FBI’s Human Rights Investigators Are Critical to Prosecuting “Atrocity Crimes”

By David M. Crane, Stephen Rapp, Clint Williamson, and Beth Van Schaack

(Re-published from The Hill | Feb. 22, 2019) For over seven decades, the United States has stood as the cornerstone of a rules-based global system that arose from the ashes of World War II, organizing and leading a united group of nations as they held major violators to account at international tribunals convened in Nuremberg and Tokyo.

This world order is under threat as strongmen abound and governments step back from the advances made.

The Nuremberg Principles — which take as their starting point the promise that “any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment” — were woven into the fabric of our system of international peace and security. Together with the Universal Declaration of Human Rights, these global pronouncements protect the rights of every human being, demand accountability for grave international crimes, and undergird our entire structure of atrocity accountability.

On the domestic level, the United States has incorporated a number of international crimes into the federal penal code, ensuring that prosecutors have the legal authority they need to address crimes within the jurisdictional reach of our courts.

This world order is under threat as strongmen abound and governments step back from the advances made. Here in the United States, we have seen troubling indications of a diminishing commitment to the protection of human rights and support for atrocity accountability. In one recent development, the FBI reportedly intends to disband its International Human Rights Investigation Unit (IHRU).

At present, the IHRU plays an essential law enforcement role in bringing perpetrators of atrocity crimes to justice in the United States by investigating suspected perpetrators of genocide, war crimes, torture, recruitment of child soldiers, and female genital mutilation, among other offenses. This includes crimes committed abroad when the perpetrator is within reach, and crimes committed by or against U.S. citizens.

The IHRU continues the U.S. law enforcement commitment that began with successful efforts to track down Nazi war criminals living in the United States and to remove them to venues where they could face justice. Its stated mission is “to mitigate the most significant threats posed by international human rights violators through effective intelligence collection and targeted enforcement action” through coordination with other domestic agencies, as well as its counterparts in foreign countries and INTERPOL.

The IHRU is an essential partner in a co-located task force with the Department of Homeland Security’s (DHS) Human Rights Violators and War Crimes Unit. Together, this team presents cases to Department of Justice attorneys for prosecution. This inter-agency team has been successful in bringing perpetrators of atrocities in Guatemala, Rwanda and the former Yugoslavia to justice in U.S. courts. Most recently, its work resulted in convictions of two Liberian warlords in federal court in Philadelphia …

Read the full article.

Now retired from teaching at Syracuse University College of Law, David M. Crane is an INSCT Research & Practice Associate.

Robert B. Murrett Discusses US-North Korea Summit with Fox News

Trump, Kim Jong Un’s summit in Vietnam: What to expect from the leaders’ second meeting

(Fox News | Feb. 21, 2019) President Donald Trump and North Korea leader Kim Jong Un are slated to meet again.

The two are expected to reunite in Hanoi, Vietnam on Feb. 27 and Feb. 28, which will follow what was the first-ever meeting between a sitting U.S. president and a North Korean leader.

Denuclearization hasn’t been “progressing as quickly as hoped.”

Trump announced the second meeting at his State of the Union address earlier in February …

… Denuclearization will likely be at the center of their meeting, Vice Adm. Robert B. Murrett, a professor of practice, public administration and international affairs at Syracuse University, told Fox News.

“A lot of progress has been made since last summer,” he said, but noted that denuclearization hasn’t “progressing as quickly as hoped.”

While Trump and Kim signed a document promising to work toward “complete denuclearization of the Korean peninsula,” during the first summit, Dan Coats, the director of National Intelligence, cast doubt on whether the so-called Hermit Kingdom would truly “give up its nuclear weapons and production capabilities,” he said during a testimony before the Senate Intelligence Committee in late January.

“Our assessment is bolstered by our observations of some activity that is inconsistent with full denuclearization,” he said at the time.

Speaking from the Rose Garden in mid-February, Trump also implied he may not push for full denuclearization as long as North Korea agrees to stop testing any weapons of mass destruction.

