An “Extraordinary” Claim: William C. Banks Discusses Trump, Wiretaps, & the FISA Court With CNY Central

Congress poised to investigate Trump’s wiretap claims

(CNY Central | March 6, 2017) Members of Congress appear ready to investigate allegations that the Obama administration may have authorized surveillance on Donald Trump during his candidacy, a claim the president made over Twitter on Saturday.

“These orders are secret. They are deliberated in the court in a secret proceeding, and the president is not privy to them.”

Without providing any evidence or context for the accusation, President Trump tweeted, “Terrible! Just found out that Obama had my ‘wires tapped’ in Trump Tower just before the victory. Nothing found.” He sent out three more messages on the subject questioning whether it was legal for “a sitting President to be ‘wire tapping’ a race for president prior to an election?”

By early Sunday morning, White House press secretary Sean Spicer called on Congress to investigate Trump’s wiretap claims into their investigation into Russian election interference to determine “whether executive branch investigative powers were abused in 2016.” He added that “neither the White House nor the President will comment further until such oversight is conducted.”

The allegations made by the president are extremely serious — if they are true. And despite round the clock media coverage of the story, there are very few actual facts that have been made public to back up Trump’s “Nixon/Watergate” claims against former President Obama.

In fact, it appears Trump’s tweets stemmed from a Breitbart news story published on Friday. The story included analysis from conservative radio show host Mark Levin who outlined a series of open-source media reports that the Obama Department of Justice sought twice to obtain a Foreign Intelligence Surveillance Act (FISA) Court order to monitor communications involving Donald Trump and several campaign advisers. The request filed in October was reportedly rejected, while another filed in August was approved. Those original claims, citing unnamed government officials, were first published by HeatStreet, a UK-based publication, citing two sources “with links to the counter-intelligence community” …

… Rep. Joaquin Castro (D-Texas) pointed to the complete lack of evidence in Trump’s claims, saying on Monday, “I have seen no evidence to substantiate the President’s claims … The White House has provided no facts to support President Trump’s rogue comments.”

Gaining access to the evidence to substantiate or refute Trump’s claims that Obama had Trump Tower bugged during the 2016 election will be an incredibly difficult feat, especially because of the highly secretive nature of the FISA Court.

The process for releasing FISA Court orders and opinions is extremely selective and really only got started after the passage of the 2015 USA FREEDOM Act, explained William Banks, Syracuse University law professor and director of school’s national security and counter-terrorism institute. Information is released either through annual reports, which include the gross number of requests and fulfilled FISA Court orders, or from time to time the court will release its opinions, if it is deemed in the public interest.

Under the law, not even the president can access current or previous court orders. “These orders are secret. They are deliberated in the court in a secret proceeding, and the president is not privy to them,” Banks stated. In that respect, the president could not have learned about the alleged FISA Court through official channels. “It just cant happen,” the professor argued. “So what he’s doing here is repeating something he read in Breitbart.”

Reports claiming that Trump learned about the FISA Court orders through his senior White House counsel are also specious. The New York Times quoted a senior White House official over the weekend claiming the Donald F. McGahn was trying to secure access to what he believed was a FISA Court order authorizing surveillance related to Trump and his associates. Banks reacted to the report saying, “That would be extraordinary. The law does not provide for it” …

To read the whole story, click here.

Documenting War Crimes: David M. Crane Discusses Sednaya Prison Report With Orient TV

(Orient TV | March 2, 2017) Amnesty International’s report on the execution of more than 13,000 prisoners at Sednaya Prison, which is considered the most prominent development in documenting war crimes and crimes against humanity in Syria, and how it helps in the case against Bashar al-Assad and his regime.

