Yemen: A Crime Against Us All

By David M. Crane 

In a bombing, the dust settles slowly over the strike zone. What emerges are grey images, living beings neutralized to monochrome. Bleeding from the ears, deaf, and dumb from the concussions the survivors walk about in a haze. These zombies are the first things you see staggering down the street away from the rubble behind them, rubble that is the tomb of loved ones, neighbors, and friends.

“For a decade or so, the rule of law prevailed regarding holding those who commit war crimes and crimes against humanity accountable. Yet we have slipped down a slippery slope. That political will is waning.”

There is no militarily necessary reason for the destruction, the strike carried out by one of the combatants who knew or should have known about the laws of armed conflict. The rules do not matter in most conflicts of the 21st century. Welcome to the dirty little wars that nip at the heels of civilization, a civilization grown weary of it all and who look the other way. It is just too hard to marshal enough political will to do something.

A powerless United Nations can do nothing other than to help ease the pain of air strikes by caring for the wounded and the terrified refugees. The once proud mandate of restoring international peace and security has changed to maintaining at best that peace and security.

The three nations that could restore that prominence, the United States, China, and Russia are its biggest challenges and all three could certainly live without the paradigm of peace set forth in 1945. All three of those nations over the past years are also the biggest human rights abusers led by strong men.

International Law has evolved over centuries through customary practice and the consent of nations to bind themselves to certain norms. Indeed the day-to-day actions in commerce, trade, and finance all hinge upon these norms. Over time, other norms that declare that human beings have rights to be free from want, fear, and to speak their minds and worship freely are now enforceable and carry an accounting if violated.

From all this just twenty-five years ago, modern international criminal law began. For a decade or so, the rule of law prevailed regarding holding those who commit war crimes and crimes against humanity accountable. Yet we have slipped down a slippery slope. That political will is waning and the use of the law to govern international relations regarding humanity challenged.

In this kaleidoscopic void, dirty little wars flourish like weeds in an abandoned lot. Yemen is one of those weeds thriving in the dusty haze of airstrikes.

The likes of the Yemeni conflict exists but for this condition and circumstance. A surrogate conflict backed by cynical nations vying for power and influence in the greater region that is the Middle East, the possibility of a peaceful resolution hinges on the rule of law. It is not going to happen …

Read the whole article.

 

Brian Taylor Shows How Putin’s Mentality Shapes Russian Politics

(Re-published from SU News | July 5, 2018) The running joke among foreign analysts is that, despite Russia’s dismal FIFA ranking, it may emerge as the real winner of the World Cup.

Between now and July 15, 2018, millions of fans will flock to various Russian cities, including Moscow, St. Petersburg and Sochi, to watch their national teams compete for soccer’s Holy Grail. Billions more will watch the action on television.

“Emotions often get short shrift from social scientists trying to decipher political behavior, but Taylor insists they are integral to Russian decision-making.”

Although Team Russia has dialed up some surprise victories, President Vladimir Putin, who has invested more than $13 billion on stadia and infrastructure, seems to have more than soccer on his mind. Those close to him insist he is using the World Cup to foment feelings of national pride, while enhancing his popular standing.

“The World Cup is more important to Putin than you think,” says Brian D. Taylor, professor and chair of political science in the Maxwell School and the College of Arts and Sciences (A&S). “A lot has happened to Russia since 2010, when Putin won the bid to host the tournament—his re-election, the annexation of Crimea, Russian’s intervention in the Syrian war. The games come at a time when Russia’s standing in the world is precariously low.”

Taylor speaks with authority. A scholar of Russian and comparative politics, he is the author of “The Code of Putinism” (Oxford University Press, 2018), a new book about how Putin’s mentality shapes his country’s politics. As Russia teeters on the brink of economic stagnation and international ostracism, Taylor argues that mega events, such as the World Cup and the Winter Olympics in Sochi, four years earlier, have strong political ramifications. “Merely hosting the World Cup is a major coup. It shows Russia still matters,” he says.

Most of Taylor’s career has been a warm-up for “The Code of Putinism,” which he began researching five years ago. Drawing on hundreds of interviews and speeches, Taylor thinks Putin’s messianic vision could be Russia’s undoing.

