28th Annual Review of the Field of National Security Law Conference

INSCT Director James E. Baker and Professor Emeritus William C. Banks will represent the Institute at the ABA Standing Committee on Law and National Security’s 28th Annual Review of the Field of National Security Law Conference, taking place Nov. 1-2, 2018 at the Capitol Hilton in Washington DC.

This premier national security law conference includes panels focusing on vital topics, including:

  • Space Law: Issues and Progress
  • Legal Issues Confronting the Military National Security Law Community
  • The 4th Amendment, Surveillance and the Future, preceded by a special keynote luncheon address by Glenn Gerstell, General Counsel, National Security Agency
  • Reviewing Current Controversies Surrounding Security Clearances
  • Ethical Challenges of the National Security Lawyer: A Roundtable Discussion
  • Global Trade and National Security
  • The Movement of Individuals Across Borders and National Security
  • SCOTUS, GTMO, the FISC, and More: The Role of the Courts in Shaping National Security Law
  • Social Media: 2020
  • The Role and Duty of the National Security Lawyer: The Audience Responds

Judge Baker will host the panel on “The Role and Duty of the National Security Lawyer: The Audience Responds,” and Banks will moderate “SCOTUS, GTMO, the FISC and More: The Role of the Courts in Shaping National Security Law.” This panel also will feature discussants Amy Jeffress, Partner, Arnold & Porter; Mary McCord, Visiting Professor of Law and Senior Litigator from Practice, Institute for Constitutional Advocacy and Protection, Georgetown University Law Center; and the Hon. Reggie Walton, Senior Judge, US District Court for the District of Columbia.

More information and registration

James E. Baker Speaks at Dean Rusk International Law Center

INSCT Director James E. Baker spoke at the Dean Rusk International Law Center, part of the University of Georgia School of Law, on Sept. 13, 2018.

Baker spoke on “National Security Decision-Making.” The talk was co-sponsored by the University of Georgia School of International & Public Affairs and the International Law Society.


“He Likes to Talk!”: William C. Banks Discusses Trump’s Mueller Interview Comments with Bloomberg Law

Trump Says He is Open to Mueller Interview

(Bloomberg Law | Sept. 7, 2018) William Banks, a professor at Syracuse University Law School, discusses President Trump’s Friday comments aboard Air Force One, where he said that he would be open to an interview with special counsel Robert Mueller “under the right conditions.” Plus, Bloomberg News Supreme Court reporter Greg Stohr discusses the final day of confirmation hearings for Supreme Court nominee Brett Kavanaugh. They speak with Bloomberg’s June Grasso.


William C. Banks Compares the Trump & Clinton Presidential Scandals on Bloomberg Law

Trump’s ‘Witch Hunt’ Finds Origin in Clinton Presidency

(Bloomberg Law | Aug. 30, 2018) William Banks, professor at Syracuse University Law School, discusses the similarities and differences between President Trump’s current legal situation and the legal situation that faced President Bill Clinton in the 1990s. Plus, a look at the legacy of White House Counsel Don McGahn, who will be leaving his post later in the fall. Plus, Charles Warren, a partner at Kramer, Levin, Naftalis & Frankel, discusses why lawyers for Exxon Mobil are telling New York’s Attorney General to “put up or shut up” as the state probes the oil giant for misleading investors about the financial impact of climate change. They speak with Bloomberg’s June Grasso.


3D-Printed Guns & National Security: William C. Banks Speaks to The Atlantic

(The Atlantic | Aug. 24, 2018) In 1971, a slim volume filled with instructions detailing how to create explosives and other weapons proliferated across bookshelves. The Anarchist Cookbook was one ideological young American’s attempt to make a political statement; in this case, the author was registering his opposition to the Vietnam War and the draft letter he had received. The book set off an urgent and fearful debate. In a letter to a top official at the Justice Department, FBI Director J. Edgar Hoover wrote “of the inherent threat that distribution of the book poses to this country’s internal security.” But, he lamented, “the FBI has no control over material published through the mass media.”

“Yes, they can get into the wrong person’s hands, and, yes, they can be harmful.”

