Due Process; #1317; Michael Chertoff: The Homeland Security Chief's Exit Interview Part 1

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When you sift through the reality and you pull out the hype, I think it's awfully tough to say that there's been a substantial abridgment of civil liberties in this country. George Bush's Homeland Security Chief, still defending the war on terror. Michael Chertoff talks the tactics of national security, post 9-11, and the ACLU responds. It's part one of our two-part Chertoff Special, up next, on due process. Major funding for due process provided by the New Jersey State Farm Foundation, committed to educating the public about the law, and by the fun for New Jersey, supporting informed citizens for an effective democracy. We came to know him as New Jersey's U.S. Attorney, but for the rest of the country, Michael

Chertoff made his name as the head of the U.S. Criminal Division, the author of the U.S. Patriot Act, and for the last four years as the man in charge at the massive U.S. Department of Homeland Security. I'm Raymond Brown. And I'm Sandra King, and everyone has an opinion about America's war on terror, whether it's been effective, ethical, even legal. But what about the man at the heart of it all? What does he think as he leaves his seat of power? In this week's due process, and next, a two-part in-depth talk, our exit interview with Mike Chertoff. A government commission on weapons of mass destruction and terrorism tells us that we can expect a biological or chemical attack somewhere in the world in the next five years. You've said this country is entering a period of greater strategic threat.

How do we then square that with an interview that you gave where you rated our security as eight plus on a scale of one to ten? That would be pretty good. Well, you have to make sure you don't confuse two things. When we talk about the threat, we mean what are the adversaries of the enemy's plans and capability. And that's what we are focused on when we discuss, for example, a period of strategic threat. When I talk about where we are in terms of our own security and our vulnerability, we're talking about how have we managed to increase the degree of protection we have if a threat is attempted against us. And both of these elements, threat and vulnerability change over time. Because the threat increases, we've got to continue to increase our protection so that our vulnerability continues to diminish. So we're really talking about two ends of this, of a spectrum. One has to do with the enemies, capabilities and intent, and one has to do with our capability and our intent.

And as to the latter, which is of course within our control, I do think we have, I put us in an eight and a half on a scale of one to ten at the current moment. Now, the enemy is going to continue to work to do more. And if we stop, we're going to find ourselves all of a sudden degrading our security. That's why we have to continue to keep up in this unfortunately persistent race against people who want to do this harm. But before we leave the WMD commission. Does that then mean that in your opinion, first of all, do you think they're right? Do you think we can expect a really calamitous attack in the next five years? And from what you've said, does that mean that you don't believe it would happen here because of the things you've set in place? I don't think that I can describe it as an expectation. I think what I would say is the risk, the threat increases over time. And it increases because of the know-how about fabricating a biological weapon becomes certainly more widespread with every passing year.

Now, we've had a biological attack in this country. We had the anthrax attack in 2001. And according to the FBI, that was generated by an individual, not a terrorist group. But that's not unthinkable because it's actually happened. When we talk about a biological attack, therefore around the world, we know the capability exists. It's not to say that it would be a massive attack or a successful attack. I think we have capabilities here to respond effectively. But I've also said publicly that preventing a biological attack is almost impossible because you can bring a biological weapon in if you can fabricate it in a small vial. You can even infect somebody and have a person who's infected with a biological agent come into the country. So we have to think about response and mitigation. And that's a lot of what our focus has been on over the last few years. You mentioned anthrax. It took seven years for the case to be solved. And not everybody is satisfied that, in fact, it is.

Are you satisfied that it was one mad American scientist and not anything else? Well, the FBI has really run that investigation for the past few years. They're probably the right people to explain exactly what their findings are. My concern hasn't been to go back and make cases out of that business right now. My concern has been, what is the lesson in terms of mitigation and response that comes out of the events of 2001? And so when we've stockpiled countermeasures and antidotes, we have worked with state and local governments on planning about how to distribute these antidotes. Frankly, something I'm very, very big on is a program that would put these kinds of countermeasures in the hands of first responders and even ordinary families that they could put in their medicine chest against the day that we might have an attack. And there's a lot of debate about whether that's wise or not. But I think that there's a lot to be said for empowering people to protect themselves within a biotics.

So I mean, I think this is a challenging issue. There's a difference of opinion about how far we want to go in pre-distributing these kinds of countermeasures. And I think that's something we're going to have to talk about over the next couple of years. One of the things over the last couple of years that you've been accused of is being part of the hype of the war on terror, the fomenting of a culture of fear. You said that's not a fair accusation. But doesn't the kind of thing you're talking about just add to the hysteria that has calmed down in the last few years? Well, first of all, I think we've been very calm and measured in the way we talk about it. Now, of course, the commission on the weapons of mass destruction is not an administration commission, you know, which Congress set it up. And those are people appointed by Congress. So that's not us raising this issue. But I think you raised a larger question. Should we pretend that there's no problem? And then when a Mumbai happens, should we say, well, there's no problem. That can't possibly happen here. Like what we said in 1998 when there were embassy bombings in East Africa. I mean, I think the American public is mature enough to understand that the threats are real.