Speaking by phone from his office in Eggers Hall, the bespectacled, clean-cut author riffs on how the code motivates Putin’s decisions and influences the way he and his allies view the world. “The code of Putinism has molded Russia’s political system, along with its economy and foreign policy, since Putin’s election as president in 2000,” says Taylor, who also authored State Building in Putin’s Russia: Policing and Coercion After Communism (2011) and Politics and the Russian Army: Civil-Military Relations, 1689-2000 (2003), both from Cambridge University Press. “Key factors of Russian politics—authoritarianism, Putin’s reliance on a small group of friends and associates, state domination of the economy, an assertive foreign policy—owe their existence to the code.”

Golfo Alexopoulos, director of the University of South Florida (USF) Institute on Russia, praises “The Code of Putinism” for exposing Putin’s worldview, leadership style and method of governing. “It is critical for Americans to understand Russian thinking and motives, so we can formulate an intelligent Russia policy that advances democracy and global security,” says Alexopoulos, also a history professor at USF. “Dr. Taylor has a deep understanding of contemporary Russia and its historical and cultural legacies.”The basic notion of the code was inspired by Max Weber, an early 20th-century German sociologist. He believed that people are motivated by not only rational self-interest, but also ideas, habits and emotions. Taylor builds on this insight to analyze Putin’s mentality.

In Putin’s case, ideas include statism, anti-Westernism, conservatism and anti-liberalism. “Putin is a great power statist who believes in a strong Russia at home and abroad. He also is a conservative, prioritizing the group over the individual, as well as tradition over change and reform,” says Taylor, who earned a Ph.D. in political science from MIT. “Putin’s Russia is a ‘service state’—not one that provides services to its citizens, but one that expects citizens to serve it.”

Habits are unconscious reactions to stimuli, rather than deeply considered ideas. Putin’s key impulses involve control, order and loyalty. “Many of his habits were cemented by the time he joined the KGB in the ’70s,” Taylor says. “He and his aides made their careers as bureaucrats, not politicians, so they are used to hierarchical organizational structures. Witness Putin’s early presidential slogan: the ‘vertical of power.’”

Emotions often get short shrift from social scientists trying to decipher political behavior, but Taylor insists they are integral to Russian decision-making. “Emotions relate to how Putin sees Russia,” he says. “They include feelings of resentment, vulnerability and loss of status, stemming from Russia’s perceived humiliation after the Cold War. Putin believes it is time to redress these feelings and gain back the respect of the world.”

That the Putinist code is making inroads into classrooms is proof Taylor is onto something. Lauren McCarthy, associate professor of legal studies at the University of Massachusetts Amherst, says “The Code of Putinism” is a must-read for anyone wanting to understand how Russia operates. “Once you immerse yourself in the habits, emotions and ideas that make up Putinism, everything that happens in Russia makes more sense,” says McCarthy, who teaches a course on Russian politics, law and society. “My students [who study the code] walk away feeling like they know how to interpret Russian politics and Putin, himself.”

Thomas Keck thinks Taylor is uniquely qualified to assess the return of Global Russia. “He is a leading expert on Russian politics, particularly the state’s military and law enforcement apparatus,” says Keck, professor of political science and the Michael O. Sawyer Chair of Constitutional Law and Politics in the Maxwell School and A&S. “Brian is a popular but demanding teacher, as evidenced by his courses on Russian politics and civil-military relations. His book could not be more relevant.”

Not since the Cold War has interest in Russia bordered on obsession, if not paranoia. Doubtless that the World Cup will help burnish the country’s newfound swagger … MORE

Teacher-scholar Brian Taylor Shows How Putin’s Mentality Shapes Russian Politics

The Future of the US Military Commissions: Legal and Policy Issues

By the Hon. James E. Baker & Professor Laura A. Dickinson

The ongoing operation of the US military commissions at Guantanamo Bay has posed significant challenges for multiple US administrations. Originally established by President George W. Bush in the aftermath of 9/11 to try noncitizen terrorism suspects, the commissions have been plagued with a variety of problems. Cases have languished, and no contested commission trials have become final, including the 9/11 case itself—for which a trial has not yet begun. (Military commission proceedings have resulted in 8 convictions pursuant to pleas, however). Much of the law related to commissions remains unsettled and in dispute. For example, it is unsettled precisely which crimes can be tried before the commissions.

