<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:20170.wais]
S. Hrg. 109-6
NOMINATION OF HON. MICHAEL CHERTOFF
=======================================================================
HEARING
before the
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
ON THE
NOMINATION OF HON. MICHAEL CHERTOFF TO BE SECRETARY OF HOMELAND
SECURITY, U.S. DEPARTMENT OF HOMELAND SECURITY
__________
FEBRUARY 2, 2005
__________
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Committee on Homeland Security and Governmental Affairs
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio CARL LEVIN, Michigan
NORM COLEMAN, Minnesota DANIEL K. AKAKA, Hawaii
TOM COBURN, Oklahoma THOMAS R. CARPER, Delaware
LINCOLN D. CHAFEE, Rhode Island MARK DAYTON, Minnesota
ROBERT F. BENNETT, Utah FRANK LAUTENBERG, New Jersey
PETE V. DOMENICI, New Mexico MARK PRYOR, Arkansas
JOHN W. WARNER, Virginia
Michael D. Bopp, Staff Director and Chief Counsel
Johanna L. Hardy, Senior Counsel
Joyce A. Rechtschaffen, Minority Staff Director and Counsel
Adam Sedgewick, Minority Professional Staff Member
Amy B. Newhouse, Chief Clerk
C O N T E N T S
------
Opening statements:
Page
Senator Collins.............................................. 1
Senator Lieberman............................................ 3
Senator Warner............................................... 4
Senator Levin................................................ 5
Senator Coleman.............................................. 6
Senator Akaka................................................ 7
Senator Bennett.............................................. 10
Senator Dayton............................................... 10
Senator Domenici............................................. 11
Senator Lautenberg........................................... 12
Senator Carper............................................... 43
Prepared statements:
Senator Voinovich, Coburn, and Pryor......................... 59
WITNESSES
Wednesday, February 2, 2005
Hon. Jon Corzine, a U.S. Senator from the State of New Jersey.... 14
Hon. Michael Chertoff, to be Secretary of Homeland Security, U.S.
Department of Homeland Security................................ 16
Alphabetical List of Witnesses
Chertoff, Hon. Michael:
Testimony.................................................... 16
Prepared statement........................................... 72
Biographical and financial information....................... 74
Corzine, Hon. Jon:
Testimony.................................................... 14
Prepared statement........................................... 65
APPENDIX
Article from The Washington Post, January 31, 2005, entitled
``Civil Service Reform''....................................... 61
Series of three FBI E-mails submitted by Senator Levin........... 62
Responses to pre-hearing questions for the record for Mr.
Chertoff....................................................... 87
Responses to pre-hearing questions for the record for Mr.
Chertoff from:
Senator Levin................................................ 236
Senator Lieberman............................................ 247
Responses to post-hearing questions for the record for Mr.
Chertoff from:
Senator Collins.............................................. 249
Senator Collins on behalf of Senator Specter................. 257
Senator Stevens.............................................. 261
Senator Coleman.............................................. 262
Senator Coburn............................................... 264
Senator Chafee............................................... 265
Senator Domenici............................................. 267
Senator Lieberman............................................ 272
Senator Levin................................................ 284
Senator Akaka................................................ 290
Senator Carper............................................... 303
Senator Lautenberg........................................... 307
Senator Pryor................................................ 308
Letters of Support or Concern submitted for the Record from:
International Union of Operating Engineers....................... 310
Airforwarders Association (AfA).................................. 311
Honduran Unity--Unidad Hondurea.................................. 314
Republican Governors Association................................. 315
Fraternal Order of Police........................................ 318
National Association of Emergency Medical Technicians............ 319
Hispanic Association of Colleges and Universities (HACU)......... 320
National District Attorneys Association.......................... 321
Georgia Association of Emergency Medical Services, Inc........... 322
National Asian Pacific American Bar Association.................. 323
ASIS International............................................... 325
National Sheriffs' Association................................... 326
Federal Law Enforcement Officers Association..................... 327
Port Authority of New York and New Jersey........................ 329
Numerous organizations........................................... 330
NOMINATION OF HON. MICHAEL CHERTOFF
----------
WEDNESDAY, FEBRUARY 2, 2005
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10:03 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. Susan M.
Collins, Chairman of the Committee, presiding.
Present: Senators Collins, Coleman, Bennett, Domenici,
Warner, Lieberman, Levin, Akaka, Dayton, Carper, and
Lautenberg.
OPENING STATEMENT OF CHAIRMAN COLLINS
Chairman Collins. Good morning. The Committee will come to
order.
Today, the Committee on Homeland Security and Governmental
Affairs will consider the nomination of Judge Michael Chertoff
to be the Secretary of the Department of Homeland Security.
This is an extraordinarily challenging job, a job that requires
an individual with extraordinary leadership skills,
extraordinary dedication, extraordinary energy, and at times,
extraordinarily thick skin.
Before I begin, I would like to express my gratitude to the
person Judge Chertoff seeks to replace. Following the attacks
of September 11, Tom Ridge answered the call of service to his
country. At a time when homeland security was little more than
a concept, Tom Ridge stepped forward to begin the monumental
task of making it a reality. He is a pioneer and a patriot, and
on behalf of all Americans, I thank him and wish him great
success in his future endeavors.
Judge Chertoff now steps forward to answer that call. The
strengths and experience he brings are impressive. He has
devoted a significant part of his life to public service, as a
Federal prosecutor in New Jersey, then as head of the Justice
Department's Criminal Division, and now as a Federal judge. As
the overwhelming vote for his confirmation 2 years ago
demonstrated, he is well respected on both sides of the aisle.
That is also evident from the fact that two of our
distinguished Democratic colleagues are here to introduce him
this morning.
Since September 11, Judge Chertoff has established himself
as a leading expert on the legal and national security issues
surrounding the war on terrorism.
The purpose of this hearing is, of course, to evaluate the
qualifications, integrity, and positions of the nominee. It is
inevitable and necessary that we do so in the context of where
the Department currently stands and where we want it to go. To
do that, I believe it is important that we should also consider
the context in which the Department was born.
In the immediate aftermath of September 11, America was a
Nation determined to defeat terrorism, but still feeling its
way toward an effective response. We knew from the start that
ensuring our Nation's security should not come at the cost of
our civil liberties, the very freedoms that Americans cherish
and that define us as a country. In those perilous, uncertain
days, we also knew that we needed to take decisive action
immediately to protect our citizens from further attacks. Some
now question whether we tilted the balance too far towards
security. It is always appropriate to ask that question, but it
is also important to remember the atrocities that led us to
take action and to remember that the threat continues today.
One of the difficult balancing questions that has been
raised in conjunction with this nomination is the matter of
interrogating those detained in the war on terror. In his
responses to our written questions, Judge Chertoff makes
absolutely clear that he believes that torture is wrong, no
matter where it occurs. Of course, that is exactly right. But
the larger issue of security versus liberty is much more
complex and I very much look forward to discussing this balance
with Judge Chertoff today.
Since it began operations nearly 2 years ago, the
Department of Homeland Security has made considerable progress
in its mission of protecting our Nation against terrorism and
improving our ability to respond should an attack occur. The
melding of 22 Federal agencies with some 185,000 employees has
proven to be a task as difficult as it sounds, but it has not
been the impossibility that some predicted. We are, in fact,
better protected today and our ability to respond is greatly
improved.
This new year begins, however, with fresh reminders of the
great challenges that lie ahead. A week ago, this Committee
held an oversight hearing to assess those challenges and they
are considerable. From the lack of long-range strategic
planning to an inefficient management structure to unexplained
delays in the Transportation Worker Identification Credential,
our expert witnesses made a powerful argument that homeland
security remains very much a work in progress.
The Government Accountability Office's high-risk list
released last week bolsters that assessment. Many of the
difficulties the GAO foresaw 2 years ago in consolidating 22
separate agencies into one new and cohesive Department remain
to be overcome. Now, the GAO additionally finds that
information sharing, both within the Department and with other
departments and other levels of government, is a weakness that
also must be addressed.
There are other important challenges that the new Secretary
will face. They include strengthening the security of our
ports, ensuring adequate funding for our first responders,
fostering stronger relationships with State and local law
enforcement, and securing our critical infrastructure. The new
Secretary will have a full plate.
The Committee looks forward to hearing Judge Chertoff's
views about the direction and the future of the new Department
as well as his own priorities.
Senator Lieberman.
OPENING STATEMENT OF SENATOR LIEBERMAN
Senator Lieberman. Thanks, Madam Chairman, and welcome,
Judge Chertoff. Madam Chairman, I was thinking as I was
listening to your opening statement that after our work
together on the intelligence reform bill last year, you said it
would be dangerous if we ever didn't agree on something because
we know so much about how each other thinks. Your opening
statement proves that either that is true or we have the same
person drafting our opening statements. [Laughter.]
So I will speak more briefly than I had intended. The fact
is that the Department of Homeland Security, in the 2 years
since this Committee led the way in creating it, has become the
leader in the U.S. Government in protecting the security of the
American people here at home.
And you are absolutely right, Senator Collins. Secretary
Ridge deserves credit for beginning the enormous transformation
that the Homeland Security Department's creation required, and
for enabling us all to say today that we are safer than we were
on September 11, 2001.
Yet as you know, Judge Chertoff--and as we heard from the
panel of experts and independent analysts that we had in here
last week--significant challenges await the next Secretary,
ranging from the development of a clear strategic plan--and I
do not see how we can ask you to do the job that we want you to
do and that I know you want to do, without having a plan which
includes setting of priorities for the Department in a time
when you just can not do everything right away--to improving
the Department's day-to-day operations.
We heard some very powerful testimony that the position of
Secretary of Homeland Security and those who serve the
Secretary as deputies may not have all the authority that they
need to carry out their responsibilities that we have given
them. They may not, in fact, have within their own offices the
staff that they need to carry out their responsibilities that
we have given those offices.
There was a suggestion made last week by several of the
experts in regard to the lack of a strategic plan and
priorities for the agency that we establish an Under Secretary
for Policy and Planning. I gather that you have expressed some
interest in the creation of that position. I look forward to
hearing your thoughts on it today.
But most importantly, the Department has to receive
adequate financial support to carry out the enormous
responsibilities we have given you in law to protect the
American people from a terrorist who will strike us where we
are vulnerable. And in an open society, there are many
vulnerabilities. We are never going to be able to close them
all against fanatics who, as someone else has said, hate us
more than they love their own lives. They are prepared to take
their own lives in destroying us.
But we know that there remain persistent vulnerabilities
that we have to close at our borders and ports, within our rail
and transit system, at the Nation's core energy,
telecommunications, water, transportation, financial, and
chemical industry networks that exist. The Coast Guard is in
dire need of a modernized fleet. The administration and we must
do more to prepare the Nation for a possible bioterror attack
that could put millions of Americans at risk.
The bottom line is, this Department needs more authority
from us to help you do what we have asked you to do in our
defense. It needs more money. I just can not cloud that in any
other way. I know how difficult it will be in a resource-
limited environment, but we have the best military in the world
and therefore the best international security operation in the
world today because we have invested in it, and we will only
have the same here at home if we invest in it.
To do that, we are going to have to regain some of that
sense of urgency that propelled us following September 11,
2001, and we are going to have to express that urgency in the
way we support and you administer the Department of Homeland
Security.
Judge Chertoff, I have examined your record. I have had the
chance to speak to you at some length. You have served your
country with distinction. I greatly appreciate your willingness
to leave the circuit court to take on these truly awesome
responsibilities.
I think you know that a number of questions have been
raised in recent days, as the Chairman indicated, about your
role in the administration's prosecution of the war on terror,
most recently with regard to advice you provided regarding the
laws prohibiting torture, advice you may have provided while
you were head of the Justice Department's Criminal Division. I
know that you discussed that issue with the Committee's staff
extensively on Monday. Today, I think it is important that you
discuss these issues publicly before the Committee and the
American people.
My interest here is, first, to determine what your role was
in those various policies, what your opinions are today with
regard to those. But then, second, notwithstanding whether we
agree or disagree with you about your course of conduct in
those matters or your opinions today, if they in any way affect
your ability to assume the responsibilities for which you are
nominated. Otherwise, beyond those questions, I would say you
are extraordinarily well qualified for the position.
I look forward to the testimony and ultimately I look
forward to working with you to keep America and the American
people safe from terrorist attack. Thank you.
Chairman Collins. Thank you, Senator Lieberman.
As is customary, we will be following the early bird rule
and I will now call upon the other Members for opening
statements, not to exceed 3 minutes in length. Senator Warner.
OPENING STATEMENT OF SENATOR WARNER
Senator Warner. Thank you, Madam Chairman.
Welcome, Judge. We had a wonderful visit in my office,
exchanged our respective views very cordially and very
forthright. We both started our careers as law clerks for the
Federal judiciary and you succeeded. You ended up on the bench.
This country owes you a great debt of gratitude, having
resigned that position to which you aspired, I presume most of
your life, to take on the new challenges of this day. So as a
citizen, we thank you for that, and your family.
I would simply say, Madam Chairman, that we take notice
that the U.S. Senate has confirmed this extraordinary public
servant on one occasion and I anticipate, and I intend to give
you my support, you will be confirmed again.
Once in office, I will try and offer to work with you to
see that there is a seamless and full cooperation between the
Department of Defense, over which I have some responsibilities
together with several members, the chairman and ranking member
on my committee, the Armed Services, and your new Department,
because America deserves no less than the full coordination of
every single asset we have to perform your challenging mission.
Good luck.
Chairman Collins. Thank you, Senator. Senator Levin.
OPENING STATEMENT OF SENATOR LEVIN
Senator Levin. Thank you, Madam Chairman, and welcome,
Judge Chertoff.
The new Secretary of Homeland Security will have an
enormous challenge, including strengthening the programs that
fund our domestic preparedness and response capabilities,
protecting our borders and ports, and improving our
transportation security, and taking all the necessary steps to
enhance our collective security without eroding our core
values.
I want to thank our Chairman and Ranking Member for making
reference to Governor Ridge and the dedication that he showed
towards that challenge. I know that you both spoke for really,
I am sure, every Member of this Committee and every member of
Senate and the people of the United States in expressing our
gratitude to Secretary Ridge.
There are a lot of funding issues that relate to the
Department that Judge Chertoff will hopefully address. The
State Homeland Security Grant Program, which is one of the most
important sources of funding for our first responders, was
actually cut last year. The administration requested only $700
million for the program, which had been funded at $1.7 billion
in fiscal year 2004. Congress stepped in and increased the
amount to $1.1 billion in the final Homeland Security
appropriations bill. But if we are serious about homeland
security, we have to fund it.
We also need to change the way funding is distributed by
allocating it to those areas where the threat and the risk of
attacks are most significant. The existing funding formula used
to allocate funding in some of the largest Department of
Homeland Security grant programs has led to some irrational and
some inequitable results. Secretary Ridge opposed the formula
that led to those results and the administration said it would
propose that the funding be allocated more on risk.
I look forward to Judge Chertoff's perspective on those
funding issues, as well as a number of issues which have been
raised.
I raise issues which he addressed as head of the Criminal
Division at the Department of Justice. He headed the division
from May 2001 until March 2003. Judge Chertoff, you have a
reputation of being a thoughtful person and a straight shooter,
and the presence of these two Senators from New Jersey here
today in support of your nomination is surely a testimony, an
eloquent testimony, of that reputation.
The Justice Department's Office of Legal Counsel, which is
a different division from yours, took actions that were
troubling during the period in which you headed the Criminal
Division, most notably its promulgation of legal theories
circumventing legal prohibitions against torture and inhumane
treatment of detainees. Judge Chertoff's role in the
development of those legal theories needs to be clarified.
Those theories helped to create an environment in which the
abusive behavior of prisoners was either permitted or was
perceived to be permitted. That distortion of our legal and
moral obligation to treat prisoners humanely undermines the
safety of our troops. It also undermines our standing in the
world.
Judge Chertoff's written answers to pre-hearing questions
state that he reviewed a draft of the August 1, 2002, Office of
Legal Counsel memorandum that interpreted the definition of
torture prohibited under our anti-torture laws. That
discredited August 2002 memorandum defined what constitutes
prohibited torture very narrowly, including the claim that,
``physical pain amounting to torture must be equivalent in
intensity to the pain accompanying serious physical injury,
such as organ failure, impairment of bodily functions, or even
death.''
Judge Chertoff has acknowledged that he was consulted on
how he, as chief Federal prosecutor, would apply the law. Last
weekend, The New York Times reported that the Justice
Department's Criminal Division, then under Judge Chertoff, was
consulted on several occasions by the CIA as to whether their
agents could be subject to criminal prosecution for using
specified interrogation techniques, and I hope Judge Chertoff
will elaborate on the advice that he and the Criminal Division
provided regarding the definition of torture and the legality
of specific interrogation techniques.
There are other events that were reported to have occurred
during Judge Chertoff's tenure at the Department of Justice
that I hope he will address, as well. For example, a report
from the Department's Inspector General stated that some
alleged immigration law violators detained following the
September 11 attacks were prevented from obtaining counsel in a
timely fashion.
So again, I thank you, Madam Chairman and Senator
Lieberman, for your comments. I share those thoughts of yours
not only relative to Governor Ridge but relative to the
principal role of this agency which Judge Chertoff is going to
head and I believe can head with distinction.
Chairman Collins. Thank you. Senator Coleman.
OPENING STATEMENT OF SENATOR COLEMAN
Senator Coleman. Thank you, Madam Chairman. I want to thank
you for moving so quickly on this very important hearing that
we are having today. Thank you for your leadership.
I want to join in those who have acknowledged and applauded
Tom Ridge. No one expects the Secretary of Transportation to
prevent every highway death. No one expects the Director of the
EPA to prevent all pollution. But we expect the head of
Homeland Security in this country to make sure that America is
safe and not failing, would have a tremendous impact. So it is
an extraordinarily difficult job and Secretary Ridge did an
extraordinary job.
Judge Chertoff, there is no question in my mind about your
qualifications, and the Chairman laid out that this hearing is
about qualifications and integrity of your position in terms of
leading this Department. I think you come with extraordinary
credentials.
The one concern I have as a former mayor, as a local
official, and reflecting on your background as a Federal
prosecutor and as a Federal judge, as working in the Justice
Department, is the level of coordination between this
Department and folks at the local level. I remain deeply
concerned about that. Part of it goes to funding. We had a
situation in Minnesota where the Twin Cities, as they are known
in the Twin Cities, perhaps not in Washington, but as the Twin
Cities, Minneapolis gets funded and St. Paul gets zeroed out.
And the level of communication with local elected officials, in
that instance, the mayor is called the morning of the
announcement. There is no communication, no consultation.
