Michael Chertoff - Unconstitutional & Incompetent

Image Source - Whitehouse.gov

[Michael Chertoff, who heads a federal agency whose very name comes from fascism, is being touted as the likely replacement for Alberto Gonzales]

WIKIPEDIA - Chertoff is the co-author, along with Viet Dinh, of the USA PATRIOT Act, signed into law October 26, 2001.

As head of the Justice Department's criminal division, he advised the Central Intelligence Agency on the outer limits of legality in coercive interrogation sessions.

Most recently Chertoff has managed the FEMA response to Hurricane Katrina. On September 3, 2005, several days after the initial strike of the hurricane many indicated severe dissatisfaction with the response from Washington, citing the delay between the general knowledge of the storm's likely impact and any effective federal response. Louisiana Governor Kathleen Blanco declared a state of emergency on August 26; a week later, New Orleans remained in a state of chaos.

While defending the federal government's response in a September 3, 2005 press conference, Chertoff asserted "That 'perfect storm' of a combination of catastrophes exceeded the foresight of the planners, and maybe anybody's foresight."

http://en.wikipedia.org/wiki/Michael_Chertoff

WIKIPEDIA - Eight states (Alaska, California, Colorado, Hawaii, Idaho, Maine, Montana and Vermont) and 396 cities and counties (including New York City; Los Angeles; Dallas; Chicago; Eugene, Oregon; Philadelphia; and Cambridge, Massachusetts) have passed resolutions condemning the Act for attacking civil liberties. Arcata, California was the first city to pass an ordinance that bars city employees (including police and librarians) from assisting or cooperating with any federal investigations under the Act that would violate civil liberties (Nullification). . . Pundits question the validity of these ordinances, noting that under the Constitution's supremacy clause, federal law overrides state and local laws. However, others have opined that the federal employees, in using such procedures for investigations, violate the Constitution's clauses in the fourth amendment, and in these cases, the Constitution overrides the USA PATRIOT Act's provisions.

http://en.wikipedia.org/wiki/USA_PATRIOT_Act

ELAINE CASSEL, COUNTERPUNCH, 2003 - I have been watching John Ashcroft so long that it is getting to be a little boring. . . But now I have a new gremlin to watch, someone who is as intent on undermining the law and Constitution as Ashcroft. I am referring to the man behind the criminal prosecution of terrorists, Michael Chertoff. Chertoff, former chief of the Justice Department's criminal division, and a scary looking guy if ever there was one, has been elevated to the level of Court of Appeals judge--the 3rd Circuit Court of Appeals, whose jurisdiction includes Delaware, New Jersey, and Pennsylvania. What's so scary about Michael? Well, besides having no judicial experience and being a right-ring radical who does not believe in the Constitution and wants to rewrite federal law and rules of procedure on an ad hoc, case by case basis, as it suits him, nothing I guess. . .

Keep your eye on Michael Chertoff. As bad for the law and Constitution as many of Bush's judicial appointees are, Chertoff has been the architect of prosecutions in the "war on terror." And he may have big changes in mind for you, me, the courts, and the Constitution.

http://www.counterpunch.org/cassel06112003.html

INDYBAY, 2005 - Post 9/11, Chertoff played a key role limiting or eliminating civil rights and liberties protections by promoting actions such as using 'material witness' warrants to incarcerate people of Middle Eastern and South Asian descent, interviewing thousands of Middle Eastern and South Asian men who entered the U.S. lawfully before and after the 9/11 attacks, denying a defendant facing the death penalty the fundamental right to face and question his accusers, and holding suspects indefinitely without counsel as enemy combatants. Some have described Mr. Chertoff as 'the driving force behind the Justice Department's most controversial initiatives in the war on terrorism.'" Despite this record he was approved by approved as head of Homeland Security on February 15 in a 98-0 vote."

http://www.indybay.org/newsitems/2005/03/07/29722.php

MSNBC - Grilled about actions leading up to Katrina Lawmakers grilled Chertoff about why he stayed home the Saturday before Katrina made landfall on Monday, Aug. 29, why he made a previously scheduled trip to Atlanta that Tuesday, and why he didn't act more decisively to speed up the federal response.