“We hope we’re going to be very much equally as successful [at the second summit]. I’m in no rush for speed. We just don’t want testing,” he said.

That said, there are expectations for the second summit to “include concrete, detailed, actual execution plans,” regarding denuclearization, Yang Moo-jin, a professor at the University of North Korean Studies in Seoul, South Korea, told NPR.

A peace treaty?

There’s growing speculation that Trump may offer an announcement of peace and a formal end to the Korean War if he can convince Kim to commit to denuclearization.

The Korean War ended in 1953 with an armistice, essentially a cease-fire signed by North Korea, China and the 17-nation, U.S.-led United Nations Command that was supposed to be replaced by a formal peace treaty. But both sides instead settled ever deeper into Cold War hostilities marked by occasional outbreaks of violence.

The conflict in Korea is technically America’s longest war.

But a peace treaty, even decades later, could have significant benefits for North Korea — potentially easing trade sanctions on the country and leading to economic growth, for starters.

“Trade is going to be a part of [their talks],” Murrett said, adding Kim has expressed interest in “bringing their economy into the 21st century” …

Read the full article.

As Trump Turns to a National Emergency, the Media Turns to William C. Banks

President Donald J. Trump has made it known that he would declare a “national emergency” at the US/Mexico border in order to secure funds to build a southern border wall, an effort to augment funds that Congress has appropriated for border security in a bill that the president is expected to sign.

It turns out it’s going to be quite the tricky fight for Trump should he decide to actually declare a national emergency solely to get the border wall built.

The national emergency declaration would be unusual in this case, as the southern border crisis lacks the immediacy of a catastrophe such as Sept. 11, 2001. The declaration also may be unconstitutional, and it probably will be challenged in the courts. National security expert Professor Emeritus William C. Banks has been in demand by top media outlets to explain the what, why, when, and how of declaring a national emergency.

Trump wants the military to build the border wall. It might not be legal.

(Vox | Feb. 14, 2019) After months of back-and-forth with Congress, President Donald Trump is expected to soon declare a national emergency in order for the US military to construct the southern border wall he’s promised for years.

But there’s a pretty big problem with that, according to experts — namely, that he has a very weak legal case, and there’s strong political opposition to making that happen.

Set aside the fact that Trump’s own administration doesn’t assess that there is a massive national security problem at the US-Mexico border. Trump believes there is, and he plans to take extraordinary measures to keep asylum seekers out of the country.

William Banks, a national security law expert at Syracuse University, helped me understand what to expect in the days ahead.

It turns out it’s going to be quite the tricky fight for Trump should he decide to actually declare a national emergency solely to get the border wall built.

The key law in question is the appropriately named “Construction authority in the event of a declaration of war or national emergency.” Here’s what it says:

In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces. Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated …

Read the full article.


SEE ALSO …

Trump’s ‘authoritarian’ streak stirs backlash at home and abroad (The Washington Post | Feb. 19, 2019)

Trump’s national emergency and GOP senators (CNN | Feb. 19, 2019)

State of Chaos: What Comes Next for Mueller and for Trump’s “Emergency”? (On Topic with Renato Mariotti | Feb. 16, 2019)

Prof. Bill Banks interviewed by KCBS Radio (Feb. 16, 2019)

Trump declares U.S.-Mexico border emergency; Democrats protest (Reuters | Feb. 15, 2019)

Trump’s national emergency to contend with lawsuits (China Daily | Feb. 18, 2019)

Trump’s Face-Saving Way Out of Crisis Raises Fears Over Rule of Law (The New York Times | Feb. 14, 2019)

National Emergency Powers and Trump’s Border Wall, Explained (The New York Times | Jan. 7, 2019)

No Evidence of Collusion? William C. Banks Discusses Senator Burr’s Comments with Bloomberg Law

