[Senate Hearing 109-6]
[From the U.S. Government Publishing Office]



                                                          S. Hrg. 109-6

                  NOMINATION OF HON. MICHAEL CHERTOFF

=======================================================================

                                HEARING

                               before the

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE


                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                                 ON THE

    NOMINATION OF HON. MICHAEL CHERTOFF TO BE SECRETARY OF HOMELAND 
             SECURITY, U.S. DEPARTMENT OF HOMELAND SECURITY


                               __________

                            FEBRUARY 2, 2005

                               __________

                       Printed for the use of the
        Committee on Homeland Security and Governmental Affairs


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        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                   SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska                  JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio            CARL LEVIN, Michigan
NORM COLEMAN, Minnesota              DANIEL K. AKAKA, Hawaii
TOM COBURN, Oklahoma                 THOMAS R. CARPER, Delaware
LINCOLN D. CHAFEE, Rhode Island      MARK DAYTON, Minnesota
ROBERT F. BENNETT, Utah              FRANK LAUTENBERG, New Jersey
PETE V. DOMENICI, New Mexico         MARK PRYOR, Arkansas
JOHN W. WARNER, Virginia

           Michael D. Bopp, Staff Director and Chief Counsel
                    Johanna L. Hardy, Senior Counsel
      Joyce A. Rechtschaffen, Minority Staff Director and Counsel
           Adam Sedgewick, Minority Professional Staff Member
                      Amy B. Newhouse, Chief Clerk


                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Collins..............................................     1
    Senator Lieberman............................................     3
    Senator Warner...............................................     4
    Senator Levin................................................     5
    Senator Coleman..............................................     6
    Senator Akaka................................................     7
    Senator Bennett..............................................    10
    Senator Dayton...............................................    10
    Senator Domenici.............................................    11
    Senator Lautenberg...........................................    12
    Senator Carper...............................................    43
Prepared statements:
    Senator Voinovich, Coburn, and Pryor.........................    59

                               WITNESSES
                      Wednesday, February 2, 2005

Hon. Jon Corzine, a U.S. Senator from the State of New Jersey....    14
Hon. Michael Chertoff, to be Secretary of Homeland Security, U.S. 
  Department of Homeland Security................................    16

                     Alphabetical List of Witnesses

Chertoff, Hon. Michael:
    Testimony....................................................    16
    Prepared statement...........................................    72
    Biographical and financial information.......................    74
Corzine, Hon. Jon:
    Testimony....................................................    14
    Prepared statement...........................................    65

                                APPENDIX

Article from The Washington Post, January 31, 2005, entitled 
  ``Civil Service Reform''.......................................    61
Series of three FBI E-mails submitted by Senator Levin...........    62
Responses to pre-hearing questions for the record for Mr. 
  Chertoff.......................................................    87
Responses to pre-hearing questions for the record for Mr. 
  Chertoff from:
    Senator Levin................................................   236
    Senator Lieberman............................................   247
Responses to post-hearing questions for the record for Mr. 
  Chertoff from:
    Senator Collins..............................................   249
    Senator Collins on behalf of Senator Specter.................   257
    Senator Stevens..............................................   261
    Senator Coleman..............................................   262
    Senator Coburn...............................................   264
    Senator Chafee...............................................   265
    Senator Domenici.............................................   267
    Senator Lieberman............................................   272
    Senator Levin................................................   284
    Senator Akaka................................................   290
    Senator Carper...............................................   303
    Senator Lautenberg...........................................   307
    Senator Pryor................................................   308

      Letters of Support or Concern submitted for the Record from:

International Union of Operating Engineers.......................   310
Airforwarders Association (AfA)..................................   311
Honduran Unity--Unidad Hondurea..................................   314
Republican Governors Association.................................   315
Fraternal Order of Police........................................   318
National Association of Emergency Medical Technicians............   319
Hispanic Association of Colleges and Universities (HACU).........   320
National District Attorneys Association..........................   321
Georgia Association of Emergency Medical Services, Inc...........   322
National Asian Pacific American Bar Association..................   323
ASIS International...............................................   325
National Sheriffs' Association...................................   326
Federal Law Enforcement Officers Association.....................   327
Port Authority of New York and New Jersey........................   329
Numerous organizations...........................................   330

 
                  NOMINATION OF HON. MICHAEL CHERTOFF

                              ----------                              


                      WEDNESDAY, FEBRUARY 2, 2005

                                       U.S. Senate,
                           Committee on Homeland Security  
                                  and Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:03 a.m., in 
room SD-342, Dirksen Senate Office Building, Hon. Susan M. 
Collins, Chairman of the Committee, presiding.
    Present: Senators Collins, Coleman, Bennett, Domenici, 
Warner, Lieberman, Levin, Akaka, Dayton, Carper, and 
Lautenberg.

             OPENING STATEMENT OF CHAIRMAN COLLINS

    Chairman Collins. Good morning. The Committee will come to 
order.
    Today, the Committee on Homeland Security and Governmental 
Affairs will consider the nomination of Judge Michael Chertoff 
to be the 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 I begin, I would like to express my gratitude to the 
person Judge Chertoff seeks to replace. Following the attacks 
of September 11, 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, and 
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 head of the Justice 
Department's Criminal Division, and now as a Federal judge. As 
the overwhelming vote for his confirmation 2 years ago 
demonstrated, he is well respected on both sides of the aisle. 
That is also evident from the fact that two of our 
distinguished Democratic colleagues are here to introduce him 
this morning.
    Since September 11, Judge Chertoff has established himself 
as a leading expert on the legal and national security issues 
surrounding the war on terrorism.
    The purpose of this hearing is, of course, to evaluate the 
qualifications, integrity, and positions of the nominee. It is 
inevitable and necessary that we do so 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 should also consider 
the context in which the Department was born.
    In the immediate aftermath of September 11, 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, the very freedoms that Americans cherish 
and that define us as a country. In those perilous, uncertain 
days, we also knew that we needed to take decisive action 
immediately to protect our citizens from further attacks. Some 
now question whether we tilted the balance too far towards 
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 that the threat 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 makes 
absolutely 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 2 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, in fact, 
better protected today 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, 
our expert witnesses made a powerful argument that homeland 
security remains very much a work in progress.
    The Government Accountability Office's high-risk list 
released last week bolsters that assessment. Many of the 
difficulties the GAO foresaw 2 years ago in consolidating 22 
separate agencies into one new and cohesive Department remain 
to be overcome. Now, the GAO additionally finds that 
information sharing, both within the Department and with other 
departments and other levels of government, is a weakness that 
also 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 new Department 
as well as his own priorities.
    Senator Lieberman.

             OPENING STATEMENT OF SENATOR LIEBERMAN

    Senator Lieberman. Thanks, Madam Chairman, and welcome, 
Judge Chertoff. Madam Chairman, I was thinking as I was 
listening to your opening statement that after our work 
together on the intelligence reform bill last year, you said it 
would be dangerous if we ever didn't agree on something because 
we know so much about how each other thinks. Your opening 
statement proves that either that is true or we have the same 
person drafting our opening statements. [Laughter.]
    So I will speak more briefly than I had intended. The fact 
is that the Department of Homeland Security, in the 2 years 
since this Committee led the way in creating it, has become the 
leader in the U.S. Government in protecting the security of the 
American people here at home.
    And you are absolutely right, Senator Collins. Secretary 
Ridge deserves credit for beginning the enormous transformation 
that the Homeland Security Department's creation required, and 
for enabling us all to say today that we are safer than we were 
on September 11, 2001.
    Yet as you know, Judge Chertoff--and as we heard from the 
panel of experts and independent analysts that we had in here 
last week--significant challenges await the next Secretary, 
ranging from the development of a clear strategic plan--and I 
do not see how we can ask you to do the job that we want you to 
do and that I know you want to do, without having a plan which 
includes setting of priorities for the Department in a time 
when you just can not do everything right away--to improving 
the Department's day-to-day operations.
    We heard some very powerful testimony that the position of 
Secretary of Homeland Security and those who serve the 
Secretary as deputies may not have all the authority that they 
need to carry out their responsibilities that we have given 
them. They may not, in fact, have within their own offices the 
staff that they need to carry out their responsibilities that 
we have given those offices.
    There was a suggestion made last week by several of the 
experts in regard to the lack of a strategic plan and 
priorities for the agency that we establish an Under Secretary 
for Policy and Planning. I gather that you have expressed some 
interest in the creation of that position. I look forward to 
hearing your thoughts on it today.
    But most importantly, the Department has to receive 
adequate financial support to carry out the enormous 
responsibilities we have given you in law to protect the 
American people from a terrorist who will strike us where we 
are vulnerable. And in an open society, there are many 
vulnerabilities. We are never going to be able to close them 
all against fanatics who, as someone else has said, hate us 
more than they love their own lives. They are prepared to take 
their own lives in destroying us.
    But we know that there remain persistent vulnerabilities 
that we have to close at our borders and ports, within our rail 
and transit system, at the Nation's core energy, 
telecommunications, water, transportation, financial, and 
chemical industry networks that exist. The Coast Guard is in 
dire need of a modernized fleet. The administration and we must 
do more to prepare the Nation for a possible bioterror attack 
that could put millions of Americans at risk.
    The bottom line is, this Department needs more authority 
from us to help you do what we have asked you to do in our 
defense. It needs more money. I just can not cloud that in any 
other way. I know how difficult it will be in a resource-
limited environment, but we have the best military in the world 
and therefore the best international security operation in the 
world today because we have invested in it, and we will only 
have the same here at home if we invest in it.
    To do that, we are going to have to regain some of that 
sense of urgency that propelled us following September 11, 
2001, and we are going to have to express that urgency in the 
way we support and you administer the Department of Homeland 
Security.
    Judge Chertoff, I have examined your record. I have had the 
chance to speak to you at some length. You have served your 
country with distinction. I greatly appreciate your willingness 
to leave the circuit court to take on these truly awesome 
responsibilities.
    I think you know that a number of questions have been 
raised in recent days, as the Chairman indicated, about your 
role in the administration's prosecution of the war on terror, 
most recently with regard to advice you provided regarding the 
laws prohibiting torture, advice you may have provided while 
you were head of the Justice Department's Criminal Division. I 
know that you discussed that issue with the Committee's staff 
extensively on Monday. Today, I think it is important that you 
discuss these issues publicly before the Committee and the 
American people.
    My interest here is, first, to determine what your role was 
in those various policies, what your opinions are today with 
regard to those. But then, second, notwithstanding whether we 
agree or disagree with you about your course of conduct in 
those matters or your opinions today, if they in any way affect 
your ability to assume the responsibilities for which you are 
nominated. Otherwise, beyond those questions, I would say you 
are extraordinarily well qualified for the position.
    I look forward to the testimony and ultimately I look 
forward to working with you to keep America and the American 
people safe from terrorist attack. Thank you.
    Chairman Collins. Thank you, Senator Lieberman.
    As is customary, we will be following the early bird rule 
and I will now call upon the other Members for opening 
statements, not to exceed 3 minutes in length. Senator Warner.

              OPENING STATEMENT OF SENATOR WARNER

    Senator Warner. Thank you, Madam Chairman.
    Welcome, Judge. We had a wonderful visit in my office, 
exchanged our respective views very cordially and very 
forthright. We both started our careers as law clerks for the 
Federal judiciary and you succeeded. You ended up on the bench. 
This country owes you a great debt of gratitude, having 
resigned that position to which you aspired, I presume most of 
your life, to take on the new challenges of this day. So as a 
citizen, we thank you for that, and your family.
    I would simply say, Madam Chairman, that we take notice 
that the U.S. Senate has confirmed this extraordinary public 
servant on one occasion and I anticipate, and I intend to give 
you my support, you will be confirmed again.
    Once in office, I will try and offer to work with you to 
see that there is a seamless and full cooperation between the 
Department of Defense, over which I have some responsibilities 
together with several members, the chairman and ranking member 
on my committee, the Armed Services, and your new Department, 
because America deserves no less than the full coordination of 
every single asset we have to perform your challenging mission. 
Good luck.
    Chairman Collins. Thank you, Senator. Senator Levin.

               OPENING STATEMENT OF SENATOR LEVIN

    Senator Levin. Thank you, Madam Chairman, and welcome, 
Judge Chertoff.
    The new Secretary of Homeland Security will have an 
enormous challenge, including strengthening the programs that 
fund our domestic preparedness and response capabilities, 
protecting our borders and ports, and improving our 
transportation security, and taking all the necessary steps to 
enhance our collective security without eroding our core 
values.
    I want to thank our Chairman and Ranking Member for making 
reference to Governor Ridge and the dedication that he showed 
towards that challenge. I know that you both spoke for really, 
I am sure, every Member of this Committee and every member of 
Senate and the people of the United States in expressing our 
gratitude to Secretary Ridge.
    There are a lot of funding issues that relate to the 
Department that Judge Chertoff will hopefully address. The 
State Homeland Security Grant Program, which is one of the most 
important sources of funding for our first responders, was 
actually cut last year. The administration requested only $700 
million for the program, which had been funded at $1.7 billion 
in fiscal year 2004. Congress stepped in and increased the 
amount to $1.1 billion in the final Homeland Security 
appropriations bill. But if we are serious about homeland 
security, we have to fund it.
    We also need to change the way funding is distributed by 
allocating it to those areas where the threat and the risk of 
attacks are most significant. The existing funding formula used 
to allocate funding in some of the largest Department of 
Homeland Security grant programs has led to some irrational and 
some inequitable results. Secretary Ridge opposed the formula 
that led to those results and the administration said it would 
propose that the funding be allocated more on risk.
    I look forward to Judge Chertoff's perspective on those 
funding issues, as well as a number of issues which have been 
raised.
    I raise issues which he addressed as head of the Criminal 
Division at the Department of Justice. He headed the division 
from May 2001 until March 2003. Judge Chertoff, you have a 
reputation of being a thoughtful person and a straight shooter, 
and the presence of these two Senators from New Jersey here 
today in support of your nomination is surely a testimony, an 
eloquent testimony, of that reputation.
    The Justice Department's Office of Legal Counsel, which is 
a different division from yours, took actions that were 
troubling during the period in which you headed the Criminal 
Division, most notably its promulgation of legal theories 
circumventing legal prohibitions against torture and inhumane 
treatment of detainees. Judge Chertoff's role in the 
development of those legal theories needs to be clarified. 
Those theories helped to create an environment in which the 
abusive behavior of prisoners was either permitted or was 
perceived to be permitted. That distortion of our legal and 
moral obligation to treat prisoners humanely undermines the 
safety of our troops. It also undermines our standing in the 
world.
    Judge Chertoff's written answers to pre-hearing questions 
state that he reviewed a draft of the August 1, 2002, Office of 
Legal Counsel memorandum that interpreted the definition of 
torture prohibited under our anti-torture laws. That 
discredited August 2002 memorandum defined what constitutes 
prohibited torture very narrowly, including the claim that, 
``physical pain amounting to torture must be equivalent in 
intensity to the pain accompanying serious physical injury, 
such as organ failure, impairment of bodily functions, or even 
death.''
    Judge Chertoff has acknowledged that he was consulted on 
how he, as chief Federal prosecutor, would apply the law. Last 
weekend, The New York Times reported that the Justice 
Department's Criminal Division, then under Judge Chertoff, was 
consulted on several occasions by the CIA as to whether their 
agents could be subject to criminal prosecution for using 
specified interrogation techniques, and I hope Judge Chertoff 
will elaborate on the advice that he and the Criminal Division 
provided regarding the definition of torture and the legality 
of specific interrogation techniques.
    There are other events that were reported to have occurred 
during Judge Chertoff's tenure at the Department of Justice 
that I hope he will address, as well. For example, a report 
from the Department's Inspector General stated that some 
alleged immigration law violators detained following the 
September 11 attacks were prevented from obtaining counsel in a 
timely fashion.
    So again, I thank you, Madam Chairman and Senator 
Lieberman, for your comments. I share those thoughts of yours 
not only relative to Governor Ridge but relative to the 
principal role of this agency which Judge Chertoff is going to 
head and I believe can head with distinction.
    Chairman Collins. Thank you. Senator Coleman.

              OPENING STATEMENT OF SENATOR COLEMAN

    Senator Coleman. Thank you, Madam Chairman. I want to thank 
you for moving so quickly on this very important hearing that 
we are having today. Thank you for your leadership.
    I want to join in those who have acknowledged and applauded 
Tom Ridge. No one expects the Secretary of Transportation to 
prevent every highway death. No one expects the Director of the 
EPA to prevent all pollution. But we expect the head of 
Homeland Security in this country to make sure that America is 
safe and not failing, would have a tremendous impact. So it is 
an extraordinarily difficult job and Secretary Ridge did an 
extraordinary job.
    Judge Chertoff, there is no question in my mind about your 
qualifications, and the Chairman laid out that this hearing is 
about qualifications and integrity of your position in terms of 
leading this Department. I think you come with extraordinary 
credentials.
    The one concern I have as a former mayor, as a local 
official, and reflecting on your background as a Federal 
prosecutor and as a Federal judge, as working in the Justice 
Department, is the level of coordination between this 
Department and folks at the local level. I remain deeply 
concerned about that. Part of it goes to funding. We had a 
situation in Minnesota where the Twin Cities, as they are known 
in the Twin Cities, perhaps not in Washington, but as the Twin 
Cities, Minneapolis gets funded and St. Paul gets zeroed out. 
And the level of communication with local elected officials, in 
that instance, the mayor is called the morning of the 
announcement. There is no communication, no consultation.
    As I speak to law enforcement folks, first responders, they 
still raise concerns today about the level of communication. 
International Falls, Minnesota, is in a rural area. It is the 
coldest place in the United States. It is one of the 50 busiest 
land ports of entry in the United States. We have two nuclear 
facilities, one in Red Wing, Minnesota, a rural area on the 
Mississippi River, one in Monticello, outside the urban center 
and considered a rural area. And the level of communication 
between folks at the Federal level and the local level has to 
be better than it is.
    So I look at that funding issue that we had and the lack of 
communication, lack of understanding. I speak to local law 
enforcement and the concerns are there and they are still 
there. So certainly in my questioning, I hope we can discuss 
your vision for what can we do to improve the level of 
communication so that our real first responders know what is 
going on, are in consultation, are in contact, are consulted 
and have the level of confidence they need to be the ones who, 
God forbid there ever is an attack on our homeland, have the 
ability to respond in the right way.
    So with that, I do look forward to this hearing. Thank you, 
Madam Chairman.
    Chairman Collins. Thank you. Senator Akaka.

