Testifying before the Senate Judiciary Committee in April as part of his confirmation hearing to head the Justice Department's criminal division, Michael Chertoff spoke passionately about the need to eradicate racial profiling.
"Unequivocally, it is my view that racial profiling is not only wrong, but unconstitutional. It has no place in law enforcement," said Chertoff, who noted his extensive, first-hand knowledge of the topic. Earlier this year Chertoff served as special counsel for an unusually aggressive investigation launched by the New Jersey state Legislature to examine how senior state administrators had failed to deal with the controversial issue of troopers pulling over African-American drivers on the New Jersey Turnpike in wildly disproportionate numbers.
Thanks to Chertoff's dogged work, which included digging through 100,000 internal state documents and donating more than $250,000 worth of pro bono legal services, a former New Jersey attorney general now sitting on the state's Supreme Court was nearly impeached for misleading legislators about racial profiling procedures.
Grateful legislators even passed a resolution that recognized Chertoff for his "single-minded devotion to uncovering [racial profiling] facts in a truthful and balanced way."
The lesson Chertoff learned, he told the Senate committee in April, was that racial profiling "affects not only the civil rights of the people who are the victims of racial profiling, but it affects the credibility of all of law enforcement."
Today, as the DOJ's No. 2, overseeing 93 U.S. attorney's offices nationwide, Chertoff manages the day-to-day investigation into the Sept. 11 terrorist attacks. ("By midafternoon of Sept. 11, Chertoff had set the tone for the law-enforcement," according to the New Yorker magazine.)
But it's an investigation that critics say is steeped in racial, or ethnic, profiling, with young Arab men unfairly cast as suspects, much the way African-American drivers were in New Jersey. Critics say that Chertoff, of all people, should know better.
"It's a moral and intellectual contradiction," says Hussein Ibish, communications director for the American Arab Anti-Discrimination Committee. "It makes no sense to be passionately opposed to African-American profiling, and then oversee the profiling of Arabs in America. We've never seen profiling this crude or this explicit."
Chertoff has defended the apparent contradiction, the Justice Department's dragnet, and specifically the 5,000 Arab immigrant men being questioned by officials, saying the men share similar behavioral traits and that law enforcement would be negligent to ignore that. "What we have looked to are characteristics like country of issuance of passport, where someone has traveled, the manner in which they've entered, the kind of visa they've come in on," he testified before Congress on Nov. 28. (A Justice Department spokesperson did not return calls seeking comment from Chertoff.)
"It's a very strange twist of fate" that Chertoff is involved in both New Jersey's racial profiling inquiry and then the terrorist attacks investigation, notes David Harris, professor of law at the University of Toledo and an expert on the subject of police profiling. "But he has a strong reputation for law enforcement and integrity so it's not surprising he was tapped to do both. He says he's very sensitive to profiling and we have no reason to disbelieve him."
Chertoff has never been far from the action. A Harvard Law School graduate who clerked for Supreme Court Justice William Brennan, Chertoff became one of the youngest lawyers to ever head a U.S. attorney's office when he took over the Newark, N.J., office in 1990 at the age of 36. Already a veteran of Rudolf Giuliani's federal prosecutor shop across the Hudson River, where he helped lock up crime bosses Anthony "Fat Tony" Salerno, Anthony "Tony Ducks" Corallo and Carmine "Junior" Persico, Chertoff continued his Mafia battle in New Jersey.
When Democrat Bill Clinton was elected in 1992, Chertoff moved to private practice. But not for long. He became a household name for political junkies in 1994 when he joined the Senate Whitewater Committee, headed by former Sen. Alfonse D'Amato, R-N.Y., as chief counsel. The move solidified Chertoff's Republican credentials (he had only been registered with the party since 1989), and won him the admiration of then Missouri Sen. John Ashcroft, who as attorney general selected Chertoff to run the Justice Department's criminal division.
But before the move to Washington, Chertoff had to finish overseeing the New Jersey investigation into racial profiling. Although his role as counsel focused on the "what did they know and when did they know it" angle of a coverup among senior members of then Gov. Chistine Todd Whitman's administration, Chertoff clearly became a believer in the need to end racial profiling.
Discriminatory profiling is generally defined as using race or ethnicity as the sole or preponderant factor when targeting suspected criminals. Chertoff argues that because behavior is a crucial part of the current mix, the current dragnet does not constitute profiling.
To date in the terrorism investigation, more than 1,000 people have been detained by federal officials. Most are Arab or Muslim. Not one has been charged with being connected to the terrorist attacks. And scores of stories have been relayed in the press of detainees held indefinitely without being charged or given access to attorneys.
More recently, Ashcroft announced that agents would begin interviewing more than 5,000 mostly Arab immigrant men between the ages of 18 and 33 who entered the country on visas after Jan. 1, 2000.
Is that profiling? David Cole, professor at the Georgetown Law Center, thinks so. "The list of 5,000 interviewees looks like something a young lawyer would create if his boss told him to make a list of Arab men in this country and make it look like it's not profiling. It's as close as you can come to profiling without explicitly profiling based on ethnicity and race."
Several major metro police departments around the country, which initially balked at carrying out the DOJ's request to interview Arab men, seemed to agree. Police chiefs in Detroit, Portland, Ore., and Tucson, Ariz., among others, all citing strict guidelines on the books forbidding racial profiling, were wary of helping the Justice Department and the FBI with its 5,000 interviews.
The caution stems in part from the Bush administration's stated intention earlier this year to crack down on profiling nationwide. Testifying before Congress this summer, the Justice Department's civil-rights chief, Ralph Boyd Jr., made it clear the DOJ was ready to take police departments to court if they didn't stop profiling innocent people. "There may be people we need to clobber over the head, and if we need to clobber people over the head, we'll do that," said Boyd.
Still, some who went through the racial profiling battle in New Jersey argue that the game has changed since Sept. 11. State Attorney General John Farmer, who prompted the state's recent investigation by releasing 100,000 documents last year, has suggested that "we no longer enjoy [the] luxury" of universally condemning the practice, and that the Justice Department allows states to use race and ethnicity when searching for specific suspects. So if in the days and weeks following the Sept. 11 attack the FBI was on the lookout for specific men of Arab background, then it was reasonable that many Arab men would likely to questioned by authorities.
And as Chertoff himself told the Senate Judiciary Committee 12 days ago, "We have emphatically rejected ethnic profiling."
But James Zogby, head of the Arab-American Institute, remains unswayed. "Chertoff can describe it any way he wants. But if it walks like a duck and quacks like a duck, it's profiling plain and simply."