In the USA...
Michael Nodianos ‘ashamed’ of callously joking about rape in viral video
By Eric W. Dolan
Monday, January 7, 2013 23:34 EST
The attorney representing Michael Nodianos of Steubenville, Ohio said the teen was ashamed for callously joking about the alleged gang rape of a 16-year-old girl.
Nodianos, 18, recently gained Internet infamy after “Anonymous” hackers released disturbing video of him cheerfully mocking the young victim, joking she was “so raped right now.” The girl was allegedly sexually assaulted in late August by two players on the Steubenville High School football team while she was unconscious.
“There’s no excuse or justification for the comments Michael made in the video and with some sober reflection he is ashamed and embarrassed to hear them himself,” attorney Dennis McNamara said at a press conference on Monday.
McNamara described the video as “disappointing, insensitive and unfortunate,” but insisted that his client was not a witness in the case. Nodianos arrived at the house while the victim was leaving, and heard about the incident from witnesses, McNamara said.
Thanks in part to the video, the Steubenville rape case has created a national uproar. The two teens accused of sexual assault, Trent Mays and Malik Richmond, face trial in February.
Nodianos, a freshman, has dropped out of Ohio State University due to threats.
Chuck Hagel and John Brennan nominations set up showdown with GOP
President's picks to lead Pentagon and CIA face opposition from lawmakers who disapprove of proposed national security team
Richard Adams in Washington
guardian.co.uk, Tuesday 8 January 2013 08.44 GMT
President Barack Obama was finalising his second-term national security team on Monday with the nomination of Chuck Hagel as defense secretary and counter-terrorism adviser John Brennan as head of the CIA – and in the process opens a new front in his bitter fight with Republicans in Congress.
After losing a bruising battle to nominate Susan Rice as Hillary Clinton's replacement at the State Department, Obama will name Hagel –
a decorated war hero – as head of the Pentagon, despite vows of resistance from Republicans who accuse the former Nebraska senator of opposing measures to stop Iran obtaining a nuclear capability and of offering less than rock-solid support for Israel.
Hagel's nomination has also come under attack from Democrats and Republicans unhappy at Hagel's previous support for the now-abandoned "don't ask, don't tell" policy that barred gays and lesbians from serving in the US military, as well as disparaging comments Hagel made about the appointment of an openly gay US ambassador in 1998.
The appointment of Brennan to replace disgraced general David Petraeus as head of the CIA has also been criticised because of Brennan's involvement with the Bush administration's backing for harsh interrogation techniques that many have described as torture, although Brennan denies he supported their use.
john brennan obama Brennan would replace David Petraeus at the CIA.
If the White House can successfully steer the nomination of both men through Congress then – alongside John Kerry as secretary of state –
the trio will form the nucleus of Obama's national security team for the next four years. The civil war in Syria, threats from Iran and North Korea and the final stages of the US involvement in Afghanistan are among the pressing issues that will fill their in-trays, as well as the long-running issues as diverse as Middle Eastern peace, the advance of China and the remaining danger from al-Qaida, any of which could burst into flames.
Obama, who was due to make the formal introduction of both nominations at the White House on Monday afternoon, will present Hagel's nomination as a bipartisan overture, citing Hagel's record as a Republican who worked for the election of Ronald Reagan as well as winning office as a Republican senator. Hagel made his fortune in cell phone services before being elected from his home state of Nebraska and serving for 12 years in Congress, until retiring from politics in 2009.
Despite Hagel's political allegiance, news of his nomination set off angry counterattacks from Republicans, including from some of those who served alongside him in Congress's Republican caucus. They recall Hagel's often outspoken opposition to Republican national security policies – especially Hagel's blunt rejection of the Bush-era military build-up known as the "surge" in Iraq – which is now regarded by Republicans as the bright spot in American involvement there.
Hagel has also been critical of the use of military force against Iran by the US as well as voicing support for Iran's involvement in peace talks in Afghanistan, and has been unusually forthright for a US politician is discussing what he described as the "Jewish lobby" in the US, describing pro-Israel lobby group Aipac as "powerful". Hagel has previously supported direct talks between the US and leaders of Hamas.
When Hagel's nomination was first floated, groups such as the Republican Jewish Coalition were quick to object, citing what it called his "failure to support Israel".
"The appointment of Chuck Hagel would be a slap in the face for every American who is concerned about the safety of Israel," it said in a statement.
The White House is gearing up for a battle over Hagel's nomination in the Senate. On Monday morning it rolled out a statement in support by Senator Jack Reed, a Democratic member of the Senate armed services committee, saying: "Chuck Hagel will make an outstanding Secretary of Defense. He is highly qualified and his record of service to this country as a decorated combat veteran, successful CEO, senator and statesman is extraordinary."
The National Jewish Democratic Council also joined the fray: "While we have expressed concerns in the past, we trust that when confirmed, former Senator Chuck Hagel will follow the President's lead of providing unrivalled support for Israel," it said.
The nomination of Brennan, while less controversial, has also come in for criticism from liberal Democrats unhappy at his previous record at the CIA.
Brennan had been a candidate to lead the agency in Obama's first term but withdrew his name from consideration. In doing so, Brennan told Obama that he was "a strong opponent of many of the policies of the Bush administration, such as the pre-emptive war in Iraq and coercive interrogation tactics, to include waterboarding".
Chuck Hagel 'not antisemitic for saying pro-Israel lobby has a powerful voice'
Ex-adviser Aaron David Miller says Hagel's language could do with a polish but that he is voicing a truth others will not confront
guardian.co.uk, Monday 7 January 2013 21.39 GMT
The author of a book that quotes Chuck Hagel criticising the influence of the pro-Israel lobby in Washington has defended him from charges of antisemitism, and said the president's nominee for defence secretary was speaking a truth many other politicians will not voice.
