Pacific Views

FAQ on Slipping the Provision Stripping the Senate of Oversight into the Patriot Act

Eric Alterman got a letter from one of his readers about why didn't the Senators do something about the provision that stripped them of the ability to approve US Attorneys before it was sent to the President.

Name: JB Sheehy
Hometown: Baltimore, MD

Regarding this little US Attorney issue, the question I feel that is not being asked is, why didn't the Dems in the Senate bring up the issue or ask questions Or (harder questions)about any new provisions in the Patriot Act? Especially one involving allowing the President being able to fire at will and then appoint US Attorneys for an indefinite amount of time without Senate confirmation? Did they not read the whole act before they voted? To frail in shock as Senator Feinstein did in her press conference this morning trying to make the point that she feels that this was a concerted and deliberate effort by the White House to insert more White House "friendly" (read Republican) as US Attorneys, is disingenuous at best. Why was this not an issue BEFORE this act was voted on in the Senate or House? We know we can't trust the MSM to cover and/or ask these questions. We should however, be able to trust our representatives to ask these questions. Sample question: Please tell us, how is National Security enhanced by the White House being able to replace any US Attorney at will, for an indefinite amount of time, without Senate approval? It is that simple. Again, did she read the whole act and then feign shock? How could she or any other senator who read the act, containing this provision, not think that this White House would seek to use this provision as a political tool? Do you think it is time to take another look and see what else is buried in this legislation?

Here's what we know about this provision so far. On January 17th, TPMMuckraker reported that Senator Arlen Specter had "slipped" the provision into the Patriot Act when the bill was in the conference committee.

Former Senate Judiciary Chairman Arlen Specter (R-PA) slipped the language into the bill at the very last minute, according to one of the Republican managers of the bill.

A spokesperson for Rep. James Sensenbrenner (R-WI), who led the House team working on the bill, said that the provision was inserted by Specter into the final draft of the bill. The language was apparently requested by the Justice Department. Specter's office didn't respond to numerous requests for comment.

Earlier versions of the bill did not contain the provision, which grants authority to the Attorney General to replace U.S. Attorneys without Senate approval. When the House and the Senate first voted in favor of the legislation, the provision did not exist.

Instead, the tweak was inserted during the conference committee, where lawmakers from the House and Senate reconcile discrepancies in the two versions and craft a final bill.

In an unusual move, Republicans blocked Democrats from participating in many of the committee's activities.

Sheeny asks, why didn't the Senators read the bill? Evidently, they all did have time to read it, but the change was a very minor rewrite of one small section, and easily overlooked. So what exactly was the change?

SEC. 502. INTERIM APPOINTMENT OF UNITED STATES ATTORNEYS.

Section 546 of title 28, United States Code, is amended by striking subsections (c) and (d) and inserting the following new subsection:

`(c) A person appointed as United States attorney under this section may serve until the qualification of a United States Attorney for such district appointed by the President under section 541 of this title. '.

One can see how this change could have easily been overlooked in the massive bill that was sent to the Senators to review.

A couple of weeks later, Specter says he does not "slip" such things into bills and that it was done by someone on his staff without his knowledge. Nevertheless, he says the Senators had plenty of time to review the bill and object before it was signed into law.

This morning, Specter said that he found the report "offensive" and proclaimed, “I do not slip things in.” If an item is potentially controversial, he argued, he makes it a practice of alerting other senators to the issue.

The bill was not voted on for three months after the conference, Specter continued, giving senators plenty of time to notice and object to the measure. Sen. Dianne Feinstein (D-CA) and others have said that the short and obscurely-worded measure, part of a very large and extremely controversial bill, simply went unnoticed as the fight over its passage roiled for months.

Specter explained that the request for the language's insertion came from a Justice Department representative, and was handled by Brett Tolman*, who is now the United States Attorney for Utah, and that the principal reason for the change was to resolve "separation of power issues."

According to the original law, the Attorney General could appoint interim U.S. Attorneys, but if they were not nominated by the President and confirmed by the Senate within 120 days of being appointed, the federal district court would appoint a replacement. Justice Department officials apparently didn't like that judges were able to appoint U.S. Attorneys, members of the executive branch, so the new language removed the court's involvement in the process. But in doing that, the change also allowed the administration to handpick replacements and keep them there in perpetuity.

As he has before, Specter said this morning that he supports changing the law back to its previous version.

It is clear that someone in the administration snuck this provision into the bill for the express purpose of expanding the power of the executive to work without checks and balances from the other branches. And it is clear that this administration will lie and cheat and act underhandedly to grab more power for themselves. They have proven they are not to be trusted to govern.

JB Sheeny has one very good question: what else might have been hidden in this act by the cheaters in the reauthorized act?

Posted by Mary at March 19, 2007 12:12 AM | Law/Justice | Technorati links |