Counterterrorism Law

Professor William C. Banks Publishes 2021-2022 National Security Law/Counterterrorism Law Supplement

Along with his co-authors, Professor Emeritus William C. Banks has published the 2021-2022 Supplement to his essential casebooks National Security Law (7th ed., Wolters Kluwer) and Counterterrorism Law (4th ed., Wolters Kluwer).

The 2021–2022 Supplement will help students and teachers stay up to date with national security and counterterrorism developments during the coming academic year. By including the most important recent cases, legislation, and executive branch actions, the new Supplement also underscores the critical work that lawyers do to keep this nation both safe and free.

The Supplement is co-authored by Stephen Dycus, Emily Berman, Peter Raven-Hansen, and Stephen I. Vladeck.

Recent developments addressed in the 2021-2022 Supplement include:

  • Legal issues arising from the COVID-19 pandemic
  • Fallout from the Mueller Report
  • US–Mexico border wall, emergencies, and related issues
  • Extraterritoriality and cross-border shootings
  • Russian interference in US elections
  • Congressional access to Executive Branch information
  • Anti-Riot Act prosecutions and domestic terrorism
  • The January 6 attack on the US Capitol
  • The next generation of Guantánamo litigation

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

 

James E. Baker Delivers Remarks on Counterterrorism at Oklahoma City University School of Law

INSCT Director the Hon. James E. Baker was a participant at the 2019 Stephen Sloan Seminar at Oklahoma City University School of Law on March 28, 2019. His remarks—delivered in conversation with Homer S. Pointer, Senior Fellow of the Murrah Center for Homeland Security Law and Policy—were titled “The Evolving Legal Framework of Counterterrorism.”

“Law is one thing that unites all Americans. By ‘law’ I mean the principles of justice, due process, and security.”

This year’s Sloan Seminar—“Assessing the Future of Domestic and International Terrorism”—was billed as a “a conference honoring the ground-breaking contributions of Dr. Stephen Sloan to the field of counterterrorism, [bringing] together experts in counterterrorism analysis, policy, and national security law.” It was co-sponsored by the Murrah Center and the Center for Intelligence and National Security at the University of Oklahoma.

Among other pressing topics, Baker addressed the recent attack in Christchurch, New Zealand, the role of corporate social responsibility in regulating social media content, the First Amendment implications of regulating hate speech, and Section 230 of the Communications Decency Act. “Law,” he noted, “is one thing that unites all Americans. By ‘law’ I mean the principles of justice, due process, and security, not specific provisions of individual laws.” He added, “This law is America’s national security strength and virtue.”

In addition to Judge Baker’s remarks, other speakers explored “The US Perspective on the Future Direction of Terrorism,” “The European Perspective on the Future Direction of Terrorism,” and “Reflections on 40 Years of Counterterrorism Efforts, the Operational Dynamics of Terrorism, and What Lies Ahead.”

Joining Judge Baker at the seminar were Michael J. Boettcher, Senior Fellow at the University of Oklahoma Center for Intelligence and National Security; David N. Edger, Managing Director and Founder of 3CI Consulting LLC and former CIA officer in the clandestine service; Robert A. Kandra, Senior Advisor with the Chertoff Group, Advisor to the XK Group, and former CIA officer in the clandestine service; Homer S. Pointer, Senior Fellow of the Murrah Center for Homeland Security Law and Policy, Oklahoma City University School of Law; Magnus Ranstorp, Research Director at the Centre for Asymmetric Threat Studies, Swedish National Defense University; James L. Regens, Regents Professor and Founding Director of the University of Oklahoma Center for Intelligence and National Security; and Stephen Sloan, Noble Foundation Presidential Professor Emeritus of Political Science, University of Oklahoma.

William C. Banks Joins CSRR as Distinguished Senior Fellow

Rutgers Center for Security, Race, and Rights (CSRR) has announced that William C. Banks has joined CSRR team as a Distinguished Senior Fellow.

Banks is a Syracuse University College of Law Board of Advisors Distinguished Professor and Emeritus Professor at the College of Law and a Maxwell School Professor of Public Administration and International Affairs. During 2015-2016, Banks was Interim Dean of the College of Law. He is the Founding Director of the Institute for National Security and Counterterrorism.