Aaron David Miller, who served six US secretaries of state as an adviser on Arab-Israeli negotiations, told the Guardian that Hagel's use of the term "Jewish lobby" to describe pressure groups was mistaken, because active support for Israel is much wider in the US than the country's Jewish population.
But he said that Hagel was describing "a fact" when he spoke about the considerable influence of the lobby on Congress in an interview the then senator gave in 2006 for Miller's book, The Much Too Promised Land.
Miller added that he does not regard the criticisms of Hagel as being primarily about his previous statements on Israel. "This is about a lot of other things. Number one, it's about a conviction that Hagel's appointment presages where Obama is on these issues. The attack on Hagel, in some respects, really is an attack on the president," he said.
Critics have been agitating against Hagel for weeks, focusing on his statements about Israel, including to Miller about why as a senator he declined to sign many of the letters of support for Israel distributed by the influential lobby group, the American Israel Public Affairs Committee (Aipac), on Capitol Hill – including one giving unconditional support to Israel when the second Palestinian uprising erupted in 2000.
"The political reality is that … the Jewish lobby intimidates a lot of people up here," he said.
Hagel later apologised for the use of the term "Jewish lobby", saying he should have said "pro-Israel lobby", an issue of particular sensitivity because it touches on antisemitic tropes about Jewish control, but also because it is inaccurate, given the wider support for Israel among Americans, notably Christian evangelicals. But Hagel did not back down over the thrust of his comments.
Miller said Hagel was only saying what many members of Congress think but do not voice. "Hagel talked about the issue of domestic political pressure. Most sitting senators and congressmen don't. But it's a fact: the pro-Israeli community or lobby has a powerful voice. It does not have a veto over American policy but it has a powerful voice. To deny that is simply to be completely out of touch with reality," he said.
That has not stopped a barrage of accusations against Hagel. William Kristol, a prominent neo-conservative and editor of the Weekly Standard, accused him of harbouring an "unpleasant distaste for Israel and Jews".
Hagel was denounced in the Wall Street Journal by Bret Stephens, who was editor of the Jerusalem Post 10 years ago when it called for Israel to kill the Palestinian leader, Yasser Arafat. Stephens described Hagel's comments as prejudiced, saying that their "odour is particularly ripe".
Opposition has come from some pro-Israel groups, including the American Jewish Committee, which wrote to members of the Senate urging them to vote against Hagel's appointment as defence secretary.
Officials in pro-Israel organisations are also opposing the nomination, including Josh Block, the chief executive of the Israel Project and former Aipac spokesman.
But other major groups, including Aipac, have yet to state a public position, perhaps hesitant to openly stand against Obama over the appointment of officials. Abe Foxman, leader of the Anti-Defamation League, said he would not have nominated Hagel but respected the president's prerogative.
Other pro-Israel organisations have come to Hagel's defence, including the Washington-based J Street, which called the criticisms an "outrageous smear campaign".
Hagel has also drawn accusations that he is not supportive enough of Israel, because of statements backing the Palestinian claim to East Jerusalem as the capital of an independent state, for criticising Israel's 2006 invasion of Lebanon, and for his opposition to stronger sanctions against Iran while advocating negotiations with Tehran over its nuclear programme.
Critics have latched onto comments by Hagel to supporters of Israel at a meeting in New York, in which he said: "Let me clear something up here, if there's any doubt in your mind. I'm a United States senator. I'm not an Israeli senator. I support Israel. But my first interest is: I take an oath of office to the constitution of the United States. Not to a president, not to a party, not to Israel."
Republican senator Lindsay Graham said it was provocative of the president to nominate a man who expressed such views.
"This is an in-your-face nomination of the president to all of us who are supportive of Israel," Graham told CNN.
The Republican Jewish Coalition has said Hagel's appointment would be a "slap in the face for pro-Israel Americans".
Miller said that, again, Hagel's crime was to speak a truth that many in Congress dare not. "I think Hagel has a view that is not commonly expressed among senators and representatives, and that is, yes, we have a special relationship with Israel, but that special relationship is not exclusive," he said.
"There will be times when in effect, whether it's settlements, whether it's what to do about the peace process, whether it's what to do about Iran, that the interests will not coincide. Very few sitting senators and representatives, although I think they know that to be the case, are willing to express themselves in this subject."
Hagel has also come challenge over his opposition to the appointment by President Bill Clinton of the US's first openly gay ambassador, who he described as "aggressively gay". Former congressman Barney Frank, a leading voice on gay rights issues, accused Hagel of "aggressively bigoted opposition" to the appointment and of a long history of bigotry, and has openly opposed his nomination as defence secretary.
But on Monday, Frank told the Boston Globe he has changed his position, because of Hagel's support for an early withdrawal from Afghanistan and in favour of cuts to defence spending. "I was hoping the president wouldn't nominate him," he said.
"As much as I regret what Hagel said, and resent what he said, the question now is going to be Afghanistan and scaling back the military. In terms of the policy stuff, if he would be rejected [by the Senate], it would be a setback for those things."
Following Obama's announcement of Hagel's nomination on Monday, former US secretary of state Colin Powell said he "wholeheartedly endorsed" it.
The National Jewish Democratic Council also threw its support behind Hagel in spite of concerns about his past. "While we have expressed concerns in the past, we trust that when confirmed, former senator Chuck Hagel will follow the president's lead of providing unrivalled support for Israel – on strategic cooperation, missile defense programs, and leading the world against Iran's nuclear program," it said.
Miller said he expects Hagel to be confirmed, in part because the dispute over his nomination is now shaping up as a party political fight. Although Hagel was a Republican senator, he broke with the party on many issues, including the invasion of Iraq.
