Sheldon Whitehouse (Gov)

Sen. Sheldon Whitehouse (D-R.I.) said at the nomination hearing Monday for Supreme Court nominee Elena Kagan that he hopes the would-be justice would not be swayed by corporate interests if she is confirmed to the court.

Whitehouse cited court decisions — including the Citizens United decision — which he said improve the “strike zone for corporations.” In the Citizens United decision, the Supreme Court ruled that corporations can spend unlimited funds in U.S. elections.

“If confirmed, I hope and trust that you will adhere to the past institutional traditions of the Supreme Court and act with a clear understanding of the proper role of all the institutions of government provided for us by our founding fathers,” Whitehouse said. “It is a great Constitution we have inherited.”

We will include his full opening statement when we get it.

Tuesday marked one year since Sens. Richard Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.) sent a letter to the Justice Department asking about the status of DOJ’s Office of Professional Responsibility’s investigation into the conduct of Justice Department lawyers who authorized the so-called “torture memos,” writes Human Rights First, which describes itself as a nonpartisan international human rights organization.

The report has not been officially released, but there have been news stories about its purported contents that have not pleased a number of organizations. They have expressed disappointment over the reported outcome of the OPR report, which, according to Newsweek, says the lawyers did not violate their professional obligations as lawyers. The DOJ reviewer of the report, career veteran David Margolis, downgraded an earlier draft of the report to say they showed “poor judgment,” sources told Newsweek.

Most recently, a Justice Department spokeswoman told Main Justice that the report would be released “soon,” but declined to offer a time frame or comment on the Newsweek report.

“[A] year to the day after Senators Durbin and Whitehouse sent their [letter], we still have no idea when the OPR report will be released, or what is now holding it up,” writes Daphne Eviatar, of Human Rights First.

“The longer the administration hems and haws and tinkers with the ethics report before releasing it, the more the stain of the past administration’s transgressions becomes its own. It’s high time for the Justice Department to come clean,” Eviatar writes.

On Jan. 22, the American Civil Liberties Union filed suit against the Justice Department, seeking a copy of the report which looks into the work of three DOJ attorneys — Steven Bradbury, John Yoo and Jay Bybee.

Last June, Attorney General Eric Holder said the OPR report would be available within a matter of weeks, and in November he said it would be available by the end of the month. When the report still had not been released in December, the ACLU filed a Freedom of Information Act Request.

“It’s now been another six weeks about since we filed the request, and we’ve seen no progress from the Justice Department on the release of that report, so we’re filing suit,” Alex Abdo of the ACLU told Main Justice in January.

Meanwhile, one of the lawyers — John Yoo — is leading a seminar on how to best overhaul the California state constitution, reports The New York Times.

“Yoo built a seminar that encourages students to think about how a constitutional convention could play out and to research and write about the issues that might be at the heart of the debate,” reports The Times.

According to the Times:

When Mr. Yoo first heard last fall about the idea for a state conclave, he said, he immediately saw it as a teachable moment. The idea that hundreds of citizens chosen like a jury might rewrite the state’s Constitution inspired Mr. Yoo to get involved.

“We’ve got to help them,” he said in an interview this month, a conversation in which he declined to discuss his record in Washington. “We really ought not have an uneducated jury making these decisions.”

Key Senate Judiciary Committee Democrats called on Republicans today to stop holding up President Barack Obama’s nominee to head the Justice Department Office of Legal Counsel.

Dawn Johnsen (Indiana University)

Sens. Patrick Leahy (D-Vt.), the chairman of the panel, and Sheldon Whitehouse (D-R.I.), chairman of the administrative oversight and the courts subcommittee, said in an editorial in The National Law Journal today that OLC nominee Dawn Johnsen is “well qualified” to oversee the elite DOJ office that assesses the constitutionality and legality of government actions.

Republicans have voiced concerns about Johnsen’s vocal opposition to the Bush administration’s national security policies and her past work for an abortion rights group.

Johnsen’s nomination languished for months in the Senate last year before it was returned to the White House on Dec. 24. Obama re-nominated her last month. But consideration of her nomination in committee this year has been delayed three times. The panel is expected to consider her nomination next week.

“Senators who disagree can vote against her nomination, and make clear their reasons,” the senators said in their editorial. “But it is time for the obstruction to end and for the Senate to have an up-or-down vote on Dawn Johnsen’s nomination.”