They want honest answers when we're asked questions about what the strategic picture is. We try very hard to be balanced. Sometimes members of the press hype things beyond what we think is appropriate. Sometimes we think they kind of cater to complacency. But the bottom line is we put the facts out as they are. It is a dangerous world. If you had any doubt about it, just look at the news over the last two weeks. That has driven home very dramatically the message that there are people who are sophisticated, dangerous, and intent on causing harm who killed Americans in Mumbai. Did some very, very horrible things to the people that they had as hostages. Is that fear-mongering? I mean, that's just the facts. You've been quoted as saying that the Mumbai attacks could not have been prevented. Is that an accurate quote? I think what I did say is this kind of attack can't be 100% protected against. And the reason we know that is because we've had that kind of thing here.

We had Virginia Tech. So we had one disturbed individual who picked up a gun and moved around a campus and killed people. But this wasn't one disturbed individual who could get under the radar. This was all folks. We had Columbine. So the idea that we can 100% guarantee that a small group of people can't enter a shopping mall or enter a university or enter a city and commit acts of mayhem. We can't 100% guarantee against that. And what I think we are capable of doing in this country is respond effectively when something like that happens. And that means being able to have a coordinated response with police, emergency responders if necessary, the National Guard to be able to move very effectively and rapidly to control the situation. Every time an event like this occurs, whether it's in Mumbai or it's here in the United States, whether it's politically motivated, ideologically motivated, or just motivated by a disturbed person or a group of people, there's an opportunity to learn lessons and to hone our capabilities in terms of a swift and effective way of addressing this kind of

event. And it's not meant to get people and it's meant to underscore the importance of continuing to do what we have been doing. And let me tell you. You've been heard from more in the last few weeks than we've heard from you maybe in the last few years. And one of the things you've been talking about is the need for your department to remain intact. This massive super agency that you run for it not to be separated out. And one argument is that we would do better in the case of an attack. Or in fact, a natural disaster? Well, the proof of the pudding is just this past year. I mean, if you look at Hurricane Gustaf, we had a need to respond in terms of an evacuation. First of all, we had worked at the department level with the governor and the mayor and the local parish leaders. Federal government is very much involved in helping the states. Our job is to assist. And because we had integrated FEMA, the Coast Guard, Customs and Board of Protection,

and also the military with our planning. I'm a satisfied that we're ready to roll. And we have enough supplies that equipment personnel on standby. That to me is the validation of the approach we've taken about integrated planning and operations. And as we've progressed over the last few years since Katrina, the great lesson learned has been integrate the planning, bring all the capabilities to the table. A FEMA that's by itself isn't going to have aircraft, it's not going to have security personnel, it's not going to have TSA personnel that we can, on a moment's notice, deploy in order to distribute food or water to people in need. More generally on the issue of Homeland Security, you know Sandy, there's a debate about Homeland Security. I know there's some people who view the creation of the department or even the use of the term as kind of an unpleasant reminder of 9-11. They think that somehow we overreacted to 9-11, that we should go back to the way things were before 9-11.

Back in the old days when it was a law enforcement problem, if someone, you know, committed an act of terror, we indicted them. Now, after 9-11, you did not hear many people say that. I didn't hear many people say, don't invade Afghanistan, don't do what we're doing to protect the country. Let's get a grand jury together and let's go out and arrest bin Laden and we can triumph. It'll be like a big OJ case. Now we're starting to hear some people, not many, but some actually beginning to articulate that view. The one thing I can predict is this. I can't tell you what the new administration will do, I can't speak for them. When you own the responsibility to protect the country, when you move from being a critic to a responsible party, when you know that when something bad happens, you will have to look at the people who have lost loved ones and you'll have to explain to them what you did and what you didn't do, that is a very, very sobering experience and a transforming experience. You use the metaphor, though, of a house on a fire. You've said, if your house is on fire, you have to put out the fire. However you don't necessarily make the kinds of well-ordered plans that you might do where

you're not in an emergent situation and some people look at 9-11 as being the house on fire, the reaction being we have to do something, but not necessarily the right response. As you look back, the response was the right one rather than just the strongest, what comes to mind? We've got to do something one. Well, no emergency response is flawless because by definition an emergency, particularly an unprecedented emergency, is one where you have to improvise and that's one of the great lessons of every emergency we've had, including the financial emergency we're in now, is that the first lesson you learn is you better plan for the unexpected. And I think that the country is a whole four years, as kind of assumed we were going to live outside of history. There wasn't going to be a massive attack in America, it was all going to be overseas. So clearly, and I said this publicly in 2003, once you've settled the situation you put the fire out, it's perfectly appropriate to look back and say, okay, we ought to make

