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but made permanent during closed-door conference committee sessions of Congress more than 50 years ago, must be repealed to overcome the insurance industry’s anticompetitive practices that have led to higher prices and reduced services.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.

Sen. Richard Durbin (D-Ill.) (WDCpix)

Roughly three months after Senate lawmakers killed legislation empowering homeowners to escape foreclosure through bankruptcy, some upper-chamber Democrats are looking to revive the corpse. They hope to pressure the White House into spending valuable political capital on a cause fallen by the wayside.

Up to now, policymakers have relied on programs that subsidize lenders and mortgage servicers who volunteer to alter loans to keep homeowners afloat. Yet those voluntary modifications lag far behind the rising tide of foreclosures. Indeed, only 160,000 homes have been propped up this year under the largest such program — a figure dwarfed by the more than 1.5 million foreclosure filings since January. With unemployment on the rise, the gap is only projected to expand. The dark trends have slowly prodded lawmakers to return to mortgage bankruptcy reform as the possible missing link to addressing the foreclosure crisis — the stick to accompany the financial carrots that have thus far failed to stabilize the housing market.

Illustration by: Matt Mahurin

“After two years of efforts that rely on banks to volunteer to rework mortgages, it is time to admit that the programs that have been put in place thus far to ease the crisis are clearly not working,” Sen. Richard Durbin (D-Ill.), sponsor of the Senate’s bankruptcy reform bill, said Thursday during a foreclosure hearing in the Senate Judiciary Subcommittee on Administrative Oversight and the Courts. “With a simple change to the bankruptcy code … over 1.8 million families could save their homes in this country between now and the end of 2012, if the Senate could only muster the courage to help them.”

Under Durbin’s proposal, bankruptcy judges could reduce, or “cramdown,” the terms of mortgages, including interest rates and principal balances, to make the loans more affordable for struggling homeowners — a power judges have over loans for vacation homes, jewelry and other material assets, but not over primary mortgages.

Yet Durbin represents a somewhat lonely crowd. Not only is the bankruptcy-reform proposal anathema to Republicans, but the Obama administration, once a cheerleader for the change, has abandoned the legislation altogether. Without the active backing of the White House, a cramdown bill that passed the House in March was shot down in the Senate less than two months later. Still, Durbin has vowed to bring it back to the Senate floor this year. But, faced with a crowded legislative calendar, including sweeping health care and climate change reform, he’s running out of opportunities.

That erosion of White House backing, according to housing and consumer advocates, spells bad news for the nation’s homeowners, who are drowning in debt in larger and larger numbers. Indeed, more than 1.5 million homes have filed for foreclosure this year, according to RealtyTrac, an online foreclosure database. The figure represents a 15 percent jump from 2008. And the numbers are rising. In May, roughly 321,000 foreclosures were filed nationwide, RealtyTrac found. In June, the figure was more than 336,000.

The difficulty in addressing the housing crisis can be attributed largely to the shifting causes of mortgage defaults. What began as a problem limited largely to homeowners with risky, variable-rate, low-equity loans, has evolved to plague even those borrowers who took out more stable, fixed-rate mortgages with significant down payments. Rising unemployment has only exacerbated the trouble.

To tackle the crisis, the Obama administration in February rolled out its Making Home Affordable Program, which supplied $75 billion to entice servicers to tamp down mortgage payments to 31 percent of monthly income for homeowners struggling to stay afloat. The White House said at the time that the program would help between 3 million and 4 million families stay in their homes.

Yet, last week, White House officials told a Senate panel that just 325,000 modifications have yet been offered under the program. Of those offers, 160,000 are in a three-month trial modification stage — modifications that will become permanant if the homeowners can meet the new payment terms over that span.

Not only are those number insufficient to address the rising tide of foreclosures, Adam Levitin, housing expert at the Georgetown University Law Center, told lawmakers Thursday, but of the mortgage modifications that are being made, almost none involve reducing the principal balance of the loan. With the housing market falling — precipitously in some regions — even homeowners who can afford to pay their mortgages will begin to walk away if they aren’t building equity, Levitin warned.