Interviewees

  • Stephen J. Rapp, Former Prosecutor, International Criminal Court and US Ambassador-at-Large for War Crimes, Office of Global Criminal Justice
  • David M. Crane, Former Prosecutor, International Criminal Court; Head Of Syria Accountability Project; Professor of Practice, SU Law

Israel’s Decision Making Process on National Security Needs an Overhaul

By Lauren Mellinger

(Re-published from BICOM.org,uk | March 3, 2017) Sirens sounded after rockets were fired into Israel from the Gaza Strip. The Israeli Air Force responded with retaliatory strikes against Hamas targets in Gaza as Israeli media reported the discovery of 15 new tunnels underneath the Gaza border. These events took place over the past few days but they closely resemble the situation described in the State Comptroller’s new report on the Israeli government’s conduct in the lead-up to, and during, 2014’s Operation Protective Edge. The only additions are the recent election of hard-line militant Yahya Sinwar to serve as Hamas’s new leader in the Gaza Strip and the public focus on Hamas tunnels. With the threat of another war looming, what happened in 2014 is relevant to what happens now.

Operation Protective Edge lasted 51 days, resulting in the death of 74 Israelis, and more than 2,000 casualties in Gaza (Palestinian and Israeli authorities continue to dispute exactly how many of those were Hamas fighters ), as well as further deterioration of Gaza’s infrastructure. According to the State Comptroller Yosef Shapira’s audit of the government’s preparation and conduct leading up to and during the war, not only was the war likely avoidable, but it was poorly managed and failed to achieve its stated goals, which, while not clear at the outset – another criticism found in the report – eventually focused on eliminating the tunnel threat.

The new report examines the tunnel threat and cabinet decision-making. It illustrates systemic flaws in the planning, preparations, and wartime decision-making processes of the security cabinet and the military.

The key findings in the report are as follows:

  • Prime Minister Benjamin Netanyahu and then Defence Minister Moshe Ya’alon failed to present any non-military options to the security cabinet on the situation in Gaza andthe ministers rubber stamped the military plans presented to them. Moreover, the National Security Council failed to provide the cabinet with a range of opinions and alternative courses of action.
  • Though Netanyahu and Ya’alon considered the tunnel threat to be “strategic” and “significant,” the severity of the threat, as well as an updated threat assessment of the situation in Gaza, was not adequately conveyed to the security cabinet, and hence no substantive discussions were held about the tunnels.
  • Ministers lacked the requisite intelligence regarding the tunnel threat. As a result when the matter was mentioned in the security cabinet, they did not express a high degree of interest in it prior to 30 June 2014, and (apart from then Economy Minister Naftali Bennett) did not ask the military to present them with operational plans to combat the threat.
  • The failure of defence officials to present the requisite information to the cabinet ministers – thus creating a significant gap in their knowledge and ability to render decisions in an optimal manner leading up to and during the war – was not intentional, but rather a systemic oversight.
  • The Shin Bet and Military Intelligence (MI) did not coordinate properly with respect to the Gaza Strip, resulting in, among other failures, significant intelligence gaps in the lead-up to the war.
  • The security cabinet’s role and authorities remains ambiguous.

The report noted that during Netanyahu’s third term – from March 2013 through June 2014 until the kidnapping of three Israeli teenagers by a Hamas cell based near Hebron – the security cabinet held no discussions about the dire conditions in the Gaza Strip, or whether the failure to alleviate these conditions would provide an impetus for Hamas to commence hostilities. While Shapira has taken some criticism from members of the government, a number of his findings – particularly about the lack of cabinet discussions on Gaza and the Prime Minister’s utilisation, or lack thereof, of the security cabinet – corroborates with the findings from MK Ofer Shelah, based on his work on the Knesset Foreign Affairs and Defence Committee (FADC), which began an investigation into Operation Protective Edge in September 2014. The investigation was never completed after new Knesset elections were announced in December 2014.

The flawed decision-making process depicted in the report was not unique to Operation Protective Edge. Israel’s Prime Ministers often prefer to engage with a kitchen cabinet rather than the larger security cabinet when it comes to decision-making, due to a fear of leaks and Israeli Governments consisting of multi-party coalitions and the cabinet comprised of the Prime Minister’s political rivals. Furthermore, the primacy of the defence establishment and the corresponding weakness of civilian institutions – such as the Foreign Ministry – often lead the government to focus on military options rather than giving adequate consideration to diplomatic alternatives.