"I don't get a sense that your heart was in this, frankly," said Rep. Christopher Shays, R-Conn.

Chertoff said he relied on former FEMA Director Michael Brown as the "battlefield commander" and focused his efforts on making sure FEMA had all the resources it needed. He said he stayed in telephone contact with the office while at home and during the Atlanta trip. . .

http://www.msnbc.msn.com/id/9754906/

DEMOCRATS.COM - The federal official with the power to mobilize a massive federal response to Hurricane Katrina was DHS Sec. Michael Chertoff, not the former FEMA chief who was relieved of his duties and resigned earlier this week, federal documents. . . Even before the storm struck the Gulf Coast, Chertoff could have ordered federal agencies into action without any request from state or local officials. FEMA chief Michael Brown had only limited authority to do so until about 36 hours after the storm hit, when Chertoff designated him as the "principal federal official" in charge of the storm. As thousands of hurricane victims went without food, water and shelter in the days after Katrina's early morning Aug. 29 landfall, critics assailed Brown for being responsible for delays that might have cost hundreds of lives. But Chertoff - not Brown - was in charge of managing the national response to a catastrophic disaster, according to the National Response Plan, the federal government's blueprint for how agencies will handle major natural disasters or terrorist incidents. An order issued by President Bush in 2003 also assigned that responsibility to the homeland security director.

But according to a memo obtained by Knight Ridder, Chertoff didn't shift that power to Brown until late afternoon or evening on Aug. 30, about 36 hours after Katrina hit Louisiana and Mississippi. That same memo suggests that Chertoff may have been confused about his lead role in disaster response and that of his department. . .

Chertoff's Aug. 30 memo for the first time declared Katrina an "Incident of National Significance," a key designation that triggers swift federal coordination. The following afternoon, Bush met with his Cabinet, then appeared before TV cameras in the White House Rose Garden to announce the government's planned action.

That same day, Aug. 31, the Department of Defense, whose troops and equipment are crucial in such large disasters, activated its Task Force Katrina. But active-duty troops didn't begin to arrive in large numbers along the Gulf Coast until Saturday.

White House and homeland security officials wouldn't explain why Chertoff waited some 36 hours to declare Katrina an incident of national significance and why he didn't immediately begin to direct the federal response from the moment on Aug. 27 when the National Hurricane Center predicted that Katrina would strike the Gulf Coast with catastrophic force in 48 hours. Nor would they explain why Bush felt the need to appoint a separate task force.... read the whole article.

http://www.democrats.com/node/6129

AP, 2006 - In dramatic and sometimes agonizing terms, federal disaster officials warned President Bush and his homeland security chief before Hurricane Katrina struck that the storm could breach levees, put lives at risk in New Orleans' Superdome and overwhelm rescuers, according to confidential video footage.

Bush didn't ask a single question during the final briefing before Katrina struck on Aug. 29, but he assured soon-to-be-battered state officials: "We are fully prepared."

The footage - along with seven days of transcripts of briefings obtained by The Associated Press - show in excruciating detail that while federal officials anticipated the tragedy that unfolded in New Orleans and elsewhere along the Gulf Coast, they were fatally slow to realize they had not mustered enough resources to deal with the unprecedented disaster. . .

A relaxed Chertoff, sporting a polo shirt, weighed in from Washington at Homeland Security's operations center. He would later fly to Atlanta, outside of Katrina's reach, for a bird flu event.

One snippet captures a missed opportunity on Aug. 28 for the government to have dispatched active-duty military troops to the region to augment the National Guard.

Chertoff: "Are there any DOD assets that might be available? Have we reached out to them?"

Brown: "We have DOD assets over here at EOC (emergency operations center). They are fully engaged. And we are having those discussions with them now."

Chertoff: "Good job."