               OPENING STATEMENT OF SENATOR AKAKA

    Senator Akaka. Thank you very much, Madam Chairman. I want 
to thank you for expediting this hearing of the confirmation of 
Judge Michael Chertoff.
    I want to welcome Judge Chertoff to this Committee with my 
congratulations on your nomination. I also want to welcome your 
family who are present here today. I am certain that they all 
share your pride in being nominated as Secretary of the 
Department of Homeland Security.
    My colleagues and I will lay before you a variety of issues 
that concern us and suggest solutions, just as we did with your 
predecessor, Secretary Ridge, who led this new agency with 
strength and grace. DHS remains an agency still in the process 
of being created.
    Madam Chairman, I would ask that my full statement be 
placed in the record.
    Chairman Collins. Without objection.
    [The prepared statement of Senator Akaka follows:]

                  PREPARED STATEMENT OF SENATOR AKAKA

    Judge Chertoff, please accept my heartiest congratulations on your 
nomination. I welcome you and your family today. I am certain they all 
share your pride in being nominated as Secretary of the Department of 
Homeland Security (DHS).
    Today's hearing presents a special opportunity for you to 
articulate your vision of how DHS will carry out its mission of 
defending the Nation's borders and protecting us from terrorism while 
defending our civil liberties. The challenges you will face, if 
confirmed, are demanding and will require you to search for answers 
beyond the commonplace and apply your impressive skills to this new 
job.
    My colleagues and I will lay before you a variety of issues that 
concern us and suggest solutions just as we did for your predecessor, 
Secretary Ridge, who led this new agency with strength and grace. But 
DHS remains an agency still in the process of being created. The 
December 2004 DHS Inspector General report on management challenges 
outlines an array of worrisome problems--some of which are to be 
expected when 22 entitles are combined in a single department.
    I have a number of concerns, some of which I will summarize today.
    I want your assurance that you will defend the Constitution to 
safeguard our civil liberties. The price of security should never erode 
our constitutional freedoms, which are essential to the preservation of 
this democracy.
    When we met a couple of days ago, you and I talked about the just-
released personnel regulations covering the 180,000 men and women who 
staff DHS. To make these new regulations work, there must be 
significant and meaningful outreach to this dedicated workforce, their 
unions, and their managers.
    With just about half of the Federal workforce eligible for 
retirement in the next 5 years, DHS and other Federal agencies must 
promote a sense of trust and a sense of worth among its employees.
    Madam Chairman, I wish to insert into the record an editorial from 
the January 31, 2005,\1\ Washington Post that goes straight to my 
concerns about the new DHS personnel rules: Implementing a pay for 
performance system without a strong performance management system in 
place, internalizing employee appeals without independent members and 
adequate external oversight, and the continued position by some that 
belonging to a union is a threat to national security.
---------------------------------------------------------------------------
    \1\ Article from The Washington Post, appears in the Appendix on 
page 61.
---------------------------------------------------------------------------
    Judge Chertoff, it will be up to you to make sure that DHS recruits 
and retains the best and brightest to be on the front lines of our 
national defense.
    DHS has been given, by statute, a prominent seat in the 
Intelligence Community. But the Department will need to earn the 
respect of that community through the quality of its analysis and its 
response to threats.
    The Department must have the financial management systems and 
practices in place to provide meaningful and timely information needed 
for sound and efficient management decisionmaking. I am particularly 
pleased that a provision similar to legislation I sponsored with our 
former colleague, Senator Peter Fitzgerald, is now law, thus bringing 
DHS under the Chief Financial Officers Act and ensuring a Senate-
confirmed CFO who reports directly to the Secretary of DHS.
    Judge Chertoff, when we met earlier this week we also discussed my 
home State of Hawaii. Given the State's unique geographic location, 
nearly 2,500 miles from the West Coast, there are unique challenges to 
securing Hawaii from asymmetric threats. For example, when disaster 
strikes, Hawaii cannot call on neighboring States for assistance due to 
the distance and time differences. Our eight inhabited islands must be 
self-sufficient. Secretary Ridge recognized this and took the 
opportunity to visit Hawaii. I hope you will go there, too.
    Hawaii, as an island State, depends heavily on air travel. We are 
waiting for TSA funding to install in-line Explosive Detection System 
(EDS) machines. This need is critical at all our airports. Honolulu 
International Airport serves more than 20 million travelers each year, 
and each of the other islands have international travelers as well. In 
fact, the neighbor islands combined serve as many visitors as Honolulu. 
Because tourism is the State's largest industry, crowded lobbies due to 
long wait times pose a threat to this critical economic sector.
    Judge Chertoff, I look forward to a productive working relationship 
with you. Congress was the impetus for creating DHS. We want to work 
with you to ensure the Department carries out its mission. I am pleased 
you have stressed the need to cooperate closely with Congress, 
particularly this Committee, and to provide the information we need to 
do our job. You will find this Committee very detailed-oriented; but 
details are necessary to conduct effective oversight in order to 
provide you with the resources and support you will need to be 
successful.
    Thank you Madam Chairman. I look forward to hearing from our 
nominee.

    Senator Akaka. I have a number of concerns, some of which I 
summarize today. I want your assurance that you will defend the 
Constitution to safeguard our civil liberties. The price of 
security, we know, should never erode our constitutional 
freedoms, which are essential to the preservation of this 
democracy.
    We met a couple of days ago. You and I talked about the 
just-released personnel regulations covering the 180,000 men 
and women who staff DHS. To make these new regulations work, 
there must be significant and meaningful outreach to the 
dedicated workforce, the unions, and their managers.
    Madam Chairman, I wish to insert into the record an 
editorial from the January 31, 2005, The Washington Post that 
goes straight to my concerns about the new DHS personnel 
rules.\1\
---------------------------------------------------------------------------
    \1\ Article from The Washington Post, January 31, 2005, entitled 
``Civil Service Reform,'' appears in the Appendix on page 61.
---------------------------------------------------------------------------
    Chairman Collins. Without objection.
    Senator Akaka. That article talks about implementing a pay-
for-performance system without a strong performance management 
system in place, internalizing employee appeals without 
independent members and adequate external oversight, and the 
continued position by some that belonging to a union is a 
threat to national security.
    DHS has been given by statute a prominent seat in the 
Intelligence Community, but the Department will need to earn 
the respect of that community through the quality of its 
analysis and its response to threats. The Department must have 
the financial management systems and practices in place to 
provide meaningful and timely information needed for sound and 
efficient management decisionmaking.
    I am particularly pleased that a provision similar to 
legislation I sponsored is now law, thus bringing DHS under the 
Chief Financial Officer's Act and ensuring a Senate-confirmed 
CFO who reports directly to the Secretary of DHS.
    Judge Chertoff, when we met earlier this week, we also 
discussed my home State of Hawaii. Given the State's unique 
geographic location, 2,500 miles from the West Coast, there are 
unique challenges to securing Hawaii from asymmetric threats. 
For example, when disaster strikes, Hawaii cannot call on 
neighboring States for assistance due to distance and time 
difference. Our eight inhabited islands must be self-
sufficient. Secretary Ridge recognized this and took the 
opportunity to visit Hawaii, and I hope you will be there, too.
    Hawaii, as an island State, depends heavily on air travel. 
We are waiting for TSA funding to install in-line explosive 
detection system machines. This need is critical at all our 
airports. Honolulu International Airport serves more than 20 
million travelers each year, and each of the other islands have 
international travel, as well. In fact, the neighbor islands 
combined serve as many visitors as Honolulu does. Because 
tourism is the State's largest industry, crowded lobbies due to 
long wait times pose a threat to this critical economic sector.
    Judge Chertoff, I look forward to a productive working 
relationship with you. I am pleased you have stressed the need 
to cooperate closely with Congress, particularly this 
Committee, and to provide the information we need to do the job 
together. You will find this Committee very detail-oriented, 
but details are necessary to conduct the effective oversight in 
order to provide you with the resources and support you will 
need to be successful.
    Thank you, Madam Chairman.
    Chairman Collins. Thank you. Senator Bennett.

              OPENING STATEMENT OF SENATOR BENNETT

    Senator Bennett. Thank you, Madam Chairman.
    I first met Michael Chertoff as a very green, very new 
Member of the U.S. Senate when Senator Riegel was chairing the 
Whitewater hearings and Michael Chertoff came in to inform 
those of us that were unburdened with a legal education as to 
what was really going on. I was tremendously impressed with him 
at that time, learned a great deal from him, and have followed 
his career with great interest.
    I am happy to make it clear that I will be a very 
enthusiastic endorser for his nomination. Mr. Secretary, I 
think it is, echoing what Senator Warner said, a demonstration 
of your willingness to serve your country that you will give up 
a lifetime appointment with a permanent pension to step into a 
situation that can only be described as dysfunctional.
    That in no way is a criticism of Secretary Ridge. I said to 
this Committee and my colleagues when the Department was 
created, let us be under no illusions that it will work for at 
least 5 years. The past history of departments put together 
like this demonstrates that the administrative challenge of 
making something like this work requires a tremendous amount of 
time and a tremendous amount of talent, and I agree with those 
Senators who said that Secretary Ridge has handled the first 2 
years with great distinction. But the challenge is still just 
as great and I, for one, am grateful to you, Mr. Secretary, for 
your willingness to take it on.
    I will have some specific questions about the area of 
greatest concern that I have, which is cyber security, which I 
have discussed with the nominee in the confines of my office, 
and I will save that for the questioning period.
    Chairman Collins. Thank you. Senator Dayton.

              OPENING STATEMENT OF SENATOR DAYTON

    Senator Dayton. Thank you, Madam Chairman.
    Senator Bennett mentioned a lifetime appointment and a 
permanent pension. He didn't mention you also wouldn't have to 
appear before Senate committees, but all the more to your 
credit that you are willing to take this assignment on. I 
apologize for not being able to meet with you. Mad cow disease 
is one of the priorities in Minnesota, so I apologize that that 
intervened.
    I will save most of my comments for the questioning period, 
but I do support very strongly what my colleague from Minnesota 
said. You notice there are two Minnesotans on this Committee, 
so I will be watching to see if you visit International Falls 
twice for every one time you go to Honolulu. [Laughter.]
    Particularly since this body has in the past debated the 
need for additional funds for first responders, for local 
enforcement and response efforts and the majority decision was 
not to provide that additional funding, it is particularly 
distressing to see these, what appear to me to be very 
arbitrary and nonsensical elimination of funding for certain 
areas while others continue at the same or even reduced level.
    Senator Levin had mentioned the threat assessment. The 
people I represent, the threat is omnipresent and telling 
people in one area that their threat is not real in an era 
where, as September 11 showed, even the inconceivable is 
possible, just is not something that I can get away with saying 
in Minnesota and I defer to my colleagues elsewhere.
    I also want to address later the Transportation Security 
Agency. One thing we are all experts on is flying and getting 
in and out of airports and the like, and while there have been 
some improvements there since pre-September 11, there is also, 
in my view, as a result of some of the management decisions 
that have been made, less than optimal performance and 
consistency there.
    So again, I will look forward to the chance to question you 
and thank you very much for your dedication to our country.
    Chairman Collins. Thank you. Senator Domenici.

             OPENING STATEMENT OF SENATOR DOMENICI

    Senator Domenici. Thank you, Madam Chairman.
    Judge Chertoff, I didn't ask you to come up and visit with 
me before you came here to testify because I had no reason to 
interview you. I already know you. I will have ample time in 
this hearing to discuss issues as I see them for my State and 
we will probably do that in the next couple of days.
    I want to hearken back for a minute to about 6 years ago. I 
was visiting with then-President Clinton. He asked me if I 
would talk with him about a problem and give him some 
suggestions. The problem was the Immigration Service and the 
Border Patrol and he said, ``Senator, do you have any ideas on 
how to fix it up?'' Frankly, I said, I wish you could have 
asked me about any other thing. I just don't know the answer. 
Our borders are so broken that I don't know what to do about 
it.
    Well, we haven't fixed it. We just packaged it up and gave 
it to DHS, and then we gave it an additional concern in that we 
now live in an era of terrorism and our borders take on a huge 
new level of importance.
    I tell you that only because, Judge, you will have an 
enormous job at DHS. Many of the pieces that we put together in 
the Department are not functioning properly now, and it will be 
very difficult to make them function after you inherit them, so 
I wish you the best.
    I hope you know that most of what you have to do is manage 
a monster. I don't know who the President could have nominated 
that would have been a natural worldwide, renowned manager. He 
had a choice and he picked you, not because you are a 
worldwide, renowned manager, but because you are a very 
committed citizen. You are very intelligent and every 
government job you have had, you have done very well. You 
understand the law, and law enforcement, and that is a big part 
of this job, so I wish you the very best. There is no doubt in 
my mind that you will do it well.
    But I don't want to join the chorus here who says you need 
more money. You may need more money, but what we need to do is 
make sure that you tell us what things you have to do and what 
things you don't think you have to do, and I must say they are 
not always consistent with Congress's wishes. That is why I 
won't talk to you about how you are going to distribute money 
in terms of first responders. If I were to make you respond to 
that question today, you might get some Senators angry enough 
that they wouldn't vote for you on the floor, because the truth 
of the matter is, you can't distribute first responder money 
the way all the Senators want it distributed. Some first 
responder requests do not pose a significant enough risk to be 
funded. You know that, and you will find it out more the longer 
you are in office, without question.
    I expect you, without telling us how today, to not address 
every risk that everybody tells you is a threat. I expect you 
to find a security plan, an overall strategy that tells us how 
to assess risks, how to fund them and which ones are real 
threats. Every first responder request is not responding to a 
risk that is worth funding, no question about it. Everybody 
that clamors for first responder money knows that, but they 
want money, even for things that aren't necessarily risks we 
should be taking care of.
    I close with a little story. When I was 16, I had a very 
bad bone problem with one of my legs. The doctor told my mother 
that I shouldn't walk around too much, and over exert my leg, 
and she said, ``Oh, don't worry. I will never let him move.'' 
And the doctor said, ``Well, if you overdo this, you could put 
him in bed and leave him there, and one day you could wake up 
to find that he has fallen out of bed and has broken his 
neck.''
    So you can't eliminate every risk. I thank you very much 
for trying. Do the best you can, and good luck.
    Chairman Collins. Thank you, Senator Domenici, though I am 
not quite sure what the moral of that story is. [Laughter.]
    I appreciate your comments.
    We are very pleased this morning to be joined by two of our 
distinguished colleagues who are here to present the nominee. 
Senator Lautenberg is a Member of the Committee, as well, so I 
would first want to see if he has opening comments that he 
would like to give and then call upon him to begin the 
introduction of the nominee. I would note to Judge Chertoff 
that you are very fortunate to have two such distinguished 
Members here with you today.

