William C. Banks Publishes Seventh Edition of Constitutional Law

Banks_Smolla_Constitutional_LawConstitutional Law: Structure and Rights in Our Federal System (7th Edition)
Eds. William C. Banks & Rodney A. Smolla
Carolina Academic Press, 2019

“Twenty-five years ago we set out to create a constitutional law casebook that teaches well,” write Professor Emeritus William C. Banks and Dean Rodney Smolla of Widener University Delaware Law School in the Preface to the seventh edition of Constitutional Law: Structure and Rights in Our Federal System (Carolina Academic Press, 2019). “We wanted to teach from a book that would engage students in learning basic constitutional law and would enable teachers to work with cases and problems relatively unencumbered by extensive secondary source materials and treatise-like notes.

“In preparing the seventh edition of our casebook, we have continued to develop the characteristics that distinguish our book from others. First, we continue to place heavy emphasis on the structure of government, the constitutional concepts of federalism, and separation of powers.”

Traditional in scope, with full coverage of separation of powers, federalism, and individual rights, Constitutional Law emphasizes structural issues more so than many other constitutional law casebooks. Individual rights are discussed in context and within chapters focusing on traditional doctrinal categories, such as economic and social rights, rights of conscience and expression, and rights in the public arena.

The seventh edition makes heavy use of contemporary constitutional conflicts to present in a vivid manner the cases and secondary material traditionally covered in comprehensive constitutional law courses, including case studies in issues such as gun control, problems on the special counsel investigation by Robert Mueller, the Supreme Court’s resolution of which branch controls recognition of Jerusalem in providing passports, and controversies surrounding the Affordable Care Act.

This edition also expands dramatically the coverage of the religion and speech clauses, so that the casebook is useable for comprehensive courses on the First Amendment at law schools that break out coverage of constitutional law into a basic course and a follow-up course on civil liberties or the First Amendment.

Chapters

  1. The Origins: “We the People”: Where Does Power Reside in Our Constitutional System?
  2. Separation of Powers: Constitutional Checks and Balances
  3. Federalism Limits on Federal Courts
  4. Federalism Limits on the Elected Branches and on the States
  5. Public and Private Domain
  6. Exclusion and Equal Protection
  7. Economic and Social Rights
  8. Religion
  9. Freedom of Speech and Association

What’s Next After the Mueller Report? William C. Banks Speaks to WAER

National Security Expert at SU Speaks About What’s Next After the Mueller Report

(WAER | April 19, 2019) WAER’s Chris Bolt spoke with Professor Emeritus William Banks on some of the legal and historical aspects of the report and what it means going forward.

One of most significant things about the report William Banks says, might be what’s not there. President Trump was never directly interviewed about any of the allegations.

“One of the aspects of his presidency is to treat it more like a business and a personal fiefdom, as though he was a king or autocrat.”

“His responses to the written questions were that he simply didn’t recall, most of the time when the questions probe his state of mind. Had they obtained oral testimonial from the president would be far more difficult to walk away from direct answer to the question about his state of mind.”

Intent would have to be established for prosecutors to be able to bring any charges for obstruction of justice against the president. But that doesn’t mean the investigation didn’t have legal ramifications … he notes two dozen indictments of others came out of it. Still, no direct questioning of President Trump leaves a hole in any possible criminal case.

He found in the report less redaction that he thought by Attorney General William Barr. Most things blacked out had to do with grand jury materials, things relevant to ongoing congressional investigations, and identification of ancillary witnesses. What does concern him, is the lack of objectivity from the Attorney General’s office.

“The willingness of the justice department to go behind the scenes to allow them to prepare their rebuttal today speaks more of an effort to support the administration than it does to simply speak for the rule of law for the United States. So I think this is a very unfortunate aspect of investigation and one that somewhat unique in our history.”

