And who, might you ask, is Michael Chertoff?
In the second term, the answer is never good.
Alliance for Justice Report on the Nomination of Michael Chertoff to the U.S. Court of Appeals for the Third Circuit
Since September 11th Chertoff has played a key role in the war against terrorism, pursuing an aggressive agenda against suspected terrorists and Arab Americans from countries that the U.S. government claims have strong terrorism networks. Chertoff supervised the prosecution of Zacarias Moussaoui and has been described as “the driving force behind the Justice Department's most controversial initiatives in the war on terrorism.”3 Civil liberties advocates blame him for what they see as dangerous curtailments to free speech and the rights of criminal defendants. According to press reports, Chertoff has played a key role in several matters: first, the increase in FBI agents’ authority to conduct domestic surveillance; second, the use of “material witness” warrants to lock up people of Middle Eastern dissent; third, the interviewing of thousands of Middle Eastern men who entered the United States before and after the 9/11 attacks; fourth, the aggressive prosecution of Moussaoui, despite concern that the FBI had not found sufficient evidence to link him to the nineteen 9/11 hijackers. Chertoff’s has not only played an active role in these cases, he has also been the first to defend controversial Justice Department policies. He spoke up for the government’s right to hold suspects indefinitely without counsel as “enemy combatants,” as well as the government’s decision to interview 5,000 Arab Americans after the 9/11 attacks.
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Whitewater
As counsel to Senator Alphonse D’Amato (R-NY) in the Whitewater investigation, Chertoff proved his loyalty to the Republican Party and his willingness to turn a legal investigation into a political one. He ruthlessly pursued the Clintons, on behalf of the Republican controlled Senate. Shortly after the congressional Whitewater investigation had been finished, Chertoff utilized his role in the probe to promote Robert Dole’s presidential campaign. Chertoff stumped for Dole as a warm-up speaker at a fundraiser in Lyndhurst, New Jersey. Referring to his work in Whitewater, Chertoff asked the crowd, “[Clinton] promised us the most ethical administration in American history. Well, howmany of that administration are in jail now? Why does the White House spend more time hiding its files from subpoenas than it does pursuing drug dealers?'' How many members of this administration have to resign in disgrace?”13 Chertoff also wrote an article for Newsweek in 1996 entitled Why Whitewater Mattersdescribing the Clintons wrongdoing and why it was important. It is clear that Chertoff had no problem taking his knowledge of the investigation and using it to turn Americans against the President during an election campaign. Senators might ask if this is an appropriate role for an investigator in what was supposed to be an apolitical investigation.14
Michael Chertoff: Ashcroft's Top Gremlin
Spreading Mischief from DoJ to the Federal Bench
But now I have a new gremlin to watch, someone who is as intent on undermining the law and Constitution as Ashcroft. I am referring to the man behind the criminal prosecution of terrorists, Michael Chertoff. Chertoff, former chief of the Justice Department's criminal division, and a scary looking guy if ever there was one, has been elevated to the level of Court of Appeals judge--the 3rd Circuit Court of Appeals, whose jurisdiction includes Delaware, New Jersey, and Pennsylvania. What's so scary about Michael? Well, besides having no judicial experience and being a right-ring radical who does not believe in the Constitution and wants to rewrite federal law and rules of procedure on an ad hoc, case by case basis, as it suits him, nothing I guess.
A good place to look for Chertoff's legal philosophy is in the prosecution of Zacarias Moussaoui , now taking place in the Eastern District of Virginia. Chertoff is not the prosecutor of course, Paul McNulty of the Eastern District is. But Chertoff is McNulty's boss and he is calling the shots. So Chertoff argued the government's case in the super secret hearing before the 4th Circuit Court of Appeals last week. The government is trying to block trial judge Leonie Brinkema's ruling that Moussaoui and his lawyers have access to the government's star witnesses against him. The government has refused and appealed. Judge Brinkema, who still believes in the Constitution, rightly ruled that to deny Moussaoui that access is a blatant violation of the Sixth Amendment right to confront witnesses.
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Chertoff argued to the 4th Circuit that the Court could not order the government to produce its start witness against Moussaoui because (are you ready?) he, the witness, is out of the country at an undisclosed location. True, but the witness is in the custody of the federal government! The out-of-the country argument is a sham. This is similar to a ruling recently by the federal court that ruled that Guantanmo Bay prisoners had no access to federal courts for claims that they be charged or release because-they are out of the country!! Of course, in federal custody, but that does not matter.
The absurd arguments contrary to the letter and spirit of all that not only the Constitution, but current federal law provides, is appalling and shameful.....
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Keep your eye on Michael Chertoff. As bad for the law and Constitution as many of Bush's judicial appointees are, Chertoff has been the architect of prosecutions in the "war on terror." And he may have big changes in mind for you, me, the courts, and the Constitution.
A friendlier bio piece:
CRACKDOWN
by JEFFREY TOOBIN
Should we be worried about the new antiterrorism legislation?
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