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Michael Chertoff Nominated for Homeland Security

Bump and Update: The ACLU, which does not take a position on cabinet appointments, weighs in:

We are troubled that his public record suggests he sees the Bill of Rights as an obstacle to national security, rather than a guidebook for how to do security properly.

More updates and reactions at the end of this post, scroll down.

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original post:

Third Circuit Appeals Judge Michael Chertoff is President Bush's new pick for homeland security chief. Chertoff was a Bush nominee to the Court.

Chertoff was a career prosecutor. He's been United States Attorney of New York and New Jersey and Assistant AG at the Main Department of Justice. He argued the case against Zacarias Moussaoui being allowed access to Al Qaeda witnesses for his trial. He also served as counsel to the Repbulican Whitewater committees investing the Clintons. In fact, the only vote in the Senate against Chertoff's confirmation came from Hillary Clinton.

Chertoff is probably smooth sailing for Bush. But, there were some delay at his judicial nomination hearing over whistleblower Jesselyn Radack. Radack had been employed in the Justice Department's Professional Responsibility Advisory Office, and claimed she was forced to resign after writing an opinion that the FBI could not interrogate "American Taliban" John Walker Lindh without his counsel present.

Here is Senator Edward Kennedy's statement on Michael Chertoff from his judicial nomination hearing. The final paragraph is:

Notwithstanding my concerns about Mr. Chertoff's performance as head of the Criminal Division, I am supporting his nomination to the Third Circuit. I am doing so based on his fine reputation as a lawyer, his achievements as a prosecutor and special counsel to the New Jersey legislature, and his assurances that as a judge he will apply the law with independence, integrity, and a commitment to due process and the core constitutional values embedded in the fabric of our democracy. My support for Mr. Chertoff's nomination today, however, should not be interpreted as an endorsement or approval for any other position.

A federal appeals court judgeship is a lifetime appointment. Chertoff is giving that up to Homeland Security Chief. Is he just altruistic, wanting to serve his President and country? Or has Bush promised him a bigger judgeship at the end of his term if he takes the helm at H.S. for a few years? Of course that's risky. What if all the openings are gone by then? And Alberto Gonzales probably has first dibs.

Chertoff hasn't been afraid to say no before to Bush. He turned down the job of Chief of the SEC to stay on at Justice.

Chertoff was an agressive "mafia proseuctor" under Giuliani in New York. I wonder if Bush sought Rudy's opinion again before nominating Chertoff to the H.S. Security post.

Update: Campaign Extra exposes Chertoff's record on civil liberties, calling him "Kerik without the Sex." Law Prof Eric Mueller, who once worked for Chertoff, notes the resemblence between Chertoff and Mr. Burns of the Simpsons. He supports the nomination but makes the same observation as I did above, what did Bush promise him to make him give up a lifetime appointment--a seat on the Supreme Court?

Update: There are accounts of chertoff's role in making sure post-911 detainees did not get lawyers, were held even if ordered out on bond or ordered deported, and even that he implicitly condoned roughing them up -- in Steven Brill's book "After:The Rebuilding and Defending of America" -- pp.146 ff, 543.

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  • Display: Sort:
    Re: Michael Chertoff Nominated for Homeland Securi (none / 0) (#1)
    by desertswine on Tue Jan 11, 2005 at 10:49:42 AM EST
    Fine; the counsel to the GOP Whitewater committee. Also, he looks like death on toast.

    My first reaction to this is that Bush actually found someone worse than Kerik.

    If the ACLU does not take a position on cabinet nominees, why is it issuing statements about cabinet nominees? What a crock.

    Re: Michael Chertoff Nominated for Homeland Securi (none / 0) (#4)
    by kdog on Tue Jan 11, 2005 at 01:17:25 PM EST
    I like the quoted section, somebody tell the nimrods all over Wahington that the Bill of Rights is the thing we are trying to protect, the thing bigger than all of us. Anybody who sees the Bill of Right as anything but awesome and great is someone who doesn't belong anywhere near our gov't.

    Re: Michael Chertoff Nominated for Homeland Securi (none / 0) (#5)
    by cp on Tue Jan 11, 2005 at 01:26:33 PM EST
    actually, i get the distinct impression his resistance to the bill of rights does not distinguish him from other prosecutors, at all levels. if anything, it would seem to put him squarely in the center of that particular bell curve. if we should be concerned about any aspect of his background, it is the fact that he represents the norm in prosecutorial standards, not the deviation from it.

