Holder was trying to reassure his many Republican critics, who insist that trying Khalid Sheikh Mohammed and his alleged al-Qaeda colleagues in a New York federal court is a “grievous mistake” that will endanger American citizens and undermine the “war on terror.”

But Holder’s statement was also eerily reminiscent of one made during the Bush administration by Pentagon General Counsel William Haynes — a statement which outraged Democrats and contributed to the resignation of the military’s top prosecutor.

In October 2007, Col. Morris Davis resigned from his post as military commission chief prosecutor, saying that he refused to report to Haynes. Davis later testified that he felt there was interference in his cases from Defense Department officials, citing specifically Haynes’ statement that “We can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.”

Haynes resigned several months later.

Davis, now a civilian, is still concerned about justice and the appearance of justice for Guantanamo detainees. He recently wrote in The Wall Street Journal that using both federal courts and military commissions to try terror suspects “is a mistake. It will establish a dangerous legal double standard that gives some detainees superior rights and protections, and relegates others to the inferior rights and protections of military commissions. This will only perpetuate the perception that Guantanamo and justice are mutually exclusive.”

Well, Sen. Dianne Feinstein (D-Calif.) agrees.

During Wednesday’s Senate Judiciary hearing on insurers’ anti-trust exemption status, the California Democrat blasted away at the industry, saying it “lacks a moral compass” and puts a lust for profits above the needs of patients.

Premiums are out of hand. I think CEO salaries are out of hand. I think administrative costs, running about 23 percent, are out of hand.

My bottom line belief is that the health care medical insurance industry should be nonprofit in the United States. And the more I read about other countries, the more this view is supported in my own mind.

Needless to say, Feinstein has endorsed the proposal to scale back the industry’s anti-trust exemptions.

The role of the limited antitrust exemption provided by the McCarran Ferguson Act is to increase competition by promoting the characteristics of competitive markets described above.  From all indications, the law has been remarkably successful in achieving this objective.  Numerous studies conducted by academic and government researchers find that insurance markets are highly competitive (e.g., Joskow, 1973).

The age of the study wasn’t lost on Sen. Sheldon Whitehouse (D-R.I.), who was quick to challenge Powell about his dated citation. That exchange:

Whitehouse: “Do I have the date of that article correct — it’s 1973?”

Powell: “Um, I believe so.”

Whitehouse: “And so, necessarily, any of the data on which that article would rely for that conclusion would be pre-1973 data, correct?”

Powell: “Um, for that article, I would suppose it is … I also cite two of my own studies earlier in the testimony, that are much more recent.”

Next to question Powell was Sen. Al Franken (D-Minn.), who asked the professor whether the highly concentrated insurance market — in which single companies can dominate in many regions of the country — is indicative of healthy competition.

“Do you believe having 90 percent of a market dominated by a single insurer meets your definition of a competitive market?” Franken asked.

“First of all, I’ll say that I’m not aware of that 90 percent number,” Powell responded. “I’ll take your word for it.”

Said Franken: “This is post-1973.”

As Committee Chairman Patrick Leahy (D-Vt.) explained at the hearing, the health insurance industry — unlike any other private industry in the country — is allowed to engage in price fixing, bid rigging and market allocation, all of which would violate the law if any other sort of company did it. Last month Leahy introduced the Health Insurance Industry Antitrust Enforcement Act of 2009, which would repeal the antitrust exemption for health insurance and medical malpractice insurance providers. Sens. Harry Reid (D-Nev.), Dianne Feinstein (D-Calif.), Russell Feingold (D-Wis.), Charles Schumer (D-N.Y.), Richard Durbin (D-Ill.), Arlen Specter (D-Pa.) and Al Franken (D-Minn.) are co-sponsors.

Although Lawrence Powell, a professor at the University of Arkansas, testified on behalf of the Physician Insurers Association of America in support of continuing the antitrust exemption, even he struggled to explain why it makes sense. He repeatedly said that allowing insurers to share data on losses and costs of claims helps insurance companies price their services accurately and competitively. But as Leahy made clear in his questioning, his legislation would not prohibit such data-sharing. That led Powell to stumble and say that while he’s “not an attorney,” his understanding was that insurance companies would have to file a request to pool data, which would impose additional costs.

