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At Ashcroft's direction, Chertoff supervised the investigation that has led to the incarceration of nine hundred and twenty-one people since September 11th. "We started with the hijackers, their credit-card records, their phone records, and peeled back the onion from there," Chertoff told me. "As you run across people who appear to have some association with them, you frankly look at them to see if they had some involvement in the plot, whether they were witting or unwitting." Almost all these charges have been brought in secret proceedings, which makes it difficult to assess whether the government has overstepped its authority. Many of the nine hundred and twenty-one are being held for immigration violations; others are being detained as material witnesses, who may have relevant information and may be held indefinitely, even without an allegation of wrongdoing. (Federal judges must approve the detention of material witnesses, and in the past some judges have allowed them to be imprisoned for as long as six months.) "We were determined not to allow anyone to walk away if they had any connection to the hijackers," Chertoff said. "We're clearly not standing on ceremony, and if there is a basis to hold them we're going to hold them."
To round up these suspects and witnesses, the government is relying on laws that have long been on the books. Violators of immigration laws, such as those who overstay their visas, have always been subject to detention; and prosecutors have always had the power to hold material witnesses. The current investigation, so far, reflects a change in emphasis and focus, rather than a more dramatic change in kind. But the Bush Administration, with the assistance of Congress, is attempting a more sweeping transformation of the criminal law; and that, too, began taking shape right after the attacks.
As the Administration's antiterrorism proposals worked their way through Congress this fall, Chertoff had one awkward moment. Senator Paul Sarbanes, the Maryland Democrat, welcomed Chertoff as he was about to testify before a banking subcommittee, saying, "Michael, I just have to add, it's nice to have you back before the committee in a different capacity, if I may note, than your previous appearances."
This was a reference to a temporary assignment that Chertoff had taken in 1995 as special counsel to Senator Alfonse D'Amato's investigation of the Whitewater affair for the Banking Committee. It was not a successful chapter in Chertoff's (or D'Amato's) career; much time was spent considering Clinton conspiracy theories—for instance, belaboring the Vincent Foster suicide. The Whitewater job also marked a sort of coming out as a Republican for Chertoff, who had previously cultivated an apolitical reputation. (It also won him an important future patron in then Senator Ashcroft.)
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