News & Events

Professor William C. Banks Analyzes Hong Kong National Security Law

How Hong Kong national security law compares to legislation in other countries

(South China Morning Post | July 7, 2020) China’s decision to write up and enact a national security law for Hong Kong was welcomed by city leaders, rejected by protesters, and met with incredulity by some legal authorities, with one remarking that it seemed to apply to “everyone on the planet”. But how does it compare to similar laws elsewhere?

“The striking feature of the new law is that it criminalises expressive behaviour that is not in any way violent.”

National security laws seek to strike a balance between public freedoms and protecting a country, while also shifting in focus as perceived threats change, legal scholars say.

Such a shift was seen after reports by US intelligence agencies that Russia used social media to try to sway the outcome of the US 2016 presidential election, including hacking the campaign of Democratic candidate Hillary Clinton …

… William Banks, a professor emeritus of law with Syracuse University in the United States, said: “[National security] definitions are a game that all governments play. Pay attention instead to how governments treat their citizens.”

Banks said the terrorism sections in Hong Kong’s new law were similar to those in many other countries and were not by themselves problematic.

“The striking feature of the new law is that it criminalises expressive behaviour that is not in any way violent. The sections on secession and subversion are the key provisions,” he said …

Read the full article.

 

Professor William C. Banks to Vox: Southern Deployment Legal, But Is the Wall?

The US military will stay on the US-Mexico border, even with migration falling

(Vox | June 25, 2020) The Pentagon will officially keep as many as 4,000 troops at the US-Mexico border in October — ensuring President Donald Trump’s military deployment continues throughout the election season despite no signs of an actual crisis.

In a Thursday statement, Army Lt. Col. Chris Mitchell, a Defense Department spokesperson, said Defense Secretary Mark Esper approved the Department of Homeland Security’s request for assistance at the border. Most military backup will come from the National Guard, he noted, which will help monitor the frontier, provide logistics, and offer transport to Border Patrol personnel. Troops can’t engage in law enforcement activities.

In a follow-up comment to Vox as to why such a decision was made months in advance, Mitchell said, “The current mission is set to expire at the end of September. This is just an extension of the mission through the next fiscal year.” The new authorized number of troops would actually be a decrease from the 5,500 military personnel currently at the border …

… William Banks, an expert on national security law at Syracuse University, told Vox that such a deployment, like the previous ones, is clearly legal. But, he added, “I continue to question whether the wall construction itself is lawful,” noting that multiple lawsuits proceed.

All this sounds well and good, but the issue is that what was supposed to be a temporary backfill at the border has now become a perpetual solution, and it’s not clear the military is even needed at the Mexico frontier anymore …

Read the full article.

 

Corri Zoli Discusses Arrest of Chinese Researcher with SCMP

US ties activities of arrested Chinese military officer to those by defendant in Boston case

(South China Morning Post | June 25, 2020) US federal prosecutors in Los Angeles have tied the activities of an arrested Chinese military officer conducting research at the University of California to that of a Chinese defendant charged in another high-profile case, in what Washington sees as a coordinated pattern of spying.

The indictments reflect the US government’s efforts to prevent advanced technologies developed in America from being transferred to China’s military, as lawmakers and government officials all the way up to President Donald Trump warn of Beijing’s attempts to undermine national security …

… Corri Zoli, director of research at the Institute for Security Policy & Law at Syracuse University in New York, went further: “I can’t imagine that the Chinese government would be sending active-duty military officers to academic tech programmes, who are on their payroll and engaging is some sort of transfer of research technology, and they’re not somehow involved” in an orchestrated tech transfer strategy, she said.

“These efforts are very much a kind of fourth-generation warfare or information-warfare-type strategy, and this is the way of our contemporary world,” Zoli added.

“It’s not just China doing this. It’s everybody. This is the way that we’re evolving into a new battlespace, but China happens to be very effective at it.”

Read the full article

Corri Zoli Awarded US Intelligence Community Grant to Offer Geopolitical Simulation

Professor Corri Zoli, Syracuse University College of Law Director of Sponsored Research, has been awarded an Intelligence Community Center for Academic Excellence (ICCAE) Program Office grant for a 2020 Virtual Summer Session Simulation project she is spearheading entitled “Strategic Triangulation in Central, South, and East Asia.” The award is made through the US Office of the Director of National Intelligence (ODNI), which directs the national ICCAE program. 

