David M. Crane, Other NCCIT Commissioners to Further Explore North Carolina’s Role in US Torture Program at Public Hearings

The North Carolina Commission of Inquiry on Torture (NCCIT) will hold public hearings in Raleigh, NC, from Nov. 30 to Dec. 1, 2017, as a part of its ongoing investigation into how North Carolina’s state tax dollars and public resources may have been used to facilitate aspects of the CIA’s post-9/11 Rendition, Detention, and Interrogation (RDI) program, which potentially violated national and international laws.

The 11-member panel of commissioners, which includes INSCT Affiliated Faculty Member David M. Crane, will receive testimony from a diverse lineup of scholars, military officers, legal experts, and those with firsthand experience and knowledge of the CIA’s torture program, including both interrogators and detainees. 

Witnesses will address the links between the US torture program and North Carolina, in particular the role of a CIA-associated company based in the state, Aero Contractors. The commission will hear testimony about how Aero Contractors used the state’s infrastructure—including taxpayer-funded public airports—to station and deploy planes that picked up suspects abroad and transported them to black site prisons or third party countries where they experienced torture.  

In particular, Mohamedou Ould Slahi will testify about his experience being wrongfully accused, tortured, and detained at the Guantanamo Bay Naval Base for more than 14 years, which he wrote about in his international bestseller Guantanamo Diary.  Slahi’s case is one of more than 40 documented to involve North Carolina-based jets and pilots.  Many of these cases appear in the declassified executive summary of the US Senate Intelligence Committee’s report on CIA torture released in 2014. 

Confirmed witnesses appearing before the Commission at the hearings include:

  • Juan Mendez, former UN Special Rapporteur on Torture and Faculty Director of the Anti-Torture Initiative at the American University Washington College of Law
  • Glenn Carle, former CIA interrogator and Fellow at the Harvard Kennedy School Carr Center for Human Rights
  • Jayne Huckerby, law professor and Director of the International Human Rights Clinic at Duke Law School
  • Alberto Mora, former General Counsel of the US Navy and Senior Fellow at the Harvard Kennedy School of Government’s Carr Center for Human Rights Policy
  • Lt. Col. Sterling Thomas, active US Air Force and counsel to two Guantanamo detainees

This event is open to the media and will be live streamed at nccit.org.

Step-by-Step: William C. Banks Updates Bloomberg on the Mueller Probe

Goodman and Banks on Mueller Probe

(Bloomberg Law | Nov. 13, 2017) Ryan Goodman, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, and William Banks, Director, Institute for National Security and Counterterrorism at Syracuse University College of Law, discuss the latest developments in the in the Mueller probe.

https://www.bloomberg.com/news/audio/2017-11-13/goodman-and-banks-on-mueller-probe-audio

Robert B. Murrett Speaks to Brazilian Media About Trump’s Visit to Asia

Com trunfos, China recebe americano

(Estadão Jornal Digital | Nov. 8, 2017)

… The President of the Republic of Korea today arrives in Beijing from South Korea. After saying that it was a “waste of time” to talk to North Korea last month, the American adopted a diplomatic tone and invited Pyongyang to “sit at the table” to discuss the nuclear issue. “I think we’re making a lot of progress, I think we’re showing great strength. I think they understand that we have unparalleled strength,” Trump told a news conference alongside South Korean President Moon Jae-in. “In the end, this will work.”

Deputy Director of the Institute of National Security and Counterterrorism at Syracuse University, Robert Murrett evaluated the change in the president’s tone as an attempt to reduce tension in the region. The South Korean president was elected on a platform that advocates negotiation with Pyongyang and rejects any military confrontation. Trump’s bellicose rhetoric was not well received by the South Korean population, who would be directly hit in a possible war. Research by Pew Research has shown that two-thirds of South Korean respondents consider Trump to be “dangerous.”

Murrett recalled that the issue of North Korea will be at the center of Trump’s agenda in Beijing. “Any kind of action against North Korea has to include the Chinese.” …

To read the article in the original Portuguese, click here.

