In Hot Water: Bloomberg Speaks to William C. Banks About President Trump’s Latest Legal Issues

(Bloomberg Law | Aug. 10, 2018) William Banks, a professor at Syracuse University Law School, discusses the latest in the negotiations between President Trump’s legal team and Robert Mueller over a sit-down meeting between the President and the special counsel. He speaks with Bloomberg’s June Grasso on Bloomberg Radio’s “Politics, Policy, Power and Law.”

https://www.bloomberg.com/news/audio/2018-08-14/trump-lawyers-send-counteroffer-to-mueller-audio

New Battlefields/Old Laws 2018—When Disaster Hits: Threats, Preparedness, and Legal Gaps

New Battlefields/Old LawsThe 2018 edition of INSCT’s signature initiative New Battlefields/Old Laws will take place at the World Summit on Counterterrorism, to be held Sept. 3-6, 2018, at the Institute for Counter-terrorism (ICT), Herzliya, Israel.

Co-chaired by Professor Emeritus William C. Banks and Professor Daphné Richemond-Barak, Head of International Humanitarian Law Desk Law and Security Program, ICT, the theme of this year’s multi-disciplinary NBOL workshop—on September 5—is “When Disaster Hits: Threats, Preparedness, and Legal Gaps.”

The workshop will investigate multiple facets of law and policy responses during and after major natural and human disasters. Papers will address disaster governance, cyber disasters, responding to health epidemics and pandemics, and “disaster law,” or the analysis of gaps in national security and international law that disasters can expose.

ICT’s annual international summit is the largest and one of the most influential events in the field of counterterrorism. Bringing together academics, scholars, law enforcement officials, and decision-makers, this year the summit will convene around the theme of difficulties liberal democracies face in combatting terrorism, such as striking a balance between democratic values and security.

“Countering terrorism by developing solutions to these dilemmas is not just a strategy, but a true art. This year’s conference will delve into the ‘Art of Counter-Terrorism,'” the workshop organizers write. Five themes will help to highlight the challenges of combatting terrorism: Assessment and Response; Rationale and Rationality; Motivation and Capability; Terrorism and Democracy; and Recovery and Resilience.

Read more about the ICT workshop.

 

“Machine-Driven Mistakes”: William C. Banks Speaks to Fifth Domain About the IG Report on NSA Surveillance

NSA criticized for ‘increased risk’ of jeopardizing civil liberties

(Fifth Domain | July 25, 2018) The National Security Agency is at an “increased risk” of jeopardizing civil liberties and the privacy of American citizens, according to an inspector general report that comes just months after a controversial program that collects emails and phone calls was extended.

“A fair amount of it was apparently mechanical or machine-driven mistakes.”

The NSA watchdog said that agency analysts performed “noncompliant” searches using the organization’s Foreign Intelligence Surveillance Act Authority, which were caused by “human error, incomplete understanding of the rules, and gaps in guidance.”

According to the report, which covered the period from October 1, 2017, to March 31, 2018 the unauthorized searches were related to the FISA’s counterterrorism authority.

“This has been going on for some time,” said William Banks, a law professor at Syracuse University. He said that noncompliance was a heated topic when the section 702 of the FISA act was reauthorized earlier this year. “A fair amount of it was apparently mechanical or machine-driven mistakes … you would expect it might take the better part of a year for improvement in implementation to show results.”

Previously, privacy groups have raised issue with the noncompliance searches of digital and electronic records …

Read the whole article.

 

David M. Crane Appointed Chair of UN Commission on Alleged Violations During Palestinian Protests

See also: UN picks American to lead investigation into Gaza protest killings (Reuters | 7.25.18)

Syracuse University College of Law and Professor of Practice and INSCT Faculty Member David M. Crane has been appointed Chair of a United Nations Human Rights Council Independent International Commission of Inquiry into alleged violations of international law “in the context of large-scale civilian protests in the Occupied Palestinian Territory” that occurred during May 2018.

The protests—primarily in Gaza and East Jerusalem—came in the wake of the announcement that the United States would move its embassy to Jerusalem and coincided with the 70th anniversary of Nakba (the 1948 Palestinian Exodus).  The Guardian noted that May 14, 2018, was “the bloodiest day in Gaza since the 2014 war”. At the time, The Guardian reported, other UN human rights bodies—including UN Committee on the Elimination of Racial Discrimination—urged Israel to halt “excessive force” against Palestinian protesters, and Amnesty International accused Israel of violating international law. 

