Very Initial Thoughts on the White House Cybersecurity Order

By William C. Snyder

Actual Presidential Executive Order on Strengthening the Cybersecurity of Federal Networks and Critical Infrastructure

Initial thoughts, observations, and questions on the White House Cybersecurity Order …

  • Once again, the NIST Framework for Improving Critical Infrastructure Cybersecurity is key.
  • Each agency has 90 days to provide a risk management report to the secretary of the Department of Homeland Security (DHS) and the Director of the Office of Management and Budget (OMB).
  • DHS, OMB, Commerce, General Services, and White House staff then have 60 days to submit to the president a plan to protect the “executive branch enterprise.” Is that coordination or an ability to designate who is in charge?
  • For any national security system, the SecDEF and Director of National Intelligence (DNI) replace DHS and OMB.
  • An even larger group has 180 days to provide a report on protecting critical infrastructure. That group includes the secretary of DHS, secretary of Defense, the Attorney General, the DNI, the Director of the FBI, “the heads of appropriate sector-specific agencies,” … “and all other appropriate agency heads.”
  • The order calls for “market transparency of cybersecurity risk management practices by critical infrastructure entities,” presumably so people can vote with their feet. But, much critical infrastructure is either held/run by regulated monopolies or in the public sector. So, consumer choice is minimal and demand will not be elastic based upon transparency of poor cybersecurity practices. This directive may simply amount to public shaming as the enforcement mechanism.
  • A different large group of public agencies is to promote resilience against botnets and the like.
  • The departments of Energy and Homeland Security and DNI office have 90 days to report on securing the electric grid.
  • For the nation in general, “it is the policy of the executive branch to promote an open, interoperable, reliable, and secure internet that fosters efficiency, innovation, communication, and economic prosperity, while respecting privacy and guarding against disruption, fraud, and theft.” Note that one side of the balance is only “disruption, fraud, and theft.” There is no mention there of preventing terrorist communications or contraband such as child pornography.
  • A report on deterring adversaries is required within 90 days.
  • A section entitled “International Cooperation” also calls for reports, but it gives no indication of whether the Administration still supports “multi-stakeholderism” or will shift to “multi-literalism.”
  • For better or worse, the order does not address investigative abilities and criminal enforcement.
  • The order takes a defense posture and does not promote—yet—offensive cybersecurity.

http://blog.cybersecuritylaw.us/2017/05/11/very-initial-thoughts-on-todays-white-house-cybersecurity-order/

William C. Banks Speaks to Media After the Firing of FBI Director James Comey

In the wake of the firing of FBI Director James Comey on May 9, 2017—at a time when this agency and others are probing the influence of Russian intelligence in the 2016 presidential election—INSCT Director William C. Banks’ knowledge of constitutional and national security law was in high demand by the media …

Washington Journal for May 12, 2017 (C-Span | Washington, DC)

Candidate for FBI Post May Not Be Qualified (US News & World Report | May 11, 2017)

… Some scholars, though, say the text of the statute concerning acting appointments could be seen to apply to the office a person holds, not whether the person himself was confirmed – meaning that Evanina would still be qualified to be appointed acting director.

“That’s right. I think it does meet the statute,” says attorney William Banks, director of the Institute for National Security and Counterterrorism at Syracuse University, whose study includes constitutional law. “Because of the terms of this statute, he doesn’t have to be confirmed for the interim position” …

What’s next after the firing of James Comey? (WWL New Orleans | May 11, 2017)
Why a thorough investigation of Russian election meddling is still possible (Christian Science Monitor | May 10, 2017)

… In the current charged political environment, a national commission might be the only path to a new approach acceptable to both parties.

“Trump couldn’t stand in the way of that” if Congress moves in that direction, says William Banks of Syracuse University.

The problem here is that congressional investigations already exist. The probe overseen by the House Select Committee on Intelligence is currently a tangled mess, given the move by chairman Rep. Devin Nunes (R) of California to secretly visit the White House to view documents he said might help prove Trump’s accusation that he was wiretapped by President Obama during the campaign …

President Trump and Russia: How would a special prosecutor get appointed? (USA Today | May 10, 2017)

… During his confirmation hearings for the No. 2 post at the Department of Justice, Rosenstein refused to commit to Democrats’ calls for a special prosecutor to oversee the inquiry.