As I speak to law enforcement folks, first responders, they
still raise concerns today about the level of communication.
International Falls, Minnesota, is in a rural area. It is the
coldest place in the United States. It is one of the 50 busiest
land ports of entry in the United States. We have two nuclear
facilities, one in Red Wing, Minnesota, a rural area on the
Mississippi River, one in Monticello, outside the urban center
and considered a rural area. And the level of communication
between folks at the Federal level and the local level has to
be better than it is.
So I look at that funding issue that we had and the lack of
communication, lack of understanding. I speak to local law
enforcement and the concerns are there and they are still
there. So certainly in my questioning, I hope we can discuss
your vision for what can we do to improve the level of
communication so that our real first responders know what is
going on, are in consultation, are in contact, are consulted
and have the level of confidence they need to be the ones who,
God forbid there ever is an attack on our homeland, have the
ability to respond in the right way.
So with that, I do look forward to this hearing. Thank you,
Madam Chairman.
Chairman Collins. Thank you. Senator Akaka.
OPENING STATEMENT OF SENATOR AKAKA
Senator Akaka. Thank you very much, Madam Chairman. I want
to thank you for expediting this hearing of the confirmation of
Judge Michael Chertoff.
I want to welcome Judge Chertoff to this Committee with my
congratulations on your nomination. I also want to welcome your
family who are present here today. I am certain that they all
share your pride in being nominated as Secretary of the
Department of Homeland Security.
My colleagues and I will lay before you a variety of issues
that concern us and suggest solutions, just as we did with your
predecessor, Secretary Ridge, who led this new agency with
strength and grace. DHS remains an agency still in the process
of being created.
Madam Chairman, I would ask that my full statement be
placed in the record.
Chairman Collins. Without objection.
[The prepared statement of Senator Akaka follows:]
PREPARED STATEMENT OF SENATOR AKAKA
Judge Chertoff, please accept my heartiest congratulations on your
nomination. I welcome you and your family today. I am certain they all
share your pride in being nominated as Secretary of the Department of
Homeland Security (DHS).
Today's hearing presents a special opportunity for you to
articulate your vision of how DHS will carry out its mission of
defending the Nation's borders and protecting us from terrorism while
defending our civil liberties. The challenges you will face, if
confirmed, are demanding and will require you to search for answers
beyond the commonplace and apply your impressive skills to this new
job.
My colleagues and I will lay before you a variety of issues that
concern us and suggest solutions just as we did for your predecessor,
Secretary Ridge, who led this new agency with strength and grace. But
DHS remains an agency still in the process of being created. The
December 2004 DHS Inspector General report on management challenges
outlines an array of worrisome problems--some of which are to be
expected when 22 entitles are combined in a single department.
I have a number of concerns, some of which I will summarize today.
I want your assurance that you will defend the Constitution to
safeguard our civil liberties. The price of security should never erode
our constitutional freedoms, which are essential to the preservation of
this democracy.
When we met a couple of days ago, you and I talked about the just-
released personnel regulations covering the 180,000 men and women who
staff DHS. To make these new regulations work, there must be
significant and meaningful outreach to this dedicated workforce, their
unions, and their managers.
With just about half of the Federal workforce eligible for
retirement in the next 5 years, DHS and other Federal agencies must
promote a sense of trust and a sense of worth among its employees.
Madam Chairman, I wish to insert into the record an editorial from
the January 31, 2005,\1\ Washington Post that goes straight to my
concerns about the new DHS personnel rules: Implementing a pay for
performance system without a strong performance management system in
place, internalizing employee appeals without independent members and
adequate external oversight, and the continued position by some that
belonging to a union is a threat to national security.
---------------------------------------------------------------------------
\1\ Article from The Washington Post, appears in the Appendix on
page 61.
---------------------------------------------------------------------------
Judge Chertoff, it will be up to you to make sure that DHS recruits
and retains the best and brightest to be on the front lines of our
national defense.
DHS has been given, by statute, a prominent seat in the
Intelligence Community. But the Department will need to earn the
respect of that community through the quality of its analysis and its
response to threats.
The Department must have the financial management systems and
practices in place to provide meaningful and timely information needed
for sound and efficient management decisionmaking. I am particularly
pleased that a provision similar to legislation I sponsored with our
former colleague, Senator Peter Fitzgerald, is now law, thus bringing
DHS under the Chief Financial Officers Act and ensuring a Senate-
confirmed CFO who reports directly to the Secretary of DHS.
Judge Chertoff, when we met earlier this week we also discussed my
home State of Hawaii. Given the State's unique geographic location,
nearly 2,500 miles from the West Coast, there are unique challenges to
securing Hawaii from asymmetric threats. For example, when disaster
strikes, Hawaii cannot call on neighboring States for assistance due to
the distance and time differences. Our eight inhabited islands must be
self-sufficient. Secretary Ridge recognized this and took the
opportunity to visit Hawaii. I hope you will go there, too.
Hawaii, as an island State, depends heavily on air travel. We are
waiting for TSA funding to install in-line Explosive Detection System
(EDS) machines. This need is critical at all our airports. Honolulu
International Airport serves more than 20 million travelers each year,
and each of the other islands have international travelers as well. In
fact, the neighbor islands combined serve as many visitors as Honolulu.
Because tourism is the State's largest industry, crowded lobbies due to
long wait times pose a threat to this critical economic sector.
Judge Chertoff, I look forward to a productive working relationship
with you. Congress was the impetus for creating DHS. We want to work
with you to ensure the Department carries out its mission. I am pleased
you have stressed the need to cooperate closely with Congress,
particularly this Committee, and to provide the information we need to
do our job. You will find this Committee very detailed-oriented; but
details are necessary to conduct effective oversight in order to
provide you with the resources and support you will need to be
successful.
Thank you Madam Chairman. I look forward to hearing from our
nominee.
Senator Akaka. I have a number of concerns, some of which I
summarize today. I want your assurance that you will defend the
Constitution to safeguard our civil liberties. The price of
security, we know, should never erode our constitutional
freedoms, which are essential to the preservation of this
democracy.
We met a couple of days ago. You and I talked about the
just-released personnel regulations covering the 180,000 men
and women who staff DHS. To make these new regulations work,
there must be significant and meaningful outreach to the
dedicated workforce, the unions, and their managers.
Madam Chairman, I wish to insert into the record an
editorial from the January 31, 2005, The Washington Post that
goes straight to my concerns about the new DHS personnel
rules.\1\
---------------------------------------------------------------------------
\1\ Article from The Washington Post, January 31, 2005, entitled
``Civil Service Reform,'' appears in the Appendix on page 61.
---------------------------------------------------------------------------
Chairman Collins. Without objection.
Senator Akaka. That article talks about implementing a pay-
for-performance system without a strong performance management
system in place, internalizing employee appeals without
independent members and adequate external oversight, and the
continued position by some that belonging to a union is a
threat to national security.
DHS has been given by statute a prominent seat in the
Intelligence Community, but the Department will need to earn
the respect of that community through the quality of its
analysis and its response to threats. The Department must have
the financial management systems and practices in place to
provide meaningful and timely information needed for sound and
efficient management decisionmaking.
I am particularly pleased that a provision similar to
legislation I sponsored is now law, thus bringing DHS under the
Chief Financial Officer's Act and ensuring a Senate-confirmed
CFO who reports directly to the Secretary of DHS.
Judge Chertoff, when we met earlier this week, we also
discussed my home State of Hawaii. Given the State's unique
geographic location, 2,500 miles from the West Coast, there are
unique challenges to securing Hawaii from asymmetric threats.
For example, when disaster strikes, Hawaii cannot call on
neighboring States for assistance due to distance and time
difference. Our eight inhabited islands must be self-
sufficient. Secretary Ridge recognized this and took the
opportunity to visit Hawaii, and I hope you will be there, too.
Hawaii, as an island State, depends heavily on air travel.
We are waiting for TSA funding to install in-line explosive
detection system machines. This need is critical at all our
airports. Honolulu International Airport serves more than 20
million travelers each year, and each of the other islands have
international travel, as well. In fact, the neighbor islands
combined serve as many visitors as Honolulu does. Because
tourism is the State's largest industry, crowded lobbies due to
long wait times pose a threat to this critical economic sector.
Judge Chertoff, I look forward to a productive working
relationship with you. I am pleased you have stressed the need
to cooperate closely with Congress, particularly this
Committee, and to provide the information we need to do the job
together. You will find this Committee very detail-oriented,
but details are necessary to conduct the effective oversight in
order to provide you with the resources and support you will
need to be successful.
Thank you, Madam Chairman.
Chairman Collins. Thank you. Senator Bennett.
OPENING STATEMENT OF SENATOR BENNETT
Senator Bennett. Thank you, Madam Chairman.
I first met Michael Chertoff as a very green, very new
Member of the U.S. Senate when Senator Riegel was chairing the
Whitewater hearings and Michael Chertoff came in to inform
those of us that were unburdened with a legal education as to
what was really going on. I was tremendously impressed with him
at that time, learned a great deal from him, and have followed
his career with great interest.
I am happy to make it clear that I will be a very
enthusiastic endorser for his nomination. Mr. Secretary, I
think it is, echoing what Senator Warner said, a demonstration
of your willingness to serve your country that you will give up
a lifetime appointment with a permanent pension to step into a
situation that can only be described as dysfunctional.
That in no way is a criticism of Secretary Ridge. I said to
this Committee and my colleagues when the Department was
created, let us be under no illusions that it will work for at
least 5 years. The past history of departments put together
like this demonstrates that the administrative challenge of
making something like this work requires a tremendous amount of
time and a tremendous amount of talent, and I agree with those
Senators who said that Secretary Ridge has handled the first 2
years with great distinction. But the challenge is still just
as great and I, for one, am grateful to you, Mr. Secretary, for
your willingness to take it on.
I will have some specific questions about the area of
greatest concern that I have, which is cyber security, which I
have discussed with the nominee in the confines of my office,
and I will save that for the questioning period.
Chairman Collins. Thank you. Senator Dayton.
OPENING STATEMENT OF SENATOR DAYTON
Senator Dayton. Thank you, Madam Chairman.
Senator Bennett mentioned a lifetime appointment and a
permanent pension. He didn't mention you also wouldn't have to
appear before Senate committees, but all the more to your
credit that you are willing to take this assignment on. I
apologize for not being able to meet with you. Mad cow disease
is one of the priorities in Minnesota, so I apologize that that
intervened.
I will save most of my comments for the questioning period,
but I do support very strongly what my colleague from Minnesota
said. You notice there are two Minnesotans on this Committee,
so I will be watching to see if you visit International Falls
twice for every one time you go to Honolulu. [Laughter.]
Particularly since this body has in the past debated the
need for additional funds for first responders, for local
enforcement and response efforts and the majority decision was
not to provide that additional funding, it is particularly
distressing to see these, what appear to me to be very
arbitrary and nonsensical elimination of funding for certain
areas while others continue at the same or even reduced level.
Senator Levin had mentioned the threat assessment. The
people I represent, the threat is omnipresent and telling
people in one area that their threat is not real in an era
where, as September 11 showed, even the inconceivable is
possible, just is not something that I can get away with saying
in Minnesota and I defer to my colleagues elsewhere.
I also want to address later the Transportation Security
Agency. One thing we are all experts on is flying and getting
in and out of airports and the like, and while there have been
some improvements there since pre-September 11, there is also,
in my view, as a result of some of the management decisions
that have been made, less than optimal performance and
consistency there.
So again, I will look forward to the chance to question you
and thank you very much for your dedication to our country.
Chairman Collins. Thank you. Senator Domenici.
OPENING STATEMENT OF SENATOR DOMENICI
Senator Domenici. Thank you, Madam Chairman.
Judge Chertoff, I didn't ask you to come up and visit with
me before you came here to testify because I had no reason to
interview you. I already know you. I will have ample time in
this hearing to discuss issues as I see them for my State and
we will probably do that in the next couple of days.
I want to hearken back for a minute to about 6 years ago. I
was visiting with then-President Clinton. He asked me if I
would talk with him about a problem and give him some
suggestions. The problem was the Immigration Service and the
Border Patrol and he said, ``Senator, do you have any ideas on
how to fix it up?'' Frankly, I said, I wish you could have
asked me about any other thing. I just don't know the answer.
Our borders are so broken that I don't know what to do about
it.
Well, we haven't fixed it. We just packaged it up and gave
it to DHS, and then we gave it an additional concern in that we
now live in an era of terrorism and our borders take on a huge
new level of importance.
I tell you that only because, Judge, you will have an
enormous job at DHS. Many of the pieces that we put together in
the Department are not functioning properly now, and it will be
very difficult to make them function after you inherit them, so
I wish you the best.
I hope you know that most of what you have to do is manage
a monster. I don't know who the President could have nominated
that would have been a natural worldwide, renowned manager. He
had a choice and he picked you, not because you are a
worldwide, renowned manager, but because you are a very
committed citizen. You are very intelligent and every
government job you have had, you have done very well. You
understand the law, and law enforcement, and that is a big part
of this job, so I wish you the very best. There is no doubt in
my mind that you will do it well.
But I don't want to join the chorus here who says you need
more money. You may need more money, but what we need to do is
make sure that you tell us what things you have to do and what
things you don't think you have to do, and I must say they are
not always consistent with Congress's wishes. That is why I
won't talk to you about how you are going to distribute money
in terms of first responders. If I were to make you respond to
that question today, you might get some Senators angry enough
that they wouldn't vote for you on the floor, because the truth
of the matter is, you can't distribute first responder money
the way all the Senators want it distributed. Some first
responder requests do not pose a significant enough risk to be
funded. You know that, and you will find it out more the longer
you are in office, without question.
I expect you, without telling us how today, to not address
every risk that everybody tells you is a threat. I expect you
to find a security plan, an overall strategy that tells us how
to assess risks, how to fund them and which ones are real
threats. Every first responder request is not responding to a
risk that is worth funding, no question about it. Everybody
that clamors for first responder money knows that, but they
want money, even for things that aren't necessarily risks we
should be taking care of.
I close with a little story. When I was 16, I had a very
bad bone problem with one of my legs. The doctor told my mother
that I shouldn't walk around too much, and over exert my leg,
and she said, ``Oh, don't worry. I will never let him move.''
And the doctor said, ``Well, if you overdo this, you could put
him in bed and leave him there, and one day you could wake up
to find that he has fallen out of bed and has broken his
neck.''
So you can't eliminate every risk. I thank you very much
for trying. Do the best you can, and good luck.
Chairman Collins. Thank you, Senator Domenici, though I am
not quite sure what the moral of that story is. [Laughter.]
I appreciate your comments.
We are very pleased this morning to be joined by two of our
distinguished colleagues who are here to present the nominee.
Senator Lautenberg is a Member of the Committee, as well, so I
would first want to see if he has opening comments that he
would like to give and then call upon him to begin the
introduction of the nominee. I would note to Judge Chertoff
that you are very fortunate to have two such distinguished
Members here with you today.
OPENING STATEMENT OF SENATOR LAUTENBERG
Senator Lautenberg. Thank you very much, Madam Chairman.
This might be considered double-dipping because first I get to
make my statement and then I get to introduce our distinguished
guest and friend.
On September 11, 2001, 700 of the Americans who lost their
lives were from our home State of New Jersey. The people of
North Jersey could see the smoke rising from the World Trade
Centers. The New York-New Jersey region was attacked on that
terrible day and our region continues to be most at risk of
terrorist attack.
This morning, there was a plane crash at Teterboro Airport,
a very busy commercial airport in our State, and as I listened
to the report on TV, the first questions that seemed to arise
from the commentators was whether this was sabotage or
terrorism. It shows you the sensitivity. If this had happened
elsewhere in the country, I doubt that question would have been
raised. But when you look at the region where the tragedy
struck on September 11 in such proportion that we are still in
shock over that day, it tells you something.
Judge Chertoff and I have discussed the FBI's finding that
the two-mile stretch between the Port of Newark and Newark
Liberty International Airport is one of the most at-risk areas
in the entire Nation for terrorist attack. That ought to be a
top priority for protection.
Now, Michael Chertoff understands that risk and
vulnerability must be the principal yardsticks. I saw his head
shaking positively as Senator Levin talked about that and
others about the risk factor. Right now, funds are not being
distributed strictly on the basis of risk and vulnerability.
But I am confident that Judge Chertoff knows that needs to be
changed.
One of the recommendations in the 9/11 Commission report
states, ``Homeland security assistance should be based strictly
on an assessment of risks and vulnerabilities and should not
remain a program for general revenue sharing.'' So Senator
Corzine and I are drafting a bill to require that all homeland
security grants for terrorism prevention and preparedness be
based on relative risk, threats, and vulnerabilities, and our
bill will follow the recommendation of the 9/11 Commission. It
will give the Secretary of Homeland Security the discretion and
the authority necessary to distribute Federal resources to
those areas that are most at risk and I hope that we will have
the support of then-Secretary Chertoff.
So I look forward to working with him on meeting the
homeland security needs of New Jersey and the entire Nation.
Madam Chairman, do I slip into my introduction at this
point?
Chairman Collins. That would be great.
Senator Lautenberg. I thank you, because we are so pleased
that President Bush has nominated a kind of hometown fellow
from New Jersey. Judge Michael Chertoff is one so well suited
for this critical position of Secretary of Homeland Security.
He has the intellect, we understand that, both academically and
as a member of the Court of Appeals. We have seen him in
several positions. I had the good fortune to have recommended
Judge Chertoff three times. In this case, it is three times and
you are in.
We are so lucky to have someone like Michael Chertoff who
can come in and take on this task following Secretary Ridge's
very arduous task and getting the framework established in the
first place. It still has plenty to go, as Michael Chertoff
knows, and he is prepared to take on that task.
Judge Chertoff has the experience to be an excellent
Homeland Security Secretary, lengthy background in law
enforcement, keen understanding of New Jersey and America's
homeland security. Judge Chertoff was born in Elizabeth, New
Jersey, and distinguished himself academically as an
undergraduate and law student at Harvard. After graduating from
law school, he served as a law clerk to Judge Murray Gurfein on
the U.S. Court of Appeals for the Second Circuit. Following his
clerkship on the Second Circuit, Judge Chertoff served as a
clerk to a legendary Justice from our home State, U.S. Supreme
Court Justice William Brennan.
In 1990, Judge Chertoff became the U.S. Attorney for the
District of New Jersey. During his tenure, which lasted 4
years, he aggressively attacked organized crime, public
corruption, health care, and bank fraud. And I particularly
appreciate the critical role that he has held in New Jersey,
getting the State Legislature to investigate racial profiling
in our State. There was an expression that driving while black
should not be a crime, and it was a reference to a casual
process that had people being stopped for no reason other than
the fact that they were people of color. That propelled the
bill that I introduced in the Senate to ban racial profiling.
