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“Preposterous:” Professor William C. Banks Speaks to Military Times on Calls for Martial Law

Calls for martial law and US military oversight of new presidential election draws criticism

(Military Times | Dec. 2, 2020) The idea that the U.S. military would oversee a new nationwide presidential election — ordered under martial law by President Donald Trump — is “insane in a year that we didn’t think could get anymore insane,” a defense official tells Military Times.

“Martial law has no place in the United States.”

Yet retired Army Lt. Gen. Michael Flynn promoted that exact idea Tuesday evening when he tweeted a press release from an Ohio-based conservative political organization …

… The idea is “preposterous,” said Bill Banks, a Syracuse University professor with expertise in constitutional and national security law.

“Apart from the fact that state and now federal investigators have found no evidence of election fraud that would change the election outcome, martial law has no place in the United States absent a complete breakdown of civil governing mechanisms,” he told Military Times.

Martial law, he added, “simply has the military in charge, subject only to military orders, not civilian law.”

It has not been invoked in the U.S. “since the attack on Pearl Harbor, and there is no likelihood or justification for martial law now,” said Banks. “Our civilian institutions have, in fact, revealed themselves to be resilient in responding to unprecedented partisan attacks on election administration and vote counting in state and local systems across the United States” …

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Professor William C. Banks Discusses Presidential Transition on Lawyer 2 Lawyer

On Lawyer 2 Lawyer, host Craig Williams is joined by William C. Banks, professor and former interim dean from the Syracuse University College of Law and professor Leslie Gielow Jacobs, director of the McGeorge School of Law Capital Center for Law & Policy, as they explore the practical impacts of a delayed transfer of power from an uncooperative incumbent administration, both for the incoming administration and the American people. They’ll discuss what lessons we can learn from the past, and what options the Biden administration may have going forward.


The transition of presidential power is the process during which the president-elect of the United States prepares to take over the administration of the federal government of the United States from the incumbent president. The peaceful transition of government has long been a hallmark of American democracy.

In what has become an unfortunately common refrain, 2020 has proven different. For weeks following the election being called for Joe Biden, the Trump administration refused to begin the transition process. It was in these circumstances that this episode was recorded. However, since then, the General Services Administration has decided to release funds to the incoming Biden administration to facilitate a transition, but that doesn’t necessarily mean a smooth transition is here.

The possible impact of the delays, continuing refusals to concede defeat, and ongoing litigation disputing the results in multiple swing states give rise to concerns regarding national security, the economy, and the government’s ability to properly address the effects of the Coronavirus.

Transition of Power

 

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Professor William C. Banks Optimistic About Successful Transition for Biden Despite Delays

(WAER | Nov. 24, 2020) A Syracuse University Law School Professor says President Elect Joe Biden won’t have a problem catching up three weeks after the election because his team has been preparing all along. William Banks says Biden’s planning began when he clinched the democratic nomination last summer. He thinks the delay by the Trump Administration to share information to Biden will be “negligible to none.” However, he feels it comes with other costs.

“I feel a great deal has been lost symbolically and I believe our democratic institutions have been severely beat up by the bruising battles that have been fought for no good reason.”

Biden’s team can now engage in daily national security updates and classified briefings with the Trump Administration. Banks says Biden’s cabinet is filled with diversity and experience.

“Some of them are from the Obama administration, so of them much further back, like John Kerry who will be a cabinet-level official responsible for climate change. It’s Kerry’s deep passion,” Banks said …

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DHS Senior Executive Matthew L. Kronisch Joins SPL as Distinguished Fellow in Residence

The Syracuse University Institute for Security Policy and Law (SPL) is pleased to welcome Matthew L. Kronisch as a Distinguished Fellow-in-Residence. Kronisch is the first ever Department of Homeland Security (DHS) Office of the General Counsel Senior Executive assigned to an academic institution under the Intergovernmental Personnel Act. The IPA provides a mechanism through which the government and academic institutions can benefit from the mutual exchange of the expertise and experience of their employees. 

Kronisch currently serves at DHS as Associate General Counsel for Intelligence. As a Distinguished Fellow in Residence, Kronisch will conduct research and teach a seminar focused on the policy and law of homeland intelligence, as well as serving as an intelligence community career advisor for the Syracuse University Intelligence Community Center of Academic Excellence. His scholarship will address lessons learned during the first 20 years after the Sept. 11, 2001, terrorist attacks and how those lessons might be applied to DHS and the intelligence function in a democratic society.

“We are delighted that Matt will be joining our team,” says SPL Director the Hon. James E. Baker. “As a career public servant, Matt has been at the intersection and front lines of liberty and security since DHS was established. This is a remarkable run by a remarkable public servant—no wonder President Barack Obama awarded Matt a Presidential Rank Award in 2011 for his work applying law and democratic values to the function of domestic security and intelligence.”

Continues Judge Baker, “Matt not only has a great deal to teach our students, through his writing he will have an opportunity to articulate to a larger audience his vision for the future of DHS and its intelligence mission as we enter the 20th anniversary since 9/11.”

Before establishing the intelligence law practice at DHS and serving as Senior Legal Advisor to each of DHS’ chief intelligence officers, Kronisch developed intelligence oversight policy for the US Department of Defense military services and defense agencies, and he served as an active duty US Navy Judge Advocate, including assignments advising on special warfare and counter-narcotics operations.