“None of the current loan modification or refinancing efforts attempt to deal with the negative equity problem in a way that offers a long-term solution,” Levitin said.

There remains some disagreement among finance experts over why lenders and servicers have been so reluctant to modify loans, even when foreclosures are often the more expensive option. One theory posits that the servicers will be paid more from foreclosures, even if the owners of the loans will lose out.

“As long as servicers profit because homeowners are in default, they’re not going to volunteer to take a hit,” Alys Cohen, an attorney with the National Consumer Law Center, testified Thursday.

But that confusion, according to cramdown supporters, is just another reason to pass the bill. “Whatever the factors may be that are inhibiting voluntary and government-subsidized loan modifications, they are immaterial if a mortgage loan can be modified in bankruptcy,” said Levitin.

Standing in the way of the legislation are not only the banks but the banks’ supporters on Capitol Hill. Conservatives argue that empowering judges to modify mortgages would make banks more reluctant to lend money, thus exacerbating the credit freeze.

Encapsulating the GOP argument, Sen. Jeff Sessions (Ala.), senior Republican on the Judiciary subpanel, warned Thursday that the cramdown bill would raise rates on everyone. A contract’s a contract, Sessions said, and homeowners who agreed to the terms of a mortgage loan should be held accountable for the payments. “There’s no free lunch here,” he said.

Not that Washington policymakers are unaware that the voluntary efforts aren’t working as planned. The Obama administration this month has already sent letters to servicers urging increased participation in the voluntary modification program.

In another concessionary move, the Treasury this month expanded a program allowing homeowners with mortgages backed by Freddie or Fannie to refinance those loans if the outstanding balance doesn’t exceed 125 percent of the home’s appraised value. Originally, the value cap for such refinancings was set at 105 percent. The change was made in recognition of the increasing number of homeowners who are underwater as home values have plummetted. Indeed, Levitin estimates that 30 percent of all families who bought homes in the last five years currently owe more than their homes are worth.

Lawmakers and advocates alike are warning that, unless Congress steps in to address the housing crisis — which, after all, was the root of the economic downturn — the result will be a spiral of foreclosures leading to more foreclosures, and a prolonging of the larger recession.

“If we fail to act,” said Sen. Sheldon Whitehouse (D-R.I.), chairman of the courts subpanel, “I fear that we put ourselves at risk: that a vicious cycle of foreclosures, falling home values, and declining tax revenues will keep us in recession for years to come.”

As Caroline Fredrickson of the American Civil Liberties Union said earlier today regarding the Justice Department’s internal ethics report, which was concluded back in December but still not released:

More than five years after the first disclosures of torture, it should concern all Americans that there is a 200-page draft government report on the role of three lawyers, but absolutely no Justice Department investigation of their clients – those top White House and CIA officials who asked for the opinions and reportedly made decisions on what torture tactics to use on which detainees. A top-to-bottom investigation is needed to examine not just those who authored these opinions but those who requested them and to determine whether these DOJ findings were watered down for political reasons. Congress can and must play an active role in that investigation. [Emphasis added.]

That reasoning applies as well to the Judiciary subcommittee’s planned hearings. The two confirmed witnesses so far, Zelikow and former FBI agent Ali Soufan, will undoubtedly have important things to say about the legality and efficacy of torture and abuse of detainees, as well as on the warnings that they and others gave to policymakers against using those tactics.

Still, neither one is likely to be able to answer the critical questions that remain, specifically about who at the White House requested that advice and what they did with it.

“That’s the big missing piece of the puzzle,” says Chris Anders, senior legislative counsel at the ACLU.

Lawyers such as David Addington, chief of staff for former Vice President Dick Cheney; John Bellinger, legal adviser to the National Security Council at the White House, and former National Security Adviser and Secretary of State Condoleeza Rice, — who’s been giving all sorts of confusing and contradictory answers lately to Stanford students and 4th grade classrooms –could, under oath, shed a lot of light on what really happened.

