Updated February 5, 2005













Bizarre Choice for Homeland Czar Deep in Scandal


By James P. Tucker

Controversy continues to swirl around Michael Chertoff, President George W. Bush’s pick to replace Tom Ridge as chief of the Homeland Security Department. As the Senate began considering Chertoff’s nomination on Feb. 2, news broke that Chertoff had been implicated in advising the CIA on the legality of various means of torturing detainees held in U.S. prison camps in Iraq, Afghanistan and Guantanamo Bay.


But as per its usual stand in the face of criticism, the White House officially denied that Chertoff did anything wrong or that he even had any part in issuing legal advice on torture techniques.


However, according to The New York Times, one current federal official and two former senior officials say Chertoff told the CIA that certain forms of torture were entirely permissible under the currently existing U.S. anti-torture statute.

Chertoff allegedly issued his advice in his capacity as head of the Justice Department’s criminal division following inquiries from CIA employees who wanted legal counsel as to how far they could go in physically manhandling terror suspects who were being interrogated.

Evidently the conflict in the stories between Chertoff and his accusers arises because the Justice Department does not want to be seen as having issued any standards that could be construed as unconditional approval for the use of torture.

It is alleged that Chertoff left open the possibility of other forms of mistreatment, depending on the condition of the suspect.


Chertoff told the CIA that it could use forms of mistreatment if they were in accordance with an August 2002 memorandum from Jay S. Bybee of the Office of Legal Counsel to Presidential Counsel Alberto Gonzales.

Bybee’s memo said that harsh interrogation techniques qualified as torture only if they were enough to cause organ failure or imminent death. This is the same memo that has plagued Gonzales, Bush’s pick to replace Attorney General John Ashcroft.

It has been argued that this memo set the legal justification for the CIA and the Department of Defense to use brutal, inhuman methods on terror suspects as documented in reports by the FBI, the CIA, the Defense Intelligence Agency and the Justice Department.

Legal experts say that the memo, along with Chertoff’s recommendations, violates specific international conventions and the anti-torture statute passed by Congress in 1994, Title 18, Part 1, Chapter 113(c), Sec. 2340(a) and 2340(b) which provides for 20 years in prison or even death for torture.

Chertoff has denied that he made any specific recommendations on torture to the CIA or the Pentagon.


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