Leahy and Whitehouse lauded Johnsen’s past experience as a OLC lawyer and help in authoring the “Principles To Guide the Office of Legal Counsel,” which offered suggestions on how the office could move forward after it was revealed that the office authorized harsh interrogation methods used against terrorism suspects during the George W. Bush administration.

The Democratic senators said Johnsen, an Indiana University law professor, has “demonstrated her resolve in national security matters, her seriousness, and her commitment to the rule of law.”

“Through the confirmation process, Johnsen has responded to questions on a wide range of topics, from executive power to protecting against obscenity and child pornography and enforcing and defending the Constitution,” the senators said. “She has left no doubt that she will thoughtfully analyze — not simply rubber-stamp — the legality of administration policies.”

Senate Democrats introduced legislation Thursday that would establish the same sentencing guidelines for powder cocaine and crack offenses.

The Fair Sentencing Act, sponsored by Senate Assistant Majority Leader Dick Durbin (D-Ill.) and nine other Democrats, would end the 100-to-1 ratio between crack and powder cocaine penalties enacted in the 1980s. The bill would also trigger a five-year mandatory minimum sentence for the possession of 500 grams of either of the substances.

The decades-old law gives the same five-year mandatory minimum sentence for the possession of five grams of crack cocaine as it does for the possession of 500 grams of powder cocaine. Democrats have said the law tends to disproportionately harm blacks, because crack is generally used in poorer urban communities.

“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,” Durbin said in a statement. “Congress has talked about addressing this injustice for long enough; it’s time for us to act.”

The cosponsors of the bill are Judiciary Committee Chairman Patrick Leahy (D-Vt.), Judiciary crime and drugs subcommittee Chairman Arlen Specter (D-Pa.), Judiciary panel members Sens. Russ Feingold (D-Wisc.), Ben Cardin (D-Md.), Sheldon Whitehouse (D-R.I.), Ted Kaufman (D-Del.) and Al Franken (D-Min.) Sens. John Kerry (D-Mass.) and Chris Dodd (D-Conn.) are also cosponsors.

The House Judiciary Committee approved its version of the legislation in July. Unlike the Senate bill, the House legislation eliminates mandatory minimum sentences for cocaine and crack offenses.

The Justice Department supports Congress’s efforts to eliminate the differences between crack and powder cocaine sentencing. Assistant Attorney General Lanny Breuer said at a House hearing in May that the current sentencing policies are “hard to justify.”

Assistant Attorney General Christine Varney

Democrats have opened a new front on the health care reform battle: antitrust exemptions for insurance companies.

The Senate Judiciary Committee on Wednesday held a hearing on a measure to repeal the 1946 McCarran-Ferguson Act, which put regulation of  the health insurance industry in the hands of individual states.

Democrats complain that lax oversight has allowed the insurers to concentrate their market power. They argue that more competition in the health-insurance market would lower prices for consumers.

The Department of Justice says it supports reform, though it stopped short of endorsing any legislation. Assistant Attorney General for the Antitrust Division Christine Varney said the Department of Justice “is generally opposed to exemptions from the antitrust laws, whether they be industry-specific or general, in the absence of a strong showing of a compelling need.”

Quoting President Obama, Varney said health insurance reform would benefit both the American people and the American economy, said the Department of Justice looked forward to “working with you and your colleagues in achieving our common objectives.”

Varney at the hearing called the McCarran-Ferguson act a product of a different age in American business. The 1945 legislation reversed a 1944 Supreme Court decision that said health insurance should be regulated on the federal level.

McCarran-Ferguson created a broad antitrust exemption for insurance companies regulated by state law, rendering them immune from challenge as long as they’re not engaged in an activity deemed “boycott, coercion, or intimidation,” Varney said.

The justifications that led to McCarran-Ferguson’s passage “are no longer valid today,” she said. “It’s no longer necessary.”

She added: “The antitrust laws reflect our society’s belief that competition enhances consumer welfare and promotes our economic and political freedoms,” Varney said.

“Nobody’s above the law,” Leahy said. “I don’t know anyone who can say with a straight face that they shouldn’t be subject to the same antitrust laws.”

Sen. Orrin Hatch (R-Utah) argued against making insurance agencies subject to antitrust laws, saying he saw “little evidence to justify a complete repeal.”

