A Conversation with Michael Chertoff

Wednesday, January 14, 2009

Outgoing Homeland Security Secretary Michael Chertoff began his address to an audience of CFR members by considering how governments respond to crises. Considering both the September 11 terrorist attack and the 2008 financial crisis, Chertoff noted similarities in the need for a swift, decisive response. Though hindsight may reveal errors in judgment, government officials should not shy from acting quickly in the face of an emergency.

Chertoff described weapons of mass destruction (WMD) as the greatest potential threat facing the U.S. homeland. While state and local officials have proven independently capable of responding to other terrorist threats, Chertoff suggested the federal government is essential in responding to the WMD threat. The federal response must include investments in both the prevention of and resiliency after WMD attacks; investments he believes will pay dividends in the future.

Taking stock of his tenure as Director of Homeland Security, Chertoff saw room for improvement in combating the long-term terrorist threat. Noting that terrorist organizations like Hezbollah and Hamas run social service agencies that improve their local standing, Chertoff suggested the United States attempt to receive similar allegiances through its own distribution of aid.

A former federal prosecutor, Chertoff described the issues surrounding detainees in the War on Terror as most difficult legal challenges he has seen. He suggests that efforts to combat terrorism often reside in a legal no-man's-land-somewhere between war and law enforcement-and that finding the appropriate legal framework is one of the greatest challenges facing the incoming Obama administration.

DAVID WESTIN: Good afternoon. I'm David Westin, and I'm privileged to be able to be here with the secretary today. I have a few remarks and I have a script here. I'll make sure I get them all right.

First of all, welcome to today's Council on Foreign Relations meeting. Very important: Please turn off -- I just did -- your cell phones and your BlackBerrys and any other wireless devices. It's not just so that we don't interrupt the secretary when he's talking, but also, it will interfere with the amplification system in the room.

And I want to remind everyone that this meeting is indeed on the record. And the Council of Foreign Relations, I think, will be putting it on their website, as I recall.

And with that, the way this works, for those of you who may not have been here before, is we'll talk for about 30 minutes or so and then we'll open it up to the floor for all of you to ask questions.

But before I ask the secretary any questions, first of all, let me introduce the man who needs no introduction: Secretary Chertoff.

You all have read, I hope, the brief synopsis of his distinguished career. He's been a distinguished law enforcement official for some time. And he gave up his lifelong tenure as a 3rd Circuit Court of Appeals judge to become the second secretary of Homeland Security where he's been for almost four years.

SECRETARY MICHAEL CHERTOFF: Yes -- almost exactly four.

WESTIN: And the two things that I think are true, that are not in your CVR, number one, he clerked for not only Justice Brennan -- the distinguished Supreme Court judge -- but also Murray Gurfein, that a number of you in the room I suspect will remember, a wonderful 2nd Circuit Court of Appeals judge whom I knew. And he also, I think this is true, is the son of and the grandson of Talmudic scholars. Is that a fact?

SEC. CHERTOFF: Well, Rabbis. I'm going to stop you when you -- (off mike). (Laughter.)

WESTIN: So with that, we'd love to hear your opening remarks and then we'll ask some questions. Thank you very much for being here.

SEC. CHERTOFF: David, thank you. And thank you to the Council for hosting me.

I think I've been here once before and I've also had the opportunity to meet with members of the council down in Washington as we've talked about various homeland security issues.

I was going to begin by recalling a fair day in the middle of a September during my time in office when there was a cataclysmic event. And as a consequence of that event, there were really profound changes in the way the American government operated. The executive took some steps -- excuse me -- that were in the view of some an unprecedented exercise of power and there's criticism for that. The legislature moved some major legislation and there's a little bit of buyer's remorse about that. There were all kinds of legal issues that were thrown up. There were mistakes that were made. There were claims that there wasn't enough transparency about what was going on.

And you probably think I'm talking about September 11th, 2001, but I'm actually talking about September 15th, 2008 -- the financial crisis -- because in the wake of the financial crisis, the fettering of Lehman and the cascading meltdown, you saw much of the same kind of vigorous government action, and some of the same criticism of that action, that occurred on September 11th, 2001 when the World Trade Center physically fell down instead of financially fell down.

This past September, after the collapse of Lehman and the beginning of the meltdown, we had the unprecedented passage of the TARP, which I think began as three pieces of paper. We had members of Congress going to the executive and asking the secretary of the Treasury to change the rules on his own -- simply lift some of the restrictions and do things that hadn't been originally contemplated or promised. And in fact, the secretary -- under the president's leadership -- took very vigorous action. That action has not been free from criticism. Mistakes have been made. There have been complaints about a lack of transparency about the way the TARP is operating.

I mean, even now as we speak, there is a demand for ever more dramatic, energetic and fast action to deal with a crisis that threatens the underpinnings of our financial system.

Pretty much all these things could be said about September 11th. In the wake of September 11th, Congress passed the Patriot Act. It actually spent much more time on that then the TARP, but even so, people have complained from time to time that it was too quickly. The executive acted very vigorously. The president used all of the powers at his disposal and there's criticism of that. There are not doubt that some mistakes were made and there's certainly been complaints about lack of transparency.

So what's my point? My point is not that we've done the wrong thing in reacting to the financial crisis. My point is that in the middle of a crisis, in the middle of an emergency you have two choices: You can either act swiftly and decisively, and inevitably that's going to be less than perfectly transparent or perfectly executive; or you can spend an awfully long amount of time thinking about what to do, in which case you will have a mounting crisis of confidence and a failure and paralysis in government.