Shapira’s report largely reiterates the hallmarks of a flawed systemic decision-making process on matters of national security that has existed for decades – despite the various commissions of inquiry and comptroller audits that, over the years, have underscored the need for reform.

Following the investigation into the government and military’s failings in the lead-up to the 1973 Yom Kippur War, the Agranat Commission found the independence in decision-making to be highly problematic, and highlighted the need for broader input from cabinet ministers on matters of national security. The 2008 final report of the Winograd Commission following the Second Lebanon War found “serious failings and shortcomings in the decision-making processes and staff work in the political and the military echelons and their interface” as well as “serious failings and flaws in the lack of strategic thinking and planning, in both the political and the military echelons”.

The military has internalised many of the lessons of Operation Protective Edge and previous rounds of violence with Hamas. In August 2015, IDF Chief of General Staff Gadi Eisenkot published a new IDF strategy highlighting the major changes in Israel’s strategic landscape, particularly with respect to non-state actors, while clarifying the IDF’s role in prolonging the periods in-between wars as well as defining the concept of “decisive victory” in an era of protracted asymmetric conflicts. Eisenkot also declared that the tunnel threat would be a “top priority“ for 2016, though as the news this week indicates, more needs to be done on this front to mitigate the threat.

The frequency of military escalation between Israel and sub-state actors over the past decade has led the government to strive to keep the focus on the achievements in each period of hostility – namely, “quiet” and the benefits of deterrence. Yet, while the military prepares for the next round of fighting and some improvements to civil defence are implemented, the requisite changes in the political elite’s decision-making process have failed to advance

Click here to read the full article.

INSCT alumna Lauren Mellinger (JD/MAIR ’10) is a BICOM Research Fellow and a Ph.D. candidate at King’s College, University of London.

Laura J. Steinberg Named Special Assistant for Strategy to Vice Chancellor for Strategic Initiatives & Innovation

INSCT Affiliated Faculty Member Laura J. Steinberg, former dean of the College of Engineering and Computer Science (ECS), has been appointed to a new role at Syracuse University in which she will help lead the growth of entrepreneurship and innovation across campus. Today, Steinberg was named special assistant for strategy to the vice chancellor for strategic initiatives and innovation, reporting to SU Vice Chancellor J. Michael Haynie. She will collaborate closely with both Vice Chancellor Haynie and Vice Chancellor and Provost Michele G. Wheatly to conceptualize, develop and execute strategies that encourage entrepreneurship and innovation throughout the University community.

“Laura’s vast leadership, institutional knowledge and reputation related to fostering entrepreneurial cultures and innovation, both here at Syracuse University and around the nation, will be a great asset to this work,” says Haynie. “Laura has a long history of applying strategic thinking to University issues. Her work in bringing the ECS strategic plan to fruition, co-chairing of the University Leadership Team, and assisting the Chancellor with University management issues demonstrates her ability to catalyze innovation and strategic thinking on campus.”

Steinberg is well known for her work and focus on innovation and creating entrepreneurial cultures. During her time as dean, she launched and contributed to numerous initiatives to foster cross-campus entrepreneurship, including the Spark: Intrapreneurship Day, Business Planning for Engineers course and STARTUP CNY. Additionally, she jointly led efforts on a major National Science Foundation-funded project titled “Inspiring Innovation” and other programs to infuse innovation and creativity into engineering curricula …

Laura J. Steinberg Named Special Assistant for Strategy to Vice Chancellor for Strategic Initiatives and Innovation

Cora True-Frost Presents on “Conditions Conducive to Terrorism” at IntLawGrrls Conference

INSCT Affiliated Faculty Member C. Cora True-Frost helped the Dean Rusk International Law Center at the University of Georgia School of Law celebrate its 10th IntLawGrrls Conference on March 2 and 3, 2017.

Since its founding a decade ago, IntLawGrrls: Voices on International Law, Policy, Practice has grown into a premier international law blog written primarily by women—several hundred of them—plus a few men.