"Republicans are struggling to define a new foreign policy for themselves and they're really at sea. Obama has waged a fairly competent foreign policy. No spectacular failure but no spectacular successes either, with the exception of killing Bin Laden. And foreign policy of the Bush years is now under a review and a critique by Republicans but there are some who don't want to give it up. It's a kind of crusader Republican theology as opposed to what Hagel is which is a realist Republican theology," he said.
January 07, 2013 04:00 PM
Hagel Foes Graham and McCain Praised James 'F**k the Jews' Baker
By Jon Perr
The Republican opposed the Iraq surge and favored regional negotiations with Iran and Syria. The GOP luminary has cautioned against pre-emptive strikes on Tehran's nuclear facilities. He publicly criticized Israeli settlement expansion in the West Bank. He advised the presidential campaigns of both John McCain and Mitt Romney on national security policy, and in 2000 helped secure Florida for George W. Bush. Oh, and he declared "f**k the Jews" and complained they "didn't vote for us anyway." Of course, that GOP leader wasn't Vietnam War hero, former Nebraska Senator and Obama Pentagon nominee Chuck Hagel, but Republican heavyweight James A. Baker III. And as it turns out, while Lindsey Graham called Baker a "role model," John McCain lauded the former Bush Secretary of State as "smartest guy I know" and wanted him to lead the peace process between Israel and the Palestinians.
Of course, you'd never know that listening to the incendiary rhetoric of Graham, McCain and other Republicans who have turned on their former colleague. Forgetting President Bush's selection of John Bolton as UN Ambassador, Senator Graham called Obama's selection of Hagel "an in-your-face nomination." On Sunday, Graham was not done in his criticism:
"Chuck Hagel, if confirmed to be the secretary of defense, would be the most antagonistic secretary of defense toward the state of Israel in our nation's history."
But Graham has a different attitude towards James Baker, the man neoconservative hardliners refer to simply as "F**k the Jews." After all, just a year ago the International Republican Institute (IRI) honored Baker with its 2011 Freedom Award for his exemplary public service and his work in international diplomacy. Among those lauding him that day was none other than John McCain's sidekick, South Carolina Senator Lindsey Graham:
"He was the right guy at the right time in so many circumstances and he has served our country in so many ways," U.S. Sen. Lindsey Graham, R-S.C., said of Baker in presenting the award. "When it comes to spreading freedom, you have done more than your fair share and when it comes to setting a standard, you are a role model."
John McCain, the other half of Washington DC's most enduring bromance, was even more effusive in his praise of James Baker.
In November, John McCain proposed that former President Bill Clinton, "a person of enormous prestige and influence," should be appointed by President Obama to negotiate peace between the Israelis and the Palestinians. But in a May 2006 interview with the Israeli paper Haaretz, Senator McCain had a different man in mind as President McCain's Middle East emissary:
A McCain administration, alongside his close supervision from the White House, would send "the smartest guy I know" to the Middle East. And who is that? "Brent Scowcroft, or Jim Baker, though I know that you in Israel don't like Baker." This is a longing for the administration of the first president Bush, or even for the administration of President Gerald Ford in the mid-1970s. In both of them, general Scowcroft was the national security adviser. McCain will act to bring peace, "but having studied what Clinton did at Camp David, perhaps not in one try, but rather step by step, and I would expect concessions and sacrifices by both sides." In general, a movement toward the June 4, 1967 armistice lines, with minor modifications? McCain nods in the affirmative.
And why would John McCain say, "I know that you in Israel don't like Baker?"
As the CBC recalled, that unease stems from yet another U.S.-Israeli clash over expanding settlements in the West Bank:
In the early 1990s, when then president George H.W. Bush became annoyed at Shamir's refusal to stop building settlements, he cut off $10 billion in loan guarantees, which Israel needed to resettle Russian Jewish immigrants.
At the time, James Baker, Bush's secretary of state, publicly recited the White House switchboard's phone number, declaring to Israel: "When you are serious about peace, call us!"
And as Slate reminded readers in 2002, the dust-up over the loan guarantees for Israeli settlements was just the beginning:
Then there was Secretary of State James Baker's infamous "fuck the Jews" remark. In a private conversation with a colleague about Israel, Baker reportedly uttered the vulgarity, noting that Jews "didn't vote for us anyway." This was more or less true--Bush got 27 percent of the Jewish vote, compared with 73 percent for Dukakis, in 1988. And thanks in part to Baker, it was even truer in 1992, when Bill Clinton got 78 percent of the Jewish vote and Bush got only 15 percent--the poorest showing by a Republican candidate since Barry Goldwater in 1964.
But while candidate McCain was in the process of making a hard-right turn in time for the 2008 GOP presidential primaries, Baker was getting serious about peace. Like Senator Hagel, Baker didn't just oppose President Bush's 2007 surge in Iraq. Baker co-chaired the Iraq Study Group which instead recommended Bush "beef up regional diplomacy, particularly that involving Syria and Iran, by establishing an Iraq International Support Group to encourage the participation of countries that have a critical stake in preventing Iraq from falling into chaos."
The supposed sins of James A. Baker III, who endorsed McCain for President and called him a "consensus builder" in 2008, didn't end there. Baker didn't just raise neoconservative eyebrows when he told Fox News, "Talking to an enemy is not, in my view, appeasement." In February 2010, he warned those so eager to "bomb bomb bomb, bomb bomb Iran" over Tehran's nuclear program:
"I don't know that there is a military solution. Most of the people, knowledgeable people, I talk to say there is no satisfactory military solution, that a strike will delay but not prevent their acquiring a nuclear weapon."
And Baker didn't merely say an Israeli strike was "not in our interest." The next month, Bush 41's Secretary of State didn't just praise President Obama's handling of foreign affairs, but slammed Israeli Prime Minister Benjamin Netanyahu for announcing new settlements just as Vice President Biden was arriving for meetings.
"Republican and Democratic administrations have always said that settlements are an obstacle to peace," Baker said.
