February 01, 2005, 7:53 a.m.
Secretary in Waiting
Michael Chertoff’s assets are well-suited to Homeland Security priorities.

“Interrogation” has become such a hot-button word in Washington that having your name appear within five words of it in a news story is enough to make you controversial. Thus the last-minute fuss over federal-appeals-court judge Michael Chertoff's nomination to head the Department of Homeland Security. News reports have breathlessly relayed the fact that Chertoff may have had a role in reviewing the administration's interrogation policy when he led the Department of Justice's criminal division, as if this itself were a kind of scandal. Tomorrow, Democrats will likely sharply question Chertoff at his confirmation hearing on this score, as well as challenge him to defend the Bush administration's response to 9/11. Chertoff should welcome the opportunity to explain tactics that were appropriate, sensible, and extremely measured by historic standards.

On interrogation, Democrats on the Senate Homeland Security and Government Affairs Committee will surely repeat the unfounded claim that the now-withdrawn August 2002 memorandum prepared by DOJ's Office of Legal Counsel (OLC), which narrowly defined the legal concept of torture, was a license for Spc. Charles Graner and others to abuse prisoners at Abu Ghraib. That memo, however, was never a statement of administration policy, which has expressly barred torture. In any event, it was not written by Chertoff or his subordinates at DOJ's criminal division. The White House has maintained that responsibility for advising on the legality of interrogation methods belonged with OLC, not the criminal division. A New York Times report on this subject indicates that, to the extent he may have weighed in at all, Chertoff actually discouraged the use of methods that might run afoul of anti-torture laws.

Another common Democratic complaint involves the detention of 700 immigrants following the 9/11 attacks, but this is a classic combination of misreporting and Monday-morning quarterbacking. After 9/11, it was widely thought that another attack was imminent and it was crucial both to find out who was behind the suicide hijackings and to neutralize other potential terrorists. Those detained on the belief that they had relevant information were all illegal aliens. Their violation of the immigration laws was a perfectly valid reason for detaining them until it could be ascertained whether they presented a real security threat, and the fact that most of them were not ultimately prosecuted for terror-related crimes hardly means either their detention or the prosecution of their immigration crimes was illegitimate. The fact that some detainees may have been abused by prison guards, as a later investigation suggested, tells us more about the guards than the wisdom of the detentions in the first place.

Judge Chertoff is an excellent selection for DHS, whose his nomination understandably drew bipartisan plaudits when it was announced. Broadly praised for his intellect and record of public service, this Harvard-educated former Supreme Court law clerk was a top-notch federal prosecutor, counsel to the Senate Banking Committee during the Whitewater investigation, a highly successful private attorney, and ultimately led the Justice Department's criminal division before being named by President Bush to the U.S. Court of Appeals for the Third Circuit in 2004. The overwhelming vote in favor of his confirmation then marked the third time the Senate had consented to his assumption of high office.

Chertoff's assets are well-suited to DHS's priorities: organizational skills needed to corral a sprawling agglomeration of agencies into a cohesive department; extensive knowledge of the federal bureaucracy and Capitol Hill needed to make DHS an effective interagency player; an understanding of the critical role intelligence must play in thwarting national-security threats; and first-hand familiarity with state and local first-responders with whom federal authorities must coordinate in times of crisis.

DHS, meanwhile, is struggling through retirements that have depleted its senior ranks at a critical time. Judge Chertoff should be confirmed as expeditiously, and after taking as few tendentious political potshots, as possible.

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