Co-sponsors of the conference and the IntLawGrrls initiative include the American Society of International Law, ASIL’s Women in International Law Interest Group, the Planethood Foundation, and Georgia Law’s chapter of the International Law Students Association.

True-Frost spoke on the Laws and War and Counterterrorism Track. Her paper—“Conditions Conducive to Terrorism: The Role of ‘Civil Society’ in International Security”—is part of a project funded by the Andrew Berlin Family National Security Research Fund, administered by INSCT.

100 from around world to take part in IntLawGrrls! 10th Birthday Conference on March 2 and 3 at Georgia Law

How to Appoint a Special Prosector: William C. Banks Helps Business Insider With an Explainer

Here’s how a special prosecutor investigating Trump and Russia would get appointed

After revelations Wednesday that Attorney General Jeff Sessions had two conversations with Russia’s ambassador to the US during the 2016 campaign, lawmakers renewed calls for a special prosecutor to investigate ties between Trump associates and Russian operatives.

“A ‘special counsel’ is a modern day term for a ‘special prosecutor,’ according to Banks, and any investigation would likely use the term ‘special counsel.'”
House Oversight Committee Chair Rep. Jason Chaffetz, a Republican from Utah, tweeted Thursday morning “AG Sessions should clarify his testimony and recuse himself.”

Democratic senators have called repeatedly for a special prosecutor, more often called an independent or special counsel, to be appointed.

But what exactly is a special prosecutor, how does he or she get appointed, and what happens next? We broke it down.

Who appoints a special prosecutor?

A special counsel could be appointed by either Sessions himself or by Congress to investigate potential ties between Trump’s inner circle and Russia, said Professor William Banks, the founding director of the Institute for National Security and Counterterrorism at Syracuse University.

A “special counsel” is a modern day term for a “special prosecutor,” according to Banks, and any investigation would likely use the term “special counsel.” The term “special prosecutor” was used up through the 1980s, after which the laws around special prosecutors expired and were not renewed, therefore retiring the term.

Banks said there may be pressure on Sessions not to appoint a special counsel, given that he was appointed by Trump. ” We would hope [Sessions] would exercise independent judgment about the efficacy of having a special counsel,” Banks told Business Insider.

Democratic lawmakers, led by Senate Minority Leader Chuck Schumer, have requested Sessions recuse himself from any investigations multiple times, renewing the call on Thursday following news about Sessions’ meeting with the Russian ambassador. (After the latest revelations, Schumer said he should resign.) House Majority Leader Kevin McCarthy said on Thursday that “it would be easier” if Sessions recused himself …

To read the full article, click here.

 

Corri Zoli Assesses President Trump’s Speech to Congress on WSTM/WTVH

On Feb. 28, 2017, President Donald J. Trump addressed a Joint Session of Congress to outline in more detail his foreign and domestic policy priorities. The wide-ranging speech touched on several national security issues, including immigration, border control, and the ongoing struggle against terrorism, both at home and abroad. Syracuse, NY-based TV news stations WSTM and WTVH asked INSCT Director of Research Corri Zoli to discuss Trump’s performance in live interviews after the address. 

Civil-Military Relations & Cyber Surveillance: LENS Conference Videos Featuring William C. Banks Now Online

Duke Law’s Center on Law, Ethics and National Security (LENS) held its annual national security conference from Feb. 24-25, 2017, at Duke Law School. The 2017 LENS conference was titled “Cyber, Security & Surveillance: Truth & Consequences.”

