New Nominee for Secretary of Homeland Security

[Airbornelawyer]

President Nominates Michael Chertoff as Secretary of Homeland Security

http://www.whitehouse.gov/news/releases/2005/01/print/20050111-2.html

[Bill Harsey]

Airborne Lawyer, Do you see any problems with confirmation?

[Roguish Lawyer]

Schumer said positive things about the nomination, so that is a good sign. Not that he and others can't change their minds, of course.

[Airbornelawyer]

He breezed through his nomination hearings for Assistant Attorney General in May 2001. Only one Senator voted against him: Hillary Rodham Clinton. Her animus is as much personal as political, based on his role in the Whitewater investigation.

By the time the President nominated him to sit on the Court of Appeals for the 3rd Circuit on March 5, 2003, the Democrats were playing judiciary politics. He didn't get a hearing until May 7, 2003, as the Democrats, especially Ted Kennedy, tried in vain to dig up dirt (same old issues: racial profiling; being insufficiently nice to terrorist suspects; the whole Patriot Act game). They failed to tar him, and he was confirmed 13-0 on May 22, 2003 (six senators voted "present").

The full Senate voted on June 9, 2003, confirming Chertoff by a vote of 88 to 1. The one vote against? Senator Hillary Rodham Clinton. Eleven senators did not vote. For some, it might have been politics (Edwards and Kerry, for example), but for most it was likely because they weren't in town or didn't bother to vote. Ted Kennedy, by the way, was one of the "yea" votes, so whatever concerns he might have had were addressed.

Looking forward, though, I don't know what lessons may be drawn. The Democrats are looking for a way to tarnish the Administration so as to weaken any claim to a mandate after the November elections. They've been slinging mud pretty much constantly - notably at Rumsfeld and Al Gonzales - but haven't had much success (Kerik's withdrawal was as much a surprise to Democrats as Republicans).

[Airbornelawyer]

Schumer said positive things about the nomination, so that is a good sign. Not that he and others can't change their minds, of course.Schumer also voted for him in 2003. Not that he can't change his mind.

Chertoff raised HRC's hackles because of his Whitewater role, but he clerked for Justice Brennan. He is not easily portrayed as a foaming-at-the-mouth right-wing troglodyte.

[NousDefionsDoc]

I don't like it. A judge? No way. He's going to be all concerned about civil rights and procedure and what not.

Plus he can't shave for his appointment annopuncement? He's either unprofessional or a hippy. We're right back to this "Terrorism as a legal issue" thing. I think the leadership is starting to relax on the homefront again. Wait until after the elections in Iraq and watch them. If it goes relatively without incident - they will put their heads down on their collective desks and take a nap.

They are screwing this DHS thing up big time. First they nominate Kerik without doing their homework and now a judge. Of course the whole DHS was unnecessary and white paint over a red wall in the first place as far as I'm concerned.

[Roguish Lawyer]

I don't like it. A judge? No way.

Remind me, what line of work was Bill Donovan in? :munchin

[Airbornelawyer]

I don't like it. A judge? No way. He's going to be all concerned about civil rights and procedure and what not.

Plus he can't shave for his appointment annopuncement? He's either unprofessional or a hippy. We're right back to this "Terrorism as a legal issue" thing. I think the leadership is starting to relax on the homefront again. Wait until after the elections in Iraq and watch them. If it goes relatively without incident - they will put their heads down on their collective desks and take a nap.

They are screwing this DHS thing up big time. First they nominate Kerik without doing their homework and now a judge. Of course the whole DHS was unnecessary and white paint over a red wall in the first place as far as I'm concerned.He's only been a judge for a year and a half. Most of his experience is as a criminal prosecutor. He was an AUSA from 1983 to 1987, a 1st AUSA from 1987 to 1990 and a US Attorney from 1990 to 1994. He was then a Whitewater special counsel (1994-96). From 2001 to 2003, he was Assistant Attorney General and head of the Criminal Division.

Regarding "We're right back to this 'Terrorism as a legal issue' thing.": how is this affected by this nomination? DHS is one component of the antiterrorism and counterterrorism strategy of the US, and it appears that law enforcement is its primary role in that straegy. Intelligence and warfighting are the resposibilities of other agencies and the DOD. The agencies DHS controls are primarily law enforcement ones, including Transportation and Security Administration, Customs and Border Protection, Citizenship and Immigration Services, the Coast Guard and the Secret Service. Kerik, of course, also had a law enforcement background. Tom Ridge is a politician - his experience was 6 terms in Congress and two terms as Governor of Pennsylvania.

Someone does agree that judges aren't the right ones to be deciding policy in the War on Terror: "While courts set forth constitutional ground rules, however, we judges cannot and should not be expected to construct a new legal architecture for the war on terror. This involves weighty policy, and that is the domain of Congress and the executive branch." That was Judge Chertoff in The Wall Street Journal last summer.

BTW, the "he's either unprofessional or a hippy" seems like an unusual remark from a Special Forces soldier. He is an experienced, hard-nosed prosecutor - a QP in his field - and his beard hardly strikes me as "unprofessional" or hippy-esque.

[NousDefionsDoc]

Remind me, what line of work was Bill Donovan in? :munchin


Well, when this guy gets the MOH, then we'll compare. Are you sharp-shootin' me counselor? Did you not see I now have XP? :lifter

[NousDefionsDoc]

!. That is not a beard and he is not in Afghanistan. He will be expected to lead and give orders to FBI, SS, etc. agents - ever see how they look? There is a reason Dick Marcinko was not the commander of the Old Guard (besides the fact he was Navy). Those very same agents that implement the strategy you speak of.

2. He may have only been a judge a short while, but I will bet he spent most of his life preparing for it - so he has been thinking like a judge for a while. Do you think he would have given the same opinion you cite with another 3 years on the bench?