Based on his past performance in so many different jobs, I
am confident that Judge Michael Chertoff will be a strong,
effective leader of the Department of Homeland Security and I
am also confident that he will make sure that States under
actual risk and threat of terrorism, including our own home
State, obviously, get an appropriate share of Homeland Security
funding. It does matter. We have seen reductions in funding in
two of our major cities, Jersey City and Newark, substantial
reductions, and overall, a reduction of some 30 percent in
funding available. We desperately need that help to cope with
so many problems that we have in the region.
Madam Chairman, you know that Judge Chertoff currently
serves on the prestigious U.S. Court of Appeals for the Third
Circuit and I think a good measure of his commitment to public
service, as was said by others, is to give up a lifelong
appointment on the second-highest court in the land to accept
President Bush's call to duty.
So, Chairman Collins and fellow Committee Members, I
strongly support Judge Chertoff's nomination. I am proud of him
and proud of the fact that he is going to have a chance to
serve, bringing his full skills and abilities of considerable
proportion to do this job. I urge this Committee to report the
nomination to the full Senate as soon as possible and I thank
you, Madam Chairman.
Chairman Collins. Thank you, Senator. Your endorsement
means a great deal to this Committee on which you have served
so well. Senator Corzine.
STATEMENT OF HON. JON CORZINE,\1\ A U.S. SENATOR FROM THE STATE
OF NEW JERSEY
Senator Corzine. Thank you, Madam Chairman and Ranking
Member Lieberman, and to all the Committee, thank you for
allowing me to join in both recommending and endorsing his
candidacy and speaking up for an individual who I deeply
believe will do an outstanding job as the Secretary of the
Department of Homeland Security.
---------------------------------------------------------------------------
\1\ The prepared statement of Senator Corzine appears in the
Appendix on page 65.
---------------------------------------------------------------------------
I will say that, hearkening back to the Morris Udall
comment that whatever could be said has been said except by who
is saying it, so I will be brief and I will submit my formal
statement for the record.
Before I do that, though, I do want to make a couple of
comments. First of all, I want to congratulate this Committee
for taking on the intelligence reform issue and driving it to
conclusion. I think the leadership, both of the Chairman and
the Ranking Member and those on the Committee, has been
extraordinary service to the country, as well as the efforts of
Secretary Ridge in serving as the initial leader of this. So I
think those need to be said.
I am sitting next to a remarkable individual. He is one of
the most able lawyers I think America has. Senator Lautenberg
talked about his credentials. He is intelligent, and as we
heard in the 9/11 Commission, we need imagination to be able to
deal in protecting the American people. No one, I think, will
bring greater intelligence and imagination to this effort than
Judge Chertoff.
I know him as an honorable and impartial man. Sometimes
people will use that he is a tough, straight shooter. I think
that is what we need in this position. He will call them as he
sees them. I think the idea that he has demonstrated, as others
have mentioned, that he is prepared to give up a lifetime
appointment to take on a job that will come with lots of rocks
and stones and bows and arrows from all of us is a statement to
how committed he is to public service.
This is the third time I have sat at a table recommending
Judge Chertoff. I have to admit he is a personal friend and I
like the idea he is from New Jersey. But I think this is one of
America's most able public servants.
I know you are going to ask questions about detention. You
are going to ask questions about torture memos and other
issues. I will refer back to the work that I saw done at the
New Jersey State Senate level with regard to racial profiling.
It was a test of balancing, protecting the American public, or
protecting the New Jersey public and our civil liberties. No
one could have done that more intelligently and then worked to
try to create legislation that would bring that to be addressed
in a way that really searched for the right balance.
I have read some of the writings, I have reviewed some of
the speeches, and I have had personal conversations about this
search for the right balance that, Judge Chertoff, we will
certainly talk to you about. I don't think there is anybody
better to be looking for this.
Finally, I would just say this is a focused individual,
policy-based, objective. I think we need to follow the 9/11
Commission's recommendation on threat and vulnerability
assessments. I would like to make that case in the context of
New Jersey. As Senator Lautenberg said, we have got this two-
mile stretch. Whatever the outcome is, we really need to make
sure that we are allocating those scarce resources that Senator
Domenici talked about based on the optimization of protecting
the American people on threat and vulnerability. I think this
is a man that will do it.
I have to lobby for something that I have been fighting for
on chemical plant security. We have seen in recent rail issues
that the vulnerability that is associated with our
infrastructure can be deadly just in its normal course of
events, let alone within the context of a terrorist attack.
I hope that when it comes to setting priorities, we will
all work to help Judge Chertoff deal with something that I know
that he will imbue in how he goes about making his judgments,
and I hope we will all help him in the day-to-day operations,
the managerial issues that I think come from a colossally
difficult job in managing 180,000 people in all of these 22
groups. I think this is the individual that will do as good a
job as anybody who could be put forward and I proudly recommend
him to the Committee. I hope you will ask great questions about
this balancing issue because I think it is the question of our
time, but I do think we have the right person and I recommend
him. Thank you.
Chairman Collins. Thank you very much, Senator.
I would be happy to have Senator Lautenberg come join us on
the panel and I would be happy to excuse Senator Corzine if you
do need to leave to go on to other events. We thank you very
much for being here today to present the nominee.
Judge Chertoff has filed responses to a biographical and
financial questionnaire, answered pre-hearing questions
submitted by the Committee, and had his financial statements
reviewed by the Office of Government Ethics. Without objection,
this information will be made part of the hearing record, with
the exception of the financial data, which are on file and
available for public inspection in the Committee offices.
Our Committee rules require that all witnesses at
nomination hearings give their testimony under oath, so Judge
Chertoff, I would ask that you stand and raise your right hand.
Do you swear the testimony you are about to give the
Committee will be the truth, the whole truth, and nothing but
the truth, so help you, God?
Judge Chertoff. I do.
Chairman Collins. Thank you. Judge Chertoff, I understand
that you have some family members present and I would invite
you to present them to the Committee at this time.
Judge Chertoff. Actually, my wife, Meryl, is present. She
is sitting right behind me.
Chairman Collins. We welcome you to the Committee today.
Judge Chertoff. I do have two children. They are at home
and they should be in school. [Laughter.]
We will find out when I get back.
Chairman Collins. Do you have a statement you would like to
make at this time? If so, please proceed with your statement.
TESTIMONY OF HON. MICHAEL CHERTOFF,\1\ TO BE SECRETARY OF
HOMELAND SECURITY, U.S. DEPARTMENT OF HOMELAND SECURITY
Judge Chertoff. Thank you. Chairman Collins, Ranking Member
Lieberman, and Members of the Committee, I am pleased to appear
before this Committee as you consider the President's
nomination of me to be Secretary of Homeland Security.
---------------------------------------------------------------------------
\1\ The prepared statement of Judge Chertoff appears in the
Appendix on page 72.
The biographical information and pre-hearing questionnaire of Judge
Chertoff appears in the Appendix on page 74.
---------------------------------------------------------------------------
I want to begin by thanking my family, whom we have just
mentioned, for their support and sacrifice.
I also want to thank Senators Lautenberg and Corzine for
their introductions. I have known them and I have been friends
with them for a long time. They are distinguished public
servants and their praise means a great deal to me
professionally and personally.
I was deeply honored by the President's decision to
nominate me to be Secretary of DHS. As I said at the time of
the announcement, if confirmed, I would feel privileged to
serve with the thousands of men and women who stand watch
protecting America's security and promoting America's freedom.
Since September 11, 2001, the challenge of our generation
has been to defend our country against the evil of terrorism
while honoring our fundamental commitment to liberties and
privacy. We must work together to preserve an America that is
safe, secure, and free.
I want to take this opportunity very briefly to outline
some of the experiences which I will bring to bear if I am
confirmed as Secretary of DHS.
As Assistant Attorney General of the Criminal Division of
the Department of Justice from 2001 to 2003, I shared in the
management of the Department during and in the wake of the
attacks of September 11. As a consequence, I have had the rare
experience of managing a critical government organization under
the stress of a national emergency. I became fully familiar
with the central elements of the war against terrorism, the
strategic response, the need to break down barriers to
intelligence sharing, the imperative of cooperating with other
agencies, including what became the Department of Homeland
Security, and the importance of negotiating cooperation with
our State and local government officials and our counterparts
overseas.
While serving as the head of the Criminal Division, I was
required to evaluate information from many intelligence
agencies as a prerequisite to operational decisionmaking. As a
result, the values and the limitations of intelligence are
familiar to me as a manager.
Additionally, I reconfigured many of our component sections
to push resources into the field and to increase our
operational capacity. My style is to lead by example, and that
includes a willingness to get into and understand the
challenges faced in the field.
I have also dealt directly with the issue of security at a
State and local level. As a young prosecutor, I worked closely
with agents from services which have now become part of DHS,
including the Customs Service and the Secret Service, and with
first responders, such as State police and local police.
As a United States Attorney in the 1990's, State and local
officials joined me in fashioning a comprehensive response to
addressing urban crime and social problems under programs such
as Weed and Seed. I have learned to appreciate the perspectives
of State and local officials because I have shared their
vantage point, and just as important, from my vantage point on
September 11 and in the weeks and months that followed, along
with everyone else in America, I saw and honored the heroism
and sacrifice of fire fighters, police, and other emergency
response professionals. If confirmed, I look forward to working
with them to make the great promise of this still young
Department a reality for them and those they serve.
I also believe the Secretary of Homeland Security will have
to be mindful of the need to reconcile the imperatives of
security with the preservation of liberty and privacy. As an
attorney representing indigent defendants, as a legislative
counsel examining racial profiling, and as a U.S. Circuit Court
judge, I have committed to fostering liberty and privacy. If
confirmed, I will draw on this background to promote measures
that enhance our security while affirming our constitutional
values.
Finally, the cornerstone of my leadership philosophy has
always been this: Respect those with whom you work. That means
invite candid discussion and advice, make prompt decisions,
articulate clear goals, expect accountability, and reward
service.
If I am confirmed as Secretary, we will work as a
Department to improve our technology, strengthen our management
practices, secure our borders and transportation systems, and
most important, focus each and every day on keeping America
safe from attacks. I will be privileged to strive under the
leadership of President Bush to accomplish these goals. I will
also look forward to working with this Committee and with
Congress in pursuit of our shared goal of keeping America
secure and free. I cannot promise perfection in our efforts,
but I can promise we will work tirelessly and do everything
within the law to keep our Nation safe.
I will be pleased to answer questions from this Committee.
Thank you.
Chairman Collins. Thank you, Judge Chertoff.
There are three standard questions that the Committee asks
of all nominees and I would like to dispose of those first.
First, is there anything that you are aware of in your
background which might present a conflict of interest with the
duties of the office to which you have been nominated?
Judge Chertoff. No.
Chairman Collins. Second, do you know of anything personal
or otherwise that would in any way prevent you from fully and
honorably discharging the responsibilities of the office to
which you have been nominated?
Judge Chertoff. No.
Chairman Collins. Third, do you agree without reservation
to respond to any reasonable summons to appear and testify
before any duly constituted Committee of Congress if you are
confirmed?
Judge Chertoff. Yes.
Chairman Collins. And Judge, I am going to add a fourth
question because this was brought up by several Members. The
Committee has several ongoing investigations involving the
Department of Homeland Security and many of us have experienced
difficulties in gaining access to information and individuals
during the course of our investigations, so I am going to ask
you, do you agree to cooperate with the Committee's
investigations?
Judge Chertoff. Yes.
Chairman Collins. Thank you, Judge.
We will now start the first round of questions. They will
be limited to 8 minutes each. I want to assure each of our
Members that there will be a second round, so I would ask you
to adhere to the 8 minutes so that every Member gets to speak
before it gets too late in the day. But there will be a second
round.
Judge Chertoff, many of the Members of this Committee have
mentioned that you are giving up a very prestigious judicial
appointment, a lifetime appointment on one of the most
prestigious courts in the country in order to take over a
troubled Department, a Department that has experienced and
undoubtedly will experience growing pains. I want to start my
questioning by asking you, why are you willing to give up your
very secure position to take on such an extraordinarily
difficult job?
Judge Chertoff. Senator, thank you for the question. I want
to begin by saying that the nomination and confirmation by the
Senate of my appointment as a circuit judge was the high point
of my professional life and I have loved every minute of my
service on the Court of Appeals.
But September 11 and the challenge it posed was, at least
by my lights, the greatest challenge of my generation and it is
one which touched me both personally and in my work at the
Department of Justice. The call to serve in helping to protect
America is the one call I could not decline, and I have to say,
since having begun the process with the announcement by the
President of his intent to nominate me, I have been privileged
as I travel back and forth from home to Washington, D.C., to
have people come up to me and express how much they care about
the work of the Department and how important it is to them. I
think they have a sense of ownership, unlike any I have ever
experienced, and that has redoubled my sense that it was right
for me, if I can add value and make a contribution, to put my
personal considerations aside and to accept this challenge.
Chairman Collins. Judge, speaking as one Senator, I am very
impressed with your commitment and your willingness to make
that sacrifice for your country. I think it reflects a deep
commitment to public service for which I salute you.
In your responses to the Committee's pre-hearing
questionnaire, you talked about the balance that I mentioned in
my opening statement between liberty and security. In a speech
that you gave at Rutgers Law School in 2003, you discussed the
balance between the government's need to exercise emergency
powers in times of crisis with the need to protect civil
liberties and you said the following, ``Measures that are
easily accepted in the sudden response to overwhelming crisis
demand somewhat greater testing in the light of experience. In
the heat of the battle, the decision maker has to rely on
foresight because he has no hindsight. We should, therefore,
not judge him in hindsight, but at the same time, when
hindsight does become available, we would be foolish if we did
not take advantage of its lessons for the future.''
You were involved in developing the Justice Department's
investigative strategy in the immediate aftermath of the
attacks on our country. In your view, looking back now, did the
Department strike the right balance in the policies that it
pursued?
Judge Chertoff. Senator, let me begin by making the
principle I believe in very clear. I believe that we cannot
live in liberty without security, but we would not want to live
in security without liberty. So we need both of those to
fashion the architecture of our civilization going forward.
I believe in the response to September 11, the Department,
at least speaking from my vantage point, did everything we
could to strike the right balance. But I also know the lesson
of history is, as I said in the speech, dealing in a crisis,
particularly an unexpected crisis, fashioning a response with
the tools that we have at hand, there are inevitably going to
be imperfections, and the critical thing is to learn from
things that experience teaches us.
In response to our efforts after September 11, I think
there has been considerable review of that, for example, by the
Inspector General. I have appreciated the opportunity to look
at what the Inspector General found and I think there are some
lessons which we have learned and can continue to learn as we
attempt to get ever closer to what I think is that ideal
balance between liberty and security.
Chairman Collins. Judge, one of the greatest challenges
that I believe that you will face is strengthening the security
of our ports. This is an area that I do believe has not
received the attention it deserves nor the funding that is
needed. The Coast Guard, for example, has estimated that
implementing the Maritime Transportation Security Act would
cost $7.3 billion over 10 years, yet in the current fiscal
year, the Department of Homeland Security will distribute only
$150 million in port security grants. That is a huge gap. But
that is a major step forward, believe it or not. That was the
first budget in which there was funding that exceeded $100
million.
We have three ports in my home State, including the
economically strategic port in Maine's largest city of
Portland. They still have significant needs in terms of port
security. I hear from the director of the port that there is
not enough flexibility in the system nor enough funding.
In response to written questions from the Committee, you
noted that this is an important area. Can you tell me what you
plan to do to improve the security of our ports and will you
push for more funding?
Judge Chertoff. Well, I am acutely aware, because I also
come from a State which has major ports, of how important the
issue of ports are from a standpoint of our security. I know
the Department has already taken steps forward in terms of the
screening and inspection of cargo. I know the Coast Guard has
taken steps to improve port security. But I know we have a lot
left to do.
My general philosophy on all of these issues of protecting
our vulnerable infrastructure is to be disciplined about
identifying and prioritizing so that we are not spending all of
our effort on one type of infrastructure, for example,
aviation, and neglecting other parts, such as ports and cargo.
I do think we need to be flexible. I think we have to have
a formula for funding and a formula for lending assistance to
State and local governments across the board that takes account
of the reality of vulnerabilities and risks in making sure that
we are making a fair allocation, and I think we need to
encourage feedback to make sure we are on the right path.
Chairman Collins. I recently visited our Nation's two
largest ports in California, Los Angeles and Long Beach. Those
two ports alone handle some 43 percent of all the containers
coming into our country. Just a couple of days after I left, an
alert crane operator spotted 32 Chinese nationals in two
separate containers who had been smuggled into the country.
That really concerns me, because if the smugglers of illegal
aliens know to use the container system, then surely al Qaeda
has identified that as a possible means of smuggling an al
Qaeda cell into our country. Despite all the high-tech cameras
and other surveillance techniques and the Department's
screening programs, none of those caught these illegal Chinese
citizens. It was, in fact, an alert crane operator.
What does that say about the effectiveness of the programs
that we have now to ensure that containers have cargo that is
harmless to our country and important to our commerce rather
than containing threats to our country, such as the makings of
a dirty bomb or even terrorists themselves?
Judge Chertoff. I share your concern about the story. I
read it. I don't know the facts. I think every time there is an
instance where we find a penetration of our security, whether
it be people coming in through containers or people slipping
things into airports, it raises a concern in my mind.
It seems to me these are opportunities to learn. We need to
go back and see what this tells us about something that we are
not doing and then we ought to make adjustments. And one of the
things I would hope to do if confirmed is set about finding out
with respect to this and other instances what the lesson is.
Chairman Collins. Thank you. Senator Lieberman.
Senator Lieberman. Thanks, Madam Chairman. Thanks, Judge
Chertoff.
I want to go to some of the questions that have been raised
about things that happened that you may have been involved in
while you were head of the Criminal Division at the Department
of Justice post-September 11. After September 11 and the
attacks, do you recall participating in the development of the
investigative strategy at the Department of Justice that led to
the detention of a large number of people on immigration
violations, I believe over 760 people?
Judge Chertoff. Yes.
Senator Lieberman. In April 2003, the Inspector General for
the Department of Justice determined that there had been
wrongdoing in the carrying out of that policy, and that many of
the detainees had been encountered by investigators
coincidentally with no connections to leads on terrorism.
Others were detained based on anonymous tips from the public
suspicious of Arab or Muslim neighbors who, in their opinion,
were keeping unusual schedules. Once detained, a significant
number of the individuals were not allowed to call their
lawyers or their family, and according to the IG, some were
physically abused. The detainees were held for an average of 80
days, according to the IG's report, primarily because of FBI
delays in clearing them, and in the end, none of the detainees
were charged in connection with terrorist activities.
