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Statement of Senator Edward M. Kennedy Regarding the Nomination of Michael Chertoff to the United States Court of Appeals for the Third Circuit

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Today we vote on the nomination of Michael Chertoff to the United States Court of Appeals for the Third Circuit. Last week, I expressed my concern about Mr. Chertoff's failure to provide serious, consistent, and responsive answers to the questions asked by members of this Committee. In particular, his answers to my first set of written questions were non-responsive, evasive, and hyper-technical. They were stingy in substance, avoiding the questions that were asked, and often answering questions that were not asked.

As Mr. Chertoff is too good a lawyer not to understand what he has been asked, I assume that the White House and Justice Department advised him to avoid the questions, and not to answer them. At last week's Committee meeting, I asked my good friend, the Chairman, to hold Mr. Chertoff's nomination over for another week. The Chairman agreed, and I submitted an additional set of questions, which Mr. Chertoff answered in a substantially more direct and forthcoming manner. I also met with Mr. Chertoff yesterday afternoon, and discussed with him a number of important issues.

Having received serious answers to my serious questions - and in spite of concerns that I continue to have about Mr. Chertoff's performance as Assistant Attorney General for the Criminal Division - I have decided to support his nomination to the Third Circuit Court of Appeals. I hope, however, that the delay that occurred with this nomination sends a message to future nominees and their Justice Department and White House handlers. Members of this Committee have both the right and duty to ask questions that reflect on how nominees are doing their present jobs, before we vote on their lifetime promotions. Evasive and non-responsive answer will not do - no matter how "uncontroversial" a nomination may otherwise be. I appreciate the support of the Chairman, the Senator from Vermont, and all my colleagues in refusing to acquiesce in this kind of evasion of the Committee's inquiries.

Mr. Chertoff has a fine reputation as a prosecutor, special counsel, and defense attorney. Fellow members of the bar in New Jersey and the District of Columbia have described him as intelligent, fair-minded, and hard-working. Furthermore, in his role as the head of the Justice Department's Criminal Division, certain aspects of his performance have impressed me. For example, his testimony before our Committee in November 2001, expressing confidence in the ability of our federal courts to deal with terrorist suspects, has been important to the debate over the need for military tribunals.

However, other policies and decisions involving criminal justice matters during Mr. Chertoff's tenure as Assistant Attorney General have raised serious concerns. At his hearing, I asked Mr. Chertoff extensive questions about the Justice Department's advocacy on behalf of the Feeney Amendment to the AMBER Alert bill. This Amendment has nothing to do with protecting children, and everything to do with handcuffing judges and eliminating fairness in our federal sentencing system. Its provisions effectively strip federal judges of discretion to impose individualized sentences, and transform the longstanding sentencing guidelines system into a mandatory minimum sentencing system. As Chief Justice Rehnquist has said, they "do serious harm to the basic structure of the sentencing guideline system and . . . seriously impair the ability of courts to impose just and responsible sentences."

On April 4, 2003, the Justice Department sent a five-page letter to Senator Hatch expressing its "strong support for Congressman Feeney's amendment to the House version of S.151." This letter was sent only a few days before the House-Senate conference on the bill and was influential in persuading the conferees to accept the Feeney Amendment. At his hearing, Mr. Chertoff declined to say how involved he was in developing the Department's position on the Feeney Amendment or whether he supported it. In his subsequent answers to my written questions, Mr. Chertoff stated that he "personally had no part in drafting" the Department's April 4th letter and did not "review it before it was sent."

While I appreciate the more forthcoming nature of Mr. Chertoff's written answers, I find it remarkable that the head of the Justice Department's Criminal Division did not participate in the drafting or review of the Department's letter. The Feeney Amendment was very important legislation which substantially altered sentencing policy for the federal criminal justice system. It was vigorously opposed by the Judicial Conference of the United States, the American Bar Association, the U.S. Sentencing Commission, and many prosecutors, defense attorneys, law professors, civil rights organizations, and business groups. As a federal appellate judge, Mr. Chertoff will soon be responsible for applying its provisions. He will need to explain to his new colleagues why he did not do more at the Justice Department to stop this ill-advised legislation - or at least support Chief Justice Rehnquist's call for a "thorough and dispassionate inquiry into the consequences" of the Feeney Amendment before its enactment.