In fact, active duty troops weren't dispatched until days after the storm. And many states' National Guards had yet to be deployed to the region despite offers of assistance, and it took days before the Pentagon deployed active-duty personnel to help overwhelmed Guardsmen. .

HISTORIAN DAVID BRINKLEY - Clearly Chertoff didn't just make a mistake during the first days of Katrina--he did virtually nothing at all, which was by far the greater sin. With the hurricane approaching Louisiana and Mississippi, Chertoff never even went to his office, staying at home for the crucial forty-eight hours before landfall. Most astonishing of all, as Katrina ravaged nearly 29,000 square miles of America on Monday, Chertoff didn't even speak to Brown until 8 p.m. When CNN, Fox News, ABC News, and the rest started reporting the horrific flooding in New Orleans due to the levee breaks, Chertoff scoffed, dismissing media reports of human suffering as melodrama. With a cavalier wave of the hand, according to the Washington Post, Chertoff downplayed the bleak reports as 'rumored or exaggerated.' Worse yet, Chertoff insisted that Brown and FEMA as a whole were doing an "excellent" job. Evan Thomas of Newsweek was closer to the mark when in his seminal article 'How Bush Blew It,' he declared that FEMA was 'not up to the job.'

Chertoff 's inaction cost lives. FEMA had been brought into the gagantuan Department of Homeland Security after 9/11; now it was clear somebody needed to pull it out again. It was a huge black eye for Homeland Security. The Harvard prosecutor performed just as poorly as the Oklahoman--even worse. Brown, to his credit, kept trying to get the Bush administration's full attention. Chertoff had assumed his important cabinet position with big talk about keeping Americans safe from man-made and natural disasters. He was a principal engineer of the USA Patriot Act and wrote an article in the neoconservative publication The Weekly Standard full of bravado about fighting the war on terror 'beyond case-by-case.' He fancied himself an intellectual, but one who understood trench warfare. . .

"When Brown put through his 8 p.m. telephone calls on that Monday, Chertoff was at his home resting. Chertoff 's spokesman later claimed that the Homeland Security secretary "was hobbled by a lack of specific information" regarding Katrina on Monday night. That clumsy contrivance presumed that Chertoff was discounting or ignoring the reports from Brown, who was then in the EOC in Baton Rouge, or those reports streaming in from the affected area that were all over various FEMA offices. Air Force aerial images of the swamped Gulf Coast were arriving with increasing frequency at EOC, each showing an obliterated landscape, with water towers and refineries among the only recognizable landmarks in St. Bernard and Plaquemines parishes. As Homeland Security chief, Chertoff had the most effective communications network of any cabinet office at his disposal, including the resources of the top brass in the Pentagon. He didn't use it. . .

http://www.huffingtonpost.com/david-fiderer/katrina-whitewash-michae_b_61975.html

CHICAGO SUN TIMES - Committee Chairwoman Sen. Susan Collins (R-Maine), said Homeland Security's response "must be judged a failure." She called it "late, uncertain and ineffective."

Sen. Joseph Lieberman of Connecticut, the panel's top Democrat, criticized Chertoff for going to Atlanta for a bird flu conference on Aug. 30, the day after the storm roared ashore, instead of rushing to the disaster scene. "How could you go to bed that night [Aug. 29] not knowing what was going on in New Orleans?" Lieberman asked.

Under Chertoff's oversight, disaster workers "ran around like Keystone cops, uncertain about what they were supposed to do or uncertain how to do it," Lieberman said.

Chertoff disputed Brown's testimony earlier this month that he had notified White House and Homeland Security officials on the day of the storm that levees had failed and New Orleans was flooding. Instead, Chertoff reiterated earlier statements that he did not realize that levees had been breached until the next day. "When I went to bed, it was my belief . . . that actually the storm had not done the worst that could be imagined," Chertoff said.

Sen. Mark Dayton (D-Minn.), called FEMA's problems "just so dysfunctional, or nonfunctional, it's frightening."

