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Professor William C. Banks to Participate in “Law and Logics of Attribution” Conference

Professor Emeritus William C. Banks will be among the presenters at the University of Georgia School of Law conference on “The Law and Logics of Attribution: Constructing the Identity and Responsibility of States and Firms.” The conference will be held online via Zoom on Sept. 11 and 18, 2020, from 1 to 5 p.m. both days.

Also sponsored by The American Society of International Law International Legal Theory Interest Group and the Dean Rusk International Law Center, the conference will ask, “When private companies perform governmental functions and governments own companies, which acts should be attributed to the state? Which should be attributed to the corporation? And whose religious beliefs, speech rights, and moral standing can those entities claim?”

In international law, scholars and practitioners struggle to attribute rights and responsibilities between state and private entities in areas as diverse as military contracting, environmental accountability, human rights, international investment, cyberespionage, and warfare. In the corporate governance realm, attributing responsibility to entities is increasingly challenging in the context of globally dispersed corporate families with intricate parent-subsidiary structures.

This conference will draw together corporate and international legal scholars, as well as thinkers outside the law, in order to consider theoretical and doctrinal approaches to attribution, potential consequences of these approaches, and whether they may reconcile the ambiguities and deficiencies that drive current debates.

 

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Professor Corri Zoli: US Intelligence Warns of Foreign Election Interference

With less than 100 days to go before the US election, US intelligence officials are warning of attempted election interference by Russia, China and Iran, according to an update from the Office of the Director of National Intelligence. Professor Corri Zoli’s research focuses on contemporary problems of warfare from an interdisciplinary social science, public policy, and law perspective, and one track of her research investigates the changing nature of the US military force structure and the challenges of asymmetric warfare for military personnel.

“Director Evanina’s message is also designed to educate Americans and all private and government entities to adopt an aware and ‘hardened’ posture.”

“Election interference from foreign actors is a common and persistent concern in the United States (as well as in other democracies),” says Zoli. “Open systems with free markets, free speech, and robust public spheres are always subject to influence operations by actors, state and non-state, with their own agendas. These influence agendas may be motivated by political and economic interests, an opportunity for peer competitors to gain an advantage or edge over the US, or they may be efforts to simply test the strength and resilience of US public democratic institutions and processes, to see how far they can exercise power and influence on an unsuspecting American public.

“The recent statement by William Evanina, at the US Office of the Director of National Intelligence Director of National Counterintelligence and Security Center, should be read as a positive, proactive posture on the part of the federal government. It indicates that US Intelligence professionals are ready and aware of these multifaceted election threats. Part of the purpose of Evanina’s message is to publicize the issue—to make ordinary Americans aware that bad actors will try to influence them through information campaigns, including on social media platforms.  

“The reach of those influence campaigns also includes cyber acts targeting election systems and infrastructure. The US is somewhat distinctive in the diversity of our election systems among municipalities and states, with multiple redundancies and post-election auditing procedures, all of which makes voter fraud less likely. There are recent cases of US based election interference by vote tampering, evident in recent prosecutions of individuals, including over 900 criminal convictions across the US of individuals attempting to change or remove votes (false registration, buying votes, misuse of absentee ballots, etc.)—but still the scope of that problem is relatively small.

“Director Evanina’s message is also designed to educate Americans and all private and government entities to adopt an aware and ‘hardened’ posture about foreign influence campaigns in social and traditional media designed to shape US voters’ perspectives and preferences by manipulating fears—about COVID-19 and the pandemic response, recent protests and riots across the nation, political division, etc.”

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Professor Corri Zoli Helps Empower Veterans at Virtual Academic Boot Camp

Professor Corri Zoli was among University faculty who, for the sixth year in a row, helped teach in the esteemed Warrior-Scholar Project (WSP), a no-cost academic boot camp for first-year student veterans. Normally held on campus to allow for a comprehensive campus experience, the program was moved online this year in light of the COVID-19 pandemic.

Hosted at 18 select institutions nationwide, WSP empowers enlisted military veterans by providing them with a skill bridge to enable a successful transition from the battlefield to the classroom, maximizes their education opportunities by making them informed consumers of education, and increases the confidence they will need to successfully complete a rigorous four-year undergraduate program.

