Secretary of Homeland Security Designate Michael Chertoff and Civil Liberties
To: Interested Persons
From: American Civil Liberties Union, Washington Legislative Office
Re: Michael Chertoff and Civil Liberties
Date: Jan. 28, 2005
Introduction
Michael Chertoff, President George W. Bush's nominee to succeed Tom Ridge as chief of the Department of Homeland Security, has an accomplished record as a jurist and attorney.
He also, however, has been an active and uncompromising proponent, even before 9/11, of national security policies that push, or breach, the outer limits of what is permissible under the Bill of Rights.
Since 9/11, moreover, he has been an even stronger supporter of these policies, especially during his service as assistant attorney general in charge of the Justice Department's ("DOJ") Criminal Division. Chertoff, for instance, was a member of the attorney general's inner circle that vetted and helped design the original USA Patriot Act. He also reportedly came up with the idea of revising internal guidelines at DOJ to allow the FBI to send undercover agents into religious, social and political gatherings without evidence of wrongdoing.
And, perhaps most significantly, he was the real force behind the pretextual detention of hundreds of Arab and Muslim men during the 9/11 investigation using minor immigration violations that would not normally warrant detention.
Although the American Civil Liberties Union, as a matter of long-standing policy, cannot endorse or oppose cabinet nominees, it does have an obligation to investigate and publicize the civil liberties records of nominees to positions with great sway over fundamental freedoms. Few positions are as significant in this context as the Homeland Security Secretary.
DHS and Civil Liberties
While it is only two-years-old, the Homeland Security Department controls a veritable alphabet soup of national security agencies, many of which directly impact civil liberties policies today. These include:
In addition, the Homeland Security Department, given its youth and the ever-present threat of international terrorism, may expand its authority in the coming years, either through legislation, bureaucratic wrangling or force of leadership. Most notably, given the limited intelligence function granted DHS, the replacement of the Director of Central Intelligence with a new, cabinet-level Director of National Intelligence could also affect the mandate and power of DHS.
As such, the constitutional demands on the Homeland Security Secretary are similar to those on the attorney general: to enforce the law??s, protect public safety and uphold the Constitution. None of these mandates are expendable, no matter what the "threat matrix" shows.
The following memorandum details the ACLU's points of concern in Chertoff's public record, and suggests avenues of inquiry for his confirmation hearing. We hope the Senate will explore these and other matters before voting to confirm Chertoff.
The 9/11 Detainees
Immediately after the 9/11 attacks, the FBI launched the most extensive criminal investigation in American history, called "PENTTBOM," an acronym for the Pentagon-Twin Towers-Bombing. One of the government's investigative tactics, formulated at the highest levels of the Department of Justice,[1] involved the aggressive, pretextual detention of persons of interest to the investigation.[2]
Of all the civil liberties infringements since 9/11, including the Patriot Act and other highly visible controversies, the events surrounding the PENTTBOM investigation detentions are the most detailed and documented. Author and journalist Stephen Brill, moreover, reported that Chertoff was given primary authority over these detentions, and "would make all decisions on who was released and even who was held in solitary."[3] Brill names former INS Commissioner James Ziglar as a source, along with two people who were in a series of meetings with Attorney General John Ashcroft, Deputy Attorney General Larry Thompson and Chertoff.[4]
This is obviously a key topic for further Senate inquiry. To that end, it is worth summarizing the findings of the 198-page June 2003 DOJ inspector general report, which examined the detention controversy in great detail.
The Origins of the Detainee Roundup
According to the inspector general's report, almost 1,200 citizens and non-citizens were detained and questioned in the two months following the attacks. DOJ used a variety of legal authorities to justify these detentions, including material witness warrants (discussed in more detail below) and criminal charges. Most non-citizens, however, were held for civil immigrations violations. In total, according to the report, 762 male immigration detainees were placed on an "INS Custody List" in the 11 months after the attacks.[5]
Notably, because immigration charges are civil, not criminal, the detainees were not entitled to government-appointed counsel.