Whitehouse’s announcement is certainly a step in the right direction. The Judiciary subcommittee is still putting together its witness list, but let’s hope it includes both the lawyers who drafted the memos and their clients who ordered them.

Since then, the two senators (and many others) have been asking about the progress of the investigation, which they learned was completed by the end of the last administration. The OPR’s report, however, which was not released publicly at the request of Attorney General Michael Mukasey.

On Tuesday, Durbin and Whitehouse received assurances from the department that although the subjects of the report — including former OLC head Steven Bradbury, who signed several of the recently released OLC memos authorizing waterboarding and other “extreme” techniques — were allowed to review and comment on the draft, “this opportunity for review and comment was fair and reasonably correlates with the process usually applicable to OPR investigations relating to former employees. . . .Any revisions to the report thereafter will be based upon OPR’s best judgments about the accuracy and fairness of the document.” The comments from the report’s subjects were due on Monday.

The letter from the Justice Department to Durbin and Whitehouse sent yesterday also indicates that the CIA was given a copy of the report to review, both for classification purposes and to comment.

Here’s what Durbin and Whitehouse had to say about that:

While we are disappointed to learn that DOJ allowed Stephen Bradbury to participate in OLC’s ‘review and response’ to the report – despite the fact that he played a leading role in drafting the memos under review – we look forward to the prompt completion of this report, and we are pleased by the strong implication in the letter that former OPR chief Marshall Jarrett’s pledge to release the report will be honored.

We will be interested in the scope of the ‘substantive comment’ the CIA is providing, and the reasons why an outside agency would have such comment on an internal disciplinary matter.

Because the OPR report examines the role of the lawyers at the center of the torture scandal, it’s been much-anticipated by journalists and critics of the Bush administration, who expect it to be sharply critical of the legal opinions provided.

As I noted earlier today, lawyers for the targets of the investigation have reportedly been lobbying the Justice Department to water down the report’s conclusions.

Rep. Henry Waxman (D-Calif.), a 34-year House veteran, tops the list — he’s credited with holding the Bush administration accountable, as chairman of the House Oversight and Government Reform Committee, while others have been unwilling or indecisive.

Sheldon Whitehouse (D-R.I.), who offers important points in Daphne Eviatar’s TWI piece today on torture and the Bush White House, is the highest-rated senator, coming in at No. 5. Though a freshman, Whitehouse is commended for playing a leading role in challenging Atty. Gen. Alberto Gonzales during the U.S. attorneys scandal.

Maybe in an effort to be nonpartisan, the list includes five Democrats and five Republicans.

For contrast, take a look at Rolling Stone’s 2006 list of the ten worst congressmen. Seven of them are still in office.

Illustration by: Matt Mahurin

Before a packed crowd at the Netroots convention, Cass Sunstein, a law professor at Harvard and the University of Chicago and a legal adviser for Sen. Barack Obama, was asked how the next president should address the Bush administration’s potential war crimes. When Sunstein said the new adminstration must be cautious and not partisan in the use of the prosecutorial power, though egregious acrs should not be ignored, he was still met with a chorus of boos and angry rejoinders that the president and his Cabinet cannot remain above the law.

Since then, legal experts have generally agreed that the next administration is unlikely to prosecute Bush administration officials for authorizing the torture of suspected terrorists — no matter how many laws the government officials broke. But that hasn’t placated many others, like George Washington University Law Professor Jonathan Turley, or the constitutional lawyer and author Glenn Greenwald, who argue that holding policy-makers accountable for their actions is critical to restoring the reputation of the United States — not to mention respect for the rule of law.

Illustration by: Matt Mahurin

Indeed, how can a new president refuse to prosecute Bush administration officials for authorizing the same acts, like waterboarding, that the United States has previously prosecuted as contrary to U.S. and international law?