This year’s cohort of nine included four active duty incoming students, four veterans and a reservist, all members of the US Army, US Navy or the US Marine Corps. Participants attended virtually from Hawaii, New York, North Carolina, Texas, Washington, Washington DC, Nevada, Ohio and Iowa.

The project at Syracuse University is a collaborative effort of the Office of Veteran and Military Affairs and the College of Arts and Sciences. Syracuse faculty who taught during this year’s program include, among others:

  • Corri Zoli, Associate Teaching Professor, College of Law and Maxwell School
  • Tessa Murphy, Assistant Professor, Maxwell School
  • David Bennett, Professor Emeritus, Maxwell School
  • Eileen Schell, Professor, College of Arts and Sciences
  • Genevieve García de Müeller, Assistant Professor, College of Arts and Sciences

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Hon. James E. Baker in the NYT: Invoke the DPA During the Coronavirus Surge

Virus Surge Brings Calls for Trump to Invoke Defense Production Act

(The New York Times | July 22, 2020) Experts, medical workers and elected officials are reviving their call for the Trump administration to ramp up its use of the Defense Production Act to secure critical medical supplies.

In March, as the coronavirus pandemic took hold in the United States and pressure from cities and states grew, President Trump used the act to press General Motors to begin production of ventilators. But four months later, frustrated by what they describe as a lack of federal leadership in the face of continued shortages, critics say the Trump administration is not wielding the act to the extent that it can and should.

“What the federal government—the president or secretaries possessing delegated authority—have not done yet is use the D.P.A. to create a permanent, sustainable, redundant, domestic supply chain for all things pandemic: testing, swabs, N95 masks, etc.,” said Jamie Baker, a former legal adviser to the National Security Council and a professor of national security law at Syracuse University …

Mr. Baker, the national security law professor, said he worried that the federal government’s struggle to supply swabs and protective gear might portend difficulties in widely distributing a vaccine.

“Whatever vaccine is produced, it’s going to involve a vial and a needle,” he said. “If we cannot figure out how to produce enough swabs or tests, will we figure out how to produce enough vaccine or treatments?”

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Chinese Hacking Indictments: Professor Corri Zoli Speaks to SCMP

US indicts Chinese hackers on charges of targeting coronavirus vaccine data and defence secrets

(South China Morning Post | July 22, 2020) The US government has indicted two Chinese nationals in connection with long-running cyber espionage operations that aimed to net information on Covid-19 vaccines, military weapons and human rights activists, in what is the second Justice Department indictment against individuals from China in recent days.

“You’re seeing more inter-agency cooperation to manage this threat.”

Li Xiaoyu, 34, and Dong Jiazhi, 33, were charged with 11 counts of conspiracy, identity theft and fraud related to operations carried out from China since 2009, some in conjunction with China’s Ministry of State Security (MSS), according to an indictment filed on July 7 with the US District Court for the Eastern District of Washington and unsealed on Tuesday …

…“This is information warfare so there’s a lot of evasion and distraction going on here,” said Corrinne Zoli, director of research at the Institute for Security Policy & Law at Syracuse University in New York. “I think the issue is not that the Chinese need more clinical data to sort out their own vaccine programmes.”

China is more likely to be “trying to probe the US response to what really is an economic and security threat that is the pandemic”, she added. “They’re trying to figure out if the response is leading to the US to be more stable or unstable, if their response is indicative of a government that resilient or a government that’s in crisis” …

… “What you’re seeing now is just an administration that’s got a more of a forward posture … you’re seeing more inter-governmental operability, you’re seeing more inter-agency cooperation to manage this threat,” said Zoli. “Any nation state that has capacity, and usually that’s any nation state with a developed military, is going to have some information warfare capacity,” including the US.

The difference, she added, is that while the US government limits cyber espionage to the countering of national security threats, China is more inclined to hack for economic and commercial secrets as well.
“That’s where I think they are in a league of their own,” she said …

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National Security, Climate Change Expert Mark Nevitt Joins Syracuse University College of Law

Mark NevittAn expert in the intersection of national security and climate change, Mark P. Nevitt has joined the Syracuse University College of Law faculty as Associate Professor. Beginning in fall 2020, Nevitt will teach national security law, climate change law and policy, environmental law, and constitutional law. He will be affiliated with the Syracuse University Institute for Security Policy and Law (SPL).