Syracuse University law professor William Banks said it’s unrealistic to expect action from Rosenstein. “Even if the deputy wanted to do this, he would be shot down by the White House, I imagine,” Banks said …

James Comey’s Firing Has People Calling for an Independent Prosecutor. What’s That? (Time | May 10, 2017)

… A commission, a committee, and a special prosecutor would all be charged with investigating Russia’s meddling in the 2016 election, or specifically, possible collusion between Trump campaign associates and Russia. But only a special prosecutor has the power to actually take legal action; a committee or a commission would only gather the facts and present the findings to the Department of Justice.

“No one’s going to jail as a result of what the commission does but they could with a prosecutor,” explained William C. Banks, a law professor and Director of the Institute for National Security and Counterterrorism at Syracuse University. “Congress has the power to investigate but power to prosecute is in the Executive Branch” …

 

William C. Banks Speaks to Bloomberg Radio About Yates’ Testimony, Flynn, “18 Days,” & Russiagate

Yates’ Testimony Leaves More Questions than Answers

(Bloomberg Radio | May 9, 2017) Alex Whiting, professor at Harvard Law School, and William Banks, Director of the Institute for National Security and Counterterrorism at Syracuse University Law School, discuss former acting attorney general Sally Yates’ testimony before Congress, in which she detailed the timeline that lead up to former national security adviser Michael Flynn’s expulsion. They speak with Greg Stohr on Bloomberg Radio’s “Bloomberg Law.”

Special Counsel, Commission, or Something Else: William C. Banks Speaks to Business Insider About the Russia Investigation

UPDATES ON RUSSIA INVESTIGATION IN LIGHT OF THE FIRING OF JAMES COMEY AS FBI DIRECTOR (May 10, 2017)

Statement by William C. Banks
“President Trump’s firing of FBI Director Comey increases the pressure on Congress to conduct a thorough and unbiased investigation of Russian influence on the 2016 election and the potential involvement of the Trump campaign, Trump transition, and Trump administration in those activities.
“Although the AG or Deputy AG could appoint a special counsel, that is highly unlikely under present circumstances. It will be politically challenging for Congress to create a special counsel for this investigation, because new legislation along these lines would have to pass and then overcome a presidential veto.
“More likely, Congress could on its own create a separate committee of its members or, better yet, an outside and independent commission (similar to the 9/11 Commission) with a mandate to investigate. A Commission would be outside the political arena and could be made up of individuals with experience who are widely respected for their independent judgment.”
SEE ALSO

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

(Business Insider | May 9, 2017) After FBI Director James Comey’s unexpected firing Tuesday, lawmakers renewed calls for a special prosecutor to investigate ties between Trump associates and Russian operatives.

“The only way the American people can have faith in this investigation is for it to be led by a fearless, independent special prosecutor,” Senate Minority Leader Chuck Schumer said.

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 …

… A special counsel could be appointed by either Attorney General Jeff Sessions himself or by Congress to investigate potential ties between Trump’s inner circle and Russia, said William Banks, a professor and 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.

After revelations of previously undisclosed conversations with Russia’s ambassador to the US, Sergey Kislyak, Sessions recused himself from investigations relating to the 2016 campaign …

… Congress could, however, launch its own investigation into the executive branch without legislation because such authority is implicit in the appropriations power, Banks said. If Congress decided to act on its own, it is much more likely that it would establish a commission or committee to investigate, rather than passing ethics legislation, Banks added.

Special counsels tend to be highly respected lawyers or judges. Examples, according to Banks, include: highly experienced private practice lawyers, retired judges, and former Justice Department prosecutors.

A special counsel investigation would likely take between six to nine months, according to Banks, who said that such investigations tend to be extremely complicated by nature. With so much classified information, intelligence agency officials that need to be interviewed, and hard to obtain information, it takes a while to sort out …

To read the whole story, click here.

 

David M. Crane Receives Honorary Degree From Ohio University

 History Alum David Crane Receives Honorary Doctorate of Letters

Ohio University alum David Crane, who earned a bachelor’s degree in History in 1972 and a master’s in African Studies in 1973, was presented an Honorary Doctorate of Letters Degree at the Graduate Commencement on April 28.

He earned a J.D. from Syracuse University in 1980 and is now one of the world’s international law experts.

“My life, and all it is and has stood for, began here at Ohio University,” Crane said. “I learned the joy of learning; of standing up for what is right; to be a critical thinker; to become a leader and manager; and I learned the importance of lifelong friendships and, most importantly, the true meaning of love. A love that has lasted almost 45 years.”

OHIO alum David Crane receives an honrary doctorate degree from Interim President David Descutner. Photo by Ben Siegel

Crane has held many positions during his 30-year career with the U.S. federal government. Some of them include: judge advocate for the U.S. Army, assistant general counsel of the Defense Intelligence Agency and founding director of the Office of the Intelligence Review in the Department of Defense. He also has served as the Waldemar A. Solf Professor of International Law and chairman of the International Law Department in the U.S. Army Judge Advocate General’s School.