“The Workshop Report offers a detailed, non-partisan, legal and policy analysis and recommendations with respect to the wide range of issues that currently face the Military Commissions.”

Meanwhile, the commissions are operating against a backdrop of changing policies regarding the detention facility at Guantanamo Bay. President Trump recently reversed the Obama Administration’s stated policy of closing the facility, where participants in the military commissions system are housed along with other terrorism detainees. As of May 3, there are 40 detainees held at Guantanamo, 4 of whom have been deemed eligible for transfer to other countries. (They cannot be moved to the United States, due a legislative ban). Of the remainder, 10 have been charged within the commissions and are in proceedings at various stages, and 26 have neither been charged nor have been deemed eligible for transfer. Although President Obama did not bring new detainees to Guantanamo, and President Trump has not done so to date, President Trump has stated in a recent Executive Order that “the United States may transport additional detainees to US Naval Station Guantanamo Bay when lawful and necessary to protect the Nation.”

To grapple with some of the tough legal and policy issues facing the military commissions moving forward, the American Bar Association Standing Committee on Law and National Security and the George Washington University Law School convened a diverse group of 24 national security law experts at a Workshop on Dec. 7, 2017. The Workshop was not-for-attribution, but a Report summarizing the discussion at the event has now been made public. As one would expect (and hope) from such a meeting, participants expressed a wide range of views, but there were also some key areas of consensus. Here is a brief overview of the Report’s conclusions.

Overall Approach to Commissions Moving Forward: Reform or Repeal?

Workshop participants were divided on the wisdom of establishing the commissions in the first place–with some supportive of the goals underlying the military commissions and others critical of the entire endeavor as an unnecessary diversion from time-tested Article III courts and the regular military justice system. Yet all agreed that

  • The commissions are not working as intended; and
  • The commissions should either be reformed or terminated.

Options for improving US military commissions

The Workshop considered a variety of reforms to the commissions. Although many participants did not think that the commissions should continue, participants identified a series of reforms that merit consideration and review, in particular

  • Expand and/or clarify the role of the commissions’ Convening Authority using the authority and role of convening authorities within the US military justice system as a model.
  • Change and expand the eligibility rules for trial judges and change the current judicial pay and tenure structure to allow both civilian and military judges to hear commission cases (as opposed to the current rules, which permit only military judges to serve).
  • Mitigate or minimize procedural and appellate delay by removing the death penalty as a sentencing option.
  • Enhance or eliminate the role of the Court of Military Commissions Review. This is a part-time court, with judges paid by the hour, that hears cases of first impression, interlocutory appeals, and emergency writs without settled law. A standing court could more expeditiously process these appeals. Alternatively, disbanding the Court of Military Commissions Review in favor of direct appeal to the D.C. Circuit would more rapidly result in settled law and precedent.
  • Review the classification and declassification procedures (which are necessary, but slow) for efficacy.
  • Provide improved “clean” facilities for secure attorney-client communications.
  • Establish a central and timely website and clearinghouse for commission filings and information to enhance transparency, public knowledge, and confidence in the commission’s proceedings.

Alternatives to Commissions

Participants also considered alternatives to commissions, including prosecution

  • In-theater before commissions or courts-martial;
  • By host-government courts;
  • By third-country courts;
  • Before hybrid domestic-international courts;
  • Within the US military justice system; and
  • Before Article III federal courts. 

In addition, there was a notable degree of support for the following conclusions:

  • Most participants expressed the view that US national security and justice would be better served by trying terrorism cases in Article III courts, instead of before commissions as they are currently constituted.
  • Many participants recommended that remote plea-bargaining before Article III judges via videoconference is an option that should be considered for Guantanamo detainees.
  • There was consensus that the prohibition on transferring Guantanamo detainees to the United States should be repealed to afford the Executive Branch flexibility in addressing terrorism cases.