And so my contention is that the steps that we took on September 11th -- and the steps we took on September 15th -- are both right in the context of an emergency. And just as there's been some buyer's remorse after September 11th and some after-the-fact hindsight criticism after September 11th, I guarantee you that in two years or three years, every -- probably not going to wait that long -- everything that was done in the emergency after September 15th and everything that'll be done in the next sixth months will be subject to the hindsight and the luxury of criticism after the fact.

So my point is, all emergencies in many ways are not alike. And the test is not -- the question is not the specific measures. The question is: Will government take vigorous action to stop the bleeding, to prevent further problems along the lines of the original emergency and perhaps most fundamentally, to restore public confidence?

I believe the answer is that government should do that. But I also believe that those who make those decisions must realize that just as night follows day, they will surely be criticized after the fact all of the flaws and imperfections and speedy execution will be held up under a spotlight.

So bottom line is don't get in the business of dealing with crises and emergencies if you're not prepared to deal with the heat after the fact. And that's my opening.

WESTIN: That's very interesting and persuasive in many respects.

I want to ask about a few things, but before that let me pick up on what you're talking about, because I think I take your implicit point: that those of us who aren't in the middle have it easy to sit back and look at it and second guess and criticize.

At the same time, sometimes it might appear to those of us on the outside -- and you can take 9/11 or this last September -- sometimes might have the impression that those who are making decisions get quite defensive afterwards.

I mean, what is -- is there a useful part to that second guessing and criticism, not just a carping part?

SEC. CHERTOFF: No, there is, David. And I've said this before, so I'm not making news and I'm not --

WESTIN: It's okay to make news. Go ahead! (Laughter.)

SEC. CHERTOFF: I'm not making news. I'm not being a Johnny-come-lately revisionist historian.

I think after the initial emergency measures are in place, it is appropriate to stand back at some point and look and recalibrate at what you've done. I gave a speech -- I quote myself only in order to put a prior consistent statement on the record. I remember in 2003 when I was a judge I said -- I gave a speech and I said, look, we've done, I think about as good a job balancing in the war against terror as we can, but it hasn't been perfect. So the time has come to get together with Congress and to work to recalibrate some of the measures. We may decide some of the things we did were not enough. We may decide some of the things we did were too much. We may decide some of them can be done better in a different way.

And I think there's a little bit of a missed opportunity on both sides of Pennsylvania Avenue, because it wasn't -- it didn't seem possible to get together with Congress and do a dispassionate revision and adjustment of what had been done after 9/11. That may simply reflect the fact that there was an election campaign coming up, but it may be the political temper. And one of the problems with some of the poison in Washington is an inability to do that.

So I believe that now with a new administration there's another opportunity to recalibrate. Recalibrate does not mean abandon, throw over and expunge. And if anyone thinks that that's appropriate, I think that would be a great misjudgment.

But I think it is appropriate to recalibrate. And I will also venture to say that it will certainly be true in a year or two years it will be appropriate to recalibrate what's being done in the financial area, because there'll no doubt be some mistakes.

WESTIN: So with that, let me start with some specifics and let's start with the news.

All of us woke up this morning and heard that Osama bin Laden apparently -- as far as we can tell -- put out a new statement that had to do with Gaza and implicitly about the president-elect and things. We've seen a number of these statements come out, and for those of us who are not on the inside, I think we all puzzle over them. I mean, do they really have significance? Is there anything to be read into them?

And I'm sure there are limits on what you can say, but either about this statement or generally, when something like that comes out, do you look for things in that? Does that have any real significance for you or is that just a propaganda statement?

SEC. CHERTOFF: Well, we always look at statements to see is there some hidden code. Is it indicative of some operational thing that's going to occur?

There's been the theory that from time to time, when bin Laden has made statements about how he's given the West a chance to convert and become his religious disciples and we've turned that down, that what he's trying to do is essentially create the predicate or the justification for a weapon of mass destruction attack by showing he gave us one last chance to come over to his side and we didn't do it. But I can't think of a time that we've actually found any real operational significance in the statements.

You have to look at the statements as part of the battle of ideas. And that's where a lot of the long-term strategic struggle is. And what's interesting to read in the statement is what is he talking about? Because it tells you what they're feeling defensive about.

For example, in the last year or so there's been some push back from a number of clerics, who had originally supported a very extreme form of Islam, beginning to argue that this is actually hurting innocent Muslims and questioning whether, in fact, the violence was appropriate under Islamic law. This really struck at the heart of bin Laden's message and his ideology. So Zawahiri got on and attacked the clerics and he issued videotapes talking about how the clerics are wrong. And there was actually debate about this, because it was about the legitimacy of the ideological movement which bin Laden is leading.

Likewise, about a year or so ago, he gave a speech which he -- in which he tried to hitch his star to a whole lot of things: globalization, economic problems. And he's always very big on tapping into current events. I view that as a little bit of a sign of insecurity, because I think what he's trying to do is get at the head of whatever parade is marching down the street.

So I think there's a lot of value from an intelligence standpoint strategically, but I don't -- at least in my experience -- haven't yet seen these statements as a sign that, you know, the missiles are coming or the bombs are about to go off.

WESTIN: Another specific: Mumbai around Thanksgiving time.

What, if anything, did we learn from that? What did that teach us?

SEC. CHERTOFF: Well, I'm happy to say that we anticipated the possibility of this kind of an attack in a general sense, because we did launch a small boat strategy here in the United States that's precisely designed to deal with small boats being the attack method. And of course, we've seen that in the past with the USS Cole or the USS The Sullivans.

So it was not a surprise to have this kind of an attack. It was well executed. I think it was probably a wake up call to hotel companies and others in the travel and entertaining business and the softer target area that they can't assume that all attacks are going to be directed at public transportation; that they have a responsibility to prepare themselves for both making harder to attack a hotel or a restaurant or a social event, but also to have resiliency in place -- to have a plan in place that allows people to quickly respond and recover.