ACLU - He has been a vocal champion of the Bush administration's pervasive belief that the executive branch should be free of many of the checks and balances that keep it from abusing its immense power over our lives and liberty. . .

Two reports by the Justice Department's inspector general, released in June and December 2003, castigated Chertoff's use of rarely enforced and minor immigration violations to hold non-citizens shortly after 9/11 for as long as possible, without bail or access to a lawyer. None of these non-citizens was found to have any connection to the 9/11 attacks.

Chertoff was also an architect of the USA Patriot Act, which has come under increasing fire from conservatives and progressives alike since its passage in 2001.

He was instrumental in revising the internal "Attorney General Guidelines" to allow the FBI to infiltrate religious and political gatherings with undercover agents, and he was apparently the catalyst behind the federal Bureau of Prisons rule change permitting agents to eavesdrop on previously confidential attorney-client conversations in federal prisons. And, he directed the initial "voluntary" dragnet interviews of thousands of Arabs and Muslims.

http://www.aclu.org/safefree/general/18814prs20050111.html

PROGRESSIVE REVIEW, OCTOBER 20, 2005 - We've been trying to figure out why Michael Brown got such a deserved lashing in the press while his boss - the clearly incompetent Michael Chertoff - got off so easy. One hypothesis: Chertoff is a Washington attorney and member of the local establishment, which generally lets you get away with a lot more than mere Arabian horse association directors. The fact that Chertoff had no known qualification for his job doesn't seem to bother those in the capital.

WASHINGTON POST - The breaching of the levees caused large parts of New Orleans to be inundated in water in the wake of the devastating hurricane. . . [FEMA director Michael] Brown said not only did he inform the White House, but he also informed top Homeland Security officials about the situation on the same day. His comments contradicted previous statements by agency officials, who said they did not know the levees had been breached until the following day. "For them to claim that we didn't have awareness of it is just baloney," Brown said. At the same time, Brown said he thought talking to Homeland Security Secretary Michael Chertoff was a "waste of time" and that it was easier and more effective to go straight to the White House.

http://www.washingtonpost.com/wp-dyn/content/article/2006/02/10/AR2006021000267.html?nav=rss_nation/nationalsecurity

NY TIMES - Michael Chertoff, who has been picked by President Bush to be the homeland security secretary, advised the Central Intelligence Agency on the legality of coercive interrogation methods on terror suspects under the federal anti-torture statute, current and former administration officials said this week. Depending on the circumstances, he told the intelligence agency, some coercive methods could be legal, but he advised against others, the officials said. . .

Asked about the interaction between the C.I.A. and Mr. Chertoff, now a federal appeals court judge in Newark, Erin Healy, a White House spokeswoman, said, "Judge Chertoff did not approve interrogation techniques as head of the criminal division.". . .

One current and two former senior officials with firsthand knowledge of the interaction between the C.I.A. and the Justice Department said that while the criminal division did not explicitly approve any requests by the agency, it did discuss what conditions could protect agency personnel from prosecution. Mr. Chertoff's division was asked on several occasions by the intelligence agency whether its officers risked prosecution by using particular techniques. The officials said the C.I.A. wanted as much legal protection as it could obtain while the Justice Department sought to avoid giving unconditional approval.

One technique that C.I.A. officers could use under certain circumstances without fear of prosecution was strapping a subject down and making him experience a feeling of drowning. Other practices that would not present legal problems were those that did not involve the infliction of pain, like tricking a subject into believing he was being questioned by a member of a security service from another country.

But in other instances Mr. Chertoff opposed some aggressive procedures outright, the officials said. At one point, they said, he raised serious objections to methods that he concluded would clearly violate the torture law. While the details remain classified, one method that he opposed appeared to violate a ban in the law against using a "threat of imminent death."

Mr. Chertoff and other senior officials at the Justice Department also disapproved of practices that seemed to be clearly prohibited, like death threats against family members, administration of mind-altering drugs or psychological procedures designed to profoundly disrupt a detainee's personality. It is not clear whether the C.I.A. or any other agency proposed these techniques.

