Chertoff set to face Senate panel

Confirmation process of nominee for homeland security chief starts today

February 02, 2005|By Robert Little | Robert Little,SUN NATIONAL STAFF

Michael Chertoff, President Bush's second pick to become the next secretary of homeland security, will enter his confirmation hearing today armed with a resume that seems handcrafted to counter the shortcomings of the failed nominee before him - two honors degrees from Harvard; a Supreme Court clerkship; tours as a federal judge; a U.S. attorney; and a top official in the Department of Justice.

Yet revelations about Chertoff's role in advising the CIA on interrogation techniques and crafting the Patriot Act have ensured that his hearing today will focus on many of the same issues that dogged other Bush Cabinet nominees this year - terrorism, civil rights and America's evolving policies on torture.

Chertoff, who was nominated shortly after first choice Bernard Kerik withdrew from consideration amid questions about his fidelity and the immigration status of a household employee, is expected to enjoy relatively easy confirmation. His history of bipartisan support dates at least to the early days of the Clinton administration, when he was the only U.S. attorney from the previous Republican regime who wasn't fired.

But like other high-level officials in the post-9/11 Bush administration, Chertoff also is linked closely with some of the government's more controversial policies concerning the treatment of terrorism suspects and foreign detainees.

Similar to the reception Secretary of State Condoleezza Rice and attorney general candidate Alberto Gonzales received before Senate nominating committees this year, Chertoff is expected to be a target of pointed questioning, particularly from Democrats and other critics of the administration's aggressive stance toward the treatment of suspected terrorists.

As the head of the Justice Department's criminal division, Chertoff orchestrated an FBI investigation after the 2001 terrorist attacks that led to the monthslong detentions of hundreds of Muslim men without formal charges or access to lawyers. He was also a top proponent for the Patriot Act, elements of which granted police investigators more power to conduct searches and detain suspects without a warrant.

The extent to which Chertoff consulted with the CIA as the agency sought to define the legal boundaries of torture when interrogating terrorism suspects has been debated in Washington since the claims surfaced last weekend in The New York Times. Chertoff doesn't deny giving counsel to the CIA.

But unlike Gonzales, whose confirmation as attorney general is still hung up in Congress because of his ties to a memo that seemed to authorize some torture techniques, Chertoff's deliberations about torture could help his case, said Michael F. Noone Jr., a professor of law at the Catholic University of America. In contrast to Gonzales, Chertoff seems to have taken a measured and deliberate legal approach to the topic, he said.

"I suppose there are going to be senators who will say `You should have resigned in protest, those questions are un-American,'" said Noone, a retired Air Force lawyer. "But it can also be seen as a positive that here's an advisor who is concerned about the rule of law. And he's the right guy to ask."

White House spokesman Scott McClellan defended Chertoff yesterday, and said the nominee simply encouraged interrogators, through the CIA's office of legal counsel, to identify the line between what is right and what is wrong and to "not get close to that line."

Still, senators are expected to explore the issue deeper. The story in the Times, quoting anonymous sources, said one of the interrogation methods that Chertoff approved was a technique involving strapping a subject down and dunking him or her in water - sometimes referred to as "waterboarding."

"Of course, it's responsible to have that conversation, but the problem is, we don't know what he said," said Michael Ratner, a human rights lawyer and president of the Center for Constitutional Rights.

Chertoff, 51, the son of an influential rabbi, has earned a reputation throughout the federal government for hard work and a sharp legal mind. He is leaving a lifetime judgeship on the 3rd U.S. Circuit Court of Appeals to return to government service, and Noone said he is watching Chertoff closely because he considers him a strong candidate for appointment to the Supreme Court.

Ratner and others say their concerns about Chertoff stem not from his long career as a prosecutor and lawyer but from his more recent association with the Bush administration and the torture and civil rights scandals that they think have tarnished most of the government's top-level lawyers and law-enforcement leaders.

"Top-level officials - including Chertoff - that were involved in developing or applying policies that paved the way for the horrific abuses are not being sanctioned, instead they are being rewarded," Christopher E. Anders, legislative counsel for the American Civil Liberties Union, said in a statement.

Chertoff spent the days leading up to today's hearing touring the capital and meeting with lawmakers who could play key roles in his confirmation and, if approved, in his tenure as homeland security secretary.

If he succeeds Tom Ridge to become the second secretary of homeland security, Chertoff would preside over a fledgling department that is still defining its role in protecting the country's borders and defending against terrorism.

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