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.”

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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.”

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William C. Banks Joins CSRR as Distinguished Senior Fellow

Rutgers Center for Security, Race, and Rights (CSRR) has announced that William C. Banks has joined CSRR team as a Distinguished Senior Fellow.

Banks is a Syracuse University College of Law Board of Advisors Distinguished Professor and Emeritus Professor at the College of Law and a Maxwell School Professor of Public Administration and International Affairs. During 2015-2016, Banks was Interim Dean of the College of Law. He is the Founding Director of the Institute for National Security and Counterterrorism.

“I am especially pleased to join the Center for Security, Race and Rights (CSRR) as a Distinguished Senior Fellow,” says Banks. “Centers such as CSRR are an essential counterweight to the tendencies of governments that see security and terrorism problems through a religious and racial lens. While respect for basic human and civil rights should be at the undeniable core of law and policy in governments worldwide, glaring and persistent abuses abound. CSRR is an important voice for drawing attention to rights shortfalls and showing the way toward more just laws and policies.”

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William C. Banks Scholarship Included in Groundbreaking Disaster Risk Management Handbook

Disaster Risk HandbookProfessor Emeritus William C. Banks is among the authors included in a groundbreaking handbook for the emerging fields of disaster risk management and disaster risk reduction (DRR) law. The Cambridge Handbook of Disaster Risk Reduction and International Law (Cambridge, 2019) is edited by Katja L. H. Samuel, Marie Aronsson-Storrier, and Kirsten Nakjavani Bookmiller. Banks’ chapter—”Improving Disaster Risk Mitigation: Towards a ‘Multi-Hazard’ Approach to Terrorism”—is co-authored with Samuel and Daphné Richemond-Barak, of the Institute for Counter-Terrorism in Herzliya, Israel.

Yet the law sector itself remains relatively under-developed, including a paucity of supporting ‘DRR law’ scholarship and minimal cross-sectoral engagement.

The new handbook introduces concepts of DRR, especially DRR law; highlights the critical need for broader cross-sectoral engagement on DRR issues; looks at the multi-sectoral approaches of the Sendai Framework, especially between law, science, and technology; contributes to the development of DRR related law, policy, and practice; and informs law and policy makers of the growing importance of DRR law through comparative analysis of multiple regimes.

Write the co-editors in their introduction, “The number, intensity, and impact of diverse forms of ‘natural’ and ‘human-made’ disasters are increasing. In response, the international community has shifted its primary focus away from disaster response to prevention and improved preparedness.

“The current globally agreed upon roadmap is the ambitious Sendai Framework for Disaster Risk Reduction 2015–2030, central to which is the better understanding of disaster risk management and mitigation. Sendai also urges innovative implementation, especially multi-sectoral and multi-hazard coherence.

“Yet the law sector itself remains relatively under-developed, including a paucity of supporting ‘DRR law’ scholarship and minimal cross-sectoral engagement. Commonly, this is attributable to limited understanding by other sectors about law’s dynamic potential as a tool of disaster risk mitigation, despite the availability of many risk-related norms across a broad spectrum of legal regimes.”

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As Trump Turns to a National Emergency, the Media Turns to William C. Banks

President Donald J. Trump has made it known that he would declare a “national emergency” at the US/Mexico border in order to secure funds to build a southern border wall, an effort to augment funds that Congress has appropriated for border security in a bill that the president is expected to sign.

It turns out it’s going to be quite the tricky fight for Trump should he decide to actually declare a national emergency solely to get the border wall built.

The national emergency declaration would be unusual in this case, as the southern border crisis lacks the immediacy of a catastrophe such as Sept. 11, 2001. The declaration also may be unconstitutional, and it probably will be challenged in the courts. National security expert Professor Emeritus William C. Banks has been in demand by top media outlets to explain the what, why, when, and how of declaring a national emergency.

Trump wants the military to build the border wall. It might not be legal.

(Vox | Feb. 14, 2019) After months of back-and-forth with Congress, President Donald Trump is expected to soon declare a national emergency in order for the US military to construct the southern border wall he’s promised for years.

But there’s a pretty big problem with that, according to experts — namely, that he has a very weak legal case, and there’s strong political opposition to making that happen.

Set aside the fact that Trump’s own administration doesn’t assess that there is a massive national security problem at the US-Mexico border. Trump believes there is, and he plans to take extraordinary measures to keep asylum seekers out of the country.

William Banks, a national security law expert at Syracuse University, helped me understand what to expect in the days ahead.

It turns out it’s going to be quite the tricky fight for Trump should he decide to actually declare a national emergency solely to get the border wall built.

The key law in question is the appropriately named “Construction authority in the event of a declaration of war or national emergency.” Here’s what it says:

In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces. Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated …

Read the full article.


