Eric Muller, a law professor at UNC who publishes the Is That Legal blog, muses whether Michael Chertoff, who was nominated yesterday by George Bush to head the HUGE Department of Homeland Security (22 agencies and 180,000 employees), agreed to give up a lifetime federal appointment to the Bench for a political position because he may have been given a promise for a seat on the Supreme Court.

Chertoff, is, um, well, Jewlicious, even if he did serve as the Republicans’ Counsel on the Senate Whitewater Committee. A rabbi’s son, he is respected for his abilities in the courtroom, and was able to succeed in public and private practice. His resume speaks of some success and ability, working for Latham & Watkins, one of the country’s biggest law firms as a partner, and also having great success as a United States Attorney when he had some significant success prosecuting crime families in New York in the ’80s, which cemented his reputation and served as a launching pad for his career.

Just prior to his appointment as a judge, Chertoff had been the Department of Justice Assistant Attorney General for the Criminal Division. In this position, he has been responsible for much of the US policy regarding its legal treatment of detainees related to the “war on terror.”

Eric Muller reviews a talk that Chertoff gave (see Symposium Blogging IX) where he discussed the controversial role the Department of Justice played in enabling the imprisonment of suspects. In his talk, Chertoff spoke of:

What he did know, though, was this: (a) the enemy had masqueraded as friendly visitors, (b) the enemy had to have had a complicit (or perhaps an innocent) support network–people who’d provided shelter, money, sustenance, and so on, and (c) there was no way to distinguish between the many well-meaning visitors to the USA and the few who meant us harm. “It was not just like looking for a needle in a haystack,” he said. “It was like looking in a haystack for a needle disguised as a stalk of hay.”

The limited information they had suggested a realistic possibility of further strikes. (And, he pointed out, it still does.)

People who make decisions under this sort of pressure, and in this state of imperfect information, he noted, do not have the benefit of hindsight. They must act.

He also defended what critics consider heavy-handedness (and perhaps illegality of the DOJ’s actions) in his talk:

(1) there was, he said, no government suppression of dissent or criticism; (2) the PATRIOT Act, notwithstanding all of the protests against it, did not purport to push law beyond existing 4th Amendment doctrine. Even the much-reviled sneak-and-peak warrants, he asserted, had the endorsement of well-established 4th Amendment precedent; (3) military commissions have not yet been used, do not apply to citizens, and admit of the possibility of limited habeas corpus review (which FDR’s WWII commissions didn’t); (4) there was no evacuation or detention of citizens or aliens on the unadorned basis of ethnicity; (5) all detentions had a lawful basis; (6) all people detained as enemy combatants were arrested in battle, and there was no detention that approached the magnitude of the detentions during the Civil War.

All in all, he seems to be a very capable person who happened to play an important role at a time when the US has been transformed and has entered into a war with militant Muslims such as Bin Laden. He will now take a position that will give him extraordinary influence upon many spheres within the life of Americans and the success of the US in this war. I certainly hope he succeeds and manages to achieve this success in a way that preserves as much of the democratic and free nature of our society as possible.

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