William C. Banks Discusses Limits to Emergency Powers with LA Times

Supreme Court has placed limits on presidential emergency powers, but that may not stop Trump

(Los Angeles Times | Jan. 9, 2019) More than a half century ago, the Supreme Court in one of its most famous decisions boldly put a check on executive power, one that has been cited repeatedly as proof the president cannot declare a national emergency to bypass Congress.

“Factually it is ludicrous to claim this is a national emergency, but who would have standing to challenge it?”

Many legal experts, however, say they are not confident the Constitution and the courts would stand in the way if President Trump were to declare a national emergency to fund a wall on the southern border. At issue is not the definition of an emergency, but the many expansions of presidential power written into law by Congress in recent decades.

When President Truman issued an order to seize control of the steel mills, no one questioned that the nation faced a true emergency. American troops had been pushed back in Korea, and a pending strike in the steel industry “would immediately jeopardize and imperil our national defense” and endanger “our soldiers, sailors and airmen engaged in combat in the field,” he declared in 1952.

But the high court stood firm and ruled the president did not have the power, acting on his own, to order the steel mills to keep running …

… Moreover, bringing a lawsuit in court requires an injured plaintiff who has standing. And the court has ruled that neither lawmakers nor taxpayers have standing to sue over how the government spends money.

“Factually it is ludicrous to claim this is a national emergency, but who would have standing to challenge it?” said Syracuse law professor William Banks. “It could be a property owner who says his land has been diminished in value.” If so, however, such a case may take time to develop.

It is not clear that the Supreme Court will be willing to take up such a dispute or stand in the way of the president.

In 1952, all the justices were Democratic appointees, but the 6-3 majority rebuked the actions of a Democratic president.

Read the full story.

 

State of Emergency: William C. Banks Guests on Renato Mariotti’s On Topic Podcast

State of Emergency: As the “Wall” Fight Looms, Has the Mueller Investigation Moved to its Final Stage?

(On Topic | Jan. 10, 2019) Renato and Patti discuss the president’s “emergency” powers, including the limits of those powers, how they can be challenged, and how they should be reformed, with Syracuse Law Professor William C. Banks. They also speak at length with MSNBC Legal Analyst Mimi Rocah about many recent developments in the Mueller investigation, including the revelation that former Trump campaign chair Paul Manafort provided private polling data to a Russian intelligence operative.

Visit the podcast webpage.

Corri Zoli Analyzes Immigration Debate on WAER

SU National Security Researcher Takes Fact-Based Approach to Charged Immigration Debate

(WAER | Jan. 8, 2019) A Syracuse University researcher is trying to take the politics and emotions out of illegal immigration and border security, even with the president’s address to the nation Tuesday evening. Dr. Corri Zoli is Director of Research at the Institute for National Security and Counterterrorism. She says the political dynamics on both sides are counter-productive to arriving at a more permanent solution for the southern border.

“We’re seeing right now a real spike in unaccompanied minors and children essentially being dragged across the border.”

“If Congress had done a better job at clarifying immigration rules, laws, and statutes, which have been in need of reform for the last decade plus, then we wouldn’t have this level of resorting to politicizing this issue because it would be clarified in the law.”

So, Zoli says what we’re left with is a largely unsecured border that leads to a legal, humanitarian, and resource crisis. She says Department of Homeland Security data show tens of thousands of people affiliated with drug and human trafficking cartels are penetrating the border every year.

“We’re seeing right now a real spike in unaccompanied minors and children essentially being dragged across the border. Why are they doing that? Because the complexities of our law create incentives for traffickers to have a child with them” …

Read the full article.

 

William C. Banks Contributes to The New York Times’ Emergency Powers Explainer

Trump’s National Emergency Powers and Border Wall, Explained

(The New York Times | Jan. 7, 2018) As the budget standoff between President Trump and congressional Democrats grinds into the third week of a partial government shutdown, the White House has floated the idea that Mr. Trump might invoke emergency powers to build his proposed wall on the Mexican border without lawmakers’ approval.