Before joining Syracuse, Nevitt served as the Distinguished Professor of Leadership and Law at the US Naval Academy in Annapolis, MD. From 2017 to 2019 Nevitt served as the Sharswood Fellow, Lecturer-in-Law at the University of Pennsylvania Law School, where he taught climate change law and policy, as well as a seminar on national security, law, and society.

Nevitt has written on climate change, environmental, and national security law in the Harvard Environmental Law Review, Washington University Law Review, Boston College Law Review, Georgia Law Review, Berkeley Journal of International Law, and Cardozo Law Review. His chapter “Environmental Law in Military Operations” was published in US Military Operations: Law, Policy, and Practice (Oxford University Press, 2016). He is a frequent contributor to New York University School of Law’s influential Just Security blog and Penn Law’s Regulatory Review.

Nevitt’s current research focuses on climate change and its destabilizing impacts on many areas of law. “My projects address international governance gaps in addressing the ‘super-wicked’ problems caused by climate change, to include its existential threat to small island nations,” says Nevitt. “I am also researching numerous legal issues associated with how the United States manages retreat from areas exposed to climate change, an issue which has enormous implications for environmental law and environmental justice, as well as how we conceptualize both national security and human security.”

“Professor Nevitt’s work across a range of national security topics—and most significantly for our age, climate change—expands the teaching and research capacity of the Institute for Security Policy and Law,” says Dean Craig M. Boise. “Our students will benefit not only from his extensive research and teaching experience but also his experience with operational law, as a JAG officer and public servant. Along with SPL Director Judge Jamie Baker, I welcome Mark to Syracuse and look forward to his contributions to our strategic research initiatives.”

“At SPL our mission is to inspire and to prepare the next generation of thought leaders and practitioners in the national security field,” say SPL Director the Hon. James E. Baker. “Mark will help us do that by bringing to Syracuse a rare blend of practical experience and academic rigor. He also brings an important focus to one of this century’s most important security and humanitarian challenges—Mark’s presence immediately makes SPL a national leader in the study of climate change and national security. What is more, he is a wonderful person who will help teach and mentor Syracuse students to serve a greater good.”

Before his academic career, Nevitt served as both a tactical jet aviator and a Judge Advocate General’s Corps attorney in the US Navy. As an aviator, Nevitt flew more than 1,000 hours and accumulated more than 290 carrier arrested landings. 

As a JAG attorney, Nevitt served in assignments with a focus on environmental, administrative, and international law. While serving as the Regional Environmental Counsel in Norfolk, VA, Nevitt tackled emerging legal and policy issues posed by the intersection of climate change and national security. Nevitt also helped provide legal advice to the US Navy’s investigation into the 2016 Iranian detention of Navy sailors in Farsi Island, investigating issues of international, national security, and administrative law. His military awards include the Air Medal and Meritorious Service Medal (four awards).

Originally from Rhode Island, Nevitt received his J.D. and LL.M. (with distinction) from the Georgetown University Law Center, his Bachelor of Science in Economics from the Wharton School, University of Pennsylvania, and a National Security Diploma from the US Naval War College.

Nevitt joins a deep bench of national security thought-leaders recruited by Judge Baker. These appointments include Associate Director Tom Odell, a former litigator at Covington & Burling LLP, where his practice focused on international arbitration, arbitral award enforcement, and corporate disputes. For SPL, Odell teaches postconflict reconstruction and computer crimes, among other subjects.

SPL also has added five distinguished fellows drawn from the upper echelons of the national security and intelligence communities: Steve Bunnell (Distinguished Fellow of Homeland Security), Co-Chair, Data Security and Privacy Practice, O’Melveny & Myers LLP; Rajesh De (Cybersecurity and Data Privacy), Partner, Mayer Brown LLP; Avril D. Haines (National Security Policy and Law), Commissioner, National Commission on Military, National, and Public Service and Deputy Director, Columbia World Projects; Amy Jeffress (National Security Law and Transnational Criminal Law), Partner, Arnold & Porter; and Lala R. Qadir (Emerging Technologies), Associate, Covington & Burling LLP.

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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 …

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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 …

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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.”

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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.

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