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Amid Praise, Doubts About Nominee's Post-9/11 Role

Republicans speak of this as Chertoff's partisan baptism. "That gave him legitimate Republican bona fides," Bathgate said.

Later, Chertoff took to the campaign trail for Republican Robert J. Dole. "Why does the White House," Chertoff asked at a rally, "spend more time hiding its files from subpoenas than pursuing drug dealers?"


Michael Chertoff, President Bush's nominee to be the next secretary of the Department of Homeland Security, has supporters on both political sides. (Susan Walsh -- AP)



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This move drew sharp disapproval from former special counsels. "Inconceivable," said Arthur L. Liman, who was counsel to the Senate Iran-contra committee. "Very inappropriate," added Gerald Gallinghouse, an independent counsel during the Carter administration.

In the late 1990s, Chertoff took a final turn in New Jersey's political vineyards, as pro bono counsel to a legislative investigation of racial profiling by state police. He concluded that former state attorney general Peter Verniero had hidden racial profiling data. Chertoff offered no quarter to a prominent Republican, subjecting Verniero to a 13-hour cross-examination and trying to force his resignation.

After Sept. 11

Attorney General John D. Ashcroft appointed Chertoff to head the Justice Department's criminal division in 2001. Chertoff spoke of pursuing drug crimes and attacking the bane of racial profiling. Then hijacked airliners slammed into the World Trade Center and the Pentagon.

Chertoff was the senior Justice Department official at FBI headquarters on Sept. 11. He immediately ordered agents and prosecutors to "peel back the onion," working backward from the hijackers to anyone associated with them.

Agents, Chertoff said, should "use whatever means legally available" to hold immigrants connected with the investigation. Chertoff, the inspector general found, told a top deputy: "We have to hold those people until we find out what was going on."

Chertoff's order led to the detention of "aliens on immigration violations that generally had not been enforced," Fine's report noted. A number of arrests were based on false tips and "some appeared to have been arrested more by virtue of chance encounters . . . rather than any genuine" terrorism connection.

"How did he go from the man who fought profiling to the architect of a roundup of Arab and Muslim men?" asked Christopher Anders, legislative counsel to the American Civil Liberties Union. "The bottom line was that they rounded up all these men in secret and not one was charged with terrorism."

Chertoff and his defenders counter that this is an incomplete accounting.

"In the wake of September 11, the government quite self-consciously avoided the kinds of harsh measures common in previous wars," Chertoff wrote in a December 2003 essay for the Weekly Standard. "During the nineteenth and well into the twentieth centuries, the government responded to domestic violence with a panoply of extraordinary measures, including suppression of criticism; separate treatment of noncitizens; arrests and searches without warrants; and preventive detention."

McCarthy, the former U.S. attorney, spoke of a disorienting new world. "Mike was dealing with a paradigm shift -- the goal wasn't to build a case, it was to prevent another attack," he said. "It would have been suicidal to release people before we could check them out."

The problem, McCarthy said, is that prison officers undermined this strategy by beating and degrading detainees. "Mike had to assume that people would behave," he said. "We didn't factor in that some prison guards would kick the crap out of them."

Some advocates say the profiling and detentions sowed fear in the Muslim community, making people less likely to step forward with tips. "In hindsight, you can see it's a disaster to treat people like criminals," said Dalia Hashad, the ACLU's Arab, Muslim and South Asian advocate.

Chertoff has said, of late, that some tactics need reconsideration. In 2003, he gave a speech at Rutgers Law School on the pendulum swing of American legal history. In wartime, he said, the courts grant much leeway to the executive branch. So Abraham Lincoln suspended habeas corpus and the Roosevelt administration herded Japanese Americans into camps during World War II.

Inevitably, the federal courts insist on a more exacting constitutional standard. It is hard not to hear in Chertoff's analysis an echo of his own experience.

"In the heat of the battle the decision-maker has to rely on foresight, because he has no hindsight," Chertoff said. "But, at the same time, when hindsight does become available, we would be foolish if we did not take advantage of its lessons for the future."


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