In his letter of appointment to Crane, UNHRC President Vojislav Šuc observed that the Commission has been formed as a result of the UNHRC Resolution S-28/1. In the Resolution, the Council decided “to urgently dispatch an independent, international commission of inquiry, to be appointed by the President of the Human Rights Council.” 

The Resolution grew out of a May 18 Special Session of the UNHRC, at which UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein called attention to the “[a]ppalling recent events in Gaza.” She explained to the Council that, “Since … protests began on 30 March, 87 Palestinians have been killed by the Israeli security forces in the context of the demonstrations, including 12 children; 29 others, including three children, were killed in other circumstances. And over 12,000 people have been injured, more than 3,500 of them by live ammunition.”

Resolution S-28/1 also “Calls upon Israel, the occupying Power, and all relevant parties to cooperate fully with the commission of inquiry and to facilitate its access, requests the cooperation, as appropriate, of other relevant United Nations bodies with the commission of inquiry to carry out its mission.”

“The focus of the investigation is to be open minded, fair, and neutral,” says Crane.

The two other members of the Commission of Inquiry will be Sara Hossain, a Bangladeshi lawyer, and Kaari Betty Murungi, a Kenyan lawyer and human rights activist. The commissioners have been asked to convene a meeting in Geneva, Switzerland, “with a view to agreeing on terms of reference and methods of work, establishing contacts with relevant stakeholders, and preparing [a] programme of work.”

Read the press release.

“Probability of a Possibility”: William C. Banks Explains the FISA Warrant Process to NBC News

Why Team Trump is wrong about Carter Page, the dossier and that secret warrant

(NBC News | July 23, 2018) Mueller’s Russia probe wasn’t launched because of Carter Page, and the dossier compiled by an ex-spy was only part of the evidence cited to get a warrant.

President Donald Trump and his allies are claiming that the partial contents of a secret national security FISA warrant, released Saturday, vindicate their claim that special counsel Robert Mueller’s Russia investigation was improperly launched on the basis of a speculative opposition research document paid for by Democrats.

The Trump camp says the probe has its roots in the “Trump dossier” compiled by former British spy Christopher Steele, which alleges collusion between the Trump campaign and Russia.

“So we now find out that it was indeed the unverified and Fake Dirty Dossier, that was paid for by Crooked Hillary Clinton and the DNC, that was knowingly & falsely submitted to FISA and which was responsible for starting the totally conflicted and discredited Mueller Witch Hunt!” the president wrote in a tweet Monday morning.

Trump also continues to suggest that the electronic surveillance of his one-time campaign aide, Carter Page, which was authorized by the FISA warrant, launched the Russia probe.

Both of these assertions are false.

Here is why …

National security experts who have reviewed the document say that even the parts that aren’t blacked out contain more than enough information to provide a judge reason to rule that the FBI had probable cause to believe that Page was an agent of Russia.

Probable cause is much lower than the reasonable doubt the standard required to convict someone of a crime. “It’s the probability of a possibility,” said William Banks, director of the Institute for National Security and Counterterrorism at Syracuse University College of Law. Page had already appeared on the FBI’s radar as a target of Russian intelligence recruitment in a separate spy case. He has acknowledged that he traveled to Moscow and met with Russian officials during the 2016 campaign. It would have been malpractice for the FBI, confronted with allegations that Page was helping the Russians, not to investigate, Figliuzzi says …

The FBI disclosed to the court that Steele was paid by people seeking to discredit Trump. But the FBI viewed Steele as credible.

“They dealt with the Steele stuff in an extensive footnote with bolded language,” Banks said. The note didn’t disclose that the dossier was paid for by Democrats because the document didn’t use any names or identities. It called Trump “Candidate 1” even after he was elected president. But the note did say that the dossier appeared to be funded by people seeking to discredit Trump.

In addition, Steele was seen not as a partisan operative, but as a credible source, according to the warrant. The document doesn’t say this, but Steele had helped the FBI for years, including providing crucial information in the U.S. investigation of corruption in international soccer.

Read the complete article.

