Professor Mark Nevitt on Pentagon Labyrinth: What’s the Military’s Role in a Contested Election?

What’s the Military’s Role in a Contested Election?

(POGO Pentagon Labyrinth | Oct. 27, 2020) We are on the eve of what could be a contentious and disputed election, and a turbulent transition. Given the possibility that we will not know who the winner is for some time after November 3, there are increased concerns about domestic disturbances and violence.

This is prompting many to openly discuss the military’s role in such a scenario. The Military Times recently published an article titled “How the president could invoke martial law.” Several legal scholars have also weighed in on the issue in the past few months.

One is Mark Nevitt, a professor of constitutional law, national security law, environmental law, and climate change law at Syracuse University College of Law. He has a solid military background as well. He started his career as a Naval aviator flying the S-3 Viking; he flew over a thousand hours and had approximately 300 carrier landings. When the Navy retired the S-3s, it sent Mark to Georgetown Law. He spent the rest of his career as a Navy judge advocate general before retiring in 2017 to join academia.

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Professor William C. Banks Helps Military Times Explain Martial Law

How the president could invoke martial law

(Military Times | Oct. 23, 2020) Throughout 2020, America has faced a global pandemic, civil unrest after the death of George Floyd and a contentious election. As a result, an influx of fear about the possibility of the invocation of martial law or unchecked military intervention is circulating around the internet among scholars and civilians alike.

“Martial law isn’t described or confined or limited, proscribed in any way by the Constitution or laws.”

“The fear is certainly understandable, because as I’m sure you know, martial law isn’t described or confined or limited, proscribed in any way by the Constitution or laws,” Bill Banks, a Syracuse professor with an expertise in constitutional and national security law, told Military Times. “If someone has declared martial law, they’re essentially saying that they are the law.”

What is ‘martial law’

In short, martial law can be imposed when civil rule fails, temporarily being replaced with military authority in a time of crisis. Though rare, there have been a number of notable U.S. cases where martial law came into play, including in times of war, natural disaster and civic dispute — of which there has been no shortage in 2020.

While no precise definition of martial law exists, a precedent for it exists wherein, “certain civil liberties may be suspended, such as the right to be free from unreasonable searches and seizures, freedom of association, and freedom of movement. And the writ of habeas corpus [the right to a trial before imprisonment] may be suspended,” according to documents from JRANK, an online legal encyclopedia …

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What is martial law? Can the president declare it? Good questions.


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Professor Mark Nevitt in Just Security: Reforming the Insurrection Act

(Just Security | Oct. 20) When can the president deploy the federal military on American soil? What are the legal and regulatory restraints in doing so? Throughout the current administration, these fundamental questions of civil-military relations and democratic governance have only grown in importance.

This is due, in large part, to the rupture of longstanding norms. Salient examples include the significantly expanded deployment of military troops to the U.S.-Mexican border as well as the use or threatened use of state and federal military forces (many unidentified) in response to protests this summer in the aftermath of George Floyd’s death.

The violent clearing of peaceful protestors from Lafayette Square Park on June 1 by both non-military and military forces brought the issue of domestic military operations to American living rooms—as did the President threatening minutes earlier to invoke the Insurrection Act and send active duty military forces into American cities.

The governance stakes are simply too high to rely upon now-violated norms. Congress should reinvigorate its constitutional role in governing domestic military operations and provide bright legal lines addressing the president’s authority to deploy the military domestically.

In this essay and the one to follow, I highlight four legal authorities governing domestic use of military force that are ripe for clarification and congressional action. This essay concerns the Insurrection Act, and my second essay will address the Posse Comitatus Act, Section 502(f) of Title 32 of the U.S. Code, and military operations in the nation’s capital …

Read Part One …

Good Governance Paper No. 6 (Part One): Domestic Military Operations — Reforming the Insurrection Act

Read Part Two on “The Role of the National Guard, Posse Comitatus Act and More” …

Good Governance Paper No. 6 (Part Two): Domestic Military Operations — The Role of the National Guard, Posse Comitatus Act and More

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Professor Corri Zoli Joins HDIAC Podcast to Discuss Culture and Civil-Military Relations

The Homeland Defense and Security Information Analysis Center (HDIAC) is a Department of Defense Information Analysis Center sponsored by the Defense Technical Information Center.

