Syracuse Law Associate Professor Nathan A. Sales Nominated to Lead US Counterterrorism Bureau

Nathan Sales
Nathan Sales

The White House announced last week its intention to nominate Syracuse University College of Law associate professor Nathan Sales as the State Department’s coordinator for counterterrorism. Professor Sales previously served as deputy assistant secretary for policy at the Department of Homeland Security and as senior counsel in the Justice Department’s Office of Legal Policy

“Professor Sales’ experience serving in high-level government roles, his academic background and overall expertise in national security and counterterrorism make him a strong candidate for this important position,” says Chancellor Kent Syverud. “Professor Sales’ nomination is another instance of Syracuse University faculty playing important roles in shaping public policy, creating change and positively impacting the tone and discourse of our national dialogue.”

Professor Sales, a Duke University Law School graduate, joined the Syracuse College of Law faculty as an associate professor in 2014. He previously served as an assistant professor at George Mason University’s Antonin Scalia Law School.  He teaches and writes in the fields of national security law, counterterrorism law, administrative law and constitutional law.

“It is an honor to be nominated for such a critical position in our government,” says Syracuse Law Dean Craig M. Boise. “As a faculty member in our Institute for National Security and Counterterrorism, Professor Sales is part of an interdisciplinary team that is at the forefront of research and analysis in the fields of national and international security and counterterrorism.  Professor Sales possesses the relevant national security expertise and legal acumen coupled with the international perspective needed to be an effective counterterrorism leader. We look forward to assisting him as he transitions to this important role.”

William C. Banks Presents to NYCLA “National Security in a Cyber World” Course

INSCT Director William C. Banks was one of the distinguished faculty at the June 16, 2017, New York County Lawyers Association Continuing Legal Education Institute short course “Cyber Warfare, Fake News, Corporate Data Collection, Wikileaks, Hacks, and Immigration: National Security in a Cyber World.”

The program informed members of the public, lawyers, corporations, and national security practitioners about the latest developments in the area of national security. Banks’ “conversation with the author” discussed his latest book, Soldiers on the Home Front. Other topics addressed in a busy schedule included:

  • ‘The Refugee Threat to National Security: Real or Hyped?
  • Are Cybersecurity Attacks Warfare?
  • Is Hacking Espionage or Warfare?
  • Data, Big Data, Metadata, and Game Theory
  • Data and Goliath: The Hidden Battles to Capture Your Data and Control Your World
  • The Role of the Media in the World of Fake News
  • Balancing Counterterrorism, Immigration, National Security, and Safety
  • Does Miranda Still Apply in National Security and Public Safety Cases?
  • Cyber Insurance, Data Protection, and Lawyers’ Ethical Obligations
  • Data Breach and Ransomware Demonstration

Banks will be joined by Program Chair Mark B. Rosen, John Jay College of Criminal Justice; Brig. Gen. (Res.) Eli Ben Meir, Israeli Defense Forces Intelligence Corps; John Cronan, Chief, Terrorism and International Narcotics Unit, US Attorney’s Office Southern District of NY; Colleen C. Piccone, Associate Chief Counsel, US Customs and Border Protection; Bruce Schneier, Chief Technology Officer, IBM Resilient; and Patrick Toomey, ACLU National Security Project, among others.

 

It’s Time to Address the Real Motive in Westminster, Manchester, and Now London: Sectarian Hatred in Our Own Back Yards

By Corri Zoli

(Re-published from The Huffington Post | June 9, 2017) Within 12 hours of the London Bridge attacks on June 3, 2017, Prime Minister Theresa May finally said “enough is enough” and called for an explicit, unapologetic focus on Islamist extremism, which is being incubated in far too many British enclaves—in London, Birmingham, Manchester, and elsewhere.

Admitting what British-based security critics have long known—that “there is far too much tolerance of extremism in our country”—May even asserted “the superiority” of pluralistic British civic values. Better late than never, perhaps, but it is still worrisome that it took the UK government three attacks in under three months, with 30 dead, 10 of whom were under 20 years old, to remember that this (and most) nation’s civic values are better than the jihadists’.

Our prevailing logic—exemplified in the The New York Times—has been exactly backwards. After terrorist attacks, victims of terrorism need not exercise “maximum vigilance” lest we all fall prey to “divisive ethnic, racist and religious hatreds.” It’s extremists who promote and use violence and who are beset by hatred. Salman Abedi killed British teenagers because he views them through a prism of prejudicial hate—their “Western” ethnicity, British nationality, assumed religious beliefs, and secular lifestyles (young girls enjoying music in public). ISIS made this case in Dabiq, “Why We Hate You & Why We Kill You,” just as London Bridge attackers fanned out from their low-tech terrorist van, as per ISIS instructions, to murder pedestrians on the open street. Such bigotry is thus operationalized not only to spread hatred but to kill.