Civil-Military Relations in the Cyber Era (Feb. 25, 2017)

Moderator: Maj. Gen. Charlie Dunlap, USAF (Ret.), LENS Executive Director

  • Rosa Brooks, Georgetown Law
  • Kori N. Schake, Hoover Institution
  • William C. Banks, INSCT

Cyber & Surveillance Panel (Feb. 24, 2017)

Moderator: Erin Wirtanen ((JD/MPA ’98), Central Intelligence Agency

  • William Banks, INSCT
  • Susan Hennessy, Brookings Institution
  • Michael A. Newton, Vanderbilt Law School
  • Mieke Eoyang, Third Way

Gorsuch: A Justice Concerned with the Separation of Powers is the Right Man at the Right Time

By Tara Helfman

On the evening of January 31, 2017, the steps of the Supreme Court resembled a frantic game of Mad Libs. Clusters of protestors had gathered in front of the high court to await President Trump’s nomination of a successor to the vacancy left by the passing of Justice Antonin Scalia almost one year earlier. Bundled against the cold, they held fill-in-the-blank signs that spoke more eloquently to the politicization of the nomination process than any stem-winder ever could:

“OPPOSE ________”
“Lost in this political arms race is the judicial record of a man whose entire judicial philosophy is predicated on a profound commitment to the separation of powers.”

But that night, a president who had won office in part by promising Americans the best of everything, from the “best wall” on the border with Mexico to the “best deals” with our trading partners, delivered on one of his campaign promises. “When Justice Scalia passed away suddenly last February,” President Trump announced, “I made a promise to the American people: If I were elected president, I would find the very best judge in the country for the Supreme Court.” The hyperbole is excusable: Neil Gorsuch is certainly one of the best jurists.

His educational background is impeccable: a B.A. from Columbia, a J.D. from Harvard, and a D.Phil. from Oxford, where he was a British Marshall Scholar. His professional background is unimpeachable: clerkships on the D.C. Circuit and the United States Supreme Court, years in private practice, and a stint at the Department of Justice as deputy associate attorney general. And for the last 10 years, Gorsuch has served on the Tenth Circuit Court of Appeals, where he has earned a reputation for uncompromising textualism, rigorous originalism, and lucid, engaging judicial opinions.

None of this mattered to the Sharpie-wielding protestors on the steps of the Supreme Court, who finally had the proper noun they needed to finish their posters. Nor does it seem to matter to the Democratic leadership in the Senate. The fact is that, whoever the nominee and whatever his credentials, the battle lines in the struggle over Scalia’s successor had been drawn long before the nation ever heard the name Neil Gorsuch. They had been drawn almost a year ago, when Senate Republicans refused to give Judge Merrick Garland, President Obama’s nominee to the vacancy, a hearing.

Article II of the Constitution vests in the president the sole power to nominate justices of the Supreme Court, but it vests in the Senate the power to confirm those nominees. When President Obama put Garland’s name forward in a tumultuous election year, Senate Republicans argued that the nomination was more properly left to the next president, whoever that might be. It was a gamble: Denying Judge Garland a hearing might have meant trading a moderate Obama nominee for an activist Clinton nominee. Candidate Trump upped the ante by releasing a list of 21 names from which he pledged to select a Supreme Court nominee.

Indeed, until the late hours of November 8, it seemed that the Republican Senate had overplayed its hand. But when Trump swept the Rust Belt table, Democrats branded the gambit nothing short of grand larceny, the “theft” of a Supreme Court seat that rightly belonged to President Obama’s nominee. To be sure, the Constitution does not require the Senate to give a hearing to every Supreme Court nominee, but why let reality stand in the way of rhetoric? Enter Judge Gorsuch, who is supremely qualified for the job, but whom Senate Democrats are effectively accusing of fencing stolen goods.

That opponents of the Gorsuch nomination have adopted #rememberMerrickGarland as their battle cry has less to do with the comparative merits of the nominees than it does with the procedural corner into which Senate Democrats have painted themselves. In 2013, under the leadership of Harry Reid, Senate Democrats changed the procedure for ending the filibuster of presidential nominees for executive and judicial positions from a super-majority of 60 votes to a simple majority of 51. At the time, some Democrats, including now–Senate Minority Leader Chuck Schumer, resisted the rule change on the ground that it would annihilate any remaining incentives for bipartisan compromise on nominees. They were right: The “nuclear option,” as the rule change was called, has all but pitted the parties against each other in a zero-sum competition over presidential nominations.