            OPENING STATEMENT OF SENATOR LAUTENBERG

    Senator Lautenberg. Thank you very much, Madam Chairman. 
This might be considered double-dipping because first I get to 
make my statement and then I get to introduce our distinguished 
guest and friend.
    On September 11, 2001, 700 of the Americans who lost their 
lives were from our home State of New Jersey. The people of 
North Jersey could see the smoke rising from the World Trade 
Centers. The New York-New Jersey region was attacked on that 
terrible day and our region continues to be most at risk of 
terrorist attack.
    This morning, there was a plane crash at Teterboro Airport, 
a very busy commercial airport in our State, and as I listened 
to the report on TV, the first questions that seemed to arise 
from the commentators was whether this was sabotage or 
terrorism. It shows you the sensitivity. If this had happened 
elsewhere in the country, I doubt that question would have been 
raised. But when you look at the region where the tragedy 
struck on September 11 in such proportion that we are still in 
shock over that day, it tells you something.
    Judge Chertoff and I have discussed the FBI's finding that 
the two-mile stretch between the Port of Newark and Newark 
Liberty International Airport is one of the most at-risk areas 
in the entire Nation for terrorist attack. That ought to be a 
top priority for protection.
    Now, Michael Chertoff understands that risk and 
vulnerability must be the principal yardsticks. I saw his head 
shaking positively as Senator Levin talked about that and 
others about the risk factor. Right now, funds are not being 
distributed strictly on the basis of risk and vulnerability. 
But I am confident that Judge Chertoff knows that needs to be 
changed.
    One of the recommendations in the 9/11 Commission report 
states, ``Homeland security assistance should be based strictly 
on an assessment of risks and vulnerabilities and should not 
remain a program for general revenue sharing.'' So Senator 
Corzine and I are drafting a bill to require that all homeland 
security grants for terrorism prevention and preparedness be 
based on relative risk, threats, and vulnerabilities, and our 
bill will follow the recommendation of the 9/11 Commission. It 
will give the Secretary of Homeland Security the discretion and 
the authority necessary to distribute Federal resources to 
those areas that are most at risk and I hope that we will have 
the support of then-Secretary Chertoff.
    So I look forward to working with him on meeting the 
homeland security needs of New Jersey and the entire Nation.
    Madam Chairman, do I slip into my introduction at this 
point?
    Chairman Collins. That would be great.
    Senator Lautenberg. I thank you, because we are so pleased 
that President Bush has nominated a kind of hometown fellow 
from New Jersey. Judge Michael Chertoff is one so well suited 
for this critical position of Secretary of Homeland Security. 
He has the intellect, we understand that, both academically and 
as a member of the Court of Appeals. We have seen him in 
several positions. I had the good fortune to have recommended 
Judge Chertoff three times. In this case, it is three times and 
you are in.
    We are so lucky to have someone like Michael Chertoff who 
can come in and take on this task following Secretary Ridge's 
very arduous task and getting the framework established in the 
first place. It still has plenty to go, as Michael Chertoff 
knows, and he is prepared to take on that task.
    Judge Chertoff has the experience to be an excellent 
Homeland Security Secretary, lengthy background in law 
enforcement, keen understanding of New Jersey and America's 
homeland security. Judge Chertoff was born in Elizabeth, New 
Jersey, and distinguished himself academically as an 
undergraduate and law student at Harvard. After graduating from 
law school, he served as a law clerk to Judge Murray Gurfein on 
the U.S. Court of Appeals for the Second Circuit. Following his 
clerkship on the Second Circuit, Judge Chertoff served as a 
clerk to a legendary Justice from our home State, U.S. Supreme 
Court Justice William Brennan.
    In 1990, Judge Chertoff became the U.S. Attorney for the 
District of New Jersey. During his tenure, which lasted 4 
years, he aggressively attacked organized crime, public 
corruption, health care, and bank fraud. And I particularly 
appreciate the critical role that he has held in New Jersey, 
getting the State Legislature to investigate racial profiling 
in our State. There was an expression that driving while black 
should not be a crime, and it was a reference to a casual 
process that had people being stopped for no reason other than 
the fact that they were people of color. That propelled the 
bill that I introduced in the Senate to ban racial profiling.
    Based on his past performance in so many different jobs, I 
am confident that Judge Michael Chertoff will be a strong, 
effective leader of the Department of Homeland Security and I 
am also confident that he will make sure that States under 
actual risk and threat of terrorism, including our own home 
State, obviously, get an appropriate share of Homeland Security 
funding. It does matter. We have seen reductions in funding in 
two of our major cities, Jersey City and Newark, substantial 
reductions, and overall, a reduction of some 30 percent in 
funding available. We desperately need that help to cope with 
so many problems that we have in the region.
    Madam Chairman, you know that Judge Chertoff currently 
serves on the prestigious U.S. Court of Appeals for the Third 
Circuit and I think a good measure of his commitment to public 
service, as was said by others, is to give up a lifelong 
appointment on the second-highest court in the land to accept 
President Bush's call to duty.
    So, Chairman Collins and fellow Committee Members, I 
strongly support Judge Chertoff's nomination. I am proud of him 
and proud of the fact that he is going to have a chance to 
serve, bringing his full skills and abilities of considerable 
proportion to do this job. I urge this Committee to report the 
nomination to the full Senate as soon as possible and I thank 
you, Madam Chairman.
    Chairman Collins. Thank you, Senator. Your endorsement 
means a great deal to this Committee on which you have served 
so well. Senator Corzine.

STATEMENT OF HON. JON CORZINE,\1\ A U.S. SENATOR FROM THE STATE 
                         OF NEW JERSEY

    Senator Corzine. Thank you, Madam Chairman and Ranking 
Member Lieberman, and to all the Committee, thank you for 
allowing me to join in both recommending and endorsing his 
candidacy and speaking up for an individual who I deeply 
believe will do an outstanding job as the Secretary of the 
Department of Homeland Security.
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Corzine appears in the 
Appendix on page 65.
---------------------------------------------------------------------------
    I will say that, hearkening back to the Morris Udall 
comment that whatever could be said has been said except by who 
is saying it, so I will be brief and I will submit my formal 
statement for the record.
    Before I do that, though, I do want to make a couple of 
comments. First of all, I want to congratulate this Committee 
for taking on the intelligence reform issue and driving it to 
conclusion. I think the leadership, both of the Chairman and 
the Ranking Member and those on the Committee, has been 
extraordinary service to the country, as well as the efforts of 
Secretary Ridge in serving as the initial leader of this. So I 
think those need to be said.
    I am sitting next to a remarkable individual. He is one of 
the most able lawyers I think America has. Senator Lautenberg 
talked about his credentials. He is intelligent, and as we 
heard in the 9/11 Commission, we need imagination to be able to 
deal in protecting the American people. No one, I think, will 
bring greater intelligence and imagination to this effort than 
Judge Chertoff.
    I know him as an honorable and impartial man. Sometimes 
people will use that he is a tough, straight shooter. I think 
that is what we need in this position. He will call them as he 
sees them. I think the idea that he has demonstrated, as others 
have mentioned, that he is prepared to give up a lifetime 
appointment to take on a job that will come with lots of rocks 
and stones and bows and arrows from all of us is a statement to 
how committed he is to public service.
    This is the third time I have sat at a table recommending 
Judge Chertoff. I have to admit he is a personal friend and I 
like the idea he is from New Jersey. But I think this is one of 
America's most able public servants.
    I know you are going to ask questions about detention. You 
are going to ask questions about torture memos and other 
issues. I will refer back to the work that I saw done at the 
New Jersey State Senate level with regard to racial profiling. 
It was a test of balancing, protecting the American public, or 
protecting the New Jersey public and our civil liberties. No 
one could have done that more intelligently and then worked to 
try to create legislation that would bring that to be addressed 
in a way that really searched for the right balance.
    I have read some of the writings, I have reviewed some of 
the speeches, and I have had personal conversations about this 
search for the right balance that, Judge Chertoff, we will 
certainly talk to you about. I don't think there is anybody 
better to be looking for this.
    Finally, I would just say this is a focused individual, 
policy-based, objective. I think we need to follow the 9/11 
Commission's recommendation on threat and vulnerability 
assessments. I would like to make that case in the context of 
New Jersey. As Senator Lautenberg said, we have got this two-
mile stretch. Whatever the outcome is, we really need to make 
sure that we are allocating those scarce resources that Senator 
Domenici talked about based on the optimization of protecting 
the American people on threat and vulnerability. I think this 
is a man that will do it.
    I have to lobby for something that I have been fighting for 
on chemical plant security. We have seen in recent rail issues 
that the vulnerability that is associated with our 
infrastructure can be deadly just in its normal course of 
events, let alone within the context of a terrorist attack.
    I hope that when it comes to setting priorities, we will 
all work to help Judge Chertoff deal with something that I know 
that he will imbue in how he goes about making his judgments, 
and I hope we will all help him in the day-to-day operations, 
the managerial issues that I think come from a colossally 
difficult job in managing 180,000 people in all of these 22 
groups. I think this is the individual that will do as good a 
job as anybody who could be put forward and I proudly recommend 
him to the Committee. I hope you will ask great questions about 
this balancing issue because I think it is the question of our 
time, but I do think we have the right person and I recommend 
him. Thank you.
    Chairman Collins. Thank you very much, Senator.
    I would be happy to have Senator Lautenberg come join us on 
the panel and I would be happy to excuse Senator Corzine if you 
do need to leave to go on to other events. We thank you very 
much for being here today to present the nominee.
    Judge Chertoff has filed responses to a biographical and 
financial questionnaire, answered pre-hearing questions 
submitted by the Committee, and had his financial statements 
reviewed by the Office of Government Ethics. Without objection, 
this information will be made part of the hearing record, with 
the exception of the financial data, which are on file and 
available for public inspection in the Committee offices.
    Our Committee rules require that all witnesses at 
nomination hearings give their testimony under oath, so Judge 
Chertoff, I would ask that you stand and raise your right hand.
    Do you swear the testimony you are about to give the 
Committee will be the truth, the whole truth, and nothing but 
the truth, so help you, God?
    Judge Chertoff. I do.
    Chairman Collins. Thank you. Judge Chertoff, I understand 
that you have some family members present and I would invite 
you to present them to the Committee at this time.
    Judge Chertoff. Actually, my wife, Meryl, is present. She 
is sitting right behind me.
    Chairman Collins. We welcome you to the Committee today.
    Judge Chertoff. I do have two children. They are at home 
and they should be in school. [Laughter.]
    We will find out when I get back.
    Chairman Collins. Do you have a statement you would like to 
make at this time? If so, please proceed with your statement.

   TESTIMONY OF HON. MICHAEL CHERTOFF,\1\ TO BE SECRETARY OF 
    HOMELAND SECURITY, U.S. DEPARTMENT OF HOMELAND SECURITY

    Judge Chertoff. Thank you. Chairman Collins, Ranking Member 
Lieberman, and Members of the Committee, I am pleased to appear 
before this Committee as you consider the President's 
nomination of me to be Secretary of Homeland Security.
---------------------------------------------------------------------------
    \1\ The prepared statement of Judge Chertoff appears in the 
Appendix on page 72.