I was similarly surprised to learn, as Mr. Chertoff acknowledged in his most recent set of written answers, that neither he nor anyone else in the Criminal Division was involved in the decision to deny the Federal Bureau of Investigation the authority to investigate the recent gun purchases of suspected terrorists after September 11th. This decision was made in spite of the legal opinion issued by the Office of Legal Counsel on October 11, 2001, stating that there is "nothing in the NICS regulations that prohibits the F.B.I. from deriving additional benefits from checking audit log records." The F.B.I. had previously conducted such investigations for years.

Furthermore, the Justice Department was at the time aggressively expanding its investigative and prosecutory powers in response to the 9/11 attacks. Mr. Chertoff could have, and should have, done more to help the F.B.I. agents investigating those vicious attacks. As with the Feeney Amendment, this was an example of ideology trumping smart and effective law enforcement at the Department of Justice.

Finally, I am concerned about inconsistencies in the responses Mr. Chertoff provided with respect to the debate over the legality of the interrogation of John Walker Lindh. According to reports in Newsweek and the New Yorker, John DePue, an attorney in the Terrorism and Violent Crime Section of the Criminal Division, which Mr. Chertoff heads now and headed then, called the Professional Responsibility Advisory Office in December 2001 and requested its opinion on the propriety of having the F.B.I. interview Lindh. At his hearing, Mr. Chertoff testified, "I have to say, Senator, I think the Professional Responsibility [Advisory] Office was not asked for advice in this matter. I'm familiar with the matter. I was involved in it." In response to my first set of written questions, Mr. Chertoff stated, "[T]hose at the Department responsible for the Lindh matter before and during the time of Lindh's interrogation did not to my knowledge seek PRAO's advice." Then, in response to my second set of written questions, Mr. Chertoff acknowledged that the e-mails published in Newsweek "indicate that Mr. DePue initiated contact with PRAO about whether the FBI should question Walker Lindh and that Ms. Radack responded to that inquiry" - and that he first learned about these e-mails in early 2002. I understand that Mr. Chertoff does not believe that Mr. DePue played a major role in the Lindh investigation and prosecution, and does not understand why DePue asked PRAO for its opinion on this matter. Nevertheless, Mr. Chertoff should have fully shared his knowledge regarding this situation from the outset, rather than deny that PRAO was asked for its opinion.

According to the New Yorker article published on March 10, 2003, two weeks after the Justice Department filed charges against Lindh, Ms. Radack, a highly qualified employee who received a merit bonus the previous year, received a "blistering" performance evaluation which severely questioned her legal judgment, and she was advised to get a new job. Mr. Chertoff has told me that has no knowledge of the facts surrounding Ms. Radack's employment, performance, or departure from the Department, and I take him at his word. Nevertheless, I remain very concerned about Ms. Radack's situation. According to press reports - and the Department has never issued any statement disputing them - Ms. Radack was in effect fired for providing legal advice on a matter involving ethical duties and civil liberties that higher-level officials at the Department disagreed with. Furthermore, after Ms. Radack notified Justice Department officials that they had failed to turn over several e-mails requested by the federal court, Department officials notified the managing partners at Ms. Radack's new law firm that she was the target of a criminal investigation. I submitted questions to Attorney General Ashcroft regarding this matter in March, and I await his response.

Notwithstanding my concerns about Mr. Chertoff's performance as head of the Criminal Division, I am supporting his nomination to the Third Circuit. I am doing so based on his fine reputation as a lawyer, his achievements as a prosecutor and special counsel to the New Jersey legislature, and his assurances that as a judge he will apply the law with independence, integrity, and a commitment to due process and the core constitutional values embedded in the fabric of our democracy. My support for Mr. Chertoff's nomination today, however, should not be interpreted as an endorsement or approval for any other position.

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