But Robert Hunter, Director of Insurance for the Consumer Federation of America and former Federal Insurance Administrator under Presidents Ford and Carter, saw it differently. In his view, the antitrust exemption, intended initially to be temporary but made permanent during closed-door conference committee sessions of Congress more than 50 years ago, must be repealed to overcome the insurance industry’s anticompetitive practices that have led to higher prices and reduced services. “It is high time that insurers played by the same rules of competition as virtually all other commercial enterprises operating in America‘s economy,” he testified.

According to Hunter, health insurance companies have been able to consistently pay less on claims by agreeing to lower the amounts they reimburse doctors and hospitals for services; adopting similar clauses in their contracts that limit their liability in unfair and abusive ways; agreeing to cut back coverage to certain places, and using similar claims processing systems designed to systematically underpay claims.

As Hunter testified, federal authorities have recommended eliminating or cutting back the antitrust exemption for health insurers and medical malpractice insurers on at least four different occasions after studying it. But Congress has never taken that step, presumably due to the power of the insurance industry lobby.

With the soaring cost of health care now in the spotlight, this may finally be the right time.

And she’s right. As I reported last week, the Senate Judiciary Committee ended up adopting almost all the Republican changes to the bill that removed or watered down civil liberties protections, while voting against most of the reforms proposed by Sens. Russ Feingold (D-Wis.), Richard Durbin (D-Ill.) and Arlen Specter (D-Pa.), which would have limited the FBI’s powers under the Patriot Act to going after what the law was designed to attack: international terrorism.

The result, as Feingold put it, was that the Senate Judiciary Committee had become the “prosecutor’s committee” — accepting virtually every recommendation from the FBI and Justice Department prosecutors to expand their powers.

“We’re deeply disappointed that the Obama administration sided with the committee Republicans to pass amendments to remove reforms from the already watered-down bill,” he said this afternoon, referring to seven amendments, five of which were introduced by Senator Jeff Sessions (R-S.C.), which removed civil liberties protections and which Sessions said were mostly recommended by the Obama administration’s FBI and Justice Department in closed-door classified briefings.

“We’re very disappointed in the final bill that was voted out of committee,” said Bankston. “It has fewer reforms than the original bill from Sen. Leahy, and it’s a very far cry from Sen. Feingold and Durbin’s JUSTICE Act.” The JUSTICE Act would have required the government to specify more clearly the targets of their investigations and their connections to terrorism, to keep the FBI from using its authority to engage in broad-based data-mining of Americans’ phone, library and business records.

The amendments adopted included removing a requirement that the FBI periodically review its gag orders on National Security Letter recipients, removed judicial review for those gag orders, and watered down an effort to heighten the showing required when the FBI is seeking library records. The text of the final amendments and votes on each is available on the Judiciary Committee’s Website here.

Bankston was also disappointed that the Judiciary Committee refused to consider amendments to the FISA Amendments Act passed last year, which he calls “a much graver threat to civil liberties.” Feingold’s attempt to offer an amendment was withdrawn when Committee Chairman Leahy said he’d oppose it on procedural grounds.

To Bankston, this was all evidence that Congress is far too willing to cave to the wishes of a Democratic administration, even if its proposals are just as bad for the civil liberties of Americans as the Republican administration’s were.

“In 2005, the Judiciary Committee was able to pass much stronger reforms under a Republican administration,” said Bankston. “Now, in a position of power and with a vaunted supermajority, the Democrats are still bargaining against themselves rather than having a united front and introducing new civil liberties protections. I think it’s because of the White House’s position that these powers need to be renewed. There’s an unwillingness to consider even minor reforms.”

The American Civil Liberties Union was similarly disappointed, and Michael Macleod-Ball, Acting Director of the ACLU Washington Legislative Office, came out with this statement this afternoon:

We are disappointed that further changes were not made to ensure Americans’ civil liberties would be adequately protected by this Patriot Act legislation. This truly was a missed opportun Sity for the Senate Judiciary Committee to right the wrongs of the Patriot Act and stand up for Americans’ Fourth Amendment rights. The meager improvements made during this markup will certainly be overshadowed by allowing so many horrible amendments to be added to an already weak bill. Congress cannot continue to make this mistake with the Patriot Act again and again. We urge the Senate to adopt amendments on the floor that will bring this bill in line with the Constitution.