Five years ago, another ideological young American published another kind of how-to manual. In the 21st-century iteration of the story, the medium is the internet, not a book; and instead of half-baked plans to build ineffective bombs, there are blueprints that can be downloaded as code and used to create functional plastic guns from a 3-D printer. At the time the material was published, the State Department claimed that 3D-printed guns posed a direct threat to America’s national security. The State Department argued that the publication violated its arms-export controls, and sued to force the removal of the plans from the internet. The blueprints’ creator—Cody Wilson, an anarchist firearms enthusiast who enjoys trolling gun-control advocates and is based in Austin, Texas—begrudgingly took the plans off his website.

This spring, Donald Trump’s State Department changed course by settling Wilson’s case out of court and granting him permission to publish his plans. The settlement would have allowed the blueprints to be published online this month. But a federal judge in Washington put Wilson’s plan on hold after Democratic attorneys general in eight states (including New York and New Jersey) and Washington, D.C., brought a lawsuit claiming the State Department had acted inappropriately. On Tuesday, lawyers representing these eight states, the State Department, and Wilson met in court in Seattle, where the judge announced that he will decide by Monday whether the plans must remain offline. Beyond the specifics of the case, the courts are again grappling with a recurrent question: When does U.S. national security trump the free-speech rights of U.S. citizens? Most agree that the First and Second Amendments give Americans the right to download plans for 3-D-printed guns off the internet. What the judge must decide is whether those freedoms should be abridged by the ability of foreign terrorists to download those same plans — and then use the guns to attack the United States …

… But there was little to stop the plans being published, given both First Amendment free-speech protections and Second Amendment gun-ownership rights. In 2013, when Barack Obama’s State Department got involved, it became clear that this matter concerned national security, not domestic gun politics. “None of this has anything to do with any domestic control over anything,” said Kevin Wolf, a former Commerce Department official under Obama who worked on arms-export issues.

The foreign-policy interest here, a State Department spokesperson told me, was keeping the plans away from people in other countries who might pose a danger to America. “It seems like a no-brainer to me that, yes, they can get into the wrong person’s hands, and, yes, they can be harmful,” said William Banks, a Syracuse University law professor and national-security expert, in an interview.

Until June, the State Department—through the end of Obama’s term and the start of Trump’s—held a similar position. In 2015, a judge summarized the agency’s position: “The State Department is particularly concerned,” the judge wrote, that Wilson’s technology could be used “in an assassination,” to manufacture weapons by “terrorist groups, or guerrilla groups,” or “to compromise aviation security overseas … directed at U.S. persons.” Yet this year, the federal government changed course, with the State Department acceding that Wilson’s blueprints were legal under newly designed federal regulations …

Read the whole article.


2018-2019 National Security Law/Counterterrorism Law Supplement Published

National Security Law/Counterterrorism LawEdited by Professor Emeritus William C. Banks—along with Stephen Dycus, Peter Raven-Hansen, and Steve Vladeck—the 2018-2019 National Security Law/Counterterrorism Law Supplement (Woulters Kluwer/Aspen Casebook Series, 2018) addresses topics covered in the sixth edition of National Security Law and the third edition of Counterterrorism Law, both leading casebooks in their respective fields.

Among the new materials presented in the Supplement are those concerning national security incidents and actions taken during the first year of the President Donald J. Trump Administration. Teachers and students will find documents and legal notes addressing Washington v. Trump, Zaidan v. Trump, Wikimedia Foundation v. NSA, Carpenter v. United States, and Hernandez v. Mesa. There are also policy notes on topics such as targeted killings, military action in Syria, military activities in cyberspace, transparency in the intelligence community, access to FISC records, and national security letters. Many chapters investigate “ripped from the headlines” topics that have dominated the news from 2016 to 2018: the Trump Administration “travel bans,” the Joint Comprehensive Plan of Action (aka the Iran Nuclear Deal), Russian hacks of the US power grid, the Hawaii Missile Alert, the McCain-Feinstein Amendment, and undocumented immigrants.

As the authors write in their preface, “In a field of law as dynamic as ours, we expect many important developments each year. But even we were surprised by the torrent of notable changes during the first year and a half of the Trump Administration.