Among his duties were prosecuting cases, educating attorneys on international humanitarian law and overseeing investigations into acts of terrorism and international aggression.

After retiring, he was appointed by United Nations Secretary General Kofi Annan as the founding chief prosecutor of the Special Court for Sierra Leone. He was responsible for evaluating and prosecuting individuals who committed crimes against humanity and violations of international human rights that occurred during the Sierra Leone civil war, 1991-2002.

He is the founder and vice president of the “I am Syria” campaign, which educates the world on the Syrian Conflict. He also founded “Impunity Watch,” a law review journal and news reporting site that caters to government officials, non-governmental organizations and international lawyers.

History Alum David Crane Receives Honorary Doctorate of Letters

Amidst a Set-Back for Transparency, Citizen-Led Accountability in North Carolina

By David M. Crane & Catherine Reed

(Jurist | May 4, 2017) Last Monday, 24 April, it was easy to miss the important news that the Supreme Court denied cert in the ACLU’s Freedom of Information Act lawsuit to make public the full Senate Intelligence Committee report on the CIA’s use of torture. The news was lost in the frenzied media analysis of Trump’s first 100 days, new opinion polls on his performance, and a looming possible government shutdown over the border wall.

“The Supreme Court’s denial of public access to the full Senate report means we will be forced to continue wondering how much torture was used, the level of damage it did to the US, and which private entities may have been involved.”

The ACLU is to be commended for their leadership both in this FOIA request, and in the ground-breaking lawsuit Salim v. Mitchell. That suit was brought by torture victims and the family of a man tortured to death by the CIA, and fortunately is moving forward in a Spokane federal court.

But this Supreme Court decision on the Senate report is a blow to efforts at accountability for this dark chapter in US history, and bad news for Americans who want open government and transparency. From the declassified but heavily-redacted executive summary that is available, we know that the CIA’s interrogation tactics were both more brutal and less effective than was acknowledged publicly. The CIA did not provide oversight at the black sites it maintained, and it lied to Congress and the public about the number of detainees it held and tortured during the period following 9/11.

The Supreme Court’s denial of public access to the full Senate report means we will be forced to continue wondering how much torture was used, the level of damage it did to the US, and which private entities may have been involved. Most disturbingly, the decision blocks the robust public debate that release of the full report would stimulate. It continues the shielding of responsible officials from any form of accountability, and keeps the American public and our elected leaders from learning lessons from the failed tactics of the past.

One of President Obama’s final acts in office was to preserve the report under the Presidential Records Act — a positive step given that many elected officials, including Senate Select Intelligence Committee Chair Richard Burr (R-N.C.), have advocated destroying all classified versions. But this step also meant that the report would remain hidden from the public for at least twelve years, and perhaps much longer.

Our current President has, at best, easily influenced and inconsistent views on torture. President Trump, both while campaigning and even after taking office, has openly supported and endorsed resuming torture, although he has also backtracked on his own statements. His appointment of Deputy CIA Director Gina Haspel, who once oversaw a CIA black site in Thailand and was physically present during torture sessions, further underscores that more information about the torture, rendition and detention program must be revealed.

The lack of government transparency and public accountability—reinforced by this week’s Supreme Court decision—makes the work of organizations pushing for accountability all the more vital. One such initiative worth noting is the recently launched non-governmental North Carolina Commission of Inquiry on Torture (NCCIT).

NCCIT was established to investigate and bring about public accountability for the specific role that North Carolina’s state and local governments played in supporting the US torture program …

To read the full article, call here.

INSCT Affiliated Faculty Member David M. Crane was Founding Chief Prosecutor for the Special Court for Sierra Leone and currently is a Professor of Practice at Syracuse University College of Law. Catherine Read is Executive Director of the North Carolina Commission of Inquiry on Torture.

“It Will Take a Generation”: WAER Examines SAP’s Syrian Civil War Research & Postconflict Justice

War Crimes Evidence in Syria, SU Law Group has New Report on Government Violence Against Civilians

(WAER (Syracuse, NY) | May 1, 2017)  A project at Syracuse University’s Law School is monitoring potential war crimes in Syria.  The Syrian Accountability Project has a report out on some of the most violent and deadly incidents, allegedly carried out by the government against its own citizens. 

“We’ll get Assad eventually; there’ll be a knock at his door someday.”