“I am especially pleased to join the Center for Security, Race and Rights (CSRR) as a Distinguished Senior Fellow,” says Banks. “Centers such as CSRR are an essential counterweight to the tendencies of governments that see security and terrorism problems through a religious and racial lens. While respect for basic human and civil rights should be at the undeniable core of law and policy in governments worldwide, glaring and persistent abuses abound. CSRR is an important voice for drawing attention to rights shortfalls and showing the way toward more just laws and policies.”

Corri Zoli Interviewed by CNY Central About the New Zealand Mosque Shootings

(CNY Central | March 15, 2019) “We bring in a new perspective on an awful topic a woman we turn to often in times like this. Corri Zoli is an assistant professor at the Maxwell school at Syracuse University … why the recordings? why record what you’ve done?”

“I think this is a kind of classic terrorist tactic that we’ve been seeing since you know 2010 at the least where ISIS and al-Qaeda. I remember in the Toulouse attacks in France, for instance, where they recorded the attacks against a Jewish school with a GoPro video” …

Corri Zoli to Attend UNSC Counterterrorism Special Meeting on the “Madrid Principles”

Zoli_UN_MeetingINSCT Director of Research Corri Zoli has been invited to attend a special meeting of the United Nations Security Council Counter-Terrorism Committee on Dec. 13, 2018, in the Economic and Social Council Chamber, UN Headquarters, New York City. The meeting will discuss “Security Council Resolution 2396 (2017): A Review of the Madrid Principles,” a document that provides guidance to member states on stemming the flow of Foreign Terrorist Fighters (FTFs) across national borders, while staying compliant with human rights laws and norms.  

In particular, explains UN Security Council Counter-Terrorism Committee Chair Gustavo Meza-Cuadra in his letter of invitation, the special meeting will tackle the issue of FTFs “in light of the evolving threat posed by foreign terrorist fighters, particularly FTF returnees and relocators and their family members.” The review of the Madrid Principles also will examine gaps that may hinder states’ abilities to detect, interdict, prosecute, rehabilitate, and reintegrate FTF returnees and their families, as well as identify good practices.

Among the working sessions will be those on “border security and information-sharing”; “global research perspectives on cross-cutting trends”; “countering incitement, recruitment, and violent extremism”; and “judicial measures, international cooperation, and prosecution, rehabilitation, and reintegration strategies.” Invited discussants include Edmund Fitton-Brown of the Analytical and Sanctions Monitoring Team of the ISIL and Al-Qaida Sanctions Committee; Elisabeth Neugebauer, Deputy Special Representative, International Criminal Police Organization; and Tanya Mehra, International Centre for Counterterrorism, The Hague.

The Madrid Principles were developed from a July 2015 special meeting hosted by the Government of Spain and co-organized by the UN Counter-Terrorism Committee Executive Directorate (CTED), with which INSCT collaborates on counterterrorism prevention. This Madrid meeting was attended by member states from every region of the world, as well as representatives of international and regional organizations, universities, and civil society groups. Discussions and technical sessions identified 35 guiding principles that were subsequently adopted by the Security Council and offered as a practical tool for use by member states in their efforts to combat terrorism.

Corri Zoli Discusses Mail Bomb Attacks & Domestic Terrorism on Spectrum News

Are Recent Suspicious Packages an Act of Political Terrorism?

(Spectrum News | Oct. 25, 2018) One after the other, suspicious packages were delivered to the media and liberal leaders, many in New York City.

“This is a very painful time in our nation. It’s a time when people are feeling a lot of hate in the air,” said Bill de Blasio, (D) New York City Mayor.

Some are calling it domestic terrorism and others call it political terrorism.

“Someone one who might be trying to use scare tactics or trying to enhance political passions, make partisan divisions worse,” said Corri Zoli, Institute for National Security and Counterterrorism Research Director.

It is a scary thought for a country largely functioning on a two-party system.

Zoli said, “It’s not accurate to characterize opposition groups as enemies in a two-party system that structures the United States.”

But, is that what we’re seeing?

In 2017, the target appeared to be on the other side of the aisle, members of Republican Congressional baseball team.

