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 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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Corri Zoli to Attend UNSC Counterterrorism Special Meeting on the “Madrid Principles”

Zoli_UN_MeetingINSCT Director of Research Corri Zoli has been invited to attend a special meeting of the United Nations Security Council Counter-Terrorism Committee on Dec. 13, 2018, in the Economic and Social Council Chamber, UN Headquarters, New York City. The meeting will discuss “Security Council Resolution 2396 (2017): A Review of the Madrid Principles,” a document that provides guidance to member states on stemming the flow of Foreign Terrorist Fighters (FTFs) across national borders, while staying compliant with human rights laws and norms.  

In particular, explains UN Security Council Counter-Terrorism Committee Chair Gustavo Meza-Cuadra in his letter of invitation, the special meeting will tackle the issue of FTFs “in light of the evolving threat posed by foreign terrorist fighters, particularly FTF returnees and relocators and their family members.” The review of the Madrid Principles also will examine gaps that may hinder states’ abilities to detect, interdict, prosecute, rehabilitate, and reintegrate FTF returnees and their families, as well as identify good practices.

Among the working sessions will be those on “border security and information-sharing”; “global research perspectives on cross-cutting trends”; “countering incitement, recruitment, and violent extremism”; and “judicial measures, international cooperation, and prosecution, rehabilitation, and reintegration strategies.” Invited discussants include Edmund Fitton-Brown of the Analytical and Sanctions Monitoring Team of the ISIL and Al-Qaida Sanctions Committee; Elisabeth Neugebauer, Deputy Special Representative, International Criminal Police Organization; and Tanya Mehra, International Centre for Counterterrorism, The Hague.

The Madrid Principles were developed from a July 2015 special meeting hosted by the Government of Spain and co-organized by the UN Counter-Terrorism Committee Executive Directorate (CTED), with which INSCT collaborates on counterterrorism prevention. This Madrid meeting was attended by member states from every region of the world, as well as representatives of international and regional organizations, universities, and civil society groups. Discussions and technical sessions identified 35 guiding principles that were subsequently adopted by the Security Council and offered as a practical tool for use by member states in their efforts to combat terrorism.

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William C. Banks Discusses Posse Comitatus & the US Military’s Southern Border Deployment

The controversial deployment in late October 2018 of 5,800 US servicemembers to the US-Mexico border in response to a perceived migration and asylum crisis has caused a media stir. Not unsurprisingly, questions about the legality of the deployment have arisen, especially in the wake of a November 20 White House “Cabinet Order” allowing troops to perform law enforcement roles and to use lethal force, potentially in violation of the Posse Comitatus Act. Professor Emeritus William C. Banks, author of Soldiers on the Home Front: The Domestic Role of the American Military, has answered some of these questions for Military Times, Vox, and PRI, as well as on the Just Security blog.

What’s a Posse Comitatus, Anyway? The Military Role at the Southern Border

(ACSBlog | Dec. 3, 2018) … What about the “crowd control, temporary detention” and “cursory search” permitted by the order? Secretary Mattis responded to a question about involvement in law enforcement this way: “We do not have arrest authority. Detention, I would put it in terms of minutes. . . . [We would stop an assault on a CBP agent] and deliver them to a Border Patrol man, who would then arrest them” …

What’s a Posse Comitatus, Anyway? The Military Role at the Southern Border

What Trump’s “lethal force” authorization means at the border

(Vox | Nov. 27, 2018) “On one hand, it is kind of ridiculous because there is nothing approaching an invasion there,” William Banks, a national security expert with Syracuse University, said. “There is no indication that there is a force lining the border that [Customs and Border Protection] couldn’t take care of. But on the other hand, if you take the Cabinet order’s language at face value, and take what the president is saying as credible threats, then it becomes grayer.”

https://www.vox.com/policy-and-politics/2018/11/27/18112610/trump-lethal-force-caravan-migrant-border-military

Military at the southern border and the Posse Comitatus Act

(PRI The World | Nov. 23, 2018) The White House has signed a memo allowing troops stationed at the border to take on some law enforcement roles including using lethal force, if necessary. Some experts say the directive is at odds with the Posse Comitatus Act. The federal law, which dates back to the 19th century, forbids active military members from engaging in civilian law enforcement roles. The World’s Carol Hills interviews William C. Banks, a professor of law at Syracuse University, and co-author of “Soldiers on the Home Front: The Domestic Role of the American Military.”

https://www.pri.org/file/2018-11-23/military-southern-border-and-posse-comitatus-act