Supreme Court nominees were exempted from the 2013 rule so, for the time being, Gorsuch will still need a 60-vote majority to agree to end debate on his nomination (the filibuster prevents the cloture of such debate). At that point, assuming the point is reached, he can be confirmed by what is likely to be a simple majority somewhere in the 50s. Now Senator Schumer is leading the charge in the Senate to resist confirming Gorsuch, citing the “unprecedented strain on the Constitution” unleashed by the Trump administration. In an op-ed in Politico, Schumer explained his party’s position: “[The President’s] actions show a lack of respect for the separation of powers—and that’s why Senate Democrats will do everything we can to make sure that the next Supreme Court justice will be an independent check on an out-of-control executive.” For his part, Trump has urged Senate Republicans to push the button and extend the nuclear option to high-court nominees.

Lost in this political arms race is the judicial record of a man whose entire judicial philosophy is predicated on a profound commitment to the separation of powers. Gorsuch’s understanding of this doctrine is not, as Senate Democrats are deploying the phrase, tantamount to wholesale judicial opposition to the Trump agenda. Rather, to Judge Gorsuch, the separation of powers is the very bedrock of political and individual liberty in the United States, the very genius of the American Constitution …

To read the full article, click below …

Patriotic Gorsuch

INSCT Affiliated Faculty Member Tara Helfman is an Associate Professor at Syracuse Law and an expert in international law, constitutional law, and the law of the sea.

The Future of International Justice: David M. Crane Joins NYU Panel

EXPERT WORKSHOP ON THE FUTURE OF INTERNATIONAL JUSTICE HELD AT CGA

(L to R) Special Court for Sierra Leone prosecutors Stephen Rapp and David Crane. Photo courtesy of Amber Lewis.

New York University’s Center for Global Affairs hosted a scenarios workshop on “The Future of the Field of International Justice” on February 10th, 2017. CGA Professor Jennifer Trahan brought in an impressive roster of international justice practitioners, academics, and diplomatic representatives to discuss how the future of the field might look in 20 years. Borrowing from Professor Michael Oppenheimer’s scenarios techniques, Professor Trahan outlined three scenarios, each with a different international justice mechanism acting as the dominant international justice approach of the future. The expert participants responded by discussing if each scenario would be possible or likely, how it would come to fruition, what that might look like, and whether or not the situation would be desirable.

The first scenario focused on the International Criminal Court as the dominant international justice institution. The second highlighted hybrid and other tribunals, and the third put forth complementarity and national courts as the primary direction—focusing on whether there needs to be more coordination and centralization of capacity-building and how that might be accomplished. The last session allowed for more flexibility to discuss how the scenarios might complement each other, and to discuss other “unforeseen” future scenarios. The day started with a Keynote Address by Liechtenstein Ambassador Christian Wenaweser, and was opened and closed by remarks from Professor Trahan.

As a student note-taker, it was a privilege to hear some of the most well-known pioneers in the field of international criminal justice share their expertise and insights. Many of the expert participants were influential figures from civil society, including session moderators David Tolbert, President of the International Center for Transitional Justice and Richard Dicker, Director of the International Justice Program of Human Rights Watch. Patrick Luna, Second Secretary and Legal Adviser, Permanent Mission of Brazil to the UN, and Dr. Carrie McDougall, Legal Adviser, Permanent Mission of Australia to the UN, also moderated session. Notable figures from the ad hoc tribunals, including David M. Crane and Stephen J. Rapp, both former Chief Prosecutors of the Special Court for Sierra Leone, provided a special lunch-time presentation of highlights from their respective tenures as Chief Prosecutors. Stephen J. Rapp also previously served as U.S. Ambassador-at-Large, Office of Global Criminal Justice. Representatives and legal advisors from states’ permanent missions to the UN, other UN officials, and accomplished academics also participated in the discussion. Participation of ICC and ICTR defense counsel, Beth Lyons, contributed to the diverse array of perspectives and experiences at the table …

To read the full article, click below …

EXPERT WORKSHOP ON THE FUTURE OF INTERNATIONAL JUSTICE HELD AT CGA