Needless to say, I, and I know most everybody who read the
IG's report, was very troubled by the findings. I wanted to ask
you now what was your reaction to the report, whether you think
mistakes were made in the carrying out of that strategy that
you helped devise at the Justice Department.
Judge Chertoff. I am happy to answer that, Senator, and if
I may, just for a moment, to set the context of the policy as I
participated in formulating it.
Senator Lieberman. Please.
Judge Chertoff. I remember very vividly in the couple of
days after September 11 being struck by the fact that 19
hijackers had seamlessly gotten into the country, gotten on
airplanes, and with the exception of the heroism of the
passengers in the last plane, had carried out their missions.
Based on my experience investigating, it seemed obvious to me
that there was a likelihood that there were other people in the
country who had assisted them, wittingly or unwittingly, in
carrying out their mission.
I also thought, based on the history of al Qaeda, there was
a very serious risk that there were going to be other attacks,
including, to be honest, attacks that would be worse than
September 11.
So the objective, as I saw it, and I think this was
generally shared, was to begin the kind of investigation we
would normally do but compressed in a very tight time frame and
on a huge scale, using in many cases agents who had never had
prior experience with terrorism. And the mandate that went out
was, follow all of the leads that are generated by the
hijackers and their behavior. For example, if we found pocket
litter in a rent-a-car that had been used by a hijacker and
there are phone numbers, follow the numbers, credit card
receipts.
Senator Lieberman. Right.
Judge Chertoff. So that was the plan as conceived and I
think that it was a reasonable plan under the circumstances.
What I did not participate in was the actual decisionmaking
about where people should be detained or how they should be
housed.
I did read the IG report when it came out and I was
troubled to see that certainly the plan as conceived had not
always been executed perfectly. For example, I understand from
the report that there were agents who sometimes perhaps took a
tip without much foundation and used that as a basis to pursue
investigation. I understand that because I know that,
particularly in New York, people were laboring under the
emotional stress of seeing their colleagues killed, under very
difficult physical conditions. But clearly, that is something
that is regrettable.
I understand, in fact, was informed at the time there were
delays in clearing people, the idea being that everybody who
was arrested was in violation of the law, so they were lawful
arrests----
Senator Lieberman. They were, and let me just clarify, in
violation of immigration----
Judge Chertoff. Immigration or criminal laws.
Senator Lieberman. Right.
Judge Chertoff. And everybody who was detained was detained
in accordance with the law, but nevertheless, the policy was to
try to clear people as quickly as possible so that we no longer
had to argue to keep them detained. I understand that process
was slower. In fact, I raised it a couple of times with the FBI
during the process. But again, they were operating from a
position of simply never having had to contend with this kind
of pressure.
As far as the reports by the Inspector General concerning
people not getting access to lawyers, that was, frankly, not
something I was aware of at the time. That is clearly not
something that should have happened. And to the extent that
there were instances of guards acting in an improper fashion,
that is also clearly inappropriate and my understanding is
that, I think, probably is under investigation as we speak.
Senator Lieberman. I appreciate your answer. I must say,
the part of the IG's report that most agitated me was the fact
that people would be held without a right to counsel, which is
such a fundamental right in the United States. I appreciate
your saying that you thought that was a mistake.
Let me ask you now, as you approach becoming leader of the
Department in which the Immigration and Naturalization Service
and other entities associated with immigrants are located, what
would you do to ensure that similar abuses do not occur again
in the future?
Judge Chertoff. Well, I know, first of all, that the
Inspector General recommended a series of steps. His report
came out, I think, a matter of days before I left for the
bench, but I believe that some of those proposals had already
been put into effect. Others, there was a commitment to put
into effect. So clearly, we have to again learn the lessons and
put into effect protocols to prevent these kinds of issues from
arising again.
Part of it is intelligence and training. Frankly, if we
have better databases and people are better trained, and I
believe that has happened, the ability to identify who really
has a link to terrorism and who doesn't is going to be
enhanced. So that is going to eliminate or reduce one set of
problems. It also will make the clearance problem become
diminished because we will have a better ability to get at
databases. We won't be wondering if we have complete
information.
I think to the extent, and I think this applies across the
board, to the extent we deal with people who are properly and
lawfully detained because of legal violations, there should
never be any possibility of those people being mistreated by
guards. I think that if a clear message is sent through the
investigative and disciplinary process, people will understand
that a person is presumed innocent. And even if we need to
detain somebody in accordance with the law because we are
investigating the possibility of involvement with terrorism,
that is not an excuse or a license to mistreat that person.
Senator Lieberman. I thank you again for that. Let me say
to you that in the aftermath of September 11, as you well know,
there was and continues to be a lot of agitation about the
Patriot Act and how it was used to abuse individual freedoms. I
personally find some but little evidence of that. But I do find
some significant evidence that deprivations of due process and
rights occurred, as in this case, under immigration law, and
that, in fact, immigration law is greatly lacking in some of
the fundamental due process protections that we associate with
what it means to be American or be in America and enjoy
American protections.
I would just finally ask you if you would consider, with
everything else we are asking you to do, to bring to bear in
this new position your law enforcement, your legal, and your
judicial experience to recommend to the Congress and to the
administration steps that can be taken to improve the existence
of due process in the conduct of our immigration laws.
Judge Chertoff. I would certainly like to work on that,
Senator.
Senator Lieberman. Thank you.
Chairman Collins. Thank you. Senator Warner.
Senator Warner. Thank you, Madam Chairman.
Judge, I am privileged to kind of step in every now and
then and help the District of Columbia with its problems, and
during the course of the inauguration, the District of
Columbia, in coordination with Virginia and Maryland, really
stepped up and did a marvelous job on the questions of security
and other costs associated with it. You need not respond to
this question because your able staff, whom I know quite well,
right behind you are going to take notes. But there is a
question on the funding and the reimbursement.
The budgets of the District are quite stretched and I want
to speak up on behalf of the Mayor and the citizens and the
security team that he put forth in this and see if we can't ask
your staff to reconcile that situation.
Likewise, the Congressional delegations of Maryland and
Virginia, working with the Representative for D.C., Eleanor
Holmes Norton, we put in an amendment to the homeland defense
legislation establishing the Office of the National Capital
Region. It is basically to coordinate issues regarding homeland
defense. At some point, not the first week or the second week,
but at some point, take a look at that because this region has
the pride of the Nation's capital. So much of the
infrastructure of our government is in the two States and the
Nation's capital. I think that it needs to be taken a look at
and see if you can give it a little personal attention.
In due course, you will have the responsibility of
determining whether your current infrastructure space is
adequate. I represent to you I will be glad to help you on
that. I think probably some improvement is needed. Your
predecessor, who did an admirable job, did the best he could in
a very short period of time.
And on other budget matters, I would hope to work with the
Chairman and Ranking Member of the Committee. If you think
there is additional funding needed, let us bring it to the
attention of this Committee and see what we can do to work it
out.
Today's Washington Post carried a very interesting article
by a highly recognized and respected journalist. I don't know
whether you have had a chance to look at it or not, but I was
rather intrigued here on your opening day to be greeted by this
valentine that dropped on your desk. [Laughter.]
It has got a number of critical points in here, but one
that really caught my eye, and I will repeat it, ``Two arms of
the Department are gridlocked over efforts to secure hazardous
chemicals on trains.'' Well, regrettably, we have witnessed
here recently two incidents where there was a very tragic
situation on trains. Can you represent to us that you will move
that agenda item up----
Judge Chertoff. Yes.
Senator Warner [continuing]. And take a good look at it?
Judge Chertoff. I will.
Senator Warner. Trains are very difficult to put secure. We
saw that tragic incident of the individual who presumably had a
mental problem and now caused the death of a lot of people. Our
Nation's railroads are absolutely a central part of the
infrastructure and we have got to improve it.
Another point, and I am just going to ask this question
just forthright, and that is, again, we both served in the
prosecutor's office and I watched with great interest when you
prosecuted cases in my State of Virginia as a Federal
prosecutor in the area of terrorism. Time and time again, the
issue of the identification of terrorists comes up.
I think you have got to face up to this question of the
national I.D. card and what this Nation should do about it.
Have you got some views that you would share with us this
morning on that tough issue?
Judge Chertoff. Well, Senator, I know it is a tough issue.
I know that there is legislation, I think in the Intelligence
Reform Act, that talks about setting national standards for
drivers' licenses.
Senator Warner. Yes. That is sort of a fallback, in a way.
Judge Chertoff. Whether or not the country ultimately
decides it wants to move to some more standardized
identification, I think what I have observed certainly as a
citizen over the years, my own experience has been that the
drivers' license has become in many respects the standard
identifying document. In fact, I remember trying to get into--I
won't even mention the agencies, but certain buildings using my
credentials and people saying, no, I want to see your driver's
license instead.
That suggested the reality is, at a minimum, we need to
make sure that drivers' licenses are reliable. There is no, it
seems to me, argument in favor of having unreliable licenses.
So I certainly look forward to working on that.
As to the larger issue, because I know it is complicated,
it is something I would certainly want to study and consider
very carefully.
Senator Warner. Well, there are tremendous advancements in
the technical community as to how to take certain, whether it
is your eyes, your fingerprints, or so forth, and make that
I.D. a very credible instrument and one that does not lend
itself to forgery or wrongful duplication. You said if the
country decides. You can't sit around waiting for the country
to decide. Somebody has got to stand up and let the brickbats
come at them and make the recommendation and hopefully the
Congress will step up to that tough decision and give you the
support that you feel the issue deserves.
I think that the terrorists have an agenda for this Nation
and I think the work that has been done by Secretary Ridge and
others has heavily contributed to deterring a major attack. But
we will have to sleep with one eye open for the indefinite
future and I feel very comfortable with you there. You are kind
of like the boxer sitting in his corner and that bell is
ringing and when you come out, you start swinging, because this
article this morning points out that apparently more clout is
needed, and you understand what clout is.
Judge Chertoff. I do.
Senator Warner. You do, and you don't need this Committee
to put that definition before you. You are ready to exercise it
and see that your cabinet position elevates itself and you take
on the Secretary of Defense, is that correct?
Judge Chertoff. I am prepared to use every faculty at my
command to make sure that we get the job done.
Senator Warner. Thank you, sir. With that, I think I will
yield back my time.
Chairman Collins. Thank you, Senator. Senator Levin.
Senator Levin. Thank you, Madam Chairman.
Judge Chertoff, the 9/11 Commission said the following
about the allocation of homeland security funds. ``Homeland
security assistance should be based strictly on an assessment
of risks and vulnerabilities,'' Do you agree?
Judge Chertoff. That is my philosophy, yes.
Senator Levin. Now, there are a number of questions which
have been raised about your actions when you were head of the
Criminal Division and I would like to spend the balance of my
time this first round on those issues.
I think you have acknowledged having conversations from
time to time with lawyers from agencies outside of the
Department of Justice who were seeking advice related to
specific interrogation techniques. Was the CIA one of those
agencies that talked to you?
Judge Chertoff. I think, Senator, and this is the position
I took with the staff, I did speak with lawyers for the
intelligence community. I don't know that identifying a
specific agency is--might be getting into betraying a
confidence, which I feel that I am kind of committed to honor.
I am certainly, though, and I have indicated that I will be
pleased to indicate what my position was and what I
communicated to those lawyers.
Senator Levin. OK, and we will get to that. Does the
Federal statute that prohibits torture, 18 U.S. Code 2340,
apply to the CIA?
Judge Chertoff. My understanding is that the statute
applies to official action. I don't have the statute in front
of me. I have a recollection that there is a geographic
limitation to the statute, but I may be wrong about that.
Senator Levin. But that it applies to--I think you are
wrong about that, but that it does apply to all employees of
the Federal Government?
Judge Chertoff. My understanding is it applies to any
official action. I think it also applies to foreign official
action.
Senator Levin. Now, the statute defines torture as, ``an
act committed by a person acting under the color of law,
specifically intended to inflict severe physical or mental pain
or suffering upon another person within his custody or physical
control.'' A memorandum interpreting that statute by the
Department of Justice's Office of Legal Counsel, which was not
your division but nevertheless you are familiar with it,
obviously, that memorandum was prepared for White House Counsel
Alberto Gonzales on August 1, 2002. It defined, ``severe
physical pain or suffering'' as pain rising to the ``level that
would ordinarily be associated with a sufficiently serious
physical condition or injury, such as death, organ failure, or
serious impairment of bodily functions.''
You said in your answers to pre-hearing questions that the
Office of Legal Counsel showed you a draft of what you,
``believe developed into the August 1 memorandum'' to obtain
your views on how a prosecutor might apply the anti-torture law
in a practical sense. Is that accurate?
Judge Chertoff. That is correct.
Senator Levin. All right. Now, do you agree with the
definition of torture contained in the August 1, 2002, memo?
Judge Chertoff. Let me begin by saying, first of all, of
course, torture is illegal, so we begin with that proposition.
And, in fact, the President has said that on a number of
occasions.
Second, I don't--since I saw a draft of what I believe
became this memo, I don't remember if that language was in it
or whether it was used as or purported to be kind of a bottom-
line definition.
Senator Levin. My question is do you agree, not did you. I
will get to the ``did'' in a moment.
Judge Chertoff. With that as a--I do not believe that
definition is a sufficiently comprehensive definition of
torture.
Senator Levin. All right. Now, let us go back in time. Did
you object to the definition in the memo in 2002?
Judge Chertoff. As I say, because I don't remember the way
it was specifically worded, I can tell you that my role in
dealing with the memo was limited to this. I was asked to
communicate what my views were as a kind of practical
prosecutor about how a statute like the torture statute would
be applied, and my essential position--and again, this is
talking to other lawyers so it is really lawyer-to-lawyer kind
of discussion--was that when you are dealing with a statute
with a general standard and an intent issue, the question of
good faith and an honest and reasonable assessment of what you
are doing becomes critical and whether or not a particular type
of thing that someone proposes to do violates the statute is
going to depend on whether a prosecutor views it as a violation
of the statute is going to depend a great deal upon whether the
particular technique is specifically mentioned in the statute,
or if it is not, whether the people who are thinking about
doing it are making an honest assessment about whether what
they are going to do rises to the level of the statute.
I guess my bottom-line advice was this. You are dealing in
an area where there is potential criminal liability. You had
better be very careful to make sure that whatever it is you
decide to do falls well within what is required by the law.
Senator Levin. Wasn't the main purpose of that memo to
address the definition of torture? How could that issue not
have come up?
Judge Chertoff. It is--again, since I was not involved in
the process of how the memo was generated, I can't tell you why
it was generated or what the purpose was. And, of course, to
the extent there was scholarship done or review of cases or
legal materials, I had no involvement in that and frankly don't
know what those were.
I could only give the practical advice that I have, I
guess, based on my experience over the years in dealing with
this kind of statute, and that advice was very simple. You are
dealing with a definition which in some respects is general.
There is an intent issue in the case. You had better be sure
that you have good faith and you have operated diligently to
make sure what you are considering doing is well within the
law.
Senator Levin. Last weekend, the New York Times reported
that you were consulted on several occasions by the CIA as to
whether CIA officers risked prosecution by using particular
interrogation techniques. The article stated that, ``one
technique that CIA officers could use under certain
circumstances without fear of prosecution was strapping a
subject down and making him experience a feeling of drowning.''
Now, it is unclear whether or not they are quoting somebody
as saying that was your comment, but nonetheless, that is in
the article. Do you believe that the technique which was
described in the New York Times article violates the statute?
Judge Chertoff. Again, and this is--I am confident I was
consistent about this on the handful of occasions this question
came up. As a prosecutor, and in dealing with lawyers, as a
prosecutor, institutionally, my position was not to give
advance advice about what you can do. It was to look at a
historic state of facts and then determine whether the statute
applies. So I was not prepared to say to people, to approve
things in advance or to give people speculative opinions that
they might later take as some kind of a license to do
something.
My position was limited to making sure people understood--
and these are lawyers I am talking to--that what is critical
here is the honest good faith assessment by these people of
what the effects of what they are doing is and how it measures
against the statute.
Senator Levin. Let me just wind this question up because I
am almost out of time. Were you asked whether or not that
technique, the use of that technique, would subject the user to
prosecution? Specifically, were you asked?
Judge Chertoff. I am sure a number of techniques were
mentioned to me. It is sometimes difficult now in retrospect to
know what I was told at the time versus what I have now read in
the copious discussion in the press. But I can tell you that
whatever was mentioned to me at the time, my answer was exactly
the same. I am not in a position to evaluate a set of facts
based on a hypothetical circumstance.
I will tell you, if you are dealing with something that
makes you nervous, you better make sure that you are doing the
right thing and you better check it out and that means doing
honest and diligent examination of what you are doing and not
really putting your head in the sand and turning a blind eye.
Senator Levin. To summarize, you would not, then, have
given a yes or no answer to that question?
Judge Chertoff. Correct.
Senator Levin. Thank you. Thank you, Madam Chairman.
Chairman Collins. Thank you. Senator Coleman.
Senator Coleman. Thank you, Madam Chairman.
I am just going to touch briefly on the torture issue just
so it is clear and it is very clear for the record here and it
is certainly clear in your answers. You stated the President
has said that, ``torture is wrong no matter where it occurs,''
and your position on that is----
Judge Chertoff. Exactly correct. I completely support the
President's view on that.
Senator Coleman. And as a former prosecutor, I must say,
Judge, I have great respect for your analysis and basically
telling folks, if you are not sure it is a problem, you had
better act very carefully. You had better look at the statute.
But my concern, as we have this discussion, is that we get into
situations where we are judging certain techniques and making
judgments and coming to speculative opinions about things that
are in front of us. I think that could be dangerous, so I
respect your analysis and I respect your judgment.
I associate myself with the comments of the Ranking Member,
Senator Lieberman, who talked about this issue of basic notions
of due process, right to counsel, very basic stuff, no license
to mistreat, and adhering to those standards are important and
what I heard from you today was a reflection of that and
agreeing with that.
The other side of that is I want to make sure that we are
not gun shy in these areas. That may not be a great analogy,
but our Permanent Subcommittee did an investigation of sham tax
transactions. We had the IRS in front of us and the IRS went
through a lot of difficulties with this Congress over abusive
behavior across a number of years and I almost got the sense
that they were then stepping back where they should have been
stepping in because of the nature of their experience here.
So with that fundamental understanding, notions of due
process, notions of liberty, no license to mistreat, I would
hope, then, that we are not hesitant to step forward and do
those things to protect security where they need to be done,
the Patriot Act being a good example.