It is time to name the sectarian hatred—against Western culture, minority religions, ethnic groups, gender and sexual identities, and others—that motivates much global terrorism and defines thousands of Islamist organizations. Policymakers who tell us “we will not be divided” are like Alice in Wonderland’s white rabbit—too late. Each attack brings officials who have tumbled down the rabbit hole of confused logic and policy, imploring the public that the best response to murderous hate is unity—something victims never contested. Suspects are scooped up by law enforcement in a brief frenzy, while weaponized systems of sectarian hatred in neighborhoods and networks are left to fester.

Ordinary people are plotted against as “soft targets,” neighbors and family desperately report radicals to authorities that demur, and victims are lectured to by helpless politicians who defend failed policies as the new normal (it’s not). Meanwhile, pub and concert goers, tourists, and school teachers pay the price for authorities’ failed understanding, as they fight off strategic killers in public places with chairs and bottles, while forced to play battlefield medics, using shirts as tourniquets for mortally wounded compatriots.

Thankfully, this empty narrative and emptier policy response is eroding, largely due to public pressure …

To read the whole article, click here.

 

A Darkened Age—The Rule of Law in Protecting Morality and Humanity

By David M. Crane

There is a growling of a discontent, an unrest, just below the surface, festering ready to erupt into a boil of frustration. The salve of the rule of law diluted or unavailable. The world today shifts to the right or spins helpless, struggling to find an anchor, a safe harbor in which to balance itself.

“The world wobbling, citizens looked to new political leaders who promised to restore greatness, an elusive idea that cannot be attained alone in this new century.”

There is no light towards which we can step towards, hopeful that mankind is moving in a direction that is right and proper. Our kaleidoscopic future looms, where tried and true customs and norms shrink from this new thinking of looking inward and away from a global village that was beginning to change the world stage.

In another context we have been here before. For 50 years we saw a stasis that saw the rise of the dictator. The Cold War was a desperate time trying to maintain a balance that would avoid Armageddon. Death and destruction by heads of state against their own citizens was rampant, with little checks against internal struggles. Mankind simply looked the other way as long as loyalty towards one side or the other was maintained. Tens of millions perished, disappearing into the sands of time forgotten as if they never existed.

As the Cold War ended there was a sense of optimism that we had changed for the better, the rule of law began to take hold, the UN taking its intended position of guiding the international community [PDF] towards a real peace and security never attained before. Tyranny shrank before this blinding light and dictators faced accountability. The new millennium held promise, more so than any other millennial event.

It all came crashing down with the towers on September 11, 2001. A fundamental shift took place, at the time seemingly correct, wrapped in a ragged cloth of righteous fury. But the pain of that day stripped away our innocence, our hope, our desire to build a global village where all mankind would benefit. America turned into itself, seemingly trying to lead, to fight against a new and elusive adversary, yet chasing its tail against itself. American civil liberties were challenged. The world watched and stepped away, subtly looking for other leadership and other ways to survive in a world of struggle with a weakened America, the loss of a land that was a bright and shining light that dimmed, barely visible in the storm of extremism that blew across the world.

To survive nation-states began to look for their own solutions seeking new directions. Major international institutions such as the UN, the North American Treaty Organization (NATO), the European Union (EU) and the International Criminal Court (ICC) shrank in influence against the onslaught of that extremism. There seemed to be no solutions that were viable. The world wobbling, citizens looked to new political leaders who promised to restore greatness, an elusive idea that cannot be attained alone in this new century. The rise of the nationalistic right a desperate attempt to grasp hold of the fog of this new kaleidoscopic world …

To read the whole article, click here.

The Bodyslam Heard Round the World: William C. Banks Discusses Greg Gianforte With Business Insider

We asked legal experts if Greg Gianforte can serve in Congress if he’s convicted of assault in reporter ‘body-slam’ case

(Business Insider | May 26, 2017) A day after Montana Republican Greg Gianforte won his state’s seat in the US House of Representatives, questions swirled about the fate of his term, before it even begins.

Gianforte was cited for misdemeanor assault on Wednesday after a reporter said he was “body-slammed” by Gianforte while the reporter tried to ask him a question about the Congressional Budget Office’s rating of the American Health Care Act.

