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.
Note: We'll post a transcript of Specter's remarks as soon as we have them.
Update: Uh oh. In remarks later in the hearing, Sen. Feinstein addressed Specter's insertion of the measure, making a point of saying that the language had indeed been âslipped in," adding that it had been slipped in "in a way that I donât believe that anyone on this committee knew it was in the law... no Republican, no Democrat."
Later Update: OK. In later remarks in response to Feinstein, Specter said that he actually didn't know about the added provision until Feinstein approached him recently about the issue. After Feinstein's inquiry, Specter says, he asked his chief counsel about the issue, who then explained what had happened. So according to him, Specter's staff was responsible for the provision, but Specter himself didn't know about it.
Latest Update: Here is a transcript of Specter's remarks:
When Senator Schumer says that the provision was inserted into the PATRIOT Act in the dead of night, heâs wrong. That provision was in a Conference Report which was available for examination for some three months. The first I found out about the change in the PATRIOT Act occurred a few weeks ago when Senator Feinstein approached me on the floor and made a comment about two U.S. Attorneys who were replaced under the authority of the change in law in the PATRIOT Act which altered the way U.S. Attorneys are replaced.
Prior to the PATRIOT Act, U.S. attorneys were replaced by the Attorney General for 120 days and then appointments by the Court or the First Assistant succeeded to the position of U.S. Attorney. The PATRIOT Act gave broader powers to the Attorney General to appoint replacement U.S. Attorneys. I then contacted my very-able Chief Council Michael OâNeill to find out exactly what had happened. Mr. OâNeill advised me that the requested change had come from the Department of Justice, that it had been handled by Brett Tolman, who is now the US Attorney for Utah.
That the change had been requested by the Department of Justice because there had been difficulty with the replacement of a US Attorney in South Dakota where the court made a replacement which was not in the course with the statute, hadnât been a prior federal employee and did not qualify. There was also concern because in a number of districts the courts had questioned the propriety of their appointing power because of separation of powers. As Mr. Tolman explained it to Mr. OâNeill, those were the reasons and the provision was added to the PATRIOT Act, and as I said was open for public inspection for more than three months while the Conference Report was not acted on.
If youâll recall, Senator Schumer came to the floor on December 16, and said he had been disposed to vote for the PATRIOT Act but had changed his mind when the New York Times disclosed the secret wiretap program, electronic surveillance.
May the record show that Senator Schumer is nodding in the affirmative; there is something we can agree on. In fact we agree sometimes in addition.
Well, the Conference Report wasnât acted on for months and at that time this provision was subject to review.
Now, I read in the newspaper that the Chairman of the Judiciary Committee, Arlen Specter, slipped it in. I take umbrage and offense to that. I did not slip it in and I do not slip things in. That is not my practice. If there is some item which I have any idea is controversial I tell everybody about it. Thatâs what I do. So I found it offensive to have the report of my slipping it in. Thatâs how it got into the bill.
*Update: This post incorrectly originally stated that Tolman worked for the Justice Department. In fact, he worked as counsel to the Senate Judiciary Committee, of which Specter was Chairman at the time .