Bush’s New Nominee Is a Surprise

In nominating Michael Chertoff to be the second head of the Department of Homeland Security, President Bush has chosen a lawyer of uncommon experience. But how much of it will be helpful in managing the government’s most unruly new bureaucracy remains to be seen.

As a federal prosecutor, Chertoff took on mobsters and corporate scoundrels; as the top criminal official in the Justice Department on Sept. 11, 2001, he went after suspected terrorists. He has been a defense lawyer at a large law firm and, for the last year and a half, a judge on the 3rd U.S. Circuit Court of Appeals in Philadelphia.

He has built a remarkable track record while managing to escape some of the criticism that civil liberties groups have lodged against the Bush administration and Chertoff’s one-time boss -- Atty. Gen. John Ashcroft -- over the treatment of immigrants and suspects rounded up after the terrorist attacks.

Chertoff, 51, is expected to win Senate approval.

“Among the potential choices, I think he is better than a politician, better than someone without experience in law enforcement, and better than a police officer,” said Joshua L. Dratel, a New York defense lawyer who has represented a number of people targeted by the administration in terrorism cases. “He has a broad range of experience, and he is capable of an intellectual approach to problems.”

But Bush’s surprise pick lacks experience in the nuts-and-bolts issues that he will face as the nation’s domestic security chief. He will inherit a massive and relatively new agency that has struggled with multiple missions, high personnel turnover and sagging morale.

“The president clearly sacrificed having someone with deep knowledge of critical areas within the department for someone who will be safely confirmed,” said Michael Greenberger, a former Justice official and head of the Center for Health and Homeland Security at the University of Maryland.

“He does not have the substantive knowledge. People are hoping that his intelligence, energy and thoughtfulness will compensate for that,” Greenberger said.

“He would have been a great choice for attorney general,” Greenberger said. “But he is going to be the head of DHS, and his relationship with fire departments, police chiefs and emergency medical technicians are going to be more key than dealing with enemy combatants. Those are issues I am sure he has not given a lot of thought to.”

But the nominee’s supporters say he has plenty of qualities that will allow him to succeed. And at a time when Homeland Security and the Justice Department -- including the FBI -- were struggling to sort out their roles in investigating potential acts of terrorism, backers said that Chertoff could provide an important bridge to cooperation.

“Tom Ridge [the first Homeland Security chief] has done a great job starting the department from scratch, and Chertoff will take it to the next level,” said Viet D. Dinh, a Georgetown University law professor who worked with Chertoff at the Justice Department.

Chertoff, Dinh said, is “the perfect choice. He is tough. He is smart.”

Like Bernard Kerik, the former New York City police commissioner who was the administration’s first choice for the Homeland Security job, Chertoff once worked for former New York Mayor Rudolph W. Giuliani. He was an assistant U.S. attorney when Giuliani was the top federal prosecutor in New York in the 1980s.

Kerik’s nomination was derailed last month because of his failure to pay Social Security taxes for a nanny who might have been in the country illegally, among other problems.

As head of the criminal division at the Justice Department, Chertoff was an architect of many of the legal policies that the government implemented after Sept. 11, including helping to write the terror-fighting Patriot Act and revising Justice guidelines that made it easier for the FBI to monitor religious and political gatherings with undercover agents.

While Ashcroft was comparing the war on terror with the department’s war on organized crime in the 1960s -- with investigators on the ground charged with taking preemptive steps to head off acts of terrorism -- it was left to Chertoff, the former mob-busting attorney in New York and New Jersey, to implement the strategy.

But he did not do so unquestioningly. He voiced concern about the legal rights of suspected terrorists, for example; he was adamant in his belief that the government should use a civilian court, rather than a military tribunal, to try the case of Zacarias Moussaoui, the former flight school student who is the only person charged by the government in connection with the Sept. 11 plot.

“Even though he was a policy architect, he was so smart and so thoughtful and so thorough that nobody could conceive of him as being an Ashcroft functionary,” Henry Klingeman, a former federal prosecutor in New Jersey, said of Chertoff.

The record of prosecutions that Chertoff supervised was mixed. The department won scores of convictions, mainly through plea bargains and mostly on charges related to visa and other immigration problems rather than terrorism.

Since leaving the Justice Department for the federal appellate bench in 2003, Chertoff has spoken at a number of judicial conferences and forums, openly discussing the challenges prosecutors face in balancing the competing interests of national security and civil liberties.

“These are very difficult issues, and I don’t know anybody who has ever said they are not,” Chertoff said last year at a meeting of the progressive American Constitution Society for Law and Policy.

His remarks came during a panel discussion of the problems of detaining suspected terrorists without formal charges.

Chertoff said there were “practical reasons and precedents that support the idea of detaining people in a wartime situation.”

But, he said, “Plainly, you can see the logic of detention can take you in a place where you do not want to go. It suggests a complete reversal of the normal presumption -- that people are presumed innocent.”

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Michael Chertoff

Age/Birthday: 51, born Nov. 28, 1953.

Education: Bachelor’s degree, Harvard University, 1975; law degree, Harvard University, 1978.

Experience: 2003-present, judge on the 3rd U.S. Circuit Court of Appeals; headed Justice Department’s criminal division, 2001 to 2003; federal prosecutor in New Jersey, 1990 to 1994.

Family: Married, two children.

Los Angeles Times