Since his nomination for Secretary of Homeland Security was announced, critics of Judge Michael Chertoff have pounced on many of the legal positions taken by the first Bush administration as reasons to oppose Chertoff himself. This was, after all, the man who headed the Department of Justice's criminal division, opining on many of the Bush policies; the man who went so far as to personally litigate several of the most hotly contested motions in the stalled prosecution of Zacarias Moussaoui. Chertoff even testified before Congress that "every step that we have taken satisfies the Constitution and federal law as it existed both before and after September 11th," a questionable factual assertion given the several subsequent court rulings that have sharply criticized these very tactics as unlawful. Chertoff also purportedly advised CIA officials that they could use coercive interrogation tactics without fear of criminal prosecution. If anyone should bear personal responsibility for the administration's fitful efforts to apply the law to the war on terrorism, it is Chertoff—perhaps even more so than the president's consigliere, Alberto Gonzales.
And yet, such criticisms, including some poundings in the weekend newspapers, fail to tell the story of how Chertoff worked within the Bush administration to moderate its policies. Nor do they explore the difference between Chertoff's responsibilities at the Justice Department and, say, Gonzales' duties at the White House. Contrary to conventional wisdom, Chertoff and former Attorney General John Ashcroft actually pushed a moderate agenda within the administration—promoting the idea that some legal process (albeit not much) was necessary for designating and holding enemy combatants. Like Attorney General Francis Biddle during World War II—who advised FDR against interning the Japanese and taking other extreme wartime measures that contravened the Constitution—Chertoff and other senior Justice Department officials sought to stretch the conventional legal paradigm of crime to terrorism in ways that would keep intact many of the Constitution's basic provisions. And though they were ultimately overruled by the White House, Chertoff and one of his colleagues became the first to reject the administration's extreme position that it had unfettered and unreviewable power to detain combatants (including U.S. citizens) indefinitely and without due process.
It is easy to forget today how this nation felt in the first weeks after Sept. 11, but such context is critical for evaluating how Chertoff and his colleagues at the Justice Department responded to this cataclysmic event. The pressing questions were whether more al-Qaida "sleeper cells" had already infiltrated the United States and when their next attack would come. Fortunately, it never did. In hindsight, we might say the Justice Department went overboard with its approach—rounding up thousands of immigrants from the Middle East, bending existing laws to the breaking point (and beyond) to justify their detention, interrogation, and sometimes, deportation. However, we should exercise caution in condemning this approach. After Sept. 11, an event that represented a massive failure of the state to protect its citizens from an external threat, it was only natural for the government—and specifically the law enforcement arm of the government—to err on the side of aggressiveness in using the law to combat terrorism.
Chertoff pushed the envelope when it came to the use of these tools—perhaps even beyond what the laws themselves would allow. But that is what it means to be an aggressive prosecutor. The old saying that "you can indict a ham sandwich" holds a lot of truth; prosecutors have broad discretion to charge and prosecute crimes in good faith, even where an acquittal ultimately results. Indeed, many citizens expect prosecutors to aim high with their indictments; to seek a first-degree murder conviction in a tough case, for example, and let the jury decide whether the facts support such a charge or not. Our adversarial criminal justice system plays out this way every day in federal, state, and local courts across the country. Zealous prosecutors file criminal complaints that are often too sweeping; defense attorneys battle back to win acquittal or, at the very least, reduce those charges to something less Draconian. As head of the criminal division, Chertoff simply fit into this paradigm—instructing his federal prosecutor foot soldiers to prosecute every suspected terrorist (and ham sandwich) they could find to the fullest extent of the law, and then some.
Historically, the Justice Department has flexed its prosecutorial muscle by using technical violations of the law to snag some of America's worst enemies. Federal prosecutors famously convicted mobster Al Capone on charges of tax evasion when no prosecutor in the country was able to make a murder charge stick. Today, under the Project Safe Neighborhoods program, federal prosecutors use a coterie of criminal statutes to aggressively prosecute criminals who might otherwise be tried by state and local courts. The idea is to leverage federal criminal laws with substantially tougher sentences than their state law counterparts—such as the federal statute prohibiting felons from having a firearm—even though these "technical" violations may not actually represent the worst kinds of criminal offenses. (Picture a hard-core gang member with three recent murders to his credit being tried in federal court for merely having a gun in his waistband, because the federal charge is easier to prove and carries a 10-year minimum sentence, and you get the gist of this effort.)
Chertoff merely inherited this long tradition of aggressive prosecutorial conduct and applied it to the terrorist organization which attacked the United States in late 2001. He was, in other words, just being a very good prosecutor.
If anything, we should be grateful that America had a prosecutor like Chertoff, who was willing to make his cases in federal court against alleged terrorists like Moussaoui. Other senior lawyers within the Bush administration, including Gonzales and vice presidential counsel David Addington, pushed for extralegal measures, such as the use of military commissions to try those alleged terrorists. These lawyers took and maintained the extraordinary position that the president could detain anyone he wanted at will, and that it would be unconstitutional for the courts to even review such a decision. In hindsight, after the Supreme Court's twin rebukes to the White House in Rasul v. Bush and Hamdi v. Rumsfeld, Chertoff's position looks far wiser. Although the Moussaoui case has proven a prosecutorial debacle, it has also presented the opportunity for myriad sticky legal issues to percolate up through the courts, so judges could grapple with tough legal questions. The White House approach saw no place for judges at all.
Chertoff's zealous prosecutions did lead to some injustices, most notably the forcible deportation of immigrants guilty of nothing more than technical immigration violations, previously ignored by the government. But in pursuing such prosecutions, he subjected those trials to the time-honored principles and procedures of our civilian court system. It is not surprising, therefore, that Chertoff and former Assistant Attorney General Viet Dinh, credited with writing much of the USA Patriot Act, were the first to publicly repudiate the administration's position that it could detain combatants indefinitely without any legal process or judicial review. Both men urged that the country needed a more "sustainable architecture" for handling the designation and adjudication of enemy combatants.
There remain a number of unanswered questions about Judge Chertoff—most notably, whether he has the managerial skill and political acumen to lead a department whose organizational charts look like wiring diagrams for the space shuttle. But America's had a politician at the helm of Homeland Security for the past two years, and it's not clear that has done us much good. Maybe what America needs now is a tough prosecutor like Chertoff, who's aggressively gone toe-to-toe with both the mob and the Bush administration and emerged victorious nearly every time.