William Banks

William C. Banks: Beware the Military on US Soil

Beware the military on US soil: City and state leaders should be careful what they wish for

By William C. Banks 

“de Blasio and other New Yorkers are still urging a more robust federal military response. Tread carefully.”

(NY Daily News | April 6, 2020) By and large, New York officials have exhibited admirable leadership and clear-headed decision making in response to the worst public health crisis in a century. With staggering numbers of COVID-19 infections and badly overstretched hospitals, New York City and surrounding communities are in dire need of help — and Gov. Cuomo and Mayor de Blasio have been properly beseeching the White House to commit federal resources to help stem the tide of the virus.

But as it involves the use of the military, this response should have clear limits. Legally and historically, we limit its engagement on U.S. soil for very good reason.

Although Cuomo called up New York National Guard forces early in the crisis to help with the expected medical surge, and although the USNS Comfort has arrived to provide hospitals with desperately needed surge capacity, de Blasio and other New Yorkers are still urging a more robust federal military response.

Tread carefully.

There is no doubt that the U.S. military has always played a key role in society. Soldiers have always stood ready to use their special training, equipment and discipline to help out in emergencies when no one else could.

Most of the time, however, America’s military forces have remained in the background, waiting for direction from civilian leaders to respond to crises and then only in limited ways …

Read the full article.


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William C. Banks in Ms.: Voting in a Time of Pandemic

Voting in a Time of Pandemic: The November Election Must Go on as Scheduled

by Stephen Dycus & William C. Banks

The process is entirely out of the president’s hands.

(Ms. | March 27, 2020) With polls showing Trump trailing former Vice President Joe Biden—his likely Democratic opponent in the November election—it is widely rumored that the president might seek ways to postpone the election in order to remain in office.

Such a move would be blatantly illegal: It would place the government of the United States in the hands of one man, abridge the cherished right of those in the U.S. to choose their leaders, and threaten democracy itself.

The Power to Control Elections Lies with States and Congress

The Constitution entrusts the timing and conduct of federal elections entirely to Congress and the states. According to Article I, states prescribe the times, places and manner of selecting senators and representatives—although Congress may change those rules.

The president has no role to play in their election.

Election of the president is a bit more complicated, but here again the Constitution is clear. Under Article II, the President’s term is limited to four years—although she may be reelected for a second four-year term.

The same article gives Congress the job of determining a time for “chusing the Electors,” who are appointed by each respective state, and whose role in selecting the president is spelled out in detail in the 12th Amendment.

The process is entirely out of the president’s hands.

The 20th Amendment to the Constitution says the President’s term ends on January 20th, and the term of her successor “shall then begin.” It also says that if a president has not been chosen by that date, and no vice president has qualified to serve instead, Congress may either designate someone to act as president or may prescribe a new procedure for selecting one.

Invoking this provision, the Presidential Succession Act of 1947 states that if no one has qualified to serve as President, the Speaker of the House—or others in a specified line of succession—shall serve instead …

Voting in a Time of Pandemic: The November Election Must Go on as Scheduled

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William C. Banks: Martial Law Would Sweep the Country Into a Great Legal Unknown

By William C. Banks & Stephen Dycus

“So what would happen if, amid the panic of the coronavirus pandemic, the president tried to declare martial law?”

(The Atlantic | March 27, 2020) The last time martial law—military control of the government—was declared in the United States was December 1941, just hours after the Japanese attack on Pearl Harbor. The territorial governor, acting under a turn-of-the-century statute, handed the government of the Hawaiian islands over to the commander of U.S. forces there. The military governor, as he styled himself, immediately ordered the closure of courts, shut down schools, froze wages, suspended labor contracts, and imposed censorship of newspapers, radio, and civilian mail. He also decreed a curfew and blackout, as well as a ban on the sale of alcoholic beverages—a wildly unpopular measure that was quickly reversed. Despite the fact that there was no threat of a Japanese invasion after the Battle of Midway in 1942, martial law remained in place for another two years.

In 1946, after the war ended, the Supreme Court ruled in Duncan v. Kahanamoku that the statute authorizing martial law in Hawaii did not enable military trials of civilians, and it warned against the “subordination of executive, legislative and judicial authorities to complete military rule”—but it offered no further guidance about the circumstances that would justify a declaration of martial law, or about the consequences of such a declaration. Nor has Congress ever tried to clarify the criteria for or limits of martial law.