Senate Intel Leaders Split Over Russia Collusion

(Bloomberg Law | Feb. 13, 2019) Syracuse University Law School Professor William Banks discusses comments made by Richard Burr, the Republican Chairman of the Senate Intelligence committee that the investigation had found no evidence of collusion, Senator Mark Warner, the top democrat on the committee disagreed saying the investigation is still ongoing and the committee still had to interview key witnesses. He speaks with Bloomberg’s June Grasso.

https://www.bloomberg.com/news/audio/2019-02-13/senate-intel-leaders-split-over-russia-collusion-radio

William C. Banks Authors OpEd on Southern Border Crisis for Newsday

Opinion: Declaration would defy Congress and abuse power

By William C. Banks

(Newsday | Feb. 10, 2019) President Donald Trump has described the congressional negotiations over his request for $5.7 billion to fund a Southern border wall as a “waste of time.”

Intended to stop the practice of endless states of emergency, the law gave them new life. Today, there are 28 national emergencies, renewed for decades by presidents.

He has repeatedly insisted that he can and will build the wall after declaring a national emergency at the border. If the president proceeds, he will undermine the role of Congress in our constitutional system and make a mockery of the uses of this extraordinary emergency power as exercised by modern presidents.

Rhetoric and politics aside, consider a dispassionate assessment of what the law permits. In the end, Congress may already have given Trump the authority he needs to build his wall.

The president exercises whatever powers he has from the Constitution or an act of Congress. The Constitution does not confer any general emergency powers, and only permits suspending the writ of habeas corpus “when in Cases of Rebellion or Invasion the public Safety may require it.” When it comes to appropriating public funds, the Constitution anchors the power in Congress. The Congress appropriates funds, and the president spends them.

Historically, Congress provided generous statutory authorities that allow the president to act and spend in circumstances that rise to the level of national emergency. By 1973, there were more than 470 such laws, most of them vestiges of bygone crises. In a stroke of Watergate-era good government, Congress enacted the National Emergencies Act in 1976 to repeal all emergency laws and create procedures for future presidents to act responsibly in a crisis. However, while enacted with the best of intentions to rein in misuse of presidential emergency powers, the law has, in a backhanded way, enabled considerable presidential initiatives.

The National Emergencies Act requires presidents to specify the statutory authorities they intend to use after declaring a national emergency, make public notice of the emergency declaration and renew such authorities annually in writing to Congress. However, the law requires Congress to act (with a two-thirds majority to overcome a presidential veto) to terminate a declared emergency and allows declared emergencies to be renewed annually by the president.

Intended to stop the practice of endless states of emergency, the law gave them new life. Today, there are 28 national emergencies, renewed for decades by presidents, supported by 136 statutes the president can invoke after an emergency declaration. Congress has never attempted to terminate an emergency declared pursuant to the National Emergencies Act.

Nor are there criteria to guide or limit the president in deciding what constitutes a national emergency. Could Trump declare a national emergency at the Southern border? Yes, unquestionably. Could he then find the funds from among the 136 statutes to order construction of the wall? Yes, arguably …

Read the full OpEd.

William C. Banks Speaks to TIME About the Southern Border Crisis

The Migrants Who Were on TIME’s Cover Will Attend the State of the Union

(TIME | Feb. 5, 2019) Lawmakers have long used their plus-one invitations to the annual State of the Union address to send political messages to the President, and this year is no different. Democratic Sens. Kamala Harris and Elizabeth Warren invited federal workers who saw their paychecks delayed as a result of the longest shutdown in government history. Sen. Kirsten Gillibrand asked a Navy Lieutenant Commander impacted by President Donald Trump’s transgender troop ban. And Sen. Amy Klobuchar will bring a mother whose son died as a result of not being able to afford insulin critical for treatment of his Type 1 diabetes, a tragedy the Minnesotan lawmaker blames on insurance regulations and skyrocketing prescription costs.

“The heads of our intelligence agencies released their Worldwide Threat Assessment last week and reviewed a significant set of risks and challenges confronting the national security. The southern border and migration were not on the list.”

