BY REBECCA AGULE
On Monday, October 16, 2006, Secretary of Homeland Security Michael Chertoff visited the Harvard Law School as a guest speaker through the Charles Hamilton Houston Institute for Race & Justice. Professor Charles J. Ogletree, Jr., executive director of the Institute, introduced Secretary Chertoff to an Ames Courtroom full of students but notably lacking in visible security personnel.
Just before the event began, the Harvard Immigration Project circulated petitions and an open letter directed to Chertoff throughout the audience. The letter, signed by 36 Law School students, enumerated concerns regarding strategy positions put forth by the Department of Homeland Security (DHS), including border enforcement and immigration policies.
Graduating from Harvard College in 1975 and from the Law School in 1978, Chertoff initially clerked under Supreme Court Justice William Brennan, Jr., during the Burger Court. Following a turn in private practice with Latham & Watkins, Chertoff then joined the office of the U.S. Attorney as a federal prosecutor, dealing with corruption, fraud, and organized crime.
While serving on the Third Circuit Court of Appeals in Philadelphia, Chertoff received a nomination to replace Tom Ridge as the Secretary of Homeland Security and was confirmed by the Senate in 2005.
Even though FEMA and the federal response to Hurricane Katrina fall under Chertoff’s oversight, domestic topics were not broached in the body of his speech. Instead, the presentation concentrated upon the “War on Terror.” Chertoff addressed his audience as if trying a case, emphasizing the substantive over the anecdotal, presenting his position point by point. He began by arguing that his detractors do little to present viable alternatives.
Having been one of the architects of the controversial PATRIOT Act, Chertoff remarked upon the tensions surrounding methods of information collection allowed under the new law. He noted the need for tools particular to the circumstances.
“Before 9-11, the tools that existed had not been fashioned for a war on terror, but for criminal prosecution,” said Chertoff. “These tools were not well adapted to a fast moving threat.”
Chertoff highlighted barriers erected by incomplete data.
“We are never going to have perfect information,” he said. “What we do get is often fragmented and sometimes contradictory. And we don’t have the luxury of waiting till all the information is complete.”
In describing the danger of waiting until the last minute when dealing with people’s lives, Chertoff emphasized the consequences of proper timing, further admitting that the demands of his current position have made him very risk-averse.
“Because we don’t have perfect information, if we wait to the last minute, we might have actually waited until it’s too late,” he said.
“There is a tendency for critics to challenge circumstances where people are arrested because it was unclear about the arrest,” he said. “There is an expectation that the fuse of the bomb must be lit, and to take the plot down earlier than that is to give it less credibility.”
Chertoff refuted accusations that the PATRIOT Act permits inexact and sweeping information collection and detention.
“The goal is to target those who are threats and leave alone those who are not threats,” he said. “We want more precision, with fewer false positives.”
Chertoff later returned to the topic of intelligence gathering during the question and answer session, distinguishing the current government from a “Big Brother” regime, as alleged by one audience member. He touched specifically upon electronic surveillance and the monitoring of finances.
“Removing these programs would leave us with nothing to track a terrorist until an attack happens,” he said, adding that there has not been a manifestation of negative consequences
In explaining the basis for his administration’s policy decisions, Chertoff fit Al Qaeda into the established mold of a martial enemy, referring particularly to the desire to acquire territory, the presence of political aims, and the potential to inflict wide scale damage.
While the current campaign does not mirror previous world wars, Chertoff suggested a marked resemblance, calling it a “variation on a theme.”
“What differentiates wars from crime?” Chertoff continued. “How does that differ from terror? Here we are dealing with an enemy who has clearly defined political aims, who is not merely anti-social.”
“The traditional notion of winning and losing used to be defined in terms of territorial control,” he said. “Clearly [Al Qaeda’s goals are] about ideology, but it is not only about ideology.”
Chertoff placed Al Qaeda’s assaults, including the bombings of the USS Cole and U.S. embassies, as well as the September 11 attacks, on the scale of what one would expect of a state enemy, not a criminal or antisocial element.
Referring specifically to 9-11, he called that violence the “largest injury perpetrated on the US by an outside entity since the birth of the country,” he said. “If you look at scale of injury as a benchmark of war, then we are at war.”
To further outline Al Qaeda’s ambitions, the Secretary several times turned away from his own words, citing a recording attributed to Osama Bin Laden and broadcast by Aljazeera radio in April of 2006. In doing so, he further meant to distinguish Al Qaeda from Islam in general, saying that Al Qaeda had taken the ideology to justify its distinct purposes.
Chertoff quoted Bin Laden as saying, “What about the continuous cultural domination through the setting up of radio stations and TV channels along with the Voice of America, London and others to continue the cultural domination of Muslims, combat our beliefs, change our values, encourage vice and even interfere with school curricula?”
Reciting more of Bin Laden’s own words, Chertoff called such language “a characteristic statement of war.”
Throughout his speech, Chertoff continually personalized his job and portrayed it more as a mission than as employment, recalling both friends lost during the 2001 attacks on New York and Washington, and his own emotional burden.
“It’s a very sobering responsibility,” he said. “Having someone look at me and say, ‘Please don’t let this happen again.'”
“To know in your heart that you had the ability to stop it and failed to take action, that fear haunts everyone in this country who is fighting terror,” Chertoff said.
Before taking audience questions, Chertoff turned directly to the law students in attendance.
“You are entering into a very vibrant and interesting time to be a lawyer,” he said. “There are very tough decisions about what legal rules we ought to adopt and adapt.”
“The background against which these rules are being developed is a very much a background of life and death. In some way I envy you beginning your legal career in this very exciting time.”
Professor Ogletree opened the floor, questioning the conspicuous lack of reference to Iraq during Chertoff’s speech. In response, Chertoff did not delve into the justifications behind commencing that war, preferring instead to contextualize Iraq’s role in the future of security.
“The outcome of the war in Iraq will have a significant impact on our safety here at home,” he said. “Where we are now leaves a very clear imperative that we must make sure that Iraq never falls into the status of a failed state.”
One audience member asked Chertoff to compare the U.S. strategy to that of Israel, wondering what lessons might be learned or best practices adopted.
“They face a different set of threats than we do,” Chertoff answered. “The existential threat for them is very much greater than the existential threat for us. Everybody has their own circumstances. We can look at what other countries do, but we must take measures that fit into own circumstances and values.”
1L Douglas Kochelek asked Chertoff to complete his classification of Al Qaeda as a warring ent
ity, wanting to know the criteria for declaring victory.
“I don’t think there is going to be surrender on the battlefield,” Chertoff concluded. “I can’t tell you exactly when that will happen. But the fact that I cannot predict when the war is going to end doesn’t mean that it isn’t a war.”