And I think one of the things that emerged in the press was that the Indians didn't have a unified plan that enabled a swift response. And actually, frankly, a lot of what our department is designed to do and has done over the last few years is to build that unified plan that gets the responders and the preventers and the law enforcement -- everybody at the same table with a single, integrated planning system in place.

WESTIN: How far along in that spectrum are we, do you think?

SEC. CHERTOFF: For much --

WESTIN: When you take the soft targets particularly?

SEC. CHERTOFF: Certainly with respect to things in terms of the government's responsibility, the government's domain, I think we're quite far along. We're not done, but we've made a lot of progress.

If you look at the private sector, where we partner through our department, you get a mixed picture. Some entities like chemical plants we've looked at very closely. They're actually in -- we've tiered them according to risk and they've actually made a lot of progress. We've done the same thing with train lines and things of that sort.

When you get to hotels and really soft targets, I think you've got a real range of reactions. Some, I think, are very good. Some, I think, have not paid a lot of attention to it.

We in the government can't protect all the hotels. You know, we do interact with that sector of the economy. We give them guidance; we give advice. We have put out information about lessons learned from Mumbai so that people can assimilate them. But I worry that in this economic environment it's easy to take the view that you should spend your money on the immediate concern you have, which is your payroll and your supplies and the things you need to run on a day-to-day basis and that issues like security can be pushed off.

The difficulty with that is it's very unpersuasive the day the attack comes and then everything collapses. Because once you have a serious attack with a loss of life, it's going to be fatal -- it can be fatal or almost fatal to the business, depending on what it is. So it's important, even as we worry about things like the financial crisis, to be very focused on the need to continue to invest against perhaps low probability, but very, very high consequence in all of our personal lives and our businesses.

WESTIN: But should we be expecting to see increased security at shopping malls, at hotels? I mean, after -- it 2006, right, with the plot with the liquids?

SEC. CHERTOFF: Right.

WESTIN: And after that, it changed air travel. We all have to have only three ounces and you have to put it in a transparent bag and all of that.

After the Mumbai thing, I don't think -- I didn't see much of a change at all. In other words -- I know there was exercise here in New York City where the mayor and the police chief did something the hotels, but we don't see anything. Maybe it's behind the scenes.

SEC. CHERTOFF: Well, I think there are two answers to that. One is the architecture of the aviation system's different than the architecture of the travel and leisure industry as a whole. Aviation is centralized. The areas that it takes place are clearly identifiable. It also happens to be a federal responsibility, so we expect and we're authorized to put federal assets as well as local assets into security.

When you get to hotels, they're in private hands. We don't have federal police that go out and patrol hotels and malls. And frankly, local police, although they may do some of that -- and I know here in New York they do pay attention targets that they perceive as potential high-value targets -- even so, we don't have the capability, certainly at the federal level, but probably most local levels, to actually do the work of patrolling. That's really got to be done by the owners.

But the other thing is the architecture of a hotel; the architecture of a shopping center is such that you can't run it the way you run an airport. If you put magnetometers and had long lines in the shopping center and your hotel, you're not going to have much business.

So it's a balance and that's why we talk about risk management. And risk management means not elimination of risk, not guarantee against risk, but it means what is the appropriate investment in security that doesn't actually subvert the basic function of what it is you're trying to accomplish? And it's tricky. It's an art, not a science, because you're leaving a little vulnerability because you can't afford to destroy your business in order to protect it.

WESTIN: So turn to the more general -- we're talking about risk management. Looking back on your tenure, first, what did you accomplish or what do you have in place that you most want your successor -- and I know you know Napolitano is replacing you. What do you most want her and the agency to continue to do or to expand on? What is important to you in your legacy that it not go away?

SEC. CHERTOFF: I think a couple of things. I think the biggest would be maybe the screening of our borders -- the ability to have much better visibility to who comes across our borders than we ever had before. It's not a job that's done, but it's a job where an enormous amount of progress has been made.

Let me take you back to before 2001. Before 2001, we did not capture the fingerprints of every visitor coming through our airports. Now we not only get their two fingerprints, we get their 10 fingerprints. The value of this is we can compare it against latent fingerprints that we pick up in safe houses and battlefields all over the world. And we can identify someone who's been on a battlefield, whose name we don't know, but who will turn up when they cross the border or when they apply for a visa when we match their fingerprints.

And we have found people ranging from criminals to people who are -- there was one fellow whose fingerprint appeared on a piece of paper in a safe house where a terrorist plotting that occurred in Europe. And he applied for a visa and they picked up the fingerprint when he gave his fingerprints at the visa office. It turned out, as it happens, there was an innocent reason why his fingerprint was on that piece of paper in that location, but that's exactly what you want to know. So that's an important program.

We now gather commercial information from the airlines coming across the Atlantic and the Pacific that tell us some basic data about everybody who's coming into the country -- how they purchased their ticket, their contact information, their previous travel segments, things of that sort. That enables us to create linkages between people whose names may not be on a watch list, but who are connected to someone who we know to be a terrorist, because for example, they have a common source of payment or because they traveled together on two prior segments of a trip.

We had a case recently where we detected a person who's part of a terrorist organization using precisely that data, and that person is now in custody. So that's a proven technique that actually works.

In terms of our scanning at ports: We now scan for radiation at virtually 100 percent of our container cargo companies. We didn't have that prior to 2001. And even between the borders -- although this is a matter of some controversy -- we have much -- we've doubled the Border Patrol; we've built tactical infrastructure and technology the likes of which the Border Patrol never dreamed of. And that has resulted in a reduction not only of smuggling of humans coming across, but drug smuggling has gone down.

We're actually becoming more of a maritime domain through these semi-submersible kind of half submarines that the Coast Guard keeps intercepting.