But no issue is closer to Trump’s political persona — or his future political prospects — than security at the southern border and Sen. Jeff Merkley’s choice of guests, Albertina and Yaquelin Contreras, a mother and daughter who were separated for nearly six weeks by U.S. authorities in 2018, is a full-throated indictment of the President’s tactics on that front.

“I’m bringing Albertina and [Yaquelin] as my guests to the State of the Union because we need to bear witness to the suffering that this cruel policy inflicted, and resolve to make sure that nothing like this ever happens in the United States of America again,” the Oregon Democrat said in a press release that was sharply critical of the Trump administration’s so-called zero tolerance policy. Formally announced last April, the policy has resulted in thousands of migrant children, including toddlers, being forcibly separated, sometimes indefinitely, from their parents at the southern border …

… But government records indicate that those actually arriving at border posts and presenting themselves to Border Patrol agents overwhelmingly look like Albertina and Yaquelin. According to the U.S. government, a significant proportion of the migrants who have attempted to enter along the southern border in recent months are children and families fleeing violence, rape, and hunger in Central America. In Fiscal Year 2018, 159,590 migrants filed for asylum — a 274% increase over 2008’s figure. Meanwhile, however, officials at the border made nearly 70% fewer total border apprehensions in 2018 than they did in 2000.

“Most experts agree that there is no crisis at the southern border,” William Banks, an international security expert and law professor at Syracuse University, recently told me in an interview. “Indeed, the heads of our intelligence agencies released their Worldwide Threat Assessment [last] week and reviewed a significant set of risks and challenges confronting the national security. The southern border and migration were not on the list” …

Read the full article.

Cronkite News Discusses a “National Emergency” with William C. Banks

Experts give 4 reasons why Trump can’t declare a national emergency to build a wall

(Cronkite News/Arizona PBS | Feb. 5, 2019) President Donald Trump has hinted there’s a “good chance” he will declare a national emergency at the southern border during his State of the Union address Tuesday in order to build a wall.

“(The border) is a civilian operation,” Banks said. “We don’t mix law enforcement and the military here in the U.S.”

Experts, however, believe there are obstacles to using a national emergency to build a wall, which Trump has promised since he entered the race for the presidency in 2015.

Cronkite News reached out to Liza Goitein, a co-director of the Liberty and National Security Program at the Brennan Center for Justice in Washington, D.C., and William Banks, a professor emeritus of law and the founding director of the Institute for National Security and Counterterrorism at Syracuse University. Both also appeared at a Jan. 16 panel discussion hosted by the Brennan Center about presidential emergency powers …

No. 3: Troops can only construct something for military purposes

Trump also has deployed active-duty troops to the border twice since late October, and part of their duties has been to fortify existing barriers. However, Banks said there are too many limitations for him to simply order a wall built by the military without congressional approval or appropriated funds.

“Military-construction authorities allow him to reallocate some authorized funds … but only for a military purpose,” Banks said. The president can only use Pentagon funds and can’t divert money from other U.S. appropriations, he said.

If the president were to unlock these military dollars by declaring a national emergency, Banks said “it might work.” He described how the Army Corp of Engineers would be the agency designing and building the wall, but the president has to persuade the courts in any legal challenge that the construction is for a military installation, which Banks called “a bit of a reach.”

“(The border) is a civilian operation,” Banks said. “We don’t mix law enforcement and the military here in the U.S.”

Senate Democrats introduced legislation Monday to block the president from using those same military funds “for the construction of barriers, land acquisition, or any other associated activities on the southern border without specific statutory authorization from Congress” …

Experts give 4 reasons why Trump can’t declare a national emergency to build a wall

Fear: A Dictator’s Tool

By David M. Crane 

(Re-published from Jurist | Jan. 29, 2019) Thomas Jefferson is reported to have said: “When government fears the people, there is liberty. When the people fear the government, there is tyranny.”

“With a rapidity that was shocking, this age of accountability gave way to the age of the strongman.”

