AMY GOODMAN: President Bush nominated Federal Judge Michael Chertoff, a former prosecutor and architect of the U.S.A. Patriot Act to replace Tom Ridge as Secretary of Homeland Security. He announced the nomination yesterday at the White House.

PRESIDENT GEORGE W. BUSH: Mike has also been a key leader in the “War on Terror”. On September 11, 2001, he was managing the criminal division of the Department of Justice, an 800-person operation devoted to enforcing our nation’s criminal laws. In the days after September 11, Mike helped trace the terrorist attacks to the Al Qaeda network. He understood immediately that the strategy on the “War on Terror” is to prevent attacks before they occur. His energy and intellect put him at the center of many vital homeland security improvements, especially increased information sharing within the F.B.I. and with state and local officials. He’s faced countless challenging decisions, and has helped to protect his fellow Americans while protecting their civil liberties.

AMY GOODMAN: President Bush yesterday at the White House. Chertoff served as Assistant Attorney General at the Justice Department under John Ashcroft in the months following the 9/11 attacks, also gave congressional testimony, arguing for passage of the Patriot Act. After Bush announced his nomination yesterday, Michael Chertoff spoke about his role in the 9/11 investigation.

MICHAEL CHERTOFF: On September 11, 2001, I joined members of dozens of federal agencies in responding to the deadliest single attack on American civilians ever. In the weeks and months that followed, we all worked under your direction to prevent further despicable acts of terror. If confirmed as Secretary, I will be proud to stand again with the men and women who form our frontline against terror. Their job is law enforcement and much more. They secure our ports and our airways, our borders and our buildings, our computers and our public utilities. They respond to natural and man-made disasters in our hours of greatest need. Secretary Tom Ridge has performed magnificently in launching this new department. He leaves some very big shoes to fill. I join the whole country in expressing gratitude to him for his service.

AMY GOODMAN: Michael Chertoff, nominee for Secretary of Homeland Security, speaking at the White House. As an Assistant Attorney General in the months after the 9/11 attacks, Chertoff helped oversee the detention of hundreds of Muslims and Arab men without pressing charges, by using the material witness statute. A subsequent report by the Justice Department’s Inspector General determined immigrants were rounded up in a, quote, “indiscriminant and haphazard manner.” Held for months while denied access to attorneys and sometimes mistreated behind bars. The American Civil Liberties Union said yesterday, quote, “We’re troubled that Chertoff’s public record suggests that he sees the Bill Of Rights as an obstacle to national security, rather than a guidebook for how to do security properly.” But Chertoff has also been critical of the Bush Administration’s September 11 policies. Last year he published a piece in the Weekly Standard criticizing the policy of indefinitely jailing people as enemy combatants without giving the detained access to the courts. In the early years of his career, Michael Chertoff was a clerk to Supreme Court Justice William Brennan. He later joined the U.S. Attorney’s office in New York where he prosecuted mob figures alongside Rudy Giuliani. In the mid 1990’s, he was Republican counsel for the Senate committee that investigated Whitewater, involving former President Bill Clinton and Hillary Clinton. He has been an appeals court judge for the Third Circuit, based in Philadelphia, since June, 2003. After he was confirmed by an 88-1 vote in the Senate. The sole vote against him was Hillary Clinton. Elaine Cassel joins us on the line right now. She’s a lawyer practicing in Virginia and Washington, D.C. a frequent contributor to the legal website, Findlaw , as well as Counterpunch . She wrote an article for Counterpunch actually a year ago entitled, “Michael Chertoff: Ashcroft’s Top Gremlin Spreading Mischief From D.O.J. To The Federal Bench.” We welcome you to Democracy Now!.

ELAINE CASSEL: Thank you for having me.

AMY GOODMAN: Well, can you talk about Michael Chertoff after 9/11.

ELAINE CASSEL: Well, I think what you said is true, and no one has said it better than the Inspector General’s report, about the policies that were enacted under his leadership after September 11, of sweeps of Muslim-Americans, detentions that lasted for up to three months in violations of the Department Of Justice’s own regulations that had been enacted, actually under the Patriot Act. After there was criticism, I recall there was a hearing in Congress, and Ashcroft and Chertoff appeared before the Congress and said in effect, we would do it all again, it doesn’t matter what the — you know, the Inspector General Report said, we would do it all again. So I think that the concern is that you have a man who will absolutely go to any lengths and use the laws which are there, that have been passed, regulations that have been passed which most Americans don’t have reason to know about, that will purport to secure the homeland, but I imagine at a terrible cost, and the cost is freedom. I — for his comment that he cares about civil liberties, that is a comment that is being said for the purposes of the press. I don’t think his confirmation is at all in doubt, but I think it’s almost like, you know, Alberto Gonzales last week saying that he didn’t believe in torture. I mean, you look at what the man has done, look at what he has said, and actions speak a lot louder than words. I think we all ought to be worried.

AMY GOODMAN: But Elaine Cassel, what about his piece in the Weekly Standard criticizing enemy combatants?