New Entrants

As indicated by the recent Executive Order, the possibility of bringing new detainees to Guantanamo, and potentially charging them in the military commissions system, is now an option. Yet most participants agreed that bringing new entrants into the current military commissions system would be problematic. Specifically,

  • Most participants—indeed, all but one—agreed that bringing new entrants not currently detained at Guantanamo, such as ISIS members, into the existing commissions system at Guantanamo Bay would compound existing challenges, such as those involving prosecutorial and appellate delay, cost, and both public and international credibility.
  • Most participants also agreed that new entrants would also bring potential additional challenges, such as litigation addressed to detention authority under the existing 2001 Authorization for the Use of Military Force, the scope of the 2009 Military Commissions Act (MCA), the co-mingling of detainees, and/or the exact crimes with which the detainees are charged.

The “End of Conflict” and a New AUMF

Finally, participants identified a series of issues related to defining the “end of conflict” with respect to some or all of the conflicts during which detainees have been transferred and held at Guantanamo, as well as issues that could arise if there is a new authorization to use military force to provide clearer and more specific authority for the use of force against ISIS and other terrorist groups. Specifically,

  • Many participants expressed the view that the US should better define what counts as the end of conflict and how the operations of jus post bellum should be carried out. Such definition could also encourage and facilitate the plea process, enhance the commissions’ credibility, and minimize the risk of inconsistent or adverse judicial or congressional definitions.
  • There was consensus that, until and unless there is a declared “end of conflict,” the current Periodic Review Board process for detainees should continue. This process assesses whether continued law-of-war detention is necessary to protect against a significant threat to the security of the United States.
  • Most participants agreed that a new AUMF would reduce the legal grounds for litigation challenging the President’s authority to detain new persons. However, participants could not agree on whether a new AUMF should include express detention authority and/or a sunset clause.

In sum, the Workshop Report offers a detailed, non-partisan, legal and policy analysis and recommendations with respect to the wide range of issues that currently face the Military Commissions and that will remain salient if the Trump Administration ultimately decides to expand the Commissions’ use.

The Hon. James E. Baker is INSCT Director and Chair of the ABA Standing Committee on Law and National Security. Laura A. Dickinson is Oswald Symister Colclough Research Professor of Law at George Washington Law.

Carpenter v. US: Gorsuch’s Dissent Re-Ignites Criticism of the Third-Party Doctrine

By Lauryn Gouldin

One interesting aspect of the Court’s decision in Carpenter v. United States is Justice Neil Gorsuch’s dissent. While many will, no doubt, cast the Carpenter decision as a 5-4 decision narrowing the reach of the Court’s broadly applied and long-criticized third-party doctrine, attentive readers will see that the result is a bit more complex. For those trying to predict where the justices stand on Fourth Amendment issues going forward, this is better characterized as a 5-3-1 decision, with Justice Gorsuch standing alone. 

“Like Justice Thomas, Justice Gorsuch is skeptical of the Court’s Katz v. US jurisprudence and its efforts to ascertain (or worse, to dictate) what the community views as a ‘reasonable expectation of privacy.’”

Chief Justice John Robert’s majority opinion, joined by the Court’s four liberal justices (justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan), marks a significant narrowing of the third-party doctrine—significant, in part, because it is the first case where a majority of the Court acknowledges that the doctrine has meaningful limitations. But it is also a measured decision. Many encouraged the Court to use Carpenter to eliminate the third-party doctrine altogether. The majority, however, clearly declined to go that far and claimed that its decision was “a narrow one.” 

Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito writing together (and separately) are clearly persuaded that the government conduct in this case—the order to a cell phone company to search company records for data collected about a subscriber’s past locations—was not a “search” under the meaning of the Fourth Amendment. 

Justice Gorsuch’s take on that basic question is different. Like Justice Thomas, Justice Gorsuch is skeptical of the Court’s Katz v. US jurisprudence and its efforts to ascertain (or worse, to dictate) what the community views as a “reasonable expectation of privacy.” Justice Gorsuch clearly disagrees with the other dissenters about the possibility of a Fourth Amendment violation on the facts presented. In his dissenting opinion, Justice Gorsuch repeatedly suggests that he sees government overreaching (and a potential Fourth Amendment violation) in the factual background of the case. He unmistakably criticizes the third-party doctrine, stating, for example, that “[c]onsenting to give a third party access to private papers that remain my property is not the same thing as consenting to a search of those papers by the government.” Further, he agrees with the majority that “the rationale of Smith and Miller is wrong.”