    LoL The ACLU a crock? Civil Liberties - a crock? The bill of rights - a crock? Ohboy with friends like you Osama doesn't need to fight us. We might as well roll out the big red welcome mat!

    mfox, The claim that the ACLU does not "take a position" on cabinet appointments is the crock I was referring to. Sorry if that was moving too fast for you. I'll try to slow it down for you next time;-) Just because the ACLU does not come out and say "This is our position" on an issue does not mean they do not have one. When they express doubts about someone's suitability or beliefs, they clearly do have one. And before you jump to the "Osama" defense, please note that I didn't say it was a bad thing that they have a position, or that I disagree with their position, only that the idea that they have no position is a crock. That knee-jerk reaction you have is pretty bad there. Might want to see a doctor about it.

    I've got no problem with Chertoff. He's been approved by the Senate three times already for other positions, I don't think he'll have much of a problem being confirmed.

    The Bush campaign was critical of Kerry expressing the need for a strong police force to defeart terrorism. The Repubs jumped on this and critized Kerry in ads expressing their support for the use of military operations to defeat terrorism. Why than would they appoint someone with an extensive background in law enforcement and no military experience?

    The more I think about this, the more it bothers me. If we can't even trust the ACLU to report honestly on what the First Amendment says, how can we trust them to report accurately on Chertoff's views? Somethng is very wrong in that organization if they think they can delete part of the First Amendment to make an argument and no one will notice. What else are they deleting?

    Justpaul: the quote on the ACLU site is a lead-in. The paragraph space is too short to provide the entirety of the First Amendment. It is summarized to provide context for the article that follows - albeit, a marketing piece meant to drive membership. Their assumption is that you would not have a problem finding a complete version elsewhere online. Clearly, you were able to find other sources, so it seems they were correct. Apoplexy (trolling?). Solved.

    mfox, Just as an aside, we could look at: "It is probably no accident that freedom of speech is the first freedom mentioned in the First Amendment: "Congress shall make no law...abridging the freedom of speech, or of the press, or of the people peaceably to assemble, and to petition the Government for a redress of grievances." " Source: link If the ACLU can't even be honest about what the First Amendment says, can they really be trusted at all? TL: If you wish to give the hat-tip for pointing this out, it should go to OpinionJournal.com

    justpaul writes: The more I think about this, the more it bothers me. If we can't even trust the ACLU to report honestly on what the First Amendment says, how can we trust them to report accurately on Chertoff's views? Why do you assume they're being dishonest, and that it wasn't just an honest mistake on the part of some individual working on the web site? I admit it's a difficult thing to do by mistake, but I can't think of a plausible reason to lie about something like that. Note that the ACLU web site has sections on both free speech and religious liberty. I've used the ACLU's feedback form to notify them of the error.

    Re: Michael Chertoff Nominated for Homeland Securi (none / 0) (#15)
    by Peter G on Tue Jan 11, 2005 at 09:13:03 PM EST
    The freedom of speech is the first "freedom" mentioned in the First Amendment, just as the ACLU page says. Before that, the First Amendment posits that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." However, this semantic subtlety is meaningless. Obviously, the right to "free exercise of religion" is, in fact, a "freedom" even though that precise word is not used. As an ACLU state affiliate board member, I'm embarrassed at the semantic trickery. However, I am not at all embarrassed by the ACLU's staunch defense of all the liberties guaranteed by the First Amendment, the twin freedoms of religion (protection against establishment and protection of free exercise) no less than any others.

    If Bush had appointed somebody with a military background, lame lefties like you would cry that he's militarizing law enforcement and ushering in fascism. Got it? Yeah like that ever stopped Bush from making an asinine move before. No, I don't get it.

    say what you will about michael chertoff, he's great in the shield.

    Jed and Keith, Go back and read the item in question. The argument the ACLU is making is based on the idea that the first freedom mentioned is "freedom of speech", it is not. There are no ellipsis in the U.S. Constitution. Peter G, Nice try, but it is purely a semantical argument. "Congress shall make no law respecting the establishment of a religion or the free excercise thereof" is the basis for the oft-cited right to "freedom of religion" or, as so many would have it "freedom from religion". Unless you are prepared to say that we do not in fact have freedom of religion, that we can, in fact, be forced to join a specific, government certified religion, your argument does not hold. I cannot help but wonder why the ACLU did not simply say: "Freedom of speech was of such importance to the Founding Fathers that they made it part of the first amendment to the Constitution." This would have been honest, and would have made their point. Instead, the ACLU chose to delete part of the text of that amendment, and then based their entire argument on that deletion. If we accept the ACLU's argument that the first right the founding fathers concerned themselves with was the one they felt most important, that right was the freedom of religion, not free speech (I would disagree with them on this, but I'm not a religious man). Is intellectual honesty really too much to ask from a group that claims to be defenders of the Bill of Rights?

