Michael Chertoff is an odd choice to be the new secretary of homeland security. George W. Bush spent much of last year's presidential campaign lambasting Sen. John Kerry for viewing terrorism as a law-enforcement problem. Now, on the eve of his second term, Bush picks a lawyer as his counterterrorism chief.
Before Bush made the announcement this morning, Chertoff was a judge of just 18 months' standing on the U.S. Court of Appeals for the 3rd Circuit, in New Jersey. Before that, he ran the criminal division of John Ashcroft's Justice Department, where he prosecuted several terrorist-related cases. By all accounts, he's a very smart, skilled lawyer. But is he the sort of person who should be running the Department of Homeland Security? What does his appointment suggest about President Bush's conception of the department and what it should be doing?
The main purpose of DHS, one would think, is to protect U.S. territory from terrorist attack. The main role of the secretary of DHS is to integrate, or at least coordinate, the vast, sometimes conflicting, array of governmental entities that share this mission. Last week, I wrote a column arguing that since DHS is essentially a gigantic merger-and-acquisition enterprise—fusing 23 federal agencies with a combined budget of $40 billion and a payroll of 183,000 employees into one department—it should be run by a corporate manager with a flair for M&As. In an informal survey, Slate readers picked Jack Welch, the ferocious ex-CEO and chairman of General Electric, as the ideal candidate for the job.
President Bush ignored our advice, and that's fine. (What else is new?) But by picking Chertoff, the president seems to be signaling that he views homeland security as an adjunct of the Justice Department. That's a part of its business, but not the most vital one.
Chertoff enters the position with a number of advantages. Certainly he's a far better choice than Bush's first pick, the ill-starred Bernard Kerik, and more astute than his predecessor, Thomas Ridge. Having been vetted by the Senate for two previous jobs, he will likely sail through confirmation. He knows a lot about the issues and has thought about them on a high level. He knows the inner workings of the Justice Department and the FBI. As a U.S. attorney in New York and New Jersey, in the 1980s and '90s, he has dealt directly with local law enforcement.
On the other hand, he has never run a large organization, managed a big budget, or dealt with larger issues of national security, transportation, infrastructure, or technology. There is also reason to wonder if Chertoff might wind up less a dispassionate analyst than a partisan cheerleader. In the mid-'90s, he worked as the Republicans' counsel on Al D'Amato's Senate Whitewater Committee. He made public appearances on behalf of Sen. Robert Dole's presidential bid, attacking Clinton on moral charges that the committee had raised (but not proved). And even in those realms of homeland security where Chertoff has clear expertise, his position on key issues is unclear or contradictory. So, when he comes up for confirmation, here are a few questions that senators should ask.
—As assistant attorney general, you argued in federal court that Zacarias Moussaroui, the suspected "20th hijacker" in the 9/11 plot, did not have the right to call as a witness a detainee already locked up in Guantanamo, noting that 6th Amendment rights do not extend to "enemy combatants." Yet after you left the Justice Department, at a judicial conference in Philadelphia in late 2003, you said that the United States should develop a general policy that would prevent arbitrary, indefinite detainment and offer enemy combatants some form of judicial review. How do you reconcile these two positions? What sorts of changes in the legal system do you have in mind?
—While at Justice, as early as November 2001, you argued against the Bush administration's policy of establishing military tribunals to try terrorists, saying the criminal-justice system was fully up to the task. Will you push for this view from your new Cabinet-level post, especially given the tribunals' failure to prosecute terrorists?
—What do you see as the main weaknesses in DHS, especially in the non-judicial area? Do you have any ideas of how to repair them? Will you pledge to appoint as your deputy secretary someone with strong managerial experience? Maybe one of Jack Welch's minions could step in as Chertoff's No. 2.