When asked if the timing of the announcement was an "insult" to America, Baker responded: "It was pretty close to it...there needs to be respect on both sides, we need to respect Israel and her needs and goals and desires and she needs to respect us."
Despite his numerous heresies and deviations from neoconservative orthodoxy, James Baker enjoys the respect of John McCain, Lindsey Graham and most Senate Republicans. In contrast, their former colleague Chuck Hagel has apparently committed a double sin--potentially serving as Defense Secretary for a Democratic President whose candidacy he supported--means, in Graham's words, that "he's just going to have to explain some of these comments that disturb people." John McCain's hypocrisy is even worse. As McCain put it in 2006 in describing his former close and dear friend, the same year he gushed to an Israeli paper about James Baker:
McCain was an early enthusiast for the war in Iraq, Hagel an early skeptic. Could he imagine the co-chairman of his first national race having a place on a McCain ticket or in a McCain administration? I asked. "I'd be honored to have Chuck with me in any capacity," McCain replied. "He'd make a great secretary of state."
Six years later, McCain has a different take. To "allege that Hagel is somehow a Republican," he said, "That is a hard one to swallow." Of course, to allege that McCain's opposition to Chuck Hagel is about anything other than knee-jerk opposition to President Obama is the real joke.
US politics: Hagel at the Pentagon
Many Republicans will fight the nomination, but the world ought to see his arrival as an appointment full of possibilities
The Guardian, Monday 7 January 2013 22.06 GMT
The remarkable thing about President Obama's nomination of Senator Chuck Hagel as his new defence secretary is not the fact that Mr Hagel is a Republican. It is the fact that the Republican whom the president has chosen as defence secretary is Mr Hagel. Many US presidents like to have members of the other party somewhere in their cabinets – even George W Bush followed that custom. And Democratic presidents, attracted to putting defence issues above party, have frequently put a Republican into the Pentagon, as John Kennedy did with Robert McNamara, and other successors including Bill Clinton have done since.
Mr Hagel, however, is not a typical modern Republican. He is a conservative on domestic policy but he is very independent on defence and security, and has long been out of line with mainstream Republican thinking, particularly since 9/11. In his 12 years in the US Senate, from which he stepped down in 2008, Mr Hagel was often out of step not just with his own party but with some Democrats too – his friend, fellow Vietnam veteran and Nebraska senator Bob Kerrey, was similarly iconoclastic.
The unifying feature of Mr Hagel's security record is scepticism about assertive US unilateralism and his advocacy of what he calls "principled realism". This stance puts him at the opposite end of the Pentagon spectrum from Republicans such as Donald Rumsfeld. An opponent of the Vietnam war, Mr Hagel had no time for the Bush-era "war on terror" either. He voted for the Iraq war but has subsequently dubbed Iraq and Afghanistan as 20th-century solutions to 21st-century problems. He has often called on America to work in international organisations, and through diplomacy, rather spurning them. Mr Hagel supported the 1997 landmines treaty, which the Clinton administration opposed, and favoured trade with Cuba, as well as talks with Iran and North Korea when such ideas were taboo elsewhere. But the Pentagon is not getting a pacifist. Mr Hagel supported the bombing of Serbia in 1999, and berated Mr Clinton's reluctance to commit ground troops in the Balkans.
Much of the domestic speculation about whether Mr Obama would nominate Mr Hagel has centred, characteristically for US politics, on whether he is deemed pro- or anti-Israel. It is the wrong question. Mr Hagel is a pragmatic internationalist. He thinks America cannot be the world's policeman. He thinks that America should not be isolated, either. Mr Hagel's philosophy is not always consistent but he is an enemy of cant, and wins top marks for fresh thinking about America's place in the world. (That's enough German philosopher puns.) This, of course, is why so many Republicans will fight his nomination. But it is why the rest of the world ought to see his arrival at the Pentagon as an appointment full of possibilities.
Supreme Court to take up Prop 8 and DOMA March 26-27
By Agence France-Presse
Tuesday, January 8, 2013 7:07 EST
Couples exchange vows during a mass wedding for 25 same-sex partners at Seattle First Baptist Church on December 9, in Seattle, Washington via AFP
Topics: supreme court
The US Supreme Court will hear arguments on March 26 and 27 on the sensitive topic of gay marriage, one of the thorniest social disputes in modern America.
Same-sex marriage is currently barred by a federal law, yet legal in nine states and the capital, Washington.
The court’s announcement last month that it would take up the issue received cheers from opponents and advocates of the practice alike, who said a ruling by the justices could help settle the topic.
In announcing its schedule Monday, the court said it would take up the question of California’s ban on same-sex unions first, on March 26, and then the next day hear challenges to a federal law denying benefits to same-sex couples.
The court is expected to hand down its ruling in June.
The country’s highest court set aside an hour for each case, but observers believe that the hearings could well last much longer, because President Barack Obama’s administration as well as a group of elected Republicans have each been called to give their opinions.
On March 26, the Supreme Court will consider whether the 14th amendment to the US Constitution, which requires states to provide equal protection under the law to all people, would bar California from defining marriage in its own constitution as “between one man and one woman.”
If the court decides against the California ban, its decision could affect the 31 other states that forbid gay marriage in their constitutions or legislation.
Then on March 27, the court will turn to the federal Defense of Marriage Act, or “DOMA,” which defines marriage as the legal union of one man and one woman and denies federal benefits to married same-sex couples.
These benefits include inheritance rights, tax breaks, filing of joint income tax returns, and health insurance coverage.
Obama’s government does not support this view of marriage and would like the law to be overturned, but conservative campaigners are urging the Supreme Court to rule that the act is constitutional.
The court will focus on the case of Edith Windsor, a gay woman legally married in Canada who has been told to pay tax on inheriting the estate of her deceased partner.
The Supreme Court will rule whether DOMA violates the guarantee of equal protection under the law as guaranteed by the fifth amendment of the US constitution.