So what would happen if, amid the panic of the coronavirus pandemic, the president tried to declare martial law? Without question, military forces directed by state governors—and perhaps even, in extreme cases, by the president—may be uniquely able to help get us through the current crisis. At least 20 state governors have now called up their National Guard to assist with delivery of food and medical supplies, clean public facilities, and adapt some of those facilities to house patients if hospitals become overwhelmed. Guard personnel could also help enforce quarantines ordered by state governors, and even arrest violators. But their role is to support, not replace, civil authorities. The states’ legal power to do all this is clear; it is not martial law …

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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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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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100 Days, Trump, & Precaution

By William C. Banks & David M. Driesen

Environmental law embraces the “precautionary principle” as a guide for decision makers in dealing with uncertainty. The precautionary principle supports taking cost effective measures to address catastrophic or irreversible harm even before we have a complete understanding of an environmental threat, lest we act too late. We act on this common-sense principle when we look both ways before crossing a street or purchase insurance before a flood or hurricane occurs.

“Just as we often do not have a complete understanding of potential environmental threats that we must manage, we cannot know for sure what dangers the unpredictable Trump administration may pose to national security.”

The precautionary principle may prove useful in managing the potential threats that an erratic and unpredictable Trump Administration may pose to national security in the next 100 days and beyond. Troubling revelations about the Trump campaign’s ties with Russia and Russian influence on the election dominated much of the first 100 days.

Trump’s surprising decision to bomb Syria in response to a horrific gas attack on civilians and to claim that he was sending an armada to North Korea (when the ships were headed in the opposite direction) have commanded more attention than the Russian ties toward the end of the first 100 days, in spite of a new revelation that a special court found that the government had probable cause to believe that former Trump advisor Carter Page was a Russian agent.

Just as we often do not have a complete understanding of potential environmental threats that we must manage, we cannot know for sure what dangers the unpredictable Trump administration may pose to national security. Trump’s strike against Syria, while widely applauded as an appealing response to a horrific chemical weapons attack, may do more harm than good to our national security by further marginalizing the role of Congress in authorizing military force and causing Russia to repudiate an agreement to avoid interfering with our efforts to defeat Al Queda.

To what extent will Trump’s unconstitutional travel bans aid ISIS and Al Queda recruitment by suggesting that we disrespect Muslims? Will Russia dangerously assume that we will not defend the Ukraine because of Russia’s ties to Donald Trump? And how much damage may future impetuous decisions cause? We just don’t know.

Furthermore, impulsive unilateral measures can cause catastrophic and irreversible harms—the sort of harm that the precautionary principle is designed to address. the President’s bellicose threats to attack North Korea may make for good television sound bites, but they could lead to nuclear war. And by promising to send a battleship toward North Korea whilst it steamed off in another direction, Trump increased the odds of grave miscalculation by adversaries.

Instead of reacting to each new tweet and tick of the Trump administration we should take precautionary measures before irreversible and catastrophic harm takes place. The Constitution places the war power in the Congress precisely to prevent a single person from making decisions that imperil the country. Congress must now exercise its authority to explicitly limit Trump’s discretion to act unilaterally. Congressmen Edward Markey and Ted Lieu have introduced legislation to prohibit first strikes with nuclear weapons. Congress should hold hearings on that bill and consider other limits on Trump’s war power, such as geographic or enemy-specific limits on the use of military force …

To read the full article, click here.

William C. Banks is Director of INSCT. His colleague David M. Driesen is University Professor at SU Law and an expert in environmental law, law and economics, and constitutional law.

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Soldiers on the Home Front: President Trump & the Military

By William C. Banks & Stephen Dycus

(Re-published from The Hill, Aug. 4, 2016) 

News photos depicting the aftermath of recent terrorist attacks in Paris, Brussels, Istanbul, and Nice show heavily armed soldiers patrolling the streets. Troops have not yet been deployed in response to terrorism in this country since 9/11, but they might be. Americans should be deeply concerned about this possibility. Here’s why.

“If President Trump were as bellicose and bombastic as candidate Trump, he might direct the defense department to take the lead among federal agencies in responding to continuing terrorist threats, despite his tenuous legal authority for doing so.”