    The biographical information and pre-hearing questionnaire of Judge 
Chertoff appears in the Appendix on page 74.
---------------------------------------------------------------------------
    I want to begin by thanking my family, whom we have just 
mentioned, for their support and sacrifice.
    I also want to thank Senators Lautenberg and Corzine for 
their introductions. I have known them and I have been friends 
with them for a long time. They are distinguished public 
servants and their praise means a great deal to me 
professionally and personally.
    I was deeply honored by the President's decision to 
nominate me to be Secretary of DHS. As I said at the time of 
the announcement, if confirmed, I would feel privileged to 
serve with the thousands of men and women who stand watch 
protecting America's security and promoting America's freedom.
    Since September 11, 2001, the challenge of our generation 
has been to defend our country against the evil of terrorism 
while honoring our fundamental commitment to liberties and 
privacy. We must work together to preserve an America that is 
safe, secure, and free.
    I want to take this opportunity very briefly to outline 
some of the experiences which I will bring to bear if I am 
confirmed as Secretary of DHS.
    As Assistant Attorney General of the Criminal Division of 
the Department of Justice from 2001 to 2003, I shared in the 
management of the Department during and in the wake of the 
attacks of September 11. As a consequence, I have had the rare 
experience of managing a critical government organization under 
the stress of a national emergency. I became fully familiar 
with the central elements of the war against terrorism, the 
strategic response, the need to break down barriers to 
intelligence sharing, the imperative of cooperating with other 
agencies, including what became the Department of Homeland 
Security, and the importance of negotiating cooperation with 
our State and local government officials and our counterparts 
overseas.
    While serving as the head of the Criminal Division, I was 
required to evaluate information from many intelligence 
agencies as a prerequisite to operational decisionmaking. As a 
result, the values and the limitations of intelligence are 
familiar to me as a manager.
    Additionally, I reconfigured many of our component sections 
to push resources into the field and to increase our 
operational capacity. My style is to lead by example, and that 
includes a willingness to get into and understand the 
challenges faced in the field.
    I have also dealt directly with the issue of security at a 
State and local level. As a young prosecutor, I worked closely 
with agents from services which have now become part of DHS, 
including the Customs Service and the Secret Service, and with 
first responders, such as State police and local police.
    As a United States Attorney in the 1990's, State and local 
officials joined me in fashioning a comprehensive response to 
addressing urban crime and social problems under programs such 
as Weed and Seed. I have learned to appreciate the perspectives 
of State and local officials because I have shared their 
vantage point, and just as important, from my vantage point on 
September 11 and in the weeks and months that followed, along 
with everyone else in America, I saw and honored the heroism 
and sacrifice of fire fighters, police, and other emergency 
response professionals. If confirmed, I look forward to working 
with them to make the great promise of this still young 
Department a reality for them and those they serve.
    I also believe the Secretary of Homeland Security will have 
to be mindful of the need to reconcile the imperatives of 
security with the preservation of liberty and privacy. As an 
attorney representing indigent defendants, as a legislative 
counsel examining racial profiling, and as a U.S. Circuit Court 
judge, I have committed to fostering liberty and privacy. If 
confirmed, I will draw on this background to promote measures 
that enhance our security while affirming our constitutional 
values.
    Finally, the cornerstone of my leadership philosophy has 
always been this: Respect those with whom you work. That means 
invite candid discussion and advice, make prompt decisions, 
articulate clear goals, expect accountability, and reward 
service.
    If I am confirmed as Secretary, we will work as a 
Department to improve our technology, strengthen our management 
practices, secure our borders and transportation systems, and 
most important, focus each and every day on keeping America 
safe from attacks. I will be privileged to strive under the 
leadership of President Bush to accomplish these goals. I will 
also look forward to working with this Committee and with 
Congress in pursuit of our shared goal of keeping America 
secure and free. I cannot promise perfection in our efforts, 
but I can promise we will work tirelessly and do everything 
within the law to keep our Nation safe.
    I will be pleased to answer questions from this Committee. 
Thank you.
    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.
    Chairman Collins. Thank you. Senator Lieberman.
    Senator Lieberman. Thanks, Madam Chairman. Thanks, Judge 
Chertoff.
    I want to go to some of the questions that have been raised 
about things that happened that you may have been involved in 
while you were head of the Criminal Division at the Department 
of Justice post-September 11. After September 11 and the 
attacks, do you recall participating in the development of the 
investigative strategy at the Department of Justice that led to 
the detention of a large number of people on immigration 
violations, I believe over 760 people?
    Judge Chertoff. Yes.
    Senator Lieberman. In April 2003, the Inspector General for 
the Department of Justice determined that there had been 
wrongdoing in the carrying out of that policy, and that many of 
the detainees had been encountered by investigators 
coincidentally with no connections to leads on terrorism. 
Others were detained based on anonymous tips from the public 
suspicious of Arab or Muslim neighbors who, in their opinion, 
were keeping unusual schedules. Once detained, a significant 
number of the individuals were not allowed to call their 
lawyers or their family, and according to the IG, some were 
physically abused. The detainees were held for an average of 80 
days, according to the IG's report, primarily because of FBI 
delays in clearing them, and in the end, none of the detainees 
were charged in connection with terrorist activities.
    Needless to say, I, and I know most everybody who read the 
IG's report, was very troubled by the findings. I wanted to ask 
you now what was your reaction to the report, whether you think 
mistakes were made in the carrying out of that strategy that 
you helped devise at the Justice Department.
    Judge Chertoff. I am happy to answer that, Senator, and if 
I may, just for a moment, to set the context of the policy as I 
participated in formulating it.
    Senator Lieberman. Please.
    Judge Chertoff. I remember very vividly in the couple of 
days after September 11 being struck by the fact that 19 
hijackers had seamlessly gotten into the country, gotten on 
airplanes, and with the exception of the heroism of the 
passengers in the last plane, had carried out their missions. 
Based on my experience investigating, it seemed obvious to me 
that there was a likelihood that there were other people in the 
country who had assisted them, wittingly or unwittingly, in 
carrying out their mission.
    I also thought, based on the history of al Qaeda, there was 
a very serious risk that there were going to be other attacks, 
including, to be honest, attacks that would be worse than 
September 11.
    So the objective, as I saw it, and I think this was 
generally shared, was to begin the kind of investigation we 
would normally do but compressed in a very tight time frame and 
on a huge scale, using in many cases agents who had never had 
prior experience with terrorism. And the mandate that went out 
was, follow all of the leads that are generated by the 
hijackers and their behavior. For example, if we found pocket 
litter in a rent-a-car that had been used by a hijacker and 
there are phone numbers, follow the numbers, credit card 
receipts.
    Senator Lieberman. Right.
    Judge Chertoff. So that was the plan as conceived and I 
think that it was a reasonable plan under the circumstances.
    What I did not participate in was the actual decisionmaking 
about where people should be detained or how they should be 
housed.
    I did read the IG report when it came out and I was 
troubled to see that certainly the plan as conceived had not 
always been executed perfectly. For example, I understand from 
the report that there were agents who sometimes perhaps took a 
tip without much foundation and used that as a basis to pursue 
investigation. I understand that because I know that, 
particularly in New York, people were laboring under the 
emotional stress of seeing their colleagues killed, under very 
difficult physical conditions. But clearly, that is something 
that is regrettable.
    I understand, in fact, was informed at the time there were 
delays in clearing people, the idea being that everybody who 
was arrested was in violation of the law, so they were lawful 
arrests----
    Senator Lieberman. They were, and let me just clarify, in 
violation of immigration----
    Judge Chertoff. Immigration or criminal laws.
    Senator Lieberman. Right.
    Judge Chertoff. And everybody who was detained was detained 
in accordance with the law, but nevertheless, the policy was to 
try to clear people as quickly as possible so that we no longer 
had to argue to keep them detained. I understand that process 
was slower. In fact, I raised it a couple of times with the FBI 
during the process. But again, they were operating from a 
position of simply never having had to contend with this kind 
of pressure.
    As far as the reports by the Inspector General concerning 
people not getting access to lawyers, that was, frankly, not 
something I was aware of at the time. That is clearly not 
something that should have happened. And to the extent that 
there were instances of guards acting in an improper fashion, 
that is also clearly inappropriate and my understanding is 
that, I think, probably is under investigation as we speak.
    Senator Lieberman. I appreciate your answer. I must say, 
the part of the IG's report that most agitated me was the fact 
that people would be held without a right to counsel, which is 
such a fundamental right in the United States. I appreciate 
your saying that you thought that was a mistake.
    Let me ask you now, as you approach becoming leader of the 
Department in which the Immigration and Naturalization Service 
and other entities associated with immigrants are located, what 
would you do to ensure that similar abuses do not occur again 
in the future?
    Judge Chertoff. Well, I know, first of all, that the 
Inspector General recommended a series of steps. His report 
came out, I think, a matter of days before I left for the 
bench, but I believe that some of those proposals had already 
been put into effect. Others, there was a commitment to put 
into effect. So clearly, we have to again learn the lessons and 
put into effect protocols to prevent these kinds of issues from 
arising again.
    Part of it is intelligence and training. Frankly, if we 
have better databases and people are better trained, and I 
believe that has happened, the ability to identify who really 
has a link to terrorism and who doesn't is going to be 
enhanced. So that is going to eliminate or reduce one set of 
problems. It also will make the clearance problem become 
diminished because we will have a better ability to get at 
databases. We won't be wondering if we have complete 
information.
    I think to the extent, and I think this applies across the 
board, to the extent we deal with people who are properly and 
lawfully detained because of legal violations, there should 
never be any possibility of those people being mistreated by 
guards. I think that if a clear message is sent through the 
investigative and disciplinary process, people will understand 
that a person is presumed innocent. And even if we need to 
detain somebody in accordance with the law because we are 
investigating the possibility of involvement with terrorism, 
that is not an excuse or a license to mistreat that person.
    Senator Lieberman. I thank you again for that. Let me say 
to you that in the aftermath of September 11, as you well know, 
there was and continues to be a lot of agitation about the 
Patriot Act and how it was used to abuse individual freedoms. I 
personally find some but little evidence of that. But I do find 
some significant evidence that deprivations of due process and 
rights occurred, as in this case, under immigration law, and 
that, in fact, immigration law is greatly lacking in some of 
the fundamental due process protections that we associate with 
what it means to be American or be in America and enjoy 
American protections.
    I would just finally ask you if you would consider, with 
everything else we are asking you to do, to bring to bear in 
this new position your law enforcement, your legal, and your 
judicial experience to recommend to the Congress and to the 
administration steps that can be taken to improve the existence 
of due process in the conduct of our immigration laws.
    Judge Chertoff. I would certainly like to work on that, 
Senator.
    Senator Lieberman. Thank you.
    Chairman Collins. Thank you. Senator Warner.
    Senator Warner. Thank you, Madam Chairman.
    Judge, I am privileged to kind of step in every now and 
then and help the District of Columbia with its problems, and 
during the course of the inauguration, the District of 
Columbia, in coordination with Virginia and Maryland, really 
stepped up and did a marvelous job on the questions of security 
and other costs associated with it. You need not respond to 
this question because your able staff, whom I know quite well, 
right behind you are going to take notes. But there is a 
question on the funding and the reimbursement.
    The budgets of the District are quite stretched and I want 
to speak up on behalf of the Mayor and the citizens and the 
security team that he put forth in this and see if we can't ask 
your staff to reconcile that situation.
    Likewise, the Congressional delegations of Maryland and 
Virginia, working with the Representative for D.C., Eleanor 
Holmes Norton, we put in an amendment to the homeland defense 
legislation establishing the Office of the National Capital 
Region. It is basically to coordinate issues regarding homeland 
defense. At some point, not the first week or the second week, 
but at some point, take a look at that because this region has 
the pride of the Nation's capital. So much of the 
infrastructure of our government is in the two States and the 
Nation's capital. I think that it needs to be taken a look at 
and see if you can give it a little personal attention.
    In due course, you will have the responsibility of 
determining whether your current infrastructure space is 
adequate. I represent to you I will be glad to help you on 
that. I think probably some improvement is needed. Your 
predecessor, who did an admirable job, did the best he could in 
a very short period of time.
    And on other budget matters, I would hope to work with the 
Chairman and Ranking Member of the Committee. If you think 
there is additional funding needed, let us bring it to the 
attention of this Committee and see what we can do to work it 
out.
    Today's Washington Post carried a very interesting article 
by a highly recognized and respected journalist. I don't know 
whether you have had a chance to look at it or not, but I was 
rather intrigued here on your opening day to be greeted by this 
valentine that dropped on your desk. [Laughter.]
    It has got a number of critical points in here, but one 
that really caught my eye, and I will repeat it, ``Two arms of 
the Department are gridlocked over efforts to secure hazardous 
chemicals on trains.'' Well, regrettably, we have witnessed 
here recently two incidents where there was a very tragic 
situation on trains. Can you represent to us that you will move 
that agenda item up----
    Judge Chertoff. Yes.
    Senator Warner [continuing]. And take a good look at it?
    Judge Chertoff. I will.
    Senator Warner. Trains are very difficult to put secure. We 
saw that tragic incident of the individual who presumably had a 
mental problem and now caused the death of a lot of people. Our 
Nation's railroads are absolutely a central part of the 
infrastructure and we have got to improve it.
    Another point, and I am just going to ask this question 
just forthright, and that is, again, we both served in the 
prosecutor's office and I watched with great interest when you 
prosecuted cases in my State of Virginia as a Federal 
prosecutor in the area of terrorism. Time and time again, the 
issue of the identification of terrorists comes up.
    I think you have got to face up to this question of the 
national I.D. card and what this Nation should do about it. 
Have you got some views that you would share with us this 
morning on that tough issue?
    Judge Chertoff. Well, Senator, I know it is a tough issue. 
I know that there is legislation, I think in the Intelligence 
Reform Act, that talks about setting national standards for 
drivers' licenses.
    Senator Warner. Yes. That is sort of a fallback, in a way.
    Judge Chertoff. Whether or not the country ultimately 
decides it wants to move to some more standardized 
identification, I think what I have observed certainly as a 
citizen over the years, my own experience has been that the 
drivers' license has become in many respects the standard 
identifying document. In fact, I remember trying to get into--I 
won't even mention the agencies, but certain buildings using my 
credentials and people saying, no, I want to see your driver's 
license instead.
    That suggested the reality is, at a minimum, we need to 
make sure that drivers' licenses are reliable. There is no, it 
seems to me, argument in favor of having unreliable licenses. 
So I certainly look forward to working on that.
    As to the larger issue, because I know it is complicated, 
it is something I would certainly want to study and consider 
very carefully.
    Senator Warner. Well, there are tremendous advancements in 
the technical community as to how to take certain, whether it 
is your eyes, your fingerprints, or so forth, and make that 
I.D. a very credible instrument and one that does not lend 
itself to forgery or wrongful duplication. You said if the 
country decides. You can't sit around waiting for the country 
to decide. Somebody has got to stand up and let the brickbats 
come at them and make the recommendation and hopefully the 
Congress will step up to that tough decision and give you the 
support that you feel the issue deserves.
    I think that the terrorists have an agenda for this Nation 
and I think the work that has been done by Secretary Ridge and 
others has heavily contributed to deterring a major attack. But 
we will have to sleep with one eye open for the indefinite 
future and I feel very comfortable with you there. You are kind 
of like the boxer sitting in his corner and that bell is 
ringing and when you come out, you start swinging, because this 
article this morning points out that apparently more clout is 
needed, and you understand what clout is.
    Judge Chertoff. I do.
    Senator Warner. You do, and you don't need this Committee 
to put that definition before you. You are ready to exercise it 
and see that your cabinet position elevates itself and you take 
on the Secretary of Defense, is that correct?
    Judge Chertoff. I am prepared to use every faculty at my 
command to make sure that we get the job done.
    Senator Warner. Thank you, sir. With that, I think I will 
yield back my time.
    Chairman Collins. Thank you, Senator. Senator Levin.
    Senator Levin. Thank you, Madam Chairman.
    Judge Chertoff, the 9/11 Commission said the following 
about the allocation of homeland security funds. ``Homeland 
security assistance should be based strictly on an assessment 
of risks and vulnerabilities,'' Do you agree?
    Judge Chertoff. That is my philosophy, yes.
    Senator Levin. Now, there are a number of questions which 
have been raised about your actions when you were head of the 
Criminal Division and I would like to spend the balance of my 
time this first round on those issues.
    I think you have acknowledged having conversations from 
time to time with lawyers from agencies outside of the 
Department of Justice who were seeking advice related to 
specific interrogation techniques. Was the CIA one of those 
agencies that talked to you?
    Judge Chertoff. I think, Senator, and this is the position 
I took with the staff, I did speak with lawyers for the 
intelligence community. I don't know that identifying a 
specific agency is--might be getting into betraying a 
confidence, which I feel that I am kind of committed to honor. 
I am certainly, though, and I have indicated that I will be 
pleased to indicate what my position was and what I 
communicated to those lawyers.
    Senator Levin. OK, and we will get to that. Does the 
Federal statute that prohibits torture, 18 U.S. Code 2340, 
apply to the CIA?
    Judge Chertoff. My understanding is that the statute 
applies to official action. I don't have the statute in front 
of me. I have a recollection that there is a geographic 
limitation to the statute, but I may be wrong about that.
    Senator Levin. But that it applies to--I think you are 
wrong about that, but that it does apply to all employees of 
the Federal Government?
    Judge Chertoff. My understanding is it applies to any 
official action. I think it also applies to foreign official 
action.
    Senator Levin. Now, the statute defines torture as, ``an 
act committed by a person acting under the color of law, 
specifically intended to inflict severe physical or mental pain 
or suffering upon another person within his custody or physical 
control.'' A memorandum interpreting that statute by the 
Department of Justice's Office of Legal Counsel, which was not 
your division but nevertheless you are familiar with it, 
obviously, that memorandum was prepared for White House Counsel 
Alberto Gonzales on August 1, 2002. It defined, ``severe 
physical pain or suffering'' as pain rising to the ``level that 
would ordinarily be associated with a sufficiently serious 
physical condition or injury, such as death, organ failure, or 
serious impairment of bodily functions.''
    You said in your answers to pre-hearing questions that the 
Office of Legal Counsel showed you a draft of what you, 
``believe developed into the August 1 memorandum'' to obtain 
your views on how a prosecutor might apply the anti-torture law 
in a practical sense. Is that accurate?
    Judge Chertoff. That is correct.
    Senator Levin. All right. Now, do you agree with the 
definition of torture contained in the August 1, 2002, memo?
    Judge Chertoff. Let me begin by saying, first of all, of 
course, torture is illegal, so we begin with that proposition. 
And, in fact, the President has said that on a number of 
occasions.
    Second, I don't--since I saw a draft of what I believe 
became this memo, I don't remember if that language was in it 
or whether it was used as or purported to be kind of a bottom-
line definition.
    Senator Levin. My question is do you agree, not did you. I 
will get to the ``did'' in a moment.
    Judge Chertoff. With that as a--I do not believe that 
definition is a sufficiently comprehensive definition of 
torture.
    Senator Levin. All right. Now, let us go back in time. Did 
you object to the definition in the memo in 2002?
    Judge Chertoff. As I say, because I don't remember the way 
it was specifically worded, I can tell you that my role in 
dealing with the memo was limited to this. I was asked to 
communicate what my views were as a kind of practical 
prosecutor about how a statute like the torture statute would 
be applied, and my essential position--and again, this is 
talking to other lawyers so it is really lawyer-to-lawyer kind 
of discussion--was that when you are dealing with a statute 
with a general standard and an intent issue, the question of 
good faith and an honest and reasonable assessment of what you 
are doing becomes critical and whether or not a particular type 
of thing that someone proposes to do violates the statute is 
going to depend on whether a prosecutor views it as a violation 
of the statute is going to depend a great deal upon whether the 
particular technique is specifically mentioned in the statute, 
or if it is not, whether the people who are thinking about 
doing it are making an honest assessment about whether what 
they are going to do rises to the level of the statute.
    I guess my bottom-line advice was this. You are dealing in 
an area where there is potential criminal liability. You had 
better be very careful to make sure that whatever it is you 
decide to do falls well within what is required by the law.
    Senator Levin. Wasn't the main purpose of that memo to 
address the definition of torture? How could that issue not 
have come up?
    Judge Chertoff. It is--again, since I was not involved in 
the process of how the memo was generated, I can't tell you why 
it was generated or what the purpose was. And, of course, to 
the extent there was scholarship done or review of cases or 
legal materials, I had no involvement in that and frankly don't 
know what those were.
    I could only give the practical advice that I have, I 
guess, based on my experience over the years in dealing with 
this kind of statute, and that advice was very simple. You are 
dealing with a definition which in some respects is general. 
There is an intent issue in the case. You had better be sure 
that you have good faith and you have operated diligently to 
make sure what you are considering doing is well within the 
law.
    Senator Levin. Last weekend, the New York Times reported 
that you were consulted on several occasions by the CIA as to 
whether CIA officers risked prosecution by using particular 
interrogation techniques. The article stated that, ``one 
technique that CIA officers could use under certain 
circumstances without fear of prosecution was strapping a 
subject down and making him experience a feeling of drowning.''
    Now, it is unclear whether or not they are quoting somebody 
as saying that was your comment, but nonetheless, that is in 
the article. Do you believe that the technique which was 
described in the New York Times article violates the statute?
    Judge Chertoff. Again, and this is--I am confident I was 
consistent about this on the handful of occasions this question 
came up. As a prosecutor, and in dealing with lawyers, as a 
prosecutor, institutionally, my position was not to give 
advance advice about what you can do. It was to look at a 
historic state of facts and then determine whether the statute 
applies. So I was not prepared to say to people, to approve 
things in advance or to give people speculative opinions that 
they might later take as some kind of a license to do 
something.
    My position was limited to making sure people understood--
and these are lawyers I am talking to--that what is critical 
here is the honest good faith assessment by these people of 
what the effects of what they are doing is and how it measures 
against the statute.
    Senator Levin. Let me just wind this question up because I 
am almost out of time. Were you asked whether or not that 
technique, the use of that technique, would subject the user to 
prosecution? Specifically, were you asked?
    Judge Chertoff. I am sure a number of techniques were 