3. If Whitewater is any indication of his abilities or his hard-nose, Usama has about as much to worry about as Shrillary. How many people went to jail in that deal?

If he's so great, how come he wasn't choice #1?

[Roguish Lawyer]

his beard hardly strikes me as "unprofessional" or hippy-esque.

Yeah, for a lawyer, that is a bad-ass beard and haircut. LOL

[Roguish Lawyer]

Did you not see I now have XP? :lifter

:eek:

LOL -- I do not like XP. Maybe that's because I don't understand it, though.

Who would you appoint were you the President, NDD? :munchin

[NousDefionsDoc]

To be honest, I don't really know. He would probably be an unknown, a Cinderella story, came out of no where...LOL

Since I haven't lived up there for some time, I don't know a lot of the players. And I don't have the resources the WH does.

I like the way LTC (R) Bill Cowan talks. This judge may end up being all right..Cofer Black, but he's probably worn out. Maybe Danny Coulson - but I really don't like the FBI. Notice how they are focusing on NY? Wonder why that is? :eek: It's a big country with a lot of people that don't live in NY.

Part of the problem is the whole system. The primary concern is "Can we get him confirmed?" instead of "Who's the best guy for the job?"

The whores in DC still have no problem playing politics with the lives of the citizens.

[Roguish Lawyer]

Part of the problem is the whole system. The primary concern is "Can we get him confirmed?" instead of "Who's the best guy for the job?"

The whores in DC still have no problem playing politics with the lives of the citizens.

Agreed. Of course, this results from the fact that people disagree about who is best for the job. Your primary concern is stopping terrorists, but many in the Congressional minority are more afraid of LEOs. :rolleyes:

[CPTAUSRET]

WAD!!!

[NousDefionsDoc]

Agreed. Of course, this results from the fact that people disagree about who is best for the job. Your primary concern is stopping terrorists, but many in the Congressional minority are more afraid of LEOs. :rolleyes:

You really think they have deep differences over who is best for the job? I think in most cases it is more about being against the nominator rather than the nominee. For example - the Shrillary thing in this case - she will likely object because of Whitewater - I don't think what's best for the citizens of the State of NY will ever enter into her mind. If she doesn't object, it will be for political reasons, not because she got past her personal animosity and did what she thought was right for her constituents.

[NousDefionsDoc]

WAD!!!


You ok Cap? LOL

[Roguish Lawyer]

You really think they have deep differences over who is best for the job? I think in most cases it is more about being against the nominator rather than the nominee. For example - the Shrillary thing in this case - she will likely object because of Whitewater - I don't think what's best for the citizens of the State of NY will ever enter into her mind. If she doesn't object, it will be for political reasons, not because she got past her personal animosity and did what she thought was right for her constituents.

I agree about the politics and the personal animosity, but yes, I think they would appoint someone else. Someone who would be a lot more concerned about civil rights and a lot less aggressive in trying to protect the homeland.

[CPTAUSRET]

You ok Cap? LOL

Yeah, but I like Wayne...Figured I would get a reaction.

Terry

[Airbornelawyer]

!. That is not a beard and he is not in Afghanistan. He will be expected to lead and give orders to FBI, SS, etc. agents - ever see how they look? There is a reason Dick Marcinko was not the commander of the Old Guard (besides the fact he was Navy). Those very same agents that implement the strategy you speak of.It is a short boxed beard. If he were in Afghanistan, I suspect he would let it grow out more. Hamid Karzai, who had about the same length while in Europe, did when he returned to Afghanistan.

Also, the FBI is not under DHS and in any event, operated effectively for him when he headed the DOJ Criminal Division. As for the USSS, USCG, etc., I know you are not implying that (a) they are little more than ceremonial and (b) they would be so unprofessional as to let someone's facial hair impair their ability to do their job. This really strikes me as an utterly irrelevant issue.2. He may have only been a judge a short while, but I will bet he spent most of his life preparing for it - so he has been thinking like a judge for a while. Do you think he would have given the same opinion you cite with another 3 years on the bench?Before questioning his integrity by implying he would be seduced by some judicial dark side, do you have some reason to believe he would not have given the same opinion in 3 years' time? And if he had indeed spent his whole life preparing for a judgeship, why give it up? Federal judges have life tenure. Absent impeachment, they cannot be removed. They either retire or die.3. If Whitewater is any indication of his abilities or his hard-nose, Usama has about as much to worry about as Shrillary. How many people went to jail in that deal?Fifteen or sixteen. During the period Chertoff was involved in Whitewater: Webster L. Hubbell, Associate Attorney General of the United States
Bill McCuen, former Secretary of State of Arkansas
James McDougal, Whitewater Development Corp., Madison Bank & Trust and Madison Guaranty Savings & Loan Association
Susan McDougal, Whitewater Development Corp., Madison Bank & Trust and Madison Guaranty Savings & Loan Association
David Hale, Judge, Municipal Court of Little Rock
Christopher Wade, Whitewater real estate broker
Stephen Smith, former aide to Gov. Clinton
Neal Ainley, President, Perry County Bank
Larry Kuca, Madison real estate agent
Robert Palmer, Madison appraiser
John Latham, CEO, Madison Bank & Trust Subsequently, five more convictions were handed down for Gov. Jim Guy Tucker, William J. Marks Sr., John Haley, Eugene Fitzhugh and Charles Matthews. Two Arkansas bankers, Robert Hill and Herbert Branscum, escaped conviction due to a mistrial after a jury deadlock. Of course, this is all irrelevant, as Chertoff was special counsel to the Senate Whitewater Committee, not in the Independent Counsel's Office. The committee's role was an investigation, not a prosecution.

As a general matter, though, by your logic Rommel was a terrible general because the Germans lost WW2. And do you judge Col. Simons' abilities based on the failure of Son Tay to rescue any POWs?