    JustPaul writes: That knee-jerk reaction you have is pretty bad there.

    PeterG, My apologies. I confused several comments (perhaps due to the early hour and lack of sufficient caffeine flow in my bloodstream). Nevertheless, I think what the ACLU is saying is dangerous in this instance. If, as they posit, freedom of speech is the first freedom mentioned in the First Amendment, we do not in fact have freedom of religion, we merely have a restriction on Congress that forbids them from enacting certain legislation. This same restriction would not apply to the states nor to, perhaps, the Executive branch. If this were the case, Utah, for example, could amend its own Constitution to require all citizens to become members of the Mormon Church. Or the President could sign an Executive Order requiring all citizens to become Southern Baptists. I feel certain that this is not the position of the ACLU. But, on a brighter note, if the establishment clause has now been shortened to no longer include freedom of religion, we also are no longer guaranteed freedom from religion. State Houses across the land can now feel free to place manger scenes or any other religious symbol on state property, so long as Congress has nothing to do with it. And as a double bonus, Michael Newdow can just go home and shut up. I doubt that the ACLU wants this either, but I could live with the results. And a hat-tip to the man or woman behind the black mask.

    If we accept the ACLU's argument that the first right the founding fathers concerned themselves with was the one they felt most important, that right was the freedom of religion, not free speech Says who? you? How about some historical evidence indicating the founders intentions? I read your diatribe on the ACLU and it makes little sense. Maybe you should get another cup of coffee and a few history textbooks.

    JustPaul writes:
    Go back and read the item in question. The argument the ACLU is making is based on the idea that the first freedom mentioned is "freedom of speech", it is not.
    "Congress shall make no law respecting the establishment of a religion or the free excercise thereof" is the basis for the oft-cited right to "freedom of religion" or, as so many would have it "freedom from religion". Unless you are prepared to say that we do not in fact have freedom of religion, that we can, in fact, be forced to join a specific, government certified religion, [this] argument does not hold.
    Nevertheless, I think what the ACLU is saying is dangerous in this instance. If, as they posit, freedom of speech is the first freedom mentioned in the First Amendment, we do not in fact have freedom of religion,
    All in response to the opening sentence of the ACLU website, which states:
    It is probably no accident that freedom of speech is the first freedom mentioned in the First Amendment:
    The ACLU goes on to say that the founding fathers emphasis on freedom of speech "probably" meant that they thought it was important, as the ACLU does. The ACLU position statement issued re: Chertoff (very logically) goes on to say that in their capacity as staunch defenders of freedom of speech, Chertoff has raised concerns in their opinion about his commitment to said amendment that they consider important enough to highlight in their capacity as defenders of the Bill of Rights. Your confusing line of reasoning, as far as I can tell is that because the ACLU position statement (is that what it was... I lose my comment when I toggle back and forth)starts by saying that 1. the ACLU intentionally misrepresented the First Amendment by mischaracterizing freedom of speech as the "first freedom", thereby ommitting Freedom of Religion. 2. Therefore, the ACLU and any position they take is suspect due to their lack of credibility in calling freedom of speech the "first freedom". 3. Therefore, they have no credibility in defending the First Amendment. 4. Their taking a position in this case, because they claim not to "take positions on cabinet appointments" is suspect in the same way and proves that they are liars not to be trusted. Sorry JustPaul, I gave your and the ACLU's logic both fair shots. They win, hands down. I have and continue to applaud their work. And c'mon admit it. You didn't like the ACLU before this story came out.

    BTW that's me above.