Of course you can’t escape the political aspects of the investigation and the report. Senator Kirsten Gillibrand, who’s a presidential candidate, called it an embarrassing display of propaganda. She said in a release that the nation can’t trust a hand-picked attorney general and that congress should see the full, un-redacted report to really find the truth.

Area Congress members John Katko and Anthony Brindisi had different reactions to the release of the report, both speaking at a public event in Oswego. Katko told Syracuse.com he had no problem with Barr’s press conference and then releasing the report. He’s more concerned with what’s in it and how we reduce Russian influence in elections. Brindisi wants to see a full, un-redacted version before drawing conclusions, though he also does not want the investigation to overshadow other issues that need attention. Professor Banks meanwhile believes the prospect of Congress starting impeachment proceedings is not in the cards.

“I think the democrats recognize if they start an inquiry in the house, they may or may not have sufficient votes to impeach there. If they did, they would certainly not have votes to convict to the senate. It would be a way like the Clinton inquiry many years ago, a lot of effort for vey little outcome, any positive outcomes.”

While the President might not face that challenge, Banks says the whole process draws into question just how Mr. Trump views the office.

“One of the aspects of his presidency is to treat it more like a business and a personal fiefdom, as though he was a king or autocrat, rather than a democratically elected leader of a country who shares authority with the congress and the court in between nation government and states. So in many respects, I think the president has treated the office of presidency in a way as no other president has before as though he was above the law. That’s the most dramatic challenge to our constitutional system that I can imagine.”

And he adds things are far from over. There are still ongoing grand jury investigations; congress will have its own investigations and hearings; and Banks expects you should get used to hearing about the report and all manner of reactions to it on the campaign trail.

“I think certainly through the 2020 election, this is not going to be done. And then whatever the result the election produces, certainly the president and perhaps the shape and contour of the congress on the partisan, aside democrats from republicans. Then maybe on the November, 2020, this will all go away, but I doubt that it will before then.”

Listen to the segment.

INSCT Welcomes Five National Security Experts as Distinguished Fellows

The Institute for National Security and Counterterrorism (INSCT)—a collaboration between the Syracuse University College of Law and the Maxwell School of Citizenship and Public Affairs—has added five senior national security experts to its academic and advisory leadership team.

These Distinguished Fellows—drawn from the upper echelons of the national security and intelligence communities—will assist the Institute’s mission with a variety of assignments that will directly benefit students and expand INSCT’s portfolio of research and policy projects.

Joining INSCT are Steve Bunnell, Co-Chair of Data Security and Privacy at O’Melveny & Myers LLP, former General Counsel of the US Department of Homeland Security, and former Chief of the Criminal Division at the US Attorney’s Office in Washington, DC; Rajesh De, Chair of the Cybersecurity and Data Privacy practice and Co-Chair of the National Security practice at Mayer Brown LLP and former General Counsel for the US National Security Agency; Avril Haines, Senior Research Scholar at Columbia University, former Deputy National Security Advisor, and former Deputy Director of the Central Intelligence Agency; Amy Jeffress, Partner at Arnold & Porter Kaye Scholer LLP and former Counselor to the US Attorney General; and Lala Qadir, Associate and Member of the Artificial Intelligence Initiative at Covington & Burling LLP and Lecturer in Law at George Washington University Law School.

“These Distinguished Fellows are five of the leading experts in the field of national security law and policy, and I am thrilled that they have chosen to affiliate with the Institute,” says the Hon. James E. Baker, Director, INSCT. “They bring extraordinary practice experience and diverse expertise to Syracuse. They will expand the Institute’s reach in areas such as emerging technology, data privacy, and cybersecurity. Even better, if you think they are great at what they do—and they are—they are even better people, among the most honorable and ethical public servants I have known. If your mission is to train the next generation of thought leaders and practitioners in the field of public and private national security law, you would want this team of Fellows on your side.”