Many of us followed in horror of the chemical attacks leveled at civilians in Syria last month.  But Zach Lucas, Executive Director of the Syrian Accountability Project, has been following such atrocities for months.  The group has a white paper out about finding six types of incidents against innocent civilians.

“From use of chemical weapons, use of barrel bombs, a nasty type of improvised explosive device dropped from helicopters, to indiscriminate shelling general, dragging war planes out every single day and just bombing neighborhoods.  We also found extra-judicial killings, attacks on hospitals and the aid convoys on September 19th (2016).”

They were investigating the siege of Aleppo and also found another tactic – not allowing civilians a way to leave.

“The way the Syrian government has done it for the past six and-a-half years, the way it’s been carried out has just been awful, to say the least.  There’s no distinguishing between a combatant on the ground and a lawful target, and just a child, for instance that’s just in their neighborhood trying to play.”

Lucas says their work can show investigators where to look for evidence and witnesses in preparation for a war crimes trial against Syrian Leader Bashar Al-Assad and others.  SU Law Professor and project leader David Crane is  confident justice will be served … if not so optimistic about the country’s future.

“We’ll get Assad eventually; there’ll be a knock at his door someday.  But the area around Syria, known as the Levant, it’s destroyed.  It will take a generation.  It is now a part of the world the U.N. is only going to be able to manage.  At this point it’s almost ungovernable” …

To read the full story, click here.

 

100 Days, Trump, & Precaution

By William C. Banks & David M. Driesen

Environmental law embraces the “precautionary principle” as a guide for decision makers in dealing with uncertainty. The precautionary principle supports taking cost effective measures to address catastrophic or irreversible harm even before we have a complete understanding of an environmental threat, lest we act too late. We act on this common-sense principle when we look both ways before crossing a street or purchase insurance before a flood or hurricane occurs.

“Just as we often do not have a complete understanding of potential environmental threats that we must manage, we cannot know for sure what dangers the unpredictable Trump administration may pose to national security.”

The precautionary principle may prove useful in managing the potential threats that an erratic and unpredictable Trump Administration may pose to national security in the next 100 days and beyond. Troubling revelations about the Trump campaign’s ties with Russia and Russian influence on the election dominated much of the first 100 days.

Trump’s surprising decision to bomb Syria in response to a horrific gas attack on civilians and to claim that he was sending an armada to North Korea (when the ships were headed in the opposite direction) have commanded more attention than the Russian ties toward the end of the first 100 days, in spite of a new revelation that a special court found that the government had probable cause to believe that former Trump advisor Carter Page was a Russian agent.

Just as we often do not have a complete understanding of potential environmental threats that we must manage, we cannot know for sure what dangers the unpredictable Trump administration may pose to national security. Trump’s strike against Syria, while widely applauded as an appealing response to a horrific chemical weapons attack, may do more harm than good to our national security by further marginalizing the role of Congress in authorizing military force and causing Russia to repudiate an agreement to avoid interfering with our efforts to defeat Al Queda.

To what extent will Trump’s unconstitutional travel bans aid ISIS and Al Queda recruitment by suggesting that we disrespect Muslims? Will Russia dangerously assume that we will not defend the Ukraine because of Russia’s ties to Donald Trump? And how much damage may future impetuous decisions cause? We just don’t know.

Furthermore, impulsive unilateral measures can cause catastrophic and irreversible harms—the sort of harm that the precautionary principle is designed to address. the President’s bellicose threats to attack North Korea may make for good television sound bites, but they could lead to nuclear war. And by promising to send a battleship toward North Korea whilst it steamed off in another direction, Trump increased the odds of grave miscalculation by adversaries.

Instead of reacting to each new tweet and tick of the Trump administration we should take precautionary measures before irreversible and catastrophic harm takes place. The Constitution places the war power in the Congress precisely to prevent a single person from making decisions that imperil the country. Congress must now exercise its authority to explicitly limit Trump’s discretion to act unilaterally. Congressmen Edward Markey and Ted Lieu have introduced legislation to prohibit first strikes with nuclear weapons. Congress should hold hearings on that bill and consider other limits on Trump’s war power, such as geographic or enemy-specific limits on the use of military force …

To read the full article, click here.

William C. Banks is Director of INSCT. His colleague David M. Driesen is University Professor at SU Law and an expert in environmental law, law and economics, and constitutional law.

Syrian Accountability Project Releases Report on 2016 Siege of Aleppo

Siege, the blockade and subjugation of a city, is an ancient and enduring strategy of war, responsible for some of the cruelest events in modern conflict: the battles of Sevastopol during the Crimean War, of Leningrad during World War II, and of Sarajevo during the Bosnian War.