So to me that screening, which is I think a significant part of the reason why we are seeing a tax in Europe and in other parts of the world that have not been successful here, I think it's very important to keep that going.

WESTIN: Okay, what's the flip side? What's the thing you didn't have time to get to or it didn't go as far as you'd like that you'd most like them to do as they come in?

SEC. CHERTOFF: David, we were late on the cyber security because it was hard for us as a department to figure out how we could be adding value in cyber security, given the fact that the Internet is almost entirely in private hands and is culturally very resistant to government regulation and government intrusion. And so the question was, you know, we created a forum for people to exchange information. We had a team called U.S. SERT, an emergency reaction team that was capable of giving a warning when we knew an attack was underway and helping people figure out how to deal with it. But I felt it kind of weak tea, given the threat.

About a year and a half ago the director of National Intelligence and head of NSA met with me and we talked about, was there a way we could combine their capabilities and our authorities in a fashion that would preserve their domain and prevent them from encroaching into a civilian domain, but that would give us the ability to really bring some advanced tools to the table. And the consequence of those meetings and a lot of very, very good planning among a number of agencies including DOD and DOJ and our own agency, was a strategy for cyber security, which the president got personally very engaged in and launched in January of 2008. We've made a lot of progress in that. We have reduced the number of vulnerable entry points to government domains. We are beginning to deploy the next level of our intruding detection capability that gives us real-time warning, and we're working on what I will call the 3.0 version of this, which would actually give us the ability to intercept malicious attacks before they can actually hit the target.

So we've made a lot of progress but there's a lot to be done, not only finishing the deployment but helping the private sector on a voluntary basis with some of the techniques we've developed, dealing with the issue of quality assurance for the software to make sure software doesn't become a basis for people to implant Trojan horses or other kinds of malicious software when you buy the computer, and also raising the general level of protection against insiders.

So I would say that if I was going to devote a priority over the next year or two, it would be to making sure that we continue to build on the momentum of last year in the cyber area.

WESTIN: When I talked to you earlier in your tenure in your office in Washington and I asked you the question, what's the biggest threat, you said it's -- as I recall, if my recollection is right -- a weapon of mass destruction on U.S. soil by a terrorist group. Has your view changed since then? That's probably three years ago.

SEC. CHERTOFF: No, it's consistent.

WESTIN: Is it?

SEC. CHERTOFF: It is consistent, and I want to be careful to define "biggest."

WESTIN: Right.

SEC. CHERTOFF: "Biggest" doesn't mean most likely to happen. It means if you look at probability, vulnerability, and consequence as a formula for risk, although the probability is lower than other attacks, we are quite vulnerable because it's the nature of a weapon of mass destruction that it's very hard to protect against and the consequence can be astronomical. So a biological weapon or a nuclear weapon would be, to my mind, just light years beyond what we've experienced. And from my standpoint, while local law enforcement and state authorities do a good job with homegrown terrorism kind of -- if I can use the term -- garden variety or routine types of terrorism, the federal government is uniquely situated to deal with the issue of coordinating on a weapon of mass destruction.

Now, the good news is I don't think this is around the corner. The bad news is the investments that we need to continue to build protection and resiliency against a weapon of mass destruction are long-term investments. And that means we have to make them now even though the consequences and the need for them may not be felt for five or 10 years. And I was talking to Pete Peterson a few minutes ago about the financial question, the issue of, you know, why we don't get with long-term problems now. Well, this is the analogue to the get (ph) crisis and the financial crisis in the physical world. If you don't invest in the capability to refine detection or protection against these kinds of weapons of mass destruction, when the day comes that it's around the corner, you're not going to have the time to deal with it, and then the consequences will be catastrophic.

So, to me, just as I think we've got to deal with our economic ticking time bombs, this is the kind of physical ticking time bomb we have to invest against.

WESTIN: You say it's not the highest probability, or it's not around the corner I think is what you said, sometimes, though -- in fact, we had one in the last, I think, two weeks or so -- there are reports that come out from academics and others that actually sometimes put percentage numbers against the likelihood of a nuclear device or a biological attack, and usually it's a pretty high percentage within a pretty short period of time: In the next three or four years there's going to be a 50-percent chance. You must look at those. I mean, is it -- are they worth the paper they're written on, in your opinion? I mean, what are they based on?

SEC. CHERTOFF: Well, first of all, I think when you actually try to assign a percentage -- it reminds me when I was a trial lawyer, you know, I had clients that would say to me, what's the percentage chance I'm going to win the case? I'd go, 82.5 percent. (Laughter.) Now, truthfully, that's unverifiable. I mean, you either win or you lose. You're never going to know whether you were in the 18 percent or the 82 percent. So I don't think you can percentage qualify it. I do think you can make some broad generalizations, which I think are consistent with the most recent report.

A nuclear device is probably the hardest to make -- the hardest type of weapon of mass destruction and therefore the least probable, unless one were stolen or -- and this is obviously the biggest concern -- unless a country which possessed the nuclear device were to make it available to a terrorist group or deliver itself. That's why we obviously look at proliferation as essentially the handmaiden of this kind of weapon of mass destruction.

The picture with respect to a biological weapon is not quite a rosy, if I can describe anything as rosy. We've had a biological weapon. We've had the anthrax attacks. We know it is possible to make anthrax from ingredients that occur in nature, not like you have to refine it like enriched uranium. And it's a question of know-how and weaponizing.

So the people with the know-how are the threat, and it's very, very difficult to detect a biological weapon because you can carry it in in a very, very small vial, or you could even make it, if you have the know-how, here in the United States. So a key element is the ability to respond and mitigate.