It will also decide if the Obama administration’s position that DOMA is unconstitutional deprives the Supreme Court of jurisdiction, and whether a complaint by some US lawmakers has legal standing.
There are 50,000 to 80,000 same-sex couples who have been married legally in the US.
Correction: This headline originally referred to Prop 9.
January 7, 2013
U.S. Legal Officials Split Over How to Prosecute Terrorism Detainees
By CHARLIE SAVAGE
WASHINGTON — The Obama administration legal team is divided over whether to drop two terrorism cases originally prosecuted in a military commission at Guantánamo Bay, Cuba, a decision that could have far-reaching consequences by significantly reducing the number of other prisoners who can receive tribunal trials.
The two defendants were found guilty in 2008 by a tribunal on charges — including “material support for terrorism” — that the Justice Department concedes were not recognized international war crimes at the time of their actions. In October, an appeals court rejected the government’s argument that such charges were valid in American law and vacated the “material support” verdict against one of the men, a former driver for Osama bin Laden.
Administration officials are now wrestling with whether to abandon the guilty verdict against the other detainee, a Qaeda facilitator and maker of propaganda videos. He was convicted of both “material support” and “conspiracy,” another charge the Justice Department has agreed is not part of the international laws of war, and his case is pending before a different panel of the same appeals court.
Terminating that case without a further fight, however, would mean giving up on charging other detainees with those offenses. It would also require prosecutors to drop a similar charge in the system’s centerpiece case, the coming trial of Khalid Shaikh Mohammed and four others accused as accomplices in the Sept. 11, 2001, terrorist attacks. More direct charges, like attacking civilians and hijacking, would remain against the Sept. 11 defendants.
Robert Chesney, a law professor at University of Texas at Austin who specializes in the law of war, said the most important part of the debate involved cases where the evidence shows a person joined or supported Al Qaeda but was not linked to a particular attack. The dispute brings to a head a long-building controversy over the ability of military commissions to match civilian courts on this issue, he said.
“In the civilian court system we have powerful tools for charging people in preventative circumstances who are not directly linked to an attack, and they are the charges of conspiracy and material support,” Professor Chesney said. “The military commissions system is supposed to be a still more robust terrorism prosecution system, but ironically there has always been a question about whether it can legitimately charge those two key crimes.”
The push to terminate the two cases has been led by Brig. Gen. Mark S. Martins, the chief military commission prosecutor, officials said. He is said to have argued that even though giving up on the two cases would mean narrowing the scope of the tribunal system, it would put the system on firmer long-term footing and avoid making losing arguments and damaging its legitimacy as his office focuses on convicting the Sept. 11 defendants.
An administration spokesman declined to comment on the matter. But officials who spoke on the condition of anonymity because they were not authorized to discuss internal deliberations said General Martins’s position had been backed by the acting general counsel of the Pentagon, Robert S. Taylor, and the top lawyer at the State Department, Harold Koh.
Justice Department litigators, however, have been loath to give up without a further fight, especially since both charges were blessed by Congress in 2006 and 2009 laws. They have also argued that there is some history of “conspiracy” charges in American military tribunals dating back to World War II and the Civil War. This faction is led by Lisa Monaco, the assistant attorney general for national security, who is considered to be a possible successor to Robert S. Mueller III as director of the Federal Bureau of Investigation when his term ends later this year.
The administration legal team has been arguing about the detainee issue for weeks, in discussions and in opposing memorandums. The decision is up to the solicitor general, Donald Verrilli Jr., who must advise the appeals court in Washington by Wednesday whether the government still thinks the “conspiracy” conviction of the propagandist, Ali al-Bahlul, was a valid charge even though doing so would require recycling the same arguments that already lost.
The Justice Department also has until Monday to appeal the ruling vacating the “material support” conviction of the former Qaeda driver, Salim Hamdan, although there is said to be less interest at the Justice Department in fighting on with that case.
Mr. Hamdan has already served out his sentence and is free in Yemen. Mr. Bahlul, who is also Yemeni, boycotted his trial and was sentenced to life imprisonment. Were his sentence to be vacated, officials said, he would be transferred back to the larger detainee population at Guantánamo that is being held without trial as wartime prisoners.
A lawyer for Mr. Bahlul declined to comment. But in a court filing, his legal team argued that the ruling in Mr. Hamdan’s case — along with the government’s concession that conspiracy is not a well-established international war crime — means his case must be dismissed.
The Justice Department, the defense lawyers wrote, is “correct in conceding that these offenses were not and still are not recognized under the international laws of war. As a consequence, they were not properly tried before a military commission.”
The Justice Department officials who favor fighting on with Mr. Bahlul’s case, however, have argued that even if the government loses at the appeals court level — as they concede seems likely, since the panel hearing his case is more liberal leaning than the panel that rejected the Justice Department’s same arguments in Mr. Hamdan’s case — there remains a chance that five justices on the Supreme Court could accept the “common law of war” reasoning and uphold the validity of a “conspiracy” charge more generally.
In a 2006 ruling — a case that also involved Mr. Hamdan — five justices voted to strike down President George W. Bush’s first version of the tribunals on the grounds that Congress had not authorized them. Four of those justices also rejected a “conspiracy” offense and said military tribunals were only for international law war crimes.
But Anthony M. Kennedy, who voted to strike down the tribunals in 2006, did not join that part of their opinion and made ambiguous comments about his views in his concurrence. At one point he wrote that the tribunals are for “international law governing armed conflict,” but at another point he declined to weigh in on conspiracy and invited Congress to clarify the issue. He did not say whether lawmakers’ interpretation could apply retroactively to acts that took place before lawmakers enacted a statute.
The Constitution bars Congress from creating “ex post facto” laws, or criminalizing behavior that has already taken place.
