appeared overly dismissive toward asylum claims, ruling against asylum claimants in 14 of 18 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 this record, Erin Corcoran, a staff attorney for Human Rights First, told the Associated Press (February 8, 2005): "We have concerns [about Chertoff], but at the same time, he's been less hardline on the issues than some other people have been."

Chertoff helped draft the compromise immigration bill that Sen. Jon Kyl (R-AZ) and Sen. Ted Kennedy (D-MA) were attempting in spring and summer 2007 to push through the Senate (New York Times, May 29, 2007). The bill (which called for increased border security and employee-verification programs for immigrants, among other things) failed, short 15 votes in June due largely to Republican resistance, but the Bush administration—and Chertoff—refused to give up on it. According to the New York Times, after the bill stalled, Chertoff " pleaded for passage of the bill and sought to rebut criticism." The Times reported: "Michael Chertoff, secretary of homeland security, said the administration was willing to consider a number of proposed Republican amendments, including one that would require illegal immigrants to 'touch back' in their home countries (or some other country) to apply for legal status" (New York Times, June 13, 2007).

Working under Ashcroft as an architect of the post-9/11 initiatives on the domestic war on terror, Chertoff helped supervise the roundup of 750 Arabs and 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 (for more information, see "Alliance for Justice Report on the nomination of Michael Chertoff to the U.S. Court of Appeals for the Third Circuit," May 2003).

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 of detainees to lawyers, reasoning that they "could be questioned without lawyers present because they were not being charged with any crime" (Justice Department and Brill quotes from Nat Hentoff, "Ashcroft in Conference," June 27, 2003).

Writing in the neoconservative flagship 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 Constitution. According to Chertoff, 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 did not authorize "evacuation or preventive detention of American citizens based on ethnic heritage." Nor was there 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 in the same Weekly Standard article 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 the United States must "think outside the box but not outside the Constitution."

In a June 2004 op-ed in the Wall Street Journal, Chertoff opined that the United States cannot win the war against terrorism if it "fight[s] 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." Regarding the role courts might have looking into U.S. intelligence agencies' domestic actions, Chertoff wrote: "Basic policy questions like this cannot be simply left to the judiciary." Similarly, in his December 2003 Weekly Standard article, he wrote that it was time for "the most creative legal thinking" about the role of the U.S. justice system in "fighting a war of extended duration," arguing: "We are at a transition point in the evolution of legal doctrine to govern the armed conflict of terror."

In his November 2006 address to the Federalist Society (which is posted on the DHS website)—given before Dick Cheney's address and after Arlen Specter's at the same event—Chertoff sounded the alarm about using the legal battlefield to fight another supposed threat. Talking to an audience of fellow lawyers and judges, Chertoff stated: "... I'm going to ask you to confront a new challenge, and that is the rise of an increasingly activist, left-wing, and even elitist philosophy of law that is flourishing not in the United States but in foreign courts and in various international courts and bodies.

"For decades, the judges, the lawyers, and the academics who provide the intellectual firepower in the development of international law and transnational law have increasingly advocated for a broad vision of legal activism that exceeds even the kind of legal activism we saw discussed in the academy here in the United States in the 60s. So now you're scratching your head and you're asking yourself, why does the secretary of Homeland Security care about this? Well, in my domain, much of what I do actually intertwines with what happens overseas. And what happens in the world of international law and transnational law increasingly has an impact on my ability to do my job and the ability of the people who work in my department to do their jobs" (Chertoff, "Remarks to the Federalist Society," November 17, 2006). Chertoff also took time to criticize the International Criminal Court, arguing: " The problem is not the idea of international law, but it is an international law that has been captured by a very activist, extremist legal philosophy."

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Doug Ireland, "Mike Chertoff's Dirty Little Secrets," LA Weekly, January 12, 2005.

Michael Chertoff, "Make No Mistake: This Is War," Washington Post, April 22, 2007.

Ivan Eland, "Chertoff Uses Totalitarian Comparisons To Defend War on Terror," Independent Institute, April 23, 2007.

Kevin Zhou, "Chertoff Defends Bush Policies on Terror, Immigration," Harvard Crimson, October 17, 2007.

Campaign Contribution Search, Michael Chertoff, http://www.newsmeat.com/washington_political_donations/Michael_Chertoff.php.

Michael Luo, "Change on Immigration Turns Senator Kyl into Lightning Rod," New York Times, May 29, 2007.

Carl Hulse and Jeff Zeleny, "Bush Lobbies GOP Senators on Immigration," New York Times, June 13, 2007.

"Review Shows Chertoff Firm on Asylum Claims," Associated Press, February 8, 2005.

"Alliance for Justice Report on the nomination of Michael Chertoff to the U.S. Court of Appeals for the Third Circuit," May 2003, http://www.independentjudiciary.com/resources/docs/Chertoff%20Report.pdf.

Nat Hentoff, "Ashcroft in Conference," Village Voice, June 27, 2003.

Michael Chertoff, "Why the Ball Is in Our Court," Wall Street Journal, June 19, 2004.

Michael Chertoff, " Remarks by the Secretary of Homeland Security Michael Chertoff at the Federalist Society's Annual Lawyers Convention," Federalist Society's Annual Lawyers Convention, November 17, 2006, http://www.dhs.gov/xnews/speeches/sp_1163798467437.shtm.

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