A federal appeals court judge, Chertoff was a former federal prosecutor who helped oversee the Justice Department's antiterrorism efforts after the Sept. 11 attacks. Chertoff, along with new Attorney General Alberto Gonzales, helped craft the Bush Administration's policies related to the detention of hundreds of Arab, South Asian and Muslim men after 9/11, many of whom now claim they were tortured. The Senate confirmed Gonzales by a vote of 60-36 on Feb. 4.
During hearings before the Senate committee, Chertoff testified that while head of the Justice Department's Criminal Division, he "made it very clear torture is illegal," adding that anyone who violated the statute faced prosecution.
"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," he added.
According to the American Civil Liberties Union (ACLU), Chertoff's record does not match his rhetoric.
"Saying you're committed to upholding the Bill of Rights is one thing. Actually doing it is another. His actions show that in his zealousness to provide security, fundamental freedoms too often became an obstacle to overcome rather than a guidepost to follow," said Christopher E. Anders, an ACLU legislative counsel.
As a matter of policy, the ACLU neither opposes nor endorses cabinet-level appointments, but it does examine and publicize nominees' civil liberties records. The ACLU issued a memorandum on Chertoff's civil liberties record that raised several issues.
The ACLU claims that because Chertoff and Gonzales helped create Bush Administration post 9/11 policies, they are too close to the issue to oversee any investigations.
The ACLU has called for a special counsel to investigate and prosecute any criminal acts by civilians in the torture or abuse of detainees by the U.S. government, saying that doing so is the only way to fairly, and independently, get to the bottom of the issue.
As a federal appeals judge, Chertoff ruled against foreigners in 14 of 18 immigration cases. In one case, Chertoff denied asylum to a Bangladeshi man who claimed he was arrested after joining a non-violent political rally and was beaten by police. The man provided proof the medical care he received.
"Chertoff has shown that he takes an extremely narrow view of what constitutes torture, a position that undermines the humanitarian provisions of our immigration policies," Anders said.