SEE ALSO …

Trump’s ‘authoritarian’ streak stirs backlash at home and abroad (The Washington Post | Feb. 19, 2019)

Trump’s national emergency and GOP senators (CNN | Feb. 19, 2019)

State of Chaos: What Comes Next for Mueller and for Trump’s “Emergency”? (On Topic with Renato Mariotti | Feb. 16, 2019)

Prof. Bill Banks interviewed by KCBS Radio (Feb. 16, 2019)

Trump declares U.S.-Mexico border emergency; Democrats protest (Reuters | Feb. 15, 2019)

Trump’s national emergency to contend with lawsuits (China Daily | Feb. 18, 2019)

Trump’s Face-Saving Way Out of Crisis Raises Fears Over Rule of Law (The New York Times | Feb. 14, 2019)

National Emergency Powers and Trump’s Border Wall, Explained (The New York Times | Jan. 7, 2019)

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William C. Banks Authors OpEd on Southern Border Crisis for Newsday

Opinion: Declaration would defy Congress and abuse power

By William C. Banks

(Newsday | Feb. 10, 2019) President Donald Trump has described the congressional negotiations over his request for $5.7 billion to fund a Southern border wall as a “waste of time.”

Intended to stop the practice of endless states of emergency, the law gave them new life. Today, there are 28 national emergencies, renewed for decades by presidents.

He has repeatedly insisted that he can and will build the wall after declaring a national emergency at the border. If the president proceeds, he will undermine the role of Congress in our constitutional system and make a mockery of the uses of this extraordinary emergency power as exercised by modern presidents.

Rhetoric and politics aside, consider a dispassionate assessment of what the law permits. In the end, Congress may already have given Trump the authority he needs to build his wall.

The president exercises whatever powers he has from the Constitution or an act of Congress. The Constitution does not confer any general emergency powers, and only permits suspending the writ of habeas corpus “when in Cases of Rebellion or Invasion the public Safety may require it.” When it comes to appropriating public funds, the Constitution anchors the power in Congress. The Congress appropriates funds, and the president spends them.

Historically, Congress provided generous statutory authorities that allow the president to act and spend in circumstances that rise to the level of national emergency. By 1973, there were more than 470 such laws, most of them vestiges of bygone crises. In a stroke of Watergate-era good government, Congress enacted the National Emergencies Act in 1976 to repeal all emergency laws and create procedures for future presidents to act responsibly in a crisis. However, while enacted with the best of intentions to rein in misuse of presidential emergency powers, the law has, in a backhanded way, enabled considerable presidential initiatives.

The National Emergencies Act requires presidents to specify the statutory authorities they intend to use after declaring a national emergency, make public notice of the emergency declaration and renew such authorities annually in writing to Congress. However, the law requires Congress to act (with a two-thirds majority to overcome a presidential veto) to terminate a declared emergency and allows declared emergencies to be renewed annually by the president.

Intended to stop the practice of endless states of emergency, the law gave them new life. Today, there are 28 national emergencies, renewed for decades by presidents, supported by 136 statutes the president can invoke after an emergency declaration. Congress has never attempted to terminate an emergency declared pursuant to the National Emergencies Act.

Nor are there criteria to guide or limit the president in deciding what constitutes a national emergency. Could Trump declare a national emergency at the Southern border? Yes, unquestionably. Could he then find the funds from among the 136 statutes to order construction of the wall? Yes, arguably …

Read the full OpEd.

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Video: Brennan Center Symposium on Emergency Powers

Symposium on Presidential Emergency Powers: Legal Overview

(C-Span | Jan 18, 2019) On Jan. 9, 2019, the Brennan Center for Justice and the R Street Institute hosted a symposium in Washington, DC, to consider the history, application and scope of presidential emergency powers.

This portion of the symposium featured legal and policy experts—including INSCT Founding Director William C. Banks—who provided an overview of the range of executive powers that could be used by the president.

The Brennan Center’s Liberty and National Security Program Director Liza Goitein also addressed President Trump’s potential application of emergency powers to build a wall along the U.S.-Mexico border.

Emergency Powers

 

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Mythbusting: INSCT, IVMF Veterans Research Reported by Military Times

(Military Times | Jan. 5, 2019) Here’s something everyone can agree on: The way the public views veterans isn’t always accurate.

Take the assumption that all veterans have served in combat and have post-traumatic stress disorder, for example. Or that people only go into the military because they can’t get into college.

Those are just a couple of the “persistent, recycled myths” about veterans that Syracuse University researchers addressed during a session at the Student Veterans of America National Conference Friday, using both federal data and an 8,600-person survey of the military community to debunk some of the most common misconceptions about the nation’s youngest generation of veterans.

On one hand, studies by Gallup, Pew Research and others have shown there is “enormous public support (for the military) but at the same time a tremendous gap in knowledge about who we’re supporting,” said Corri Zoli, director of research at Syracuse’s Institute for National Security and Counterterrorism. “They don’t have a lot of granular detail about who they’re supporting and why.”