mentioned to me. It is sometimes difficult now in retrospect to 
know what I was told at the time versus what I have now read in 
the copious discussion in the press. But I can tell you that 
whatever was mentioned to me at the time, my answer was exactly 
the same. I am not in a position to evaluate a set of facts 
based on a hypothetical circumstance.
    I will tell you, if you are dealing with something that 
makes you nervous, you better make sure that you are doing the 
right thing and you better check it out and that means doing 
honest and diligent examination of what you are doing and not 
really putting your head in the sand and turning a blind eye.
    Senator Levin. To summarize, you would not, then, have 
given a yes or no answer to that question?
    Judge Chertoff. Correct.
    Senator Levin. Thank you. Thank you, Madam Chairman.
    Chairman Collins. Thank you. Senator Coleman.
    Senator Coleman. Thank you, Madam Chairman.
    I am just going to touch briefly on the torture issue just 
so it is clear and it is very clear for the record here and it 
is certainly clear in your answers. You stated the President 
has said that, ``torture is wrong no matter where it occurs,'' 
and your position on that is----
    Judge Chertoff. Exactly correct. I completely support the 
President's view on that.
    Senator Coleman. And as a former prosecutor, I must say, 
Judge, I have great respect for your analysis and basically 
telling folks, if you are not sure it is a problem, you had 
better act very carefully. You had better look at the statute. 
But my concern, as we have this discussion, is that we get into 
situations where we are judging certain techniques and making 
judgments and coming to speculative opinions about things that 
are in front of us. I think that could be dangerous, so I 
respect your analysis and I respect your judgment.
    I associate myself with the comments of the Ranking Member, 
Senator Lieberman, who talked about this issue of basic notions 
of due process, right to counsel, very basic stuff, no license 
to mistreat, and adhering to those standards are important and 
what I heard from you today was a reflection of that and 
agreeing with that.
    The other side of that is I want to make sure that we are 
not gun shy in these areas. That may not be a great analogy, 
but our Permanent Subcommittee did an investigation of sham tax 
transactions. We had the IRS in front of us and the IRS went 
through a lot of difficulties with this Congress over abusive 
behavior across a number of years and I almost got the sense 
that they were then stepping back where they should have been 
stepping in because of the nature of their experience here.
    So with that fundamental understanding, notions of due 
process, notions of liberty, no license to mistreat, I would 
hope, then, that we are not hesitant to step forward and do 
those things to protect security where they need to be done, 
the Patriot Act being a good example.
    Judge Chertoff. I can say the Patriot Act, for example, in 
the areas in which I dealt with it, was a significant aid in 
allowing us to pursue terrorism cases. To be very brief about 
it, I was surprised shortly after I came on the job to realize 
there were large amounts of intelligence relevant to terrorism 
that I was legally forbidden to see as head of the Criminal 
Division because of this wall between intelligence and law 
enforcement. And when the act brought that down and a 
subsequent court decision brought that down, I was astonished 
at what there was that we could now use to make cases and 
actually prosecute people involved in terrorism because we 
could have the full picture, and I think that is an example of 
a very important step forward.
    Senator Coleman. And it has been effective.
    Judge Chertoff. Yes.
    Senator Coleman. I was very pleased that the Chairman 
decided to ask a fourth basic question--and you said you would 
cooperate with the investigations of this Committee. I take it 
that also means Subcommittees of this Committee.
    Judge Chertoff. Yes.
    Senator Coleman. The Permanent Subcommittee is looking into 
the issue of container security. Ranking Member Levin and I, 
along with the Chairman and Senator Lieberman, Ranking Member 
of the full Committee, have submitted two letters to Under 
Secretary Hutchinson, chairman's letters requesting certain 
documents, so again, I take it that the answer is an 
affirmative across the board and we look forward to working 
with you on that.
    Judge Chertoff. Yes, it is.
    Senator Coleman. Let me just go back to my issue of 
communications one more time. I understand the issue of 
standards for funding that have to be based on risk and 
assessment. My concern is how you get there. My concern is the 
process that is used in making that assessment and that it is 
not a Washington bureaucratic process, but it is one that 
understands what is happening on the ground. That is our 
concern, Senator Dayton and I representing Minnesota, with what 
happened in Minneapolis and St. Paul. Anybody who looks at a 
map or anybody who just knows the name ``Twin Cities'' 
understands that they work hand in hand. You have an assessment 
process that in the end zeroes out completely funding for one 
entity, one urban center, while putting a lesser amount of 
money in the other urban center. So my concern is with the 
process, not with the political decision, are we getting money, 
but is the Department communicating in a way with folks at the 
local level so they really know what is going on.
    One other issue of communication, HBO had a film called 
``Dirty War'' which described the chaos of a dirty bomb----
    Judge Chertoff. I saw that, yes.
    Senator Coleman. It is worth looking at.
    Judge Chertoff. Yes, I saw that.
    Senator Coleman. One of the issues there was this whole 
issue of first responders not saying that they were adequately 
trained, didn't get adequate information. I have had a 
conversation, for instance, with the Hennepin County Sheriff's 
Office, Captain Brian Johnson, who from his perspective still 
feels that the lines of communication between the sheriff's 
office and Homeland Security and local officials needs 
improvement, God forbid we ever have to test that out.
    From your vantage point, can you tell me, give me a sense 
of where the Department can go to satisfy those concerns of 
folks at the local level that there is adequate communication 
with the folks at the Federal level?
    Judge Chertoff. First of all, I totally agree with that 
one, if the keys to our protecting against vulnerabilities and 
our ability to respond if, God forbid, we have an attack, is 
the ability to work in partnership with State and local 
officials, tribal people, and private people, and we can't do 
that if we are not prepared in advance.
    I know, for example, the FBI has Joint Terrorism Task 
Forces and a long history of working across the board. It seems 
to me one of the things I want to make sure about if I am 
confirmed, very soon after I get on board, is to see that we 
have an adequate network of communication with the responsible 
people in each of the States through which we can go back and 
forth in terms of information, not just our sending information 
down, but understanding their practical constraints and what 
they need in order to respond, for example.
    I agree with you, Senator. This is an area where we can't 
use a cookie cutter. Every State is different. I mean, there 
are geographic issues, as you point out, that certainly cry out 
as a matter of common sense for treatment that is different 
from treating two cities that are 500 miles apart.
    I don't know why the Department sometimes misses that. As I 
said, people make mistakes. What I do want to put into place is 
a strong system of feedback so that before we reach a final 
decision, if we are doing something silly, we hear about it. I 
am quite confident that we will always have some disagreement, 
but I would like to believe that at least it is disagreement 
that comes after intelligent discussion and analysis.
    Senator Coleman. But let me add another wrinkle to the 
issue of communication, and first, let me state that having 
worked with the Joint Terrorism Task Force, they are pretty 
effective, certainly in our area, very effective. So it is a 
good model and I get good feedback on that.
    The other wrinkle is an issue for border States, myself, 
the Chairman and Senator Levin, and that is dealing at a border 
area where you have local officials dealing both with Federal 
officials here and folks from another country. In my last visit 
up to Grand Marais, the border area in Minnesota, they talked 
about the difficulty of communicating with the Canadians.
    So you have the issue of local-Federal, and then on the 
other hand you have an international piece there. Can you talk 
a little bit about your sense of where that is at today and the 
kind of things we can do to strengthen the coordination between 
folks at the local level, another country, and folks at the 
Federal level?
    Judge Chertoff. Well, I think that is an important point 
and we see both at the border, obviously with Canada and 
Mexico, and also with respect to cargo, for example, in dealing 
with our friends overseas. We can't do this alone. This is an 
area where I have to say I have some experience from my prior 
job at Justice. We made a real effort to go out and meet our 
counterparts in other countries and form strong working 
relationships, actually putting people overseas to work side by 
side with foreign prosecutors, and that taught me that we 
actually have a terrific relationship with our overseas 
partners when it comes to dealing with the issue of terrorism.
    I think it is important to have not only at the Federal 
level contacts with the Canadian Government and the Mexican 
Government, but also bringing local officials into that process 
so that we can really try to reach some kind of a symmetry. I 
know there are differences in the legal systems, but we have 
certain things that we have to get if we are going to keep our 
borders open and also secure.
    Senator Coleman. There are also differences in 
communication technology. There is a difference in licensing of 
firearms, the whole range of things----
    Judge Chertoff. Yes.
    Senator Coleman [continuing]. That make it very tough for 
folks at the local level up there to have the level of 
coordination they need.
    Judge Chertoff. I know that.
    Senator Coleman. Thank you, Madam Chairman.
    Chairman Collins. Senator Lautenberg.
    Senator Lautenberg. Thank you, Madam Chairman.
    I am satisfied that, with the responses that we have heard 
from Judge Chertoff as to risk-based needs and understanding of 
the need to protect civil liberties even as we go on a search 
to eliminate the possibility of terrorist attacks and 
organizations forming that, having that in mind. So I am going 
to try to just narrow it down to a couple of things.
    I wonder whether, Mr. Chertoff, you have had a chance to 
look at things like the color-coded system. I find it to be 
kind of peculiar, because in the State of New Jersey, we have 
been on orange alert and they have identified buildings and 
locations where we are susceptible to attack and have seen 
commentaries that we uncovered that describes these specific 
places. To me, a color-coded message that doesn't tell you what 
to do doesn't do anything but raise the anxiety level. Do we 
want people to just stay home, not go to the doctor, not go to 
school, not go to work? That is totally impractical and I 
wonder whether you have had a chance to think about that. If 
not, I would commend it to your attention and hope that you 
will be able to get onto that very quickly. Do you have any 
response to that?
    Judge Chertoff. My only brief thought, Senator, of course, 
having experienced it up to now as a--at least for the last 2 
years as a citizen, is I do understand the value of having a 
notification system for our State and local counterparts. 
Obviously, the more specific we can be as to region or type of 
installation, the better off we are. But I do think it is 
important for them to know when there is a heightened level or 
heightened concern.
    The second piece, of course, is the public piece. I 
remember when things weren't announced publicly and then almost 
as a matter of, as the sun rising in the morning, some version 
of what was communicated leaked out in the paper and then there 
was some kind of public uncertainty. I think the value of 
public notification is in part simply to explain to people why 
they may be seeing certain things happening, for example, why 
they may see concrete blocks or more police in front of a 
particular building than they saw the day before.
    On the other hand, I think it is important not to convey 
the impression that a heightened alert means people ought to 
change the way they go about their business. We always 
encourage people to be watchful. The shoe bomber case was a 
great example of how ordinary citizens prevented an attack.
    I am open, of course, to taking a look at the system and 
seeing whether we can refine it in a way that makes it a little 
bit clearer or a little bit less alarming and preserves the 
basic notification function with State and locals.
    Senator Lautenberg. Senator Coleman was talking about the 
communication to the local level and I think the practicality 
of trying to do that is perhaps almost impossible because when 
you think of the number of jurisdictions there are within each 
State, county, local, and regional, and every State, I believe 
has a State police department. Shouldn't that be a kind of a 
focal point and expect that their communications system--that, 
I suggest, is also an area for review for the Judge Chertoff of 
Homeland Security, to see what these States have and where they 
are lacking and alert them to the fact that, hey, we want to 
get the information to you as quickly as we can.
    Now, you have to give us a central place. We can't go to 
the larger cities or more industrialized cities and do it in a 
practical fashion. So I think that also is something that--I 
don't want to give you a lecture here, but I think that kind of 
thing ought to be high on the agenda.
    Judge Chertoff. It will be.
    Senator Lautenberg. They described in the paper today some 
dysfunctionality at the Department of Homeland Security. I saw 
some folks in the audience who I know are members of the police 
union and they wanted to hear your testimony. What about your 
management philosophy regarding Federal workers, the right to 
organize, collective bargaining and so forth? How do you see 
that in terms of your ability to manage this gigantic program?
    Judge Chertoff. Well, I know the Homeland Security 
legislation, of course, allowed the Secretary and the 
Department to take some steps to change the traditional method 
of compensation and things of that sort in order to increase 
efficiency. I also know from my experience that this Department 
will not succeed unless the people with whom I serve, if I am 
confirmed as Secretary, feel that their service is appreciated 
and treated fairly, and I understand that there is some 
controversy and concern about some of the changes that were 
announced in the most recent regulations.
    What I would like to do early on is sit with the union 
representatives--I have certainly worked with unions in the 
past and I understand the important role that they play--and 
see if I can address their concerns. We obviously have stages 
of implementation to go and I think we ought to be informed in 
how we make these decisions by how the people who serve at DHS 
feel about it. That is important. Their morale is really 
indispensible to making the job of the Department work.
    Senator Lautenberg. There has been talk about privatizing 
the--and I am never quite sure where privatizing and public 
fall out, but it is about turning over to the business sector 
the screening operation. Well, we took it away from the private 
sector because it wasn't functioning well. Despite some 
glitches here and there, I think it is quite apparent that 
there are a lot of energetic, committed people out there who 
are doing their job diligently. I wonder whether you have had a 
chance to look at the question of whether or not the screening 
at the Department of DHS ought to be returned to the private 
sector.
    Judge Chertoff. I have not, Senator, but I know it is an 
important question. I also have to say my personal observation 
in the last year, since I often seem to be pulled aside for 
secondary screening---- [Laughter.]
    Is that, actually, I feel I am--while it is not something I 
would willingly experience all the time, I am treated 
professionally and courteously and I have at least had a 
generally positive impression of how the TSA workforce has 
worked.
    Senator Lautenberg. So it is working fairly well, getting 
better, I think, all the time. The question is, does what works 
have to be fixed.
    Judge Chertoff. Again, I have given you my own individual 
experience, which I would not extrapolate from. But I do think 
this is an issue that needs to be seriously considered. Again, 
I am very mindful of the stake that the people who work at TSA 
have in what they are doing and the dedication of their 
service.
    Senator Lautenberg. Madam Chairman, I congratulate you for 
conducting this hearing and my colleagues for the nature of 
their questions and concerns. I think Mr. Chertoff has handled 
his responses very well. I look forward to voting for his 
confirmation.
    Chairman Collins. Thank you. Senator Bennett.
    Senator Bennett. Thank you very much, Madam Chairman.
    First, a totally parochial issue. Last night, President 
Bush signed the emergency designation for the flood conditions 
in Southern Utah, which will change the status of FEMA dealing 
with that particular challenge. I toured the area and it is 
incredibly dramatic to see the power of water when nature 
unleashes it in the kind of force that it came down into parts 
of Southern Utah. There were not a lot of homes destroyed by 
the standards of the Florida hurricane, but if it were your 
home that was destroyed, you would recognize how much of an 
emergency this was.
    So I simply mention that. I am looking forward to working 
with you, with FEMA and your people to see what we can do to 
maximize the aid and to make it come as quickly as possible 
because it is always humbling for a human being to see what 
happens when nature unleashes her fury, even if it is 
relatively self-contained. It was just incredible and dramatic.
    Now, going back a little in my own history and a subject 
you and I have discussed but that I want to discuss publicly 
here in this hearing, as Chair of the Senate Special Committee 
on the Y2K Problem, I became aware of how vulnerable our 
society now is to a computer failure. We worked to prevent what 
would have happened if the computers had failed by accident as 
a result of a programming problem. But as I did so, it occurred 
to me what could happen if the computers failed on purpose. If 
someone got into the American computer networks, which are all 
interlaced now, and brought deliberate harm, the damage to the 
economy could be more serious than the damage from a nuclear 
weapon, more longlasting, more expensive, and more difficult to 
repair.
    I held a hearing on this subject in the Joint Economic 
Committee because of the impact on the economy and I still 
remember very clearly the testimony that we received from a CIA 
witness. Attempting to lead the witness, which as Senators we 
can do. (You lawyers are not supposed to do that, but we 
Senators do that every day.) I said, isn't it likely that the 
next attack on this country will not be a military attack but 
will be a computer attack, a cyber terrorist attack, making 
again the point that it could do more damage to the economy. 
And the witness said, ``No, Senator, that is not likely because 
the terrorists want something that is very dramatic, splashy, 
on television, and television pictures of computers not working 
simply won't do it in terms of their agenda for what they want 
to say to the rest of the world.''
    Chillingly, that testimony was less than 60 days prior to 
September 11 and we have seen that particular assessment 
carried out as the terrorists wanted something very dramatic. 
They picked a symbol of American capitalism, the Twin Towers in 
New York. They picked the symbol of American military might in 
the form of the Pentagon. And we assume that if the other plane 
had not gone down in Pennsylvania, they had also picked the 
U.S. Capitol, where it gets very personal. That is where I 
work.
    I think the response of this country in Afghanistan and 
then Iraq has taken the terrorists--let us put it this way. 
They are occupied in ways that we are not seeing any kind of 
attacks now. Bin Laden is rendered incapable of communicating 
with his network in any way other than carrier pigeon or 
personal courier. He is hiding in a cave somewhere. He cannot 
pick up a cell phone. Zarqawi is obviously occupied otherwise 
in Iraq.
    The combination of the American military and the 
international intelligence community cooperation, working with 
the Patriot Act and others, has prevented terrorism from giving 
us a sequel to September 11. The Sherlock Holmes story about 
the dog that didn't bark, the real news here is the attack that 
hasn't come. And since September 11, we have had a number of 
opportunities, and we have a number of vulnerabilities which 
are talked about here in this hearing, none of which the 
terrorists have been able to exploit because the military and 
the intelligence community has, as I say, got them occupied 
elsewhere, and I like that. I much prefer to deal with Zarqawi 
in the streets of Baghdad than in the streets of Detroit.
    But the time is still coming. The vulnerability is still 
there. And at some point, some terrorist is going to say, all 
right, let us regroup here. Let us look at American 
vulnerabilities. And one major American vulnerability still 
remains our critical infrastructure, 90 percent of which is in 
private hands--Verizon, we are seeing the merger with AT&T and 
SBC, and power plants and chemical plants, all of which are 
dependent upon computers for their security and their safe 
operation, which if they got hacked into could produce 
tremendous devastation.
    So with that lead up, I would like to discuss several 
things with you. One proposal, which I don't expect you to have 
a specific response to other than the one you have given the 
Committee, but the creation of an Assistant Secretary with 
primary focus on this. Is that something that you would give 
careful consideration to?
    Judge Chertoff. I certainly would. One thing--what I would 
like to do is make sure that we have the kind of positions in 
the Department that are capable of attracting people of a 
sufficient stature and quality to really give us value in terms 
of dealing with the cyber security threat.
    Senator Bennett. And do you agree that the cyber security 
threat is not just science fiction stuff, but it is real and 
requires attention at the highest levels of the Department?
    Judge Chertoff. I absolutely do.
    Senator Bennett. Have you given some thought to this, have 
some feelings that you could share with us at this point?
    Judge Chertoff. I have given it some thought and I 
recognize that although I am reasonably competent on a 
computer, there are real limits to my expertise and this is 
really an area which is heavily technology dependent. One thing 
I would like to do actually, in terms of my own staffing of the 
front office, is making sure I bring somebody on board who 
really understands computers and these issues.
     I guess the couple of observations I would make is that I 
believe the Department has in process plans and programs to 
deal with the issue of alerting people to potential attacks, 
which I think experience shows is important, working with 
private sector to develop guards against these kinds of attacks 
and remedies for these attacks. I think that those are all very 
important efforts in terms of dealing with the issue of cyber 
terrorism. And I am also mindful of the fact that we could have 
a combined cyber attack and a physical attack, as you point 
out, where a cyber attack lowered defenses and then there was a 
follow-on physical attack.
    So the clock on all of these things is ticking and without 
promising that everything can be done at once, I do think it is 
a matter that needs to be attended to urgently.
    Senator Bennett. I very much appreciate your statement here 
and getting it into the record. Madam Chairman, the nominee has 
made that pledge to me privately, for which I am very grateful.
    The one last comment I would get into the record, given the 
fact that 90 percent of this critical infrastructure is in 
private hands, the challenge of information sharing back and 
forth between the government and private entities, between 
private entities themselves, and then within the government 
agencies, is an enormous challenge and everybody is putting it 
off under the pressure of more immediate things. I don't know 
how much time the military and the intelligence community can 
buy us for this and I appreciate the Secretary's focus on this 
particular issue.
    Chairman Collins. Thank you. Senator Akaka.
    Senator Akaka. Thank you very much, Madam Chairman.
    Judge Chertoff, today's The Washington Post reported on 
your role in the alleged retaliation against an employee of the 
Justice Department Professional Responsibility Advisory Office 
who disagreed with DOJ interrogation policies. As the author of 
legislation to strengthen protections for Federal 
whistleblowers this troubles me. My question to you is, will 
you pledge to protect whistleblowers and foster an open work 
environment that promotes the disclosure of government 
mismanagement and government illegality?
    Judge Chertoff. Senator, first I had no part in any way, 
shape or form in any retaliation against this individual for 
any reason, let alone giving advice. I am pledged to support 
whistleblowers and to support candid assessments by employers 
when there are problems in the Department. In fact I would like 
to hear about them first because, as I said previously, we all 
make mistakes and the only way we learn is if we get feedback 
and I would rather get the feedback to correct it than have 
people just simmer about it.
    Senator Akaka. Since 2001, I have been urging the 
administration to develop a coordinated response to 
bioterrorism and agriculture security through legislation which 
I reintroduced this session. Improving coordination among 
Federal, State and local agencies is critical to the health and 
safety of Americans.
    What will you do to improve bioterrorism preparedness 
within the Department and do you consider agricultural security 
to be a responsibility of DHS?
    Judge Chertoff. Senator, my understanding is that 
agricultural security is a joint responsibility of DHS and the 
Department of Agriculture as well as other agencies of the 
government. I believe, in fact, there is a sector council that 
deals with this in particular.
    The whole issue of nuclear, biological, chemical 
contamination and weapons is probably generally acknowledged as 
the most serious single threat that we face as a country. We 
have seen that when there have been contamination problems 
historically in private industry they can be deadly as well as 
disruptive on a wide scale. We have also seen though there are 
ways to respond to that in terms of confining the damage, being 
able to track the damage, building in protections within the 
system in terms of how we handle our food. I am not in a 
position to comment on specifics but I do look forward to 