Despite these concerns about the doctrine and about the underlying question, Justice Gorsuch dissents from the majority opinion, ruling against Carpenter on procedural grounds. In Gorsuch’s view, Carpenter failed to assert and develop essential property-based, positive law arguments. Justice Gorsuch even suggests these arguments might have persuaded him to rule in Carpenter’s favor (“In these circumstances, I cannot help but conclude—reluctantly—that Mr. Carpenter forfeited perhaps his most promising line of argument.”) Justice Gorsuch says, explicitly, that it is “entirely possible a person’s cell-site data could qualify as his papers or effects under existing law.”

Lauryn Gouldin is Associate Professor of Law at Syracuse University College of Law.

The Stain of Torture

By David M. Crane

(Re-published from The Jurist | June 26, 2018) June 26th is the United Nations’ International Day in Support of Victims of Torture. Its purpose — to denounce the crime of torture and proclaim solidarity with its survivors — is in stark opposition to the policy of my government.

As a former Chief Prosecutor of an international war crimes tribunal in West Africa, I walked the countryside, interviewing hundreds of victims — often people who had been tortured by their own government. The atrocities scarred them physically, emotionally, and psychologically for life.

But they shared their stories enthusiastically with our team, willing to relay the horror in order to receive human empathy, long after giving up hope of finding anything resembling justice.

Having prosecuted the officials of other governments for torture, I now find myself in a United States increasingly identified with torture and cruelty. Intensifying torture was presidential campaign rhetoric. A person who oversaw waterboarding in black site prisons is promoted to lead the CIA. Children are removed from their families as they flee gang violence. The U.S. reportedly now plans to leave the UN Human Rights Council, although a member has never before departed that body voluntarily.

How Did We Get Here?

A leader in building the post-World War II consensus against torture and for the rule of law, the United States chose a path of lawless brutality after the horrendous crime of 9/11. Lashing out broadly at Muslims, it threw aside its own rules and embarked on the rendition, detention and interrogation program (RDI).

Our government embraced torture, long known by interrogation professionals to be counter-productive. It did so as an attempt at payback, out of anger. Weak justifications defied logic, morality, and international legal norms that had stood for decades.

Two Libyan victims of the RDI program, Abdul-Hakim Belhaj and his wife Fatima Boudchar, exemplify how far the U.S. moved to the dark side. They were on their way to the U.K. to seek asylum as opponents of the Gaddafi regime. With intelligence from the U.K., the CIA detained them in Thailand and tortured them: painful stress positions, drugs, and vicious beatings. Boudchar was several months pregnant.

From Thailand they were rendered to Libya, to the hands of their enemies, where they suffered further torture. Ms. Boudchar was released from prison just three weeks before she gave birth.

Fourteen years later, the British Prime Minister finally issued an apology for the U.K.’s role in the couple’s rendition and torture, a crime led by the United States. Stating that her country had contributed to the couple’s capture, Teresa May admitted “neither of you should have been treated this way,” and apologized unreservedly.

Less than a month later, the European Court of Human Rights also repudiated torture. It delivered judgments against Romania and Lithuania, which both hosted secret CIA torture prisons, finding this supporting role a violation of the European Convention on Human Rights.

In stark contrast, at the same time such moral progress was occurring across the Atlantic, the U.S. confirmed a key figure in the RDI program to lead the CIA. Gina Haspel oversaw detention and torture at a black site occupied by Abd al-Rahim Al-Nashiri, the detainee whom the European Court said was subject to “an extremely harsh interrogation regime.”

What Are Citizens to Do When Their Government Doubles Down on its Torture Record?