Rethinking Culture in the Context of Civil-Military Relations: Part 1 of 3

This podcast is the first in a multi-part series discussing the impact of culture in the context of civil-military relations. In this episode, Dr. Corri Zoli and the Maxwell School of Citizenship and Public Affairs’ Dr. Robert Rubinstein explore definitions of culture and discuss how different organizational cultures have led the U.S. military and humanitarian groups to pursue divergent on-the-ground security strategies in conflict zones.

Rethinking Culture in the Context of Civil-Military Relations: Part 2 of 3

In Part 2 of Rethinking Culture in the Context of Civil-Military Relations, Dr. Rubinstein and Dr. Zoli discuss the strategic effectiveness of DoD efforts to engage culturally in Iraq and Afghanistan as well as debate enduring questions regarding these efforts’ processes and outcomes.

Rethinking Culture in the Context of Civil-Military Relations: Part 3 of 3

In the third installment of Rethinking Culture in the Context of Civil-Military Relations, Dr. Zoli and Dr. Rubinstein continue the conversation around different cultural models of risk and security and discuss the broader impacts of taking a militarized approach to security abroad.


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Professor Mark Nevitt in Newsweek: Is There a “Climate Change Voter”?

The First Day the U.S. Can Legally Withdraw From the Paris Agreement Is November 4

(Newsweek | Oct. 9, 2020) The first day the U.S. can legally withdraw from the Paris Climate Accord is November 4—the day after the presidential election. The outcome will decide whether the country will remain part of the agreement, with Biden pledging to opt back in and Trump to continue the withdrawal process.

Climate change is one of the key issues of the forthcoming election for many people in the U.S. Research from Pew published October 6 showed it is considered a very important issue by 42 percent of registered voters. A further 26 percent said it was somewhat important.

How much climate change will influence the outcome of the election remains to be seen, but there is speculation it could be significant …

… Mark P. Nevitt, associate professor of law at Syracuse University, specializes in climate change law and policy. He told Newsweek it is too early to tell whether 2020 will see the rise of the “climate change voter,” but said “there is certainly more energy around climate change during a presidential election than at any time in my lifetime” …

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Professor William C. Banks on Spectrum: Election Could Go Off the Rails

Trump, The Blue Shift, and The Legal Aftermath

(Spectrum Capital Tonight | Oct. 1, 2020) For months, President Trump has been laying the groundwork to claim that, if he loses the election, it must be because the election was rigged.

In fact, he said just that in August:

“The only way we’re going to lose this election is if the election is rigged—remember that. So we have to be very careful. . . The only way they’re (Democrats) going to win is that way. And we can’t let that happen.”

The president is specifically targeting mail-in voting, claiming it’s “dangerous for this country because of cheaters” and that it’s an invitation for fraud …

… William Banks, a professor of law and public affairs at Syracuse University told Capital Tonight, he’s more than a little worried.

“On a scale of one to 10, I’d say my worry is about a nine,” Banks said. “There are several plausible scenarios that could cause this election to go off the rails.”

One scenario? Because of partisan fighting around mail-in ballots, some key states like Pennsylvania or Florida won’t get their votes into the Electoral College by December 14, the date the electors meet and cast their ballots for president and vice president.

Professor Banks explains that if neither candidate gets to 270 electoral votes, the election would be decided by the House of Representatives.

“On January 6, they’re supposed to count the votes. If neither candidate has 270 votes because of the circumstances you just described, there will be 1 vote per state, so 50 potential votes,” Banks explained.

Each state would determine which candidate had won their electoral votes and they would pass that information along to the House.

Under this scenario, the Republicans would be likely winners.

“As things stand now, there are more Republican-controlled states than Democratic-controlled states,” Banks explained …

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Professor Mark Nevitt: Climate Change, Arctic Security, & Why the US Should Join the UN Convention on the Law of the Sea

By Mark P. Nevitt

(Center for Ethics and the Rule of Law | Sept. 30, 2020) Climate change is transforming the Arctic in new and dramatic ways. According to the UN Intergovernmental Panel on Climate Change (IPCC), the Arctic is warming two to three times the rate of the rest of the planet. And this month’s “United in Science 2020” report found that the Arctic sea ice extent was the lowest on record for July. Due to a pernicious feedback melting loop, melting permafrost, and the continual possibility of cataclysmic “green swan” events, worldwide sea level rise will be further impacted by Arctic events. What happens in the Arctic does not necessarily stay in the Arctic.

