Nomination Hearing For the Nomination of Michael Chertoff to be Secretary of Homeland Security
For Immediate Release Contact: Elissa Davidson
February 2, 2005 202-224-4751
Nomination Hearing For the Nomination of Michael Chertoff to be Secretary of Homeland Security
Opening Remarks of Senator Susan M. Collins
Chairman, Committee on Homeland Security and Governmental Affairs
February 2, 2005
Today, the Committee on Homeland Security and Governmental Affairs will consider the nomination of Judge Michael Chertoff to be 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 we begin, I would like to express my gratitude to the person Judge Chertoff seeks to replace. In the immediate aftermath of the attacks of September 11th, 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. 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 the head of the Justice Department's Criminal Division, and now as a federal judge. As the overwhelming vote for his confirmation two years ago demonstrated, he is well respected on both sides of the aisle. Since 9/11, Judge Chertoff has established himself as a leading expert on the legal and national security issues surrounding the war on terror.
The purpose of this hearing is, of course, to evaluate the qualifications and positions of this nominee. It is inevitable, and necessary, that we do this in the context of where the Department currently stands and where we want it to go.
To do that, I believe it is important that we also consider the context in which the Department was born. In the immediate aftermath of September 11th, 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. In those perilous, uncertain days, we also knew that we needed to take decisive action immediately. Some now question whether we tilted the balance too far toward 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 the threat that 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 made it 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 two 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 better protected, 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 program, our expert witnesses made a powerful argument that Homeland Security remains very much a work in progress.
GAO's 2005 High-Risk List released last week bolsters that assessment. Many of the difficulties GAO saw two years ago in consolidating 22 separate agencies into one new and cohesive department remain to be overcome. Now GAO also finds that information sharing -both within the Department and with other departments and other levels of government - is a weakness that 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 Department.
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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.
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?
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 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 high-tech 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.
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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 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 progra 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 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 penny-wise 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.
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.
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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.
http://hsgac.senate.gov/_files/CollinsChertoffStatement.pdf