White House approves use of force, some law enforcement roles for border troops

(Military Times | Nov. 21, 2018) Posse Comitatus is “always looming in the background. You never invoke it as such because it is such a background principle,” said William Banks, author of “Soldiers on the Home Front: The Domestic Role of the American Military” and the former director of the Institute for National Security and Counter-terrorism at Syracuse University’s College of Law.

https://www.militarytimes.com/news/your-military/2018/11/21/white-house-approves-use-of-force-some-law-enforcement-roles-for-border-troops/#.W_a8R03c8js.twitter

Legal Analysis of “Cabinet Memo” on the Military’s Role at Southern Border

(Just Security | Nov. 26, 2018) More important is what the Constitution, Posse Comitatus Act, and other federal laws represent – a longstanding legal norm disfavoring military involvement in domestic affairs except in dire circumstances. It is no exaggeration to say that avoidance of military involvement in civil society is part of our cultural heritage. Let’s hope that Secretary Mattis’ cool head prevails in the days ahead.

Legal Analysis of “Cabinet Memo” on the Military’s Role at Southern Border

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NCCIT Publishes Report on “Torture Flights” from North Carolina Airfields

The North Carolina Commission of Inquiry on Torture (NCCIT)—which counts as one of its Commissioners INSCT Research and Practice Associate David M. Crane—has published Torture Flights: North Carolina’s Role in the CIA Rendition and Torture Program.

“The report demonstrates to state officials across the country how illegal activity at the federal level may come to implicate state actors in potential liability.”

The report presents NCCIT’s investigatory findings on the issue of whether individuals or business entities located in the state of North Carolina, and acting out of its territory, participated in the US Government’s CIA-led torture program during the President George W. Bush Administration.

The report’s sobering finding is that they did.

The connection between North Carolina and the government-sponsored torture of the era is clear, write the authors. Aircraft operated by at least one local company—flown by North Carolina pilots out of North Carolina airfields that were subsidized by North Carolina revenues and subject to a measure of North Carolina regulation—were engaged in the transport of dozens of captive individuals to multiple foreign sites, some managed by US officials, others by foreign governments, to be tortured.

Torture Flights not only documents North Carolina’s connection to torture, it helps illuminate one of the least known aspects of the CIA’s infamous “Rendition, Detention, and Interrogation” program, the rendition element.

According to the authors, the “torture taxi” system that transported prisoners relied on a network of private contractors that were engaged in this activity, both important cogs in the machinery of torture.

“There are many dark corners that need to see the light of truth related to America’s so called War on Terror,” says Crane. “This import report shines that light of truth.”

Furthermore, the report demonstrates to state officials across the country how illegal activity at the federal level may come to implicate state actors in potential liability.

“Indeed, because the commission of torture or conspiring in the commission of torture is a crime in North Carolina (as it is in every state), it would be surprising if North Carolina state authorities would not now launch their own investigation to determine whether or not state laws were broken or whether evidence relevant to open investigations in other countries should not be sought,” suggest the authors.

Read the report here.

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28th Annual Review of the Field of National Security Law Conference

INSCT Director James E. Baker and Professor Emeritus William C. Banks will represent the Institute at the ABA Standing Committee on Law and National Security’s 28th Annual Review of the Field of National Security Law Conference, taking place Nov. 1-2, 2018 at the Capitol Hilton in Washington DC.

This premier national security law conference includes panels focusing on vital topics, including:

  • Space Law: Issues and Progress
  • Legal Issues Confronting the Military National Security Law Community
  • The 4th Amendment, Surveillance and the Future, preceded by a special keynote luncheon address by Glenn Gerstell, General Counsel, National Security Agency
  • Reviewing Current Controversies Surrounding Security Clearances
  • Ethical Challenges of the National Security Lawyer: A Roundtable Discussion
  • Global Trade and National Security
  • The Movement of Individuals Across Borders and National Security
  • SCOTUS, GTMO, the FISC, and More: The Role of the Courts in Shaping National Security Law
  • Social Media: 2020
  • The Role and Duty of the National Security Lawyer: The Audience Responds

Judge Baker will host the panel on “The Role and Duty of the National Security Lawyer: The Audience Responds,” and Banks will moderate “SCOTUS, GTMO, the FISC and More: The Role of the Courts in Shaping National Security Law.” This panel also will feature discussants Amy Jeffress, Partner, Arnold & Porter; Mary McCord, Visiting Professor of Law and Senior Litigator from Practice, Institute for Constitutional Advocacy and Protection, Georgetown University Law Center; and the Hon. Reggie Walton, Senior Judge, US District Court for the District of Columbia.

More information and registration

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