The nationwide ODNI ICCAE Summer Session takes place across 26 July and 7 Aug., 2020. The simulation, which will be presented to ICCAE students twice, draws on the international security subject matter expertise of Zoli, a Co-Investigator for the Syracuse University ICCAE, and Robert B. Murrett, Professor of Practice in the Maxwell School of Citizenship and Public Affairs and SU ICCAE Primary Investigator. Also helping to design the simulation are Professor James Edward Crill II, Forensic and National Security Sciences Institute (FNSSI), College of Arts and Sciences; Professor Margaret Hermann, Director of the Moynihan Institute of Global Affairs, Maxwell School; Professor Michael Marciano, Associate Director of FNSSI Research; and Professor Robert A. Rubinstein, Distinguished Professor of Anthropology and Professor of International Relations, Maxwell School. 

“The ODNI ICCAE online simulation scenario reflects today’s highly dynamic strategic environment and the stressors currently faced by the 17 elements of the US Intelligence Community (IC) and our national security institutions,” explains Zoli. “This environment is characterized by complexity and unpredictability, asymmetric actors, transformative technology, and global economic and public health variables, to name just a few challenges.” To provide a realistic geopolitical theater, the simulation begins with a recent real-world event: on April 2, 2020, an Indian quadcopter was shot down by the Pakistan Army after it violated Pakistan’s airspace in the Sankh district and entered 600 metres into Pakistan’s territory to conduct surveillance. 

“As the simulation unfolds, ICCAE students will discover, through plot-twists and seemingly unrelated incidents in Afghanistan—including the release of a modified vaccinia virus and the recovery of fissile material from a dirty bomb—that China is influencing actors in the background,” explains Zoli. The students, adopting various roles in the IC community, must puzzle their way through this combustible mix of events, involving operationalized chemical and nuclear capabilities, illicit global economic collaboration, disrupted supply chains, and the role of transnational critical infrastructure, such the Chinese Belt and Road Initiative. 

“ICCAE students will play US intelligence analysts from many of the 17 IC agencies and must make sense of the threats and opportunities that these kaleidoscopic challenges create,” says Zoli.

Zoli explains that in the interdisciplinary spirit of the SU ICCAE program, the simulation exercise is the result of a collaborative partnership that includes faculty from the College of Law, College of Arts and Sciences, and the Maxwell School. Zoli adds that several of her College of Law colleagues also will share their expertise with participating ICCAE students from across the nation. Furthermore, SU ICCAE graduate students have been invited to join with and mentor ICCAE summer session students during the simulations. 

About SU ICCAE

Recently renewed for year two, the Syracuse University Intelligence Community Center for Academic Excellence (SU ICCAE) is a Congressionally-mandated, $1.5 million federal award program designed to increase the recruitment of diverse candidates into US public service and the 17 agencies of the Intelligence Community. SU ICCAE—which includes minority-serving partner institutions CUNY Grove, CUNY John Jay, Norfolk State University, and Wells College—is open to all Syracuse University faculty and students. Embracing a broad understanding of diversity, SU ICCAE prioritizes the central role and contribution of diversity to public service, building next-generation knowledge professionals, and the ethics and rule of law tradition essential to US security policy and governance.

Professor William C. Banks Speaks to PBS Newshour About National Guard Deployments

‘Optics matter.’ National Guard deployments amid unrest have a long and controversial history

(PBS Newshour | June 9, 2020) When major protests erupted in dozens of cities around the country in the wake of George Floyd’s death, many states responded by calling on the National Guard to police demonstrations and to enforce curfews.

“They are members of the military, not law enforcement.”

In all, more than 30 states activated about 32,000 National Guard members to supplement local police efforts to manage the unrest, which was largely lawful, but in some cases resulted in the destruction of businesses and instances of violence.

A number of high profile clashes between law enforcement and protesters have prompted criticism about what many have decried as excessive use of force — the very issue that gave rise to the demonstrations.

