About Michael Chertoff

I know very little about Michael Chertoff, President Bush's new nominee for Secretary of Homeland Security. According to all the accounts I've read, he's smart and hardworking, and he will surely be a huge improvement over Bernard Kerik. That said, however, I have one major reservation about him: he seems to be the person behind the Bush administration's abuse of the Material Witness Statute. This is something that I've been meaning to write about for a while, and now seems to be as good a time as any.

The Material Witness Statute allows for the detention of someone whose testimony is material to a criminal case when that person's testimony cannot be secured through a deposition, and "it may become impracticable to secure the presence of the person by subpoena". The part about testimony is crucial: the idea is to secure the presence of a potential witness, not to provide the government with a way of detaining people when it is not prepared to charge them with a crime.

In this light, consider this passage from the New York Times' profile of Chernoff:

"In the aftermath of the Sept. 11 attacks, senior Justice Department officials were scrambling to find new ways to prevent terror suspects from slipping away. Michael Chertoff, a tough-minded prosecutor who was in charge of the department's criminal division, pushed a new tactic - declaring suspects to be "material witnesses" and locking them up without charging them with any crime, just as Mr. Chertoff had done with mob figures before.

"Mike was the one pushing to say 'Hey, we ought to look at using this more aggressively against terrorists,' " a former senior Justice Department official recalled Tuesday. "He was the one who made us realize how this tool could be used legally."

The tactic would prove controversial, as many civil rights advocates objected to the department's detentions of dozens of uncharged terror suspects as material witnesses. But to his many supporters, the tactic was typical of Mr. Chertoff's willingness to use smart, aggressive and creative tactics to meet the newly urgent threat of terrorism." (emphases added.)

If the quotes in this profile are accurate, then what Chernoff did was to use the Material Witness Statute not to detain material witnesses, but to detain suspects it is not prepared to charge with any crime. This violates the Constitution, whose Fifth Amendment holds that "No person shall ... be deprived of life, liberty, or property, without due process of law". And there is good reason to think that they are accurate: according to the New York Times, "scholars and critics say the government has radically reinterpreted what it means to be a material witness in recent years. These days, people held as material witnesses in terrorism investigations are often not called to testify against others; instead, frequently they are charged with crimes themselves. They lack constitutional protections like the requirement that criminal suspects in custody be informed of their Miranda rights. Moreover, they are often held for long periods in the same harsh conditions as those suspected of very serious crimes." That article contains the story of someone who was held as a material witness for sixteen months without being asked to testify or charged with any crime.

I am not a lawyer, but last time I checked, we had procedures for dealing with people we suspect of doing bad things. There are lots of crimes for which a person can be detained. Those relating to terrorism include not just terrorism itself, but conspiracy to commit terrorism, harboring or concealing terrorists, providing material support to terrorists or to terrorist organizations, and so forth. (And that's just from one little chapter of the US Code.) When the government has probable cause to believe that someone has committed one of these crimes, it can detain that person and file charges against him or her. If it can prove those charges beyond a reasonable doubt, it can keep that person in jail as long as the law allows. So it would seem, offhand, that if the government had good reason to suspect that someone was connected with terrorism, whether by being a terrorist, or conspiring with one, or harboring or assisting one, or whatever, it would have a straightforward way to detain that person.

The whole point of the Fifth Amendment's due process clause is to prevent the government from locking people up when it is not prepared to charge them with a crime. The whole point using the material witness statute to lock up people we suspect of involvement with terrorists but are not prepared to charge is to circumvent this Constitutional requirement. That makes it a subversion of the legal system. It's also bad policy: conservatives in particular should be wary of giving the government the power to lock people up without having to justify their decision to anyone, and without allowing for the sorts of safeguards we usually have in place to make sure that the innocent have the chance to state their case. I suppose that since we have already had to get used to the idea that one of the architects of a legal defense of our government's right to torture people will be our Attorney General, the idea that the architect of this abuse of the material witness statute will be our Secretary of Homeland Security should not seem like such a big deal. But it's not the way I want the country I love to treat either its citizens or the Constitution we should cherish.

Comments

[dmbeaster]

Its probably no coincidence, but the blemish that causes your reservation is exactly what President Bush chose to commend (in general terms) about Chertoff's qualifications during the public appearance announcing his nomination.

BUSH: In the days after September the 11th, Mike helped trace the terrorist attacks to the al Qaeda network. He understood immediately that the strategy on the war on terror is to prevent attacks before they occur.

CHERTOFF: On September 11th, 2001, I joined members of dozens of federal agencies in responding to the deadliest single attack on American civilians ever. In the weeks and months that followed, we all worked under your direction to prevent further despicable acts of terror.

[votermom]

Just what we need. Someone who doesn't actually set aside the writ of habeas corpus, just finds loopholes around it. Lovely.