an adjustment here and an adjustment there. And I think that's something we've tried to do, and it's something I think the next administration will do, and there's nothing wrong with that. What are some adjustments that you've made as you look back and say, I think we do better. Some of it, of course, are things which are not controversial, better information sharing, making sure we break down stovepipes, better coordination across the board. Let's talk about your successor, Governor Napolitano. You have said it's a good appointment, right? She, of course, was a U.S. attorney, as were you here in New Jersey, but what would be the single most important piece of advice that you'd give her as she comes into this incredibly difficult job? Well, I think to do the job, you're going to have to make decisions that are going to be tough and that will disappoint people. And if you worry too much about people being unhappy with the results, you're going to wind up not doing anything at all. And that's in the sense the worst way to do the job. Now, I know Janet Napolitano were enough to know that she probably doesn't need that advice,

but I still think it's hard for anybody to truly understand the wide variety of stakeholder groups who weigh in on these issues if you haven't sat in the seat because you have a, not just a national, you have an international scope to what you do, and pretty much everybody has an individual special interest they want to get taken care of. And my job is not to satisfy individual special interests, it's to look at the whole country's interest and to take the long-term view, not the short-term view. And I think if you have that spirit when you come into the job, your head is in the right place for doing it the way it should be done. However, in the nature of things, in the nature of American history, in the nature of world history, it has traditionally been the case that in reacting to an emergency, we are imperfect. You know, remember Lincoln. Lincoln is the only president ever actually to essentially say to a Supreme Court justice who ordered him to do something, go, you know, take a hike.

When Chief Justice Torney ordered the release of somebody, I think it was Merriman, Lincoln sent somebody to say I'm not going to do it. Roosevelt, of course, did some things in the name of national security that we now regret, but which were done at a time that he thought they were necessary. Wasn't that a put the fire out kind of response that proved to be right? And so they're flowing. And that's a great lesson we learned. So there was none of that in this administration. What's interesting in which not often commented upon is how many of the traditional things we've seen in the past were not done in this post-9-11 era. There wasn't clamping down on the First Amendment. There wasn't imprisoning, you know, large numbers of people of American citizens based upon their ethnicity. So in many ways we have learned some of the valuable lessons from the past. And I'm sure that we're going to continue to learn lessons from our contemporary experience. But Michael Cherdoff had lots more to say, especially about the most controversial aspects of

the U.S. war on terror. So next week, Mike Cherdoff's take on torture and the detentions Raymond at Guantanamo. But there is another side to homeland security. Another view of civil liberties and government policies post-9-11. So when we come back, a response to Michael Cherdoff from Jonathan Haifetz, a national security expert with the ACLU, so stay with us. Despite Mike Cherdoff's defense of the Bush War on Terror, the view from civil liberties circles is something very different. As we'll hear from ACLU attorney Jonathan Haifetz, a specialist in national security issues, and lead attorney on the pivotal al-Mari case now before the U.S. Supreme Court. Jonathan, it's good to have you with us. Good to be here. We're going to talk about the al-Mari case in the next show, but I think it's

only fair to give you 10 seconds to tell us who al-Mari is. But you only got 10 seconds. Mr. Al-Mari is a legal resident of the United States, was arrested at his home in December of 2001. And since 2003, he's been detained without charge in a military confinement in a military prison in South Carolina. And that case is before the United States Supreme Court now. That's correct. Okay, that's enough said about al-Mari, so everybody will come back and hear that part of our discussion. But where I wanted to start with you in response to Mr. Cherdoff was to say that probably the most controversial thing he said was that the response to 9-11 and subsequent events has not resulted in any significant abridgment of civil liberties. Is that a view that's shared by much of the civil liberties in human rights community, or is there a difference of opinion on that subject? I think it's not only is it not a view shared by the civil liberties in human rights community. I don't think it's a view shared by the broader segments of the American public. I think there have been egregious abuses of civil liberties and basic human rights and American values. Can you give us examples of the most egregious violations that you would articulate of civil liberties? I mean, there are a number that we have

things like the warrantless surveillance of American citizens and people in the United States. That we have also part of the fight. The fight? Yeah, that's right. We're the executive deliberately circumvented the law governing listening into people's conversations. We have issues around the sweep raids of immigrants in the United States, where people were swept up without any suspicion and held and subjected to brutal conditions. Looking more broadly, we have obviously Guantanamo, which has become the symbol of American access and abuse and abandonment of human rights, a deliberate policy. We're going to come back to Guantanamo in the next show, but I wouldn't want you to leave that out as part of your lawyer. Yeah, and I think a policy of really state sanctioned torture that violates the Geneva conventions, violates U.S. law, and is in fact not just a human rights abuse, but I think in some sense what was a criminal act? What about for ordinary folks on a day-to-day basis? Are there ways in which the life of ordinary Americans are affected in civil liberties terms that result from what's