But Mr. Chertoff left the door open to the use of a different set of far harsher techniques proposed by the C.I.A., saying they might be used under certain circumstances. He advised that they could be used depending on factors like the detainee's physical condition and medical advice as to how the person would react to some practices, the officials said.

http://www.nytimes.com/2005/01/29/politics/29home.html?hp&ex=1107061200&en=0b261acbf233ce4a&ei=5094&partner=homepage

DAVE LINDORFF, NATION - Back on Friday, June 12, 2002, the Defense Department had a big problem: Its new policy on torture of captives in the "war on terror" was about to be exposed. John Walker Lindh, the young Californian captured in Afghanistan in December 2001 and touted by John Ashcroft as an "American Taliban," was scheduled to take the stand the following Monday in an evidence suppression hearing regarding a confession he had signed. There he would tell, under oath, about how he signed the document only after being tortured for days by U.S. soldiers. .

The Defense Department, which we now know had in late 2001 begun a secret, presidentially-approved program of torture of Afghan and al Qaeda captives at Bagram Air Base and other locations, had made it clear to the Justice Department that it wanted the suppression hearing blocked. American torture at that point was still just a troubling rumor, and the Bush administration clearly wanted to keep it that way. Accordingly, Michael Chertoff, who as head of the Justice Department's criminal division was overseeing all the department's terrorism prosecutions, had his prosecution team offer a deal. All the serious charges against Lindh - terrorism, attempted murder, conspiracy to kill Americans, etc. - would be dropped and he could plead guilty just to the technical charges of "providing assistance" to an "enemy of the U.S." and of "carrying a weapon." Lindh, whose attorneys dreaded his facing trial in one of the most conservative court districts in the country on the first anniversary of 9/11, had to accept a stiff 20-year sentence, but that was half what he faced if convicted on those two minor charges alone.

But Chertoff went further, according to one of Lindh's attorneys, George Harris. Chertoff (now an appeals court judge in New Jersey) demanded - reportedly at Defense Department insistence, according to what defense attorneys were told - that Lindh sign a statement swearing he had "not been intentionally mistreated" by his U.S. captors and waiving any future right to claim mistreatment or torture. Further, Chertoff attached a "special administrative measure," essentially a gag order, barring Lindh from talking about his experience for the duration of his sentence.

At the time, few paid attention to this peculiar silencing of Lindh. In retrospect, though, it seems clear that the man coasting toward confirmation as secretary of Homeland Security effectively prevented early exposure of the Bush/Rumsfeld/Gonzales policy of torture, which we now know began in Afghanistan and later "migrated" to Guantanamo and eventually to Iraq.

ROBERT NOVAK - Chertoff is billed as a non-controversial nominee, confirmed by the Senate three times and expected to be approved again without trouble. Behind that facade, however, he proved a fearsome adversary during two years running the Criminal Division.

Republican lawyers who soured on Attorney General John Ashcroft the past four years tend to excuse harsh behavior by Chertoff as a loyal lieutenant supporting his chief. Now that he will be in charge of a huge department, the truth will emerge whether his intransigence as a Justice subordinate will characterize him as a Cabinet member.

The serious confrontation between branches of government involving Chertoff began during President Bush's first year in office. Rep. Dan Burton, chairman of the House Government Reform Committee, sought documents exposing the FBI's shocking misuse of mob information in Boston decades earlier. An innocent man went to prison on murder charges because of lies told by a FBI informant. Two of the Bureau's undercover men, including the notorious Whitey Bulger, committed murder without being charged.

Burton was stunned when informed by Ashcroft and White House counsel Alberto Gonzales that the president was invoking executive privilege and such documents never would be released to the public. Chertoff was out front denying material to the committee, but his real role was unclear. Today, supporters say he was merely taking orders from Ashcroft. But three years ago, congressional staffers told me Chertoff was calling the shots -- not just taking them.