Democrats, by contrast, saw much evidence to repeal McCarran-Ferguson.

Sen. Dick Durbin (D-Ill.) said, Monday’s threats by insurance companies that if health reform passed, insurance rates would go up, was evidence that health insurance companies could do just that. “When insurance agencies said on Monday night ‘we’re raising rates, they’re going up,” Durbin said, “they could get together, and fix prices; they wouldn’t be able to do that if they were subject to prosecution, would they?”

“They would not,” Varney responded.

“The health insurance agencies have thrown down the gauntlet,” Durbin replied.

Democrats say the the health insurance markets are generally dominated by one or two providers, sometimes with a single insurance provider controlling up to 90 percent of the market. With these kinds of monopolies or duopolies, the Democrats said, the insurance companies have been free to charge whatever they could.

Sen. Dianne Feinstein (D-Calif.) said: “Healthcare and medical insurance should be nonprofits.” She said insurers’ profits rose 428 percent from 2000 to 2007, while “premiums have escalated dramatically.”She called Leahy’s bill “one small step to a very loud signal” to the insurance companies.

Sens. Sheldon Whitehouse (D-R.I.) and Al Franken (D-Minn.) painted a picture of the kind of market domination insurance agencies have. Whitehouse noted that in 39 states, two health insurers cover 50 percent of the market, and in nine states, only one company covers 75 percent of the market.

In Maine, Franken noted, an insurance company took the unprecedented move of suing a state to guarantee they make enough money. Anthem Blue Cross/Blue Shield sued the state, in what Franken called a “brazen” move, to guarantee a 3 percent profit margin that would raise insurance costs on subscribers 18.5 percent.

Hatch was not the only one to argue for keeping McCarran-Ferguson in place. Panelist Lawrence Powell, who represented the Physician Insurers of Association of America, said repealing the law would make little difference, leading to at best, the “status quo.”

“Market concentration is not always indicative of competition,” Powell said. “Another company controls 10 percent.”

This article has been corrected to reflect that the Justice Department has not taken a position on the legislation to repeal the McCarran-Ferguson Act.

Rhode Island U.S. Attorney Robert Corrente will step down from his post at midnight on June 26 to join a private law firm, according to a news release from his office today.

Robert Corrente (DOJ)

Corrente, a Bush holdover, was confirmed by the Senate in July 2004. He was noted for the establishment of an anti-gang educational program and the successful prosecutions of several health care and white-collar fraud cases.

“It has been a great privilege to have served the country, the Department of Justice, and especially the people of Rhode Island,” Corrente said in the news release.

We previously reported that Democratic Rhode Island Sens. Jack Reed and Sheldon Whitehouse recommended federal prosecutor Peter Neronha to be the next Rhode Island U.S. Attorney. He has been an Assistant U.S. Attorney for Rhode Island since 2002.

Assistant Majority Leader Sen. Dick Durbin has been one of the Senate’s most passionate voices against Bush-era detention policies. But don’t expet the Illinois Democrat to use his chairmanship of a newly revived Senate Judiciary human rights subcommittee as a partisan bully pulpit.

Durbin (in background) gave up the crime subcommittee to Specter

Instead, Durbin said he will work with Sen. Tom Coburn (R-Okla.) to find common ground on an agenda. He’s taking the gavel of the subcommittee for a second time, after giving up chairmanship of the plum Judiciary crime subcommittee to party-switching Sen. Arlen Specter (D-Pa.)

The human rights panel plans to address child soldiers, genocide, sexual violence and human trafficking — all concerns Coburn shares as well. In particular, conservatives and liberals have come together to fight international human trafficking, including the forced prostitution of women.

“While we had some legislative success, far more needs to be done,” Durbin said in a statement last month after he received the subcommittee gavel again. “We will continue to work on these and other issues as we try to ensure that America remains committed to human rights both at home and abroad.”

Coburn said he is please the subcommittee has been revived.

“We have a lot of issues we need to look at it,” Coburn said in an interview.

Tom Malinowski, Washington director for the Human Rights Watch which worked with the panel in the past, said he hopes the reestablished subcommittee will continue the work it did in the last Congress that led to the enactment of the Genocide Accountability Act and the Child Soldiers Accountability Act, which targeted world leaders who engaged in severe human rights abuses.

