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20–170 PDF 2005

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

Printed for the use of the 

Committee on Homeland Security and Governmental Affairs

(

(II)

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

SUSAN M. COLLINS, Maine, Chairman 

TED STEVENS, Alaska 

GEORGE V. VOINOVICH, Ohio 

NORM COLEMAN, Minnesota 

TOM COBURN, Oklahoma 

LINCOLN D. CHAFEE, Rhode Island 

ROBERT F. BENNETT, Utah 

PETE V. DOMENICI, New Mexico 

JOHN W. WARNER, Virginia 

JOSEPH I. LIEBERMAN, Connecticut 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK DAYTON, Minnesota 

FRANK LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas

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 

(III)

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

Page

IV

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

(1)

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 DepartVerDate 0ct 09 2002 10:08 Apr 28, 2005 Jkt 020170 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 C:\DOCS\20170.TXT SAFFAIRS PsN: PHOGAN
2

ment 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. 

3

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 dayto-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 

4

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. 

5

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. 

6

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. 

7

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:]

8

1 Article from The Washington Post, appears in the Appendix on page 61. 

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. 

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.

9

1 Article from The Washington Post, January 31, 2005, entitled ‘‘Civil Service Reform,’’ appears 

in the Appendix on page 61. 

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 justreleased 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

Chairman COLLINS. Without objection. 

Senator AKAKA. That article talks about implementing a pay-forperformance 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 cooperVerDate 0ct 09 2002 10:08 Apr 28, 2005 Jkt 020170 PO 00000 Frm 00013 Fmt 6633 Sfmt 6601 C:\DOCS\20170.TXT SAFFAIRS PsN: PHOGAN
10

ate 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 reVerDate 0ct 09 2002 10:08 Apr 28, 2005 Jkt 020170 PO 00000 Frm 00014 Fmt 6633 Sfmt 6601 C:\DOCS\20170.TXT SAFFAIRS PsN: PHOGAN
11

sponse 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. 

12

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 

13

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, 

14

1The prepared statement of Senator Corzine appears in the Appendix on page 65. 

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. 

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. 

15

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, policybased, 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. 

16

1The 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 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. 

17

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 fightVerDate 0ct 09 2002 10:08 Apr 28, 2005 Jkt 020170 PO 00000 Frm 00021 Fmt 6633 Sfmt 6601 C:\DOCS\20170.TXT SAFFAIRS PsN: PHOGAN
18

ers, 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. 

19

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? 

20

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 

21

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 hightech 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. 

22

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 

23

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 proVerDate 0ct 09 2002 10:08 Apr 28, 2005 Jkt 020170 PO 00000 Frm 00027 Fmt 6633 Sfmt 6601 C:\DOCS\20170.TXT SAFFAIRS PsN: PHOGAN
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tections 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 inVerDate 0ct 09 2002 10:08 Apr 28, 2005 Jkt 020170 PO 00000 Frm 00028 Fmt 6633 Sfmt 6601 C:\DOCS\20170.TXT SAFFAIRS PsN: PHOGAN
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cidents 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 sitVerDate 0ct 09 2002 10:08 Apr 28, 2005 Jkt 020170 PO 00000 Frm 00029 Fmt 6633 Sfmt 6601 C:\DOCS\20170.TXT SAFFAIRS PsN: PHOGAN
26

ting 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, 

27

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. 

28

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. 

29

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. 

30

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 

31

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. 

32

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 

33

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 

34

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 

35

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? 

36

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 sesVerDate 0ct 09 2002 10:08 Apr 28, 2005 Jkt 020170 PO 00000 Frm 00040 Fmt 6633 Sfmt 6601 C:\DOCS\20170.TXT SAFFAIRS PsN: PHOGAN
37

sion. 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 

38

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 

39

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 

40

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 

41

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 

42

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 

43

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. 

44

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 

45

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:]

46

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 

47

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 

48

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 pennywise 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. 

49

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 techVerDate 0ct 09 2002 10:08 Apr 28, 2005 Jkt 020170 PO 00000 Frm 00053 Fmt 6633 Sfmt 6601 C:\DOCS\20170.TXT SAFFAIRS PsN: PHOGAN
50

niques 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. 

51

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. 

52

1The series of three FBI E-mails provided by Senator Levin appears in the Appendix on page 

62. 

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. 

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 

53

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 

54

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. 

55

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 

56

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 

57

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 

58

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.] 

(59)

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. 

60

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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20170.265
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20170.267
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20170.271
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20170.272
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20170.273
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20170.274
334

Æ


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