I have investigated and prosecuted dictators and their henchmen for most of my professional life. I have studied their lives, personalities, their rise to power and how they governed once achieving that power. The one common theme in their theories of governance is fear. It is easier to govern and dictate to citizens through fear.

As Hannah Arendt wrote in her book, The Origins of Totalitarianism: “A fundamental difference between modern dictatorships and all other tyrannies of the past is that terror is no longer used as a means to exterminate and frighten opponents, but as an instrument to rule masses of people who are perfectly obedient.” The infamous dictators of the twentieth century, such as Stalin, Hitler, and Mao Tse-tung among others, understood this all too well. Their theory was that a frightened populace will allow their government to take drastic measures to protect them without protest, usually from perceived evil that threatens their society or country externally.

This object, person or peoples, religion or culture which focuses their fear is what I call their boogeyman. These boogeymen threaten their way of life and only the men in power have the capacity to address the threat. In a perverse way they tell their frightened citizens “We may have to take away your liberties, even kill some of you, to protect you from that boogeyman.” Over ninety million of those frightened citizens died at the hands of their own dictatorial governments in the twentieth century.

As the twentieth century morphed into the twenty-first century mankind pushed back and began to hold dictators, tyrants, and thugs accountable. With the advent of modern international criminal law, mankind created international courts and tribunals, which include a permanent international criminal court, to seek justice for victims of those who rule by fear. This movement lasted around twenty-five years. This age of accountability is wavering today.

With a rapidity that was shocking, this age of accountability gave way to the age of the strongman. International order and cooperation also gave way to a new populism that rejected the concept of international peace and security through the United Nations Charter for a more inward domestic nationalism, not seen since the late 1920’s and the early 1930’s.

The rise of strongmen across the globe in the past several years in Russia, China, Syria, Iran, Israel, Turkey, Venezuela, Hungary, the Philippines along with other longer term dictatorships from the twentieth century, has been astonishing and threatens the global order put in place after the Second World War. Even the cornerstone country of that world order, the United States, is toying with this populism …

Read the full article.

Now retired from teaching at Syracuse University College of Law, David M. Crane is an INSCT Research & Practice Associate.

Video: Brennan Center Symposium on Emergency Powers

Symposium on Presidential Emergency Powers: Legal Overview

(C-Span | Jan 18, 2019) On Jan. 9, 2019, the Brennan Center for Justice and the R Street Institute hosted a symposium in Washington, DC, to consider the history, application and scope of presidential emergency powers.

This portion of the symposium featured legal and policy experts—including INSCT Founding Director William C. Banks—who provided an overview of the range of executive powers that could be used by the president.

The Brennan Center’s Liberty and National Security Program Director Liza Goitein also addressed President Trump’s potential application of emergency powers to build a wall along the U.S.-Mexico border.

Emergency Powers

 

China Daily Asks William C. Banks About “Trump’s Wall”

(China Daily | Jan. 9, 2019) The divide between the US administration and congressional Democrats on funding a border wall was laid bare before a national audience who followed President Donald Trump’s first televised Oval Office address and a rebuttal from two congressional leaders on Tuesday night.

“The president’s legal arguments are contentious and may be wrong.”

The speech was made at a time when the partial government shutdown headed into a third week over the budget standoff between the president and Congress.

Analysts said the impasse is going to linger, though both sides have agreed to continue talking.

In his nine-minute national address, Trump laid out his case for the wall on the southern border with Mexico, which he said is laden with “a growing humanitarian and security crisis” …

… William C. Banks, a law professor of Syracuse University College of Law, also said Trump is likely to rely on authority provided by Congress in the National Emergencies Act (1976) to declare a national emergency at the southern border, then rely on military construction statutes that may enable him to spend for wall construction without a new appropriation for that purpose.

“The president’s legal arguments are contentious and may be wrong, based on the above authorities. Congress could stop him by passing a law saying no funding for a wall, or they could limit the funds available,” he told China Daily in an email.

Read the full article.