working with, if I am confirmed, with the Secretary of 
Agriculture and other interested agencies in making sure we are 
strengthening that sector.
    Senator Akaka. Senator Lautenberg raised this issue so I 
will not ask a question, but I want to emphasize that 
approximately 3,800 comments were filed on the proposed 
homeland security personnel system regulations, virtually all 
of them in opposition to them. All the unions representing 
employees at DHS have raised strong objections. So I am pleased 
that you have pledged to discuss with employees why they view 
these regulations as unfair.
    Like most Americans, I am troubled by recent reports of 
taxpayer dollars being used for public relations campaigns to 
promote administration policies. Such action is contrary to law 
which forbids the use of appropriated funds for public 
relations purposes.
    Do you know if DHS is using funds for public relations 
campaigns? And will you give this Committee your assurance that 
under your leadership DHS will not use taxpayer money for such 
purposes?
    Judge Chertoff. I am not aware of any such things, although 
I am not at the Department. I will certainly make sure that in 
terms of our public outreach effort we are complying with the 
law in how we spend taxpayer money.
    Senator Akaka. You have been characterized in the press as 
a defender of the use of data mining by the Federal Government. 
As you know, while data mining may identify terrorist threats 
and improve government efficiency, it may also collect personal 
data that could violate an individual's privacy rights. At my 
request, GAO reviewed the data mining activities of the Federal 
Government and confirmed the challenges data mining poses to 
the protection of privacy.
    If confirmed, how will you safeguard Americans' privacy 
rights while using data mining techniques to wage the war on 
terror? And how will you ensure the accuracy and quality of 
data mined from the private sector?
    Judge Chertoff. Senator, I think that is a very sensitive 
issue and needs a lot of thought and I look forward to talking 
to people in the Department about the ways in which we can deal 
with that issue. Obviously, we are concerned about accuracy, we 
are concerned about not intruding unnecessarily into personal 
things. We are very concerned about when we do obtain data, 
even if it is publicly available data, that we not disseminate 
it widely or in a way that is inappropriate. I understand there 
are proposals, for example, to have methods of keeping parts of 
the data separate so that no one person looks at everything 
comprehensively unless you can match them and show that there 
is some reason to suspect that someone is involved in 
terrorism. I think, frankly, technology probably has a 
significant role here.
    It is an important subject. I have certainly had reinforced 
to me in the last 2 weeks how important privacy is and how 
painful it is to lose your privacy. I think it is very 
important that we protect the privacy of Americans and I want 
to make sure that as we conduct ourselves in this potentially 
very valuable area that we are doing everything we can to 
protect that value.
    Senator Akaka. According to press reports, the 
administration will seek $2.4 million in fiscal year 2006 to 
create an Office of the Assistant Secretary for Policy, 
Planning, and International Affairs. International coordination 
is an operational function now being handled by 12 different 
offices in DHS. I agree DHS needs a dedicated policy office, 
but I see international affairs as its own function.
    If you take a suspected terrorist off a plane in Bangor, 
Maine and return him to his home country, we need to know his 
next steps. This can only happen with international 
coordination. I would appreciate your commitment to review and 
to report back to this Committee on how you propose to 
streamline DHS's international affairs function, and also your 
vision of DHS's international activities. I would look forward 
to that.
    Thank you very much for your responses.
    Judge Chertoff. I will do that.
    Senator Akaka. Thank you, Madam Chairman.
    Chairman Collins. Thank you. Senator Domenici.
    Senator Domenici. Thank you very much, Madam Chairman.
    Let me talk a minute about your Department and how you are 
going to get the kind of information you need. First, I want to 
add to the thoughts of Senator Bennett when he alluded to why 
we have not had anything happen since September 11 here at 
home. I would have added one thing. I think that homeland 
security activities, at least those activities under the 
general rubric of homeland security, even while the Department 
was being put together, had some effect. I think we had an 
impact on the potential operation of terrorists within the 
United States. It is more difficult today for them to plan and 
execute a terrorist activity in America than it was when 
September 11 occurred, whether we are all prepared to say you 
are in perfect shape or not, I think it is tougher for 
terrorists to get things done. I hope it gets even more 
difficult.
    Having said that, I drive around the cities in my home 
State and I am a captive, as all of us are, to what is being 
done on our streets and to our buildings in the name of 
security. Cities are closing streets, building barriers, 
spending thousands of dollars digging up streets so we can put 
in new lampposts that cannot get knocked over. I wonder across 
America how many thousands of things are we doing in the name 
of national security, and I cannot fathom how many.
    But I am very concerned that, as we prepare ourselves, we 
have somebody giving direction as to what we ought to do and 
what we ought not do. We need that, not just down at the grass-
roots level where people think there is a danger so they spend 
money, or they do things.
    Now I do not know how to cope with that; I cannot figure it 
out in my mind. But it does seem to me that you need, on behalf 
of our country, a strategic plan that talks about what the 
dangers are and how we ought to implement programs to assess 
the risk. Is that true or not?
    Judge Chertoff. I completely agree with that. I think in 
the foundation, from a policy standpoint, of everything we do 
has to be a disciplined, strategic vision of what our 
priorities are, because as I think a number of Members of the 
panel said today, we cannot protect everything, everywhere, 
every time. We have to make choices, so we have to be 
disciplined and intelligent about the way we make those 
choices, and that means having a strategy.
    Senator Domenici. Now I want to talk about first 
responders. A national program of first responders--a Federal 
program--did not come about after September 11. It already 
existed 5 years before the attack. We passed a bill here in the 
Senate. I can remember it vividly. It was done on the floor as 
an amendment, providing $165 million in funds. Senator Nunn and 
I added that amendment. It created homeland securities to be 
determined by the Defense Department. We did not know where to 
put the money, which city should have homeland security. But we 
thought we had a lot of security. In fact to tell you the 
truth, we thought we had a homeland security operative in New 
York. Now we are told maybe we did, and maybe the attack would 
have been worse if we did not have that operative.
    But I wonder if it is not also your responsibility to 
determine whether first responder activities are really 
effective. How do we judge whether we have the right things in 
place? We know it was communication, or lack of it; that we all 
need to be on the same wavelength.
    I think it is also very important that we not mislead 
ourselves into thinking we have got first responders in 100 
major cities and surrounding 50 other risk areas only to find 
that everybody knows how to make a lot of noise, and ambulances 
will all go to an attack site, then we will have more 
ambulances and you will not be able to travel the streets.
    Do you agree that we ought to make sure what we have got is 
the right thing? And how do we do that?
    Judge Chertoff. I do agree, and lot of this involves our 
working again with State and local officials, providing them 
with information, providing them with benchmarks, so there is 
an understanding of what they need to be prepared for. And also 
looking for mutual cooperation. Not every town has to have a 
full panoply of things. Sometimes it may make sense for a 
region or a particular area to be able to cover something. I 
think these are things where the Department, working with State 
government can really add value at the local responder level.
    Senator Domenici. I submit to you that, in all deference to 
local involvement, many localities will judge it in terms of 
how many fire engines we gave them, and how many new radio 
systems we gave them. All that is good, but I think we need 
some kind of a simulation process where we find out whether 
what we have will work, and I urge that you try to find out 
some way to do that.
    My next question has to do with how you gather information 
that you need. Let me talk about technology. There is a 
tendency, whenever an agency is created as big as yours that 
needs new technology, to build your own new technology in-
house. I think that is a terrible mistake. We have so many 
sources of science and technology, and the evolution of it. 
They are out there working on things that will help you. The 
problem is that we do not have a system wherein you call upon 
them to share that technology, or that they feel free to give 
you the technology they have.
    So I urge that there be a very serious effort to see where 
the technology development is, and that you capitalize on what 
is available, and that you charge existing research programs 
with doing things for you. Do you understand what I am talking 
about?
    Judge Chertoff. I absolutely do and I agree.
    Senator Domenici. Now I happen to have two national 
laboratories in New Mexico that have a lot of research they do, 
and they make it available to DHS. But sometimes they tell us, 
nobody is interested. They tell us Federal agencies are doing 
their own research, or----
    Judge Chertoff. We should be interested because there is a 
lot of expertise out there in the private sector, and we would 
be shortchanging ourselves and the public if we did not look 
there for some solutions.
    Senator Domenici. There are both public and private 
capabilities. I did not mean just public.
    My last observation has to do with, how do you know what 
the risks are? I do not think that you are supposed to find out 
what the risks are on your own, or we would not need a CIA, 
right? Or we would not need other intelligence-gathering 
operations.
    So I would hope that your Department would be on a path 
that says, we have these other formidable agencies that are 
supposed to be gathering the kind of information we need as to 
what risks are out there. So you would not be preparing for 
terrorists and terrorist activities that the intelligence 
people tell you do not exist. Because we could dream them up, 
right? We have plenty of fertile minds. But are they real or 
not? I would just like your thoughts about that because I think 
it is a very important issue, but I am not in your shoes.
    Judge Chertoff. Senator, the cornerstone of our ability to 
prioritize is understanding what the risk really is. From 
outside, I was a very strong supporter of the Intelligence 
Reform Act which the Chairman and Ranking Member were so 
instrumental with the Committee in moving forward, because I 
think we do need to have a central location for intelligence.
    My vision for DHS is twofold. One, DHS itself will collect 
information and intelligence, partly through its network of 
State and local partners. But also, my understanding is DHS has 
people at the new NCTC. They need to be full participants 
because only DHS can pull the information it needs for its 
particular analytical functions. DHS cannot count on people in 
the middle, who do not understand the needs, to push the 
information out. So that is my approach to the issue of 
intelligence.
    Senator Domenici. Thank you very much. Thank you, Madam 
Chairman.
    Chairman Collins. Thank you.
    Senator Dayton. Thank you, Madam Chairman.
    Judge, the February 14, 2005 issue of the magazine The 
Nation has an article which alleges that in June 2002, just 
prior to John Walker Lindh going to court regarding an evidence 
suppression hearing that the Justice Department's Criminal 
Division, under your direction, offered him a deal reducing his 
charges if he would not appear before that judge and allegedly 
describe his experiences of being tortured or abused by U.S. 
authorities after his capture. Is that accurate?
    Judge Chertoff. My recollection is somewhat different, not 
surprisingly. I hasten to add, I do not have the documents in 
front of me. But let me begin by saying, this is a completely 
public and transparent issue. Obviously, the arrest of John 
Lindh was national if not international news. All the 
proceedings took place in open court.
    There was a point in time that I was made aware by the 
lawyers working on the case that they had discovered that while 
Lindh was in custody of some military personnel there were some 
photographs taken of him, and he had been held perhaps in the 
battlefield in difficult conditions. I do not remember exactly 
what they were. I do not remember there being an allegation of 
torture at the time.
    These discoveries were disclosed to the defense by the 
government. The government made that information, what they 
had, available to the defense. I believe they were presented to 
the judge in papers which were filed in open court and fully 
available to the public.
    The decision to reach a plea agreement was not driven by 
the desire to keep a secret of something that had already been 
publicized, but was, as is the case with all decisions to 
accept a plea, looking at the time and effort that would be 
necessary to litigate the case versus whether the government 
could substantially achieve its results in the case by getting 
a plea. In this case, I think the plea required not only a 
sentence of approximately 20 years but actually cooperation by 
Lindh.
    Senator Dayton. But the issue is--have you seen this 
article, sir?
    Judge Chertoff. Someone showed me the article.
    Senator Dayton. One of the defense attorneys for Lindh 
asserts that you demanded, reportedly at the Defense 
Department's insistence, according to what defense attorneys 
were told, that Lindh sign a statement swearing he had ``not 
been intentionally mistreated'' by his U.S. captures and 
waiving any future right to claim mistreatment or torture. The 
article goes on further, you attached a ``special 
administrative measure'' essentially a gag order, barring Lindh 
from talking about his experience for the duration of his 
sentence. Is that accurate?
    Judge Chertoff. All I can say, Senator, is I do not have 
the plea agreement in front of me. It is not uncommon in my 
experience to have circumstances where in the course of a plea, 
a defendant who has raised claims that the police somehow 
committed misconduct, will waive any claim that it is 
intentional. So I do not think it is uncommon. But again, I do 
not have the plea agreement.
    Senator Dayton. This was not a matter of police abuse, 
which is a serious matter. This was a matter of alleged torture 
by U.S. authorities, which is important on this case because it 
preceded some of the other incidents reportedly of torture that 
had not then come to light. I just would like to speak----
    Judge Chertoff. Senator, let me just be clear.
    Senator Dayton. No, let me just finish here. Because when 
you talk about pictures and the like, these allegations of his 
torture included keeping a seriously wounded and untreated 
Lindh who was malnourished and dehydrated, blindfolded and duct 
taped to a stretcher for days in an unheated and unlit shipping 
container and reportedly threatening him with death, that 
defense lawyers said was known to you, known to the 
prosecution, and that desire to suppress that from coming--you 
talk about transparent transactions--suppress that information 
from coming to public light was what drove this offer.
    Judge Chertoff. Senator, I do not believe that is correct 
for the following two reasons. One, first of all my 
recollection is, and I think I directed that it be done, that 
the appropriate military investigative authorities were made--
if they were not already made aware, were made aware of this, 
so they could conduct an investigation and discipline the 
people who had done something wrong, which is what we always 
do.
    Second, it could hardly have been kept secret because it 
was discussed in papers filed in open court at considerable 
length. The plea and everything else was put on the record in 
front of the United States District judge. So I have to say the 
idea that somehow this was to keep something secret does not 
jibe with my memory. My memory is the government forthrightly, 
the prosecutors in the case, who were not involved in the 
underlying conduct, forthrightly disclosed it. The matter was 
litigated openly in front of a United States District judge, 
and the appropriate military authorities who investigate 
misconduct by military personnel, which unfortunately does 
occur from time to time, were given the information about the 
case and pursued their investigation.
    So there was in no sense an effort by my lights to keep any 
of this hidden, because in fact I recall it being public.
    Senator Dayton. Are you aware of any other cases, instances 
in which the Justice Department offered, negotiated a plea to 
anyone for suppression of evidence or information regarding 
alleged torture or mistreatment?
    Judge Chertoff. No, I am not aware of any other instance, 
and I do not think that--as I said, this concept of, in the 
context of a plea, requesting that somebody waive a claim, I've 
previously encountered that in just ordinary, garden variety 
context with the criminal justice process. It is not something 
that is particularly rare, I think.
    Senator Dayton. Regarding the Patriot Act. In retrospect 
now, are there areas, aspects of that law that you believe 
should be curtailed or eliminated? Or conversely, are there 
areas that are still inadequate or insufficient that should be 
expanded or added?
    Judge Chertoff. Again, my experience with the act is a 
couple of years old. In the areas in which I worked I thought 
the information sharing, the additional enhanced criminal 
penalties actually worked quite well. Particularly in 
information sharing, I think was critical in allowing us to 
pursue additional terrorism cases.
    With respect to criticism of the act, my position is always 
that if there is something that we have not anticipated that is 
going on that we do not know about, I am always interested in 
hearing about it and I am always open to adjust. I do not know 
that I am aware as I sit here of any particularly systemic 
criticism of the act that comes to mind.
    Senator Dayton. Anything that you are aware of that is 
lacking that should be expanded or added?
    Judge Chertoff. I know the Congress has added some 
additional measures. Again, because I am 2 years out of date I 
am not sure I am perhaps in a position right now to articulate 
things that I think need to be added.
    Senator Dayton. I will reserve my questions for the second 
round. Thank you, Madam Chairman.
    Chairman Collins. Senator Carper.
    Senator Carper. Thanks, Madam Chairman.
    Judge, good morning. How are you holding up?
    Judge Chertoff. Good morning. Fine, thanks.
    Senator Carper. I rode down on the train this morning with 
one of your colleagues from the Third Circuit Court, a fellow 
named Becker. A senior judge who is doing really great work, as 
some of my colleagues know, on asbestos litigation reform. I 
have been in and out of this hearing--I apologize for that--but 
sitting in with the Judiciary Committee to try to find common 
ground on that subject. I think we made a little progress 
today. And I have got a hearing going on on clean air, trying 
to bridge the difference between the administration's proposal 
and the proposal that some others of us have taken on clean 
air.
    Anyway, we were coming down on the train today--and I know 
you travel on the train a fair amount--and I asked Judge 
Becker, did you feel safe today? He said, fairly safe, 
considering the company I am with.
    You and I talked earlier this week about rail security; 
something I often raise with Secretary Ridge and others, as my 
colleagues will tell you. We have got all these folks, 
especially in the Northeast corridor, who ride the rails, 
intercity passenger rail, Amtrak, and also a lot of folks who 
ride transit to get to home, to work, and other places. We have 
done, I think, a pretty good job of addressing security needs 
around airports. We are trying to do a pretty good job around 
ports. We have been slow on the uptake with respect to 
intercity passenger rail and transit. I just want to ask you to 
share your thoughts with us about the adequacy of what we are 
doing, what we might do more of, different, less of.
    Judge Chertoff. I am mindful of the terrorist attack in 
Madrid which exposed the attractiveness of rail as a target. I 
am mindful of the incident in South Carolina some weeks ago 
involving chlorine. And then there was the incident on the 
train tracks in California. So it is hard not to be aware that 
trains have a vulnerability and have attractiveness as a 
target.
    There are obviously issues with respect to protecting 
trains that are different than airplanes. Again, I think this 
is part of our need to have a comprehensive assessment of what 
our infrastructure, transportation and fixed is, and to take a 
priority-driven approach. When we look at this issue I 
understand there are pilot projects with respect to screening, 
for example. So we want to look at the possibility of screening 
for explosives and radioactive and chemical materials.
    There are particular points in the rail corridor, tunnels 
and bridges, which may be particularly vulnerable. We need to 
assess what we can do to strengthen those and to protect them.
    Then I think, again, we need to work with State and local 
partners in terms of making sure, for example, that our 
trackage is adequately covered and is cut back. There are maybe 
some technological things we can do.
    Again, this is part of an overall look at what we are doing 
to protect our country, and I think this is an issue we need to 
focus on.
    Senator Carper. Thank you. Just a follow-up to that, if I 
could. You may be mindful that the Congress has appropriated 
for the current year an amount of money for transit. We have 
also appropriated a much smaller amount of money to support 
intercity passenger rail, notably Amtrak. The administration's 
budget that will be submitted to us probably in a week or so 
apparently will zero out entirely Federal support for Amtrak, 
both on the operating side and on the capital side. Even with 
$1.2 billion a year in support, Amtrak has a tough time 
supporting the capital infrastructure, the trackbed, overhead 
wires, signaling systems, the rolling stock, all the repair 
shops, train stations and all, with the support of the $1.2 
billion.
    The administration thinks that Amtrak can get by without 
any Federal support now. And meanwhile we need to improve the 
quality of our security on our trains, and better surveillance 
in our tunnels, better ability to escape, to breath in tunnels 
should people have to evacuate trains, find an exit, better 
surveillance of bridges. Simply just having dogs who are 
available to--sort of low-tech but it actually works--to use 
those where we need to, or just have some more Amtrak police.
    I am not sure how we pay for all this. I know we are having 
a hard enough time paying for it when Amtrak received, as they 
are this year, $1.2 billion. The idea that they are going to 
run the trains on time and meet the security needs with nothing 
from the Federal Government, in my own judgment is just 
ludicrous. You do not have to comment on that.
    My question though is this, who should be responsible for 
paying for the extra security precautions that we are going to 
be taking with respect to intercity passenger rail and with 
transit?
    Judge Chertoff. I am not sure as I sit here I have 
sufficient knowledge to know how, particularly when you are 
dealing with rail, how things are allocated between departments 
and to what extent the responsibility, for example, for 
trackbed and things of that sort rest with State and local 
government.
    Clearly, in this area we are always dealing with finite 
resources. There is always more that you could use. I think the 
issue will be to, again, evaluate where, even in the rail 
context, where our priorities are, what are the most vulnerable 
issues? Some of what we need to attend to may be a response and 
recovery, escape and things of that sort. And low-tech things 
like dogs sometimes work pretty well too, and I think dogs are 
comparatively inexpensive.
    So I think we need to look at all of those ways of 
approaching the problem as well as funding that may be 
available in other departments, and State and locally, in 
fashioning our response.
    Senator Carper. Thank you. Let me turn to another issue. 
Senator Collins and I have worked with our colleagues over the 
last year to write a formula, as I mentioned to you yesterday, 
to distribute funds to States and to first responders. We have 
tried to provide an acknowledgment that all States, even little 
States like Rhode Island and Delaware get some minimum support 
for these purposes. But to also acknowledge that there are 
different levels of risk and to try to figure out how we 
provide a funding formula that reflects and respects those 
different levels of risk.
    The legislation that we crafted was included in the 9/11 
Commission bill, went to conference. I think the House had a 
different approach and in the end both approaches dropped out 
and we ended up with nothing. I would welcome any advice you 
would have for us, what counsel would you have for us, from the 
perspective of Secretary, in readdressing this issue?
    Judge Chertoff. If confirmed, obviously, I would look 
forward to working on this issue, which I know is one of the 
most burning issues faced in this area. As I have said I think 
in some of my individual conversations, I believe--my 
philosophy is a risk-based, vulnerability-based system. I think 
that is what the 9/11 Commission talked about. And a cookie-
cutter approach that says, we just do it based on population or 
something like that I think is not the most effective way to 
deploy these funds.
    We need to be sensitive to where the infrastructure is and 
what the potential damage and risk is. Sometimes that may be a 
function of population density, sometimes it may be 
infrastructure that is located in a State which does not have a 
large population but which serves a large population. So we 
have to consider that. We have to consider how vulnerable it is 
inherently. We have to consider what is already in place to 
protect and respond.
    Then there is the intelligence piece of risk which is to 
consider what we know historically and currently about what 
kinds of things al-Qaeda is targeting. I understand that every 
community believes its infrastructure is the most important 
thing. But I think as we develop our protocols further and we 
get a better sense of what our infrastructure is we can have a 
more nuanced and more careful approach to allocating funds.
    Senator Carper. My time has expired. Thank you very much. 
Good luck. Madam Chairman, thank you.
    [The prepared statement of Senator Carper follows:]