I am part of one attempt to answer that question and give the survivors a safe space to tell their stories. I am a Commissioner of the North Carolina Commission of Inquiry on Torture (NCCIT). As part of the RDI program, the CIA used contractors and public facilities in North Carolina to move victims around the world to be tortured. Now local citizens are demanding to know how and why this was allowed to occur …

Read the whole article.

Corri Zoli Co-Authors Safety Science Article on “Terrorist Critical Infrastructures”

INSCT Director of Research Corri Zoli has published “Terrorist Critical Infrastructures, Organizational Capacity, and Security Risk” in the engineering journal Safety Science. This interdisciplinary article is co-authored with Zoli’s Syracuse University colleagues Professor Laura J. Steinberg of the School of Engineering and Computer Science and Professor Margaret Hermann of the Maxwell School, along with Martha Grabowski, an engineering professor at LeMoyne College in Syracuse, NY.

This essay addresses gaps between studies of terrorism and infrastructure resilience to explore “terrorist critical infrastructures” (TCIs) as one critically missing framework to understand the rise of terrorist political violence globally. This approach to global terrorism maximizes core perspectives common in resilience and safety research and uses comparative analyses from terrorism studies, systems engineering, and infrastructure protection.

The authors develop a topology of terrorist infrastructures, introduce the concepts of “enabling” and “coopted” TCIs, and contrast characteristics of TCIs with those of conventional infrastructures. They argue that the organizational intelligence that comes from aligning strategic goals with infrastructural capacity is critical to explaining the prevalence, durability, and resilience of many terrorist organizations (as well as their increasing use of violence).

“We can understand these emerging organizational forms by their design and development, often flat, mobile, and flexible ‘networks of networks’ themselves,” the authors explain.

Article Highlights
  • Analysis used a systems-based interdisciplinary approach to terrorism.
  • Informal, illicit non-state groups, such as terrorist organizations, build and design critical infrastructures to effect terrorist aims and goals, including targeting soft targets.
  • The types of TCIs can be categorized according to terrorist organizations’ strategic targeting priorities; interface with existing context-specific civilian infrastructure systems; and their need to design, build, and engineer new infrastructure systems particular to illicit organizations.
  • Such TCIs involve formal and informal, legitimate and illegitimate, and physical and virtual systems.
  • TCIs often interface with criminal networks and low-governance.
  • Results show the need for more research and a targeted, infrastructure based approaches to combating terrorism.\
  • Practical implications for governments and security sectors are discussed.

 

Statement by William C. Snyder on SCOTUS Carpenter vs. US Decision

Read the opinion

The Supreme Court’s Carpenter vs. US decision today will have far-reaching impacts, because it extends constitutional protections to cell site location information and not just to the actual content or words and sounds of a cellphone call or text message. The government now needs a warrant issued by a judge in order to obtain long-term, detailed records of the location of a cell phone.

The ruling also is significant because the Court reasons that constitutional protections against unreasonable searches and seizures must change as technology advances, surely a sign that more change will come. Furthermore, the Court struck down Congress’s protections for cell site location information. That is, the FBI fully complied with the Stored Communications Act and obtained federal court orders requiring Sprint and another carrier to turn over the geolocation information. Those orders are less difficult for police to obtain than are search warrants. Now, more stringent search warrants are required.

Nevertheless, the Court affirmed that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties … even if the information is revealed on the assumption that it will be used only for a limited purpose.”

The so-called “Third Party Records Doctrine” survives; the Court found that it does not apply to long-term “encyclopedic” geographic information generated by cell phones. Striking down this doctrine would have had enormous implications for government investigations, both for law enforcement and intelligence agencies.

The Court not only did not go that far, but it reaffirmed the basic principle that the Constitution does not protect evidence a person voluntarily provides to someone else.

These matters are complex. The justices wrote 119 pages to explain their reasoning. Also, the decision was 5-4, decided by just one vote. Today’s decision is, in the words of the Court, “a narrow one.” It is a step toward extending Constitutional protections in the cyber age, but only a step. It points a direction, but the Court is proceeding one step at a time.

Professor William C. Snyder

 

Corri Zoli Speaks to CNYCentral About Planning the North Korea Summit

WSTM News Channel 5 | May 24, 2018

Transcript:

HOST: Let’s bring in some new perspective on this international news. Corri Zoli is an assistant professor at the Maxwell school at Syracuse University and a familiar face here on CBS 5.