Imagine that soon after the presidential inauguration next January several U.S. cities are hit by ISIS-inspired terrorist attacks. Using conventional weapons and truck bombs, jihadists kill dozens of people and injure many more. Intelligence and police officials say they have thwarted other attacks, and they have detained a number of suspects, but others remain at large. Americans everywhere are on edge.

Now imagine that news bulletins begin to report power blackouts on the West Coast. Terrorists have blown up transformers and power lines, and they have mounted a cyberattack on the electric grid. As the blackout rolls eastward, major elements of the nation’s infrastructure — the Internet, public water supplies, the banking system — also start to fail. Widespread panic quickly ensues.

This is not a far-fetched scenario. Many experts believe it’s not a matter of whether, but when.

If Donald Trump were President in January, how would he respond? Would Trump, as Commander in Chief, order military forces out into the streets of American cities? If he did, what would he authorize those troops to do?

If President Trump were as bellicose and bombastic as candidate Trump, he might direct the Defense Department to take the lead among federal agencies in responding to the attacks, despite questionable legal authority for doing so — or he might even declare martial law. He might order troops to patrol the nation’s streets and neighborhoods, arrest citizens, and use military force to maintain order. The new president might even ignore a judge’s orders that found these actions unlawful.

President Trump might follow through on his campaign pledge to bar Muslims from entering the country. Or he might order the Army to spy on those already here. With support from many angry and frightened Americans, he might use troops to imprison all Muslims or even to torture those in military custody.  (He has said of waterboarding, “I like it a lot. I don’t think it’s tough enough.”)

For good measure, the new president might unleash armed drone aircraft over American cities, with orders to kill suspected terrorists and their families.

Finally, in response to the escalating crisis, President Trump might direct military commanders to take over the Internet, radio, and TV, allowing only communications approved by the White House.

If he did any of these things, President Trump would violate a long tradition of avoiding military intrusions into civil society whenever possible.

Americans have always embraced the military at home with caution. We understand the value of a highly disciplined, well-equipped, experienced fighting force to defend against foreign invaders or to help out when civilian authorities are overwhelmed by domestic violence or natural disasters. Sometimes U.S. troops operating on home soil have done what no other government entity could — saving thousands of lives and avoiding huge property losses, as when Hurricane Katrina struck New Orleans …

To read the complete article, click here.

William C. Banks is INSCT Director and Stephen Dycus is a law professor at Vermont Law School. They are coauthors of the recently published Soldiers on the Home Front: The Domestic Role of the American Military.

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Defending the Honor of the US Military From Donald Trump

(Re-published from Foreign Policy, March 4, 2016) We the undersigned have devoted a substantial part of our professional lives to studying, writing, and teaching about American civil-military relations.

We have many disagreements among ourselves on a range of important topics. In particular, we have strong and principled disagreements about politics. We have in the past, and will likely continue, to vote for different candidates for president.

But we all agree on one important matter: if any president orders the U.S. military to commit war crimes, the U.S. military will be legally and professionally obliged to refuse to carry out those orders. Moreover, we believe the U.S. military will, in fact, resist such orders. Refusing to implement them will not be a violation of civilian control of the military. Refusing to carry out such orders will protect the rule of law and the constitutional order, of which civilian control of the military is fundamental.

In the current campaign, one leading candidate, Donald Trump, has repeatedly insisted that he will direct the military to take steps that every reputable legal expert we know has deemed illegal: targeting the families of terrorists and other civilians not directly involved in hostilities for lethal military strikes, and torturing suspected terrorists and their families.

If Donald Trump becomes president and carries through with these campaign promises, the U.S. military will be obliged to refuse these orders.

Let us be clear. Here we are only talking about illegal orders. All candidates for president make campaign promises that are legal but may or may not be wise. We are not suggesting that the U.S. military leaders should or will refuse orders they deem unwise, if those orders are otherwise legal.

We recognize that the United States has a strong record of civilian control of the military. That record depends on senior military leaders understanding and fulfilling their obligations under the law. And it depends on presidents and civilian political leaders understanding their obligations to the rule of law as well.

We call on all candidates to acknowledge these basic truths about democratic civil-military relations. And we call upon Donald Trump to cease promising to issue illegal orders to the U.S. military.

