On Nov. 28, 2001, then-Assistant Attorney General Michael Chertoff took a seat before a Senate committee and offered reassurance on two fronts: The Justice Department was unrelenting in pursuit of terrorists. And none of its tactics had trampled the Constitution or federal law.
Every detainee has been charged, Chertoff told the senators. Every detainee has a lawyer. No one is held incommunicado.
"Are we being aggressive and hard-nosed? You bet." Chertoff leaned into the microphone. "But let me emphasize that every step that we have taken satisfies the Constitution and federal law as it existed both before and after September 11th."
It was classic Chertoff, eloquent and unyielding and intense, his body coiled like a middleweight boxer's. He returned again and again to his bottom line: The World Trade Center and a portion of the Pentagon were in ruins; two letters had arrived at the Senate laden with billions of anthrax microbes. Osama bin Laden had declared war on the United States -- what would you have us do?
Few questioned Chertoff's urgency, but his critics contend that he was not candid with the senators, and was perhaps misleading about the nature of the tactics he pursued. The Justice Department ordered the detention of more than 700 Arab and South Asian men for immigration violations, holding them without charges or access to lawyers for an average of three months. Many remained in prison much longer, according to a 2003 report by Justice Department Inspector General Glenn A. Fine.
'A coverup'
Some officials questioned the legality of the detentions, noting that immigration rules entitle detainees to call a lawyer. But the Justice Department ignored such warnings, according to the inspector general.
"Muslim men were rounded up and blocked from getting lawyers, and essentially Chertoff's testimony to the Senate was a coverup," said Michael Ratner of the Center for Constitutional Rights, which has challenged the government's detention policies.
Chertoff, President Bush's nominee to be the next secretary of the Department of Homeland Security, could bring coherence to a sprawling new agency still riven by turf battles, supporters and detractors agree. The 51-year-old federal appellate judge has a laser-like intensity, ran the Justice Department's criminal division during what many liken to wartime, and has worked for Democrats and Republicans during his career. Lawyers who have squared off against him praise his skills and ferocity.
But as Senate hearings on his nomination begin Wednesday, Democrats are expected to sharply question Chertoff's decision to order the detention of immigrants -- not one of whom was charged with a terrorism-related crime. A number of these immigrants were beaten and humiliated by prison officers.
They also are expected to scrutinize Chertoff's role in crafting the USA Patriot Act. Signed into law just weeks after the Sept. 11 attacks, the legislation expanded law enforcement's power to conduct secret surveillance and searches in the name of thwarting terrorism.
In meetings with the White House, Chertoff pushed for expanded powers to conduct secret searches, steps that civil libertarians have challenged with some success in federal court. ("Democracy," a federal judge wrote recently in striking down such a provision, "abhors undue secrecy.") Chertoff labored to dismantle barriers that kept intelligence agencies from sharing information with local law enforcement agencies.
Finally, Chertoff will face questions about the advice he offered the CIA on finding the line between harsh interrogation and tactics that might violate international law in questioning high-profile al Qaeda suspects, such as Abu Zubaida.
Chertoff's admirers, who hail from both parties, argue that much of the criticism lodged against him misses the point. In the months after the terrorist strikes, they say, no one knew where or when the next attack might come.
The hijackers had lived among Americans for years. Who knew how many al Qaeda fighters might be harbored by extremists in Muslim communities across the United States? There was a bipartisan conviction that intelligence agencies and law enforcement were two steps behind, and needed to catch up quickly. And none of the tactics Chertoff employed were illegal, they said.
"Everyone was shifting on the fly," said Andrew C. McCarthy, who was a senior federal prosecutor in New York at the time. "We didn't know if we'd get hit again the next day. I don't understand the criticism, truly. We didn't break laws and we protected the nation. It was the Justice Department's finest hour."
A masterful trial lawyer, Chertoff has not hesitated to step into court and defend controversial new policies. (The Weekly Standard appraised his courtroom style in 1996 and concluded he "can make smart people look stupid.") Last year, Chertoff argued in a secret hearing in federal appeals court that Zacarias Moussaoui, a French citizen accused of conspiring in the Sept. 11 attacks, did not have a Sixth Amendment right to cross-examine al Qaeda leaders held overseas. Chertoff took the position that national security trumped Moussaoui's right to confront his accusers.
The U.S. Court of Appeals for the 4th Circuit handed Chertoff a partial victory, agreeing that Moussaoui instead could read transcripts of witness testimony. The case has been appealed to the U.S. Supreme Court.
Few of Chertoff's friends expressed surprise at his decision to leave a lifetime federal judgeship to try to bring order to an unwieldy agency. "If you looked at his bookshelves, there are a lot of biographies of people who shuttled in and out of public life," said John F. Savarese, who worked with Chertoff as a federal prosecutor in New York City in the 1980s and remains a friend.
"There's nothing sloppy about Michael -- he likes to win," Savarese added. "As my kids would say, you could classify him as a nerd. He lives and breathes and thinks this stuff, but I wouldn't want to get in his way at Homeland Security."
Jersey days
The son of a prominent and politically connected rabbi from Elizabeth, N.J., Chertoff graduated from Harvard College and Harvard Law School in 1978, where he became the model for an argumentative and intense young student in classmate Scott Turow's book "One L: The Turbulent True Story of a First Year at Harvard Law School."
He joined U.S. Attorney Rudolph W. Giuliani's office in New York in the mid-1980s. He developed an intimidating, Gatling-gun courtroom style and was so controlled and focused on his work that he sometimes did not notice when someone extended a handshake. As he told the American Lawyer: "You could set off a bomb in the court and I might not know it."