“The fundamental principle is that no president or official may spend funds that were not appropriated for that purpose.”

That route could resolve the immediate crisis by giving Mr. Trump a face-saving way to sign spending bills that do not include funding for his wall. But it would be an extraordinarily aggressive move — at a minimum, a violation of constitutional norms — that would most likely thrust the wall’s fate into the courts. Here is a primer on whether Mr. Trump can use emergency powers to proceed with the project without explicit congressional permission.

What are emergency powers?

The president has the authority to declare a national emergency, which activates enhancements to his executive powers by essentially creating exceptions to rules that normally constrain him. The idea is to enable the government to respond quickly to a crisis.

Although presidents have sometimes claimed that the Constitution gives them inherent powers to act beyond ordinary legal limits in an exigency, those claims tend to fare poorly when challenged in court.

But presidents are on firmer legal ground when they invoke statutes in which Congress delegated authorities to the executive branch that can be generated in emergencies. In a recent study, the Brennan Center for Justice at New York University School of Law identified 123 provisions of law granting presidents a range of such powers.

The National Emergencies Act, enacted during the post-Watergate reform era, regulates how presidents may invoke such powers. It requires them to formally declare a national emergency and tell Congress which statutes are being activated …

… In light of those statutes and similar ones that give presidents flexibility to redirect funds in a crisis, the Trump administration could point to serious arguments to back up Mr. Trump if he invokes emergency powers to build a wall, said William C. Banks, a Syracuse University law professor who helped write a 1994 book about tensions between the executive and legislative branches over security and spending, “National Security Law and the Power of the Purse.”

“The fundamental principle is that no president or official may spend funds that were not appropriated for that purpose,” he said. “But I think that it’s possible that the president could declare a national emergency and then rely on authority Congress has historically granted for exigencies to free up some funds to support constructing a barrier along the border” …

Read the full article

 

Mythbusting: INSCT, IVMF Veterans Research Reported by Military Times

(Military Times | Jan. 5, 2019) Here’s something everyone can agree on: The way the public views veterans isn’t always accurate.

Take the assumption that all veterans have served in combat and have post-traumatic stress disorder, for example. Or that people only go into the military because they can’t get into college.

Those are just a couple of the “persistent, recycled myths” about veterans that Syracuse University researchers addressed during a session at the Student Veterans of America National Conference Friday, using both federal data and an 8,600-person survey of the military community to debunk some of the most common misconceptions about the nation’s youngest generation of veterans.

On one hand, studies by Gallup, Pew Research and others have shown there is “enormous public support (for the military) but at the same time a tremendous gap in knowledge about who we’re supporting,” said Corri Zoli, director of research at Syracuse’s Institute for National Security and Counterterrorism. “They don’t have a lot of granular detail about who they’re supporting and why.”

Myth 1: Veterans are a small subset of the population

The number that’s often thrown out is 1 percent, but that applies to active duty troops, researchers said. As of 2017, federal data show veterans make up 8 percent of the U.S. population, with post-9/11 veterans the fastest growing group among them.

Myth 2: Veterans join the military because they could not get into college and are uneducated

According to federal data collected in the 2017 Current Population Survey, 35 percent of post-9/11 veterans have a bachelor’s degree or higher, compared to 31 percent of all veterans and 32 percent of the general U.S. population.

Rosalinda Maury, a researcher with the Syracuse Institute for Veterans and Military Families, said education benefits tend to be a top recruiting incentive, and the military promotes and prepares service members for post-secondary education …

Read the full article.