ELAINE CASSEL: I think he may have been — that, I — I can only say this about that — you know, he was the one who masterminded the prosecution of Zacharias Moussaoui in federal court in Alexandria. He came out shortly after September 11 when they issued the indictment against Moussaoui and charged him with being the so-called “20th hijacker”. He was insisting that that person should be in the federal courts. All right now, what has happened to the case is that he has — while — before he left to go to the bench, he argued for the government in the Moussaoui case and that case is still pending, by the way, and I can speak to that in just a moment, but his argument is, “Yes, let’s afford them the benefit of the courts, but under my rules or under D.O.J. rules.” In other words, he has argued consistently that Moussaoui, as a defendant in a Federal Court in the United States, should not have the benefit of the constitutional guarantees accorded criminal defendants, should not have the benefit of the federal rules of criminal procedure, but that the judge should craft ad hoc rules for this defendant because national security is at stake. This battle is going on even to this day, going on three years now. The attorneys are still filing briefs. The trial judge is trying to give Moussaoui some semblance of due process, but she is repeatedly being knocked down by the Fourth Circuit Court of Appeals in Richmond. So, when Chertoff says he thinks that people ought to have their day in court, enemy combatants, yeah, but let’s talk about what kind of day that would be. And what kind of court it would be, and it would be the rules according to Chertoff.

AMY GOODMAN: Elaine Cassel. We’re also joined by Doug Ireland, a long-time journalist with The Nation, The Village Voice, New York Observer, and the Paris daily Liberation. He has written a piece called “Mike Chertoff’s Dirty Little Secrets: Bush’s New Homeland Security Czar.” What are the secrets, Doug Ireland? DOUG IRELAND: Well, Amy, the real agenda of Mike Chertoff, according to sources in New Jersey who know Chertoff well, whom I spoke to yesterday, is he wants eventually to become Attorney General, and then grab a seat on the Supreme Court. That’s why he’s decided to take this job at Department of Homeland Security and give up a lifetime appointment on the federal bench. In New Jersey, people’s jaws dropped when this appointment was announced because in the garden state, they know very well that Mike Chertoff is a very political animal, and this is about as political an appointment as one could imagine. He raised a great deal of money for Bush’s 2000 campaign as Vice Chairman of the Bush Financial Committee in New Jersey.

AMY GOODMAN: Doug Ireland, we’re going to break, and when we come back, we are going to talk about New Jersey and also his involvement in Whitewater. This is Democracy Now! We’re investigating the so-called “Whitewater scandal”. Our guests are Doug Ireland and Elaine Cassel.

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AMY GOODMAN: We are continuing the discussion of Mike Chertoff, the second nominee for the Department of Homeland Security, announced yesterday by president Bush at the White House. Our guests are Elaine Cassel, a frequent contributor to the legal website, FindLaw, as well as Counterpunch.org. Doug Ireland is also with us, longtime political journalist and media critic. His piece today is called, “Mike Chertoff’s Dirty Little Secrets: Bush’s New Homeland Security Czar,” written for the LA Weekly. Doug Ireland, talking about his investment with new jersey politics.

DOUG IRELAND: Yes. One of Chertoff’s dirty little secrets, that I haven’t yet seen in any of the coverage except my piece in the LA Weekly, is Chertoff’s very close friendship with former senator Bob Torricelli. You’ll recall that Torricelli, a democrat, was chased from office and forced to resign in a corruption scandal which — in which he was accused of taking bribes from a convicted felon. At the time Chertoff was the US federal attorney in Newark, New Jersey, and it’s — his friendship with Torricelli was notorious in fact. Many of the fat cats who Chertoff raised money from for George Bush were the same fat cats that Torricelli, who had a reputation as a ferocious fund-raiser, raised money from. And when Chertoff got to the Department of Justice, as head of the Criminal Division, it’s an open secret in New Jersey that he squelched the indictment of Torricelli as a reward for Torricelli’s having repeatedly supported Bush administration legislation that the democratic party leadership opposed, including the huge tax cuts for the corporations and the rich.

AMY GOODMAN: You also talked, Doug Ireland, about Michael Chertoff’s involvement in the Federalist Society. What is that?

DOUG IRELAND: The Federalist Society is an extraordinarily influential — I would almost call it a cabal — of conservatives in the legal system. It fights for very narrow and restrictive view of the United States Constitution, and has repeatedly opposed civil rights and civil liberties extensions, and in fact has been very involved in trying to roll them back — there are any number of books about the United States Supreme Court and the almost conspiratorial role of clerks who are in the Federalist Society and pushing the justices for whom they clerked. It’s a very conservative position. One of the most notorious in that regard is the case of the first time the sodomy laws, so called outlawed sex between consenting homosexual adults, came before the court. It was a Federalist Society clerk who persuaded Justice Lewis Powell to change his position and oppose overturning the so-called sodomy laws, something Powell later wrote that he regretted. And Chertoff has been a member of the — very active member of Federalist Society for some years.