Judge Chertoff. I can say the Patriot Act, for example, in
the areas in which I dealt with it, was a significant aid in
allowing us to pursue terrorism cases. To be very brief about
it, I was surprised shortly after I came on the job to realize
there were large amounts of intelligence relevant to terrorism
that I was legally forbidden to see as head of the Criminal
Division because of this wall between intelligence and law
enforcement. And when the act brought that down and a
subsequent court decision brought that down, I was astonished
at what there was that we could now use to make cases and
actually prosecute people involved in terrorism because we
could have the full picture, and I think that is an example of
a very important step forward.
Senator Coleman. And it has been effective.
Judge Chertoff. Yes.
Senator Coleman. I was very pleased that the Chairman
decided to ask a fourth basic question--and you said you would
cooperate with the investigations of this Committee. I take it
that also means Subcommittees of this Committee.
Judge Chertoff. Yes.
Senator Coleman. The Permanent Subcommittee is looking into
the issue of container security. Ranking Member Levin and I,
along with the Chairman and Senator Lieberman, Ranking Member
of the full Committee, have submitted two letters to Under
Secretary Hutchinson, chairman's letters requesting certain
documents, so again, I take it that the answer is an
affirmative across the board and we look forward to working
with you on that.
Judge Chertoff. Yes, it is.
Senator Coleman. Let me just go back to my issue of
communications one more time. I understand the issue of
standards for funding that have to be based on risk and
assessment. My concern is how you get there. My concern is the
process that is used in making that assessment and that it is
not a Washington bureaucratic process, but it is one that
understands what is happening on the ground. That is our
concern, Senator Dayton and I representing Minnesota, with what
happened in Minneapolis and St. Paul. Anybody who looks at a
map or anybody who just knows the name ``Twin Cities''
understands that they work hand in hand. You have an assessment
process that in the end zeroes out completely funding for one
entity, one urban center, while putting a lesser amount of
money in the other urban center. So my concern is with the
process, not with the political decision, are we getting money,
but is the Department communicating in a way with folks at the
local level so they really know what is going on.
One other issue of communication, HBO had a film called
``Dirty War'' which described the chaos of a dirty bomb----
Judge Chertoff. I saw that, yes.
Senator Coleman. It is worth looking at.
Judge Chertoff. Yes, I saw that.
Senator Coleman. One of the issues there was this whole
issue of first responders not saying that they were adequately
trained, didn't get adequate information. I have had a
conversation, for instance, with the Hennepin County Sheriff's
Office, Captain Brian Johnson, who from his perspective still
feels that the lines of communication between the sheriff's
office and Homeland Security and local officials needs
improvement, God forbid we ever have to test that out.
From your vantage point, can you tell me, give me a sense
of where the Department can go to satisfy those concerns of
folks at the local level that there is adequate communication
with the folks at the Federal level?
Judge Chertoff. First of all, I totally agree with that
one, if the keys to our protecting against vulnerabilities and
our ability to respond if, God forbid, we have an attack, is
the ability to work in partnership with State and local
officials, tribal people, and private people, and we can't do
that if we are not prepared in advance.
I know, for example, the FBI has Joint Terrorism Task
Forces and a long history of working across the board. It seems
to me one of the things I want to make sure about if I am
confirmed, very soon after I get on board, is to see that we
have an adequate network of communication with the responsible
people in each of the States through which we can go back and
forth in terms of information, not just our sending information
down, but understanding their practical constraints and what
they need in order to respond, for example.
I agree with you, Senator. This is an area where we can't
use a cookie cutter. Every State is different. I mean, there
are geographic issues, as you point out, that certainly cry out
as a matter of common sense for treatment that is different
from treating two cities that are 500 miles apart.
I don't know why the Department sometimes misses that. As I
said, people make mistakes. What I do want to put into place is
a strong system of feedback so that before we reach a final
decision, if we are doing something silly, we hear about it. I
am quite confident that we will always have some disagreement,
but I would like to believe that at least it is disagreement
that comes after intelligent discussion and analysis.
Senator Coleman. But let me add another wrinkle to the
issue of communication, and first, let me state that having
worked with the Joint Terrorism Task Force, they are pretty
effective, certainly in our area, very effective. So it is a
good model and I get good feedback on that.
The other wrinkle is an issue for border States, myself,
the Chairman and Senator Levin, and that is dealing at a border
area where you have local officials dealing both with Federal
officials here and folks from another country. In my last visit
up to Grand Marais, the border area in Minnesota, they talked
about the difficulty of communicating with the Canadians.
So you have the issue of local-Federal, and then on the
other hand you have an international piece there. Can you talk
a little bit about your sense of where that is at today and the
kind of things we can do to strengthen the coordination between
folks at the local level, another country, and folks at the
Federal level?
Judge Chertoff. Well, I think that is an important point
and we see both at the border, obviously with Canada and
Mexico, and also with respect to cargo, for example, in dealing
with our friends overseas. We can't do this alone. This is an
area where I have to say I have some experience from my prior
job at Justice. We made a real effort to go out and meet our
counterparts in other countries and form strong working
relationships, actually putting people overseas to work side by
side with foreign prosecutors, and that taught me that we
actually have a terrific relationship with our overseas
partners when it comes to dealing with the issue of terrorism.
I think it is important to have not only at the Federal
level contacts with the Canadian Government and the Mexican
Government, but also bringing local officials into that process
so that we can really try to reach some kind of a symmetry. I
know there are differences in the legal systems, but we have
certain things that we have to get if we are going to keep our
borders open and also secure.
Senator Coleman. There are also differences in
communication technology. There is a difference in licensing of
firearms, the whole range of things----
Judge Chertoff. Yes.
Senator Coleman [continuing]. That make it very tough for
folks at the local level up there to have the level of
coordination they need.
Judge Chertoff. I know that.
Senator Coleman. Thank you, Madam Chairman.
Chairman Collins. Senator Lautenberg.
Senator Lautenberg. Thank you, Madam Chairman.
I am satisfied that, with the responses that we have heard
from Judge Chertoff as to risk-based needs and understanding of
the need to protect civil liberties even as we go on a search
to eliminate the possibility of terrorist attacks and
organizations forming that, having that in mind. So I am going
to try to just narrow it down to a couple of things.
I wonder whether, Mr. Chertoff, you have had a chance to
look at things like the color-coded system. I find it to be
kind of peculiar, because in the State of New Jersey, we have
been on orange alert and they have identified buildings and
locations where we are susceptible to attack and have seen
commentaries that we uncovered that describes these specific
places. To me, a color-coded message that doesn't tell you what
to do doesn't do anything but raise the anxiety level. Do we
want people to just stay home, not go to the doctor, not go to
school, not go to work? That is totally impractical and I
wonder whether you have had a chance to think about that. If
not, I would commend it to your attention and hope that you
will be able to get onto that very quickly. Do you have any
response to that?
Judge Chertoff. My only brief thought, Senator, of course,
having experienced it up to now as a--at least for the last 2
years as a citizen, is I do understand the value of having a
notification system for our State and local counterparts.
Obviously, the more specific we can be as to region or type of
installation, the better off we are. But I do think it is
important for them to know when there is a heightened level or
heightened concern.
The second piece, of course, is the public piece. I
remember when things weren't announced publicly and then almost
as a matter of, as the sun rising in the morning, some version
of what was communicated leaked out in the paper and then there
was some kind of public uncertainty. I think the value of
public notification is in part simply to explain to people why
they may be seeing certain things happening, for example, why
they may see concrete blocks or more police in front of a
particular building than they saw the day before.
On the other hand, I think it is important not to convey
the impression that a heightened alert means people ought to
change the way they go about their business. We always
encourage people to be watchful. The shoe bomber case was a
great example of how ordinary citizens prevented an attack.
I am open, of course, to taking a look at the system and
seeing whether we can refine it in a way that makes it a little
bit clearer or a little bit less alarming and preserves the
basic notification function with State and locals.
Senator Lautenberg. Senator Coleman was talking about the
communication to the local level and I think the practicality
of trying to do that is perhaps almost impossible because when
you think of the number of jurisdictions there are within each
State, county, local, and regional, and every State, I believe
has a State police department. Shouldn't that be a kind of a
focal point and expect that their communications system--that,
I suggest, is also an area for review for the Judge Chertoff of
Homeland Security, to see what these States have and where they
are lacking and alert them to the fact that, hey, we want to
get the information to you as quickly as we can.
Now, you have to give us a central place. We can't go to
the larger cities or more industrialized cities and do it in a
practical fashion. So I think that also is something that--I
don't want to give you a lecture here, but I think that kind of
thing ought to be high on the agenda.
Judge Chertoff. It will be.
Senator Lautenberg. They described in the paper today some
dysfunctionality at the Department of Homeland Security. I saw
some folks in the audience who I know are members of the police
union and they wanted to hear your testimony. What about your
management philosophy regarding Federal workers, the right to
organize, collective bargaining and so forth? How do you see
that in terms of your ability to manage this gigantic program?
Judge Chertoff. Well, I know the Homeland Security
legislation, of course, allowed the Secretary and the
Department to take some steps to change the traditional method
of compensation and things of that sort in order to increase
efficiency. I also know from my experience that this Department
will not succeed unless the people with whom I serve, if I am
confirmed as Secretary, feel that their service is appreciated
and treated fairly, and I understand that there is some
controversy and concern about some of the changes that were
announced in the most recent regulations.
What I would like to do early on is sit with the union
representatives--I have certainly worked with unions in the
past and I understand the important role that they play--and
see if I can address their concerns. We obviously have stages
of implementation to go and I think we ought to be informed in
how we make these decisions by how the people who serve at DHS
feel about it. That is important. Their morale is really
indispensible to making the job of the Department work.
Senator Lautenberg. There has been talk about privatizing
the--and I am never quite sure where privatizing and public
fall out, but it is about turning over to the business sector
the screening operation. Well, we took it away from the private
sector because it wasn't functioning well. Despite some
glitches here and there, I think it is quite apparent that
there are a lot of energetic, committed people out there who
are doing their job diligently. I wonder whether you have had a
chance to look at the question of whether or not the screening
at the Department of DHS ought to be returned to the private
sector.
Judge Chertoff. I have not, Senator, but I know it is an
important question. I also have to say my personal observation
in the last year, since I often seem to be pulled aside for
secondary screening---- [Laughter.]
Is that, actually, I feel I am--while it is not something I
would willingly experience all the time, I am treated
professionally and courteously and I have at least had a
generally positive impression of how the TSA workforce has
worked.
Senator Lautenberg. So it is working fairly well, getting
better, I think, all the time. The question is, does what works
have to be fixed.
Judge Chertoff. Again, I have given you my own individual
experience, which I would not extrapolate from. But I do think
this is an issue that needs to be seriously considered. Again,
I am very mindful of the stake that the people who work at TSA
have in what they are doing and the dedication of their
service.
Senator Lautenberg. Madam Chairman, I congratulate you for
conducting this hearing and my colleagues for the nature of
their questions and concerns. I think Mr. Chertoff has handled
his responses very well. I look forward to voting for his
confirmation.
Chairman Collins. Thank you. Senator Bennett.
Senator Bennett. Thank you very much, Madam Chairman.
First, a totally parochial issue. Last night, President
Bush signed the emergency designation for the flood conditions
in Southern Utah, which will change the status of FEMA dealing
with that particular challenge. I toured the area and it is
incredibly dramatic to see the power of water when nature
unleashes it in the kind of force that it came down into parts
of Southern Utah. There were not a lot of homes destroyed by
the standards of the Florida hurricane, but if it were your
home that was destroyed, you would recognize how much of an
emergency this was.
So I simply mention that. I am looking forward to working
with you, with FEMA and your people to see what we can do to
maximize the aid and to make it come as quickly as possible
because it is always humbling for a human being to see what
happens when nature unleashes her fury, even if it is
relatively self-contained. It was just incredible and dramatic.
Now, going back a little in my own history and a subject
you and I have discussed but that I want to discuss publicly
here in this hearing, as Chair of the Senate Special Committee
on the Y2K Problem, I became aware of how vulnerable our
society now is to a computer failure. We worked to prevent what
would have happened if the computers had failed by accident as
a result of a programming problem. But as I did so, it occurred
to me what could happen if the computers failed on purpose. If
someone got into the American computer networks, which are all
interlaced now, and brought deliberate harm, the damage to the
economy could be more serious than the damage from a nuclear
weapon, more longlasting, more expensive, and more difficult to
repair.
I held a hearing on this subject in the Joint Economic
Committee because of the impact on the economy and I still
remember very clearly the testimony that we received from a CIA
witness. Attempting to lead the witness, which as Senators we
can do. (You lawyers are not supposed to do that, but we
Senators do that every day.) I said, isn't it likely that the
next attack on this country will not be a military attack but
will be a computer attack, a cyber terrorist attack, making
again the point that it could do more damage to the economy.
And the witness said, ``No, Senator, that is not likely because
the terrorists want something that is very dramatic, splashy,
on television, and television pictures of computers not working
simply won't do it in terms of their agenda for what they want
to say to the rest of the world.''
Chillingly, that testimony was less than 60 days prior to
September 11 and we have seen that particular assessment
carried out as the terrorists wanted something very dramatic.
They picked a symbol of American capitalism, the Twin Towers in
New York. They picked the symbol of American military might in
the form of the Pentagon. And we assume that if the other plane
had not gone down in Pennsylvania, they had also picked the
U.S. Capitol, where it gets very personal. That is where I
work.
I think the response of this country in Afghanistan and
then Iraq has taken the terrorists--let us put it this way.
They are occupied in ways that we are not seeing any kind of
attacks now. Bin Laden is rendered incapable of communicating
with his network in any way other than carrier pigeon or
personal courier. He is hiding in a cave somewhere. He cannot
pick up a cell phone. Zarqawi is obviously occupied otherwise
in Iraq.
The combination of the American military and the
international intelligence community cooperation, working with
the Patriot Act and others, has prevented terrorism from giving
us a sequel to September 11. The Sherlock Holmes story about
the dog that didn't bark, the real news here is the attack that
hasn't come. And since September 11, we have had a number of
opportunities, and we have a number of vulnerabilities which
are talked about here in this hearing, none of which the
terrorists have been able to exploit because the military and
the intelligence community has, as I say, got them occupied
elsewhere, and I like that. I much prefer to deal with Zarqawi
in the streets of Baghdad than in the streets of Detroit.
But the time is still coming. The vulnerability is still
there. And at some point, some terrorist is going to say, all
right, let us regroup here. Let us look at American
vulnerabilities. And one major American vulnerability still
remains our critical infrastructure, 90 percent of which is in
private hands--Verizon, we are seeing the merger with AT&T and
SBC, and power plants and chemical plants, all of which are
dependent upon computers for their security and their safe
operation, which if they got hacked into could produce
tremendous devastation.
So with that lead up, I would like to discuss several
things with you. One proposal, which I don't expect you to have
a specific response to other than the one you have given the
Committee, but the creation of an Assistant Secretary with
primary focus on this. Is that something that you would give
careful consideration to?
Judge Chertoff. I certainly would. One thing--what I would
like to do is make sure that we have the kind of positions in
the Department that are capable of attracting people of a
sufficient stature and quality to really give us value in terms
of dealing with the cyber security threat.
Senator Bennett. And do you agree that the cyber security
threat is not just science fiction stuff, but it is real and
requires attention at the highest levels of the Department?
Judge Chertoff. I absolutely do.
Senator Bennett. Have you given some thought to this, have
some feelings that you could share with us at this point?
Judge Chertoff. I have given it some thought and I
recognize that although I am reasonably competent on a
computer, there are real limits to my expertise and this is
really an area which is heavily technology dependent. One thing
I would like to do actually, in terms of my own staffing of the
front office, is making sure I bring somebody on board who
really understands computers and these issues.
I guess the couple of observations I would make is that I
believe the Department has in process plans and programs to
deal with the issue of alerting people to potential attacks,
which I think experience shows is important, working with
private sector to develop guards against these kinds of attacks
and remedies for these attacks. I think that those are all very
important efforts in terms of dealing with the issue of cyber
terrorism. And I am also mindful of the fact that we could have
a combined cyber attack and a physical attack, as you point
out, where a cyber attack lowered defenses and then there was a
follow-on physical attack.
So the clock on all of these things is ticking and without
promising that everything can be done at once, I do think it is
a matter that needs to be attended to urgently.
Senator Bennett. I very much appreciate your statement here
and getting it into the record. Madam Chairman, the nominee has
made that pledge to me privately, for which I am very grateful.
The one last comment I would get into the record, given the
fact that 90 percent of this critical infrastructure is in
private hands, the challenge of information sharing back and
forth between the government and private entities, between
private entities themselves, and then within the government
agencies, is an enormous challenge and everybody is putting it
off under the pressure of more immediate things. I don't know
how much time the military and the intelligence community can
buy us for this and I appreciate the Secretary's focus on this
particular issue.
Chairman Collins. Thank you. Senator Akaka.
Senator Akaka. Thank you very much, Madam Chairman.
Judge Chertoff, today's The Washington Post reported on
your role in the alleged retaliation against an employee of the
Justice Department Professional Responsibility Advisory Office
who disagreed with DOJ interrogation policies. As the author of
legislation to strengthen protections for Federal
whistleblowers this troubles me. My question to you is, will
you pledge to protect whistleblowers and foster an open work
environment that promotes the disclosure of government
mismanagement and government illegality?
Judge Chertoff. Senator, first I had no part in any way,
shape or form in any retaliation against this individual for
any reason, let alone giving advice. I am pledged to support
whistleblowers and to support candid assessments by employers
when there are problems in the Department. In fact I would like
to hear about them first because, as I said previously, we all
make mistakes and the only way we learn is if we get feedback
and I would rather get the feedback to correct it than have
people just simmer about it.
Senator Akaka. Since 2001, I have been urging the
administration to develop a coordinated response to
bioterrorism and agriculture security through legislation which
I reintroduced this session. Improving coordination among
Federal, State and local agencies is critical to the health and
safety of Americans.
What will you do to improve bioterrorism preparedness
within the Department and do you consider agricultural security
to be a responsibility of DHS?
Judge Chertoff. Senator, my understanding is that
agricultural security is a joint responsibility of DHS and the
Department of Agriculture as well as other agencies of the
government. I believe, in fact, there is a sector council that
deals with this in particular.
The whole issue of nuclear, biological, chemical
contamination and weapons is probably generally acknowledged as
the most serious single threat that we face as a country. We
have seen that when there have been contamination problems
historically in private industry they can be deadly as well as
disruptive on a wide scale. We have also seen though there are
ways to respond to that in terms of confining the damage, being
able to track the damage, building in protections within the
system in terms of how we handle our food. I am not in a
position to comment on specifics but I do look forward to
working with, if I am confirmed, with the Secretary of
Agriculture and other interested agencies in making sure we are
strengthening that sector.