Business Insider asked three legal experts this question: “Can Greg Gianforte legally serve as Montana’s representative if he is convicted for assault?” …

… Banks told Business Insider the US Constitution does not stop “a convicted member of Congress from continuing to serve, even for felony convictions, short of treason.” The only barrier Gianforte could face is if he is jailed for a term of two or more years. The charge he is facing in Montana, however, is punishable by up to six months in jail.

But if that were to happen, House regulations would bar Gianforte from participating in votes. If that were the case, he could potentially “lose committee ranking or chair positions under party rules,” Banks said. However, it is unlikely for Gianforte to be sentenced to two or more years in prison for a misdemeanor assault, so those terms likely wouldn’t apply …

To read the whole article, click here.

William C. Banks Included in Law.com’s Review of the Special Counsel Appointment

The school year is already over at many law campuses across the country, but plenty of legal academics are staying busy helping the media and public decode Robert Mueller’s appointment last week as special counsel. Mueller is tasked with investigating President Donald Trump’s alleged ties to Russia, that country’s interference in the 2016 election, and Trump’s dismissal of James Comey as director of the Federal Bureau of Investigation.

News outlets large and small have called on law professors to explain the history and role of special prosecutors, the challenges and limitations they face, and to forecast what it all might mean for the future of the Trump presidency. Here’s a sampling of what they’ve had to say.

Is Mueller good news or bad news for Trump?

“Nobody can point me to a statute that would be violated. And a prosecutor is only allowed to look for evidence of a federal crime. And the reason I think Trump may benefit from this is this will be a secret proceeding. Mueller is a very honorable guy, so he’s not going to leak anything. And in the end, he’s going to find no crime.”

—Alan Dershowitz, professor emeritus at Harvard Law School, speaking on Fox News.

“I think it in one sense it is bad news for Trump and it is good news for people who want a robust investigation because Mueller is definitely a straight shooter and he has a good reputation as an FBI director. It means that the investigation goes on. It is not going to be stopped and it also means that the deputy attorney general doesn’t want to do Trump’s bidding on this.”

—Jens David Ohlin, a professor at Cornell Law School, on CNN.com.

A historical look at special counsel, and its limitations

“So we have a long history of appointing these counsels in the hope that they’re going to get to the bottom of something. What we end up doing is maybe someone lies to investigators—and you shouldn’t lie to investigators, and that’s fine. They may be punished. But for the underlying crime, we often never do find what went on or if it was a crime at all.”

—Stephen Carter, a professor at Yale Law School on NPR’s Weekend edition.

“Appointing special counsel Robert Mueller to probe Russian meddling in the 2016 election (and any possible ties to President Trump’s campaign) was the only choice the Justice Department had. … But it’s also a highly imperfect solution, because it doesn’t foreclose the possibility of political interference in the investigation. The rules provide only so much protection: Congress, Trump and the Justice Department still have the power to stymie (or even terminate) Mueller’s inquiry.”

—Neal Katyal, Hogan Lovells partner and professor at Georgetown University Law Center in a Washington Post op-ed.

 “No one’s going to jail as a result of what the commission does but they could with a prosecutor. Congress has the power to investigate but power to prosecute is in the Executive Branch.”

—William C. Banks, a professor at Syracuse University College of Law in Time.com … 

To read the whole article, click here.

 

Need to Know: David M. Crane Explains Security Clearances & Classification with Spectrum

Security Gaffes in the White House Cause Intelligence Expert Grave Concern

(Spectrum | May 22, 2017) This is a special edition of SPECTRUM featuring intelligence expert, David Crane. The way President Trump is dismissive of “intelligence briefings” and makes disclosure decisions without prior consultation with intelligence experts causes grave concern to a long time security veteran.

Recently, the news has focused on security gaffes in the White House. Some reports have said that President Trump gave the Russians intelligence information that was classified at the highest level of secrecy.

It is reported, by Trump’s National Security Advisor, that he made the decision to do so “on-the-spot” without any prior consultation with his security team. His National Security Advisor H.R. McMaster said at a press briefing that before making the disclosures, the President did not know the source of the information or from where the information came.

Although McMaster claims the President’s disclosures to the Russians were “wholly appropriate,” many experts question the wisdom of such spur-of-the moment Presidential decisions to share highly secretive information without consulting with the security team first.

To understand exactly what happened and what the “intelligence terminology” we hear means, we’ve called in an expert — David Crane.

Crane spent over three decades in top-level Intelligence work for the government. He helped create and was the founding director of the Office of Intelligence Review in the Department of Defense. He is an international law specialist and has acted as a prosecutor of war crimes for the United Nations.