For decades, the guard has served the dual function of operating both domestically, in a number of capacities, and internationally. For instance, about 60,000 additional guard members are assisting this year with public safety efforts amid the coronavirus pandemic and natural disaster preparation and response as tropical storm season gets underway. But in light of recent confrontations, many are questioning the wisdom of using trained military to monitor American civilians protesting on American soil …

… The National Guard is trained to help domestically in a variety of capacities, said William Banks, a professor emeritus at Syracuse University College of Law. “That said, they are members of the military, not law enforcement, so they are largely trained to supplement military jobs,” Banks said …

Read the full article.

Seventh Edition of National Security Law Casebook Published

National_Security_Law_7th_EditionThe field’s leading casebook, National Security Law, has been published in its seventh edition by the Aspen Casebook Series.

Edited by Professor Emeritus William C. Banks, in collaboration with Stephen Dycus, Peter Raven-Hansen, and Stephen I. Vladeck, for the last 30 years, National Security Law has helped create and shape an entire new field of law. It has been adopted for classroom use at most American law schools, all of the military academies, and many non-law graduate programs.

Relying heavily on original materials and provocative notes and questions, this book encourages students to play the roles of national security professionals, politicians, judges, and ordinary citizens. By showing the development of doctrine in historical context, it urges them to see their responsibility as lawyers to help keep us safe and free.

Like earlier editions, the new book deals with basic separation-of-powers principles, the interaction of US and international law, the use of military force, intelligence, detention, criminal prosecution, homeland security, and national security information.

New to the Seventh Edition:

  • Latest developments on US military involvement in Syria and Iran
  • President Trump’s Border Wall and appropriations power
  • Carpenter v. US and recent FISA developments and FISC decisions
  • President Trump’s travel ban
  • “Defending forward” in cyberspace
  • A new chapter on nuclear war

 

Professor Mark Nevitt Weighs In on Invoking the Insurrection Act

As President Donald J. Trump threatens to invoke the Insurrection Act as a response to protests, riots, and acts of civil disobedience in the aftermath of the death in policy custody of Minneapolis resident George Floyd, the media in the US and abroad has turned to national security expert Professor Mark Nevitt to explain what the law is and what the Trump Administration can and can’t do to quell civil unrest …

The Insurrection Act, the 1807 law Trump could use to deploy troops to curb protests, explained

(Vox) | June 2, 2020

… By far the most important of those authorizations—and the one most likely to come into play in this situation—is the Insurrection Act.

“This is the legal key that unlocks the door to use federal military forces … to quell civil unrest,” Mark Nevitt, a military law expert at the US Naval Academy, wrote for the Just Security website last Friday.

Nevitt noted two main ways the Insurrection Act could be invoked for the protests …

Trump threatens to invoke Insurrection Act 

(Politico) | June 2, 2020

The last time the Insurrection Act was invoked was to quell riots in Los Angeles in 1992 after a request by then-Gov. Pete Wilson.

But retired Navy Cmdr. Mark Nevitt outlined in an analysis on Monday those provisions in the law that Trump could use without the consent of governors …

Can Donald Trump really invoke the Insurrection Act to send troops into states?

(PolitiFact) | June 2, 2020

… “In requesting federal troops to patrol Los Angeles, (California Gov. Pete) Wilson specified that the California National Guard lacked the ability to quell the domestic disturbance,” wrote Mark P. Nevitt, a professor at the U.S. Naval Academy. President George H.W. Bush then issued an executive order that authorized the defense secretary to federalize the California National Guard and deploy active-duty Army and Marine personnel.

However, such decisions have not been made lightly, Nevitt wrote, even in the direst of emergencies …

Five things to know about Trump’s legal power under the Insurrection Act

(The Hill) | June 2, 2020

… if a U.S. military member were to adhere literally to Trump’s controversial invocation of the phrase “when the looting starts, the shooting starts,” Nevitt wrote, it would mark a clear violation of the rules …

George Floyd protests: Trump threatens to deploy ‘heavily armed’ US military

(The Independent) | June 2, 2020

“Can Trump use the Military to respond to Minneapolis? Yes, but this is subject to certain, critical legal restrictions under both the Posse Comitatus Act and the Insurrection Act,” Mark Nevitt, a law professor at the US Naval Academy wrote for Just Security.