Myth 1: Veterans are a small subset of the population

The number that’s often thrown out is 1 percent, but that applies to active duty troops, researchers said. As of 2017, federal data show veterans make up 8 percent of the U.S. population, with post-9/11 veterans the fastest growing group among them.

Myth 2: Veterans join the military because they could not get into college and are uneducated

According to federal data collected in the 2017 Current Population Survey, 35 percent of post-9/11 veterans have a bachelor’s degree or higher, compared to 31 percent of all veterans and 32 percent of the general U.S. population.

Rosalinda Maury, a researcher with the Syracuse Institute for Veterans and Military Families, said education benefits tend to be a top recruiting incentive, and the military promotes and prepares service members for post-secondary education …

Read the full article.

 

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Searching for Justice: The Courier Speaks to Corri Zoli on the 30th Anniversary of the Lockerbie Disaster

Staring into the ‘bowels of hell’: Lockerbie disaster 30 years on and the ongoing transatlantic search for justice

In an exclusive interview marking the 30th anniversary of the Lockerbie bombing, Michael Alexander speaks to an American terrorism expert whose university is marking the loss of 35 of its students in the attack – and hears the ‘hellish’ memories of several journalists who covered the aftermath.

(The Courier | Dec. 21, 2018) Cruising at a height of 31,000 feet and packed with students embarking on the long journey home to America for Christmas, passengers on board New York-bound Pan Am flight 103 were just 38 minutes into their flight from London Heathrow when at 7.03pm on December 21, 1988, a bomb exploded on board as the Boeing 747 flew over the Scottish borders.

“I had a briefing fairly recently from the FBI and the Scottish prosecutors on this. They talked about the various leads that they were pursuing in this long process.”

As well as killing all 259 people on the aircraft, the falling debris which hit the town of Lockerbie two minutes later, also wiped out 11 people on the ground.

As bodies, luggage and debris tumbled six miles through the sky, the most devastating carnage in the town came as the wings containing thousands of gallons of aviation fuel exploded on impact – gouging out a huge crater in Sherwood Crescent and obliterating two houses and their inhabitants with it …

… It’s a chapter which is of particular interest to terrorism expert Dr Corri Zoli – Syracuse University’s director of research at the Institute for National Security and Counterterrorism, and a teaching professor of law.

In an exclusive interview with The Courier, she revealed she was recently briefed by the FBI and Scottish prosecutors on the ongoing criminal and civil cases against alleged co-conspirators.

While she knows there was controversy around al-Megrahi’s prosecution, she thinks there was “good strong evidence” for him being involved – particularly as the late Libyan leader Colonel Gaddafi admitted his country’s involvement in 2003.

She’s confident that, despite the complications of a trans-national investigation and liaising with “unstable” countries like Libya, further prosecutions will take place.

“I had a briefing fairly recently from the FBI and the Scottish prosecutors on this,” she said.

“They talked about the various leads that they were pursuing in this long process.

“They actually were closer to finding information in part because there has been destabilisation in Libya.

“They were getting access to records they hadn’t been able to gain access to before. So I do think there will be that level of justice in terms of prosecuting people beyond those who have already been prosecuted.”

Dr Zoli, who has worked at Syracuse since 2009, said the bombing of Pan Am flight 103 was “shocking” in all the ways that terrorist attacks are shocking.

It was atypical in that hijackings were the most prevalent form of terrorism at the time and, some 13 years before 9/11, it was unusual in that it targeted Americans. It was also relatively rare for bombs to eliminate aircraft in flight.

However, the fact there were 35 American students on board from a single university was in itself “quite unprecedented” …

Staring into the ‘bowels of hell’: Lockerbie disaster 30 years on and the ongoing transatlantic search for justice

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William C. Banks to Speak at Brennan Center Event on “Emergency Powers”

Professor Emeritus William C. Banks has been invited to speak at “Emergency Powers in the Trump Era and Beyond,” a Brennan Center for Justice and R Street Institute event to be held at the Center for Strategic and International Studies in Washington, DC, on Jan. 16, 2019.

The symposium will explore questions raised by presidential emergency powers in the US. Former government officials, scholars, and advocates will discuss:

  • An overview of the legal framework for emergency powers in the US, focusing on some of the most extraordinary powers in the president’s legal arsenal.
  • Perspectives from the inside, featuring former executive branch officials with direct experience in governing during emergencies.
  • A conversation about the risks vulnerable communities face in emergencies, and how to mitigate those risks.
  • Lessons we can draw from recent experiences with emergency powers in other nations.

Among the scholars and officials joining Banks at the symposium are Fionnuala Ní Aoláin, Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, United Nations; Christopher Fonzone, former Legal Adviser to the National Security Council; Avril Haines, former Deputy National Security Advisor; Kim Lane Scheppele, Laurance S. Rockefeller Professor of Sociology and International Affairs, Woodrow Wilson School of Public and International Affairs, Princeton University; and Carl Wagner, former Associate Deputy General Counsel for Homeland Defense.

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