On Nov. 28, 2001, then-Assistant Attorney General Michael Chertoff took a seat before a Senate committee and offered reassurance on two fronts: The Justice Department was unrelenting in pursuit of terrorists. And none of its tactics had trampled the Constitution or federal law.
Every detainee has been charged, Chertoff told the senators. Every detainee has a lawyer. No one is held incommunicado.
"Are we being aggressive and hard-nosed? You bet." Chertoff leaned into the microphone. "But let me emphasize that every step that we have taken satisfies the Constitution and federal law as it existed both before and after September 11th."
It was classic Chertoff, eloquent and unyielding and intense, his body coiled like a middleweight boxer's. He returned again and again to his bottom line: The World Trade Center and a portion of the Pentagon were in ruins; two letters had arrived at the Senate laden with billions of anthrax microbes. Osama bin Laden had declared war on the United States -- what would you have us do?
Few questioned Chertoff's urgency, but his critics contend that he was not candid with the senators, and was perhaps misleading about the nature of the tactics he pursued. The Justice Department ordered the detention of more than 700 Arab and South Asian men for immigration violations, holding them without charges or access to lawyers for an average of three months. Many remained in prison much longer, according to a 2003 report by Justice Department Inspector General Glenn A. Fine.
Some officials questioned the legality of the detentions, noting that immigration rules entitle detainees to call a lawyer. But the Justice Department ignored such warnings, according to the inspector general.
"Muslim men were rounded up and blocked from getting lawyers, and essentially Chertoff's testimony to the Senate was a coverup," said Michael Ratner of the Center for Constitutional Rights, which has challenged the government's detention policies.
Chertoff, President Bush's nominee to be the next secretary of the Department of Homeland Security, could bring coherence to a sprawling new agency still riven by turf battles, supporters and detractors agree. The 51-year-old federal appellate judge has a laser-like intensity, ran the Justice Department's criminal division during what many liken to wartime, and has worked for Democrats and Republicans during his career. Lawyers who have squared off against him praise his skills and ferocity.
But as Senate hearings on his nomination begin Wednesday, Democrats are expected to sharply question Chertoff's decision to order the detention of immigrants -- not one of whom was charged with a terrorism-related crime. A number of these immigrants were beaten and humiliated by prison officers.
They also are expected to scrutinize Chertoff's role in crafting the USA Patriot Act. Signed into law just weeks after the Sept. 11 attacks, the legislation expanded law enforcement's power to conduct secret surveillance and searches in the name of thwarting terrorism.
In meetings with the White House, Chertoff pushed for expanded powers to conduct secret searches, steps that civil libertarians have challenged with some success in federal court. ("Democracy," a federal judge wrote recently in striking down such a provision, "abhors undue secrecy.") Chertoff labored to dismantle barriers that kept intelligence agencies from sharing information with local law enforcement agencies.
Finally, Chertoff will face questions about the advice he offered the CIA on finding the line between harsh interrogation and tactics that might violate international law in questioning high-profile al Qaeda suspects, such as Abu Zubaida.
Chertoff's admirers, who hail from both parties, argue that much of the criticism lodged against him misses the point. In the months after the terrorist strikes, they say, no one knew where or when the next attack might come.
The hijackers had lived among Americans for years. Who knew how many al Qaeda fighters might be harbored by extremists in Muslim communities across the United States? There was a bipartisan conviction that intelligence agencies and law enforcement were two steps behind, and needed to catch up quickly. And none of the tactics Chertoff employed were illegal, they said.