Sen. Russ Feingold (D-Wis.)  just made a key point in response:

I’m just concerned about the role of a Judiciary Committee that whenever the FBI says it doesn’t work for them that’s it, end of debate. Or when the prosecutor says something, that’s it. We’re not the Prosecutor Committee, we’re the Judiciary Committee. It seems to me that whenever an investigator says something or prosecutor says something, that’s the end of the debate. I don’t buy it, that’s not our job.

The committee just dropped the word “articulable” from the standard, on the recommendation of Sen. Dianne Feinstein (D-Calif.). So now the FBI would have to have specific facts supporting its belief that the information sought has some relevance to a national security investigation, it just doesn’t have to be able to tell anyone what those facts are. Of course, since the law doesn’t require it to tell anyone outside the FBI, as a practical matter, the amendment doesn’t really make much difference.

So far, much of the debate is focusing on whether and to what extent the law should be focused on investigations of foreign terrorists, as opposed to being open to be used for ordinary domestic law enforcement. Given that the Patriot Act was passed after the 9/11 terrorist attacks to prevent another one, Sens. Richard Durbin (D-Ill.), Russ Feingold (D-Wisc.) and Arlen Specter (D-Pa.) have all come out strongly in favor of requiring some nexus to international terrorism.

Sens. Dianne Feinstein (D-Calif.), Patrick Leahy (D-Vt.), Jeff Sessions (R-Ala.), Sheldon Whitehouse (D-R.I.), Jon Kyl (R-Ariz.) and others all appear to be leaning towards the view of the FBI and Justice Department, which has told the senators in classified sessions that the broader versions of the Patriot Act provisions are necessary to combat terrorism.

Responding to Sen. Dianne Feinstein’s (D-Calif.) assurances that the bill, as proposed, is necessary and important based on classified information she’s received that can’t be shared with the American public, Specter demurred.

“We have moved a distance from where we were before, in requiring a foreign terror connection,” he said, noting that several provisions of the bill no longer require that. “In 2005, the bill was handled unanimously. The core of the bill required a connection with a foreign power. That’s really what we’re looking for here in the Patriot Act. When that requirement is taken away it seems to me it guts the structure of the Patriot Act. You have the provision of lone wolf, with no connection to a foreign power, which is the core of the patriots act. It hasn’t been used at all. It seems to me something this committee ought not rush to retain.”

As for “roving wiretaps,” Specter added that he opposed those back in 2001 because they failed to require the FBI to specify who they’re wiretapping. “The whole point of probable cause for search and seizure is probable cause with specificity,” said Specter. “Our committee ought to be more assertive as a guardian of separation of powers. This has a philosophical connection to what we’re doing on state secrets,” he said, referring to the state secrets privilege that the Justice Department has repeatedly asserted to dismiss lawsuits charging government wrongdoing. “Now all you have to do is have the executive branch assert state secrets and that closes the matter. … It’s still the executive branch, without judicial review to take a look.”

He continued, “I would hope this committee would be more assertive of the separation of powers under the Constitution.”

Nor is the subcommittee talking about the recent case of Mohammed Jawad, the Afghan who was tortured, and whose treatment was deliberately not investigated despite repeated written pleas from Jawad’s military defense lawyer alerting senior military officials that he believed U.S. officials had committed war crimes.

No, that’s not coming up at this hearing. Instead, Justice Department official Lanny Breuer just testified to how proud he is that the DOJ has for the first time prosecuted a case under the U.S. anti-torture statute, against Roy Belfast, aka “Chuckie” Taylor in Liberia. He didn’t mention that the Justice Department under President George W. Bush maintained that the same statute didn’t apply to U.S. actions in U.S.-run prisons abroad.

Breuer is also apparently very proud that the United States extradited John Demjanjuk — who committed human rights violations on behalf of the Nazis more than 50 years ago.

Breuer also failed to address any of the human rights violations that the Department of Justice approved under Bush, or those that the Obama administration now refuses to prosecute, all in the interest of “looking forward” rather than backwards.

Oddly, neither Sen. Richard Durbin (D-Ill.) nor Sen. Russ Feingold (D-Wis.), both normally strong human rights advocates, are noting these omissions either. Feingold simply mentioned that “we lack credibility when we within our own government can’t stop violation of human rights on our own borders, yet we’re proclaiming we’re going to prosecute it against everyone that comes here. So it’s an important inconsistency we need to resolve.”

Feingold was referring to cases committed by foreigners smuggling people across the border from Mexico, not to the U.S. citizens in the previous administration who committed and approved human rights violations against prisoners in their own custody.