He said that while the subcommittee tackled many weighty issues, it avoided some topics that could have caused severe divisions between subcommittee Democrats and Republicans, such as the Bush administration’s policies on indefinite prisoner detentions, which Durbin openly criticized.

“Durbin made a point of choosing issues that Sen. Coburn was interested in working on,” Malinowski said.

Helping the senators to develop an agenda will be majority chief counsel Joseph Zogby and minority chief counsel Brooke Bacak. Zogby was previously the chief counsel for the human rights and the law subcommittee and then served the brief stint as Durbin’s chief counsel on crime and drugs subcommittee. Mary Harned previously held the minority post.

The Justice Department will also continue to work with the subcommittee. During the 110th Congress, members of the Civil and Criminal divisions often testified before the subcommittee.

“We look forward to working with the subcommittee on human rights and the law on the important issues it may address,” DOJ spokesperson Alejandro Miyar wrote in an e-mail.

Although there will be some familiar faces working with the subcommittee, not all the subcommittee members from the 110th Congress have rejoined the panel.

There were six Democrats and five Republicans on the subcommittee in the 110th Congress. Now, joining Durbin and Coburn will be four Democrats and two Republicans – Sens. Specter (D-Pa.), Russ Feingold (D- Wisc.), Ben Cardin (D-Md.), Ted Kaufman (D-Del.), John Cornyn (R-Texas) and Lindsey Graham (R-S.C.) Graham and Sen. John McCain sponsored legislation in 2005 that would have banned the harsh interrogation methods used against suspected terrorists.

Vice President Joe Biden, Sen. Ted Kennedy (D-Mass.) and Sen. Sam Brownback (R-Kan.) are missing from the subcommittee because they no longer sit on the Senate Judiciary Committee. Also, Sens. Jon Kyl (R-Ariz.) and Sheldon Whitehouse (D-R.I.) will not return to the panel.

The decision of Specter to leave the Republican Party led to the reestablishment of the subcommittee in May, after Senate Judiciary Chairman Patrick Leahy (D-Vt.) disbanded the two-year-old panel in February.

“With the change of administrations, and the transition to this new Congress, we are not continuing the subcommittee,” Leahy said in testimony before the Judiciary Committee in February. “No one should confuse that with a lack of commitment to the human rights agenda.”

The subcommittee was the loser in a game of musical chairs.

Biden was the chair of the crime and drugs subcommittee in the 110th Congress. He relinquished his gavel to Durbin after becoming vice president. The Illinois senator then had to give up his human rights and the law subcommittee chairmanship because Democratic rules didn’t allow him to hold more than one Judiciary subcommittee gavel.

Durbin, in turn, relinquished his crime and drugs subcommittee to Specter in May. He’d held hearings on sentencing dispairities between federal crack and powder cocaine offenses and Mexican drug cartels before handing the gavel to Specter. Durbin said his said the move was not meant to appease the long-serving Pennsylvanian, who’d been stripped of his seniority by the Democratic caucus after switching parties.

“I raised this issue long before feathers were ruffled,” Durbin said at a pen-and-pad session with reporters in May.

The Senate voted overwhelmingly today to approve an amendment that would remove the $80 million in the wartime spending bill that was requested to close the Guantanamo Bay military prison until President Obama comes up with a plan. The amendment also prohibits the use of funds to be used for the transfer of Guantanamo Bay detainees to the United States.

The amendment offered by Sen. Daniel Inouye (D-Hawaii) passed with the support of 90 senators, and only six senators opposed the amendment including Democratic Sens. Patrick Leahy (Vt.), Dick Durbin (Ill.), Sheldon Whitehouse (R.I.), Jack Reed (R.I.), Carl Levin (Mich.) and Tom Harkin (Iowa).

Levin, chairman of the Armed Services Committee, has said he wouldn’t mind a “Guantanamo North” in the Upper Peninsula of Michigan to house detainees, Congressional Quarterly reported today. Durbin, the assistant majority leader, told CQ that keeping suspected terrorists in U.S. prisons would not be a safety concern.

“We are already holding some of the most dangerous terrorists within the United States,” Durbin told CQ. “If we can safely hold these individuals, we can safely hold the Guantanamo detainees.”

Majority Leader Sen. Harry Reid stood against Levin and Durbin yesterday saying that he would not support the transfer of detainees to the United States. He added that he would only accept the closure of Guantanamo Bay if Obama releases a detailed plan.