Gassing International Law

By David M. Crane

(Re-published from The Jurist | Nov. 6, 2017) The United Nations Security Council (UNSC) should not ignore or walk away from the alleged use of any prohibited weapon, such as chemicals, as it signals it is permissible to violate the Chemical Weapons Convention (CWC) and erodes international norms related to such weapons. Further, it signals that countries with deep ties to P5 (U.K., U.S., France, Russia, China) are outside the scope of UNSC authority, therefore creating a bigger issue of eroding the international authority of the UNSC and jeopardizing the foundation of international law.

“The UN is not impotent, as it has facilitated international cooperation on the conflict, resulting in ceasefires, the initial formation of JIM, condemnation of acts, and investigation of potential war crimes.”

On Tuesday, October 24, 2017, Russia vetoed the resolution extending the mandate of the investigators probing chemical weapons attacks in Syria. [JURIST report] [Meeting Record] Following the chemical attack in 2015, Russia and America created the Joint Investigative Mechanism (JIM) to investigate the presence/use of chemical weapons in Syria, which found 27 active production facilities. In its most recent report late last month, the Organisation for the Prohibition of Chemical Weapons (OPCW) said it had verified the destruction of 25 of the 27 chemical weapons production facilities declared by Syria and continued to prepare an inspection to confirm the current condition of the last two. The vote on the resolution was in advance of the JIM investigative report (presented Thursday October 26). The report sought to identify the party responsible for a deadly April 4 attack in the rebel-controlled town of Khan Sheikhoun in southern Idlib that killed and sickened scores of civilians allegedly using sarin gas. Shortly after that attack, the United States launched an airstrike on a Syrian air base and accused the al-Assad regime of carrying out the gas attack.

This action by Russia is primarily concerned with the sovereignty of Syria and stresses the maxim that you cannot enter a sovereign territory without concrete evidence of wrong doing. Further Russia believes they face possible retaliation by Syria and/or rebel groups present in Syria. Finally, Russia is concerned that there has been a blurring of lines between the conflict against Syria and the conflict against ISIS. Additionally Russia is supporting the regime and has economic ties to Syria. They do not want the US to gain any influence in Syria.

The media and various member states are concerned that the UNSC is impotent in assisting in Syria due to the P5 structure. The UNSC and the UN system are shouldering the blame for little progress in Syria. The broader discussion criticizes the entire UN system as being outdated and ineffective.

The UN is not impotent, as it has facilitated international cooperation on the conflict, resulting in ceasefires, the initial formation of JIM, condemnation of acts, and investigation of potential war crimes. Further, the UN is serving its purpose as a neutral forum for these discussions. Syria has not simply become a battlefield upon which America and Russia are fighting, nor are we seeing a return to interstate war. Therefore, the UN is working as a forum for these issues. Further negotiations need to be based on interests and relationships as nationalistic and realist strategies fail within the cooperative international organizational model …

To read the complete article, click here.

“It’s a Snowball:” William C. Banks Discusses Potential Charges Against Flynn, Kushner, Others

Flynn in Focus as Mueller Investigation Moves Forward

(Nov. 6, 2017) Andrew Kent, a professor at Fordham University Law School, and William Banks, a professor at Syracuse University Law School, discuss special counsel Robert Mueller’s investigation into Russian interference in the 2016 election, which is now said to focus on former national security adviser Michael Flynn. They speak with Bloomberg’s June Grasso and Michael Best on Bloomberg Radio’s Bloomberg Law.

https://www.bloomberg.com/news/audio/2017-11-06/flynn-in-focus-as-mueller-investigation-moves-forward-audio

“Never Underestimate”: USA Today Speaks to Robert B. Murrett About Japan’s Military Posture

When it comes to North Korea, what is Japan’s military role?

(USA Today | Nov. 6, 2017) President Trump pressed Japanese Prime Minister Shinzo Abe on Monday to purchase more military hardware from the United States and take a more active role in its defense against North Korea.

“I would never underestimate the Japanese military.”