Thanks for coming in. This is sort of an unconventional from the start, the way this plan for the summit was announced. Maybe it won’t happen, maybe it will. We’re hopeful it’ll happen, and then finally today … what do you make of today’s announcement.

ZOLI: I think that this is a great example of how negotiations are a language of power, so we’re seeing stuff on the surface … somehow this president of all people is impacted by insults … so what we think we’re seeing on the surface is not reflective of what’s actually going on here in terms of the power dynamics …

Travel Ban Has Slippery Slope to Giving President Too Much Power

By David Driesen

(Republished from The Hill | May 4, 2018) Lawyers frequently argue that accepting an argument in one context may lead to unacceptable consequences in another. Lawyers call this a slippery slope argument. The slippery slope dominated the oral argument on the legality of the administration’s travel ban before the Supreme Court in Trump v. Hawaii. No justice suggested that a sound national security rationale undergirds this travel ban.

The court’s reluctance to review a proffered national security rationale at all puts our entire democracy on a dangerous slippery slope.

But Justice John Roberts worried that recognizing the principle that the president cannot restrict travel on the basis of religion or nationality might have bad consequences at other times. He asked, for example, if the president could ban travel from Syria if 20 Syrians were about to enter the United States with chemical and biological weapons.

Roberts also asked about a longer lasting danger with Congress unable to pass legislation. The court’s conservative wing seemed inclined to uphold an unnecessary ban motivated by religious animus, because a decision striking down the ban might someday stop a president from unilaterally addressing a real danger.

But upholding this travel ban also would create a slippery slope. If neither the statutory restriction on nationality-based restrictions nor the Constitution’s prohibition of religious discrimination restrain the president’s authority to ban classes of aliens, then Trump could add all Muslim-majority countries to his travel ban list, perhaps adding some other countries as window dressing.

The court can avoid sliding down a slippery slope by issuing an opinion tied tightly to the facts. The court could hold that Trump’s statements about religion make this ban discriminatory. Such a ruling might limit Trump’s options in responding to security threats, but would likely have no effect on future presidents. Or the court could overturn this travel ban based on the lack of an adequate national security rationale, since no immigrants from the banned countries have carried out terrorist attacks.

A narrower approach would combine these two options. The court could hold that once religious animus is shown, the president must proffer a reasonably robust national security rationale for his actions. The court could more narrowly hold that the president must make the entire record available so it can judge whether the national security rationale provides a mere pretext for violating constitutional rights. The administration’s failure to put the full interagency review it conducted in the record suggests that it does not support the travel ban that Trump chose.

The court’s reluctance to review a proffered national security rationale at all puts our entire democracy on a dangerous slippery slope. Given the persistence of global terrorism, almost any action limiting our liberties, no matter how unnecessary at the time, can be justified as the type of national security measure that could be needed in the future …

Read the full article.

David Driesen is a law professor at Syracuse University.

Corri Zoli Offers Thoughts on Human Rights Training to US GAO

Corri Zoli, Director of Research for the Institute for National Security and Counterterrorism, discussed human rights and international humanitarian law (IHL) training with the US Government Accountability Office (GAO) on April 19, 2018.

Zoli was invited to a teleconference session by recent graduate James I. McCully L’17, G’17, now an Analyst in International Affairs and Trade at GAO. A joint J.D./M.P.A. student, while at Syracuse McCully was a research assistant to professors Robert Ashford and David Driesen and Lead Articles Editor for the Journal of International Law and Commerce.

Explained McCully, the GAO is in the process of responding to a mandate in the 2018 National Defense Authorization Act to review human rights and IHL training provided by the departments of State and Defense to the security forces of foreign nations.

Specifically, McCully’s team asked Zoli, an expert in international law, about her observations and views on human rights and IHL training being provided to foreign security forces; her thoughts about the Leahy Laws, which prohibit the US from providing military assistance to foreign security forces that violate human rights; and what assessments, monitoring, and evaluation are most effective when reviewing and auditing this type of training.