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Professor Robert Murrett Voices Concerns About Pentagon “Exodus” in Government Executive

Pressure Continues to Mount for GSA to Ascertain Biden as Presidential Election Winner

(Government Executive | Nov. 12, 2020) It’s been five days since media organizations determined Democratic candidate Joe Biden secured enough electoral votes to become president-elect, but the General Services Administration has yet to give the go-ahead for the formal transition process to begin and more voices are calling on the agency to do so.

Despite the progress the Biden transition team has been making, GSA Administrator Emily Murphy, a political appointee, needs to “ascertain” a winner before the Biden team can send personnel into the agencies, obtain briefing books prepared mainly by career civil servants and access millions in funds …

… Syracuse University Professor Robert Murrett, who is a former career intelligence officer in the Navy, told Government Executive on Thursday he “would be more concerned” if the president-elect was someone other than Biden since he “is so familiar with the national security arena” from his tenure as vice president and chairman of the Senate Foreign Relations Committee and it’s “also very helpful” that Harris is on the Senate Select Committee on Intelligence.

However, Murrett said he is very concerned about the “exodus” of top officials at the Pentagon this week along with “the number of non-Senate confirmed acting officials we have across government” during this notably vulnerable time period …

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Professor Mark Nevitt in Newsweek: A Biden Presidency Would Be a Chance for Climate Legislation

Joe Biden Says U.S. Will Rejoin Paris Agreement on His First Day As President to Reverse Trump’s Environmental Damage

(Newsweek | Nov. 5, 2020) Joe Biden has said the U.S. will rejoin the Paris Climate Agreement on the same day he becomes president, should he win the election.

“Today, the Trump Administration officially left the Paris Climate Agreement,” he tweeted. “And in exactly 77 days, a Biden Administration will rejoin it.”

This will be the first step for Biden in his undertaking of the mammoth task of undoing four years worth of environmental deregulation …

… Mark P. Nevitt, associate professor of law at Syracuse University who specializes in climate change law and policy, previously told Newsweek that a Biden win would represent the “first real chance” of climate change legislation for many years.

“Congress last attempted a comprehensive climate legislation package in 2009, but this died in the Senate,” he said. “The Obama Administration was forced to rely upon executive action, but these actions can be rescinded by future administrations. Climate legislation would be viewed as a legacy item—not unlike Obama’s Affordable Care Act.

“We will also see the U.S. re-enter the world stage on climate change. The U.S. is the world’s largest historical emitter of greenhouse gas emissions and the second-largest annual emitter behind China. The world needs U.S. leadership and innovation on the climate stage” …

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Professor Mark Nevitt: How Will the Presidential Candidates Approach Arctic Policy?

Biden versus Trump: How a new president will affect the Arctic

(High North News | Oct. 30, 2020) With the US election just days away, anxiety is mounting about whether Republican incumbent Donald Trump or Democratic nominee Joe Biden will come away victorious. The stakes have never been higher for the Arctic, say environmental scholars and regional experts …

… Mark Nevitt, an associate professor at the Syracuse University College of Law, agrees that a Biden administration would handle the issue of climate change more effectively.

“It is critically important. We need to work with the leading climate scientists to understand the pace of climate change, permafrost melting, and its impact on local and Indigenous communities”, he says in an email to High North News.

“From a climate science perspective, a future President Biden will emphasize placing resources into better understanding the Arctic’s changing climate. Much like Obama. He has an ambitious, $2 trillion dollar “Biden Plan for a Clean Energy Revolution & Environmental Justice” that is the most-forward looking climate plan of any presidential nominee in history. The Arctic is heavily mentioned and discussed in this context,” he says …

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Professor William C. Banks Mulls Election Scenarios in Medium and AP

Will There Be Blood?

(Medium | Oct. 26, 2020) In his inaugural address four years ago, President Donald Trump declared a crusade against the “carnage” he said his predecessors had wrought on the nation, lining their own pockets while creating a nation of “forgotten men and women.” Five hours later, fired up and triumphant, Trump filed for re-election, the earliest incumbent to do so in memory. So it was that Trump set the stage for what a lot of people thought was him governing, but in effect has been the most foreboding, nerve-frazzling — and by far the longest — re-election campaign in modern U.S. history.

Just a week away from its climax, some of the country’s most sober voices say one cost of Trump’s term-long barrage of grievance and accusation is the possibility of civil unrest on and after Election Day. There is always the chance that fraught tempers will dissipate, either by luck or a landslide one way or the other that imposes a forceful quiet on the contest. But, with an animated Trump issuing daily allegations of a sinister plot to unseat him, and supporters of both sides apprehensive of how far the other is prepared to go to win, the fear is that Americans will erupt in the worst political violence since Jim Crow …

… William Banks, a law professor at Syracuse University, said the president’s actions reflect mere “Trumpian rhetoric, played to maximum volume for his base.” Perhaps, though we won’t know until we see his reaction should he be defeated next Tuesday …

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An Election Day Role For National Guard? Maybe, But Limited

(AP | Oct. 30, 2020) Federal laws and long-standing custom generally leave the U.S. military out of the election process. But President Donald Trump’s unsubstantiated warnings about widespread voting irregularities have raised questions about a possible military role.

If any element of the military were to get involved, it would likely be the National Guard under state control. These citizen soldiers could help state or local law enforcement with any major election-related violence. But the Guard’s more likely roles will be less visible — filling in as poll workers, out of uniform, and providing cybersecurity expertise in monitoring potential intrusions into election systems …

… William Banks, professor at Syracuse University College of Law, said that sending uniformed troops to the polls, including the Guard, would be unwise.

“The overriding point is that we don’t want the military involved in our civilian affairs. It just cuts against the grain of our history, our conditions, our values, our laws,” he said …

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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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