William C. Banks Publishes 2019-2020 Supplement to National Security Law & Counterterrorism Law

National Security Law Sixth Edition & Counterterrorism Law Third Edition, 2019 Supplement. Wolters Kluwer, 2019. (With S. Dycus, P. Raven-Hansen, & S.I. Vladeck)

Write authors William C. Banks, Stephen Dycus, Peter Raven-Hansen, and Stephen I. Vladeck, it is an increasingly Herculean task to stay abreast of developments in our field, given their dizzying pace and substantive breadth.

Even with new editions of National Security Law and Counterterrorism Law slated for publication in Spring 2020, the 2019–2020 Supplement will help students and teachers stay up to date during the coming academic year.

By including the most important recent cases, legislation, and executive branch actions, the new Supplement also underscores the critical work that lawyers do to keep this nation both safe and free.

Recent developments addressed in the 2019-2020 Supplement:

  • Fallout from the Mueller Report
  • U.S.-Mexico border wall, emergencies, and related issues
  • Russian interference in U.S. elections
  • Congressional access to Executive Branch information
  • The next generation of Guantánamo litigation

Visit the Wolters Kluwer webpage.

National Security

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William C. Banks Publishes on “Hybrid Threats, Terrorism, and Resilience Planning”

Hybrid Threats, Terrorism, and Resilience Planning. International Centre for Counter-Terrorism Perspective (2019). (With K. Samuel.)

We live in an inter-connected, inter-dependent world, not only in digital spaces, but increasingly between the physical and digital worlds. While our inter-connectedness and the accompanying rapid technological change bring with them widespread societal benefits, they can also deepen existing vulnerabilities and create new ones, such as in relation to critical infrastructure interdependencies. These technology-rich and highly dynamic circumstances can be exploited by those with criminal and malicious intent, including terrorists, with potentially extensive and catastrophic consequences, as the 2017 WannaCry cyber-attack with global reach, which nearly brought the United Kingdom’s National Health Service to its knees, illustrated.

We will illustrate this ironic confluence of good news/bad news by focusing on hybrid threats posed by cyber technology to critical national infrastructure. Our op-ed begins by briefly examining the concept of hybrid threats, before examining how they are materialising in the cyber world. The discussion then turns to examining how best to counter hybrid threats to our Critical National Infrastructure (CNI). We propose the development of more dynamic, integrated and innovative resilience planning solutions beyond those that currently exist.

The Concept of Hybrid Threats

Hybrid threats posed by state and non-state actors are expected by many to increasingly challenge countries and institutions globally. In 2016, this recognition led to the creation of the European Centre of Excellence for Countering Hybrid Threats (Hybrid CoE), which recognises diverse and wide-ranging forms of terrorism as a potential source of hybrid threats. The Hybrid CoE has defined a hybrid threat in the following terms:

  • Coordinated and synchronised action, that deliberately targets democratic states and institutions systemic vulnerabilities, through a wide range of means;
  • The activities exploit the thresholds of detection and attribution as well as the different interfaces (war-peace, internal-external, local-state, national-international, friend-enemy);
  • The aim of the activity is to influence different forms of decision making at the local (regional), state, or institutional level to favour and/or gain the agent’s strategic goals while undermining and/or hurting the target.

As the broad parameters of this definition reveal, hybrid threats can take a multitude of diverse forms. They can pose many practical and legal challenges too, such as how to detect, investigate, and attribute them in order to identify and bring to account their perpetrators, whether state or non-state actors … MORE

 

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Through INSCT, Syracuse University Joins Program to Diversify Intelligence Field

(Re-published from The Daily Orange | Sept. 16, 2019) Ebrar Mohammad, a recent Syracuse University graduate, wants to work for the FBI.

The FBI places employees based on need, but Mohammed hopes to stay in Syracuse. She wants to pursue an additional degree through a new SU program that promotes diversity in the intelligence field.

“If I eventually get an interview with the FBI, I plan to ask if it’s something they’d be willing to support,” she said. “Getting an advanced degree from a program like this would be an amazing opportunity.”

In June, SU was named an Intelligence Community Center of Academic Excellence. This designation includes a $1.5 million grant to increase diversity through intelligence field education initiatives and recruitment.

SU’s program is called the Partnership for Educational Results/Syracuse University Adaptive, Diverse and Ethical Intelligence Community Professionals, or PER/SUADE. It will partner with four other universities, one of which is a historically black university.

“Just the fact that we have students from all around the world, where else can you find that much diversity with people that are academically minded?” Mohammad said of SU.

In 2004, the Intelligence Reform and Terrorism Prevention Act mandated increased diversity in the intelligence. A year later, the national Intelligence Community Centers of Academic Excellence program began, which focuses on students from underrepresented groups, women, students with disabilities, rural students and military students.

According to a 2018 report from the Office of the Director of National Intelligence, racial minorities make up about 26% of intelligence community employees. Women make up 39% of intelligence community employees, and people with disabilities make up 11%.

“The goal of the grant is to diversify the pipeline going into the federal government and the national security fields,” said Corri Zoli, director of research at the Institute for National Security and Counter Terrorism. “We looped in diversity in very cutting edge and innovative ways, so that diversity is not just ethnicity or demographic diversity.”