Among the Fellows’ roles—in Syracuse, New York City, and Washington, DC—they will help teach national security courses; lecture in the Institute’s speakers program; provide students with career advice and guidance; and offer insights and input regarding the Institute’s classroom and practical curriculum and its research and policy portfolio. They also will help the Institute stand up and teach a cutting-edge course on the practice of private national security law.

“Specifically, the Distinguished Fellows give the Institute the opportunity to fill a need that is not being met,” continues Judge Baker. “They will help us teach students at the College of Law and the Maxwell School what they need to know in order to practice in the area of private national security law and policy—at law firms, as in-house counsel, or as business officers and executives. This is an area of private practice that is growing exponentially, that offers career opportunity for our students, and that is critical to US national security, as well as the protection and advancement of US legal values.” It is anticipated that additional Fellows will join those announced today.

“The addition of these national security experts to the Institute for National Security and Counterterrorism significantly strengthens the Institute’s already formidable academic and research portfolio,” says Dean Craig M. Boise, Syracuse University College of Law. “Crucially, INSCT Distinguished Fellows will open up important opportunities and avenues for law and public policy students, especially in emerging areas of national security studies, such as artificial intelligence, data privacy, and transnational crime.”

“With decades of experience working on some of the most pressing law and policy issues of our time, INSCT Distinguished Fellows will add greatly to our students’ understanding of the practice of national security law and policymaking,” says Dean David M. Van Slyke, Maxwell School of Citizenship and Public Affairs. “Their insights as senior civil servants and practitioners in political positions, as well as in private practice and academia, will enrich the student experience and expand the depth and reach of Maxwell’s thought leadership and emerging research.”

William C. Banks Reviews the Mueller Report with KPCC

AirTalk special: DOJ releases redacted Mueller report to the public

(KPCC (Los Angeles) | April 18, 2019) Two years and countless subpoenas and indictments later, the Department of Justice has released a redacted version of the Mueller report to the public.

In a press conference, Attorney General William Barr on Thursday laid out in advance what he said was the “bottom line:” No collusion between the Trump campaign and Russian government hackers.

Barr said at a news conference that the president did not exert executive privilege to withhold anything in the 400 page-plus report. And he said the president’s personal attorney had requested and gotten a chance to review the report before its public release.

Barr said that no one outside the Justice Department has seen the unredacted Mueller report. And he added that no redactions were either made or proposed outside of the small group of Justice staffers that pored over Mueller’s report.

https://www.scpr.org/programs/airtalk/2019/04/18/64401/airtalk-special-doj-releases-redacted-mueller-repo/

GUESTS:

Nick Akerman, partner at the New York City office of Dorsey & Whitney LLP; he is a former Assistant U.S. Attorney in the Southern District of New York and served as Assistant Special Watergate Prosecutor with the Watergate Special Prosecution Force

  • Miriam Baer, professor of law at Brooklyn Law School where she specializes in corporate and white-collar crime and criminal law and procedure
  • William C. Banks, professor emeritus of law, public administration and international affairs at Syracuse University
  • Christian Berthelsen, legal reporter at Bloomberg
  • John Eastman, professor law and community service and director of the Center for Constitutional Jurisprudence at Chapman University
  • Robert G. Kaufman, public policy professor at Pepperdine where he focuses on U.S. foreign policy, national security and international relations; author of “Dangerous Doctrine: How Obama’s Grand Strategy Weakened America” (University Press of Kentucky, 2016)
  • Laurie L. Levenson, professor of law at Loyola Law School and former federal prosecutor
  • Justin Levitt, professor of law at Loyola Law School and former deputy assistant attorney general in the Civil Rights Division of the Justice Department under President Obama; he tweets @_justinlevitt_
  • Amanda Renteria, chair of Emerge America, a national organization that works to identify and train Democratic women who want to run for political office; she is the former national political director for Hillary Clinton’s 2016 presidential campaign; she tweets @AmandaRenteria
  • Sean T. Walsh, Republican political analyst and partner at Wilson Walsh Consulting in San Francisco; he is a former adviser to California Governors Pete Wilson and Arnold Schwarzenegger and a former White House staffer for Presidents Reagan and H.W. Bush