The Washington Post reported Tuesday that the Bush administration had issued secret memos in 2003 and 2004 explicitly endorsing the Central Intelligence Agency’s use of waterboarding and other harsh interrogation techniques — otherwise known as torture — against suspected terrorists.

Though Atty. Gen. Michael Mukasey still hasn’t said whether he believes waterboarding constitutes torture, the evidence of illegal conduct by senior administration officials is getting harder and harder to avoid.

In a recent address to the Assn. of Former U.S. Attorneys, Sen. Sheldon Whitehouse (D-R.I.), a former U.S. attorney, noted that waterboarding, which the Bush administration’s Office of Legal Counsel declared legal in 2002 (the Justice Dept. now claims the CIA no longer uses it as an interrogation technique), had long been considered torture. In fact, it had earlier been prosecuted by U.S. authorities.

“I was astounded that the research by the OLC, which supported determining that waterboarding was lawful, had huge gaps in it,” Whitehouse told The Washington Independent last week. “They went so far as to go find some Medicare reimbursement statute to serve their purpose. One strains to find the relevance of that to enemy prisoner interrogation.”

“There are a whole variety of far more relevant things they could have found if they had taken a look,” Whitehouse continued, noting that the U.S. itself prosecuted waterboarding of American soldiers after World War II; waterboarding by American soldiers in the Philippines, and “water torture,” as it’s also been called — most recently by a local sheriff in Texas.

Atty. Gen. Michael Mukasey (WDCpix)

Other legal experts — some still government officials — have made the same point. In the Columbia Journal of Transnational Law, for example, Evan Wallach, a judge on the U.S. Court of International Trade and expert on the laws of war, wrote: “Not so very long ago, the United States, acting alone before domestic courts, commissions and courts-martial, and as a participant in the world community, not only condemned the use of water torture, but severely punished as criminals those who applied it.”

Wallach declined to comment for this article, saying that these these issues could come before him or other federal judges. But in The Washington Post last year, Wallach noted that, among other instances, the U.S. initiated war crimes prosecutions against Japanese soldiers who water-boarded U.S. pilots during World War II.

However, John Yoo and his colleagues at the Office of Legal Counsel didn’t need to look back that far to learn that the United States has long considered the practice illegal. As recently as 1983, as Whitehouse reminded the former U.S. attorneys earlier this month, the Justice Dept. itself prosecuted a Texas sheriff who had used waterboarding to extract confessions from arrested suspects. Six former inmates testified that they had been waterboarded between 1976 and 1980.

Some lawyers who participated in that case are still at the Justice Dept. today. None returned calls for comment. In its written opinion affirming the conviction of County Sheriff James Parker, of San Jacinto County, and his deputies, the Fifth Circuit Court of Appeals in 1984 referred to waterboarding as “torture” a total of 12 times.

At a Senate Judiciary Committee hearing in July, Mukasey, responding to questions about the waterboarding case, U.S. v. Lee, said it wasn’t relevant because the officers were prosecuted under the civil-rights laws. “It was not a case that dealt with whether a technique is or isn’t torture under the torture statutes,” Mukasey said.

Peter Carr, a Justice Department spokesman, told TWI yesterday that the Lee prosecution “was fully consistent with the legal advice OLC provided to the CIA.”

Though “the attorney general has not reached any legal conclusion concerning the lawfulness of the technique as used by the CIA,” Carr added, “Prior to his confirmation, the attorney general made clear that if waterboarding were torture, it would be unlawful both under the Anti-Torture Statute and the Constitution. He subsequently reviewed the opinions of the Office of Legal Counsel as they apply to current techniques and found the opinions to be correct and sound.”

In other words, the Justice Dept is still dodging the question of whether waterboarding is torture — and, therefore, whether those who approved it violated the law.