Over the course of five years, the SU program will add a major, minor and certificate of advanced study, as well as graduate and doctorate degrees, said Vice Admiral Robert Murrett, deputy director of INSCT. Two of the program’s classes will be available for undergraduates in spring 2020, said Murrett.

SU’s program includes 10 “work streams,” or disciplines, related to the intelligence field. About 20 faculty and staff from different schools, colleges and offices across campus will be part of the program’s education initiative …

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William C. Banks Joins ICT Panel on “When Conflicts End & How”

Professor Emeritus William C. Banks recently joined colleagues on an Institute for Counter-Terrorism (ICT) World Summit panel entitled “When Conflicts End & How: ISIS as a Case Study”. The panel—the inaugural meeting of “The End of War Project”—took place on Sept. 19, 2019, as part of the 19th World Summit. Offered in memory of long-time INSCT supporter Gerald Cramer ’52, H’10, Banks opened the panel with a remembrance of Cramer’s life and career.

When Conflicts End & How: ISIS as a Case Study

The End of War Project Inaugural Meeting
In cooperation with Emory Law School

Chair: Dr. Daphné Richemond-Barak, Senior Researcher and Head, IHL Desk, ICT & Assistant Professor, Lauder School of Government, IDC Herzliya, Israel
  • Scott Allan, Senior Strategist, Bureau of Counter-Terrorism, US Department of State
  • William C. Banks, Founding Director, Institute for National Security and Counterterrorism
  • Laurie Blank, Clinical Professor of Law & Director of the International Humanitarian Law Clinic, Emory University School of Law
  • Brian Michael Jenkins, Senior Advisor to the President, RAND Corporation
  • Assaf Moghadam, Director of Academic Affairs, ICT, and Associate Professor and Director of the M.A. Program in Government, Lauder School of Government, Diplomacy, and Strategy, Herzliya, Israel

End_of_War_Project_2019

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Professor William C. Banks Comments on Southern Border Wall Funding for Vox

Trump is taking money from Puerto Rico’s recovery and European security to fund his wall

(Vox | Sept. 5, 2019) A National Guard readiness center in Puerto Rico. A hazardous material storage building on a US military base in Germany. A training facility for special operations forces working to deter Russia in Europe. Upgrades at the US Military Academy in West Point, New York.

Those are just some of the 127 affected military construction projects that will be defunded and delayed so President Donald Trump can build roughly 175 miles of wall on the southern border. In total, construction efforts in nearly half of all 50 states — as well as 19 countries, three US territories, and some classified locations — will have their funding diverted to pay for the barrier.

The Trump administration announced last February it would find $3.6 billion from previously approved military construction projects to fund the wall effort. But it wasn’t until Defense Secretary Mark Esper’s letter outlining the funding diversions was released to the public on Wednesday evening that the full scope of the financial diversion became clear …

… The growing fury means it’s possible Democrats in Congress might try to block the move — which means a bruising political fight could be around the corner.

“The battles will be more political than legal,” William Banks, an expert on national security law at Syracuse University, told me. “It’s possible for Congress to enact — over a veto — funding restrictions on this or new funds that the president wants or needs. There’s lots of horse trading to come” …

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Corri Zoli Comments on Foreign Countries’ US Travel Warning

Japan joins list of countries warning of U.S. travel, Venezuela lists Tennessee city

(WZTV Nashville, TN | Aug. 7, 2019) Japan has joined a list of countries issuing travel alerts for the United States in the wake of two mass shootings over the weekend.

The country of Venezuela warned their citizens to avoid cities they called the “20 most dangerous in the world,” based on a report from Forbes Magazine. Among the cities listed are Memphis, Tennessee, Birmingham, Alabama, and Atlanta, Georgia …

… A national security expert from Syracuse University called the travel advisories likely political in nature. Corrine Zoli, Director of Research for the university’s Institute for National Security and Counterterrorism says “there is likely a political message embedded in especially Venezuela’s travel alert in light of President Trump’s announcement on Monday of expanding US sanctions, which will freeze all Venezuelan government assets and ban all Americans from doing business with Maduro’s administration.”

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William C. Banks Helps CNN Fact-Check the President

Donald Trump made 78 false claims last week

CNN | July 30, 2019

Article II of the Constitution

“Then I have an Article II, where I have the right to do whatever I want as President.” — July 23 speech at Turning Point USA’s Teen Student Action Summit

Facts First: Article II of the Constitution, which outlines the powers of the executive branch, does not grant the president the ability to do “whatever” they want.

“The President’s assertion is false, by a long shot,” said William Banks, a law professor at Syracuse University. “The President, like every actor in our national government, is bound by the Constitution. Article II of the Constitution allows the President to take certain actions, but the list is quite short, especially compared to the long list of Congress’s Article I powers.”

The first line of Article II, Section 1 says, “The executive power shall be vested in a President of the United States of America.” Subsequent items establish the process of choosing the president, who is eligible for the presidency, the State of the Union update the president must give to Congress, the president’s role as commander-in-chief, and presidential powers such as making treaties and granting pardons. Notably, Article II also includes the provision that allows for the president to be impeached.

