Not By Loyalty Alone Shall They Be Judged
Michael Chertoff has some impressive—and some rather disconcerting—credentials
 

February 3 2005
Counterbias.com
Marc Krug
 

I was wrong and for this I apologize. In previous columns, I claimed that loyalty to George Bush constituted the essential, if not the sole, prerequisite for a Cabinet appointment.

That claim was an oversimplification. Qualities other than loyalty matter greatly in deciding who merits a seat in Bush’s Cabinet. But the need for these qualities seems most crucial in those Cabinet members who will play a role in the war on terror.

For example, the Secretaries of Agriculture, Education, or Energy do not need them, since none of these Cabinet members plays any discernible role in this war. But those who head the Departments of Defense, State, Justice, and Homeland Security must have these qualities, since all play roles.

Consequently, the qualities of Michael Chertoff’s character matter greatly since he will soon be confirmed as Secretary of the Department of Homeland Security (DHS).

These cabinet-enabling qualities can be easily enumerated: a singular antipathy for the rule of law when foreign nationals are involved; a marked disrespect for common decency when these individuals are imprisoned; a predilection for suspending the Geneva Conventions when these prisoners need their rights protected; and a frightening conviction that, in fighting the war against terror, the ends indisputably justify the means.

One could see these qualities in action during the confirmation hearings of Alberto Gonzales and Condoleezza Rice. One could also hear them when Gonzales resorted to lawyerly evasions concerning the use of torture and when Rice adroitly eluded specifying the rights of prisoners. And one could witness them again on February 2nd when Michael Chertoff faced his own confirmation hearing.

Admittedly, Chertoff has some impressive credentials. He graduated from Harvard Law School, clerked for Supreme Court Justice William Brennan Jr., headed the Justice Department’s criminal division, and currently serves as a judge on the U.S. Court of Appeals for the third circuit—a lifetime appointment.

Unfortunately, he also has some rather disconcerting credentials. He co-authored the Patriot Act and he instructed CIA members on what sort of torture would—and would not—violate international law. According to the New York Times, Chertoff's division told the CIA that it would not be prosecuted if it engaged in "water-boarding," where suspects are tied down and dunked, thus making them feel as if they are about to drown.

Chertoff also directed the arrests of 762 illegal immigrants—holding them without charges or access to lawyers for three months or more—although few of them had even the remotest connection to terrorism. An internal investigation later found that a number of these prisoners were mistreated and beaten by prison guards.

Occasionally, Chertoff defends his transgressions by pointing to the deplorable acts of others. When it suits his purposes, he cites Lincoln’s suspension of the writ of habeas corpus during the Civil War and Franklin Roosevelt’s forced internment of the Japanese during World War II.

But in so doing, Chertoff commits two major faults. First, he forgets that Lincoln apologized for his actions even as he was carrying them out. And, in addition to others before him, President Reagan also apologized for the Japanese internments; he referred to them “as a grave wrong” and ordered that reparations totaling $1.65 million be divided among all living internees.

Second, Chertoff makes an error quite common to most lawyers—confusing precedence with justification. The injustices America committed in past wars represent nothing more than precedents for the injustices committed at Guantánamo and Abu Ghraib. The earlier infractions do not represent justifications for what America did in both of those prisons—and to Arabs in other places.

But even though he lacked the insight to make this simple distinction between precedence and justification, Chertoff advanced quickly.

In perhaps his first major step up the judicial ladder, Chertoff was appointed U.S attorney in 1990 as a Republican, although he had been a member of that party for only a few months. In 1992, he was re-appointed by President Bill Clinton. Particularly disconcerting was how he later “repaid” Clinton’s favor.

In 1996, Chertoff became Senate special prosecutor for the Whitewater committee under Senator Alphonse D’Amato (R-NY). During the first Clinton administration and extending into the second, the Whitewater investigation sought to find misdeeds in a failed Arkansas real estate deal that the Clintons were involved in 20 years before Mr. Clinton ever became President.

Only after four years had passed and $40 million of taxpayers’ dollars had been spent did Special Prosecutor Kenneth Starr—whose lines of inquiry seemed to multiply daily—uncover anything of “substance”: Clinton was having an affair with Monica Lewinsky.

But for Chertoff, the man Bush claimed “has shown a deep commitment to the cause of justice and an unwavering determination to protect the American people,” involvement in the Whitewater investigation represented only a minor indiscretion. There was much more to come.

What came was September 11. As head of the criminal division, Chertoff was then the Justice Department’s senior official at the FBI. Shortly thereafter, he ordered FBI agents to “use whatever means legally available” to hold immigrants “connected in any shape or form to the hijackers. We have to hold these people until we find out what was going on,” he said.

As the saying goes, the road to hell is paved with good intentions. Sent along the road to hell were 762 people who had the singular misfortune to be of Arab origin and possibly have the wrong sort of friends.

They were imprisoned without charges and without access to attorneys. And “more than a few arrests were made on false tips. Some appeared to have been arrested more by virtue of chance encounters rather than any genuine” terrorist connection, according to a 2003 report by Justice Department Inspector General Glenn A. Fine.

Rather than acting with greater restraint, Chertoff plowed ahead. He added more civil rights’ limitations to the Justice Department’s already-existing legislative “wish list” that eventually became the Patriot Act.

Specifically, he expanded the government’s power to conduct secret searches and surveillance—all in the name of thwarting terrorism. He compounded this transgression by meeting with White House officials, urging them to find more ways for the FBI to conduct covert investigations.

Fortunately, civil libertarians have challenged these actions in federal court with moderate success. The ACLU put the argument quite well: Chertoff “sees the Bill of Rights as an obstacle to national security rather than as a guidebook on how to do security properly.”

In addition, as someone with no administrative experience, the question arises as to how well Chertoff can supervise DHS’ 183,000 employees. Furthermore, because these employees previously belonged to 22 separate agencies that were combined to create DHS, battling over turf there has become one of the Department’s more popular indoor sports.

It was these endless battles that helped make Ridge anxious to leave. They have also made many DHS employees interested in leaving as well. All things considered, with no administrative experience, Chertoff may be in well over his head once he is appointed DHS Secretary.

But the situation is not entirely bleak. Chertoff does have the financial wherewithal to make him one of Bush’s favorite types of people: “the haves and the have mores.” It would seem that this veteran public servant may be worth as much as $4.9 million.

Unfortunately, with Gonzales certain to be confirmed and Rice already confirmed, we don’t need to “have more” opponents of Constitutional rights in the Cabinet like Chertoff. For if we persist in systematically mistreating our enemies, we might eventually become altogether indistinguishable from them.

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