The good news on most of these biological weapons is we do have countermeasures and antidotes. The bad news it's hard to distribute them. We've got big stockpiles, but how do you get it in the hands of people, perhaps in a 24-hour period in the big city? And that's why I've argued for a plan of actually letting at least some populations have what we call medical kits -- you know, med kits -- that would have in those kits some of the most likely countermeasures for a biological attack. You would give it to people, maybe first responders -- we're already doing this with some people in the post office -- and maybe you distribute it in the general population and give it to businesses, and the idea would be when the balloon goes up you would tell people, now you should, as a precautionary measure, take some Cipro or take something else.

Some people would say that's alarmist, and my problem is that until it happens it's going to sound alarmist. Once it does happen it's going to seem like common sense, just like about a year ago people would have said it's alarmist to believe that, you know, the Dow is going to fall several thousand points and the housing market is going to crash. We've now discovered that it's common sense to assume that. So, again, this is part of my mantra of let's make those investments now.

WESTIN: Terrific. Thank you. So we could keep talking but it's your turn. I would ask for -- if you want to ask a question, put up your hand or stand up and wait until the microphone comes to you. And then if you'd identify yourself and your affiliation, and try to keep it to one question if you would. Talk right in the mike. So why don't we start back here? There's a lot of hands in the air, but we'll start there and I'll work my way around.

Yes, sir?

QUESTIONER: I'm Gary McDougal (sp). You know me from UPS. You deserve our thanks because in the last four years we've been okay, and it's hard to get rewarded for nothing happening. And so I think we need to recognize that. My question relates to connecting methods of interrogation to your information. Can you tell us if the current methods of interrogation have in fact produced valuable information for you that has minimized the risk of attack?

SEC. CHERTOFF: Well, I'm probably not best situated to answer that because I'm the consumer of information, so whatever information is obtained, whether it's from signals intelligence or human intelligence or interrogation, I'm interested in the product. I don't always know -- in fact, I'm likely not to know exactly how it was obtained. So I have to rely, therefore, on someone like Mike Hayden said. Mike Hayden, the CIA director, has said that the methods of interrogation have produced really positive results that have led to plots being disrupted and things of that sort. You can always ask the question, well, was there another way of getting it? And the answer is it's hard to prove a negative or a counterfactual.

The challenge you have is some people you can woo with honey; some people you have to, you know, put a little pressure on. Lest we be too delicate about this, I want to remind people, our criminal justice system, the one that is presided over by our federal courts and has repeatedly been upheld by the Supreme Court, doesn't allow physical coercion, but it does allow an awful lot of coercive interrogation, in a sense what we call plea bargaining.

What plea bargaining is -- and some of you may know this very well -- what plea bargaining means is you have a very heavy charge over somebody, probably one that will send them to life; sometimes it will send their family away for life, and you basically strike a bargain where you say, I want information in return for reduced charges or you're going to go away to jail for the rest of your life. Now, that's not physical coercion, but anybody who thinks that "love bombing" the subject is wrong. That is very coercive. You are putting enormous pressure on people to get them to cooperate, but it's okay under our system. I might tell you, by the way, if you go to Europe, that's considered a barbaric system, and they would probably argue that system is the equivalent of, you know, abuse.

So I guess I would say to you there's a long debate to be had by others, not me. I can only tell you the results we've gotten from all the techniques we've used -- and I can't always tell you which one leads to which result -- has given us our real actionable information.

The last thing I would say is this, which I've experienced numerous times over the last four years, and I know my successor will experience. You get a little bit of threat information and it's very serious, and you have to try to determine if it's real or not real. If it's not real, if it's not really credible or specific, you don't want to disrupt the whole country. If it is, you may have to take some very disruptive measures and put some security in place that will be very inconvenient, so you have to make that judgment. And the last thing you want to have in that circumstance is to turn to your intelligence guys and say, well, what's the story, and have them say, we don't know because we're not allowed to collect any information that would tell you the answer.

And so I think when you strike the balance -- and I know there are very strong arguments on both sides -- you've got to do it with a recognition, if not the experience, of what it's like to be in a room where you have to make the decision, which I -- and I've been in that room, and I've been very grateful to get all the information I was able to get from our intelligence community.

WESTIN: Okay, there's one here, and we'll come back over here, I promise.

QUESTIONER: Mr. Secretary, you're -- is this mike on -- your legacy certainly has been a good one in terms of the success in preventing further attacks of terrorists on this country. Indeed, that will go down as one of the major positive accomplishments of the Bush administration. Looking ahead, though, we can't expect this to last, can we? What needs to be done to close the gaps that you find still concerning in guarding against the weapons that you've just described?

SEC. CHERTOFF: Actually that's a great question. I would say three things. Obviously we need to continue to use technology, intelligence gathering, organizational refinements to stay ahead of the curve in terms of what the enemy is doing -- better detection equipment, ideally equipment that's less intrusive, and we're working on some. I know no one likes to take their shoes off. We're working on some devices that would allow you to keep your shoes on. You know, this is a question of really having the technology that works. (Laughter.)

So that's one thing. A second thing, though, is more strategic, which is to look at the long-term pool in which people recruit, and that's what my colleague Bob Gates talks about as soft power or Condee Rice talks about as soft power. It's changing the dynamic overseas and here at home -- but really less of a problem here at home than overseas -- to shift the tide against al Qaeda. It's very difficult to do because the government can't do it overtly. We've got to encourage the communities in which these ideologues are recruiting to send a message of tolerance and being mainstream as opposed to allowing these recruits to basically subvert a religion and misrepresent it in order to recruit people to an ideology.

I know at our department, and others, we have done a lot of outreach. I've spent a lot of person time meeting with Muslim leaders, students and intellectuals here and overseas, and I think it's important we continue to do that because in the end, if you dry up the source of support, that's a very, very positive long-term solution.