happened post 9-11? Well, I think two ways immediately come to mind. I mean, certainly we talked about the Foreign Intelligence Surveillance Act and this listening in to private communications and email exchanges of American citizens, but that's affected people. People may not even know what's happened, but certainly it's something that's affected many people within the United States. Just broadly, the way that the American reputation and the American ideals have been brought down in America, which was once a leader in areas like human rights and justice has become an object of scorn. People don't think now when they think of America, people don't think of justice anymore. Now, before we go into some of those areas in more detail, let me go back to the basic premise of Mr. Chiroff's position and to be fair, the position I think of many affiliated with the Bush administration, which is that there is a threat. It's a serious threat in some ways it's unprecedented and it warrants new measures. The phrase, everything has changed as often used.

All we didn't use that in the Sandy's interview. Do you believe that there is a significant threat and is that widely shared within the universe of those who are critical of the administration? Well, I mean, certainly the terrorism remains a threat and I certainly, the Secretary Chiroff has more information about the details of the threat, but we certainly do not deny and acknowledge fully that it's a threat that warrants compromises any area of civil liberties that you would be prepared to count and so are great with. Well, I mean, I think that certainly, in various, it's hard to answer in the abstract, but there are areas that need to be where things need to be done. But the question to me is, are you going to deal with this threat through a framework of law and through the framework that we have under our Constitution? And that's not how we've dealt with it. I mean, we've dealt with it here by defying constitutional rights, core human rights, and also through this idea of unchecked executive power. And that's another, I think, important issue to think about. The Bush administration has effectively asserted that the President does not have to

obey the law. All right, let me ask you a question about how the partisan divide may affect this. We're on the eve of a Democratic administration led by a new and some say charismatic new President. Is that administration likely to, in your view, take a different approach from the past administration to this question of what infringement, if any, on civil liberties is warranted by this threat? Well, it's possible to know what the incoming administration will do. But we think you have a hint. But they, well, but they've no, I mean, all the indications are that they will certainly move the United States closer to the rule of law and to move away from some of the abuses. But I think there are some remains still critical questions on what they're going to do on a lot of issues. Well, what Sherdoff said directly in Sandy's interview was that it's one thing to be a critic, but once you have the responsibility in your hands, you're going to have to do the very things that we did, which is to take action, often emergent, which sometimes is going to challenge our notions of civil liberties in the rule of law. Do you think that's likely to happen with a new administration

Democratic, with at least some support from people who are critical of the Bush administration? Well, you know, it's hard to know, and I, you know, I'd like to think that the administration will be able to develop a national security policy that's right, that's right respecting, and then operates within the framework of the law. And I think that's certainly possible. I think that, you know, the idea that that national security and civil liberties are always in tension, I think is wrong, I think if anything else, the Bush administration's approach has undermined national security. Last question today, all fetters off, what's the area where you think you're most likely to see a change in the Obama approach from the Bush approach? Well, I think the new administration will not sanction torture as the old administration has done. What do you think, are they likely to have different approach to Guantanamo? Well, they promised to, President-elect Obama's promise to close it, but I think it's important, not only that it is closed promptly, but that we don't recreate a Guantanamo on the U.S. soil, which effectively would put a band-aid on this whole problem. Well, we're going to have a time, you know, next show to talk to you more about Guantanamo.

In the meantime, I want to thank you for being here today and say we're going to have to leave it there for this week, but we're going to be back next week with the rest of Sandy King's exit interview with Michael Cherdoff. And, of course, Jonathan's response. On the next due process, U.S. detentions with so-called illegal enemy combatants torture as a weapon in the war on terror and the future of Guantanamo Bay. Till then, for Sandy, and all of us here as you process, I'm Raymond Brown. Thanks for watching. I have to say, Sandy, I particularly from the standpoint of Americans, I can't say that there's that I've seen a substantial abridgment of civil liberties. If they're more surveillance, aren't we listening to more? Aren't our telephones? Well, but I must say to you, actually,

if you compare what we've done, I'll give you a great example. When we passed the pick, you know, it was- Would you help to write? Yeah, which I was involved in writing. There was a big hull of blue about the fact that now the act that I would be able to have a national security ready to get someone's library records. Well, before 9-11, we have the authority to do this routinely in an narcotics case. In a marijuana case, I could get your library records without going to court to do it. When you sift through the reality and you pull out the hype, I think it's awfully tough to say that there's been a substantial abridgment of civil liberties in this country. . Major funding for due process provided by the New Jersey State Far Foundation

committed to educating the public about the law and by the Fund for New Jersey supporting informed citizens for an effective democracy.