    Gregz, Okay, let's try again. Go back and read the argument offered by the ACLU. It says: "It is probably no accident that freedom of speech is the first freedom mentioned in the First Amendment: "Congress shall make no law...abridging the freedom of speech, or of the press, or of the people peaceably to assemble, and to petition the Government for a redress of grievances." The Constitutionís framers believed that freedom of inquiry and liberty of expression were the hallmarks of a democratic society." The ACLU, not me, is arguing that the first freedom mentioned in the first amendment is free speech, and that this is because they, the founding fathers, felt that it was the "hallmark of a democratic society" (I agree with them on it's importance, just not that it is the first freedom mentioned, for the reasons stated above). I don't need to read a text book or history book to know this, because it has nothing to do with history, it is an argument being offered by the ACLU. (And my caffeine intake has increased significantly since this morning, thank you very much.) So, as I said, if we accept the ACLU's argument that the founding fathers concerned themselves first with the freedom that they felt was the most important , or hallmark, freedom in a democratic society, we must conclude that said freedom was freedom of religion, since it appears first in the amendment. I didn't say I agreed with this, and given the way the Consitution and the Amendments were written I doubt that it's true, since the wording of each amendment was a compromise reached by a group of people and I'm sure there were different phrasings bandied about before the final wording was agreed upon. The point is that the ACLU's argument makes even less sense when one realizes that they have deleted part of the amendment, since they are arguing that it is the order in which freedoms are mentioned that indicates their importance, and, if this is true, the part they deleted indicates more concern on the part of the founding father for freedom of religion than for freedom of speech (if you accept their logic). I don't accept their logic, based as it is on a convenient deletion of part of the amendment, but I have to assume they do. I'm sorry if this is too difficult for you to follow, but that's what happens when people start basing their arguments on conveniently didacted texts and loopy reasoning. As noted above, there is plenty of ground to base an argument on the importance of free speech in a democratic society without resorting to chicanery. And that's what the ACLU has done.

    mfox, Interesting argument, although it is based on a number of misconceptions. When I asked whether the ACLU could be trusted at all based on their didaction of the First Amendment, I was making a weak rhetorical argument. My issue is with the stupid logic presented on that website page, not with the ACLU in general. My issue with their comment on Chertoff has nothing to do with the merits of their comment, it is with the idiocy of saying that the ACLU does not take a position on nominees immediately before repeating what very much seems to be a position. I said nothing about their defense of the first amendment in general or in respect to Chertoff specifically. You read that into it. As for logic: You believe whatever you want. You accept whatever logic makes sense to you or makes you happy. And as for my feelings about the ACLU: You are wrong. I just wish they could find some better writers so they didn't have to base their arguments on textual deletions. There's plenty of evidence for the importance of free speech in our society without resorting to such sloppy work. If my concern for accuracy offends your love of the organization, so be it. That too is part of the grandeur of free speech.

    Personal feelings aside about the current ACLU agenda, justpaul is absolutely right, the ACLU's statement is fundamentally disengenuous. And that disengenuousness should be of no little importance, because, after all, this is the frigging ACLU we're talking about, not some dopey Hollywood actor or something. Oops, there's a Holly Hunter ad on the same ACLU page, so, gee, I guess they must be beyond reproach. Why do you suppose the ACLU felt the need to edit the words, and thereby, the intent, of the 1st Amendment?

    The ACLU does not "defend" nor "protect" the constitution. They just use it as a weapon whenever it is convenient to advance their agenda (whatever that is). They are about as pro-Bill of Rights as John Ashcroft and Janet Reno.
    "I don't want to dwell on constitutional analysis, because our view has never been that civil liberties are necessarily coextensive with constitutional rights. Conversely, I guess the fact that something is mentioned in the Constitution doesn't necessarily mean that it is a fundamental civil liberty."
    Nadine Strossen President of the American Civil Liberties Union "Life, Liberty, and the ACLU" Reason, October 1994 Letters regarding this interview were printed in the January 1995 issue. The reference to speech being the "first" freedom mentioned has been on their site since at least 1998. As Sanford Levinson noted back in 1989 (see footnote #1):,
    1. It is not irrelevant that the Bill of Rights submitted to the states in 1789 included not only what are now the first ten Amendments, but also two others. Indeed, what we call the First Amendment was only the third one of the list submitted to the states. The initial "first amendment" in fact concerned the future size of the House of Representatives, a topic of no small importance to the Anti-Federalists, who were appalled by the smallness of the House seemingly envisioned by the Philadelphia framers. The second prohibited any pay raise voted by members of Congress to themselves from taking effect until an election "shall have intervened." See J. Goebel, 1 The Oliver Wendell Holmes Devise History of the Supreme Court of the United States: Antecedents and Beginnings to 1801, at 442 n.162 (1971). Had all of the initial twelve proposals been ratified, we would, it is possible, have a dramatically different cognitive map of the Bill of Rights. At the very least, one would neither hear defenses of the "preferred" status of freedom of speech framed in terms of the "firstness" of (what we know as) the First Amendment, nor the wholly invalid inference drawn from that "firstness" of some special intention of the Framers to safeguard the particular rights laid out there.
    The original second amendment was ratified as the 27th amendment in 1992.

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