The latter view seemed confirmed as I listened to Chertoff at [a] 2001 Christmas party. He was inflexible about executive privilege, arguing that there never was any need for the executive branch to grant demands for documents from the legislative branch. It was a maximalist position for executive power. Thanks to Chairman Burton's persistence, however, the FBI material eventually was turned over to the committee. But no financial compensation has been granted to the families of victims of the FBI killings.

In Chertoff's remaining year at the Justice Department, he frequently was the man who said no -- rejecting requests for documents. By the spring of 2002, it was clear that Bush's Justice Department was not going to investigate the Clinton administration's use of Internal Revenue Service scrutiny on critics of Bill Clinton. The watchdog organization Judicial Watch provided substantial evidence of IRS harassment, but Chertoff denied that any pattern had been established.

http://www.alternet.org/rights/21156/

DOUG IRELAND, LA WEEKLY - The Bush White House thinks it's being clever by naming a prosecutor instead of a criminal to head the Department of Homeland Security. But Mike Chertoff's appointment in the wake of the failed nomination of scandal-plagued Bernie Kerik (now under investigation by multiple law-enforcement agencies) is as political as one can imagine. Especially for those who know the arcana of politics in New Jersey, where Chertoff was U.S. attorney, and where his naming to the Homeland Security job caused jaws to drop.

Chertoff was a political attack dog in that job, indicting and convicting a raft of Democratic officeholders. But one whom Chertoff deliberately let get away was his big buddy, Bob "The Torch" Torricelli, forced to resign his U.S. Senate seat from Sopranoland in a major corruption scandal. Nick Acocella, editor of the respected insider newsletter New Jersey Politifax, recalls that, at the height of the Torricelli scandal, and while Chertoff was U.S. attorney, he saw The Torch and Chertoff, at a South Jersey Jewish banquet, embrace and huddle intimately "like twins separated at birth." One would have thought a federal prosecutor would have kept his distance from a target of criminal investigations that were making daily headlines in the Jersey press.

When Chertoff was named by Bush to head the Justice Department's Criminal Division - partly because he was a skilled political hit man who'd also raised a ton of money as financial vice chair of Bush's Garden State campaign in 2000 - it was an open secret in Jersey that he squelched an indictment of Torricelli as a reward for The Torch's support of key Bush legislation the Democratic Party leadership opposed. (Many of the fat cats Chertoff shook down for Bush had also been huge givers to The Torch.). . .

Long active in the Federalist Society - a conspiratorial brotherhood of legal reactionaries - Chertoff, at Justice, helped to write the civil-liberties-shredding Patriot Act. He was John Ashcroft's honcho in the indiscriminate grilling of over 5,000 Arab-Americans after 9/11, devised the use of "material witness" warrants to lock up people of Middle Eastern descent and hold them indefinitely without trial, and on behalf of the Justice Department wrote a brief (in Chavez v. Martinez) arguing that there was no constitutional right to be free of coercive police questioning.

Moreover, Chertoff wrote legislation, known as the Feeney Amendment, that gutted federal sentencing guidelines, under which federal judges were allowed to use some discretion when sentencing criminal defendants, by preventing judges from shortening sentences - and, moreover, required judges who deviated from the Feeney Amendment to have their names and actions reported to the Justice Department, thus establishing what Senator Teddy Kennedy denounced as a judicial "blacklist."

Why would Chertoff give up a lifetime seat on the federal bench to take a job in the hornets' nest of problems that is the DHS? According to a top Jersey Democratic pol who knows Chertoff well, Chertoff - described as being "as cold-blooded as they come" -has a personal agenda that includes becoming U.S. attorney general and, eventually, grabbing a seat on the U.S. Supreme Court. But there's a problem for Chertoff with conservative Republicans - he happens to be pro-choice. So, taking the DHS job is Chertoff's way to "make his bones," as they say in Jersey, and make headlines as a hard-line persecutor of "the towel-heads" to please the right and neutralize his abortion stance.

DIRELAND
http://direland.typepad.com/direland/

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