Trump had privately questioned why Japan didn’t shoot down the North Korean missiles launched over the northern island of Hokkaido in August and September, according to a report Saturday by Japan’s Kyodo News Agency. The report, citing diplomatic sources, said Trump wondered why a nation of “samurai warriors” wouldn’t take action.

At a news conference in Tokyo with Abe, Trump addressed the question, saying: “(Abe) will shoot them out of the sky when he completes the purchase of lots of additional military equipment from the United States. … And we make the best military equipment by far” …

… For more than 60 years Japan has operated the Self-Defense Forces, with some 250,000 air, naval and ground troops that experts say are among the best-trained and most well-equipped in the world.

“I would never underestimate the Japanese military,” said retired vice admiral Robert Murrett, deputy director of the Institute of National Security and Counterterrorism at Syracuse University. “In terms of just sheer military proficiency — unit for unit, person for person, they’re the best military in Asia.”

Murrett said that North Korea is continuing to push Japan to toward a more assertive posture.

“From a policy approach, they’re getting more energetic and less deferential to their neighbors or to the umbrella provided by the United States,” he said …

To read the full article, click here.

 

William C. Banks to Discuss “Fighting at the Legal Boundaries” During Georgetown Law Workshop

INSCT Director William C. Banks—an expert on new battlefields, asymmetric warfare, enemy combatants, and other jus in bello issues in modern warfare—will be a discussant at the Georgetown Law Center workshop on “Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict.”

The workshop addresses a book by Kenneth Watkin, QC, which offers a holistic approach toward the application of the various constitutive parts of international law and that reviews case studies on how international law addresses insurgents, terrorists, and transnational criminal gangs.

The Nov. 17, 2017, workshop is sponsored by the Georgetown Law Center, Center of the Study of the Legal Profession at Georgetown Law, and Human Rights First.

Workshop Commentators are:

  • Geoffrey Corn, Presidential Research Professor of Law, South Texas College of Law
  • Laura Dickinson, Oswald Symister Colclough Research Professor of Law, George Washington University Law School
  • Noam Lubell, Professor, School of Law, University of Essex
  • Marko Milanovic, Associate Professor in Law, University of Nottingham
  • Tom Ruys, Professor, Department of European, Public, and International Law, University of Ghent
  • Rachel Van Landingham, Associate Professor, Southwestern University School of Law

Workshop Discussants are:

  • Ken Watkin, author, Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict
  • William C. Banks, Director, INSCT
  • Gabriella Blum, Rita E. Hauser Professor of Human Rights and Humanitarian Law, Harvard Law School
  • Audrey Kurth Cronin, Professor, American University School of International Service
  • Janina Dill, University of Oxford
  • Charles Dunlap Jr., Executive Director, Center on Law, Ethics and National Security, Duke University
  • Josh Geltzer, Executive Director, Institute for Constitutional Advocacy and Protection, Georgetown Law
  • CPT Todd Huntley, Judge Advocate General’s Legal Center and School, Charlottesville, VA
  • Richard Jackson, Adjunct Professor, Georgetown University Law Center
  • Marty Lederman, Associate Professor, Georgetown Law Center
  • Dan Mahanty, Senior Adviser, Center for Civilians in Conflict
  • Jens David Ohlin, Vice Dean and Professor of Law, Cornell Law School
  • Deborah Pearlstein, Professor, Cardozo School of Law
  • Stephen Pomper, former Special Assistant to the President and Senior Director for African Affairs, Multilateral Affairs, and Human Rights, National Security Council
  • Charles Sabga, Acting Deputy, New York Delegation, International Committee of the Red Cross
  • Gary Solis, Adjunct Professor, Georgetown Law Center
  • Emily Spencer, Director, Education and Research Centre, Canadian Special Operations Forces Command
  • Jane Stromseth, Professor of Law, Georgetown Law Center

Moderators are:

  • Mitt Regan, McDevitt Professor of Jurisprudence, Georgetown Law Center
  • Rita Siemion, International Legal Counsel, Human Rights First
  • Heather Brandon, Advocacy Counsel, National Security, Human Rights First

