Judge Michael Chertoff for DHS chief? It’s good news. Yes, it is annoying to hear President Bush emphasize that Chertoff is “against racial profiling.” But a look at Chertoff’s strong, aggressive record and statements on homeland security shows that Chertoff supports exactly the kind of hard-headed, threat profiling measures and immigration enforcement opposed by the anti-profiling zealots. Chertoff has said:

Without understanding the challenge we face, one cannot understand the need for the measures we have employed. Are we being aggressive and hard-nosed? You bet. In the aftermath of September 11th, how could we not be? Our fundamental duty to protect America and its people requires no less.

Chertoff is also one of the most trenchant thinkers on the national security/civil liberties debate. Here’s his June 2004 Wall Street Journal op-ed on the need for alternatives to civilian courts to deal with terror suspects. An excerpt:

America’s intelligence agencies have been working overtime since Sept. 11, 2001. Presumably, we have much more intelligence now than we did on Sept. 10. But what does the law say we can do when our enhanced intelligence identifies a potential terrorist threat? What is our authority to incapacitate terrorist suspects? Suppose–as is often true–the intelligence is not in a form that can be used in a criminal trial? Does (or should) the law allow detention of the suspect on some other basis? For how long?

Cases presenting novel issues raised by the war on terror are now winding through the courts. 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. Yet so far, neither has systematically sketched the legal framework for the demands of this new kind of war. They seem to hope the courts will come to the rescue.

Congress did pass the Patriot Act, updating some significant legal principles, and enacting critical fixes that law enforcement and intelligence agencies had been seeking for years. These included allowing intelligence gathered by one agency to be shared with another, and extending the rules for phone surveillance to “new” technology–cell and Internet-based phones. But such ad hoc approaches do not reflect a settled vision of what is required to defend against terror, and what we are prepared to sacrifice. Those with various points of view need to sit down, haggle over differences, then write the laws that will balance our new national security needs with our civil-libertarian values.

Some seem to regard intelligence, military, and police activities as having a zero-sum relationship with civil liberties. To be sure, one of America’s most cherished values is that individual liberty must be protected against the power of the state. History is full of persecutions of the harmless, particularly by governments. At the same time, we are fighting for survival against a dangerous enemy. We cannot forget that we are at war, one our enemy declares is a fight to the death. We can win it only if we do not force our forces to fight in a legal fog, constantly speculating and litigating piecemeal about what the law might be. A murky legal climate only obscures our options and hamstrings our forces…

There are a host of terrorism-related legal questions that require thought: What should our structure be for incapacitating terror suspects at home? The administration has invoked precedents that allow the president to deal with terrorists within our borders as military combatants. Yet are we comfortable using traditional battlefield rules when we apprehend someone in New York? Or should we explore a third way in dealing with detention of terrorists, such as the English or French models: Should we set up specialized courts to deal with terrorist detentions?

What military actions can we take legally within our own borders? When al Qaeda is conspiring globally, does it make sense to divide legal authority between the FBI and CIA based on whether enemy acts occur at home or abroad? Basic policy questions like this cannot be simply left to the judiciary.

Too bad Chertoff has not been nominated for a position where he might have more influence and power to address these policy questions–say, Attorney General. Still, it’s a wise choice and rank-and-file DHS employees will greatly appreciate a leader who respects and supports their work on the front lines.

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