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Specter DetectorU.S. attorney scandal update: Who's to blame for those alarming Patriot Act revisions?

By Dahlia Lithwick
Posted Monday, March 5, 2007, at 6:58 PM ET

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Now, it's not necessarily outrageous that Sen. Specter didn't know what his subordinate slipped into the legislation. The Patriot Reauthorization was a long and hotly debated bill. While one might hope that the committee chairman would have read the legislation, you can understand that he might skip a clause or two in the melee. But this was not some minor technical amendment. It was a substantial enhancement of executive power. So, Specter now finds himself in an exceedingly strange position: His staff either lied to him or misled him about what he acknowledges to be a significant legal change. He himself observed at that same hearing: "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."

So, Specter concedes that the item is controversial. He denies knowing about it. That implies it was O'Neill who slipped the new language in, and misled Specter and the Senate. And yet, at least as far as I can tell, nobody in power has said a word about O'Neill's conduct, and not one iota of blame has been laid at his doorstep. Joe Conason noted in Salon last month that 1) O'Neill is a former Clarence Thomas clerk, and 2) he joined Specter's staff at the same time Specter was fighting accusations of being wobbly in his fealty to the White House.

The Justice Department has been quite clear that this change was needed to do away with judicial incursions into an executive function: They felt it improper that judges were effectively making executive-branch appointments. And it now seems that either the DOJ snookered O'Neill, O'Neill snookered Specter, or Specter snookered his colleagues. But any way you slice it, the executive seems to have encroached on congressional turf in order to expand executive turf.

Whether Specter actually knew that O'Neill was carrying water for Karl Rove and turned a blind eye, or whether he was duped by O'Neill may never be known. But either way, it seems to me that Specter's office has done terrible damage to the very notion of independent and co-equal branches of government in this affair, and has yet to be called to account for it. Given that respect and esteem for co-equal independent branches of government is one of the senator's sacred cows, it's doubly ironic that no one has questioned him on this.

It's a good thing that the ousted U.S. attorneys will testify before the House and the Senate. It will clear up a good deal of confusion about the Justice Department's claim that there was something wrong with their job performance. But it seems to me that that's precisely 50 percent of the scandal here. And there are some other folks deserving of subpoenas as well. Mr. O'Neill and Mr. Tolman spring to mind. The outrage isn't merely that the Justice Department abused its power to hire and fire. The real scandal is that it rewrote federal laws to do so, yet nobody seems to know who did it or why.

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Dahlia Lithwick is a Slate senior editor.
Photograph of Sen. Arlen Specter by William Thomas Cain/Getty Images.
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Remarks from the Fray:

Ms. Lithwick properly calls [Specter] to account for the provision "slipped into" the Act, but the real scandal is that things get "slipped in" at all. Why in the hell isn't somebody, and not just on Specter's staff, reading this stuff? Did some Democratic Senator or Congressman object to it? No. Why not? Because they, or their "people" didn't read or comprehend it.

--JackD

(To reply, click here.)

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