As for what is an indication of Chertoff's abilities, he is a highly regarded prosecutor. In 1986, Chertoff won a series of convictions of members of the Commission "La Cosa Nostra," including Anthony "Fat Tony" Salerno (capo of the Genovese family), Anthony "Tony Ducks" Corallo (capo of the Luccese family) and Carmine "Junior" Persico (capo of the Colombo family). He won convictions of Jersey City Mayor Gerald McCann (bank fraud, tax evasion), "Crazy Eddie" Antar (racketering, securities fraud; apparently his prices were so low because he was a crook), Arthur and Irene Seale (kidnapping and murder of an Exxon executive) and former New York State Chief Judge Sol Wachtler (sending interstate kidnapping threats). These are just a few high-profile cases.
If he's so great, how come he wasn't choice #1?A. How do you know that he wasn't, but turned it down, only to have the President come back and ask again after the Kerik fiasco?

B. Even if not, is there some iron-clad rule that there is only one qualified pick for each job?

C. Who says "he's so great"? Maybe he's great, maybe he's just really good, maybe he's merely qualified. But without knowing much about him, you pronounced him a bad choice because he is a judge and has a short beard. I noted a certain illogic to those conclusions and provided some supplemental information. I don't personally know whether he's a great choice, but a number of people whose opinions I respect and who know him have praised his nomination. These include people like former prosecutor Andy McCarthy, who led the team against Sheikh Omar Abdurrahman and who was a longtime critic of the Clinton Justice Department's "law enforcement" attitude toward terrorism. McCarthy described Chertoff's nomination thusly:Mike Chertoff ... is an absolutely superb choice for this post. He is smart, he has a creative linear mind, and he is up to the management challenge -- which is the biggest challenge facing this sprawling agency. Best of all, in contrast to former NYC police commissioner Bernie Kerik and some of the other state law enforcement people whose names have been floated, he knows the federal system inside and out -- including the sharp elbows of its competing agencies. Once he takes the reins, you are never again like to read another story about how other agencies like the FBI are running bureaucratic rings around, and seizing turf from, DHS.

[Roguish Lawyer]

As for what is an indication of Chertoff's abilities, he is a highly regarded prosecutor. In 1986, Chertoff won a series of convictions of members of the Commission "La Cosa Nostra," including Anthony "Fat Tony" Salerno (capo of the Genovese family), Anthony "Tony Ducks" Corallo (capo of the Luccese family) and Carmine "Junior" Persico (capo of the Colombo family). He won convictions of Jersey City Mayor Gerald McCann (bank fraud, tax evasion), "Crazy Eddie" Antar (racketering, securities fraud; apparently his prices were so low because he was a crook), Arthur and Irene Seale (kidnapping and murder of an Exxon executive) and former New York State Chief Judge Sol Wachtler (sending interstate kidnapping threats). These are just a few high-profile cases.

Did he try these cases himself or was he in a supervisory role? Just curious, as I don't know much about him.

[Roguish Lawyer]

AL, you are in top form today.

[NousDefionsDoc]

1. It is scraggly wino hair on a grill. Calling it a box doesn't change that.

2. Indeed, why give it up? Whether he prepared for it his whole life or not?

3. Fifteen or sixteen who? Whitewater was about Shrillary Clinton. Everbody on that list except one is a local something. Are you trying to tell me the federal government spent millions of dollars to investigate a local Arkansas law issue and not Shrillary? If I catch 1,000 guppies, do I get to call myself Ahab's Avenger?

4. Rommel lost. 'Nuff said. Don't be talking bad about The Bull. The mission was to take the camp and free what hostages there were. They did that. There just weren't any.

5. UBL ain't Tony Soprano.

6. If he was first choice and changed his mind, why? Is he indecisive? What did they do to sweeten the deal?

7. You are making a bigger deal out of the scraggly box than I did - why? Are you trying to grow one? :D A former singing the praises of a former prosecutor? Outrageous! What did McCarthy say about Kerik?

[Roguish Lawyer]

If he's so great, how come he wasn't choice #1?

Pete Carroll was USC's third choice. :munchin

[Airbornelawyer]

2. Indeed, why give it up? Whether he prepared for it his whole life or not?Patriotism? Desire for a challenge? Loyalty to the President? Didn't want to live in New Jersey anymore? I don't know. But I have no reason to impute or imply anything negative (except the living in Jersey bit).3. Fifteen or sixteen who? Whitewater was about Shrillary Clinton. Everbody on that list except one is a local something. Are you trying to tell me the federal government spent millions of dollars to investigate a local Arkansas law issue and not Shrillary? If I catch 1,000 guppies, do I get to call myself Ahab's Avenger?The Whitewater prosecutions are not relevant to Chertoff, since as noted he was on the investigatory, not the prosectory side. But as an aside, the Whitewater prosecutors convicted every principal they indicted, including a governor and a senior Justice Department official. The two major conspirators they failed to indict - WJC and HRC - were not exactly without the resources to thwart a criminal investigation. 4. Rommel lost. 'Nuff said. Don't be talking bad about The Bull. The mission was to take the camp and free what hostages there were. They did that. There just weren't any.Montgomery won. Yet I wouldn't have placed him in command of a chow run.5. UBL ain't Tony Soprano.Well, no one has caught Bin Laden, so I suppose no one is qualified.
6. If he was first choice and changed his mind, why? Is he indecisive? What did they do to sweeten the deal?See #2 for various factors. Again, do you have some basis for impugning his integrity, or are you just coming up with reasons to attack someone you don't know? But if you are searching for a grand conspiracy theory, try this: Gonzo was nominated for AG as first step to the Supreme Court. Chertoff was nominated for DHS as first step to the Supreme Court.