“The Insurrection Act is, by far, the Posse Comitatus Act’s most important exception,” Mr Nevitt added. “This is the legal key that unlocks the door to use federal military forces – whether through federalising the National Guard or calling in “’title 10 forces’ to quell civil unrest” …

Putting Arms Control at Risk: Trump’s Hasty Play with the Treaty on Open Skies

By Kamil Szubart*

The US decision to withdraw from the Treaty on Open Skies (OST) announced by President Donald J. Trump on May 22, 2020, and then followed by a notice submitted by the US Department of State to the depositaries and all other state-parties to the Treaty, seems to be a next step of the Trump Administration’s efforts to dismantle an arms control architecture[1].

“A cornerstone of the OST is trust-building-values and predictability among all 34 state-parties.”

This time, President Trump has decided to demolish a framework for conventional arms control.

The pull-out of the United States from the INF Treaty in August 2019, and the current resolution toward the OST, has simply led to the decrease of confidence between NATO allies, and it harms both US and European security interests undermining the sense of keeping and developing the arms control systems (both conventional and nuclear) at all. So far, 10 foreign ministers of the European state parties of the treaty have expressed regret over the US announcement[2].

By this step, the Trump Administration will give Russia a useful tool to deepen divisions within the NATO alliance and booster anti-American narrative throughout Europe, especially in Germany and France.

The decision will benefit the Kremlin much more than preventing Russian inspectors from making observation flights over the US territory and gleaning intelligence data on the US critical infrastructure reportedly. Finally, the sudden step of President Trump would likely have an impact on possible bilateral negotiations with Russia to extend the New START Treaty signed by presidents Obama and Medvedev in Prague on April 8, 2010, which expires in February 2021[3].

Understanding the Meaning of Conventional Arms Control

The OST has remained a crucial pillar of the conventional arms control system founded at the end of the Cold War era.

Alongside the 1990 Treaty on Conventional Forces in Europe (CFE Treaty) and the Vienna Document (V.D.), politically binding agreement with its last updated in 2011, the OST has belonged to stand-alone confidence, and security-building measures (CSBMs) developed in the framework of the CSCE/OSCE[4].

Signed on March 24, 1992, and in force since Jan. 1, 2002, the accord permits each of state-parties to conduct short-notice, unarmed, reconnaissance flights over the others’ territories to collect data on military forces, facilities and activities, especially drills and troops’ movements[5].

Each aircraft be equipped with sensors that enable them to observe and identify significant pieces of military equipment, such as main battle tanks, pieces of artillery, jet fighters, combat helicopters or armored fighting vehicles. Through the 1990s and in early 2000s, 34 countries from the OSCE (the Treaty’s initial 27 signatories) have joined and ratified the OST while Kyrgyzstan (a 35th) has signed but not ratified it so far[6].

According to the Treaty, observation flights can be carried out over the others’ entire territories, and no area can be declared off-limits by the state-party[7]. In practice, tensions between the OST state-parties have led to a partial suspension of the Treaty’s provisions.

“The decision to abandon the OST will be costly to the US, and the “deal-making” President Trump should be held accountable.”

Since 2010, the Russian Federation has excluded the provision of the OST alongside its border with Abkhazia and South Ossetia due to having recognized both separatist republics as independent states. In response, Georgia has, since 2012, formally suspended Russia’s right to observe its territory. In 2014, Russia imposed a 500-kilometer limit on the OST flights over Russia’s heavily armed Baltic exclave Kaliningrad. The Russians have justified the decision referring to a paragraph of the OST that allows for the legitimate refusal of access to an area bordering a non-signatory state. In 2017, the Trump Administration suddenly declared Russia’s violation of the OST, and it restricted Russian access to Hawaii and Alaska in retaliation[8].

All scheduled observation flights are based on passive and active quotas agreed by the all state-parties annually. A passive quota refers to a certain number of overflights and the geographic size of host-state determines it[9]. Larger state-parties such as the US, Russia sharing its quotas with Belarus—42 quotas a year for the US and Russia each—or Ukraine (12 quotas) hold a higher number of quotas than Portugal or Denmark (Portugal have two and Denmark, six 6).