January 7, 2013
Lawyers Stumble, and Clients Take Fall
By ADAM LIPTAK
WASHINGTON — Twice in recent years, the Supreme Court rebuked the federal appeals court in Atlanta for its rigid attitude toward filing deadlines in capital cases. The appeals court does not seem to be listening.
A few days after Christmas, a divided three-judge panel of the court ruled that Ronald B. Smith, a death row inmate in Alabama, could not pursue a challenge to his conviction and sentence because he had not “properly filed” a document by a certain deadline.
As it happens, there is no dispute that the document was filed on time. But it was not “properly filed,” the majority said, because Mr. Smith’s lawyer did not at the same time pay the $154 filing fee or file a motion to establish something also not in dispute — that his client was indigent.
Nor did the majority place much weight on the fact that the lawyer himself was on probation for public intoxication and was addicted to crystal methamphetamine while he was being less than punctilious. In the months that followed, the lawyer would be charged with drug possession, declare bankruptcy and commit suicide.
Mr. Smith is almost surely guilty of murdering a convenience store clerk in 1994 in Huntsville, Ala. But it is not clear that he deserves to die for his crime.
His jury, by a vote of seven to five, determined that the murder did not warrant the death penalty, recommending instead that Mr. Smith be sentenced to life in prison.
But the Alabama capital justice system has many idiosyncrasies. One of them is that it allows judges to override such recommendations. The judge rejected the jury’s recommendation and sentenced Mr. Smith to death.
Only two other states, Delaware and Florida, allow such overrides. But it has been decades since anyone was sentenced to death in either state after a jury recommended a life term.
Since 1976, Alabama judges have rejected sentencing recommendations from capital juries 110 times, according to data compiled by the Equal Justice Initiative, a nonprofit law firm that represents poor people and prisoners. In 100 of those cases, judges imposed the death penalty after juries had called for a life sentence. The most recent override in the direction of death was in September.
The Supreme Court considered the quality of Alabama’s capital justice system in a blown-deadline case last year and did not seem impressed.
“Nearly alone among the states, Alabama does not guarantee representation to indigent capital defendants in post-conviction proceedings,” Justice Ruth Bader Ginsburg wrote for a seven-justice majority in Maples v. Thomas. “On occasion, some prisoners sentenced to death receive no post-conviction representation at all.”
That case involved Cory R. Maples, an Alabama death row inmate who missed a filing deadline because of a mix-up in the mailroom of a prominent New York law firm, Sullivan & Cromwell.
Mr. Maples’s lawyers had done more than neglect to attach a check to their legal papers; they missed the deadline completely.
They were, moreover, working at one of the most prestigious firms in the nation. “I have little doubt that the vast majority of criminal defendants would think that they had won the lottery if they were given the opportunity to be represented by attorneys from such a firm,” Justice Samuel A. Alito Jr. wrote of Sullivan & Cromwell in a concurrence.
Now consider Mr. Smith’s lawyer, C. Wade Johnson, who was battling a crippling drug addiction throughout his representation of Mr. Smith. According to a sworn statement from his legal assistant, Mr. Johnson would often turn up at the office intoxicated and sometimes had to be roused at home and taken to court appearances.
By the time of the deadline at issue, in 2001, Mr. Johnson had twice been arrested, for public intoxication and drug possession. Less than a month after the deadline, Mr. Johnson was rushed to the hospital while visiting a client in prison, leaving his dog locked in his car.
In the process of freeing the dog, officials found a bag of crystal meth, which led to more drug charges. Mr. Johnson’s fortunes spiraled further from there, and he took his own life in 2002.
The majority in Mr. Smith’s case wrote that all of this might suffice to excuse the incomplete filing were it not for a second lawyer’s involvement in the case. But that lawyer was based in Tennessee and was not authorized to practice law in Alabama.
Judge Rosemary Barkett dissented, saying she did not see how the case was materially different from that of Mr. Maples or a 2010 rebuke from the Supreme Court to her court. In that second case, a Florida death row inmate named Albert Holland was given a new opportunity to argue that his lawyer’s inaccessibility and incompetence had caused him to miss a deadline. In a concurrence in April in yet another blown-deadline case, Judge Barkett identified the larger question that runs through these cases: why is it morally permissible to blame clients for their lawyers’ mistakes?
The legal system generally answers by saying that lawyers are their clients’ agents. The answer makes perfect sense when you are talking about sophisticated clients who choose their lawyers, supervise their work and fire them if they turn out to be incompetent or worse.
But the theory turns problematic, Judge Barkett wrote, when the clients are on death row, have no role in the selection of their lawyers and have no real control over them.
Allowing Mr. Smith’s challenge to be heard in a federal court does not mean he would prevail. But, Judge Barkett said, he ought to be allowed to make his case. “It is unjust and inequitable,” she wrote, “to require death row inmates to suffer the consequences of their attorneys’ negligence.”
January 7, 2013
Growth of Health Spending Stays Low
By ROBERT PEAR
WASHINGTON — National health spending climbed to $2.7 trillion in 2011, or an average of $8,700 for every person in the country, but as a share of the economy, it remained stable for the third consecutive year, the Obama administration said Monday.
The rate of increase in health spending, 3.9 percent in 2011, was the same as in 2009 and 2010 — the lowest annual rates recorded in the 52 years the government has been collecting such data.
Federal officials could not say for sure whether the low growth in health spending represented the start of a trend or reflected the continuing effects of the recession, which crimped the economy from December 2007 to June 2009.
Kathleen Sebelius, the secretary of health and human services, said that “the statistics show how the Affordable Care Act is already making a difference,” saving money for consumers. But a report issued by the Centers for Medicare and Medicaid Services, in her department, said that the law had so far had “no discernible impact” on overall health spending.
Although some provisions of the law have taken effect, the report said, “their influence on overall health spending through 2011 was minimal.”