What the US Government Can Do to Prevent Low-Tech Terror Attacks

By Corri Zoli

On Oct. 31, 2017, as reported by CNN, eight people were killed and almost a dozen injured when 29-year-old Sayfullo Habibullaevic Saipov drove a rented pickup truck down a busy bicycle path in New York City’s Lower Manhattan district. Authorities found a note claiming the attack was made in the name of Islamic State (ISIS) near the truck used in the attack.[1] Saipov was shot by police and taken to the hospital. Originally from Uzbekistan, he entered the United States under a visa program designed to encourage immigration from underrepresented nations.

“Likely, the visa lottery program Saipov used to enter the US in 2010 will come under scrutiny.”

Given the case facts, this tragic incident looks like yet another low-tech terrorist attack, similar to vehicular attacks in the last two years in London, France, Sweden, Spain, Germany, and elsewhere. The inspiration for these attacks comes from ISIS and its online recruitment materials that advocate for the surprise killing of civilians using any available modern tools as weapons, such as trucks, knives, or homemade bombs.[2] Europe has suffered hundreds of deaths due to this “low-tech” but powerful strategy.

US Congressmembers emphasize that we’re in a high-threat environment given ISIS attacks across the world and given thousands of foreign terrorist fighters returning to their home countries (as Islamic State collapses). It should be remembered that 60,000 foreign fighters have joined ISIS in Syria and Iraq since 2012. While numbers of recruits from the US are far lower than from France and Britain—not to mention other countries—they are not zero. Since 2014, 136 individuals have been charged for ISIS-related offenses in the US, with 79 so far found guilty.

What can the US government do to prevent such low-tech terror attacks in the homeland? Physical barriers to prevent car and truck attacks would help in places where people congregate, but it is not feasible to line every road or bike path with such concrete barriers. Nor do we have as many domestic policy tools as we might like to have to deal with this issue, such as heavily secured borders or detailed vetting procedures for immigrants and refugees. Instead, we must turn to surveillance, public notification of extremist behavior, forward-leaning law enforcement professionals, and community engagement, all of which must be balanced with civil liberties.

Importantly, lawmakers and law enforcement officials need to stay ahead of global terrorist strategic, tactical, and recruitment trends, especially after the fall of Raqqa and now that ISIS operatives are beginning to return home or move into other regions (such as Mali in western Africa). To politicize these issues—or ignore them or wish them away—is folly. Preventing terror attacks will require thorough policy reviews, investigative reports, and new bipartisan laws and agency procedures, such as those developed in the past to close VISA loopholes. The U.S. is not alone on these challenges—France issued a new anti-terrorism law this week, and British ministers are actively asking what to do with foreign terrorist returnees. 

In addition to the challenge of homegrown terrorism, our immigration systems are not immune to these threats. Both the Obama and Trump administrations have increased vetting of immigrants and refugees to deal with the ways terrorist operatives target migration flows and programs. Former FBI Director James Comey in 2015 Congressional testimony noted that 15% of refugees (300 out of 2,000-plus open FBI cases) are under FBI investigation for “some contact with foreign terrorists.”

Terrorists exploiting immigration and refugee programs is a bigger problem, however, in Europe, where ISIS operatives in the Paris (2015) and Belgium (2016) attacks, among others, used refugee flows and passports to skirt border security measures.

Likely, the visa lottery program[3] Saipov used to enter the US in 2010 will come under scrutiny[4]. While a small program,[5] after the San Bernardino attack in 2015, President Barack Obama’s Department of Homeland Security Director Jeh Johnson and lawmakers—including Central New York’s John Katko, who leads the House bipartisan Task Force on Combating Terrorist and Foreign Fighter Travel—reevaluated the K-1 VISA program for fiancée/spouses, some recommending social media surveillance of individuals.

The vetting process for the K-1 program was determined to be less rigorous than refugee vetting processes and therefore changed. In this case—as in the case of San Bernadino killer Tashfeen Malik, who was determined to have been radicalized before entering the US—an important question is whether Saipov exhibited signs of radicalization before he entered the US and whether he was properly vetted.