 

The Shadow of Unlawful Command Influence

By David M. Crane

(Jurist | Jan. 4, 2019) The cornerstone of military justice is ensuring that commanders at all levels, called convening authorities, do not influence the lawful carrying out of investigations and prosecutions of service members who violate the Uniform Code of Military Justice (UCMJ). Developed through customs of the service over two centuries and codified by Congress in the early 1950’s, the UCMJ has been a model for the rule of law ensuring America’s armed forces conduct themselves in a way that would not bring discredit to the United States or a service. It’s a system that works, ensuring all of the constitutional protections afforded American citizens are available to its fighting forces, with some exceptions.

Military justice is an important tool for commanders to ensure that US armed forces conduct themselves for the good order and discipline of the service.

Military justice is an important tool for commanders to ensure that US armed forces conduct themselves for the good order and discipline of the service. This is the sine qua non of the system: good order and discipline. Commanders are charged with this important duty.

Stung by the misconduct of mercenaries hired from Hesse in Germany by the British to fight during the Revolutionary War, America’s armed forces were created under the principles of customs of the service and good order and discipline. It is a proud tradition and a system that has worked for centuries overseen by a civilian US appellate court made up of five Senate confirmed judges. An Article 1 Court, the US Court of Appeals for the Armed Forces ensures the system comports with law, policy, tradition and the Constitution. One of its important duties is to monitor the possibility of any hint of unlawful command influence.

If unlawful command influence is found to have occurred during the creation of a court’s martial proceeding, military appellate courts or the US Court of Appeals for the Armed Forces will reverse any conviction. Further investigation and follow-up administrative or judicial punishment may occur against any commander having even attempted to, or in fact, influenced a proceeding. It’s serious, and at a minimum, career ending for a commander. It rarely happens. Commanders know their duties vis a vis the UCMJ.

Recently, President Trump, as Commander in Chief of the armed forces of the United States (a commander under the UCMJ) declared that a decorated special operations officer was being unfairly investigated/prosecuted for an alleged murder of an Afghan civilian. That is unlawful command influence …

Read the whole article.

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

 
 

 

 

Searching for Justice: The Courier Speaks to Corri Zoli on the 30th Anniversary of the Lockerbie Disaster

Staring into the ‘bowels of hell’: Lockerbie disaster 30 years on and the ongoing transatlantic search for justice

In an exclusive interview marking the 30th anniversary of the Lockerbie bombing, Michael Alexander speaks to an American terrorism expert whose university is marking the loss of 35 of its students in the attack – and hears the ‘hellish’ memories of several journalists who covered the aftermath.

(The Courier | Dec. 21, 2018) Cruising at a height of 31,000 feet and packed with students embarking on the long journey home to America for Christmas, passengers on board New York-bound Pan Am flight 103 were just 38 minutes into their flight from London Heathrow when at 7.03pm on December 21, 1988, a bomb exploded on board as the Boeing 747 flew over the Scottish borders.

“I had a briefing fairly recently from the FBI and the Scottish prosecutors on this. They talked about the various leads that they were pursuing in this long process.”

As well as killing all 259 people on the aircraft, the falling debris which hit the town of Lockerbie two minutes later, also wiped out 11 people on the ground.

As bodies, luggage and debris tumbled six miles through the sky, the most devastating carnage in the town came as the wings containing thousands of gallons of aviation fuel exploded on impact – gouging out a huge crater in Sherwood Crescent and obliterating two houses and their inhabitants with it …

… It’s a chapter which is of particular interest to terrorism expert Dr Corri Zoli – Syracuse University’s director of research at the Institute for National Security and Counterterrorism, and a teaching professor of law.

In an exclusive interview with The Courier, she revealed she was recently briefed by the FBI and Scottish prosecutors on the ongoing criminal and civil cases against alleged co-conspirators.

While she knows there was controversy around al-Megrahi’s prosecution, she thinks there was “good strong evidence” for him being involved – particularly as the late Libyan leader Colonel Gaddafi admitted his country’s involvement in 2003.

She’s confident that, despite the complications of a trans-national investigation and liaising with “unstable” countries like Libya, further prosecutions will take place.