US Once Led International Justice But, Today, We’re on Wrong Side of the Law

By David M. Crane, Ben Ferencz, & Hans Corell

(Re-published from The Hill | April 14, 2019) With this month’s 25th anniversary of the Rwandan genocide it is important that mankind continue to maintain a system of international accountability to help prevent future atrocities. The Rwandan atrocity was one of the catalysts that created the modern international criminal law system. Coupled with the horrors in the Balkans, the United Nations, under the leadership of the United States, created the first international war crimes tribunals since Nuremberg in 1945.

The United States was a key player in developing what became the International Criminal Court, created to deal with the most egregious international crimes, complemented by the efforts of the various state parties.

The International Military Tribunal at Nuremberg was mankind’s first attempt to hold those who committed atrocities accountable under the rule of law. That seminal effort to try the leaders of Nazi Germany was led by an American, Robert H. Jackson, who was the chief U.S. prosecutor at the tribunal. The jurisprudence coming from the International Military Tribunal at Nuremberg in 1945-49 was the cornerstone by which the modern system of accountability was established in the mid 1990s.

All this was historically significant because the international community for centuries looked the other way when heads of state, dictators and monarchs turned against their own citizens and others for their sordid political, religious or ethnic advantage. Military historian John Keegan has said the history of war is the history of mankind, and the history of mankind is the history of war.

At the end of the 20th century, and the end of the decades long Cold War, the events in the Balkans, Rwanda and West Africa, particularly Sierra Leone, called for a different — even bold — approach to help seek justice for the millions of victims. The ad hoc and hybrid tribunals created for Yugoslavia, Rwanda and Sierra Leone were successful examples of what could be done when righteous fury is channelled into using the rule of law to hold accountable those who commit international crimes. These courts and tribunals were created with the focused effort and assistance of the United States.

As these efforts worked to seek justice for the crimes committed in Europe, as well as East and West Africa, the international community was working together at the Rome Conference in 1998 in making those experiments in international justice permanent. The United States was a key player in developing what became the International Criminal Court, created to deal with the most egregious international crimes, complemented by the efforts of the various state parties.

As world power shifted, with a diminished United States, in the 21st century, the very country that “built the house” called modern international criminal law stepped away from that house and handed back the keys, perhaps permanently. Since 2002, the United States has had a cynical and skeptical relationship with the International Criminal Court and, ironically, never became a state party …

Read the full article.

David M. Crane is a Syracuse University College of Law Distinguished Scholar in Residence.

Ben Ferencz was a leading force in the establishment of the International Criminal Court and is the last living prosecutor from the Nuremberg Trials.

Hans Corell, a former judge, was the legal counsel of the United Nations from 1994-2004. He was involved in the establishment of the tribunals and courts mentioned in the article.

Gettysburg Staff Ride 2019

Lessons in strategy and leadership for the spring 2019 PAI 739 US Defense Strategy class, with Professor Robert Murrett (April 5-6, 2019).

 

Cora True-Frost Pens OpEd on the Rwandan Genocide Anniversary

What Have We Learned From the Rwandan Genocide?

By Cora True-Frost

(Re-published from U.S. News & World Report | April 4, 2019) This first week of April marks the 25th anniversary of the Rwandan genocide, a three-month long massacre during which Hutu militants killed an estimated 800,000 Tutsis and moderate Hutus after the Hutu president was killed. The international community responded to the atrocities late, and then sought accountability after the genocide by establishing the International Criminal Tribunal of Rwanda (ICTR) to try those most responsible.

The law, and particularly international criminal trials, should teach us about past mistakes.

It is important that we remember the horror of the genocide and reflect on the mistakes made, in order to work toward a more peaceful future. One of the main takeaways from the ICTR’s atrocity trials is that words matter.