The third thing we need to do is we need to maybe do a little bit of a better job using our foreign aid and assistance to enable what we're trying to do to win those hearts and minds. We do an awful lot for foreign aid. You know, the president has done an amazing amount of investment with respect to AIDS and malaria. We've been out there when there was a tsunami, rescuing people. This generates positive results, but there's not always enough follow-through, and the follow-through was not always at the grassroots level. Sometimes it's at a high-altitude level.

I was talking to a British Pakistani who is active in this area, about a week ago, and he was saying the British, they have less money to spend but the know how to get into the grass roots in these areas and work at the madrassas and at the individual community levels. And, frankly, I'm just reverse engineering what Hezbollah does. What Hezbollah and Hamas do is they take some of their money and they try to build social -- certainly Hezbollah -- social assistance networks as way of getting the allegiance of the population, which enables them to carry out their acts of violence.

So those are the three elements: continuing with the stuff that we do that is hard power, including some of the things we do overseas, but also working on the soft power front and working to make our aid and assistance go a little bit further.

WESTIN: Okay, back over there. And just to remind, please identify yourself and your affiliation so we have it for the record.

QUESTIONER: Thank you. Mr. Secretary, my name is Roland Paul (sp). I'm a lawyer. My question follows logically from one of the earlier ones and draws on your experience in the Justice Department as much as in the Homeland Security, and also your brilliant background as a legal scholar. What do you -- could you give us a few words as to what you think the right approach is for the detention of suspected terrorists? I mean, it may be a modified POW, modified criminal, or may be a separate regime. Thank you.

SEC. CHERTOFF: Okay, again, if you get a prior consistent statement in the statement in the record -- (laughter) -- so I don't look like I'm a Johnny-come-lately here. I think that we have to recognize that -- and I used the criminal justice system to prosecute terrorism cases when I was head of the Criminal Division. We did -- with Sauri (ph) we did a bunch of cases. So certainly for people captured in the U.S. it's a viable, good system that works in many cases. It does not work in every case. And there are cases where you can have perfectly good evidence, you can have electronic surveillance -- you can have a videotape of someone in another country literally planning a terrorist attack, and you catch them here in the country, you think, wow, I've got great evidence on videotape; it's not admissible in our courts because you can't get the witnesses in because the other country doesn't want to publicly acknowledge that it videotaped or that it's cooperating with the United States. What do you do?

So you do need to find an alternative system, at a minimum to detain someone like that. And I think that's what we've been seeing as the topic of debate since 2001. I believe -- and I said this in 2003 -- the right answer is some kind of a system which Congress will have to enact -- it's going to have to be something Congress does -- that allows presentation of evidence, but maybe not according to the typical rules, of federal judges, someone that's, you know, visibly seen as a neutral arbiter, but one that allows a little flexibility in the process so that it's not necessarily the same standard of proof and so that you can keep classified material secret, and so that you can use evidence that is reliable but doesn't necessarily meet the technical requirements of a criminal case.

I actually think there are systems that we use that are similar to that in certain kinds of legal regimes, and I won't bore you with what they are, but I've talked about this over the years with a number of people on all sides of the debate. I actually believe you could get an 80-percent consensus. There would be about 20 percent where there would be disagreement. The difficultly has been mechanically to get the right people to sit down and do this, and it's been hard in an environment where these issues become matters of hot political debate and therefore there's more heat than light shed on them.

Again, new administration. There's an opportunity to take a deep breath, get some people together on all sides of the issue. I think we all fundamentally want the same thing: We don't want to treat people who are innocent unfairly, but we don't want to have people who are dangerous going around. And let's build the system and get Congress to ratify it. And the phrase I used, you know, five years ago, which I think is right, is we need to have a sustainable architecture, one that we're going to be able to live with and be comfortable with over the next decade or so.

WESTIN: Okay, thanks.

Down here. Yes, sir. We'll get a -- no, just behind you. Sorry.

QUESTIONER: Herb London, Hudson Institute. Michael, nice to see you.

SEC. CHERTOFF: Thank you. It's good to see you.

QUESTIONER: And I think we are all owe you a debt for the extraordinary work that you've done.

The question I have relates to a recent Pentagon report that suggests 61 detainees from Guantanamo are now back on the battlefield. I wonder -- and this is presumably based on forensic information about where these people have gone. I wonder what kind of tracing do you do of these people, and what do we know about them when they return to the battlefield?

SEC. CHERTOFF: Well, there are people who have returned to the battlefield when they've been released. There was one case where -- (inaudible) -- a Kuwaiti was released and then ultimately found a way into Iraq as a suicide bomber. And that's the flip side of the coin about detainees. If you let them go and they commit acts of terrorism, you're going to have to look in the eyes of the family members of the person who lost their life and you're going to have to explain why that happened. So that's why it's a tough balance.

What we do is before anybody leaves, we -- I always ask to make sure that we have all of their biometrics -- their fingerprints, photograph -- so that we can catch them if they ever come into the United States. And obviously that also would be available to people out in other parts of the world -- my view is we ought to share it with our allies and friends. The key is to be able to make sure a person like that cannot come back in and masquerade as somebody else, and that's where the biometrics -- the prints and the face and stuff like that make a big difference.

WESTIN: Okay. Let's come down in front and then we'll come back over here. Microphone's coming.

QUESTIONER: Thank you.

My name is Fredrick Iseman and I'm with Caxton-Iseman Capital. I'm also a member of the council's nuclear posture review, where some of these issues have been discussed.

My question is that you mentioned investments that you'd like to see made in WMD prevention, and I just wanted to ask specifically what those are. Some of the things that have been thrown around are getting rid of the highly enriched uranium that's in research laboratories in the United States, enhancing the IAEA enforcement budget, and working foreign ports -- I don't know if those are on your list but I'd love to hear what your list is.