              PREPARED OPENING STATEMENT OF SENATOR CARPER

    Thank you, Madam Chairman. I remember this Committee coming 
together more than two years ago to set in motion what is probably the 
largest, most significant reorganization of the Federal Government 
we've ever attempted--the creation of the Department of Homeland 
Security. We had our share of disagreements back then but I think the 
Department we created is now able to prevent and respond to terrorist 
attacks more effectively than the Federal Government was before 
September 11.
    I also remember sitting in this room just before the Department of 
Homeland Security officially came into being and talking to Secretary 
Ridge at his nomination hearing about how daunting the task ahead of 
him truly was.
    Judge Chertoff, the task you have ahead of you, should you be 
confirmed, is no less daunting.
    Since September 11th and the creation of the Department of Homeland 
Security, we've made great strides in a number of areas. In countless 
others, however, we have our work cut out for us.
    This Committee held an excellent hearing last week during which we 
asked a panel of experts to look back at how successful the Department 
of Homeland Security has been in meeting its mandate. Some of what we 
heard last week led me to believe that we have a long way to go before 
we attain the efficiency and improved coordination we envisioned when 
we crated the Department. One witness last week even went so far so to 
say that weaknesses in management at the Department ``cut against the 
core rationale for passing the Homeland Security Act of 2002--gaining 
the synergy of having most of the key Federal agencies with homeland 
security responsibilities grouped in one department.''
    A November report from the Department's Inspector General discusses 
how key management officials, such as the Chief Financial Officer and 
Chief Information Officer, are basically unable to do their jobs at 
times. The CIO apparently doesn't even have the authority and resources 
necessary to control and coordinate the IT purchase and deployment 
decisions made by the various Department components.
    A recent report from the Heritage Foundation and the Center for 
Strategic and International Studies discusses how Homeland Security 
managers have had difficulty developing policy and implementing it 
throughout all of the Department's component agencies.
    You'll probably hear today, Judge Chertoff, about a number of our 
priorities that we believe the Department of Homeland Security should 
be dedicating more time or money to. I have some priorities of my own 
I'll be discussing, chief among them being the gaps in security we have 
today in our Nation's rail and transit systems.
    Thinking about issues like rail security, I have to say I don't 
envy you at all, Judge. Should you be confirmed, you'll be taking on 
this important job at a time when the government is facing record 
budget deficits and the Department of Homeland Security will likely be 
forced to work with a lot less money than we'd all like to give it.
    Throughout this hearing, then, I'll look forward to hearing from 
you some details about how you would prioritize, plan, and manage 
during such a challenging time.