[1] Sayfullo Saipov’s first name translates into “Sword of Allah.” Reportedly, he pledged allegiance to ISIS and had ISIS flags in his vehicle.
[2] Here’s a sample from Rumiyah: Though being an essential part of modern life, very few actually comprehend the deadly and destructive capability of the motor vehicle and its capacity of reaping large numbers of casualties if used in a premeditated manner. This was superbly demonstrated…by the brother Mohamed Lahouaiej-Bouhlel who, while traveling at the speed of approximately 90 km p/hour, plowed his 19-ton load-bearing truck into crowds celebrating Bastille Day in Nice, harvesting through his attack the slaughter of 86 Crusader citizens and injuring 434 more. The method of such an attack is that a vehicle is plunged at a high speed into a large congregation of kufar, smashing their bodies with the vehicle’s strong outer frame, while advancing forward—crushing their heads, torsos, and limbs under the vehicle’s wheels and chassis—and leaving behind a trail of carnage.” (Rumiyah, 2016, Issue 3, p. 10)
[3] There were 1,051,031 new legal permanent residents (“Green Card” holders) in FY 2015, with about 5% coming from the “diversity” visa lottery program and most (66%) coming from family relations preferences.
[4] News outlets are also reporting that Saipov was in fact investigated by the FBI in 2015 over his ties with suspected terrorists. He was further listed as a “point of contact” for 23 visitors and immigrants, two of whom were found in DHS’s counterterrorism database and overstayed their tourist visas, itself a growing problem in the US (more than 700,000 overstayed their visas in 2016). One individual was flagged as arriving from a threat country while the other was identified as a “suspected terrorist.” Vetting procedures were again changed—this time to link classified (US Department of Defense) and unclassified data on jihadists—when it was discovered that two Iraqi refugees arrested on terror offenses in Bowling Green, Kentucky had previously committed IED attacks against US soldiers in Iraq.
[5] The Diversity Visa Program prioritizes immigrants from countries with historically low rates of immigration to the US. Congressionally mandated as part of the Immigration Act of 1990, the program creates priorities—diversity—beyond traditional US immigration policy of immigrating family members or US employment needs. The program allows for 55,000 immigrants per year (beginning in 1995) with countries excluded that have sent more than 50,000 immigrants to the US in the previous 5 years.

 

“Living Proof”: Syrian Accountability Project Publishes White Paper on the Yazidi Genocide

Yazidi Genocide CoverCrimes committed against civilians during war can be especially heinous, but when those crimes are committed with planned intent to destroy an ethnic or religious community, international law applies the unique label of “genocide.” It is not a charge used lightly by the international community, although in recent times it has been applied to crimes committed during the Bosnian War (1992-1995) and Rwandan Civil War (1994).

“Narratives about sexual violence as a war crime are difficult to collect, and whole villages have disappeared, so those people cannot tell their stories.”

Now, a white paper published by the Syracuse University College of Law-based Syrian Accountability Project (SAP) asserts that war crimes and crimes against humanity committed in 2014 against the Yazidi community by the Islamic State in Iraq and Syria (ISIS) also should be considered genocide. The report documents crimes perpetrated against the Yazidi community and calls on the international community to take “proper care of the living proof” of the Yazidi genocide and to begin the “strategic preservation” of forensic evidence that could be used in an international court.

As with past SAP special reports, the “Report on the Yazidi Genocide: Mapping Atrocity in Iraq and Syria” draws on the project’s six-year-long effort to document war crimes and crimes against humanity committed by all sides during the Syrian Civil War and associated conflicts. Working with open-source materials from available media and contacts within the region, SAP students are responsible for maintaining the project’s two main deliverables, the Conflict Narrative and the Crime Base Matrix. The former is a legally relevant historical narrative of the conflict, while the matrix’s intent is to provide case facts of representative crimes (as well as the relevant international or national legal standard for each crime) to guide a future prosecution team. In this way, SAP both advocates on behalf of victims and provides legal analysis to aid in the eventual administration of postconflict justice.