SEC. CHERTOFF: Well, let me stick to the things that fall more or less in the domain of my department. I mean, obviously, the extent you can tighten up security for nuclear plants around the world, that's a really good thing. And, of course, preventing proliferation, preventing new nuclear powers is a critical thing.

Here at home some of the things to do are, we want to go with the next generation of detection technology, which would be more precise and therefore -- it's not that it would detect more types of material; it's that it would have -- prevent fewer false positives, which actually makes things work more efficiently.

Another initiative we have underway is to look at radioactive material that's not useful in a bomb but would be very useful -- in a nuclear bomb -- but very useful in a dirty bomb. It's not going to create a nuclear reaction but it will be contaminant. And some of these are quite common, including in medical facilities. We have a program underway now, over the next year -- maybe a little less than a year now, about eight months, it should be finished -- to lock down all those machines and make sure they're much harder to remove the material from. But ultimately we need to either move to a different kind of material or have machines that really don't allow access to the radioactive material inside.

One thing I don't think we should do is 100 percent scanning in foreign ports. First of all, some of our foreign allies will not agree to do that. Second, in some ports the architecture of the port doesn't lend itself to that. And third, frankly, some ports are low risk. Now we are doing some of this now. We are doing some of it overseas in Pakistan and in Honduras and other parts of the world, but I have to say candidly I'm less worried about someone building a nuclear bomb in Britain and shipping it over from South Hampton. So I'm not sure Britain's an area where I would feel very strongly that we need to put scanning overseas.

But there's a lot of work to be done, including work on the biological side here, on getting the capability to distribute the countermeasures and also to do the planning work. You know, people tend to think of expenditure as just stuff. Planning, thinking and exercising, which cost money, are the most critical part in having an effective response.

WESTIN: Thank you. Down here.

QUESTIONER: I'm Catherine Gay, a communications consultant. Quick question: How essential is it for us to capture bin Laden? I certainly understand that it would be from a psychological point of view. From a practical point of view, will it make an enormous difference if and when we capture him?

SEC. CHERTOFF: It will make some difference. I mean, obviously he is a source of inspiration and he has a role to play in al Qaeda, but I think it's fair to say, as others have said publicly, that I don't think he's got a lot of freedom of movement wherever he's hiding. So I -- it's not going to be a magic bullet if he's killed or captured. It would certainly be a blow to al Qaeda, but, you know, they are -- like any other group they are developing a younger generation, and as that generation grows and gets maturity they will ultimately move forward. You know, we're seeing -- we saw Zarqawi for a while in Iraq. He was very aggressive and he, of course, was removed so he's not on the scene anymore.

So I'm afraid the ideology in some form or another will be with us for a long time. And the individual actors may come and go, but this is going to be a persistent problem until change the strategic landscape.

WESTIN: Thank you.

Yes, sir?

QUESTIONER: William Haseltine, The Haseltine Foundation. Do you have thoughts on how you would recommend reform of the oversight --congressional and judicial oversight of your department?

SEC. CHERTOFF: Yes.

QUESTIONER: (Laughs.)

SEC. CHERTOFF: I think we've said, particularly in the House of Representatives, there are many committees that assert jurisdiction over us.

Now, I'm -- I welcome oversight like every other department gets with an authorizing committee and an appropriating committee. And, by the way, our appropriators -- and I met with the chairman of our House committee yesterday on the way out the door -- our appropriators I'm very happy with. They do a very good job. We don't always agree, but you've got one appropriating subcommittee in each House that deals with our stuff, and I think it's a very good relationship.

The House of Representatives on the authorizing side -- because we have so many different authorizers, what happens is they all have their own priorities and their priorities are often different. And to be candid, sometimes they're influenced by things like whose turf, a particular project -- as in who would get to control the money. That is bad for the department because we're answering to too many different masters.

So I would urge, as others have, that the Homeland Security Committee, which is what was set up by Congress to be our oversight committee, be the principle committee of jurisdiction, and that would align the House with the Senate, which basically does that. And I think it'd be better for Congress and it would be better for us as well.

WESTIN: Thank you. We'll go to the back and we'll come back to you, I promise.

QUESTIONER: Hi, Bill Luers; I'm president of the United Nations Association. One of the reasons that your department was set up and the Director of National Intelligence was set up was to try to provide the president with -- and the whole system -- with more accurate information involving exchange of information among the various agencies in the intelligence community. How has that worked out? And can you describe to us what types of things you've done to improve, and are you satisfied that enough has taken place?

SEC. CHERTOFF: I can tell you in the eight years that have passed since I came into government with the administration -- I started out in Justice -- there's been a sea change in information sharing -- and certainly across the federal government.

Because of the DNI -- the Director of National Intelligence -- the NCTC -- the National Counterterrorism Center -- and what we do, and FBI and everybody else, there is a much, much better integrated product and a process for making sure that all the intelligence is looked at by the relevant agencies in a systematic way. It doesn't mean that dissent is suppressed -- and we sometimes get reports where there may be dissenting analytic views -- but it means we're all getting access to the same product, the same information that we need to know.

So I have not had an experience in the last few years where I felt I was shut out of anything that was necessary for me to know or appropriate for me to know. And I think that this is -- you know, it's a cultural change as much as an organizational change, because the culture of Washington is information is power -- I'm going to control my information and then I have more power. And the leadership of the intelligence community, to a man, whether it's Mike Hayden, or Mike McConnell, or Bob Mueller, or anybody else -- they've all worked to change that presumption into, we ought to be sharing; we are doing our job best when we are sharing with other people.

WESTIN: Down here front -- yes, sir. Microphone -- it's coming.