The recession increased unemployment, reduced the number of people with private health insurance, lowered household income and assets and therefore tended to slow health spending, said Micah B. Hartman, a statistician at the Centers for Medicare and Medicaid Services.
In the report, federal officials said that total national spending on prescription drugs and doctors’ services grew faster in 2011 than in the year before, but that spending on hospital care grew more slowly.
Medicaid spending likewise grew less quickly in 2011 than in the prior year, as states struggled with budget problems. But Medicare spending grew more rapidly, because of an increase in “the volume and intensity” of doctors’ services and a one-time increase in Medicare payments to skilled nursing homes, said the report, published in the journal Health Affairs.
National health spending grew at roughly the same pace as the overall economy, without adjusting for inflation, so its share of the economy stayed the same, at 17.9 percent in 2011, where it has been since 2009. By contrast, health spending accounted for just 13.8 percent of the economy in 2000.
Health spending grew more than 5 percent each year from 1961 to 2007. It rose at double-digit rates in some years, including every year from 1966 to 1984 and from 1988 to 1990.
The report did not forecast the effects of the new health care law on future spending. Some provisions of the law, including subsidized insurance for millions of Americans, could increase spending, officials said. But the law also trims Medicare payments to many health care providers and authorizes experiments to slow the growth of health spending.
“The jury is still out whether all the innovations we’re testing will have much impact,” said Richard S. Foster, who supervised the preparation of the report as chief actuary of the Medicare agency. “I am optimistic. There’s a lot of potential. More and more health care providers understand that the future cannot be like the past, in which health spending almost always grew faster than the gross domestic product.”
Evidence of the new emphasis can be seen in a series of articles published in The Archives of Internal Medicine, now known as JAMA Internal Medicine, under the title “Less Is More.” The series highlights cases in which “the overuse of medical care may result in harm and in which less care is likely to result in better health.”
Total spending for doctors’ services rose 3.6 percent in 2011, to $436 billion, while spending for hospital care increased 4.3 percent, to $850.6 billion.
Spending on prescription drugs at retail stores reached $263 billion in 2011, up 2.9 percent from 2010, when growth was just four-tenths of 1 percent. The latest increase was still well below the average increase of 7.8 percent a year from 2000 to 2010.
Federal officials said the increase in 2011 resulted partly from rapid growth in prices for brand-name drugs.
Prices for specialty drugs, typically prescribed by medical specialists for chronic conditions, have increased at double-digit rates in recent years, the government said. In addition, spending on new brand-name drugs — those brought to market in the previous two years — more than doubled from 2010 to 2011, driven by an increase in the number of new medicines.
“In 2011,” the report said, “spending for private health insurance premiums increased 3.8 percent, as did spending for benefits. Out-of-pocket spending by consumers increased 2.8 percent in 2011, accelerating from 2.1 percent in 2010 but still slower than the average annual growth rate of 4.7 percent” from 2002 to 2008.
January 6, 2013
Students Rush to Web Classes, but Profits May Be Much Later
By TAMAR LEWIN
MOUNTAIN VIEW, Calif. — In August, four months after Daphne Koller and Andrew Ng started the online education company Coursera, its free college courses had drawn in a million users, a faster launching than either Facebook or Twitter.
The co-founders, computer science professors at Stanford University, watched with amazement as enrollment passed two million last month, with 70,000 new students a week signing up for over 200 courses, including Human-Computer Interaction, Songwriting and Gamification, taught by faculty members at the company’s partners, 33 elite universities.
In less than a year, Coursera has attracted $22 million in venture capital and has created so much buzz that some universities sound a bit defensive about not leaping onto the bandwagon.
Other approaches to online courses are emerging as well. Universities nationwide are increasing their online offerings, hoping to attract students around the world. New ventures like Udemy help individual professors put their courses online. Harvard and the Massachusetts Institute of Technology have each provided $30 million to create edX. Another Stanford spinoff, Udacity, has attracted more than a million students to its menu of massive open online courses, or MOOCs, along with $15 million in financing.
All of this could well add up to the future of higher education — if anyone can figure out how to make money.
Coursera has grown at warp speed to emerge as the current leader of the pack, striving to support its business by creating revenue streams through licensing, certification fees and recruitment data provided to employers, among other efforts. But there is no guarantee that it will keep its position in the exploding education technology marketplace.
“No one’s got the model that’s going to work yet,” said James Grimmelmann, a New York Law School professor who specializes in computer and Internet law. “I expect all the current ventures to fail, because the expectations are too high. People think something will catch on like wildfire. But more likely, it’s maybe a decade later that somebody figures out how to do it and make money.”
For their part, Ms. Koller and Mr. Ng proclaim a desire to keep courses freely available to poor students worldwide. Education, they have said repeatedly, should be a right, not a privilege. And even their venture backers say profits can wait.
“Monetization is not the most important objective for this business at this point,” said Scott Sandell, a Coursera financier who is a general partner at New Enterprise Associates. “What is important is that Coursera is rapidly accumulating a body of high-quality content that could be very attractive to universities that want to license it for their own use. We invest with a very long mind-set, and the gestation period of the very best companies is at least 10 years.”
But with the first trickles of revenue now coming in, Coursera’s university partners expect to see some revenue sooner.
“We’ll make money when Coursera makes money,” said Peter Lange, the provost of Duke University, one of Coursera’s partners. “I don’t think it will be too long down the road. We don’t want to make the mistake the newspaper industry did, of giving our product away free online for too long.”
Right now, the most promising source of revenue for Coursera is the payment of licensing fees from other educational institutions that want to use the Coursera classes, either as a ready-made “course in a box” or as video lectures students can watch before going to class to work with a faculty member.
Ms. Koller has plenty of other ideas, as well. She is planning to charge $20, or maybe $50, for certificates of completion. And her company, like Udacity, has begun to charge corporate employers, including Facebook and Twitter, for access to high-performing students, starting with those studying software engineering.