This has already been floated elsewhere today, though of course it makes little sense since justices are far more likely to come out of the appellate bench than the cabinet (Rehnquist and O’Connor are the only justices on the current Court who were not previously on an US Court of Appeals).7. You are making a bigger deal out of the scraggly box than I did - why? Are you trying to grow one? :D A former singing the praises of a former prosecutor? Outrageous! What did McCarthy say about Kerik?I had to grow a beard in Afghanistan. I hated them.

I have no idea what McCarthy thought of Kerik when he first was nominated. I suspect his criticism of Kerik now is somewhat misplaced. While Kerik might have been inexperienced in federal bureaucratic politics, anyone in New York law enforcement knows that inside and out. Prior to 9-11, the NYPD/PAPD/FDNY turf fights were legendary, as were the squabbles between the NYPD and the FBI. I've seen this firsthand myself, when the NYARNG didn't want any of us not in the Guard wearing uniforms while working at Ground Zero. They wanted their Guard people to be the only "official" soldiers there. We had a USAR civil affairs colonel and a SOCSOUTH IMA lieutenant colonel, though, who cut through the BS rather quickly (another SOF vs conventional armed forces lesson there too - we had an active duty Marine major who did nothing while the rest of us by hook or crook got to where we could help).

[NousDefionsDoc]

The Whitewater prosecutions are not relevant to Chertoff, since as noted he was on the investigatory, not the prosectory side.

I must have misunderstood the system. I was under the impression that the prosecutors can only prosecute according to the results of the investigator's ability to make the case prosecutable. Sorry.



But as an aside, the Whitewater prosecutors convicted every principal they indicted
Except the principle focus of the entire circus.

You win.

[Bill Harsey]

Remind me, what line of work was Bill Donovan in? :munchin

killing bad guys.

[Airbornelawyer]

I must have misunderstood the system. I was under the impression that the prosecutors can only prosecute according to the results of the investigator's ability to make the case prosecutable. Sorry.Parallel investigations - one criminal, one "political" (for wont of a better word). Like Iran/Contra, where you had a Senate select committee and an independent counsel at the same time (and occasionally at cross-purposes).

[Roguish Lawyer]

Parallel investigations - one criminal, one "political" (for wont of a better word). Like Iran/Contra, where you had a Senate select committee and an independent counsel at the same time (and occasionally at cross-purposes).

Hey, he said you won. Quit running up the score! LOL

[NousDefionsDoc]

I don't care about the DHS or the TSA. it's not like they're actually ever going to achieve anything anyway. I don't know why I even posted, other than to give AL a little exercise.

As for Whitewater - FREE MARTHA NOW!

Amigitos AL? :o

[Airbornelawyer]

As for what is an indication of Chertoff's abilities, he is a highly regarded prosecutor. In 1986, Chertoff won a series of convictions of members of the Commission "La Cosa Nostra," including Anthony "Fat Tony" Salerno (capo of the Genovese family), Anthony "Tony Ducks" Corallo (capo of the Luccese family) and Carmine "Junior" Persico (capo of the Colombo family). He won convictions of Jersey City Mayor Gerald McCann (bank fraud, tax evasion), "Crazy Eddie" Antar (racketering, securities fraud; apparently his prices were so low because he was a crook), Arthur and Irene Seale (kidnapping and murder of an Exxon executive) and former New York State Chief Judge Sol Wachtler (sending interstate kidnapping threats). These are just a few high-profile cases.Did he try these cases himself or was he in a supervisory role? Just curious, as I don't know much about him.These were cases where he led the prosecution.

In the "Crazy Eddie" trial, the defense team called Chertoff "The Wraith" and "Count Chertoff," due to his long arms and hollow cheeks (maybe that's why he has the mini-beard).

In the mafia trials, Rudy Guiliani was the supervisory US Attorney.

Anthony "Fat Tony" Salerno, Carmine "Junior" Persico (AKA Carmine "The Snake"), Gennaro "Gerry Lang" Langella, Anthony "Tony Ducks" Corallo, Salvatore "Tom Mix" Santoro, Ralph Scopo, Christopher "Christie Tick" Furnari and Anthony "Bruno" Indelicato were convicted of RICO conspiracy, 18 U.S.C. § 1962(d) and substantive RICO, 18 U.S.C. § 1962(c) violations. All but Indelicato were convicted of conspiracy to commit extortion and 12 counts of extortion or attempted extortion (18 U.S.C. § 1951(a)). Scopo was convicted as a principal, while Salerno, Persico, Langella, Corallo, Santoro and Furnari were convicted as aiders and abettors, of six labor bribery violations (29 U.S.C. § 186(b)(1)). Corallo and Santoro were convicted of conspiracy to make extortionate extensions of credit in violation of 18 U.S.C. § 892. Indelicato was charged with three RICO predicate acts of murder. Indelicato's conviction on the substantive RICO count was later overturned, but all others held up on appeal.

The Commission "La Cosa Nostra" was the controlling body for the Five Families (Genovese, Gambino, Colombo, Lucchese and Bonanno) *. Salerno was boss of the Genovese family. Corallo was boss of the Lucchese family, where Santoro was the underboss and Furnari a consigliere. Persico was boss of the Colombo family, where Langella was the underboss. Scopo was a member of the Colombo family and a union boss. Indelicato was a member of the Bonanno family. He was approved by the Commission for promotion to boss of a Bonanno subfamily after he killed Carmine "The Cigar" Galante, boss of the Bonanno family, and two associates. Paul "Big Pauly" Castellano, boss of the Gambino family, was also named a defendant, but was murdered prior to trial. Gambino underboss Aniello "Mr. Neil" Dellacroce and Bonanno family consigliere Stefano Canone were also named as defendants, but died of natural causes before trial.