QUESTIONER: Julius Coles with Africare. One of the things that's been in the news quite recently is the fact that we're beginning to establish contact with foreign governments to take the detainees that are in Guantanamo to be -- (inaudible) -- there. It is obvious that all of them are not going to be taken and some of them are going to have to be incarcerated in the United States. What are the security implications of incarceration and future implications for trial, or what will happen to them?

SEC. CHERTOFF: Now, that's a big question which the next administration's going to have to confront, which is why I think the president-elect indicated there'd be some complicated things to work out. I mean, there are practical issues, like, assuming you're going to incarcerate people, where are you going to put them? What community is going to want them? What are the implications not only for securing them but making sure that community doesn't become a target?

There are legal issues. Even though in Guantanamo these individuals have basic legal rights like habeas corpus, when you set foot in the U.S. you get a whole additional group of legal rights. So you could wind up with a circumstance where someone starts to claim rights under the immigration laws. And that's really complicated and it would take hours to talk about so I won't talk about it here.

But the short answer is these are exceptionally complicated legal issues. I might also point out that this issue is not limited to Guantanamo. There are now cases being filed in the courts about people being detained in Bagram Air Base in Afghanistan claiming they have a right to habeas corpus.

Now, let's take the logic of this where it goes, because I think this is one of the challenging legal issues of our time. If habeas now extends around the world -- which was not true 20 years ago -- in World War II the courts were very clear; you don't get Habeas when you're overseas -- then every time you capture somebody, do they get to call the judge up and get released? Do you need a warrant to do that? And then that raises the even bigger question: Can you kill people in a war? Because after all, if it's all part of the criminal justice system -- we don't kill criminals in this country; we arrest them. These are really difficult questions. And, you know, I would venture to say of all the legal issues I've ever dealt with, this set of issues is the hardest because for many -- for decades we approached the world as if it was neatly divided into two categories -- criminal justice and war. We knew what war was; people, you know -- it was a battlefield, uniforms, planes. We knew criminal justice. And unfortunately the world did not confine itself to the categories.

So now we have people who -- I mean, here's the question I'll leave you with: You find a leader of al Qaeda walking along the streets of New York. I don't think any of us would argue -- I should say, I wouldn't argue you can shoot him. I would argue you'd have to arrest him and you'd have to treat him under the laws of the country. A week later, same person walking along in Afghanistan. You can drop a bomb on him. How can that be? How can it be that depending on where you are -- here's that difference? That's a good question people are going to have to answer.

WESTIN: I think we have time for about one more question.

Yes, you, back here. Yes.

QUESTIONER: Steve Handelman, John Jay College. Sir, in a recent interview you pinpointed a new danger that we face totally apart from the al Qaeda issue -- specifically the ongoing problems in Mexico started by the drug cartels. And you talked about the potential or the necessity for developing a surge capacity in case spillover of the violence there affected us -- the southern border and further inland. I wonder if you could elaborate a little bit more about what that danger is and what we're doing about it.

SEC. CHERTOFF: Yes, I'd be happy to. This comes out of an interview I gave about a week ago in which I mentioned to a reporter from the Times that -- I've spoken a lot about the issue in Mexico and the fact that the president of Mexico is doing a heroic job tackling the drug cartels, which have really run free in some of the northern communities of Mexico for many years now. And he's taken them on and they are reacting, unsurprisingly but unfortunately, with unbelievable violence. And not just against the police and the public officials, although they're assassinating public officials and killing police, but they attack innocent citizens, and they do it barbarically. They're actually using some of the tactics that you can see being used in Iraq, literally to terrorize the government, to terrorize the population, to try to push back on President Calderon.

Now, you know, we're helping them. We've got the Merida Initiative, which is critically important. We're giving him money, tools, advice, instruction, all those kinds of things. And he's got the determination. Nevertheless -- although I hope for the best, I prepare for the worst -- so we have -- we've seen an uptick in violence at the border, mainly directed against the border patrol. But I can unfortunately imagine a circumstance under which that violence crossed over, either because the cartels were getting more and more desperate and because they were angry at our help to Mexico and they wanted to lash back or because the cartels prevailed and then they began to push against us.

And so what we've done is we've got a plan in place with our various components to make sure we can put, basically our SWAT teams and our similar capabilities at the border if necessary, and we've got a backup plan with the Department of Defense so that if we did get a surge of violence that threatened to spread across the border, we would be able to meet it. You know, supposing, for example, a drug cartel was chasing somebody and they got to a port of entry and tried to follow them into the United States, we'd want to be able to respond to that.

But there's a larger issue, which is as we think about the threats that we face in the world; everybody knows about al Qaeda, Hezbollah, the FARC, other things. I believe this potential threat and what's at stake has been understudied in this country. I have a lot of faith in Calderon. I think he will prevail. But everybody needs to understand that it's in our national interest that he does prevail.

When we went -- when the president went to Congress for the Merida Initiative, people were complaining, "Why are you putting the money in Mexico? Give it to our sheriffs on the border." What the president understood is the place to strike the enemy is where the enemy's head is at. You don't put the money where the enemy's arms and legs are. And the head is in these communities in Mexico.

If we don't get this right and if you had organized criminal groups, including some with military training, operating with impunity in northern Mexico, we would find ourselves in a very, very dangerous situation from a variety of standpoints. So to me that is top of the list of national security concerns, you know, in the next administration.

WESTIN: And with that, we're right at 2:00.

I want to, first of all, thank everyone for coming and participating, and the level of interest is reflected by how many people -- and I apologize to you -- who had questions we didn't get to.

And most important, thank you very much. Thank you for your time, but also thank you for your service. (Applause.)

SEC. CHERTOFF: Thank you.

.STX

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