 

“A Slow Check & Balance”: Newsweek Speaks to William C. Snyder About SCOTUS & Presidential Power

BRETT KAVANAUGH HAS POWER TO STRENGTHEN DONALD TRUMP, BUT SUPREME COURT HAS BOOSTED PRESIDENTS FOR DECADES

(Newsweek | July 20, 2018) Supreme Court nominee Judge Brett Kavanaugh’s opposition to a sitting president potentially facing an indictment, as well as the court’s lengthy history in bending the Constitution to favor a president’s powers, could raise as much concern among opponents of President Donald Trump’s nominee as his potential threat to abortion rights.

But as Snyder noted, the court is “retroactive” and thus reactionary. And that leaves it beholden to the actions taken by a president.

For a president who has openly flaunted what he believes is the power to pardon himself, Trump may have taken into account Kavanaugh’s views on executive power and how much power the U.S. Constitution places in the president.

The nominee’s belief in presidential power may even extend to criminal prosecutions. Kavanaugh, who Monday said would “keep an open mind in every case,” distinctly laid out his view over whether a sitting president should face criminal charges while in office in 2009 for the Minnesota Law Review. He based the interpretation on his experience with George W. Bush’s administration …

… Many of these decisions by the court would suggest the judiciary often bows to the executive branch, but William C. Snyder, Teaching Professor at Syracuse Law School and expert on federal courts, disagreed.

“Our federal courts are reactive. They only respond to actual cases and controversies. So, they seem to be a slow check and balance in a world that moves fast. But, the Supreme Court does come around,” Snyder told Newsweek in an email.

But as Snyder noted, the court is “retroactive” and thus reactionary. And that leaves it beholden to the actions taken by a president, one who Snyder admits could have ulterior motives.

“Yes, it may well be that this president is more concerned with finding a justice who will uphold executive power in general than with finding one whose position on a particular policy or right matches his own,” Snyder said. “[T]his president is known to shift his own positions, so a justice who would uphold executive power, in general, would be more useful to him.”

Read the whole article.

 

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

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

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

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

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

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

Overall Approach to Commissions Moving Forward: Reform or Repeal?

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

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

Options for improving US military commissions

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

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

Alternatives to Commissions

Participants also considered alternatives to commissions, including prosecution

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

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

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

New Entrants

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

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

The “End of Conflict” and a New AUMF

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

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

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

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

The Stain of Torture

By David M. Crane

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

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

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

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

How Did We Get Here?

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

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

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

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

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

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

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

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

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

Read the whole article.

David M. Crane to Speak on Yemen Crisis at Stimson Center Event

David Crane Stimson CenterINSCT Faculty Member David M. Crane will join other distinguished international law scholars and practitioners at “Crisis in Yemen: Accountability and Reparations,” an event designed to bring the world’s attention to a growing humanitarian disaster in this Middle East nation.

The panel discussion takes place at The Stimson Center in Washington, DC, on June 26, 2018, from 10 a.m. to 1:30 p.m. The simulcast can be viewed here.

Sponsored by the American Society of International Law, the Stimson Center, and the Washington Foreign Law Society, the panel also features Stephen Rapp, Former US Ambassador-At-Large for War Crimes; Mark Agrast, Executive Director, American Society of International Law; and Sarah Leah Whitson, Executive Director, Middle East and North Africa Division, Human Rights Watch, among others. View the full list of panelists here.

The Yemen Civil War, which had its roots in the political upheaval of 2011-2012, has since turned into a complex conflict among a central, recognized government and its powerful Saudi-led allies, an alternative government in the country’s north backed by Houthi rebels, and several terrorist groups.

Escalating in 2015, the civil war has created the world’s worst humanitarian crisis. An estimated three quarters of the civilian population have been affected by the devastation from warring parties on all sides. Death, disappearances, detentions, torture, displacement and famine are ravishing the country. A cholera epidemic is being exacerbated by raids on civilian populations.

Meanwhile, critical ports for delivery of food and medicines have been blocked. Arms and deadly munitions, funded by the US and UK, have proliferated. Secret prisons established inside and outside the country are detaining countless numbers of civilians, women, children, and aid workers.

The panel of experts, led by Rapp and Crane, will assess the situation on the ground in this stage of the Yemen crisis, and propose solutions drawn from fundamental international laws and standards.

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

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

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

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

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

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