“I had a briefing fairly recently from the FBI and the Scottish prosecutors on this,” she said.

“They talked about the various leads that they were pursuing in this long process.

“They actually were closer to finding information in part because there has been destabilisation in Libya.

“They were getting access to records they hadn’t been able to gain access to before. So I do think there will be that level of justice in terms of prosecuting people beyond those who have already been prosecuted.”

Dr Zoli, who has worked at Syracuse since 2009, said the bombing of Pan Am flight 103 was “shocking” in all the ways that terrorist attacks are shocking.

It was atypical in that hijackings were the most prevalent form of terrorism at the time and, some 13 years before 9/11, it was unusual in that it targeted Americans. It was also relatively rare for bombs to eliminate aircraft in flight.

However, the fact there were 35 American students on board from a single university was in itself “quite unprecedented” …

Staring into the ‘bowels of hell’: Lockerbie disaster 30 years on and the ongoing transatlantic search for justice

William C. Banks to Speak at Brennan Center Event on “Emergency Powers”

Professor Emeritus William C. Banks has been invited to speak at “Emergency Powers in the Trump Era and Beyond,” a Brennan Center for Justice and R Street Institute event to be held at the Center for Strategic and International Studies in Washington, DC, on Jan. 16, 2019.

The symposium will explore questions raised by presidential emergency powers in the US. Former government officials, scholars, and advocates will discuss:

  • An overview of the legal framework for emergency powers in the US, focusing on some of the most extraordinary powers in the president’s legal arsenal.
  • Perspectives from the inside, featuring former executive branch officials with direct experience in governing during emergencies.
  • A conversation about the risks vulnerable communities face in emergencies, and how to mitigate those risks.
  • Lessons we can draw from recent experiences with emergency powers in other nations.

Among the scholars and officials joining Banks at the symposium are Fionnuala Ní Aoláin, Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, United Nations; Christopher Fonzone, former Legal Adviser to the National Security Council; Avril Haines, former Deputy National Security Advisor; Kim Lane Scheppele, Laurance S. Rockefeller Professor of Sociology and International Affairs, Woodrow Wilson School of Public and International Affairs, Princeton University; and Carl Wagner, former Associate Deputy General Counsel for Homeland Defense.

Corri Zoli to Attend UNSC Counterterrorism Special Meeting on the “Madrid Principles”

Zoli_UN_MeetingINSCT Director of Research Corri Zoli has been invited to attend a special meeting of the United Nations Security Council Counter-Terrorism Committee on Dec. 13, 2018, in the Economic and Social Council Chamber, UN Headquarters, New York City. The meeting will discuss “Security Council Resolution 2396 (2017): A Review of the Madrid Principles,” a document that provides guidance to member states on stemming the flow of Foreign Terrorist Fighters (FTFs) across national borders, while staying compliant with human rights laws and norms.  

In particular, explains UN Security Council Counter-Terrorism Committee Chair Gustavo Meza-Cuadra in his letter of invitation, the special meeting will tackle the issue of FTFs “in light of the evolving threat posed by foreign terrorist fighters, particularly FTF returnees and relocators and their family members.” The review of the Madrid Principles also will examine gaps that may hinder states’ abilities to detect, interdict, prosecute, rehabilitate, and reintegrate FTF returnees and their families, as well as identify good practices.

Among the working sessions will be those on “border security and information-sharing”; “global research perspectives on cross-cutting trends”; “countering incitement, recruitment, and violent extremism”; and “judicial measures, international cooperation, and prosecution, rehabilitation, and reintegration strategies.” Invited discussants include Edmund Fitton-Brown of the Analytical and Sanctions Monitoring Team of the ISIL and Al-Qaida Sanctions Committee; Elisabeth Neugebauer, Deputy Special Representative, International Criminal Police Organization; and Tanya Mehra, International Centre for Counterterrorism, The Hague.

