WASHINGTON -- Senate Democrats peppered Homeland Security secretary nominee Michael Chertoff with questions yesterday about his tenure as a top Justice Department prosecutor, focusing on whether he had a role in approving improper interrogation methods for terror suspects.
Chertoff, now a federal appeals court judge in New Jersey, maintained that he gave the CIA only broad guidance and never addressed the legality of any specific interrogation technique.
Critics have said some techniques used on detainees swept up after the Sept. 11, 2001, terror attacks violated the Geneva Conventions, which prohibit violence, torture, and humiliating treatment.
"My answer was exactly the same: 'I am not in a position to evaluate a set of facts based on a hypothetical circumstance,' " Chertoff said under pointed questioning from Senator Carl Levin, Democrat of Michigan, during his confirmation hearing in front of the Senate Homeland Security and Governmental Affairs Committee.
He said he ended those conversations by advising: "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 an honest and diligent examination of what you're doing and not merely putting your head in the sand or turning a blind eye."
"To summarize, you would not, then, have given a yes-or-no answer to that question?" Levin asked.
"Correct," Chertoff said.
Chertoff is expected to be easily confirmed as the nation's second Homeland Security secretary. Levin said after the hearing that he knew of no senator who planned to oppose Chertoff -- even though he personally remained undecided.
The full Senate could vote on the confirmation as early as next week. Homeland Security Committee chairwoman Susan Collins said she initially hoped to have the panel vote on Chertoff's nomination today, but Democrats asked for a delay until Monday.
Chertoff, 51, who headed the Justice Department's criminal division from 2001-2003, pledged to balance protecting the nation with preserving civil liberties if confirmed. He said he decided to give up his lifetime seat on the US Court of Appeals for the Third Circuit, in Philadelphia, and lead what Republican Senator Bob Bennett of Utah called the "dysfunctional" homeland security system, to help protect the country in the aftermath of the Sept. 11 attacks -- what he called "the greatest challenge of my generation."
Chertoff helped develop the Justice Department's investigative strategy, including policies that critics say violated civil rights, immediately following the attacks.
A 2003 Justice Department report found that hundreds of foreigners were held for an average of 80 days on minor charges when they should have been cleared within a matter of days. Some detainees were denied their right to see an attorney or be told of the charges against them, and other were physically abused, the report found.
Senator Joseph I. Lieberman, Democrat of Connecticut, asked Chertoff "whether you think mistakes were made in the carrying out of that strategy that you helped devise."
"I think that it was a reasonable plan under the circumstances," Chertoff said. However, "I was troubled to see that, certainly, the plan as conceived had not always been executed perfectly."
Other senators touched on port and rail security concerns and funding formulas for first-responder grants during the three-hour hearing. The toughest questions came from Levin, who handed Chertoff a copy of a partially redacted 2004 internal FBI e-mail that appeared to discuss detainee interrogation techniques at Guantanamo Bay, and asked the nominee to help decipher the discussion.
Noting that he had already left the department at the time it was sent, Chertoff said he didn't know the people named in the e-mail, when the meetings occurred, or whether the techniques cited were harsh measures or merely a line of questioning.
Chertoff also said he doesn't believe he ever talked to Attorney General nominee Alberto Gonzales, who was then serving as White House counsel, about a 2002 Justice Department memo that critics say gave interrogators greater freedom to abuse detainees.
The Senate plans to confirm Gonzales today, despite attempts to blame him for Bush administration policies on the treatment of foreign prisoners. Despite a party-line vote from Judiciary Democrats, other Democrats are expected to throw their support to the former White House counsel.