Attorney General Eric Holder (WDCpix)

Attorney General Eric Holder surely knew he’d be facing a tough audience when he prepared to testify to the Senate Judiciary Committee on Wednesday. That may be why instead of delivering the written testimony he’d prepared, he focused his opening remarks on explaining his decision, announced last Friday, to try the alleged co-conspirators of the September 11, 2001 terrorist attacks in a New York federal court.

“The report is completed,” said Holder. “It is in its last stages of review now.” Holder said it was delayed “because of the amount of time we gave to the lawyers who were the subject of the report to respond. And then people in OPR had to respond to their responses.” Holder said that in this final stage, “a career prosecutor has to review the report. We expect that process should be done by the end of the month. At that point the report should be issued.”

Levin’s remarks were made this morning at a conference at the Washington College of Law at American University addressing the ethical responsibilities of OLC lawyers and how they should be held accountable for authorizing abusive conduct that now appears to have been illegal. “Any government employee is appropriately subject to investigation of their conduct while they’re serving in government,” said Levin, who is now a partner at the law firm White & Case.

Later in the discussion, Levin also said that a truth commission that would investigate and reveal how the lawyers in his office reached their conclusions “would be useful.” Sen. Patrick Leahy (D-Vt.) has proposed such a commission, but so far apparently does not have majority support for the idea in Congress. Levin spoke on a panel of experts that included Georgetown Law Professor David Luban, Alliance for Justice president Nan Aron, and Newsweek columnist Stuart Taylor.

“Maybe the [Office of Professional Responsibility] report will give some of the factual basis that will allow people to make judgments about that,” said Levin, referring to the ethics report of the OLC lawyers’ work conducted by a division of the Justice Department which has yet to be released. The report was drafted over several years and completed by the end of the Bush administration. “But I would agree if you could have a serious look at this it would be very valuable.”

Upon completion, the OPR report was sent to its subjects — including former OLC lawyers John Yoo, Jay Bybee and Stephen Bradbury, for their review and comment — and is still under Justice Department and possibly CIA review. It reportedly analyzes the lawyers’ communications with senior government officials and is highly critical of their conduct.

Last week, Ranking Member James Inhofe (R-Okla.) threatened to boycott the markup unless the committee received an Environmental Protection Agency analysis of the bill that was more to his liking (the EPA did release an analysis two weeks ago, but Republicans charge that it is incomplete). This morning, environmentalists were pleasantly surprised to see Sen. George Voinovich (R-Ohio) at the hearing — but after a 15-minute monologue, he promptly departed, leaving the Republican side of the table empty.

Sen. Sheldon Whitehouse (D-R.I.) chided his Republican colleagues for their tactic, arguing that the EPA analysis was as complete as could be expected and pointing out that Inhofe and most of his colleagues will oppose the bill no matter what the EPA says. He referred to a comment Inhofe made about health reform this summer, when he told a town hall audience, “I don’t have to read the bill or know what’s in it. I’m going to oppose it anyway.”

Committee Chairman Barbara Boxer (D-Calif.) extended something of an olive branch across the aisle last night, when she wrote a letter to the ranking Republicans on the committee, pledging:

To meet your concerns, however, and in the spirit of collegiality, I have arranged for a recess of the markup to take place Tuesday, November 3, at 2:30 pm, so that EPA can be available to answer questions from EPW members on its analysis. In addition, we are offering to extend the deadline for first-degree amendments on the Minority side until close of business tomorrow.

It appears unlikely that the committee’s Republicans will view this as a sufficient concession.

In a statement, the lawmakers cite the reasoning behind the proposal.

Under current law, possession of five grams of crack cocaine (roughly the weight of two sugar cubes) triggers a mandatory minimum five-year prison sentence, while trafficking 500 grams (approximately one pound) of powder cocaine triggers the same sentence. The so-called 100:1 sentencing disparity has been in place since 1986. The Fair Sentencing Act would eliminate the disparity, treating crack and powder cocaine equally.

Sen. Richard Durbin (Ill.), the upper chamber’s second-ranking Democrat, said passage of the bill is long overdue.

The sentencing disparity between crack and powder cocaine has contributed to the imprisonment of African Americans at six times the rate of whites and to the United States’ position as the world’s leader in incarcerations. Congress has talked about addressing this injustice for long enough; it’s time for us to act.

Other sponsors of the bill include Democratic Sens. Patrick Leahy (Vt.), Arlen Specter (Pa.), Chris Dodd (Conn.), John Kerry (Mass.), Al Franken (Minn.), Ted Kaufman (Del.), Russ Feingold (Wis.), Ben Cardin (Md.) and Sheldon Whitehouse (R.I.).

