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Chertoff’s Role in Aug. 2002 Torture Memo Called into Question at Confirmation Hearing

StoryFebruary 03, 2005
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At the confirmation hearings for President Bush’s Homeland Security chief nominee, Sen. Carl Levin (D-MI) questioned Michael Chertoff about his role as head of the criminal division of the Justice Department in the formulation of the Aug. 2002 so-called “torture memo” that provided a very narrow definition of torture. We hear an excerpt of the hearing. [includes rush transcript]

The Homeland Security and Governmental Affairs Committee held confirmation hearings yesterday on Michael Chertoff, President Bush’s nominee to head the Department of Homeland Security.

Chertoff is a federal judge who worked under John Ashcroft in the Justice Department after Sept. 11. He led the government’s move to jail hundreds of Muslim and Arab men without pressing charges. He was also a chief architect of the USA Patriot Act. Chertoff is expected to be easily confirmed when the committee votes on Monday.

Yesterday’s hearing was overshadowed by the continuing Senate confirmation debate of Alberto Gonzales as Attorney General. While most committee members praised Chertoff at the hearing, Democratic Senator Carl Levin of Michigan questioned Chertoff’s role in the infamous Aug. 2002 so-called “torture memo.” That justice department memo provided a very narrow definition of torture, arguing that only physical abuse “of an intensity akin to that which accompanies serious physical injury such as death or organ failure,” amounted to torture.

  • Sen. Carl Levin (D-Michigan) questioning Homeland Security Secretary nominee Michael Chertoff at the Homeland Security and Governmental Affairs Committee confirmation hearing.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Senator Carl Levin.

SEN. CARL LEVIN: Now, do you agree with the definition of torture contained in the August 1, 2002 memo?

MICHAEL CHERTOFF: Let me begin by saying first of all, of course, torture is illegal. 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 if it was in it, whether it was used as — or purported to be kind of a bottom line definition.

SEN. CARL LEVIN: My question is, do you agree, not did you agree? I’ll get to the “did” in a moment.

MICHAEL CHERTOFF: I do not believe that definition is a sufficiently comprehensive definition of torture.

SEN. CARL LEVIN: Now, let’s go back in time. Did you object to the definition in the memo in 2002?

MICHAEL CHERTOFF: As I said, 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 — again, this is talking to other lawyers, so it’s 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 are you doing becomes critical, and whether or not a particular type of thing that someone proposes to do violates the statute is going to depend, or 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’s not, whether the people who are thinking about doing it are making an honest assessment about whether what they’re 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’s potential criminal liability, you had better be very careful to make sure that whatever it is you decide to do falls well within the — what is required by the law.

AMY GOODMAN: Department of Homeland Security confirmation nominee — or nominee to be secretary, is Michael Chertoff. He was being questioned by Carl Levin, Democratic Senator of Michigan.

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