None were ever charged with a terrorism-related crime.[6]
The vast majority of these 762 men were Middle Eastern, South Asian or North African; close to half were from Pakistan or Egypt.[7] Most were detained in New York and New Jersey,[8] by FBI-led terrorism task forces following up leads that were often "quite general in nature."[9]
An FBI agent interviewed by the IG's office, for instance, said that as a matter of policy any person with an immigration violation who was in the company of an individual identified in a lead would be taken into custody.[10] Also, aside from such wrong-place-at-wrong-time arrestees, the individualized leads that prompted detention as a "September 11 detainee" were also frequently vague and indeterminate. For instance:
Inconsistencies in the Justification for the Detentions
Once in custody, all but a few of these detainees were held for minor civil immigration violations, including visa overstays, entering the country without inspection or invalid documentation.[15] DOJ officials have asserted that holding these men under such charges was not out of the ordinary. Chertoff, for instance, told the Senate Judiciary Committee in November 2001 that "nothing that we are doing differs from what we do in the ordinary case or what we did before September 11th."[16]
Alice Fisher, Chertoff's deputy at the time, made comments to the IG's office that bring this statement into question. "[T]he Department was detaining aliens on immigration violations that generally had not been enforced in the past," she said.[17] Chertoff, moreover, said more recently that, "No one has the right not to be prosecuted for breaking the law, even if the law is rarely enforced."[18] Brill reports that senior DOJ officials, including Chertoff, were operating under the premise that taking the detainees in custody, "wasn't to prosecute them but to prevent them, which meant that violating the kinds of rules pertaining to searches and interrogation that would get evidence thrown out of courts wasn't that important."[19]
The IG report finds, "It is unlikely that most if not all of the individuals arrested would have been pursued by law enforcement authorities for these immigration violations but for the PENTTBOM investigation."[20]
Brill describes this investigative sea change in more dramatic terms. In response to FBI Director Robert Mueller's concerns that the FBI was not used to detaining persons against whom they had no real evidence of criminality, Attorney General Ashcroft replied that the new paradigm of "prevention" required the FBI to "round up anyone who fit the profile."[21]
Indeed, Brill reports that Ashcroft actually instructed FBI Director Mueller to "question and question hard," "any male from eighteen to forty years old from Middle Eastern or North African countries whom the FBI simply learned about."[22] Chertoff was then to take any of these men with civil immigration infractions into custody.[23]
Procedural Problems While in Custody
In addition to the vague grounds for taking many of the detainees into custody, the IG report highlighted a series of serious procedural deficiencies in the DOJ's detention policy.
Most notably:
Abusive Conditions of Confinement
The conditions of confinement were also criticized by the IG's report, though it does not say that Chertoff was directly involved or responsible for the conditions criticized. As mentioned though, he was reportedly the DOJ official responsible for the pretextual detentions in the first place.
The 762 detainees examined by the report were split among various detention facilities based upon which category of "interest" they were put into. Those classified as "high interest" were held in high-security prisons across the country. The IG report looks in detail at the confinement experience at the Metropolitan Detention Center ("MDC") in Brooklyn, New York, which held 84 of the 184 high interest detainees. Those non-citizens held on immigration violations and classified as "of interest" or of "undetermined interest" were held at lower-security facilities.[33] Chapter Eight of the report examines the detentions at the Passaic County Jail in New Jersey, which held 400 of the 762 detainees.[34]
Significantly, the report concludes that the FBI criteria for designating detainees as "high interest," "of interest" or "undetermined interest" were ad hoc and arbitrary. Typically, the arresting agent would make this determination.[35]
Regarding the conditions of confinement in Brooklyn, the report concludes:
Although the IG report found that the Passaic detentions were "significantly less harsh"[44] than those at the MDC, the detainees there still had to contend with the procedural deficiencies that unduly lengthened their detention. The report also faulted the INS for not visiting the facility more often to assess the conditions of confinement.[45]
Chertoff's Knowledge of the Clearance Delays
It is worth mentioning that Chertoff is mentioned several times throughout the IG report. According to the report, an attorney in the Terrorism and Violent Crime Section ("TVCS") of the DOJ's Criminal Division, which Chertoff led, raised concerns with his superiors in late September 2001 that the FBI was devoting insufficient resources to clear the detainees in a timely manner.[46] In response, a senior TVCS official drafted a memorandum for Chertoff's signature requesting the deployment of at least one FBI agent per field office to promptly interview detainees held in that district, and nothing that only one person was assigned