The “Report on the Yazidi Genocide” has been sent to SAP’s international clients, including the International Criminal Court, the United Nations, the US Congress, and leading human rights organizations. The report also joins related documents requested of SAP by London-based law firm Doughty Street Chambers and barrister Amal Clooney, who acts as legal counsel to Yazidi victims of ISIS’ crimes and to Yazda, a non-governmental organization that supports the Yazidi community. 

“The Syrian Accountability Project has become a relied-upon legal investigatory tool for the delivery of justice for the people of Syria and the Levant,” says Syracuse University College of Law Professor of Practice David M. Crane, who supervises the project. “The capacity of a College of Law student with a focused, properly supervised plan is unlimited.”

The Yazidis—an ethno-religious group of between 500,000 and 1.2 million people living primarily in Northern Iraq—are Kurdish-speaking and follow their own syncretic religion that combines aspects of Zoroastrianism, Islam, Christianity, and Judaism. The “Report on the Yazidi Genocide” alleges that, beginning in summer 2014, the group was targeted by ISIS and its campaign to “purify” the region of non-Islamist influences. The report details what it calls “grim incidences” of “incomparable brutality” during this campaign. More than 2,800 Yazidis were killed in this short time; 4,600 community members were abducted; 1,950 children were victimized; and towns and villages were blockaded or emptied of their residents. Women were kidnapped, raped, forced to abort fetuses, and sold into sexual slavery, while in a particularly abhorrent episode in August 2014, many children died of exposure on Mount Sinjar, where up to 50,000 Yazidis were seeking refuge.

“This has been a harder project to track than crimes committed in Syria during the civil war,” says SAP Executive Director and third-year law student Joseph Railey. “Narratives about sexual violence as a war crime are difficult to collect, and whole villages have disappeared, so those people cannot tell their stories. Nevertheless, this white paper helps clarify for our clients what kinds of information the Syrian Accountability Project has recorded beyond the case facts stemming specifically from the Syrian Civil War.”

While the report cross-references individual representative crimes with the articles of the Geneva Conventions, Rome Statute, and/or Iraqi Penal Code that they violate, it is the systematic nature of the crimes, along with ISIS’ stated intent to convert Yazidis to Islam, that raises the atrocities collectively to genocide. “The stories underlying these crimes provide the evidentiary support necessary to demonstrate that ISIS executed a systemic plan to destroy, in whole or in part, the Yazidi people,” the report states. “ISIS soldiers regularly demonstrated a specific intent to destroy the Yazidi people through their ideology and unabashed assertions for eliminating the Yazidi community.”

The report recognizes that many of the circumstantial evidence and news reports that SAP has collected are not legally sufficient to support a declaration of genocide, but it hopes that publishing these narratives will spur the international community to make an effort to preserve physical evidence of crimes. “Bringing ISIS to justice for genocide against the Yazidi community, at the domestic or the international level, will depend on the strategic preservation of forensic evidence,” the report concludes.

“What we are asking is that more recording of actual criminal evidence be done by the international community,” asserts Railey. “We are essentially saying, what happened was horrific, yet few people are talking about it. So we want to help draw people’s attention to the Yazidi situation and start a dialogue about what can be done.”

See also: “UN: Islamic State Atrocities in Mosul Need International Justice” (Voice of America/Reuters, Nov. 2, 2017)

“Important Signals”: William C. Banks Discusses RussiaGate Special Counsel Indictments on Bloomberg Law

First Charges in Russian Interference in US Election

(Oct. 30, 2017) William Banks, a professor at Syracuse University Law School, and Fordham Law School professor Andrew Kent discuss Special Counsel Robert Muller’s investigation into Russian interference in the 2016 election. They speak with Bloomberg’s June Grasso and Michael Best on Bloomberg Radio’s Bloomberg Law.

https://www.bloomberg.com/news/audio/2017-10-31/first-charges-in-russian-interference-in-us-election-audio