ACLU Examines Chertoff's Troubling Civil Liberties Record; Nominee Had Key Role In Controversial Post- 9/11 Policies

January 31, 2005 12:00 am

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WASHINGTON – In anticipation of this week’s confirmation hearings, the American Civil Liberties Union today released a review of the troubling civil liberties record of Michael Chertoff, who has been nominated to head the Department of Homeland Security.

Although as a matter of policy the ACLU does not endorse or oppose nominees for cabinet-level positions, it does examine and publicize nominees’ civil liberties records, as it has done with Attorney General nominees Alberto Gonzales and John Ashcroft.

“The Bill of Rights is not a suggestion for how our government operates — it’s the foundation,” said Christopher E. Anders, an ACLU Legislative Counsel. “Chertoff has an alarming record of pushing – an in some cases breaching – what is permissible under the Bill of Rights in the name of national security. The new head of the one of the nation’s largest collection of law enforcement agents must have an unwavering commitment to keep us both safe and free.”

The New York Times reported over the weekend that Chertoff “advised the Central Intelligence Agency on the legality of coercive interrogation methods on terror suspects under the federal anti-torture statute.” The ACLU has called on Attorney General nominee Alberto Gonzales, if confirmed, to appoint a special counsel to investigate and prosecute any criminal acts by civilians in the torture or abuse of detainees by the U.S. Government.

“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’re being rewarded,” Anders said. “Enlisted men and women and low-ranking military officers should not be the only persons held responsible if civilians also engaged in misconduct.”

When he was assistant attorney general in charge of the Justice Department’s Criminal Division, Chertoff 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, and the misuse of the material witness statute to detain individuals when law enforcement could not meet criminal evidentiary requirements for lawful arrest.

The ACLU did note some positive points in Chertoff’s civil liberties record, including an implicit critique of the administration’s assertion of authority to detain citizen “enemy combatants” indefinitely and without any judicial review, and his work as pro bono counsel to the New Jersey Senate Judiciary Committee to end racial profiling on that state’s highways.

The two-year-old Department of Homeland Security controls a veritable alphabet soup of national security agencies, many of which directly impact civil liberties policies. DHS includes the Transportation Security Administration, U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement and the United States Secret Service. As head of that department, the Secretary has wide-reaching control over the civil liberties of American citizens and immigrants alike.

“Senators must closely examine Chertoff’s record to determine in what manner he will act to protect our nation,” Anders added. “His past performance so far is troubling, and must be examined.”

The ACLU’s review of Chertoff’s civil liberties record can be read at:
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