__________
* Charles "Charlie Lucky" Luciano, the first Don of the Genovese family, founded the Commission in 1931. He had siezed control of the Mafia in the wake of the Castellamarese War, but eschewed the title capo di tutti capa ("boss of bosses") and instead created the Commission as an organized crime cartel. It brought together the disparate Mafia families in the US, which changed over time, and sought to prevent another internal war like the Castellamarese War. It was mostly successful - a war almost broke out in the 1950s - until the Gotti era and a generation of mafiosi who didn't play by the old rules made it easier to find rats and turncoats.

[Airbornelawyer]

As for Whitewater - FREE MARTHA NOW!

Amigitos AL? :oI thought about mentioning that the same US Attorney's Office for the Southern District of New York that went after the mafia and the 1993 WTC bombers was the office that went after Martha, but they were different people and different divisions in each case.

As for Martha, as of January 11, 54 and a wakeup.

http://freemartha.org/index.php

[Airbornelawyer]

Justice Denied
From the April 12 / April 19, 2004 issue: The International Criminal Court is even worse than its critics have said.
by Michael Chertoff
04/12/2004, Volume 009, Issue 30


IN THE LITANY OF CRITICISM of American foreign policy, one refrain is constant. Americans are accused of showing contempt for international law and the international community by challenging the newly ratified International Criminal Court. Nongovernmental organizations in particular have accused the United States of placing itself above the law by refusing to submit to, and actively campaigning against, ICC jurisdiction. In response, U.S. policymakers have argued that the ICC is a permanent, unaccountable, supranational legal establishment that could put American officials and military personnel at risk of a politicized prosecution for vaguely defined international crimes. Under any view, the ICC is a novelty that challenges our conventional notions of the direct coercive power of international legal institutions.

Much of the debate turns on the scope of the infant ICC's powers. ICC proponents portray the court as a vehicle limited to prosecuting those who have committed horrific atrocities, similar to those now being tried in ad hoc international tribunals in the former Yugoslavia and Rwanda. Who can quarrel with the rightness of bringing torturers and murderers of thousands to justice? At the same time, ICC advocates have tried to soothe fears by pointing to the definition of war crimes and crimes against humanity, which seems to require large scale, systematic violation of basic international norms. These supporters contend that there is no foundation for Defense Department fears that U.S. soldiers might be hailed into court on politicized charges. Implicit--or explicit--is the suggestion that U.S. resistance to the ICC is based on unreasoning American arrogance or, worse, on the self-serving concerns of high-level government actors.

In fact, ICC partisans have dramatically understated the potential power and reach of this new court. More remarkably, American critics may have understated the risks posed by this new permanent tribunal. Because now we have it on very good authority that the ICC need not be--and is not--confined to investigating and punishing the Pol Pots and Idi Amins and other major war criminals of the modern world. Rather, the ICC's own prosecuting authority has expressed a vision of its mission that would target even ordinary private American citizens, such as businessmen and bankers.

Last June, a distinguished Argentine human rights attorney, Luis Moreno-Ocampo, took office as chief prosecutor of the new ICC. Earlier this year, with the ink barely dry on his appointment papers, Moreno-Ocampo unveiled his jurisdictional views in a startling, but not widely reported, address to attorneys attending a conference in San Francisco. According to a report in the American Bar Association Journal and other media sources, Moreno-Ocampo told the audience that officials of multinational corporations could be held accountable before the ICC for directly or indirectly facilitating conduct that leads to violations of international law. So, the ABA journal relates, if companies engaged in trading natural resources pay money to a government that uses it to fund soldiers who commit war crimes, those companies have arguably facilitated war crimes, and their officials could be prosecuted. Against the backdrop of this disturbing specter, Moreno-Ocampo "encouraged" these corporations to cooperate in the effort to eliminate conditions that can lead to atrocities and similar violations.

The implications of this view--emphatically not the prediction of an overwrought critic, but evidently the policy statement of the chief prosecutor--are troubling. First, Moreno-Ocampo's speech confirms that many of the jurisdictional safeguards brandished to rebut criticism of the ICC are illusory. Second, this policy statement suggests that the ICC may be even more of a danger to American businesspeople than it is to American soldiers; and this is a danger that cannot be avoided by simply keeping U.S. troops out of peacekeeping missions in countries that have accepted ICC jurisdiction. Finally, Moreno-Ocampo's remarks imply that the ICC may be willing to use the threat of prosecution as a goad to cooperation from multinational corporations. That strategy would transform the ICC from adjudicator of past crimes to active multinational policymaker--and a policymaker not accountable to the U.N. Security Council or its member states.

...

[Airbornelawyer]

MORENO-OCAMPO IS, unfortunately, correct about the scope of his power. The law governing the ICC is set forth in the Rome Statute enacted by the signing nations, and is interpreted in the "Elements of Crimes" rules written by the ICC Preparatory Commission. The principal crimes set forth in the Statute and the Elements are genocide, crimes against humanity (which must be part of a "widespread or systematic attack against any civilian population"), and war crimes (which, again, must be part of a policy or "a large-scale commission of such crimes"). Superficially, this has little to do with ordinary U.S. businessmen and bankers. But the Statute and Elements also specify that criminal responsibility falls on anyone who facilitates one of these crimes or "in any other way contributes to the commission or attempted commission of such a crime. . . [with] knowledge of the intention of the group to commit the crime." (Art. 25)(3)(d). This could easily encompass those who are aware that a government is committing war crimes, but nevertheless engage in banking or other business relationships with that government.

How does this square with the jurisdictional safeguards that ICC advocates often emphasize in dismissing criticism from U.S. officials? ICC supporters generally make several arguments:

* First, the ICC's jurisdiction is limited to very serious crimes, such as murder and torture directed on a large scale against civilian populations. For an American to fall within this jurisdiction would require large-scale atrocities. As one Canadian government minister recently declared: "This is not some kind of rogue institution that will target some American GI. Americans have nothing to fear. It's only the likes of [accused Serb war criminal] Radovan Karadic who need worry."