Senator Akaka. Senator Lautenberg raised this issue so I
will not ask a question, but I want to emphasize that
approximately 3,800 comments were filed on the proposed
homeland security personnel system regulations, virtually all
of them in opposition to them. All the unions representing
employees at DHS have raised strong objections. So I am pleased
that you have pledged to discuss with employees why they view
these regulations as unfair.
Like most Americans, I am troubled by recent reports of
taxpayer dollars being used for public relations campaigns to
promote administration policies. Such action is contrary to law
which forbids the use of appropriated funds for public
relations purposes.
Do you know if DHS is using funds for public relations
campaigns? And will you give this Committee your assurance that
under your leadership DHS will not use taxpayer money for such
purposes?
Judge Chertoff. I am not aware of any such things, although
I am not at the Department. I will certainly make sure that in
terms of our public outreach effort we are complying with the
law in how we spend taxpayer money.
Senator Akaka. You have been characterized in the press as
a defender of the use of data mining by the Federal Government.
As you know, while data mining may identify terrorist threats
and improve government efficiency, it may also collect personal
data that could violate an individual's privacy rights. At my
request, GAO reviewed the data mining activities of the Federal
Government and confirmed the challenges data mining poses to
the protection of privacy.
If confirmed, how will you safeguard Americans' privacy
rights while using data mining techniques to wage the war on
terror? And how will you ensure the accuracy and quality of
data mined from the private sector?
Judge Chertoff. Senator, I think that is a very sensitive
issue and needs a lot of thought and I look forward to talking
to people in the Department about the ways in which we can deal
with that issue. Obviously, we are concerned about accuracy, we
are concerned about not intruding unnecessarily into personal
things. We are very concerned about when we do obtain data,
even if it is publicly available data, that we not disseminate
it widely or in a way that is inappropriate. I understand there
are proposals, for example, to have methods of keeping parts of
the data separate so that no one person looks at everything
comprehensively unless you can match them and show that there
is some reason to suspect that someone is involved in
terrorism. I think, frankly, technology probably has a
significant role here.
It is an important subject. I have certainly had reinforced
to me in the last 2 weeks how important privacy is and how
painful it is to lose your privacy. I think it is very
important that we protect the privacy of Americans and I want
to make sure that as we conduct ourselves in this potentially
very valuable area that we are doing everything we can to
protect that value.
Senator Akaka. According to press reports, the
administration will seek $2.4 million in fiscal year 2006 to
create an Office of the Assistant Secretary for Policy,
Planning, and International Affairs. International coordination
is an operational function now being handled by 12 different
offices in DHS. I agree DHS needs a dedicated policy office,
but I see international affairs as its own function.
If you take a suspected terrorist off a plane in Bangor,
Maine and return him to his home country, we need to know his
next steps. This can only happen with international
coordination. I would appreciate your commitment to review and
to report back to this Committee on how you propose to
streamline DHS's international affairs function, and also your
vision of DHS's international activities. I would look forward
to that.
Thank you very much for your responses.
Judge Chertoff. I will do that.
Senator Akaka. Thank you, Madam Chairman.
Chairman Collins. Thank you. Senator Domenici.
Senator Domenici. Thank you very much, Madam Chairman.
Let me talk a minute about your Department and how you are
going to get the kind of information you need. First, I want to
add to the thoughts of Senator Bennett when he alluded to why
we have not had anything happen since September 11 here at
home. I would have added one thing. I think that homeland
security activities, at least those activities under the
general rubric of homeland security, even while the Department
was being put together, had some effect. I think we had an
impact on the potential operation of terrorists within the
United States. It is more difficult today for them to plan and
execute a terrorist activity in America than it was when
September 11 occurred, whether we are all prepared to say you
are in perfect shape or not, I think it is tougher for
terrorists to get things done. I hope it gets even more
difficult.
Having said that, I drive around the cities in my home
State and I am a captive, as all of us are, to what is being
done on our streets and to our buildings in the name of
security. Cities are closing streets, building barriers,
spending thousands of dollars digging up streets so we can put
in new lampposts that cannot get knocked over. I wonder across
America how many thousands of things are we doing in the name
of national security, and I cannot fathom how many.
But I am very concerned that, as we prepare ourselves, we
have somebody giving direction as to what we ought to do and
what we ought not do. We need that, not just down at the grass-
roots level where people think there is a danger so they spend
money, or they do things.
Now I do not know how to cope with that; I cannot figure it
out in my mind. But it does seem to me that you need, on behalf
of our country, a strategic plan that talks about what the
dangers are and how we ought to implement programs to assess
the risk. Is that true or not?
Judge Chertoff. I completely agree with that. I think in
the foundation, from a policy standpoint, of everything we do
has to be a disciplined, strategic vision of what our
priorities are, because as I think a number of Members of the
panel said today, we cannot protect everything, everywhere,
every time. We have to make choices, so we have to be
disciplined and intelligent about the way we make those
choices, and that means having a strategy.
Senator Domenici. Now I want to talk about first
responders. A national program of first responders--a Federal
program--did not come about after September 11. It already
existed 5 years before the attack. We passed a bill here in the
Senate. I can remember it vividly. It was done on the floor as
an amendment, providing $165 million in funds. Senator Nunn and
I added that amendment. It created homeland securities to be
determined by the Defense Department. We did not know where to
put the money, which city should have homeland security. But we
thought we had a lot of security. In fact to tell you the
truth, we thought we had a homeland security operative in New
York. Now we are told maybe we did, and maybe the attack would
have been worse if we did not have that operative.
But I wonder if it is not also your responsibility to
determine whether first responder activities are really
effective. How do we judge whether we have the right things in
place? We know it was communication, or lack of it; that we all
need to be on the same wavelength.
I think it is also very important that we not mislead
ourselves into thinking we have got first responders in 100
major cities and surrounding 50 other risk areas only to find
that everybody knows how to make a lot of noise, and ambulances
will all go to an attack site, then we will have more
ambulances and you will not be able to travel the streets.
Do you agree that we ought to make sure what we have got is
the right thing? And how do we do that?
Judge Chertoff. I do agree, and lot of this involves our
working again with State and local officials, providing them
with information, providing them with benchmarks, so there is
an understanding of what they need to be prepared for. And also
looking for mutual cooperation. Not every town has to have a
full panoply of things. Sometimes it may make sense for a
region or a particular area to be able to cover something. I
think these are things where the Department, working with State
government can really add value at the local responder level.
Senator Domenici. I submit to you that, in all deference to
local involvement, many localities will judge it in terms of
how many fire engines we gave them, and how many new radio
systems we gave them. All that is good, but I think we need
some kind of a simulation process where we find out whether
what we have will work, and I urge that you try to find out
some way to do that.
My next question has to do with how you gather information
that you need. Let me talk about technology. There is a
tendency, whenever an agency is created as big as yours that
needs new technology, to build your own new technology in-
house. I think that is a terrible mistake. We have so many
sources of science and technology, and the evolution of it.
They are out there working on things that will help you. The
problem is that we do not have a system wherein you call upon
them to share that technology, or that they feel free to give
you the technology they have.
So I urge that there be a very serious effort to see where
the technology development is, and that you capitalize on what
is available, and that you charge existing research programs
with doing things for you. Do you understand what I am talking
about?
Judge Chertoff. I absolutely do and I agree.
Senator Domenici. Now I happen to have two national
laboratories in New Mexico that have a lot of research they do,
and they make it available to DHS. But sometimes they tell us,
nobody is interested. They tell us Federal agencies are doing
their own research, or----
Judge Chertoff. We should be interested because there is a
lot of expertise out there in the private sector, and we would
be shortchanging ourselves and the public if we did not look
there for some solutions.
Senator Domenici. There are both public and private
capabilities. I did not mean just public.
My last observation has to do with, how do you know what
the risks are? I do not think that you are supposed to find out
what the risks are on your own, or we would not need a CIA,
right? Or we would not need other intelligence-gathering
operations.
So I would hope that your Department would be on a path
that says, we have these other formidable agencies that are
supposed to be gathering the kind of information we need as to
what risks are out there. So you would not be preparing for
terrorists and terrorist activities that the intelligence
people tell you do not exist. Because we could dream them up,
right? We have plenty of fertile minds. But are they real or
not? I would just like your thoughts about that because I think
it is a very important issue, but I am not in your shoes.
Judge Chertoff. Senator, the cornerstone of our ability to
prioritize is understanding what the risk really is. From
outside, I was a very strong supporter of the Intelligence
Reform Act which the Chairman and Ranking Member were so
instrumental with the Committee in moving forward, because I
think we do need to have a central location for intelligence.
My vision for DHS is twofold. One, DHS itself will collect
information and intelligence, partly through its network of
State and local partners. But also, my understanding is DHS has
people at the new NCTC. They need to be full participants
because only DHS can pull the information it needs for its
particular analytical functions. DHS cannot count on people in
the middle, who do not understand the needs, to push the
information out. So that is my approach to the issue of
intelligence.
Senator Domenici. Thank you very much. Thank you, Madam
Chairman.
Chairman Collins. Thank you.
Senator Dayton. Thank you, Madam Chairman.
Judge, the February 14, 2005 issue of the magazine The
Nation has an article which alleges that in June 2002, just
prior to John Walker Lindh going to court regarding an evidence
suppression hearing that the Justice Department's Criminal
Division, under your direction, offered him a deal reducing his
charges if he would not appear before that judge and allegedly
describe his experiences of being tortured or abused by U.S.
authorities after his capture. Is that accurate?
Judge Chertoff. My recollection is somewhat different, not
surprisingly. I hasten to add, I do not have the documents in
front of me. But let me begin by saying, this is a completely
public and transparent issue. Obviously, the arrest of John
Lindh was national if not international news. All the
proceedings took place in open court.
There was a point in time that I was made aware by the
lawyers working on the case that they had discovered that while
Lindh was in custody of some military personnel there were some
photographs taken of him, and he had been held perhaps in the
battlefield in difficult conditions. I do not remember exactly
what they were. I do not remember there being an allegation of
torture at the time.
These discoveries were disclosed to the defense by the
government. The government made that information, what they
had, available to the defense. I believe they were presented to
the judge in papers which were filed in open court and fully
available to the public.
The decision to reach a plea agreement was not driven by
the desire to keep a secret of something that had already been
publicized, but was, as is the case with all decisions to
accept a plea, looking at the time and effort that would be
necessary to litigate the case versus whether the government
could substantially achieve its results in the case by getting
a plea. In this case, I think the plea required not only a
sentence of approximately 20 years but actually cooperation by
Lindh.
Senator Dayton. But the issue is--have you seen this
article, sir?
Judge Chertoff. Someone showed me the article.
Senator Dayton. One of the defense attorneys for Lindh
asserts that you demanded, reportedly at the Defense
Department's insistence, according to what defense attorneys
were told, that Lindh sign a statement swearing he had ``not
been intentionally mistreated'' by his U.S. captures and
waiving any future right to claim mistreatment or torture. The
article goes on further, you attached a ``special
administrative measure'' essentially a gag order, barring Lindh
from talking about his experience for the duration of his
sentence. Is that accurate?
Judge Chertoff. All I can say, Senator, is I do not have
the plea agreement in front of me. It is not uncommon in my
experience to have circumstances where in the course of a plea,
a defendant who has raised claims that the police somehow
committed misconduct, will waive any claim that it is
intentional. So I do not think it is uncommon. But again, I do
not have the plea agreement.
Senator Dayton. This was not a matter of police abuse,
which is a serious matter. This was a matter of alleged torture
by U.S. authorities, which is important on this case because it
preceded some of the other incidents reportedly of torture that
had not then come to light. I just would like to speak----
Judge Chertoff. Senator, let me just be clear.
Senator Dayton. No, let me just finish here. Because when
you talk about pictures and the like, these allegations of his
torture included keeping a seriously wounded and untreated
Lindh who was malnourished and dehydrated, blindfolded and duct
taped to a stretcher for days in an unheated and unlit shipping
container and reportedly threatening him with death, that
defense lawyers said was known to you, known to the
prosecution, and that desire to suppress that from coming--you
talk about transparent transactions--suppress that information
from coming to public light was what drove this offer.
Judge Chertoff. Senator, I do not believe that is correct
for the following two reasons. One, first of all my
recollection is, and I think I directed that it be done, that
the appropriate military investigative authorities were made--
if they were not already made aware, were made aware of this,
so they could conduct an investigation and discipline the
people who had done something wrong, which is what we always
do.
Second, it could hardly have been kept secret because it
was discussed in papers filed in open court at considerable
length. The plea and everything else was put on the record in
front of the United States District judge. So I have to say the
idea that somehow this was to keep something secret does not
jibe with my memory. My memory is the government forthrightly,
the prosecutors in the case, who were not involved in the
underlying conduct, forthrightly disclosed it. The matter was
litigated openly in front of a United States District judge,
and the appropriate military authorities who investigate
misconduct by military personnel, which unfortunately does
occur from time to time, were given the information about the
case and pursued their investigation.
So there was in no sense an effort by my lights to keep any
of this hidden, because in fact I recall it being public.
Senator Dayton. Are you aware of any other cases, instances
in which the Justice Department offered, negotiated a plea to
anyone for suppression of evidence or information regarding
alleged torture or mistreatment?
Judge Chertoff. No, I am not aware of any other instance,
and I do not think that--as I said, this concept of, in the
context of a plea, requesting that somebody waive a claim, I've
previously encountered that in just ordinary, garden variety
context with the criminal justice process. It is not something
that is particularly rare, I think.
Senator Dayton. Regarding the Patriot Act. In retrospect
now, are there areas, aspects of that law that you believe
should be curtailed or eliminated? Or conversely, are there
areas that are still inadequate or insufficient that should be
expanded or added?
Judge Chertoff. Again, my experience with the act is a
couple of years old. In the areas in which I worked I thought
the information sharing, the additional enhanced criminal
penalties actually worked quite well. Particularly in
information sharing, I think was critical in allowing us to
pursue additional terrorism cases.
With respect to criticism of the act, my position is always
that if there is something that we have not anticipated that is
going on that we do not know about, I am always interested in
hearing about it and I am always open to adjust. I do not know
that I am aware as I sit here of any particularly systemic
criticism of the act that comes to mind.
Senator Dayton. Anything that you are aware of that is
lacking that should be expanded or added?
Judge Chertoff. I know the Congress has added some
additional measures. Again, because I am 2 years out of date I
am not sure I am perhaps in a position right now to articulate
things that I think need to be added.
Senator Dayton. I will reserve my questions for the second
round. Thank you, Madam Chairman.
Chairman Collins. Senator Carper.
Senator Carper. Thanks, Madam Chairman.
Judge, good morning. How are you holding up?
Judge Chertoff. Good morning. Fine, thanks.
Senator Carper. I rode down on the train this morning with
one of your colleagues from the Third Circuit Court, a fellow
named Becker. A senior judge who is doing really great work, as
some of my colleagues know, on asbestos litigation reform. I
have been in and out of this hearing--I apologize for that--but
sitting in with the Judiciary Committee to try to find common
ground on that subject. I think we made a little progress
today. And I have got a hearing going on on clean air, trying
to bridge the difference between the administration's proposal
and the proposal that some others of us have taken on clean
air.
Anyway, we were coming down on the train today--and I know
you travel on the train a fair amount--and I asked Judge
Becker, did you feel safe today? He said, fairly safe,
considering the company I am with.
You and I talked earlier this week about rail security;
something I often raise with Secretary Ridge and others, as my
colleagues will tell you. We have got all these folks,
especially in the Northeast corridor, who ride the rails,
intercity passenger rail, Amtrak, and also a lot of folks who
ride transit to get to home, to work, and other places. We have
done, I think, a pretty good job of addressing security needs
around airports. We are trying to do a pretty good job around
ports. We have been slow on the uptake with respect to
intercity passenger rail and transit. I just want to ask you to
share your thoughts with us about the adequacy of what we are
doing, what we might do more of, different, less of.
Judge Chertoff. I am mindful of the terrorist attack in
Madrid which exposed the attractiveness of rail as a target. I
am mindful of the incident in South Carolina some weeks ago
involving chlorine. And then there was the incident on the
train tracks in California. So it is hard not to be aware that
trains have a vulnerability and have attractiveness as a
target.
There are obviously issues with respect to protecting
trains that are different than airplanes. Again, I think this
is part of our need to have a comprehensive assessment of what
our infrastructure, transportation and fixed is, and to take a
priority-driven approach. When we look at this issue I
understand there are pilot projects with respect to screening,
for example. So we want to look at the possibility of screening
for explosives and radioactive and chemical materials.
There are particular points in the rail corridor, tunnels
and bridges, which may be particularly vulnerable. We need to
assess what we can do to strengthen those and to protect them.
Then I think, again, we need to work with State and local
partners in terms of making sure, for example, that our
trackage is adequately covered and is cut back. There are maybe
some technological things we can do.
Again, this is part of an overall look at what we are doing
to protect our country, and I think this is an issue we need to
focus on.
Senator Carper. Thank you. Just a follow-up to that, if I
could. You may be mindful that the Congress has appropriated
for the current year an amount of money for transit. We have
also appropriated a much smaller amount of money to support
intercity passenger rail, notably Amtrak. The administration's
budget that will be submitted to us probably in a week or so
apparently will zero out entirely Federal support for Amtrak,
both on the operating side and on the capital side. Even with
$1.2 billion a year in support, Amtrak has a tough time
supporting the capital infrastructure, the trackbed, overhead
wires, signaling systems, the rolling stock, all the repair
shops, train stations and all, with the support of the $1.2
billion.
The administration thinks that Amtrak can get by without
any Federal support now. And meanwhile we need to improve the
quality of our security on our trains, and better surveillance
in our tunnels, better ability to escape, to breath in tunnels
should people have to evacuate trains, find an exit, better
surveillance of bridges. Simply just having dogs who are
available to--sort of low-tech but it actually works--to use
those where we need to, or just have some more Amtrak police.
I am not sure how we pay for all this. I know we are having
a hard enough time paying for it when Amtrak received, as they
are this year, $1.2 billion. The idea that they are going to
run the trains on time and meet the security needs with nothing
from the Federal Government, in my own judgment is just
ludicrous. You do not have to comment on that.
My question though is this, who should be responsible for
paying for the extra security precautions that we are going to
be taking with respect to intercity passenger rail and with
transit?
Judge Chertoff. I am not sure as I sit here I have
sufficient knowledge to know how, particularly when you are
dealing with rail, how things are allocated between departments
and to what extent the responsibility, for example, for
trackbed and things of that sort rest with State and local
government.