The Madrid Principles were developed from a July 2015 special meeting hosted by the Government of Spain and co-organized by the UN Counter-Terrorism Committee Executive Directorate (CTED), with which INSCT collaborates on counterterrorism prevention. This Madrid meeting was attended by member states from every region of the world, as well as representatives of international and regional organizations, universities, and civil society groups. Discussions and technical sessions identified 35 guiding principles that were subsequently adopted by the Security Council and offered as a practical tool for use by member states in their efforts to combat terrorism.

William C. Banks Discusses Posse Comitatus & the US Military’s Southern Border Deployment

The controversial deployment in late October 2018 of 5,800 US servicemembers to the US-Mexico border in response to a perceived migration and asylum crisis has caused a media stir. Not unsurprisingly, questions about the legality of the deployment have arisen, especially in the wake of a November 20 White House “Cabinet Order” allowing troops to perform law enforcement roles and to use lethal force, potentially in violation of the Posse Comitatus Act. Professor Emeritus William C. Banks, author of Soldiers on the Home Front: The Domestic Role of the American Military, has answered some of these questions for Military Times, Vox, and PRI, as well as on the Just Security blog.

What’s a Posse Comitatus, Anyway? The Military Role at the Southern Border

(ACSBlog | Dec. 3, 2018) … What about the “crowd control, temporary detention” and “cursory search” permitted by the order? Secretary Mattis responded to a question about involvement in law enforcement this way: “We do not have arrest authority. Detention, I would put it in terms of minutes. . . . [We would stop an assault on a CBP agent] and deliver them to a Border Patrol man, who would then arrest them” …

What’s a Posse Comitatus, Anyway? The Military Role at the Southern Border

What Trump’s “lethal force” authorization means at the border

(Vox | Nov. 27, 2018) “On one hand, it is kind of ridiculous because there is nothing approaching an invasion there,” William Banks, a national security expert with Syracuse University, said. “There is no indication that there is a force lining the border that [Customs and Border Protection] couldn’t take care of. But on the other hand, if you take the Cabinet order’s language at face value, and take what the president is saying as credible threats, then it becomes grayer.”

https://www.vox.com/policy-and-politics/2018/11/27/18112610/trump-lethal-force-caravan-migrant-border-military

Military at the southern border and the Posse Comitatus Act

(PRI The World | Nov. 23, 2018) The White House has signed a memo allowing troops stationed at the border to take on some law enforcement roles including using lethal force, if necessary. Some experts say the directive is at odds with the Posse Comitatus Act. The federal law, which dates back to the 19th century, forbids active military members from engaging in civilian law enforcement roles. The World’s Carol Hills interviews William C. Banks, a professor of law at Syracuse University, and co-author of “Soldiers on the Home Front: The Domestic Role of the American Military.”

https://www.pri.org/file/2018-11-23/military-southern-border-and-posse-comitatus-act

White House approves use of force, some law enforcement roles for border troops

(Military Times | Nov. 21, 2018) Posse Comitatus is “always looming in the background. You never invoke it as such because it is such a background principle,” said William Banks, author of “Soldiers on the Home Front: The Domestic Role of the American Military” and the former director of the Institute for National Security and Counter-terrorism at Syracuse University’s College of Law.

https://www.militarytimes.com/news/your-military/2018/11/21/white-house-approves-use-of-force-some-law-enforcement-roles-for-border-troops/#.W_a8R03c8js.twitter

Legal Analysis of “Cabinet Memo” on the Military’s Role at Southern Border

(Just Security | Nov. 26, 2018) More important is what the Constitution, Posse Comitatus Act, and other federal laws represent – a longstanding legal norm disfavoring military involvement in domestic affairs except in dire circumstances. It is no exaggeration to say that avoidance of military involvement in civil society is part of our cultural heritage. Let’s hope that Secretary Mattis’ cool head prevails in the days ahead.

Legal Analysis of “Cabinet Memo” on the Military’s Role at Southern Border