Add to these notorious examples the 2016 Siege of Aleppo, an attritional campaign of the Syrian Civil War that lasted 160 days, from July to December, pitting the victorious Syrian Arab Republic against a rebel coalition mixed into a civilian population of some two million. Taken together, the Battle of Aleppo, which began in 2012, and the subsequent siege killed an estimated 31,000 people, with 75% of those believed to be civilians. One of the world’s oldest cities and a cultural capital, Aleppo was reduced to rubble.

On Thursday, April 27, 2017, the Syrian Accountability Project—a student-run organization based in the SU College of Law and led by Professor David M. Crane, a former war crimes prosecutor—published its latest white paper detailing this sad chapter of the civil war: Covered in Dust, Veiled by Shadow: The Siege and Destruction of Aleppo.

A close examination of the multiple war crimes and crimes against humanity that occurred during the 2016 blockade, the Covered in Dust release event took place in the Joyce Hergenhan Auditorium, Newhouse 3, Syracuse University. Discussants at the event were Ken Harper, Associate Professor, S.I. Newhouse School of Public Communications; Cora True-Frost, Associate Professor of Law, SU Law; and Professor Corri Zoli, Director of Research, Institute for National Security and Counterterrorism.

Authored by law students Kaitlyn Degnan, Zachary Lucas, and Sean Mills, Covered in Dust uses open sources, media accounts, and contacts in the field to describe events and to document crimes that occurred during the siege in violation of the Geneva Conventions of 1949 and their Additional Protocols, the Rome Statute of the International Criminal Court, and the Syrian Penal Code.

Newhouse School Professor Ken Harper discusses the role of professional and citizen journalists in recording events during the Battle for Aleppo at the white paper release event in Newhouse. He is joined on stage by INSCT Director of Research Corri Zoli, who addressed the laws of war and humanitarian law as applied to the Syrian Civil War, and law students Kaitlyn Degnan, Zachary Lucas, and Sean Mills, principal authors of the report.

Although siege itself is not banned under customary international law, this strategy often employs tactics that are considered crimes. In terms of targeting citizens and the aid workers trying to help them, the Siege of Aleppo was especially egregious. Covered in Dust documents six distinct categories of incidents that are representative violations: the use of siege to starve a civilian population; indiscriminate shelling of civilians and specifically the dropping of “barrel bombs”; the use of chemical weapons (there were reportedly at least eight chlorine gas attacks during the blockade); attacks on humanitarian and medical operations, including on aid convoys and hospitals; and extrajudicial killings, especially during the final days of the battle.

The information in this white paper is drawn from SAP’s extensive legal analysis, now in its sixth year. The project’s comprehensive Conflict Narrative and Crime-Based Matrix are detailed accounts of war crimes and crimes against humanity during the civil war. The narrative is a daily accounting of recorded and pertinent crimes taken from open sources, while the matrix highlights specific incidents from the narrative, noting the date, location, description, and responsible party. The matrix also provides the relevant source of potential legal liability under the Rome Statute, the Geneva Conventions, and/or the Syrian Penal code.

The purpose of this white paper and SAP’s wider work is to aid the eventual administration of transitional justice for the people of Syria after the war. To this end, Covered in Dust will be sent to the newly created United Nations Syrian Accountability Center, which was formed with the help of Professor Crane in December 2016. The report also will be sent to these clients of SAP: the UN Undersecretary General for Legal Affairs; UN High Commissioner for Human Rights; Chief Prosecutor International Criminal Court; Chairman of the House Foreign Affairs Committee; US Ambassador at Large for War Crimes; and various UN ambassadors.

Covered in Dust joins two previous SAP white papers that also draw from the project’s Conflict Narrative and Crime-Based Matrix. Looking Through the Window Darkly: A Snapshot Analysis of Rape in Syria (released March 2016) carefully documents 142 cases of the use of rape and sexual violence as a weapon of war by all sides of the Syrian conflict. Idlib Left Breathless: The Chemical Attack in Kahn Sheikhoun, released in April 2017, documents the sarin gas attack on a rebel-held town that reportedly killed at least 87 people, including 28 children.

“Hard to Understand”: William C. Banks Talks to Bloomberg Law About Flynn Disclosure

Flynn Faces Legal Action Over Russian Business Dealings

(Bloomberg Law | April 26, 2017) William Banks, Director, Institute for National Security and Counterterrorism at Syracuse University, discusses potential legal charges against former national security adviser Michael Flynn for not fully disclosing his business dealings with Russia. He speaks with Michael Best and Greg Stohr on Bloomberg Radio’s “Bloomberg Law.”