A Smarter Choice

Utterly humiliated by his first pick to run the Department of Homeland Security, President Bush has fallen back on a solid second choice, Michael Chertoff, a federal appeals court judge and the former head of the Justice Department’s criminal division.

It’s not an uncommon pattern in Washington: An ill-advised nomination derailed by scandal tends to focus the mind and lead to smart personnel choices.

“Smart” is the word most often associated with Chertoff. A law clerk to Justice William J. Brennan upon graduating from law school, Chertoff became an aggressive federal prosecutor in New York and New Jersey before heading back to Washington. He is known for his keen intellect, probity and the kind of tenacity that led the Justice Department to literally kill off the Arthur Andersen accounting firm in response to the Enron scandal. Chertoff is unlikely to have much patience for bureaucratic infighting or excuses that get in the way of strengthening the new, sprawling federal department, which integrates 22 agencies with a total of 180,000 employees.

Chertoff is a loyal Republican but no ideologue. He was chief counsel on the Senate Whitewater committee during the Clinton administration. Though he never overstepped his bounds in that role, he should regret his involvement in what turned out to be a groundless vendetta. He was ahead of the curve on the terrorist threat, arguing in a 1996 law journal article that law enforcement officials needed more power to track down terrorists. His suggestions raised some hackles among civil libertarians, and he later gave them concrete reason to complain. As head of the criminal division of the Justice Department, Chertoff was one of the architects of the Patriot Act and signed off on detaining people of Middle Eastern descent for prolonged periods as “material witnesses.”

But in the immediate aftermath of 9/11, some overreaction was inevitable. To his credit, Chertoff battled at the time against extremists in the Pentagon and the White House who wanted to rely on military tribunals to try suspected terrorists, even within the United States. What’s more, he has shown intellectual flexibility: He has publicly questioned the administration’s indefinite detention of enemy combatants at Guantanamo Bay, a policy he formerly backed.

At his confirmation hearing, Chertoff should be asked to clarify his current thinking on the proper balancing of freedom and security. He also should address concerns about his lack of significant executive experience.

Then again, his predecessor, Tom Ridge, a former governor of Pennsylvania, was not a resounding success at the job, despite his managerial experience and diplomatic tact. When it comes to getting this unwieldy bureaucracy working effectively to protect the country, a tough prosecutor with a brilliant mind may be just what we need.