An active quota is the number of flights it may conduct over other OST countries. The OST does not require state-parties to use all quotas every year. However, the allocation of flights cannot be transferred for the next year. The first flights within the OST regime were carried out in August 2002, and since that time, more than 1,500 air observations have been conducted (including 77 US flights over Russia’s territory).[10]

The Treaty regulates all aspects related to the observation flights, including the time of each flight (which must be completed within 96 hours after arrival at the point of entry), the necessity to submit advance notices (72 hours before the scheduled flight), specific points of entry and exit and refueling airfields, flight plans, information on inspectors, and more.

The OST indicates if each observing party may use its observation aircraft or if it must use planes supplied by the host country. Some state-parties to reduce costs have not owned observation aircraft and exploited aircraft of allies, such as the NATO member countries conducting joined observation flights over Russia and other non-NATO countries[11].  

The Treaty Is not a Primary Intel Asset

Using the Treaty as an intelligence-gathering could have been useful during the Cold War era, but not now.

Although Russia has decided to place within its both aircraft (Tu-214 and Tu-154) used in the OST missions, new digital systems possess a more excellent range and an advanced processing capability, and the imagery could be similar to that available on the commercial market of satellite imagery.

However, under the provision of the Treaty, all new sensors and aircraft must be certified and approved by all states-parties gathered in a decision-making body of the OST: the Open Skies Consultative Commission (OSCC). Subsequently, a copy of all data gleaned during each OST flight must be supplied to the overflown state party. Moreover, all state parties receive a mission report from each single observation mission and have the right to purchase the data gleaned by the observing state party.

Therefore, there is no doubt that the information the OST countries, including Russia, collected under the provision of the Treaty is only a value in addition to other means of intelligence gathering, especially satellite imagery. States, including some state-parties, with capabilities in imagery intelligence, can typically obtain better imagery and collect it without informing or passing to review collected data to the other party.

The Priceless Values of Détente

A cornerstone of the OST is trust-building-values and predictability among all 34 state-parties.

The Treaty undoubtedly helps to increase transparency and communication between its members. It symbolizes cooperation between distrustful countries or politico-military alliances, and in that respect, is a model for behavior. The OST is also a risk-reduction mechanism to ease tensions between the state-parties. Finally, inspectors on both sides get to know one another during the field implementation of the Treaty, leading to more interaction and more exceptional communication at the inspection level.

Although the Treaty has been in force for 18 years, the idea to set up a framework for each other’s reconnaissance flights over the territories of the US and the Soviet Union sparked in the peak of the Cold War. In 1955, President Dwight Eisenhower proposed an agreement between both countries to permit aerial reconnaissance flights over each other’s territory.

Unfortunately, the US proposal was rejected by the Kremlin, claiming the initiative would be used for espionage. The idea was not abandoned definitely, and President George H.W. Bush resurrected it in 1989. The negotiations between the NATO Alliance and the Warsaw Pact were launched in 1990, parallel to simultaneous talks on the CFE Treaty signed in Paris on Nov. 19, 1990[12].

Both conventional and nuclear arms control systems were born at the end of the Cold War and mirror that era. However, significant progress has not been achieved since that time. Although the 2010 New START Treaty should be considered a small step forward, in the meantime, the systems have been demolished by technology, such as satellite imagery, as well as Russia’s pivot in its foreign and security policy (and that seems to be heading for a confrontation with the West under Putin).

In 2007, Putin announced the suspension of Russia’s participation in the CFE Treaty. Subsequently, in March 2015, Russia abandoned its place in the Treaty Joint Consultative Group (JCG), a main decision-making body of the CFE Treaty[13]. The Trump Administration also has taken steps to disassemble of the architecture of arms control worldwide, first with the shutdown of the INF Treaty, and now tinkering with the OST.

Risks Over Benefits

The decision to abandon the OST will be costly to the US, and the “deal-making” President Trump should be held accountable.

First, Russia will use the abandonment as a diplomatic weapon to give saliency to the US as a country that has destroyed foundations of the international arms control systems and the concept of comprehensive and cooperative security. Moscow will feature Washington as an untrustworthy and unpredictable partner for cooperation, especially regarding politico-military dimensions. It is also sending a contradictory signal concerning the extension of the New START that expires in 2021, giving Russia a reliable card in this diplomatic play.