* Second, the prosecutor is overseen by a panel of judges, and all are highly credentialed. They will not become tools of a political agenda.

* Third, before charges are filed in the ICC, the home country of the accused will be afforded the opportunity to investigate and prosecute. The ICC can seize jurisdiction only if the home state "is unwilling or unable genuinely to carry out the investigation or prosecution. . . ." This finding of unwillingness would be made by judges of the ICC based on a finding of lack of intent to bring the accused to justice.

* Finally, some ICC supporters quietly make the practical point that American troops are unlikely to be seized from military installations abroad, and that they will not be surrendered from the United States.

Under the broad view of facilitation and criminal complicity taken by prosecutor Moreno-Ocampo, these limitations fairly wilt away. To be sure, the ICC is aimed at adjudicating war crimes and crimes against humanity that are by definition very serious. But the act of complicity dramatically expands the scope of prosecution under these offenses. As described by the ICC statute, a complicit act may be one that on its face seems quite removed from the violence. So, where a regime is widely reported to be engaged in crimes against humanity, trading with government-owned entities might trigger liability if those entities in turn fund the overall government war effort. As a moral matter, it may be a very good thing to stop that sort of trade. It may well be that such trade should be forbidden as a matter of domestic law, or by the U.N. Security Council laying down an embargo. But in the absence of such definitive action by a sovereign state or the Security Council, the ICC prosecutor evidently believes he can still move to punish the trading party.

Americans (and others) should draw even less comfort from the well-credentialed background and high-mindedness of the ICC officials. One need not assume overt political agendas or anti-American sentiment (and I do not) to see the danger in unelected, unrepresentative officials motivated to do justice in a world in which domestic law or the U.N. apparatus itself is often silent. Our own experiences with domestic prosecutors demonstrates how easy it is for prosecutors to creatively shape and extend the law so as to charge and try people whom the prosecutor targets as bad. Our courts occasionally strike down such exercises in prosecutorial creativity as unauthorized extensions of the criminal law. Prosecutor Moreno-Ocampo's speech demonstrates that he also can see the potential to extend the law to punish what he (and like-minded associates) see as bad conduct. That is not necessarily a soothing thought.

Then there is the right which the United States would have under the Rome Statute to preempt the ICC by conducting its own investigation of the alleged crime. Even if our hypothetical trading businessman or banker were more comfortable with the prospect of American prosecutors and courts investigating and applying the law of international criminal complicity as enunciated by the ICC, that would still be a terrible ordeal. Nor is it clear how realistic it is to expect that the United States could satisfy the ICC of its "willingness" to investigate this crime. Do we have properly worded statutes? If not, we must pass them. Did we exercise discretion properly? If not, the ICC will take back jurisdiction.

Finally, Moreno-Ocampo's theory of complicity must send a special shudder down the spine of the international banker or executive. We may feel satisfied that as a practical matter American troops are unlikely to be snatched from their bases or extradited from the United States to an ICC tribunal. Indeed, the United States can condition military cooperation with a host country on adequate guarantees that it will not transfer U.S. military personnel to the ICC. But what of the Paris-based American banker who is accused? The practical assurance that American troops are unlikely to be brought before a court in the Hague is absent when one envisions the solitary American executive who would be liable to arrest on an ICC charge in any of the 90-plus countries that have ratified the ICC treaty.

[Airbornelawyer]

THE UNITED STATES has withdrawn its signature from the ICC, and is trying to enter into a series of bilateral agreements that would prevent ICC signatories from surrendering U.S. personnel to the ICC. To the extent that the United States cannot obtain these bilateral ICC exemptions, the government has the option to protect our service personnel by declining to send them into any country which has not forsworn turning them over to the ICC. Indeed, the American Service-Members' Protection Act of 2002 forbids the assignment of servicemen and women to peacekeeping operations where the United States is not assured that they will be outside the reach of the ICC. Thus, the military can remain free of the jurisdiction of the ICC, if necessary, by staying out of operations that might fall within the international court's authority.

Private citizens have a more difficult time. If a multinational corporation is deemed complicit in a war crime, then its senior officials anywhere in the world might be held liable. That means bankers in Brussels or executives in Ecuador could in some circumstances be extradited to the ICC. For these citizens to be sure that doesn't happen, they would have to withdraw from their foreign postings and return to the United States. That is, at the very least, an unhappy prospect for the commercial and trade interests of the United States.

As the ICC prosecutor's speech makes clear, this is no idle worry. Before the assembled lawyers in San Francisco, Moreno-Ocampo cited the specific example of atrocities in the Congo as an area of ICC interest. According to the ABA journal, he observed that companies based in over two dozen countries have some connection with illegal exports of natural resources from the Congo, and may therefore have indirectly funded those suspected of international crimes. This suggests that the international prosecutors may already have the concept of business liability on their agenda.

How far will the threat of this liability sweep? The Rome Statute takes a broader definition of accomplice liability than was the case under more traditional international legal principles, such as those employed when the U.N. International Law Commission draft Code of Crimes was promulgated in 1996. The 1996 Code specified that complicity must be "direct and substantial." The Rome Statute eliminates that requirement. To use the language of Article 25 of the Statute, one can all too easily envision a banker or stockbroker whose company handles foreign government funds being charged as one who in "any other way contributes to the commission [of a crime against humanity]" because public reporting indicates that the particular foreign government is financially supporting military activities that result in atrocities.