Clearly, in this area we are always dealing with finite
resources. There is always more that you could use. I think the
issue will be to, again, evaluate where, even in the rail
context, where our priorities are, what are the most vulnerable
issues? Some of what we need to attend to may be a response and
recovery, escape and things of that sort. And low-tech things
like dogs sometimes work pretty well too, and I think dogs are
comparatively inexpensive.
So I think we need to look at all of those ways of
approaching the problem as well as funding that may be
available in other departments, and State and locally, in
fashioning our response.
Senator Carper. Thank you. Let me turn to another issue.
Senator Collins and I have worked with our colleagues over the
last year to write a formula, as I mentioned to you yesterday,
to distribute funds to States and to first responders. We have
tried to provide an acknowledgment that all States, even little
States like Rhode Island and Delaware get some minimum support
for these purposes. But to also acknowledge that there are
different levels of risk and to try to figure out how we
provide a funding formula that reflects and respects those
different levels of risk.
The legislation that we crafted was included in the 9/11
Commission bill, went to conference. I think the House had a
different approach and in the end both approaches dropped out
and we ended up with nothing. I would welcome any advice you
would have for us, what counsel would you have for us, from the
perspective of Secretary, in readdressing this issue?
Judge Chertoff. If confirmed, obviously, I would look
forward to working on this issue, which I know is one of the
most burning issues faced in this area. As I have said I think
in some of my individual conversations, I believe--my
philosophy is a risk-based, vulnerability-based system. I think
that is what the 9/11 Commission talked about. And a cookie-
cutter approach that says, we just do it based on population or
something like that I think is not the most effective way to
deploy these funds.
We need to be sensitive to where the infrastructure is and
what the potential damage and risk is. Sometimes that may be a
function of population density, sometimes it may be
infrastructure that is located in a State which does not have a
large population but which serves a large population. So we
have to consider that. We have to consider how vulnerable it is
inherently. We have to consider what is already in place to
protect and respond.
Then there is the intelligence piece of risk which is to
consider what we know historically and currently about what
kinds of things al-Qaeda is targeting. I understand that every
community believes its infrastructure is the most important
thing. But I think as we develop our protocols further and we
get a better sense of what our infrastructure is we can have a
more nuanced and more careful approach to allocating funds.
Senator Carper. My time has expired. Thank you very much.
Good luck. Madam Chairman, thank you.
[The prepared statement of Senator Carper follows:]
PREPARED OPENING STATEMENT OF SENATOR CARPER
Thank you, Madam Chairman. I remember this Committee coming
together more than two years ago to set in motion what is probably the
largest, most significant reorganization of the Federal Government
we've ever attempted--the creation of the Department of Homeland
Security. We had our share of disagreements back then but I think the
Department we created is now able to prevent and respond to terrorist
attacks more effectively than the Federal Government was before
September 11.
I also remember sitting in this room just before the Department of
Homeland Security officially came into being and talking to Secretary
Ridge at his nomination hearing about how daunting the task ahead of
him truly was.
Judge Chertoff, the task you have ahead of you, should you be
confirmed, is no less daunting.
Since September 11th and the creation of the Department of Homeland
Security, we've made great strides in a number of areas. In countless
others, however, we have our work cut out for us.
This Committee held an excellent hearing last week during which we
asked a panel of experts to look back at how successful the Department
of Homeland Security has been in meeting its mandate. Some of what we
heard last week led me to believe that we have a long way to go before
we attain the efficiency and improved coordination we envisioned when
we crated the Department. One witness last week even went so far so to
say that weaknesses in management at the Department ``cut against the
core rationale for passing the Homeland Security Act of 2002--gaining
the synergy of having most of the key Federal agencies with homeland
security responsibilities grouped in one department.''
A November report from the Department's Inspector General discusses
how key management officials, such as the Chief Financial Officer and
Chief Information Officer, are basically unable to do their jobs at
times. The CIO apparently doesn't even have the authority and resources
necessary to control and coordinate the IT purchase and deployment
decisions made by the various Department components.
A recent report from the Heritage Foundation and the Center for
Strategic and International Studies discusses how Homeland Security
managers have had difficulty developing policy and implementing it
throughout all of the Department's component agencies.
You'll probably hear today, Judge Chertoff, about a number of our
priorities that we believe the Department of Homeland Security should
be dedicating more time or money to. I have some priorities of my own
I'll be discussing, chief among them being the gaps in security we have
today in our Nation's rail and transit systems.
Thinking about issues like rail security, I have to say I don't
envy you at all, Judge. Should you be confirmed, you'll be taking on
this important job at a time when the government is facing record
budget deficits and the Department of Homeland Security will likely be
forced to work with a lot less money than we'd all like to give it.
Throughout this hearing, then, I'll look forward to hearing from
you some details about how you would prioritize, plan, and manage
during such a challenging time.
Chairman Collins. Thank you, Senator.
Judge Chertoff, we have two choices at this point. My
inclination is to keep going, to begin the second round of
questions, and I think with some good fortune we could be
finished within an hour. The alternative is to break for lunch,
or if you and our court reporter need a shorter break--she
indicates that she is fine, so we will give you the tie-
breaking vote.
Judge Chertoff. I am very happy to proceed as we are.
Chairman Collins. Then we will proceed.
I want to follow up on Senator Carper's question about the
homeland security grant funding. As we look at this issue I do
believe that the legislation that so many of us, Senator
Carper, Senator Levin, and I worked on last year did strike the
right balance. It is, I would caution you, a mistake to assume
that population density or population alone equates to risk and
vulnerability.
The Rand Corporation, for example, in a report noted that
homeland security experts and first responders have cautioned
against an over-emphasis on improving the preparedness of large
cities to the exclusion of smaller communities or rural areas
noting that much of our critical infrastructure and some
potential high-value targets, nuclear power plants, military
installations, agricultural facilities, are located in less
populated areas.
Moreover, those of us who come from the State of Maine are
very aware that two of the September 11 hijackers began their
journey of death and destruction from Portland, Maine. We know
from the 9/11 Commission's report that the hijackers trained,
hid, and transited through some of the smaller communities in
our country.
Do you agree that an effective homeland security strategy
must include some funding that is dedicated to smaller States
and rural areas for first responders and infrastructure
protection?
Judge Chertoff. I agree that we need to be mindful as we
talk about a threat-based and risk-based approach that
population and population density are not surrogates for doing
this kind of approach. That we need to look at all the things
that you have outlined, Chairman Collins, in deciding where
money ought to be spent. That includes things like where there
are vulnerabilities because of borders, where there is
infrastructure both big buildings and even agricultural
infrastructure that serves a large community. In fact what we
ought to be driven to is a much more finely grained analysis of
where the threat is, where the risk is, rather than, as the
Rand Corporation criticized, a population-driven approach.
Chairman Collins. Those of us who represent border States
are aware of the vulnerability of an international border. We
are also aware of the need to strike the right balance between
security at the border and the need to allow the free flow of
legitimate individuals and commerce across those borders.
In northern Maine, where I am from originally, there have
been many problems with individuals having family members on
either side of the border, the hospital may be on the Canadian
side, services may be on the American side. There are hospitals
throughout Maine that rely on Canadian nurses, for example. We
have experienced problems with ensuring that the legitimate
traveler can easily cross the border without undue delay.
Will you pledge to work with me to try to resolve some of
those problems as we are tightening our borders to prevent
terrorists from coming across, we are not doing so in a way
that impedes legitimate travel and commerce?
Judge Chertoff. Yes, I will.
Chairman Collins. Another area of great concern to a number
of Committee Members is the state of the Coast Guard. As you
know, the Coast Guard has embarked upon a recapitalization
program that is known as the Deepwater program. The Ranking
Member and I have been pushing for an acceleration of that
program. I met with Coast Guard officials in Maine and
California who have told me of cutters that are not able to be
deployed because of maintenance problems; of helicopters that
have had near misses because of their age. It is obvious that
the legacy assets of the Coast Guard are deteriorating rapidly.
If you add to that the fact that the Coast Guard's
responsibilities and operations since September 11 have
increased by 25 percent without a corresponding increase in
personnel and equipment, we are putting tremendous strain on
the Coast Guard.
A Rand report issued last year suggested that accelerating
the project from 20 years to 10 years would generate almost 1
million additional mission hours and it would save $4 billion
over the life of the project. This is an area where I think we
are being penny-wise and pound-foolish. We could save $4
billion, get the assets we need in place far sooner if we
accelerated the project.
What is your position on accelerating the Deepwater program
in the post-September 11 environment?
Judge Chertoff. I am aware of the fact that the program was
originally initiated prior to September 11. Obviously, the
Coast Guard's mission has been increased now because, in
addition to the traditional legacy missions which remain
important, there is an enhanced mission with port security.
I am not sufficiently familiar with the current state of
the equipment to respond with precision to the question about
whether in fact assets are degrading more rapidly than
envisioned. But I understand the argument that we need to at
least consider, is there some way to accelerate some part of
this in order to save money over the long run. It is a matter,
I think, of importance not only to the Coast Guard itself but
also part of our port security program and the whole range of
missions that we do. So I would look forward to really taking a
look at that and understanding what the arguments are pro and
con in assessing what my position would be.
Chairman Collins. I hope you will take a close look at
this. I would encourage you to talk to Admiral Loy before he
departs the Department of Homeland Security, and also to meet
with Admiral Collins, the head of the Coast Guard--no relation,
but he is a fine individual nonetheless--and get their
prospective. If you talk to the Coast Guard men and women out
along our ports you really will see a dangerous and
deteriorating situation.
Finally, I want to follow up on the second question that I
asked you about whether in hindsight, as you look at the
investigative strategy the Department of Justice employed in
the post-September 11 attacks, whether or not there are some
lessons to be learned. You said that the strategy was correct
but that the IG's report has shown that there were some
implementation problems.
Based on your responses to Senator Lieberman, am I correct
in concluding that you believe there were problems in how long
it took to clear detainees, and also in how detainees were
treated in detention, including the issue of their access to
counsel?
Judge Chertoff. The short answer is yes. I think that the
clearance process--I do not fault--I understand the
constraints. I understand that they were agents who had never
worked terrorism before who were now being thrust into the
field, being forced to make decisions literally under pressure
of life and death, and that the FBI was stretched on the one
hand wanting to follow all the leads to avoid another
catastrophe, and yet needing to have agents do the clearance
process.
I think that was unfortunate. My hope and expectation is
that as people have been better trained and as we have better
databases, the clearance process will be quicker. That we will
have more experience.
Mistreatment of detainees in detention facilities is wholly
unacceptable. It has always been unacceptable. Again, I
understand it was an emotional time. But training has to be in
place so people understand that you do not give in to emotions.
People are being detained not to be mistreated or punished but
simply as part of the legal process to allow an investigation
to be completed.
Likewise, with the lawyers, it was not my understanding
that there was any plan to keep people away from their lawyers
for the sake of doing so, at least from my perspective. I think
to the extent that there is a right to counsel in immigration
proceedings, that that right ought to be honored. The point,
again, of detention is not to mistreat people but it is to
accomplish the result of allowing the investigative process to
go forward, always, and I want to underline always, to the
extent the law permits, and always under the supervision of a
judge, be it an immigration judge or a Federal judge if it is a
criminal case.
Chairman Collins. Thank you. Senator Lieberman.
Senator Lieberman. Thanks, Madam Chairman.
First, Judge Chertoff, I want to congratulate your wife for
now approaching the end of 3 hours of listening attentively to
not only our questions but your answers. This is very
admirable.
Judge Chertoff. She deserves a lot of commendation for her
behavior throughout this entire process. I appreciate it.
Senator Lieberman. I am sure.
I want to come back to something else that occurred while
you were head of the criminal division, briefly. Again it has
been in the public discussion the last few days. Senator Levin
spoke to you about the memo of August 2002 from Mr. Bybee of
the Office of Legal Counsel and your involvement in questions
that might have been raised as a result of it, or from the CIA.
There was apparently a second memo or letter that Mr. Bybee
issued which, though classified, I gather or it has been
alleged, discussed rather than the broader definition of
torture, specific methods of torture and whether they were
acceptable.
I wanted to ask you, to the best of your recollection were
you consulted in the construction of that memo or letter?
Judge Chertoff. No. I have never seen it. The only thing,
which I mentioned to the staff is, if I said something to
somebody and then they took what I said and unbeknownst to me
put it in a memo, that is something I would not know. But I was
not aware of a memo like that being prepared and was not
consulted about it.
Senator Lieberman. Thank you for that. So just to clarify,
both in terms of this memo, but more to the point of the first
memo, to your recollection were you asked to pass judgment on
any specific delineated methods of treatment of prisoners that
some might consider torture? We mentioned water boarding
before. There is a whole list. Or was not on a question of the
general definition?
Judge Chertoff. I cannot tell you what was in the heads of
the people that were asking me, and whether people hoped to get
some kind of a definitive answer. I can tell you that my
response was as it is. First of all, given my institutional
position I made it very clear torture is illegal and if you
violate the statute you are likely to get prosecuted. I was not
prepared to approve in advance techniques based on
hypotheticals. Again, these were discussions with lawyers so I
expected them to understand why I was not going to do that.
My practical advice in dealing with the statute, again,
given the way it is worded, was that in general when
prosecutors look back to judge whether or not to prosecute they
want to have honest and good-faith behavior.
Senator Lieberman. So that if you had been asked about some
of the other delineated forms of treatment of prisoners that
might be considered torture like sleep deprivation, sensory
deprivation, etc., to the best of your knowledge and
recollection your answer would have been the general one that
you just gave?
Judge Chertoff. Correct.
Senator Lieberman. Not to say that that would have made it
or that would not have made it.
Judge Chertoff. Right.
Senator Lieberman. I do recall that you said before--and
correct me if I am paraphrasing it wrong--that you basically
said to them, ``if you are nervous about it, be careful.''
Judge Chertoff. I think that is right. The one other thing
I should add, if someone had----
Senator Lieberman. ``Cautious'' is really what I want to
say. In other words, I am hearing that almost as if you were
saying to them, ``if you do not want to come close to law and
you are nervous about something, you would be wiser not to do
it.''
Judge Chertoff. Effectively I was saying--I cannot say it
any differently than I said it--basically you need to be very
careful if you are in that area.
The one thing I want to make sure is clear, and I do not
have a specific recollection of this, but if somebody had said
something that was specifically forbidden in the statute I
think at that point I probably would have said, you probably
better take a good look at the statute.
Senator Lieberman. But you do not have a recollection that
you were asked about specific conduct, or do you?
Judge Chertoff. No, I was asked about some specific
conduct. It is difficult for me to separate what I was told at
the time from what I have subsequently learned.
Senator Lieberman. That is what you said before.
Judge Chertoff. But my position was that I did not want to
be pulled into the discussions of hypotheticals.
Senator Lieberman. Let me go to the subject of funding,
which is on everybody's mind. Most homeland security is local,
is a maxim that you will find followed here in Congress. I want
to share with you an experience that we had and just ask you to
take a look at it. In addition to the general drop in homeland
security funding which affected all of the country, the Urban
Area Security Initiative was administered in the last year in a
way--and I believe I have got this correct--that eliminated
from consideration communities under 225,000 in population. So
to be real direct, that meant that the city of New Haven in
Connecticut, which had received a substantial grant under that
program in the previous year, was eliminated.
I want to ask you to take a second look, not at that
specific decision but at the formula, because it does seem to
be--and this is the other side of the question Senator Collins
raised--that the smallness of the size of a community ought not
to automatically eliminate it, assuming it also has risk
factors included in it. So my question is, would you take
another look at that formula?
Judge Chertoff. Yes.
Senator Lieberman. Thank you.
Finally, we referred earlier to risk at chemical plants,
which has been a real concern of one of your two Senators that
introduced you, Senator Corzine. Last week Richard Falkenrath,
former homeland security advisor to President Bush, told the
Committee we have done essentially nothing in this area and
made no material reduction in the inherent insecurity of our
chemical sector. He said that if a terrorist were to attack
that sector, ``There is potential for casualties on the scale
of, or in excess of 9/11.''
So I want to ask you if you have thought about this, and
whether you agree this should be a top priority as Secretary,
and that the Federal Government ought to play a more active
role in achieving security at chemical facilities?
Judge Chertoff. I have thought about it. I am not in a
position to judge, in fact, what the Federal Government has
done to date in this. I understand there are programs underway
to work with industry to upgrade with respect to security,
hardening, and response.
But I do think this--and again I can draw on my personal
experience--I do agree that this is an area of potential
significant risk. I think the Federal Government needs to be
able to use a whole range of tools to bring the industry up to
an appropriate standard. At a minimum we have to give them--I
know there are surveys and guidance that we can give them of
things they can do on their own. I think there are incentives
we ought to consider, including working with the insurance
industry.
My experience with Y2K was, a lot of industry woke up when
the insurance people started to talk about what they were
prepared to insure and not insure.
But also I understand the President has indicated that he
supports, if necessary, the use of authorities to require
chemical companies to come up to certain standards, with
appropriate penalties if they do not do so. So I think the
President has indicated that that kind of approach, if
necessary, would be appropriate to make sure our chemical
plants are safe.
Senator Lieberman. We will look forward to working with you
on that, as well as everything else we talked about this
morning. Thank you very much.
Chairman Collins. Thank you. Senator Levin.
Senator Levin. Thank you, Madam Chairman.
Judge Chertoff, I want to share with you and have you look
at a document which I also would like to be given to the
Members of the Committee up here. It is an extraordinary
document. I think probably an astounding document. We gave a
copy of this to your staff I believe yesterday or this morning.
It contains a series of three FBI E-mails, memos that were
written in May 2004,\1\ but it is quite clear it is referring
to events that occurred probably in 2002. The document is one
of many that were released recently as part of a Freedom of
Information Act request by the ACLU. It is redacted in places.
It clearly questions the interrogation techniques that were
being used at Guantanamo Bay, called Gitmo, that were witnessed
by the FBI agents. And the document showed that the FBI was
really seeking to distance itself from those techniques.
---------------------------------------------------------------------------
\1\ The series of three FBI E-mails provided by Senator Levin
appears in the Appendix on page 62.
---------------------------------------------------------------------------
I want to go through this document with you, Judge. On page
1, third line down in the text, the author of the E-mail is
someone, T.J. Harrington of Division 13 of--excuse me, it looks
like. I cannot see who it is from but it was written to T.J.
Harrington, Division 13 of the FBI.
Here is what it says. I went to Gitmo with blank early on
and we discussed the effectiveness of blank with the
supervisory Special Agent. We--that is the behavioral analysis
unit--and the ITOS one, which is the International Terrorism
Operations Section one, it also met with Generals Dunleavy and
Miller explaining our position, law enforcement techniques
versus the Department of Defense. Both agreed the bureau has
their way of doing business and the Department of Defense has
their marching orders from the Secretary of Defense. Although
the two techniques differed drastically, both generals believed
they had a job to accomplish. In my weekly meetings with the
Department of Justice we often discussed blank techniques and
how they were not effective or producing intel that was
reliable.