“Is this a retaliatory attack for those attacks? This is the problem with polarization. You get these kind of escalating dynamics…clearly this is an expression of partisanship gone awry,” said Zoli …

Watch the whole segment.

 

“A Worrisome Case”: William C. Banks Examines Election Season Attempted Mail Bombs with Bloomberg Law

Law Enforcement Probes Attempted Mail Bombs

(Bloomberg Law | 10.25.18) William Banks, a professor at Syracuse Law School, discusses law enforcement efforts after several high-profile democrats, public figures, and the CNN newsroom in New York received apparent explosive devices over the course of several days …

https://www.bloomberg.com/news/audio/2018-10-25/law-enforcement-probes-attempted-mail-bombs-radio

3D-Printed Guns & National Security: William C. Banks Speaks to The Atlantic

(The Atlantic | Aug. 24, 2018) In 1971, a slim volume filled with instructions detailing how to create explosives and other weapons proliferated across bookshelves. The Anarchist Cookbook was one ideological young American’s attempt to make a political statement; in this case, the author was registering his opposition to the Vietnam War and the draft letter he had received. The book set off an urgent and fearful debate. In a letter to a top official at the Justice Department, FBI Director J. Edgar Hoover wrote “of the inherent threat that distribution of the book poses to this country’s internal security.” But, he lamented, “the FBI has no control over material published through the mass media.”

“Yes, they can get into the wrong person’s hands, and, yes, they can be harmful.”

Five years ago, another ideological young American published another kind of how-to manual. In the 21st-century iteration of the story, the medium is the internet, not a book; and instead of half-baked plans to build ineffective bombs, there are blueprints that can be downloaded as code and used to create functional plastic guns from a 3-D printer. At the time the material was published, the State Department claimed that 3D-printed guns posed a direct threat to America’s national security. The State Department argued that the publication violated its arms-export controls, and sued to force the removal of the plans from the internet. The blueprints’ creator—Cody Wilson, an anarchist firearms enthusiast who enjoys trolling gun-control advocates and is based in Austin, Texas—begrudgingly took the plans off his website.

This spring, Donald Trump’s State Department changed course by settling Wilson’s case out of court and granting him permission to publish his plans. The settlement would have allowed the blueprints to be published online this month. But a federal judge in Washington put Wilson’s plan on hold after Democratic attorneys general in eight states (including New York and New Jersey) and Washington, D.C., brought a lawsuit claiming the State Department had acted inappropriately. On Tuesday, lawyers representing these eight states, the State Department, and Wilson met in court in Seattle, where the judge announced that he will decide by Monday whether the plans must remain offline. Beyond the specifics of the case, the courts are again grappling with a recurrent question: When does U.S. national security trump the free-speech rights of U.S. citizens? Most agree that the First and Second Amendments give Americans the right to download plans for 3-D-printed guns off the internet. What the judge must decide is whether those freedoms should be abridged by the ability of foreign terrorists to download those same plans — and then use the guns to attack the United States …

… But there was little to stop the plans being published, given both First Amendment free-speech protections and Second Amendment gun-ownership rights. In 2013, when Barack Obama’s State Department got involved, it became clear that this matter concerned national security, not domestic gun politics. “None of this has anything to do with any domestic control over anything,” said Kevin Wolf, a former Commerce Department official under Obama who worked on arms-export issues.

The foreign-policy interest here, a State Department spokesperson told me, was keeping the plans away from people in other countries who might pose a danger to America. “It seems like a no-brainer to me that, yes, they can get into the wrong person’s hands, and, yes, they can be harmful,” said William Banks, a Syracuse University law professor and national-security expert, in an interview.

Until June, the State Department—through the end of Obama’s term and the start of Trump’s—held a similar position. In 2015, a judge summarized the agency’s position: “The State Department is particularly concerned,” the judge wrote, that Wilson’s technology could be used “in an assassination,” to manufacture weapons by “terrorist groups, or guerrilla groups,” or “to compromise aviation security overseas … directed at U.S. persons.” Yet this year, the federal government changed course, with the State Department acceding that Wilson’s blueprints were legal under newly designed federal regulations …

Read the whole article.