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Published: Wednesday, 1/12/2005

Bush picks judge to fill cabinet post

BY ANN McFEATTERS
BLADE WASHINGTON BUREAU CHIEF

WASHINGTON - In a surprise move, President Bush nominated Michael Chertoff, 51, a federal appeals court judge who helped set the policy to round up noncitizens in the wake of Sept. 11, 2001, and was an architect of the USA Patriot Act, to be secretary of the Department of Homeland Security.

Mr. Chertoff was Mr. Bush's second choice.

On Dec. 3, the President tapped Bernard Kerik, the former New York City police commissioner who withdrew Dec. 12 after allegations he failed to pay taxes on a nanny illegally in the country, questions about his business dealings, and acceptance of gifts.

Mr. Chertoff, whose wife and two children joined him at the White House yesterday, is on the 3rd U.S. Circuit Court of Appeals based in Philadelphia. If confirmed by the Senate, he will give up lifetime tenure.

Mr. Bush said yesterday, "When Mike is confirmed by the Senate, the Department of Homeland Security will be led by a practical organizer, a skilled manager, and a brilliant thinker."

Andrew Card, the White House chief of staff, conceded yesterday that many were surprised by the selection of Mr. Chertoff. Mr. Card said he had interviewed Mr. Chertoff at length and was "impressed" by his sense of discipline and his realization of how dramatically America changed on 9/11.

Mr. Card said Mr. Bush called Mr. Chertoff to offer him the job on Sunday while riding back to the White House in his motorcade after completing an 18-mile bicycle ride.

Mr. Chertoff first came to the attention of the public as a prosecutor of mob figures in New York under the direction of former U.S. attorney Rudy Giuliani. Later he was an investigator of racial profiling by state police in New Jersey.

He also was the chief lawyer for Republicans on the staff of the Senate committee that investigated former President Bill Clinton and then-First Lady Hillary Rodham Clinton over the failed Whitewater real estate deal. And he investigated the suicide of Vince Foster, general counsel in the Clinton White House.

Mrs. Clinton was the only senator to vote against confirming Mr. Chertoff for the federal judgeship. But her colleague, Sen. Charles Schumer (D., N.Y.), said Mr. Chertoff is an excellent choice to head Homeland Security. Although the Whitewater episode left many Democrats embittered at what they saw as a politically motivated attempt to derail the Clinton presidency, Mr. Chertoff's role in setting the policy to interview thousands of Muslims after 9/11, holding some without legal charges, will be more controversial.

The American Civil Liberties Union said it is concerned that Mr. Chertoff helped set the policy to permit the FBI to infiltrate religious and political meetings and permit the Bureau of Prisons to let agents eavesdrop on confidential attorney-client conversations. He also pushed for trying detainees held at Guantanamo by military tribunals rather than in regular courts.

The ACLU urged the Senate to question him "aggressively" about his commitment to civil liberties.

Nonetheless, Sen. Joe Lieberman (D, Conn.), who helped create the Department of Homeland Security, which merged 22 federal agencies from customs to immigration and border patrol, predicted that Mr. Chertoff would be confirmed easily because he's already won Senate confirmation three times.

Mr. Chertoff, a thin, balding man with intense dark eyes, a white goatee, and a reputation as a tough, disciplined lawyer, is a magna cum laude Harvard Law School graduate, the son of a rabbi from Elizabeth, N.J. He clerked for former Supreme Court Justice William Brennan, was briefly a partner in a Washington law firm, and was U.S. attorney for New Jersey. As assistant attorney general for the criminal division in John Ashcroft's Department of Justice from 2001 to 2003, he helped set Mr. Bush's anti-terrorism policy, arguing the government's role is to anticipate attacks and stop them.

Despite his solid background in law enforcement, he has little apparent experience in managing a large bureaucracy. Critics of the year-old Department of Homeland Security, including its former inspector general, Clark Kent Ervin, who recently lost his job when Mr. Bush did not renominate him, have complained that the department is in urgent need of a skilled manager who can force competing bureaucrats to work together. White House spokesman Scott McClellan defended Mr. Chertoff's experience, saying he oversaw "hundreds of employees" at Justice.

Mr. Chertoff has defended the Department of Justice's anti-terrorism policies and the Patriot Act as fair and balanced. Anticipating his critics, he said yesterday, "If confirmed, I pledge to devote all my energy to promoting our homeland security and, as important, to preserving our fundamental liberties."

Mr. Bush clapped him on the back and said, "Good job. Well spoken."

Contact Ann McFeatters at:

amcfeatters@nationalpress.com

or 202-662-7071.



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