So what is the businessman to do? What is his obligation under the ICC to "know his customer" and to know the uses to which his overseas government customer is going to put the businessman's money--whether that be payment for natural resources or interest on bank deposits? Of course international bankers and brokers customarily operate within the terms of "know your customer" requirements because of various domestic laws against money laundering. These laws often have significant commercial and economic effects, and can carry criminal liability or regulatory sanction. But the key is that they are enacted by domestic governments (often as a consequence of international treaties), are prosecuted under domestic legal systems, and are subject to repeal by domestic legislatures. If such rules come to be laid down de facto by a pattern of pronouncements or prosecutions at the ICC, there will be significant effects on the world economic system, and they will be the product of nothing more accountable than the intentions of supranational prosecutors and judges.


THIS, OF COURSE, is the most important ramification of the broad vision articulated by the ICC chief prosecutor. At the end of the day, the power to prosecute is the power not only to punish past conduct, but also to shape future behavior. The criminal process is the bluntest and most coercive instrument which a sovereign authority can wield to shape the activities of private actors. Most people steer well clear of the criminal line in carrying out their daily business. Therefore, legislatures must calibrate criminal sanctions so as to deter undesirable conduct without chilling legitimate productive behavior.

For that very reason, our own fundamental principles of due process emphasize how cautiously the criminal sanction should be invoked. We do not have common-law or judge-made crimes; we insist that democratically elected legislators enact criminal laws. We construe such laws strictly, resolving ambiguities in favor of the defendant. Our prosecutors are held accountable, either because they are directly elected or because they are appointed by an elected official. In all these ways, we try to hedge the coercive strength of the criminal law so that it does not over-deter or "chill" freedom.

But these limits are absent at the ICC. The scope of the crimes covered by the ICC is fairly elastic; certainly the concept of complicity is. And prosecutor Moreno-Ocampo has demonstrated that he is keenly aware that the threat of prosecution can be used to prod affirmative behavior. It is probably not a coincidence that, in his San Francisco speech, he paired suggestions that he might prosecute corporations with pleas for multinational businesses to assist in financing peace and rehabilitation efforts. Will multinational businesses now feel a new "incentive" to fund good causes and embargo bad governments? Worthy ideals, to be sure. But should such policies be driven simply by the directives or hints of an unfettered ICC prosecutor?

Other than military force, the authority to arrest and prosecute is the most coercive power available to government. The U.N. still reserves the deployment of ultimate force--armed force--to the collective member states acting through the Security Council. Until the ICC, the U.N. reserved deployment of law enforcement power to itself as well, authorizing war crimes tribunals on a case-specific basis. This approach carefully cabins the use of this power, and assures accountability to the U.N.'s constituent states. Now, however, the ICC establishes a free-standing, self-perpetuating organ of coercive sanctions without that accountability. Serious questions would arise even if the ICC self-consciously limited its mandate to those who directly commit atrocities and horrific violence. But prosecutor Moreno-Ocampo's remarks do not bode well for the exercise of such self-discipline. Although still brand new, the ICC prosecutorial arm is already flexing untried muscles in an effort to stretch its mandate to the limit of the law. If the world community--including those countries that applaud the ICC--does not check this impulse, the result will be a radical shift of authority away from the carefully structured balance of power at the U.N. toward a new species of international player responsible only to its own ideals.

We may not be worried enough about the ICC.
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http://weeklystandard.com/Utilities/printer_preview.asp?idArticle=3956&R=C3BF33FA9

[Airbornelawyer]

Law, Loyalty, and Terror
From the December 1, 2003 issue: Our legal response to the post-9/11 world.
by Michael Chertoff
12/01/2003, Volume 009, Issue 12



ON SEPTEMBER 11, 2001, acts of war were unleashed on the United States by a stateless international enemy which we know as al Qaeda. Actually, al Qaeda formally declared war against the United States during the late 1990s, but most of the American public did not pay much attention. That changed, of course, when aircraft slammed into the World Trade Center, the Pentagon, and a field in western Pennsylvania.

In the hours and days after the air attacks of September 11, several fundamental facts became apparent. First, the enemy deliberately avoided wearing uniforms or declaring itself. To the contrary, the terrorists masqueraded as students or other civilians and exploited the mobility and freedom of our society to leverage their assault. Second, there was every reason to believe that the enemy had some kind of witting or unwitting support network within the United States, which furnished al Qaeda operatives with resources such as fraudulent documents, places to live, and transportation. Whether the sources of documents, resources, and funds knew what the terrorists intended or not, the existence of these support networks created the potential for future terror attacks. Third, there was no simple way to distinguish between the vast majority of well-meaning foreign visitors and U.S. residents, and those very few but very dangerous individuals who had the intent and capacity to do great harm. This was not merely searching for a needle in a haystack--it was searching for a needle disguised as a stalk of hay.

Finally, and perhaps most significant, the American people realized that we were at war. To be sure, this was not a war in which our adversaries operated in massed formations within a discrete geographic area. But it was (and is) a war by any meaningful definition of the term. The attack of September 11 not only caused an unparalleled loss of American civilian life, but it culminated an ongoing campaign against Americans of several years' duration. That campaign included bombings of our embassies in Africa, an aborted attack on the USS The Sullivans, and a successful attack on the USS Cole.

After September 11, no one could mistake al Qaeda for a mere gang of lawbreakers. For they chose not to violate the law but to attack the law and its institutions directly. Their proclaimed goal, however unrealistic, was to destroy the United States. They used powerful weapons of destructive force and openly declared their willingness to employ even more powerful weapons of mass destruction if they could lay hold of them. They were as serious a threat to the national security of the United States as one could envision.

Because this was a war on American soil, national defense required a domestic as well as an overseas response. And, as is invariably the case in the midst of a crisis, that response was necessarily formulated with very imperfect information about the scope and imminence of the threat. Americans knew that the threat was not over--that the terrorists had no intention of declaring a cease-fire. What we did not know was the timing, location, and scope of the attacks yet to come. We did not know whether the assaults of September 11, as awful as they were, were a prelude to a disaster of even more tragic proportions. (As a matter of fact, even now we do not know. We cannot be sure what is to come and what we have succeeded in averting.)