Crane is very concerned about how this Administration is handling intelligence and what the dire ramifications could be. He is troubled by the President’s seemingly casual attitude about “intelligence” and his dismissive policies toward “briefings” by veteran intelligence officers. He also describes how the President’s mishandling of critical information can put other countries and individuals in jeopardy as well as the United States.

http://www.npr.org/podcasts/486931216/spectrum

Explaining the Special Counsel: William C. Banks Speaks to Factcheck.org

Special Counsel Q&A

(Factcheck.org | May 19, 2017) On May 17, the Justice Department announced the appointment of former FBI Director Robert S. Mueller III as special counsel to investigate any possible collusion between the Trump campaign and the Russian government’s efforts to influence the 2016 presidential election.

Trump responded by calling the investigation a “witch hunt.”

Banks said they all have the same core function: to investigate and prosecute possible violations of criminal law by officials of the federal government.

At a May 18 press conference, Trump said: “Well, I respect the move, but the entire thing has been a witch hunt. And there is no collusion between certainly myself and my campaign — but I can always speak for myself — and the Russians, zero.”

Deputy Attorney General Rod Rosenstein made the decision to appoint a special counsel just days after Trump fired FBI Director James Comey. Comey told Congress on March 20 that the FBI had opened an investigation last July into “the Russian government’s efforts to interfere in the 2016 presidential election, and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts.”

Amid ongoing investigations by the FBI and House and Senate intelligence committees, what exactly does the appointment of a special counsel mean? Here we answer some questions that readers may have.

Who appoints a special counsel?

The appointment of a special counsel typically is the decision of the U.S. attorney general. But in this case, Attorney General Jeff Sessions recused himself from the Russia inquiry after it was revealed that he had met twice with Russian Ambassador Sergey Kislyak during the presidential campaign and did not disclose the meetings during his Senate confirmation hearing. In such cases of recusal, the power to appoint a special counsel falls to the “acting attorney general,” in this case, Deputy Attorney General Rod Rosenstein. According to the Code of Federal Regulations, a special counsel is appointed for an investigation into a matter that “would present a conflict of interest for the Department [of Justice] or other extraordinary circumstances” or in cases when it “would be in the public interest” to have an outside counsel …

… Can Mueller be fired?

Yes, but not by the president, at least not directly. Only the acting attorney general — in this case, Rosenstein — can discipline or fire a special counsel, and then only for cause. According to the federal code, “The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” The president can, however, fire the deputy attorney general.

What authority does a special counsel have?

A special counsel has the same authority as any federal prosecutor, William Banks, a professor and the founding director of the Institute for National Security and Counterterrorism at Syracuse University, told us in a phone interview. That includes access to classified documents. It also includes the authority — if deemed appropriate — to subpoena, say, the president’s tax records …

… How common is the appointment of a special counsel?

According to the Lawfare blog, this is only the second time a “special counsel” has been appointed under this specific regulation. The first was in 1999 when Attorney General Janet Reno appointed former Sen. John Danforth to lead an investigation into the federal law enforcement raid of the Branch Davidian compound in Waco, Texas. But as Lawfare explained, past attorneys general have used “different authorities to appoint other special counsels — like Nora Dannehy, appointed in 2008 to investigate the firing of U.S. Attorneys, Patrick Fitzgerald, tasked with leading the investigation into the Valerie Plame affair, and John Durham, who investigated the alleged abuse of suspected terrorists by CIA interrogators.” Those are wholly different from “independent counsels” such as Kenneth Starr, who investigated the Whitewater scandal during Bill Clinton’s presidency. Starr’s investigations were carried out under the Ethics in Government Act, which was enacted in 1978 after the Watergate scandal. But that law expired in 1999.

Lawfare and a Congressional Research Service report go into some detail about the differences between the variations of special counsels, independent counsels and special prosecutors over the years. But Banks said they all have the same core function: to investigate and prosecute possible violations of criminal law by officials of the federal government. And they have been all too common in American history.

To read the full article, click below:

Special Counsel Q&A

Tremendous Integrity: William C. Banks Discusses Robert Mueller’s Appointment with Bloomberg

Robert Mueller Garners Bipartisan Support in New Role

Former Massachusetts Governor and principal and ML Strategies William Weld and William Banks, director of the Institute for National Security and Counterterrorism at Syracuse Law School, discuss the selection of Robert Mueller to lead the Justice Department investigation into Russian interference in the U.S. Presidential election. They speak June Grasso and Greg Stohr on Bloomberg Radio’s “Bloomberg Law.”

https://www.bloomberg.com/news/audio/2017-05-18/robert-mueller-garners-bipartisan-support-in-new-role-audio