In July, the House Judiciary Committee advanced a similar bill, sponsored by Rep. Robert Scott (D-Va.).

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.”

Given that the Bush administration has admitted to waterboarding captives, Whitehouse writes in the National Law Journal, for “there to be investigation now is unexceptional.”

The only exceptional thing is the parties involved: the former vice president of the United States, his counsel David Addington, Office of Legal Counsel (OLC) lawyer John Yoo and their private contractors Bruce Jessen and Jim Mitchell, psychologists who designed the torture program. But in America, high office does not put one outside the law. Indeed, it borders on unethical for a prosecutor to refuse to investigate the corpus delicti of a crime because of concern as to where the evidence may lead.

In other words, Whitehouse supports not only Attorney General Eric Holder’s announced “review” of certain interrogations gone too far, but the same sort of complete criminal investigation that goes wherever the facts lead — and that is supposed to happen whenever there’s evidence that serious crimes have occurred.

That doesn’t mean it will necessarily lead to convictions, of course.

When the evidence is all in, it may prove that all the conduct surrounding America’s descent into torture was proper, protected by good-faith legal defenses. But it’s too early to responsibly reach that conclusion. Investigation is what allows such a conclusion to be reached.

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The proposal attempts to close a loophole created by a 2005 Supreme Court decision, which found that the prohibition on gun ownership applies only to felons convicted in U.S. courts. In handing down that decision, Justice Stephen Breyer indicated that if Congress intended the ban to apply also to foreign convictions, it would have to craft legislation saying so.

On Wednesday, Sen. Dianne Feinstein (D-Calif.) complied. Her proposal — co-sponsored by Sens. Richard Durbin (D-Ill.), Frank Lautenberg (D-N.J.), Sheldon Whitehouse (D-R.I.), Charles Schumer (D-N.Y.) and Kirsten Gillibrand (D-N.Y.) — would force the courts to treat foreign felony convictions the same as domestic convictions for purposes of gun ownership. Exceptions would be made in cases when felons could prove either that their conduct would not have been a crime in the United States or that they were denied due process in the foreign court.

“Foreign felons actually have greater gun rights than Americans convicted of felonies or crimes of domestic violence in our own courts,” Feinstein said in a statement. “In a country filled with senseless gun violence, we cannot continue to give murderers, rapists and other violent criminals convicted in foreign countries an unlimited right to buy firearms and assault weapons in the United States.”

The gun control debate is one that usually falls along predictable lines of ideology. But if the 2005 Supreme Court decision is any indication, this proposal might bring out some surprises. Indeed, the Court’s most conservative justices — Antonin Scalia and Clarence Thomas — voted with the dissent.

Unfortunately, the released documents, selectively chosen and selectively redacted, do not provide the American public with any objective perspective on the value of the information obtained from these high-value detainees.  Indeed, with one highly sensitive document, the Administration declassified virtually the entire memo, except for those paragraphs in which the value of the intelligence obtained was discussed.  By requiring the Director of the CIA to provide an unclassified version of these four documents to the public, the American people can make their own assessment of the value of the information obtained from these high-value terrorists.

So the four identified documents, chances are, would support the conclusion that torture yields valuable information. Yet the seven Republicans on the panel were joined by three Democrats: the progressives Russ Feingold (D-Wis.) and Ron Wyden (D-Ore.), as well as the centrist Evan Bayh (D-Ind.). Feingold and Wyden are, in general, open-government enthusiasts, so perhaps that explains their vote.  The committee’s remaining dyed-in-the-wool progressive, Sheldon Whitehouse (D-R.I.), voted with four other relatively centrist Democrats on the committee against the provision.

Here’s Whitehouse, in one of his characteristically articulate speeches:

The “umpire” analogy is belied by Chief Justice Roberts, though he cast himself as an “umpire” during his confirmation hearings. Jeffrey Toobin, a well-respected legal commentator, has recently reported that “[i]n every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.” Some umpire. And is it a coincidence that this pattern, to continue Toobin’s quote, “has served the interests, and reflected the values of the contemporary Republican party”? Some coincidence.

For all the talk of “modesty” and “restraint,” the right wing Justices of the Court have a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights: the infamous Ledbetter decision, for instance; the Louisville and Seattle integration cases, for example; the first limitation on Roe v. Wade that outright disregards the woman’s health and safety; and the DC Heller decision, discovering a constitutional right to own guns that the Court had not previously noticed in 220 years. Over and over, news reporting discusses “fundamental changes in the law” wrought by the Roberts Court’s right wing flank. The Roberts Court has not lived up to the promises of modesty or humility made when President Bush nominated Justices Roberts and Alito.

Some “balls and strikes.”

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