Michael Chertoff, President Bush’s nominee to head the Department of Homeland Security, denied Wednesday that he gave U.S. intelligence agencies the green light to torture terrorism suspects or that he sanctioned the mistreatment of hundreds of Muslim Arabs detained in the post-9/11 immigration crackdown.
Under tough questioning at a Senate confirmation hearing, Chertoff also addressed concerns about homeland security funding disparities in different parts of the country and about morale problems within the Homeland Security Department.
Chertoff said he made his position on torture clear when lawyers for intelligence agencies sought his advice in his former role as assistant attorney general.
“I made it very clear torture is illegal, and if you violate the (anti-torture) statute, you are likely to get prosecuted,” Chertoff said at a hearing of the Senate Homeland Security and Governmental Affairs Committee. “I was not prepared to approve in advance techniques based on hypotheticals.”
Chertoff’s committee confirmation vote was put off until next week. While the Senate is expected to confirm him to head the mammoth department of 18,000 employees and 22 agencies, he joins other Bush Cabinet nominees facing scrutiny over interrogation methods.
Bush originally nominated Bernard Kerik, former New York City police commissioner, as homeland security secretary, but Kerik withdrew his name amid questions about the immigration status of a former household employee and a series of revelations about his personal and business life. Chertoff would replace Tom Ridge, the former Pennsylvania governor who led the department since its creation by Congress in November 2002.
Chertoff, 51, headed the criminal division of the Justice Department from May 2001 to June 2003 before becoming a federal appellate judge. His tenure was dominated by the government’s intensified domestic investigations of terrorism links after the 9/11 attacks.
Chertoff acknowledged that he was also drawn into controversial discussions within the Bush administration over how U.S. military and intelligence interrogators should treat detainees captured in Afghanistan or other countries.
In one sharp exchange, Sen. Carl Levin, a Michigan Democrat, read aloud from e-mails in which FBI agents expressed concerns about Defense Department interrogation methods at the U.S. military prison in Guantanamo Bay, Cuba.
Levin noted that the FBI agents’ concerns were raised at Justice Department meetings attended by at least four senior officials in Chertoff’s criminal division. Chertoff responded that he didn’t know who the officials were or even if the meetings took place while he ran the division.
“I don’t recall having any discussion about techniques that (the) Defense Department was using in Guantanamo, other than simply the question of whether interrogations or questioning down there was effective or not,” Chertoff said.
“I was not aware during my tenure at the Department of Justice that there were practices in Guantanamo … that would be torture or anything even approaching torture,” he said.
Sen. Mark Dayton, a Minnesota Democrat, grilled Chertoff over a plea agreement reached with John Walker Lindh, a Californian sentenced to 20 years in federal prison in October 2002 for having fought with the Taliban in Afghanistan.
Dayton asked Chertoff about published reports that the Justice Department accepted a plea bargain with Lindh because it feared public disclosure at a trial of details about his allegations that U.S. personnel tortured him after he was captured in Afghanistan.
“It could hardly have been kept secret because it was discussed in papers filed in open court at considerable length,” Chertoff said. “So, I have to say the idea that somehow this was to keep something secret does not jibe with my memory.”
When Dayton asked him why his criminal division had demanded, as part of the plea agreement, that Lindh sign a non-disclosure waiver prohibiting him from discussing his claims, Chertoff said such waivers are common parts of many plea bargains and do not indicate attempts by prosecutors to cover up information.
Turning to another controversial topic, Sen. Joseph Lieberman, a Connecticut Democrat, challenged Chertoff about his role in the post-9/11 arrests of 760 people, most of them Arab Muslims, on alleged immigration law violations.
Noting that none of the detainees were ever charged with terrorism-related crimes, Lieberman cited a 2003 report in which the Justice Department’s inspector general found that many had been denied access to lawyers and some had been mistreated.
Chertoff said mistreatment of immigration detainees “is wholly unacceptable,” but he said the FBI and other law enforcement agencies were overwhelmed during the period immediately after the 9/11 attacks.
“There were agents who had never worked terrorism before who were now being thrust into the field, being forced to make decisions literally under pressure of life and death,” Chertoff said. “I understand it was an emotional time, but training has to be in place so people understand that you don’t give in to emotions.”