In the Lee case, however, neither the court nor the federal prosecutors appear to have had any question about whether drowning a prisoner just up to the point of death was torture. As the federal appellate court described it, “Lee was indicted along with two other deputies, Floyd Baker and James Glover, and the County Sheriff, James Parker, based on a number of incidents in which prisoners were subjected to a “water torture” in order to prompt confessions to various crimes.”

The case, accessible online or in any law library, was easily available to the Justice Dept., lawyers insist. Yet when Yoo drafted his now-infamous “torture memo” in 2002, he ignored such relevant cases and instead drew on an obscure Medicare reimbursement statute to define torture as pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

That extreme language was then used to justify waterboarding. The federal anti-torture statute adopted in 1994, meanwhile, defines torture far more broadly, as an “act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.”

“Severe mental pain or suffering” is defined as “the prolonged mental harm caused by or resulting from,” among other things, “the intentional infliction or threatened infliction of severe physical pain or suffering;” “the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality,” or “the threat of imminent death.” It’s difficult to see how drowning until just before the point of death wouldn’t qualify.

Sen. Sheldon Whitehouse (WDCpix)

So how did Yoo miss the relevant law?

“Either the quality of their research was dismal,” said Whitehouse, who sits on the Senate Intelligence Committee, and therefore has reviewed many of the memos that remain classified, “or they did find it and they didn’t care to go through the intellectual exercise to distinguish it from the current situation. They wrote an 85-page opinion citing the Medicare statute, and none of the memos even mentioned these cases.”

Daniel Hedges, who was the U.S. attorney in the southern district of Texas leading Parker’s prosecution, recalled the case. “It was certainly a violation of the civil rights of these people, there was no question of that,” said Hedges. “The torture was certainly a part of it.”

Parker was convicted and sentenced to 10 years in prison. As The New York Times reported at the time, the sentencing judge told Parker that the sheriff had allowed law enforcement to “fall into the hands of a bunch of thugs….The operation down there would embarrass the dictator of a country.”

In fact, such actions a few years later led a U.S. federal court to hold Philippine President Ferdinand Marcos liable for $766 million, in part for having subjected political prisoners to waterboarding.

Sen. John McCain, who notes frequently that he was held prisoner by the North Vietnamese, has said of waterboarding: “It is not a complicated procedure. It is torture.”

Given the history of prosecutions, it’s hard to see how OLC, whose lawyers normally consult the relevant Justice Dept. lawyers, in addition to doing independent legal research, could have reached a different conclusion.

“Rather than bring people into the loop, they just made the decision between themselves and the vice president’s office,” said Whitehouse. “The vice president’s office clearly wanted a particular result and didn’t see the need to bring other people in who might disrupt the march toward that result.”

Jack Goldsmith, a Harvard Law professor who headed the OLC in 2003, has described his former office as a sort of “independent court inside the executive branch.” But not during much of the Bush presidency.

“As I absorbed the opinions,” he wrote in his book, “The Terror Presidency,” referring to the opinions issued by OLC after Sept. 11, 2001, “I concluded that some were deeply flawed: sloppily reasoned, overbroad and incautious in asserting extraordinary constitutional authorities on behalf of the president….I was astonished, and immensely worried, to discover that some of our most important counterterrorism policies rested on severely damaged legal foundations.” (Goldsmith declined to be interviewed for this article.)

To Whitehouse, the memos reveal “embarrassing, fire-the-associate quality legal research and analysis.” That’s “a sickening fall from grace for an office that’s always been a source of real pride.”

But to Bush administration officials, such shoddy lawyering may mean something far worse than embarrassment: the sort of deliberate misstatements of the law that will protect neither the lawyers nor their clients from subsequent prosecution.

In September, Secretary of State Condoleezza Rice provided new testimony, confirming that the White House was actively involved in talks over the CIA’s use of torture in the interrogation of prisoners in 2002 and 2003. That means that the responsibility for those practices, despite the legal memos justifying them, may well reach all the way up the chain of command.

It is going to be up to the next president to decide whether those commanders should be held in any way accountable.