In addition, climate change is both opening maritime trade routes and offering the possibility of natural resource extraction on the Arctic’s continental shelf. It is also creating a whole new operational domain for the world’s militaries.

Unlike Antarctica—which is also being dramatically impacted by climate change—the Arctic lacks a comprehensive, Arctic-specific treaty. The Arctic region is largely governed by the United Nations Convention on the Law of the Sea (UNCLOS), the increasingly important work of the Arctic Council, and a hodgepodge of laws and bilateral agreements. But climate change is increasingly stressing this legal and policy framework.

UNCLOS, aptly described as “A Constitution of the Oceans,” remains one of the most comprehensive and complex international law treaties ever negotiated. It will take on increased importance as the Arctic adjusts to its 21st century climate reality. The United States, however, remains the only Arctic Council member that is not party to UNCLOS. This is short-sighted and contrary to U.S. national security, environmental, and economic interests. Despite continued U.S. intransigence on law of the sea ratification, a remarkably diverse coalition of American national security experts, environmentalists, and business interests support the United States becoming a party to UNCLOS. To be sure, the United States accepts UNCLOS’s key navigational provisions as binding as a matter of customary international law. But as a non-party to UNCLOS, the United States increasingly lacks a “seat at the table” on core law of the sea matters and cannot avail itself of its adjudicatory bodies. It also cannot take advantage of key UNCLOS provisions, such as submitting information to establish the outer limits of Alaska’s continental shelf. Climate change’s opening of maritime trade routes and the possibility for natural resource extraction reinforces the need for the U.S. Senate to provide its advice and consent on this critical treaty …

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Professor Mark Nevitt Discusses Climate-Related Disasters & Managed Retreat

As Climate-Related Disasters Intensify, Retreat Emerges as Adaptation Strategy

(Kleinman Center Podcast | Sept. 15, 2020) When policymakers talk about adapting to climate change, they often focus on measures to reinforce towns and cities against natural disasters, such as the wildfires and flooding that have become more severe across the United States in recent years. Yet what is often more difficult to contemplate is the idea that some places may inevitably need to be abandoned. This idea of abandonment, or retreat from areas that are at great risk due to climate change, is understandably very difficult to think about. Retreat means leaving behind homes, and the possible disruption of communities and livelihoods.

Mark Nevitt, associate professor of law at Syracuse University and a former legal counsel with the Department of Defense Regional Environmental Counsel in Norfolk, Virginia, explores how managed retreat ahead of likely disaster is itself a key climate adaptation strategy, and one which may ease, though not eliminate, the burden on impacted communities. Mark discusses his recent Kleinman Center-funded research into legal issues associated with climate adaptation, and how existing laws may present barriers to efforts to manage retreat from high risk areas.

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Professor Corri Zoli Speaks to Vox About China and Iran Meddling in US Elections

Are China and Iran meddling in US elections? It’s complicated.

(Vox | Sept. 15, 2020) This spring, the Chinese state-run news agency Xinhua posted a roughly two-minute video titled “Once Upon a Virus” on social media, including on official Chinese government accounts.

The video is in English and features Lego-like figures. One of the Statue of Liberty, representing America, and a warrior Lego representing China, with what looks like medical workers decked out in PPE, behind it…

… “There’s no question China’s the most technologically sophisticated for influence campaigns that reach beyond just elections,” Corri Zoli, associate teaching professor and director of research for the Institute for Security Policy and Law at Syracuse University, told me …

… And Iran definitely has cyber capabilities. But Zoli said, overall, they’re not sophisticated enough to have a truly enormous impact. “They don’t have the capabilities and they haven’t thought through a really multi-pronged strategy. They’re not going after, you know, these ancillary institutional sites to try to have a big impact on political decision-making” …

… Zoli told me she sees the ODNI document as educational, not so much for what it tells us about what our adversaries are up to, but as a way to “raise the public’s awareness that these election interferences are common and consistent. And you need to be kind of on guard about them. And you need to harden your approach to them” …

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