Secondly, the exit from the OST will leave the US at a disadvantage position among European allies from NATO, so the US should be prepared for heavy criticism coming from Berlin and Paris and a dozen of other European capitals. The US decision will be seen among European NATO partners as one more instance where the Trump Administration ignores the views and interests of its allies.

Thirdly, it is evident that Russia will use the US decision to put more substantial pressure on the US allies in Eastern Europe, such as the Baltic States, by arousing insecurity concerning an American military engagement in Europe and its allied credibility.

The goal of Moscow would be to deepen divides within NATO, especially between allies on NATO’s eastern flank and the others. Concurrently, Russia would offer an alternative to the US exit from the OST by proposing Europeans its initiatives either to replace the OST or to renew conventional arms control and cooperative security in Europe without the US. Russian propositions in this matter would surely be taken into consideration by governments of a couple of European allies.

However, there is a positive sign of the Trump Administration’s decision. It will not be the necessary for the US taxpayer to invest in replacing the more than 50-years-old Boeing OC-135B aircraft that US observers and their allies use for combined OTS flights[14].

But in other aspects, the US will lose. There is still a chance to revoke the decision because it will come into force in six months. However, the clock is ticking.


*Kamil Szubart was a 2017 visiting fellow at the Institute for Security Policy and Law (formerly INSCT), via the Kosciuszko Foundation. He worked as a security and defense analyst for think tanks in Poland and abroad, where he was responsible for German security and defense policy, transatlantic relations, Islamic terrorism threats in German-native-speaking countries, and topics related to NATO, CSDP, OSCE, and conventional arms control. He completed international courses on the CFE Treaty and Vienna Document in the Bundeswehr Verification Center in Geilenkirchen, Germany, and the OSCE in Vienna, Austria. The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the author’s current workplace.


[1] https://www.state.gov/on-the-treaty-on-open-skies/

[2] https://www.politico.eu/article/europeans-regret-us-plan-to-withdraw-from-open-skies-treaty/

[3] https://www.state.gov/new-start/

[4] https://www.osce.org/arms-control

[5] https://edition.cnn.com/2019/10/09/politics/what-is-the-open-skies-treaty-intl/index.html

[6] The 34 state-parties (plus Kyrgyzstan) to the OST are: Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Canada, Croatia, the Czech Republic, Denmark (including Greenland), Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Italy, Kazakhstan, Latvia, Lithuania, Luxembourg, the Netherlands, Norway, Poland, Portugal, Romania, the Russian Federation, Slovakia, Slovenia, Spain, Sweden, Turkey, Ukraine, and the United Kingdom.

https://www.osce.org/library/14127?download=true

[7] https://www.osce.org/library/14127?download=true

[8] https://www.nti.org/learn/treaties-and-regimes/treaty-on-open-skies/

[9] https://www.osce.org/library/14127?download=true

[10] https://www.economist.com/united-states/2020/05/21/donald-trump-abandons-the-open-skies-treaty

[11] https://www.osce.org/library/14127?download=true

[12] https://armscontrolcenter.org/treaty-open-skies/

[13] https://www.nti.org/learn/treaties-and-regimes/treaty-conventional-armed-forces-europe-cfe/

[14] https://www.defensenews.com/air/2020/03/04/dod-wont-offer-contract-for-new-open-skies-plane-until-treaty-future-clear/

“An Extraordinary State of Being”: William C. Banks Discusses Use of Troops on Home Soil

As nation reels, Trump’s focus is strength, not unity

(Christian Science Monitor | June 3, 2020) William Banks, a professor emeritus of law at Syracuse University, says Mr. Trump has the right to invoke the law, but notes that it was envisioned for a much larger threat than what we’re seeing now.

“You want to come to the aid of the states when states can’t take care of themselves,” he says.

By threatening to invoke the act, Mr. Trump is trying not to appear weak during a domestic crisis, says Professor Banks. But at the same time, he adds, past uses of the law have been unpopular, and governors in crisis-ridden states today might welcome having Mr. Trump seize the spotlight – and take on any blame …

Read the full article.