Kenneth Allard

Deborah Avant

Andrew J. Bacevich

William Banks

Richard Betts

Risa Brooks

Thomas Bruneau

Paul Camacho

Eliot Cohen

Thomas Donnelly

Peter Feaver

Eugene Fidell

Aaron Friedberg

Christopher Gelpi

Donald Inbody

Richard Kohn

Peter Mansoor

Alberto Mora

Michael O’Hanlon

Barry Posen

Mitchell B. Reiss

Stephen Peter Rosen

Scott Sagan

David R. Segal

Mady Segal

Kori Schake

Patricia Shields

Charles Stevenson

Jeremy Teigen

Stephen Van Evera

Robert Vitas

Cynthia Watson

Claude Welch

John Allen Williams

Amy Zegart

Philip Zelikow

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Podcast: William C. Banks, Nathan Sales on Justice Scalia Passing & the Future of the Supreme Court

National security law expert William C. Banks in SU College of Law Interim Dean and Director of INSCT. Nathan Sales is Associate Professor of Law at SU Law and a former Deputy Assistant Secretary for Policy Development at the US Department of Homeland Security; his areas of expertise are national security law, counterterrorism law, administrative law, constitutional law, and criminal law. Sales’ scholarship has been cited by the US Supreme Court multiple times.

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INSCT Faculty Discuss Obama’s Announcement to Leave American Troops in Afghanistan Until 2017

(Re-published from The Daily Orange, Oct. 26, 2015) In a major reversal on his commitment to end the almost 14-year-old war in Afghanistan, President Barack Obama announced some United States troops will stay in the country until the end of his term in January 2017.

In a statement made on Oct. 17, the president said about 9,800 American troops will engage in non-combat duties for much of 2016 and 5,500 of them will remain into 2017, characterizing the plan as a “modest but meaningful extension of our presence,” according to The New York Times.

“What the president can do successfully for the next 15 months or so of his administration, along with the others, is to maintain the sufficient level of assistance to the Afghan government, to the Afghan army, and the Afghan national police.”
The Daily Orange spoke to Christopher Ferrero, a post-doctoral fellow in the political science department in the Maxwell School of Citizenship and Public Affairs; Robert Murrett, deputy director of Institute for National Security and Counterterrorism (INSCT); and William Banks, director of INSCT and interim dean of the College of Law about Obama’s change of the Afghan strategy.

The Daily Orange: What was your reaction when you heard the announcement?

Christopher Ferrero: I was glad. I think it’s the common sense thing to do. The Afghan government wants us there. We are making progress against the Taliban; that does not mean that the threat has been eradicated … We do not sustain any strategic damage from maintaining 5,000 to 10,000 troops there. We could sustain strategic damage by withdrawing.

Robert Murrett: I was not surprised because of all of the discussions that have been taking place since the previous announcement that the president made this past spring … relative to the phase of withdrawal from Afghanistan because of the changing circumstances and the ongoing discussions we’ve had with the president of Afghanistan who, in relative terms, has been doing well and also because of the concerns relative to the recent activity by the Taliban. And moreover, [there’s] a broader concern which is voiced by the president and others in the administration about the need to have a longer presence not just in Afghanistan but also other parts of the region because of gains made by insurgents.

The D.O.: Are those numbers of troops specified by the president sufficient to accomplish the goal?

William Banks: It’s a hard question to answer because it’s impossible to know the dynamic of the conflict over the next year and a half. A couple of military assessments that I have seen in the light of his announcement suggested that number—5,500—would be the minimum that could protect the Afghan force, but it may not be sufficient if the Taliban strength continues to increase or if counterterrorism operations that they have to conduct there grow larger and more complex.

The D.O.: Obama has about 15 months remaining in the Oval Office. What do you think the president can achieve in Afghanistan in the meantime?

R.M.: I think what the president can do successfully for the next 15 months or so of his administration, along with the others, is to maintain the sufficient level of assistance to the Afghan government, to the Afghan army and the Afghan national police in ways to provide a sufficient level of security and the path toward a long-term stability in Afghanistan with a central government that has a control of the most of the country.

The D.O.: What do you think of the future of Afghanistan?

C.F.: Afghanistan does not have to become a model democracy for it to be a modest success. As other regions of the Middle East descend into chaos and function as terrorist sanctuaries, I do believe that there is a value in maintaining the interest in the presence in Afghanistan if only to deny sanctuary to hostile forces whether they emanate from the east, which would be Pakistan, the north, which could be Russia and the west, which could be Iran or even Salafi-Jihadists associated with ISIL and al-Qaeda.


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