Also, on Capitol Hill today, FBI Director Robert S. Mueller warned the House Judiciary Committee about the danger of releasing Guantanamo Bay detainees in the United States, The Washington Post reported. But a federal judge ruled last night that the United States cannot hold Guantanamo Bay prisoners indefinitely, unless they “planned, authorized, committed or aided” the September 11 attacks, The Post said.

Obama will discuss his Guantanamo Bay plans in a speech tomorrow, The Post reported.

Democratic Sens. Jack Reed and Sheldon Whitehouse recommended federal prosecutor Peter Neronha to replace Robert Corrente as the next U.S. Attorney for Rhode Island, The Associated Press reported last night.

He has been an Assistant U.S. Attorney for Rhode Island since 2002.

Ex-FBI interrogator Ali Soufan and a former State Department counselor Philip Zelikow told the Senate Judiciary administrative oversight and the courts subcommittee that the harsh interrogation methods used against terror suspects were abusive and did not help in the battle against al Qaeda.

Zelikow, who advised then-Secretary of State Condoleezza Rice, questioned the legality of the harsh interrogations in a May 2005 memo to the Justice Department, which he claimed was lost by the Bush administration. He said at the hearing today that his memo has been found as he continued to stand behind the advice he gave to Main Justice.

“The U.S. government adopted an unprecedented program of coolly calculated dehumanizing abuse and physical torment to extract information,” Zelikow said before the subcommittee. “This was a mistake, perhaps a disastrous one.”

Soufan — who interrogated suspected terrorist Abu Zubaydah — said harsh techniques including nudity and sleep deprivation were “borderline torture” that did not work. He added that he was not involved with the 83 times Zubaydah was waterboarded.

“These techniques, from an operation perspective, are ineffective slow and unreliable, and as result harmful to our efforts to defeat al Qaeda,” Soufan said from behind a curtain that concealed his identity.

Sen. Lindsey Graham (R-S.C.) condemned waterboarding – that was also used against Khalid Sheikh Mohammed and Abd al-Rahim al-Nashiri. The Republican said although Bush officials weren’t perfect, they did not break any laws when they authorized the harsh interrogation methods.

“They made mistakes,” Graham said. “They took a very aggressive interpretation of the law.”

Democrats present including Sens. Sheldon Whitehouse (D-R.I.), Patrick Leahy (D-Vt.), Dianne Feinstein (D-Calif.) and Russ Feingold (D-Wisc.), Dianne Feinstein (D-Calif.) and Dick Durbin (D-Ill.) disputed the legality of the harsh interrogation methods.

Leahy, chairman of the Senate Judiciary Committee, called the authorization of the interrogation techniques a “fundamental breakdown of the rule of law.”  Feinstein, who chairs the Senate Intelligence Committee, said the Bush administration legal opinions on the methods were discounted in Supreme Court decisions.

Graham argued that the interrogations could have saved lives, and forcing the executive branch into compliance with the Army Field Manual when dealing with interrogations could have a chilling effect on the president. Interrogators were acting in compliance with the Army Field Manual at the time the harsh interrogations were conducted. A 2006 version of the guide prohibited waterboarding and other harsh interrogation methods.

“If we restrict ourselves to the field manual, then shame on us,” Graham said. “It is a guide for soldiers on the field.”

Whitehouse, who chairs the subcommittee, said there is no evidence that harsh interrogation methods helped elicit pertinent information from suspected terrorists.

“We were told that torturing detainees was justified by American lives saved – saved as a result of actionable intelligence produced on the waterboard,” Whitehouse said. “This is far from clear. Nothing I have seen as a member of Intelligence Committee convinces me this was the case.”

In addition to Soufan and Zelikow, professors David Luban, Robert Turner and Jeffrey Addicott testified at the hearing. Only Turner, associate director of the Center for National Security Law, agreed with Graham that the Bush administration made mistakes, but did not break the law.

Luban, a law professor at Georgetown University, said the memos authored by then-DOJ Office of Legal Counsel lawyers Jay Bybee, John Yoo and Steven Bradbury were “a legal train wreck.”

“Unfortunately, the interrogation memos fall far short of professional advice and independent judgment,” Luban said. “They involved a selective and in place deeply eccentric reading of the law.”