Trump wants to crush Black Lives Matter with a law that fought segregation

(The Washington Post | June 2, 2020) Not satisfied by tear gas, rubber bullets and threats to use “vicious dogs” and “ominous weapons” against citizens protesting racism and police violence, President Trump threatened Monday night to send the U.S. military into any cities where local officials fail to control crowds of unruly protesters. His secretary of defense, Mark T. Esper, obligingly chimed in on the need for troops to “dominate the battlespace” in American cities.

Trump appears to be planning to invoke the Insurrection Act, which would turn his administration’s dystopian fantasy of urban combat against U.S. citizens into a reality …

… In 1957, when nine black students attempted to enter an all-white school in Little Rock pursuant to a federal court order, then-Gov. Orville Faubus sent troops from the Arkansas National Guard to block them.

With state troops under the command of a governor openly defying an order of the federal courts, writes legal historian William Banks, President Dwight D. Eisenhower scribbled his thoughts in a handwritten note: Standing by “in the face of organized or locally undeterred opposition by violence” would, he feared, cause “the entire court system [to] disintegrate” and lead to “the destruction of our form of gov’t.”

Reluctantly, he invoked the Insurrection Act the next day, and soldiers from the Army’s 101st Airborne Division formed a protective cordon to allow the nine black students to walk safely to class …

Read the full article.


Here’s What You Need to Know About The Pentagon’s Riot Response and Martial Law

(Military.com | June 2, 2020) The Pentagon has ordered a small contingent of active-duty soldiers to alert status, on standby to join thousands of National Guard troops to help police quell civil unrest amid protest demonstrations across America. But the unprecedented situation is still a long way from martial law, legal experts say …

… Martial law is an “extraordinary state of being, and it basically means the government isn’t in control at all; there is no law. Martial law is the power of a commander,” Banks said.

“The last time the law was declared in the United states was in Hawaii during World War II,” he said, describing the military’s response after the Japanese attack on Pearl Harbor, which resulted in Japanese Americans being put in internment camps.

In fact, Banks said, there is no longer a “publicly known procedure” for the enactment of martial law.

“Years ago, there were some regulations within the [Defense Department] that spoke to the possibility of martial law, but they have been taken off the books,” he said. “We can’t see them, so we don’t even know if they exist anymore” …

Read the full article.

The President, the Military, and Minneapolis—What You Need to Know

By Professor Mark P. Nevitt

(Just Security | May 29, 2020) In the aftermath of the tragic killing of George Floyd by a Minneapolis police officer, riots and unrest have been spreading throughout the city of Minneapolis and the country. The Minnesota National Guard has been activated by Minnesota Governor Timothy Walz. These Minnesota National Guard members report to the governor and can actively take part in law enforcement functions, which they are doing.

But now, President Donald Trump is involved too.

The president tweeted Thursday night that he 

can’t stand back & watch this [the riots] happen to a great city, Minneapolis. A total lack of leadership. Either the Radical Left Mayor, Jacob Frey, get his act together and bring the city under control, or I will send in the National Guard and get the job done right.

Further, Trump stated that he “just spoke to Governor Walz and told him that the Military is with him all the way. Any difficult and we will assume control but, when the looting starts the shooting starts . . . ”

Beyond their deeply troubling moral messaging, there are two key legal issues associated with these remarkable tweets (outside of Trump’s showdown with Twitter, which placed a warning on the tweet, saying it glorified violence):

  • Under what conditions can the president order the military to respond to Minneapolis?
  • What are the military’s rules for the use of force—i.e. does looting justify shooting?

Can Trump Use the Military to Respond to Minneapolis? 

Yes, but this is subject to certain, critical legal restrictions under both the Posse Comitatus Act and the Insurrection Act. The president is, of course, the commander-in-chief of the Armed Forces, but he lacks the authority to use the military in any manner that he pleases. That authority is constrained by Congress and the courts.

Under the 1878 Posse Comitatus Act, Congress has limited the president’s ability to use the federal (title 10) military in domestic law enforcement operations such as searches, seizures, and arrests. A criminal statute, the Posse Comitatus Act makes it unlawful for the Army or Air Force to “execute the laws . . . except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” So, the president cannot simply call in federal military forces or nationalize the Minnesota National Guard to quell the civil disturbance in Minneapolis without pointing to a Posse Comitatus Act exception …

Read the full article.

Mark P. Nevitt is an Associate Professor of the College of Law and an SPL Afiliated Faculty member.