The world of the Rwandan genocide may to most people seem far removed from the United States. It does not to me. I am a law professor who grew up an Army brat, often abroad. I graduated high school in Nuremberg in the former West Germany – the site of the famous Nuremberg Tribunal held in the wake of the Holocaust. I know that words matter. Always mindful of the horrors of the Holocaust and the ways that democratic majorities can scapegoat and dehumanize minorities, my professional focus has been in constitutional and international law.

The law, and particularly international criminal trials, should teach us about past mistakes. The legacy of Rwanda’s genocide has some compelling messages for American people about the power of our words, and the danger of hate speech. Few of us are immune to the polarizing media coverage. Our leaders and media pundits use generalizations about cultures and fear-mongering to drive home support for policy in a very profound and impactful way. Creating hate as opposed to understanding will lead to repeat mistakes. This week in particular, we should heed the legacy of Rwanda’s genocide, reminding our nation of what can happen when we don’t identify and speak about the impact that fear has on our united psyche.

We Americans know words matter. We famously have strong free-speech protections. We are outliers in the international community for refusing to penalize hate speech. However, even those of us with the strongest commitments to free speech understand that speech can be dangerous and even constitute incitement …

Read the full article.

Syracuse University Professor Cora True-Frost is an INSCT Affiliated Faculty Member.

After 70 Years, NATO Is Still an Important Alliance

By Robert B. Murrett

(Re-pubished from U.S. News & World Report | April 4, 2019) AS NATO MARKS ITS 70th anniversary this week, we have a good opportunity to take stock of past accomplishments, and at the same time, to look toward the future prospects for this remarkable alliance.

Constructive political and military impact beyond the borders of member states has been a hallmark of NATO since its inception in 1949, and a key factor in its success.

Strong Civilian Leadership

First, it is worth noting on this 70th anniversary that the progress made by NATO is a product of its standing as both a political and military alliance.

On the civilian side, the diplomatic work of the NATO secretary general and the senior representatives from the member nations that comprise the North Atlantic Council is every bit as important as the military dimensions of the alliance.

The civilian leadership of NATO and their policy accomplishments have been a lynchpin of global diplomatic progress, before and after resolution of the Cold War. As examples, the solid, steady diplomatic efforts of the current secretary general, Jens Stoltenberg, the remarkable record of his predecessor, Anders Fogh Rasmussen, and the recent passing of the sixth secretary general, Lord Peter Carrington, are reminders of the exceptional, long-term civilian leadership and political impact of the Alliance.

Political and Military Impact

Second, constructive political and military impact beyond the borders of member states has been a hallmark of NATO since its inception in 1949, and a key factor in its success.

The alliance has continued to reach out and provide a basis for interaction with nations around the world in ways that have consistently advanced dialogue and reduced tensions, through exercises, diplomacy and constructive talks, particularly since the end of the Cold War. One only has to look at the NATO structure of Partnership for Peace, Istanbul Cooperation, and Mediterranean Dialogue countries, as well as other key global partners such as Australia and Japan, to fully understand the NATO’s irreplaceable diplomatic and military impact in advancing security.

For those of us with military careers spanning much of NATO’s history, the alliance has provided the basis for coalition tactics and procedures around the globe, and has been part and parcel of our contributions to peace and security for decades …

Read the full article.

 

INSCT Recognition Ceremony | April 3, 2019

Your Certificate of Advanced Study validation in competence. But rather than simply validating past accomplishment, I see these certificates as validating our belief in your future. Your future potential to do good.

With this certificate you join a line, a cohort, and a network of prior certificate holders—711 in all—who have gone on to serve in virtually every agency in government, in NGOs, in the military, in private practice, and think tanks across the globe. Take advantage of this network of friends and mentors, and if necessary, of help finding your next opportunity.

With this certificate you also mark yourself as someone who wants to make a difference in the life of the country and of the world.