In this dynamic and dangerous moment--shrouded in the proverbial fog of war--the government approach to domestic security was based on three goals: (1) enhancing our intelligence capability to predict what might happen next; (2) preventing those who could be identified as an active threat from carrying out their deadly missions; and (3) disrupting the networks and institutions from which terrorists might draw sustenance and support.

At the same time, and of equal importance, the leaders of our domestic security effort understood a principle that the attorney general himself repeatedly articulated: We must think outside the box, but not outside the Constitution. Put another way, everyone involved in formulating the response to the challenge of September 11 was acutely aware that this effort would be subject to the verdict of history, in the same way that we have rendered that verdict on the actions of our forefathers when they stepped forward to defend the country during times of peril.

I cannot, of course, render the historical judgment on the actions of the generation with which I served. I do, however, think that those who would write even a rough first draft cannot fairly do so without comparing the steps taken in our own time with our nation's past actions in facing domestic threats.

In the wake of September 11, the government quite self-consciously avoided the kinds of harsh measures common in previous wars. The exclusion and detention of American citizens of Japanese ancestry who resided on the West Coast in World War II is only the most infamous example. During the nineteenth and well into the twentieth centuries, the government responded to domestic violence with a panoply of extraordinary measures, including suppression of criticism; separate treatment of noncitizens; arrests and searches without warrants; and preventive detention.

[Airbornelawyer]

HOW, then, do we evaluate the domestic security measures the government has undertaken in the last two years? There has been criticism leveled at information-sharing enhancements under the USA Patriot Act; against the establishment of military commissions; against the denial of bail to several hundred aliens who were in violation of federal immigration or criminal laws; and against the detention of enemy combatants, including U.S. citizens. How do these stack up against the historical record?

First, in our time, we have seen no government suppression of dissent or criticism. Unlike John Adams or Woodrow Wilson, George W. Bush has not prosecuted those who argue against the administration, nor has the government seized newspapers or banned them from the mails, as did Lincoln.

Second, although the Patriot Act enhanced intelligence-gathering capabilities, it did not do so outside or in violation of the framework of existing Fourth Amendment doctrines. To be sure, many of these provisions were aimed at streamlining the process of judicial review, or the exchange of lawfully obtained information. But nationwide search warrants or technological extensions of traditional pen register principles do not alter the actual scope of Fourth Amendment protections, or the standards for obtaining warrants. Even the so-called "sneak and peek" warrant--which allows agents to delay notification that they have searched premises under a judicial warrant--applies settled Fourth Amendment doctrines. Every warrant authorizing electronic surveillance, for example, allows delayed notification; otherwise, notice to a suspect that his house or office is bugged would defeat the very purpose of the surveillance.

Third, the president has established military commissions that parallel the commission established by FDR to try Nazi saboteurs caught in this country. But no one has yet been tried by a commission, and--unlike in World War II--no American citizen, by presidential order, will be subject to a commission. Most significant, the Bush administration made it clear in issuing the order that the administration anticipated courts would exercise habeas jurisdiction over commission defendants, although that jurisdiction may be limited as a matter of law. In this regard, the president rejected the view initially espoused by Roosevelt, that such commissions were wholly beyond the reach of the courts.

Fourth, there has been no evacuation or preventive detention of American citizens or of aliens based on ethnic heritage. Even in the immediate wake of September 11, the policy of the government was to seek to detain aliens only based upon evidence of a violation of criminal or immigration law that provided a basis to deny bail. Of course, individuals were detained for immigration violations in the period following September 11. These persons were identified not by ethnic background, but for some specific investigative reason. For example, individuals found in an apartment with a telephone number listed to one of the hijackers might be detained if there was a legal basis to do so. This is far different from the mass detentions of aliens and citizens of Japanese descent during the Second World War.

Finally, the government has detained enemy combatants. Almost all of these were captured on the battlefield in Afghanistan, reflecting the customary and well-accepted practice of incapacitating enemy soldiers overseas. But in one instance, a U.S. citizen apprehended in the United States has been detained as an enemy combatant. Obviously, this is not detention on the scale practiced in the Civil War. Nevertheless, of all the measures undertaken in the last two years, I venture to say that this is the most controversial. That is not because the individual decision was unjustified, but because it is possible to envision abuse of the power to detain persons in the United States. How does one define an enemy combatant so as to distinguish between operational agents of terrorism on the one hand, and people who are merely ideologically antagonistic to the government on the other hand? What is the role of judicial review in circumstances where the evidence may include highly sensitive classified material? How long can combatants be held when we are fighting a war of extended or indefinite duration?

This last area will be that which requires the most creative legal thinking. Right now, much of the definition of the rules is being undertaken by the courts, in a more or less ad hoc manner. But we may need to think more systematically and universally about the issue of combatants. Two years into the war on terror, it is time to move beyond case-by-case development. We need to debate a long-term and sustainable architecture for the process of determining when, why, and for how long someone may be detained as an enemy combatant, and what judicial review should be available.

What we can say is that the government's actions after September 11 reflected a consciousness of history and of the historical moment. Excesses of the past were not repeated. A balance was sought and, I hope, achieved.

That balance was struck in the first flush of the emergency. If history shows anything, however, it shows that we must be prepared to review and if necessary recalibrate that balance. We should get about doing so, in the light of the experience of our forebears and the experience of our own time.

We are at a transition point in the evolution of legal doctrine to govern the armed conflict with terror. How history will judge what has been done is for our successors to determine. The triumph is that our successors will be alive and free to determine that history.
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