Appointed lead prosecutor on the "Mafia Commission" case, Chertoff sent several mob aristocrats to prison. Even the made men gave grudging respect to the young prosecutor. Told that Chertoff had been appointed top deputy to the New Jersey U.S. attorney, Anthony "Fat Tony" Salerno buttonholed a police sergeant.
"You give him a little message from Fat Tony," Salerno said. "You tell that [expletive] he owes me a thank-you note."
Chertoff's political epiphany came a few years later. In 1990, the U.S. attorney resigned and Chertoff applied for the permanent job. But Lawrence Bathgate, a prominent Republican power broker in New Jersey, balked at awarding the legal plum to Chertoff, who had only recently changed his registration from independent to Republican.
"He was not politically active and I didn't know him," said Bathgate, a major fundraiser for Bush. "I would have had doubts about anyone I didn't know."
During breakfast with Chertoff, Bathgate learned the prosecutor's father was a friend of Republican New Jersey Gov. Thomas H. Kean. The mood lightened.
"I would say that while Mike is not a backslapper . . . he's a far more skilled politician than people realize," said Robert Mintz, who served as assistant U.S. attorney under Chertoff in New Jersey. "He is very skilled at maneuvering in political circles."
Chertoff was reappointed by President Bill Clinton and led a series of high-profile prosecutions before returning to private practice in 1994. But two years later, he agreed to serve as chief counsel to the Senate Whitewater committee under Sen. Alfonse D'Amato (R-N.Y.). During the hearings, Chertoff inquired about the suicide of White House deputy counsel Vincent W. Foster Jr. and subjected the Clintons' friend Susan Thomases to a withering cross-examination.
Republicans speak of this as Chertoff's partisan baptism. "That gave him legitimate Republican bona fides," Bathgate said.
Later, Chertoff took to the campaign trail for Republican Robert J. Dole. "Why does the White House," Chertoff asked at a rally, "spend more time hiding its files from subpoenas than pursuing drug dealers?"
This move drew sharp disapproval from former special counsels. "Inconceivable," said Arthur L. Liman, who was counsel to the Senate Iran-contra committee. "Very inappropriate," added Gerald Gallinghouse, an independent counsel during the Carter administration.
In the late 1990s, Chertoff took a final turn in New Jersey's political vineyards, as pro bono counsel to a legislative investigation of racial profiling by state police. He concluded that former state attorney general Peter Verniero had hidden racial profiling data. Chertoff offered no quarter to a prominent Republican, subjecting Verniero to a 13-hour cross-examination and trying to force his resignation.
After Sept. 11
Attorney General John D. Ashcroft appointed Chertoff to head the Justice Department's criminal division in 2001. Chertoff spoke of pursuing drug crimes and attacking the bane of racial profiling. Then hijacked airliners slammed into the World Trade Center and the Pentagon.
Chertoff was the senior Justice Department official at FBI headquarters on Sept. 11. He immediately ordered agents and prosecutors to "peel back the onion," working backward from the hijackers to anyone associated with them.
Agents, Chertoff said, should "use whatever means legally available" to hold immigrants connected with the investigation. Chertoff, the inspector general found, told a top deputy: "We have to hold those people until we find out what was going on."
Chertoff's order led to the detention of "aliens on immigration violations that generally had not been enforced," Fine's report noted. A number of arrests were based on false tips and "some appeared to have been arrested more by virtue of chance encounters . . . rather than any genuine" terrorism connection.
"How did he go from the man who fought profiling to the architect of a roundup of Arab and Muslim men?" asked Christopher Anders, legislative counsel to the American Civil Liberties Union. "The bottom line was that they rounded up all these men in secret and not one was charged with terrorism."
Chertoff and his defenders counter that this is an incomplete accounting.
"In the wake of September 11, the government quite self-consciously avoided the kinds of harsh measures common in previous wars," Chertoff wrote in a December 2003 essay for the Weekly Standard. "During the nineteenth and well into the twentieth centuries, the government responded to domestic violence with a panoply of extraordinary measures, including suppression of criticism; separate treatment of noncitizens; arrests and searches without warrants; and preventive detention."
McCarthy, the former U.S. attorney, spoke of a disorienting new world. "Mike was dealing with a paradigm shift -- the goal wasn't to build a case, it was to prevent another attack," he said. "It would have been suicidal to release people before we could check them out."
The problem, McCarthy said, is that prison officers undermined this strategy by beating and degrading detainees. "Mike had to assume that people would behave," he said. "We didn't factor in that some prison guards would kick the crap out of them."
Some advocates say the profiling and detentions sowed fear in the Muslim community, making people less likely to step forward with tips. "In hindsight, you can see it's a disaster to treat people like criminals," said Dalia Hashad, the ACLU's Arab, Muslim and South Asian advocate.
Chertoff has said, of late, that some tactics need reconsideration. In 2003, he gave a speech at Rutgers Law School on the pendulum swing of American legal history. In wartime, he said, the courts grant much leeway to the executive branch. So Abraham Lincoln suspended habeas corpus and the Roosevelt administration herded Japanese Americans into camps during World War II.
Inevitably, the federal courts insist on a more exacting constitutional standard. It is hard not to hear in Chertoff's analysis an echo of his own experience.
"In the heat of the battle the decision-maker has to rely on foresight, because he has no hindsight," Chertoff said. "But, at the same time, when hindsight does become available, we would be foolish if we did not take advantage of its lessons for the future."
