Chertoff's Thesis Shows Changing Views on Rights

Secretary of Homeland Security Michael Chertoff was 21 when he graduated magna cum laude from Harvard College in the summer of 1975.

A couple of months earlier, the New Jersey native had submitted his senior thesis to the History Department.

In his thesis, Chertoff sharply criticized the “incomplete, if not pernicious” utilitarian philosophy of Jeremy Bentham. Nearly a third of the 110-page essay was devoted to attacking what Chertoff saw as Bentham’s disregard for individual rights.

But during Chertoff’s more recent record with the Bush administration, his view of individual rights seems to have become less sympathetic. Chertoff has been criticized for being an architect of the White House’s effort to strengthen executive authority, first as head of the Justice Department’s criminal division—during which time he co-authored the Patriot Act—and now as chief of the Department of Homeland Security (DHS).

Chertoff recently came under fire after the National Security Agency’s secret domestic spying program was exposed by The New York Times in December. As chief of DHS, he is responsible for obtaining and using the intelligence gathered by the NSA.

Chertoff, who has vigorously defended the spying program in interviews, has been named as one of the defendants in a lawsuit brought by the Center for Constitutional Rights challenging the legality of the program.

BACK IN CAMBRIDGE

But at Harvard in 1975, Chertoff’s main concern was to defend individual rights from Bentham’s utilitarian philosophy.

Chertoff begins his thesis by laying out a historical perspective to place Bentham in context before going into an extended discussion about Bentham’s theories of ethics and metaphysics, punching holes in what he saw as Bentham’s lack of a foundation for absolute rights—“since [he] has no absolute concept of right.”

But Chertoff saved his best fighting words for the attack on Bentham’s conception of the individual.

Bentham operated with no “concept of right” and thus, human rights did not exist in his world, he wrote.

“Bentham’s doctrines of greatest happiness and conditional obligation do not protect rights at all,” Chertoff said. “To the utilitarians, the only reason why civil rights should be respected would be that more pleasure is attained or pain avoided by general respect for them.”

Chertoff also attacked what he saw as the lack of safeguards for the rights of the minority in Bentham’s philosophy.

“[Bentham’s] main effort was directed against what he conceived as the two chief elements of misrule: ‘oppression and depredation’ perpetrated by the ruling minority upon the suffering majority,” Chertoff wrote. “It does not seem that he was as concerned with the conflicts of interest within this majority, or with misrule by the majority.”

Though Chertoff is now accused of being an architect of President Bush’s drive to increase executive authority, at Harvard he wrote that a philosophy of adherence to the sovereign abrogated the right to disobey “bad laws.”

“Benthamism cannot even provide us with a basis for disobedience of the type that would make disutilitarian bad law void,” Chertoff wrote. “Even if a sovereign enacts a law that goes against the interests of the majority, a consistent utilitarian may not always be justified in disregarding it.”

Bentham’s philosophy of placing more power in the hands of the sovereign, Chertoff concluded, constituted a “shortsightedness about the possibilities of tyranny of the majority.”

HARVARD LAW AND BEYOND

The civil libertarian positions that Chertoff staked out as an undergraduate at the College seem compatible with much of his early career, including his post-Harvard Law School clerkships for liberal Supreme Court Justice and fellow Harvard Law School alumnus William J. Brennan and for Appeals Court Judge Murray I. Gurfein, the judge who first permitted The New York Times to print The Pentagon Papers.

After first working in private practice, Chertoff worked under then-U.S. Attorney Rudolph W. Giuliani in New York. In 1990, he was appointed the U.S. attorney for New Jersey by former President Bush and was the only U.S. attorney in the nation who was reappointed by President Clinton three years later.

Chertoff developed a reputation for being more of a Republican partisan in the mid-1990s after he served as special counsel to the U.S. Senate Whitewater Committee that investigated a failed real estate deal involving the Clintons.

Before becoming secretary of homeland security, Chertoff was appointed assistant attorney general for the criminal division and subsequently to an appellate judgeship in Philadelphia.

The lone dissenting vote in his judicial confirmation was cast by Sen. Hillary R. Clinton, D-N.Y.

—Staff writer Paras D. Bhayani can be reached pbhayani@fas.harvard.edu.