“Federal courts caught up with the Trump travel bans in fast-progressing litigation that came to a head when a divided Supreme Court decided Trump v. Hawaii. Almost 40 years after the supreme court expounded the third-party doctrine to give the government access to dialed phone numbers without a warrant or even probable cause, the court refused to apply that doctrine to allow access to historical cell tower locational data in Carpenter v. United States.

“Earlier this year Congress approved a five-year extension of programmatic national security surveillance without significantly changing the scheme approved in the 2008 FISA Amendments Act. In the meantime, the continuing chaos of the Guantánamo military commissions continued to generate new case law and new issues, even as the Administration persisted in relying on them to prosecute some accused terrorists. In addition, evidence of Russian efforts to interfere in US elections, and to intrude on critical US infrastructure, presented new challenges in the evolving field of cyber security law.

“Other developments arose from continuity between administrations. Arguably building on the Obama Administration’s precedent of using armed force in Libya for the protection of local civilians, the Trump Administration used armed force in Syria for the same purpose. In rejecting the nuclear deal with Iran—the Joint Comprehensive Plan of Action—the Trump Administration ironically invoked the same authority that its predecessor used to approve the plan: the putative authority of the president unilaterally to decide on non-binding political commitments to and with foreign states.

“Unabated screening and profiling at the borders continued to generate litigation and a broad range of new case law on immigration. Administration efforts to control leaks and prevent disclosure of national security information also continued. We have tried to keep up with these and many other developments without overly complicating the use of the core casebooks …”


William C. Banks Discusses Giuliani’s “Truth” Comments on Bloomberg Law

Giuliani “Truth” Comments Put Trump Interview in Doubt

(Bloomberg Law | Aug. 20, 2018) William Banks, a professor at Syracuse University Law School, discusses recent comments by President Trump’s lead attorney, Rudy Giuliani, who is casting new doubt on an interview between the President and special counsel Robert Mueller. Plus, Kevin Whitelaw, Bloomberg News deputy managing editor, discusses the bank and tax fraud trial of Paul Manafort, which is now in its third day as jurors deliberate on the eighteen counts being brought against President Trump’s former campaign chairman. They speak with Bloomberg’s Peter Barnes and June Grasso.


In Hot Water: Bloomberg Speaks to William C. Banks About President Trump’s Latest Legal Issues

(Bloomberg Law | Aug. 10, 2018) William Banks, a professor at Syracuse University Law School, discusses the latest in the negotiations between President Trump’s legal team and Robert Mueller over a sit-down meeting between the President and the special counsel. He speaks with Bloomberg’s June Grasso on Bloomberg Radio’s “Politics, Policy, Power and Law.”


New Battlefields/Old Laws 2018—When Disaster Hits: Threats, Preparedness, and Legal Gaps

New Battlefields/Old LawsThe 2018 edition of INSCT’s signature initiative New Battlefields/Old Laws will take place at the World Summit on Counterterrorism, to be held Sept. 3-6, 2018, at the Institute for Counter-terrorism (ICT), Herzliya, Israel.

Co-chaired by Professor Emeritus William C. Banks and Professor Daphné Richemond-Barak, Head of International Humanitarian Law Desk Law and Security Program, ICT, the theme of this year’s multi-disciplinary NBOL workshop—on September 5—is “When Disaster Hits: Threats, Preparedness, and Legal Gaps.”

The workshop will investigate multiple facets of law and policy responses during and after major natural and human disasters. Papers will address disaster governance, cyber disasters, responding to health epidemics and pandemics, and “disaster law,” or the analysis of gaps in national security and international law that disasters can expose.

ICT’s annual international summit is the largest and one of the most influential events in the field of counterterrorism. Bringing together academics, scholars, law enforcement officials, and decision-makers, this year the summit will convene around the theme of difficulties liberal democracies face in combatting terrorism, such as striking a balance between democratic values and security.

“Countering terrorism by developing solutions to these dilemmas is not just a strategy, but a true art. This year’s conference will delve into the ‘Art of Counter-Terrorism,'” the workshop organizers write. Five themes will help to highlight the challenges of combatting terrorism: Assessment and Response; Rationale and Rationality; Motivation and Capability; Terrorism and Democracy; and Recovery and Resilience.

Read more about the ICT workshop.