This fall, Ms. Koller was excited about news she was about to announce: Antioch University’s Los Angeles campus had agreed to offer its students credit for successfully completing two Coursera courses, Modern and Contemporary American Poetry and Greek and Roman Mythology, both taught by professors from the University of Pennsylvania. Antioch would be the first college to pay a licensing fee — Ms. Koller would not say how much — to offer the courses to its students at a tuition lower than any four-year public campus in the state.
“We think this model will spread, helping academic institutions offer their students a better education at a lower price,” she said.
Just three days before the announcement, Ms. Koller discovered that the deal would have a very modest start. For the pilot, Antioch planned to have just one student and a faculty “facilitator” in each course. She expressed surprise but took the news in stride, moving right on to greet a delegation from the University of Melbourne that was waiting for her in the conference room.
Coursera recently announced another route to help students earn credit for its courses — and produce revenue. The company has arranged for the American Council on Education, the umbrella group of higher education, to have subject experts assess whether several courses are worthy of transfer credits. If the experts say they are, students who successfully complete those courses could take an identity-verified proctored exam, pay a fee and get an ACE Credit transcript, a certification that 2,000 universities already accept for credit.
Under Coursera’s contracts, the company gets most of the revenue; the universities keep 6 percent to 15 percent of the revenue, and 20 percent of gross profits. The contracts describe several monetizing possibilities, including charging for extras like manual grading or tutoring. (How or if partner universities will share revenue with professors who develop online courses remains an open question on many campuses, with some professors saying the task is analogous to writing a textbook and should yield similar remuneration.)
One tiny revenue stream has begun flowing into the nondescript Silicon Valley office building where Coursera’s 35 employees work to keep up with the demand for their courses: the company is an Amazon affiliate, getting a sliver of the money each time Coursera students click through the site to buy recommended textbooks or any other products on Amazon.
“It’s just a couple thousand, but it’s our first revenue,” Ms. Koller said. “When faculty recommend a textbook and people buy it on Amazon, we get some money. The funny thing is that we’re getting more than twice as much money from things like Texas Rangers jackets as from what the textbooks are bringing in.”
Other possibilities around the edges include charging a subscription fee, after a class is over, to continue the discussion forum as a Web community, or perhaps offering follow-up courses, again for a fee. And advertising sponsorships remain a possibility.
Like the Antioch deal, some early attempts have gotten off to a slow start. For example, the University of Washington has already offered credit for a fee in a few Coursera courses. But while thousands of students enrolled in the free version, only a handful chose the paid credit-carrying option. David P. Szatmary, the vice provost, said part of the problem was that the credit option was posted only shortly before the course started, when most students had already enrolled free.
“We’re going to try it again,” he said. “We think that if students know about the possibility of doing it for credit, they might be willing to pay a fee and get their own discussion board, an instructor who guides them through the course and some additional readings and projects.”
Some Coursera partners say they are in no hurry to cash in.
“Part of what Coursera’s gotten right is that it makes more sense to build your user base first and then figure out later how to monetize it, than to worry too much at the beginning about how to monetize it,” said Edward Rock, a law professor serving as the University of Pennsylvania’s senior adviser on open course initiatives.
The Coursera co-founders have become oracles of higher education, spreading their gospel of massive open online courses at the World Economic Forum in Abu Dhabi, the Web Summit in Dublin and the Aspen Ideas Festival. They describe how free online courses can open access to higher education to anyone with an Internet connection; liberate professors from repeating the same tired lectures and jokes semester after semester; and generate data, because the computers capture every answer right or wrong, that can provide new understanding of how students learn best.
Many educators predict that the bulk of MOOC revenues will come from licensing remedial courses and “gateway” introductory courses in subjects like economics or statistics, two categories of classes that enroll hundreds of thousands of students a year. Even though less than 10 percent of MOOC students finish the courses they sign up for on their own, many experts believe that combining MOOC materials with support from a faculty member or a teaching assistant could increase completion rates.
The University of Pennsylvania has high hopes for the mass marketing of Robert Ghrist’s single-variable calculus course, which starts this month and features his hand-drawn animations.
“What Rob has done is figure out how to make PowerPoint dance,” Mr. Rock said. “I think it’ll revolutionize the teaching of calculus both by allowing kids to take it on Coursera and by making the normal textbooks obsolete. It could become a way that more high schools that want to offer BC Calc can do so, and junior colleges that don’t have good quality calculus instruction can license it and use it in a blended format, with the teacher now not giving frontal lectures but answering questions and exploring concepts in great detail.”
Mr. Rock, whose university has produced 16 Coursera courses, said each one costs about $50,000 to create, the biggest expenses being the videography and paying the teaching assistants who monitor the discussion forum. The University of Pennsylvania is just beginning to think about how to recover those costs. Last fall, at the conclusion of its Listening to World Music course, for example, the university sent out a questionnaire asking students whether they would be interested in a follow-up course, what they would want to cover and how much they would be willing to pay for it.
Dr. Ezekiel Emanuel, a Penn bioethicist who served as health adviser to the Obama administration, is teaching two Coursera courses: one on the Obama health care law, the other on rationing scarce medical resources.
He said he was not trying to produce a course that can be offered over and over, with no additional costs, but simply hoping to spread understanding of important health issues. And rather than reuse his materials from last summer’s course on the new law, Dr. Emanuel overhauled the course, using not one but two videographers to film his live classes at Penn.
But Dr. Emanuel is not immune to the commercial possibilities: he is considering whether to develop a MOOC that could be marketed to those seeking health care ethics certification.
Even Ms. Koller is unsure about the future of MOOCs — and her company.
“A year ago, I could not have imagined that we would be where we are now,” she said. “Who knows where we’ll be in five more years?”