Then the memo goes on with a series of blanks which appear
to be individual's names that have been redacted but with the
abbreviation SES after the names, indicating that the
individuals were members of the Senior Executive Service.
The document then says that the redacted names were of
persons from the Department of Justice Criminal Division. That
was your division. And that they ``attended meetings with the
FBI. We all agreed blank were going to be an issue in the
military commission cases. I know blank brought this to the
attention of blank.''
Then on page 2 of this memo in the middle the author writes
the following, that ``we spoke to FBI Office of General Counsel
with our concerns. I also brought these matters to the
attention of the Department of Justice during detainee meeting
with blank, expressed their concerns to blank.''
Then on page 3, the author writes, has there been any
written guidance given to FBI agents in either Gitmo or Iraq
about when they should stand clear, B.C.--I presume that means
because of--the interrogation techniques being used by DOD or
DHS, followed by some additional blanks.
Now again while these E-mails were written in 2004 they
appear to refer to events that took place earlier, perhaps in
2002. I say that because the first general mentioned in the E-
mails, Major General Dunleavy was the operational commander of
Gitmo for 9 months ending in October 2002, and Major General
Miller was in charge of Gitmo from October 2002 through March
2004. Since I believe you were in charge of the criminal
division at Justice from 2001 until 2003 March, it appears----
Judge Chertoff. Actually May or June.
Senator Levin. Through June 2003?
Judge Chertoff. Yes.
Senator Levin. So it would appear that these events or some
of these events took place while you were in charge of the
criminal division.
Now what they indicate is that the interrogations that were
witnessed by the FBI agents, that so concerned the FBI agents,
were discussed in weekly Department of Justice meetings, with
FBI legal counsel, with at least four senior officials in the
criminal division.
My first question is, during your tenure as head of the
criminal division at the Department of Justice did you ever
become aware of the issues raised in this document involving
FBI personnel witnessing DOD interrogation techniques at
Guantanamo Bay that were contrary to FBI techniques?
Judge Chertoff. Let me say this. First of all I do not
recall having any discussion about techniques that the Defense
Department was using in Guantanamo other than simply the
question of whether interrogations or questioning down there
was effective or not. I was never informed or I had no
knowledge at the time--again, I want to take out of my head
things I have read in the paper recently--about any use of
techniques in Guantanamo that were anything other than what I
would describe as kind of plain vanilla.
Obviously, the FBI has its own way of doing things. For
example, the FBI might read Miranda warnings to people. DOD
might not. I am not particularly familiar with DOD techniques,
either standard techniques as they exist in the normal field
Army manual or what additional techniques might have been
considered.
So for me to interpret this document, which I have not
seen, which was written basically a year after I left and which
refers--I would really be speculating.
But I can tell you this, I was not aware during my tenure
at the Department of Justice that there were practices in
Guantanamo, if there were practices in Guantanamo, that would
be torture or anything even approaching torture.
Senator Levin. Judge, you do not know whether or not your
name appears in the unredacted version of this document or not?
You have never seen the document before you said; is that
correct?
Judge Chertoff. Correct. I know I was not in SES. I was a
PAS. But other than that, I have no----
Senator Levin. We did not see this document, by the way,
until yesterday when my staff saw it on some web site, I
believe.
Do you know who those--are you surprised, put it this way,
to read that members of the criminal division were present at
these discussions?
Judge Chertoff. My problem is, Senator, I do not really
know what the discussions are. What I see is a lot of
different--what I see is a discussion of techniques. I do not
know whether the techniques reflect simply different ways
people question, or whether they reflect the fact that the DOD
was doing something that appeared to be maybe getting close to
the line of what would be appropriate or not. And that is a big
difference, obviously.
It does not surprise me that people at the criminal
division would have attended meetings generally to find out if
information was being obtained from detainees, and what the
progress was in terms of was DOD going to be moving people out
of Guantanamo and sending them home again. That is because, my
understanding is part of the process of deciding who should be
sent home required an assessment of whether anybody believed
that, based on the evidence, that this person was a terrorist
threat or not.
So again, given that I do not know what the meetings being
referred to are, what the techniques are being referred to, and
who the people are, it just would be shear guesswork on my
part.
Senator Levin. At the top of page 2 it says, we have this
information. Now we are trying to go beyond. Did we ever put
into writing in an EC memo, note, or briefing paper to our
personnel our position blank, that we were pursuing our
traditional methods of building trust and a relationship with
subjects.
What is an EC memo, do you know?
Judge Chertoff. I think it is just an internal FBI
document.
Senator Levin. Do you know who the members of the criminal
division were who attended meetings with the FBI on this
subject? There were weekly meetings with the Department of
Justice. They discuss techniques, how they were not effective
or producing intel that was reliable. There were four names
there that were redacted. They are all from the Department of
Justice's criminal division. Do you know who those would be?
Judge Chertoff. I do not know who these people are. I do
not know when these meetings occurred because this is an E-mail
written a year after I left, so it covers a span of time. I
want to emphasize, I do not know that the discussion of
techniques or differences and techniques means that the
techniques being used by DOD were necessarily what I would call
harsh techniques. My understanding was there are just simply
different ways of questioning. The FBI does it one way. There
are police departments that do it differently. So I would be
speculating about what was going on in these meetings.
Senator Levin. Now you indicate because you never saw the
memo that you do not know who the people were who were
representing you at those meetings.
Judge Chertoff. I do not know that they were representing
me because I do not know if the meetings were current when I
was head of the criminal division.
Senator Levin. Or that the meetings took place while you
were head of the criminal division.
Judge Chertoff. Correct, I just do not know.
Senator Levin. Would you be willing to inquire to find out
for this Committee?
Judge Chertoff. I have to tell you, Senator, I am a sitting
Federal judge. I do not know that I have the ability to inquire
about this.
Senator Levin. Then I would ask our Chairman as to whether
or not we could inquire, Madam Chairman, could we see this
entire memo?
Chairman Collins. I will take it under advisement.
Senator Levin. I thank you for that.
My time is up. The only other question that I would have--
by the way, I guess EC is an electronic communication.
Judge Chertoff. It might be.
Senator Levin. Which I know my children would know, but I
do not.
I would also then ask whether or not you ever had any
discussions--if I could ask for liberty for one more question--
have you ever had any discussions----
Chairman Collins. We do need to move on, Senator.
Senator Levin. Thank you, Madam Chairman. I will finally
wind up then.
Did you ever have any discussions with Judge Gonzales about
that August memorandum that was addressed to him?
Judge Chertoff. I do not believe so.
Senator Levin. Or about the subject of that memorandum?
Judge Chertoff. I do not believe so.
Senator Levin. Thank you. I would have additional
questions, if I could, for the record, Madam Chairman. How long
will the record be kept open?
Chairman Collins. The record will kept open till 10 a.m.
tomorrow morning, and there are going to be additional
questions from several Members, including myself. Senator
Dayton.
Senator Dayton. Thank you, Madam Chairman.
Judge going back to the Lindh case, did anybody from the
Department of Defense, the military, or anyone else in the
administration contact you or anyone else to your knowledge on
the prosecution team asking that reduced sentence be offered to
Mr. Lindh or his attorneys to suppress allegations of torture
and/or improper treatment?
Judge Chertoff. Again, Senator, I have to say I do not
think--although I understand that there was a--not having the
document, I do not know what is in it. Assuming there was a
provision in the document to say that there would be no claim
of intentional mistreatment, which as I say is not an unusual
thing, I am sure that was requested by somebody. I do not
remember who requested it.
In terms of the decision about whether to take a plea, I do
not agree that it was driven by the desire to suppress
information because my recollection is that the information had
been made public in filings made by the defendant. So one would
have been suppressing something that was publicly discussed.
Senator Dayton. So you do not recall anyone contacting you
from the Pentagon, the military, anywhere else in the
administration asking that this information or any information
or allegations of mistreatment be suppressed, and requesting
that there be a negotiated plea reduction in order to
accomplish that?
Judge Chertoff. I am confident we discussed with the
Defense Department in some detail the appropriateness of taking
a plea and what the plea should be. I guess what I am not
comfortable in agreeing with this magazine article is saying
that somehow the purpose of doing it was to suppress
information, because my understanding is the information was
public and therefore there is nothing to suppress. It is out.
It is public. My recollection--again, I do not have the
documents--is that the counsel for the defendant, who were very
able and aggressive, had raised it publicly. So while there are
reasons to take a plea, I do not think hiding the allegation
was one of them.
Senator Dayton. About a year ago, The Washington Post
reported a story of a Buddhist nun, a 30-year-old woman
originally from Tibet. Her family was being reportedly tortured
by Chinese authorities so she fled to Nepal for safety. Then
when she feared being rounded up by Chinese authorities or the
Nepalese government and returned to China, she fled to the
United States and sought asylum. She arrived in August 2003,
was granted asylum by an immigration judge in November.
Then the Department of Homeland Security appealed that
case. She was returned to her cell, this was reported the end
of January last year in The Washington Post, and her attorney
said that her next court date would be likely in the fall at
the earliest. She did not speak any English, did not understand
any English, was basically incommunicado. Had only had this one
appearance in court where asylum was approved. The Chairman and
I wrote a letter, and I think there were some other inquiries
too. She was then released and the appeals court subsequently
ruled in her favor.
We wrote also and asked Secretary Ridge for the number of
instances where this was also occurring and were told that in
fiscal year 2003, DHS had sought review of 486 cases involving
asylum grants. I realize with all of your myriad
responsibilities it is not going to be possible for you to
review each one of those, but I would ask that somebody make a
determination.
And in his response he says it is generally the discretion
that the appropriate ICE field officer, the director, whether
or not to ask for the alien to be incarcerated during that DHS
appeal, absent exceptional concern such as national security
issues or danger to the community. Somebody ought to be able to
decide whether a 30-year-old Tibetan nun is a threat to the
community and to our national security or not, especially after
a judge has ruled in her favor, just on the grounds on basic
humanity. As the article said, here she is fleeing persecution
in China and ends up being incarcerated here.
Again, I am respectful of the difficulty in making these
distinctions, but I think, is important, especially if this is
going to be a longer term predicament that we are in, that
these decisions and these distinctions be made rationally and
carefully.
Judge Chertoff. I agree with that. I think we should
definitely do that.
Senator Dayton. Thank you. I would also ask you to review
what occurred on June, I believe it was the 9th, possibly the
8th. My staff says the 8th, I say the 9th, so it is probably
the 8th of last year when a private plane carrying the Governor
of Kentucky flew into the restricted airspace here in violation
of FAA procedures, but nevertheless did so. The transponder was
not functioning. The same situation we experienced on September
11, 2001. Despite some progress, and I think real progress that
has been in interagency communication and the like, an open
line which is great to have but evidently not all parties are
staffing that line on an ongoing basis. So it does not do any
good to have an open line if no one is there to receive the
information.
Anyway, there was a breakdown in communication. Thousands
of people were evacuated from the Capitol complex, being told,
probably under the circumstances by the Capitol Police, take
off your shoes, run for your lives. If that plane had been
other than what it was, it would have crashed into the Capitol
within a minute of the time that alarm was sounded. So clearly,
again, we will never be perfect but when something that
replicates what occurred on September 11 can occur, and you
could not have a more real-life, realistic simulation of that
kind of a situation where most of the responsible authorities
really thought that there was another attack. And to see those
continued failures to protect this Capitol complex to me was
really shocking.
Despite inquiries that I and other Members of Congress have
made, to my knowledge, there have been no consequences from
that at all. That is also alarming.
Judge Chertoff. I agree that is something that, as I said I
think previously, when there are penetrations or issues like
that, those are opportunities for us to go back and see, why
did that happen. I think that is a valuable thing to do.
Senator Dayton. Thank you. I would urge you to review the
interdepartmental communication so that it is adequate to be
immediately responsive, which it has to be.
Then finally, I just support what my colleague Senator
Coleman said about the predicament in Minnesota, because it is
nonsensical. There is a book in my library in my office called
The Death of Common Sense, and I could apply that on a daily
basis around here. In this case, we are giving a real double
message to local officials if we say, make yourself a priority,
take the necessary actions, and then on the other hand we turn
around and say, you are not important enough, you are not high
risk.
If somebody here is going to make a determination that
certain parts of the country are sufficiently low risk then
they should tell them so and relieve them of the
responsibilities, the expenses and the like. But to say, you
need to do all that and have local officials conscientiously
doing that at cost, have the public believe that is necessary,
and then turn around and just without any forewarning just say,
now you are out, and the city and county right adjacent to you
is in is really, from a standpoint of intergovernmental
relations, is really destructive. But it is also really a
contradictory message and it is very unfair to them.
If we are not going to be consistent and we are not going
to follow up here with the resources necessary to carry out
what we say needs to be done, then I think we are really guilty
of rank hypocrisy at this level. I hope and would urge that--
and I respect that you serve under the President and that they
have a process, including Office of Management and Budget, but
I think it is imperative that if we are going to do our
responsibility here as a separate branch of government to
protect this country, that we have confidence that we are
getting from you, regardless of OMB's view, regardless of
someone else's fiscal policy, we are getting from you the
assurance that we are providing you with the resources
necessary to protect this country to the best of our possible
capabilities.
I would ask if you are willing to take that responsibility
to communicate that independently to us and give us that
assurance independently.
Judge Chertoff. I think you deserve my candid assessment of
where we are and what we need to do, and I will give that to
you.
Senator Dayton. Thank you. I will support your nomination.
I wish you well.
Judge Chertoff. Thank you very much. Thank you, Senator.
Senator Dayton. Thank you, Madam Chairman.
Chairman Collins. Thank you.
Judge you have completed what I hope will be the first of
many appearances before this Committee as we work with you to
improve our homeland security. As you can see, this Committee
is very concerned about the Department, about its policies, and
about improving the security of our Nation. We are going to
aggressively oversee the Department. We have new and expanded
jurisdiction to do so, and look forward to working very closely
with you.
I want to conclude this hearing by again thanking you for
your commitment to public service, your patriotism, your
dedication to the Nation. I continue to think that is highly
unusual and very impressive that a Circuit Court Judge would
choose to give up a lifetime appointment to the Federal bench
in order to serve in this important post. So I commend you for
your dedication, for answering the call to service.
I do have additional questions for the record. The fact
that I am submitting them for the record does not mean that I
care any less about them than the ones that I posed to you
today and I look forward to receiving your answers. I know
Senator Levin, and I suspect other Senators as well, will have
some questions to submit.
Without objection, the record will remain open until 10
a.m. tomorrow for the submission of any written questions or
statements for the record. I would note that the Committee will
include in the record the many letters that we have received
from law enforcement organizations endorsing your appointment.
I have been very impressed with the support that you have from
the law enforcement community. I think that bodes well for
working out a good relationship with those who are truly on the
front lines in the war on terrorism.
So thank you very much for answering the questions.
Senator Dayton. Madam Chairman, may I inquire, what is your
intention regarding a vote on----
Chairman Collins. I had hoped to have a vote tomorrow.
Unfortunately, there were objections on your side of the aisle
to doing so, so we will have the vote on Monday in conjunction
with the first roll call vote, or if there is not a roll call
vote it will be late in the afternoon on Monday.
Senator Dayton. Thank you.
Judge Chertoff. Thank you very much. I appreciate being
able to appear before the Committee, and if I am confirmed, I
really look forward to working with you all.
Chairman Collins. Thank you. This hearing is now adjourned.
[Whereupon at 1:25 p.m., the Committee was adjourned.]
A P P E N D I X
----------
PREPARED STATEMENT OF SENATOR VOINOVICH
Madam Chairman, thank you for expeditiously holding this hearing to
consider President Bush's nominee for one of the most important
positions in the Federal Government: Secretary of the Department of
Homeland Security.
Judge Chertoff, I would first thank you for your continuing service
to our Nation during these challenging times. Your willingness to step
down from a lifetime appointment to the Federal bench to take what is
certainly one of the most difficult jobs in the Federal Government is a
testament to your patriotism and dedication to public service. I would
also thank your family for the sacrifices they have made and will
continue to make.
I enjoyed our meeting yesterday very much. I believe you are well
qualified for the office in which you are about to enter and am happy
to support your nomination. Please let me know if I can assist you in
any way during the next 4 years.
Thank you, Madam Chairman.
PREPARED STATEMENT OF SENATOR COBURN
Thank you, Chairman Collins. I am pleased to be here today to
review the nomination of Judge Michael Chertoff to be the next
Secretary of the Department of Homeland Security.
Judge Chertoff has a distinguished background in the law and public
service. He has served in a wide range of positions: In the
administration, on staff here in the Senate, and in the private sector.
I think we can all agree he has an impressive background.
Of course, what is important for us to determine in this hearing is
how Judge Chertoff will serve our Nation if confirmed as Secretary of
Homeland Security. Of particular interest to me in this regard is how
he plans to use the finite resources of the Department to secure our
Nation's borders.
At our most recent hearing, Senator Stevens made an excellent point
by telling the witnesses that they should not expect Congress to
continue throwing money at the Department of Homeland Security. The
Department must find a way to use the resources at its disposal in the
most efficient and effective manner possible. At that same hearing our
witnesses broadly agreed that the Department has not thought through
the most effective ways to utilize its sources. Too often, we have turf
battles and a ``manage by the inbox'' approach to long-term planning
and policy.
It is important to me that we know what Judge Chertoff views as the
priorities for the Department, and how he plans to use its resources to
most effectively protect our homeland and secure our borders.
I thank Judge Chertoff for being here today and for his service to
our country. I am looking forward to hearing what he has to say.
Thank you, Chairman Collins.
PREPARED OPENING STATEMENT OF SENATOR PRYOR
Thank you, Madam Chair and Senator Lieberman, for convening this
hearing and continuing your bipartisan leadership as we address the
important matters our Committee faces today and in the days ahead.
Judge Chertoff, good morning it is nice to meet you.
As our Committee has been assessing the challenges and
opportunities at the Department of Homeland Security it has become even
more apparent to me what awesome responsibility DHS is tasked with in
leading the efforts to protect our borders and secure transportation
and other critical parts of our infrastructure.
Of course, it follows that the Secretary of DHS, as director and
coordinator of those efforts, faces extraordinary challenges.
It is imperative that the Secretary of DHS lead the charge to make
this country safer, while steadfastly honoring our Constitution, which
protects our precious rights and liberties.
I look forward to hearing how you would meet the challenges and
accomplish the high goals of the post for which you have been
nominated.
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<all>