“The main point is that the President is subordinate to the Constitution and laws,” said Banks. “He is not a monarch, nor running an autocracy.”

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Can the President Do Whatever He Wants? William C. Banks Clarifies for The Washington Post

While bemoaning Mueller probe, Trump falsely says the Constitution gives him ‘the right to do whatever I want’

(The Washington Post | July 24, 2019) President Trump believes the Constitution gives him a wide breadth of power. That’s the message he delivered―not for the first time—on Tuesday while addressing a crowd of teenagers and young adults at the Turning Point USA Teen Student Action Summit in Washington.

There are numerous viral video clips from Trump’s 80-minute speech at the conference, but one of the most controversial moments came as he discussed Article II of the Constitution, which describes the powers of the president. Trump lamented the duration and cost of the investigation of Russian interference in the 2016 presidential election led by special counsel Robert S. Mueller III, which he has repeatedly said found “no collusion, no obstruction” …

… William C. Banks, a professor of law at Syracuse University, told The Washington Post on Tuesday that Trump’s comments are an affront to “basic points that every schoolchild learns in civics.” Trump took an oath to support and defend the Constitution when he became president, Banks noted, meaning he can only do what the Constitution permits him to.

“It’s certainly not a grant of unlimited power,” Banks said. “He’s not a monarch, he’s the chief executive … and he’s bound to uphold the rule of law.” The lawsuits Trump faces in federal courts serve as a reminder of that notion, Banks said. The professor cited various delays to Trump’s border wall, as well as the challenges the president has faced while implementing immigration reform …

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Professor Corri Zoli Talks Iran & Economic Warfare on WAER

SU National Security Expert: “Economic Warfare” With Iran, Others Might Achieve Results

(WAER | July 17, 2019) With the Iran Nuclear deal hanging by a thread, a Syracuse University national security expert says Iran is using it as a tool to push back against the US, Britain, and other allies to gain a stronger foothold in the region. Corri Zoli is a law professor and Director of Research for the Institute for National Security and Counterterrorism at SU.

“You have the Middle East/North Africa region going through this enormous transformation right now. Iran is trying to get leverage, trying to be an agent of change in that transformation.”

“They can create enough of a division such that the EU will continue to back their nuclear deal and keep giving them support. They can continue to try and beef up their economic standing, and still do their proxy war meddling in the region. Then they can ultimately achieve their ‘Persian Crescent,’ the idea that they will try to dominate the Middle East.”

Zoli says the nuclear pact is full of structural and policy limitations that allow Iran to push the limits. She says playing nice just doesn’t work with a pro-conflict actor like Iran that has repeatedly tried to destabilize the region. Zoli says the sanctions are a form of diplomacy, even if it seems to be ramping up tensions.

“It’s highly coercive. It’s highly hard power. But as an alternative to actual military intervention, it’s a very strong and powerful tool and the US is uniquely positioned to use it because we have one of the strongest economies in the world.”

Zoli says the Trump administration’s economic sanctions are strategic, if not unpredictable, and could reap results that evaded the Obama administration’s softer touch.

“The accommodationist strategy can be extremely risky. The more economic warfare strategy…not the soft power, but the hard power approach, can be more effective. Political respect is a wonderful thing, a very idealist conception. But many of these nations said ‘prove it.’ Then you’re in the realm of pragmatics. Unless you play in that realm, it’s very hard to get the policy outcomes that you want.”

ECONOMIC WARFARE AS A LARGER STRATEGY

Professor Zoli says the Trump Administration’s use of what she calls “economic warfare” with Iran and others seems to be part of a larger and perhaps effective approach to pressure countries into action.

“You’ve got all the hard power of economics, which is even more pernicious than war. You can really destroy whole economies. In a war, you can hurt certain areas of a country, but you usually don’t grenade the entire economy. Whereas with economic warfare, you truly can.”

Zoli acknowledges this runs the risk of ramping up tensions with Iran, which is being targeted for violating the nuclear deal. She says, however, that political polarization and personalities seem to distract from what might result in positive policy outcomes.

“You have the Middle East/North Africa region going through this enormous transformation right now. Iran is trying to get leverage, trying to be an agent of change in that transformation. The gulf monarchies, with the US as an ally and others, are trying to block that power move.”

Zoli says we’re seeing much the same strategy playing out with North Korea and its nuclear program.

“Where is the economic pressure on North Korea? China. There you’ve got the economic warfare web. The Trump Administratiion and his advisors know that North Korea is essentially a client state of China. Anything it decides to do or not do is going to be based on some kind of prior relationship with China.”

Zoli knows allies might be a bit disgruntled, but NATO’s European states are contributing more to their own defense for the first time in history.

Read the article on WAER.

 

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William C. Banks: Trump’s Assertion “May Be Unlawful”

(Associated Press | June 13, 2019) An expert in constitutional law tells the Associated Press that President Donald Trump’s assertion that he would be open to accepting a foreign power’s help in his 2020 campaign is not appropriate and “it may be unlawful.”

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