—The Hon. James E. Baker, Director, INSCT

Syrian Accountability Project Releases Report on 2018 Gaza Demonstrations

2018 Gaza DemonstrationsSyracuse University College of Law students working for the Syrian Accountability Project have released an exploratory account of the violence that has occurred along the border of the Gaza Strip and Israel starting in March 2018. “An Endless Tragedy: A Report on the Incidents Regarding Demonstrations in Gaza” examines acts of violence perpetrated by both sides of a conflict that has become known by Palestinians as “The Great March of Return”. The report—supervised by Distinguished Scholar in Residence David M. Crane L’80—has been sent to the United Nations, which continues its own analysis of the conflict through the UN Human Rights Council Independent International Commission of Inquiry, of which Crane is a former member.

“We wanted to inspect the facts because no amount of politicking can erase reality.”

Authored by third-year law students Margaret Mabie and Brandon Golfman, the report covers actions that took place through December 2018. On March 30, 2018, violence erupted along the Gaza/Israel border fence as Palestinians began protesting Israel’s blockade of Gaza and demanding the “right of return” to land lost in the 1948 Arab-Israeli war.

According to the Office of the UN High Commissioner for Human Rights, the ongoing protests—which have continued into 2019—have claimed the lives of 189 Palestinians (with roughly 19,000 injured) and one Israeli soldier. Israel’s use of deadly force—against what it claims are militants aligned with Hamas—was condemned in June 2018 by UN General Assembly Resolution ES‑10/L.23. This resolution calls on Israel to protect Palestinian civilian protesters, to allow humanitarian assistance into Gaza, and to work toward mediation with the Palestinian government.

“We looked at potential crimes committed by all sides in the conflict,” says Mabie, “and we wanted to inspect the facts because no amount of politicking can erase reality. We want the report to be seen as neutral and measured. We weren’t doing the bidding of any side in the conflict.”

The report’s structure, explains Mabie, follows that used by SAP in its reports on the Yazidi Genocide, the gas attack on the Syrian province of Idlib, the Siege of Aleppo, and sexual violence in the ongoing Syrian Civil War.

The Gaza report begins with a historic overview of the conflict between Israel and Palestine and an examination of “Nabka” (the 1948 Palestinian exodus) and “Nabka Day,” which the 2018 demonstrations were intended to commemorate. After an overview of the 2018 protests, the report then provides a highly detailed, day-by-day analysis of the violence in its Conflict Mapping Narrative, which uses open sources and on-the-ground reporting to pinpoint legally relevant acts perpetrated by all sides of the conflict. The narrative is accompanied by a Crime Base Matrix that isolates acts of violence that may constitute war crimes or crimes against humanity, with specific articles of international humanitarian law cited for each act.

At the heart of the report is the question about what differentiates ordinary civic protest from armed, asymmetric conflict. On one side of this question is the fact that the March 30, 2018, demonstration began with “an estimated 30,000 Palestinians gathered at six points along the border to protest Israel’s policy toward Palestine … [many] bussed by Hamas”. The report’s Crime Base matrix for that day notes that “Palestinian protesters hurled rocks at Israeli soldiers and rolled burning tires toward the border fence … [which] served as the predicate act for Israeli use of force against the protesters.”

On the other hand, the June 2018 UN resolution expresses “deep alarm at the loss of civilian lives and the high number of casualties among Palestinian civilians, particularly in the Gaza Strip, including casualties among children, caused by the Israeli forces”. In February 2018, the UN Independent Commission of Inquiry released its own analysis of the Gaza protests, titled “No Justification for Israel to Shoot Protesters with Live Ammunition“.

“An Endless Tragedy” recommends that individuals on both sides of the conflict responsible for alleged war crimes and crimes against humanity should be prosecuted by a domestic court of competent jurisdiction or “failing that, the United Nations Security Council should exercise its authority to submit the matter to the Prosecutor of the International Criminal Court in accordance with Article 13(b) of the Rome Statute.”