    Chairman Collins. Thank you, Senator.
    Judge Chertoff, we have two choices at this point. My 
inclination is to keep going, to begin the second round of 
questions, and I think with some good fortune we could be 
finished within an hour. The alternative is to break for lunch, 
or if you and our court reporter need a shorter break--she 
indicates that she is fine, so we will give you the tie-
breaking vote.
    Judge Chertoff. I am very happy to proceed as we are.
    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 
program 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.
    Chairman Collins. Thank you. Senator Lieberman.
    Senator Lieberman. Thanks, Madam Chairman.
    First, Judge Chertoff, I want to congratulate your wife for 
now approaching the end of 3 hours of listening attentively to 
not only our questions but your answers. This is very 
admirable.
    Judge Chertoff. She deserves a lot of commendation for her 
behavior throughout this entire process. I appreciate it.
    Senator Lieberman. I am sure.
    I want to come back to something else that occurred while 
you were head of the criminal division, briefly. Again it has 
been in the public discussion the last few days. Senator Levin 
spoke to you about the memo of August 2002 from Mr. Bybee of 
the Office of Legal Counsel and your involvement in questions 
that might have been raised as a result of it, or from the CIA.
    There was apparently a second memo or letter that Mr. Bybee 
issued which, though classified, I gather or it has been 
alleged, discussed rather than the broader definition of 
torture, specific methods of torture and whether they were 
acceptable.
    I wanted to ask you, to the best of your recollection were 
you consulted in the construction of that memo or letter?
    Judge Chertoff. No. I have never seen it. The only thing, 
which I mentioned to the staff is, if I said something to 
somebody and then they took what I said and unbeknownst to me 
put it in a memo, that is something I would not know. But I was 
not aware of a memo like that being prepared and was not 
consulted about it.
    Senator Lieberman. Thank you for that. So just to clarify, 
both in terms of this memo, but more to the point of the first 
memo, to your recollection were you asked to pass judgment on 
any specific delineated methods of treatment of prisoners that 
some might consider torture? We mentioned water boarding 
before. There is a whole list. Or was not on a question of the 
general definition?
    Judge Chertoff. I cannot tell you what was in the heads of 
the people that were asking me, and whether people hoped to get 
some kind of a definitive answer. I can tell you that my 
response was as it is. First of all, given my institutional 
position I made it very clear torture is illegal and if you 
violate the statute you are likely to get prosecuted. I was not 
prepared to approve in advance techniques based on 
hypotheticals. Again, these were discussions with lawyers so I 
expected them to understand why I was not going to do that.
    My practical advice in dealing with the statute, again, 
given the way it is worded, was that in general when 
prosecutors look back to judge whether or not to prosecute they 
want to have honest and good-faith behavior.
    Senator Lieberman. So that if you had been asked about some 
of the other delineated forms of treatment of prisoners that 
might be considered torture like sleep deprivation, sensory 
deprivation, etc., to the best of your knowledge and 
recollection your answer would have been the general one that 
you just gave?
    Judge Chertoff. Correct.
    Senator Lieberman. Not to say that that would have made it 
or that would not have made it.
    Judge Chertoff. Right.
    Senator Lieberman. I do recall that you said before--and 
correct me if I am paraphrasing it wrong--that you basically 
said to them, ``if you are nervous about it, be careful.''
    Judge Chertoff. I think that is right. The one other thing 
I should add, if someone had----
    Senator Lieberman. ``Cautious'' is really what I want to 
say. In other words, I am hearing that almost as if you were 
saying to them, ``if you do not want to come close to law and 
you are nervous about something, you would be wiser not to do 
it.''
    Judge Chertoff. Effectively I was saying--I cannot say it 
any differently than I said it--basically you need to be very 
careful if you are in that area.
    The one thing I want to make sure is clear, and I do not 
have a specific recollection of this, but if somebody had said 
something that was specifically forbidden in the statute I 
think at that point I probably would have said, you probably 
better take a good look at the statute.
    Senator Lieberman. But you do not have a recollection that 
you were asked about specific conduct, or do you?
    Judge Chertoff. No, I was asked about some specific 
conduct. It is difficult for me to separate what I was told at 
the time from what I have subsequently learned.
    Senator Lieberman. That is what you said before.
    Judge Chertoff. But my position was that I did not want to 
be pulled into the discussions of hypotheticals.
    Senator Lieberman. Let me go to the subject of funding, 
which is on everybody's mind. Most homeland security is local, 
is a maxim that you will find followed here in Congress. I want 
to share with you an experience that we had and just ask you to 
take a look at it. In addition to the general drop in homeland 
security funding which affected all of the country, the Urban 
Area Security Initiative was administered in the last year in a 
way--and I believe I have got this correct--that eliminated 
from consideration communities under 225,000 in population. So 
to be real direct, that meant that the city of New Haven in 
Connecticut, which had received a substantial grant under that 
program in the previous year, was eliminated.
    I want to ask you to take a second look, not at that 
specific decision but at the formula, because it does seem to 
be--and this is the other side of the question Senator Collins 
raised--that the smallness of the size of a community ought not 
to automatically eliminate it, assuming it also has risk 
factors included in it. So my question is, would you take 
another look at that formula?
    Judge Chertoff. Yes.
    Senator Lieberman. Thank you.
    Finally, we referred earlier to risk at chemical plants, 
which has been a real concern of one of your two Senators that 
introduced you, Senator Corzine. Last week Richard Falkenrath, 
former homeland security advisor to President Bush, told the 
Committee we have done essentially nothing in this area and 
made no material reduction in the inherent insecurity of our 
chemical sector. He said that if a terrorist were to attack 
that sector, ``There is potential for casualties on the scale 
of, or in excess of 9/11.''
    So I want to ask you if you have thought about this, and 
whether you agree this should be a top priority as Secretary, 
and that the Federal Government ought to play a more active 
role in achieving security at chemical facilities?
    Judge Chertoff. I have thought about it. I am not in a 
position to judge, in fact, what the Federal Government has 
done to date in this. I understand there are programs underway 
to work with industry to upgrade with respect to security, 
hardening, and response.
    But I do think this--and again I can draw on my personal 
experience--I do agree that this is an area of potential 
significant risk. I think the Federal Government needs to be 
able to use a whole range of tools to bring the industry up to 
an appropriate standard. At a minimum we have to give them--I 
know there are surveys and guidance that we can give them of 
things they can do on their own. I think there are incentives 
we ought to consider, including working with the insurance 
industry.
    My experience with Y2K was, a lot of industry woke up when 
the insurance people started to talk about what they were 
prepared to insure and not insure.
    But also I understand the President has indicated that he 
supports, if necessary, the use of authorities to require 
chemical companies to come up to certain standards, with 
appropriate penalties if they do not do so. So I think the 
President has indicated that that kind of approach, if 
necessary, would be appropriate to make sure our chemical 
plants are safe.
    Senator Lieberman. We will look forward to working with you 
on that, as well as everything else we talked about this 
morning. Thank you very much.
    Chairman Collins. Thank you. Senator Levin.
    Senator Levin. Thank you, Madam Chairman.
    Judge Chertoff, I want to share with you and have you look 
at a document which I also would like to be given to the 
Members of the Committee up here. It is an extraordinary 
document. I think probably an astounding document. We gave a 
copy of this to your staff I believe yesterday or this morning.
    It contains a series of three FBI E-mails, memos that were 
written in May 2004,\1\ but it is quite clear it is referring 
to events that occurred probably in 2002. The document is one 
of many that were released recently as part of a Freedom of 
Information Act request by the ACLU. It is redacted in places. 
It clearly questions the interrogation techniques that were 
being used at Guantanamo Bay, called Gitmo, that were witnessed 
by the FBI agents. And the document showed that the FBI was 
really seeking to distance itself from those techniques.
---------------------------------------------------------------------------
    \1\ The series of three FBI E-mails provided by Senator Levin 
appears in the Appendix on page 62.
---------------------------------------------------------------------------
    I want to go through this document with you, Judge. On page 
1, third line down in the text, the author of the E-mail is 
someone, T.J. Harrington of Division 13 of--excuse me, it looks 
like. I cannot see who it is from but it was written to T.J. 
Harrington, Division 13 of the FBI.
    Here is what it says. I went to Gitmo with blank early on 
and we discussed the effectiveness of blank with the 
supervisory Special Agent. We--that is the behavioral analysis 
unit--and the ITOS one, which is the International Terrorism 
Operations Section one, it also met with Generals Dunleavy and 
Miller explaining our position, law enforcement techniques 
versus the Department of Defense. Both agreed the bureau has 
their way of doing business and the Department of Defense has 
their marching orders from the Secretary of Defense. Although 
the two techniques differed drastically, both generals believed 
they had a job to accomplish. In my weekly meetings with the 
Department of Justice we often discussed blank techniques and 
how they were not effective or producing intel that was 
reliable.
    Then the memo goes on with a series of blanks which appear 
to be individual's names that have been redacted but with the 
abbreviation SES after the names, indicating that the 
individuals were members of the Senior Executive Service.
    The document then says that the redacted names were of 
persons from the Department of Justice Criminal Division. That 
was your division. And that they ``attended meetings with the 
FBI. We all agreed blank were going to be an issue in the 
military commission cases. I know blank brought this to the 
attention of blank.''
    Then on page 2 of this memo in the middle the author writes 
the following, that ``we spoke to FBI Office of General Counsel 
with our concerns. I also brought these matters to the 
attention of the Department of Justice during detainee meeting 
with blank, expressed their concerns to blank.''
    Then on page 3, the author writes, has there been any 
written guidance given to FBI agents in either Gitmo or Iraq 
about when they should stand clear, B.C.--I presume that means 
because of--the interrogation techniques being used by DOD or 
DHS, followed by some additional blanks.
    Now again while these E-mails were written in 2004 they 
appear to refer to events that took place earlier, perhaps in 
2002. I say that because the first general mentioned in the E-
mails, Major General Dunleavy was the operational commander of 
Gitmo for 9 months ending in October 2002, and Major General 
Miller was in charge of Gitmo from October 2002 through March 
2004. Since I believe you were in charge of the criminal 
division at Justice from 2001 until 2003 March, it appears----
    Judge Chertoff. Actually May or June.
    Senator Levin. Through June 2003?
    Judge Chertoff. Yes.
    Senator Levin. So it would appear that these events or some 
of these events took place while you were in charge of the 
criminal division.
    Now what they indicate is that the interrogations that were 
witnessed by the FBI agents, that so concerned the FBI agents, 
were discussed in weekly Department of Justice meetings, with 
FBI legal counsel, with at least four senior officials in the 
criminal division.
    My first question is, during your tenure as head of the 
criminal division at the Department of Justice did you ever 
become aware of the issues raised in this document involving 
FBI personnel witnessing DOD interrogation techniques at 
Guantanamo Bay that were contrary to FBI techniques?
    Judge Chertoff. Let me say this. First of all I do not 
recall having any discussion about techniques that the Defense 
Department was using in Guantanamo other than simply the 
question of whether interrogations or questioning down there 
was effective or not. I was never informed or I had no 
knowledge at the time--again, I want to take out of my head 
things I have read in the paper recently--about any use of 
techniques in Guantanamo that were anything other than what I 
would describe as kind of plain vanilla.
    Obviously, the FBI has its own way of doing things. For 
example, the FBI might read Miranda warnings to people. DOD 
might not. I am not particularly familiar with DOD techniques, 
either standard techniques as they exist in the normal field 
Army manual or what additional techniques might have been 
considered.
    So for me to interpret this document, which I have not 
seen, which was written basically a year after I left and which 
refers--I would really be speculating.
    But I can tell you this, I was not aware during my tenure 
at the Department of Justice that there were practices in 
Guantanamo, if there were practices in Guantanamo, that would 
be torture or anything even approaching torture.
    Senator Levin. Judge, you do not know whether or not your 
name appears in the unredacted version of this document or not? 
You have never seen the document before you said; is that 
correct?
    Judge Chertoff. Correct. I know I was not in SES. I was a 
PAS. But other than that, I have no----
    Senator Levin. We did not see this document, by the way, 
until yesterday when my staff saw it on some web site, I 
believe.
    Do you know who those--are you surprised, put it this way, 
to read that members of the criminal division were present at 
these discussions?
    Judge Chertoff. My problem is, Senator, I do not really 
know what the discussions are. What I see is a lot of 
different--what I see is a discussion of techniques. I do not 
know whether the techniques reflect simply different ways 
people question, or whether they reflect the fact that the DOD 
was doing something that appeared to be maybe getting close to 
the line of what would be appropriate or not. And that is a big 
difference, obviously.
    It does not surprise me that people at the criminal 
division would have attended meetings generally to find out if 
information was being obtained from detainees, and what the 
progress was in terms of was DOD going to be moving people out 
of Guantanamo and sending them home again. That is because, my 
understanding is part of the process of deciding who should be 
sent home required an assessment of whether anybody believed 
that, based on the evidence, that this person was a terrorist 
threat or not.
    So again, given that I do not know what the meetings being 
referred to are, what the techniques are being referred to, and 
who the people are, it just would be shear guesswork on my 
part.
    Senator Levin. At the top of page 2 it says, we have this 
information. Now we are trying to go beyond. Did we ever put 
into writing in an EC memo, note, or briefing paper to our 
personnel our position blank, that we were pursuing our 
traditional methods of building trust and a relationship with 
subjects.
    What is an EC memo, do you know?
    Judge Chertoff. I think it is just an internal FBI 
document.
    Senator Levin. Do you know who the members of the criminal 
division were who attended meetings with the FBI on this 
subject? There were weekly meetings with the Department of 
Justice. They discuss techniques, how they were not effective 
or producing intel that was reliable. There were four names 
there that were redacted. They are all from the Department of 
Justice's criminal division. Do you know who those would be?
    Judge Chertoff. I do not know who these people are. I do 
not know when these meetings occurred because this is an E-mail 
written a year after I left, so it covers a span of time. I 
want to emphasize, I do not know that the discussion of 
techniques or differences and techniques means that the 
techniques being used by DOD were necessarily what I would call 
harsh techniques. My understanding was there are just simply 
different ways of questioning. The FBI does it one way. There 
are police departments that do it differently. So I would be 
speculating about what was going on in these meetings.
    Senator Levin. Now you indicate because you never saw the 
memo that you do not know who the people were who were 
representing you at those meetings.
    Judge Chertoff. I do not know that they were representing 
me because I do not know if the meetings were current when I 
was head of the criminal division.
    Senator Levin. Or that the meetings took place while you 
were head of the criminal division.
    Judge Chertoff. Correct, I just do not know.
    Senator Levin. Would you be willing to inquire to find out 
for this Committee?
    Judge Chertoff. I have to tell you, Senator, I am a sitting 
Federal judge. I do not know that I have the ability to inquire 
about this.
    Senator Levin. Then I would ask our Chairman as to whether 
or not we could inquire, Madam Chairman, could we see this 
entire memo?
    Chairman Collins. I will take it under advisement.
    Senator Levin. I thank you for that.
    My time is up. The only other question that I would have--
by the way, I guess EC is an electronic communication.
    Judge Chertoff. It might be.
    Senator Levin. Which I know my children would know, but I 
do not.
    I would also then ask whether or not you ever had any 
discussions--if I could ask for liberty for one more question--
have you ever had any discussions----
    Chairman Collins. We do need to move on, Senator.
    Senator Levin. Thank you, Madam Chairman. I will finally 
wind up then.
    Did you ever have any discussions with Judge Gonzales about 
that August memorandum that was addressed to him?
    Judge Chertoff. I do not believe so.
    Senator Levin. Or about the subject of that memorandum?
    Judge Chertoff. I do not believe so.
    Senator Levin. Thank you. I would have additional 
questions, if I could, for the record, Madam Chairman. How long 
will the record be kept open?
    Chairman Collins. The record will kept open till 10 a.m. 
tomorrow morning, and there are going to be additional 
questions from several Members, including myself. Senator 
Dayton.
    Senator Dayton. Thank you, Madam Chairman.
    Judge going back to the Lindh case, did anybody from the 
Department of Defense, the military, or anyone else in the 
administration contact you or anyone else to your knowledge on 
the prosecution team asking that reduced sentence be offered to 
Mr. Lindh or his attorneys to suppress allegations of torture 
and/or improper treatment?
    Judge Chertoff. Again, Senator, I have to say I do not 
think--although I understand that there was a--not having the 
document, I do not know what is in it. Assuming there was a 
provision in the document to say that there would be no claim 
of intentional mistreatment, which as I say is not an unusual 
thing, I am sure that was requested by somebody. I do not 
remember who requested it.
    In terms of the decision about whether to take a plea, I do 
not agree that it was driven by the desire to suppress 
information because my recollection is that the information had 
been made public in filings made by the defendant. So one would 
have been suppressing something that was publicly discussed.
    Senator Dayton. So you do not recall anyone contacting you 
from the Pentagon, the military, anywhere else in the 
administration asking that this information or any information 
or allegations of mistreatment be suppressed, and requesting 
that there be a negotiated plea reduction in order to 
accomplish that?
    Judge Chertoff. I am confident we discussed with the 
Defense Department in some detail the appropriateness of taking 
a plea and what the plea should be. I guess what I am not 
comfortable in agreeing with this magazine article is saying 
that somehow the purpose of doing it was to suppress 
information, because my understanding is the information was 
public and therefore there is nothing to suppress. It is out. 
It is public. My recollection--again, I do not have the 
documents--is that the counsel for the defendant, who were very 
able and aggressive, had raised it publicly. So while there are 
reasons to take a plea, I do not think hiding the allegation 
was one of them.
    Senator Dayton. About a year ago, The Washington Post 
reported a story of a Buddhist nun, a 30-year-old woman 
originally from Tibet. Her family was being reportedly tortured 
by Chinese authorities so she fled to Nepal for safety. Then 
when she feared being rounded up by Chinese authorities or the 
Nepalese government and returned to China, she fled to the 
United States and sought asylum. She arrived in August 2003, 
was granted asylum by an immigration judge in November.
    Then the Department of Homeland Security appealed that 
case. She was returned to her cell, this was reported the end 
of January last year in The Washington Post, and her attorney 
said that her next court date would be likely in the fall at 
the earliest. She did not speak any English, did not understand 
any English, was basically incommunicado. Had only had this one 
appearance in court where asylum was approved. The Chairman and 
I wrote a letter, and I think there were some other inquiries 
too. She was then released and the appeals court subsequently 
ruled in her favor.
    We wrote also and asked Secretary Ridge for the number of 
instances where this was also occurring and were told that in 
fiscal year 2003, DHS had sought review of 486 cases involving 
asylum grants. I realize with all of your myriad 
responsibilities it is not going to be possible for you to 
review each one of those, but I would ask that somebody make a 
determination.
    And in his response he says it is generally the discretion 
that the appropriate ICE field officer, the director, whether 
or not to ask for the alien to be incarcerated during that DHS 
appeal, absent exceptional concern such as national security 
issues or danger to the community. Somebody ought to be able to 
decide whether a 30-year-old Tibetan nun is a threat to the 
community and to our national security or not, especially after 
a judge has ruled in her favor, just on the grounds on basic 
humanity. As the article said, here she is fleeing persecution 
in China and ends up being incarcerated here.
    Again, I am respectful of the difficulty in making these 
distinctions, but I think, is important, especially if this is 
going to be a longer term predicament that we are in, that 
these decisions and these distinctions be made rationally and 
carefully.
    Judge Chertoff. I agree with that. I think we should 
definitely do that.
    Senator Dayton. Thank you. I would also ask you to review 
what occurred on June, I believe it was the 9th, possibly the 
8th. My staff says the 8th, I say the 9th, so it is probably 
the 8th of last year when a private plane carrying the Governor 
of Kentucky flew into the restricted airspace here in violation 
of FAA procedures, but nevertheless did so. The transponder was 
not functioning. The same situation we experienced on September 
11, 2001. Despite some progress, and I think real progress that 
has been in interagency communication and the like, an open 
line which is great to have but evidently not all parties are 
staffing that line on an ongoing basis. So it does not do any 
good to have an open line if no one is there to receive the 
information.
    Anyway, there was a breakdown in communication. Thousands 
of people were evacuated from the Capitol complex, being told, 
probably under the circumstances by the Capitol Police, take 
off your shoes, run for your lives. If that plane had been 
other than what it was, it would have crashed into the Capitol 
within a minute of the time that alarm was sounded. So clearly, 
again, we will never be perfect but when something that 
replicates what occurred on September 11 can occur, and you 
could not have a more real-life, realistic simulation of that 
kind of a situation where most of the responsible authorities 
really thought that there was another attack. And to see those 
continued failures to protect this Capitol complex to me was 
really shocking.
    Despite inquiries that I and other Members of Congress have 
made, to my knowledge, there have been no consequences from 
that at all. That is also alarming.
    Judge Chertoff. I agree that is something that, as I said I 
think previously, when there are penetrations or issues like 
that, those are opportunities for us to go back and see, why 
did that happen. I think that is a valuable thing to do.
    Senator Dayton. Thank you. I would urge you to review the 
interdepartmental communication so that it is adequate to be 
immediately responsive, which it has to be.
    Then finally, I just support what my colleague Senator 
Coleman said about the predicament in Minnesota, because it is 
nonsensical. There is a book in my library in my office called 
The Death of Common Sense, and I could apply that on a daily 
basis around here. In this case, we are giving a real double 
message to local officials if we say, make yourself a priority, 
take the necessary actions, and then on the other hand we turn 
around and say, you are not important enough, you are not high 
risk.
    If somebody here is going to make a determination that 
certain parts of the country are sufficiently low risk then 
they should tell them so and relieve them of the 
responsibilities, the expenses and the like. But to say, you 
need to do all that and have local officials conscientiously 
doing that at cost, have the public believe that is necessary, 
and then turn around and just without any forewarning just say, 
now you are out, and the city and county right adjacent to you 
is in is really, from a standpoint of intergovernmental 
relations, is really destructive. But it is also really a 
contradictory message and it is very unfair to them.
    If we are not going to be consistent and we are not going 
to follow up here with the resources necessary to carry out 
what we say needs to be done, then I think we are really guilty 
of rank hypocrisy at this level. I hope and would urge that--
and I respect that you serve under the President and that they 
have a process, including Office of Management and Budget, but 
I think it is imperative that if we are going to do our 
responsibility here as a separate branch of government to 
protect this country, that we have confidence that we are 
getting from you, regardless of OMB's view, regardless of 
someone else's fiscal policy, we are getting from you the 
assurance that we are providing you with the resources 
necessary to protect this country to the best of our possible 
capabilities.
    I would ask if you are willing to take that responsibility 
to communicate that independently to us and give us that 
assurance independently.
    Judge Chertoff. I think you deserve my candid assessment of 
where we are and what we need to do, and I will give that to 
you.
    Senator Dayton. Thank you. I will support your nomination. 
I wish you well.
    Judge Chertoff. Thank you very much. Thank you, Senator.
    Senator Dayton. Thank you, Madam Chairman.
    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.
    [Whereupon at 1:25 p.m., the Committee was adjourned.]


                            A P P E N D I X

                              ----------                              


                PREPARED STATEMENT OF SENATOR VOINOVICH

    Madam Chairman, thank you for expeditiously holding this hearing to 
consider President Bush's nominee for one of the most important 
positions in the Federal Government: Secretary of the Department of 
Homeland Security.
    Judge Chertoff, I would first thank you for your continuing service 
to our Nation during these challenging times. Your willingness to step 
down from a lifetime appointment to the Federal bench to take what is 
certainly one of the most difficult jobs in the Federal Government is a 
testament to your patriotism and dedication to public service. I would 
also thank your family for the sacrifices they have made and will 
continue to make.
    I enjoyed our meeting yesterday very much. I believe you are well 
qualified for the office in which you are about to enter and am happy 
to support your nomination. Please let me know if I can assist you in 
any way during the next 4 years.
    Thank you, Madam Chairman.

                  PREPARED STATEMENT OF SENATOR COBURN

    Thank you, Chairman Collins. I am pleased to be here today to 
review the nomination of Judge Michael Chertoff to be the next 
Secretary of the Department of Homeland Security.
    Judge Chertoff has a distinguished background in the law and public 
service. He has served in a wide range of positions: In the 
administration, on staff here in the Senate, and in the private sector. 
I think we can all agree he has an impressive background.
    Of course, what is important for us to determine in this hearing is 
how Judge Chertoff will serve our Nation if confirmed as Secretary of 
Homeland Security. Of particular interest to me in this regard is how 
he plans to use the finite resources of the Department to secure our 
Nation's borders.
    At our most recent hearing, Senator Stevens made an excellent point 
by telling the witnesses that they should not expect Congress to 
continue throwing money at the Department of Homeland Security. The 
Department must find a way to use the resources at its disposal in the 
most efficient and effective manner possible. At that same hearing our 
witnesses broadly agreed that the Department has not thought through 
the most effective ways to utilize its sources. Too often, we have turf 
battles and a ``manage by the inbox'' approach to long-term planning 
and policy.
    It is important to me that we know what Judge Chertoff views as the 
priorities for the Department, and how he plans to use its resources to 
most effectively protect our homeland and secure our borders.
    I thank Judge Chertoff for being here today and for his service to 
our country. I am looking forward to hearing what he has to say.
    Thank you, Chairman Collins.

              PREPARED OPENING STATEMENT OF SENATOR PRYOR

    Thank you, Madam Chair and Senator Lieberman, for convening this 
hearing and continuing your bipartisan leadership as we address the 
important matters our Committee faces today and in the days ahead.
    Judge Chertoff, good morning it is nice to meet you.
    As our Committee has been assessing the challenges and 
opportunities at the Department of Homeland Security it has become even 
more apparent to me what awesome responsibility DHS is tasked with in 
leading the efforts to protect our borders and secure transportation 
and other critical parts of our infrastructure.
    Of course, it follows that the Secretary of DHS, as director and 
coordinator of those efforts, faces extraordinary challenges.
    It is imperative that the Secretary of DHS lead the charge to make 
this country safer, while steadfastly honoring our Constitution, which 
protects our precious rights and liberties.
    I look forward to hearing how you would meet the challenges and 
accomplish the high goals of the post for which you have been 
nominated.

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