National Security Law

Hon. James E. Baker Publishes The Centaur’s Dilemma: National Security Law for the Coming AI Revolution

Artificial IntelligenceOf all the areas that may benefit from artificial intelligence or be damaged by it, national security might be the most important. “Security risk will come first, as states—and perhaps other actors—race to develop and defend against the advantages of AI-enabled intelligence, weapons, and decision-making,” writes the Hon. James E. Baker, Director of the Syracuse University Institute for Security Policy and Law (SPL), in The Centaur’s Dilemma: National Security Law for the Coming AI Revolution, newly published by the Brookings Institution Press (Dec. 1, 2020).

Written in plain English, The Centaur’s Dilemma is written to help guide policymakers, lawyers, and technology experts as they deal with the legal, ethical, and practical questions that will arise when using AI to plan and carry out the actions required for the nation’s defense.

Baker, an expert in national security law and a professor at the Syracuse University College of Law and the Maxwell School of Citizenship and Public Affairs, writes that having an AI advantage comes with risk: “Operators may not understand the technology they are using, including its limitations, its strengths, or its faults. They may not rely on it enough or they may rely on it too much.”

The US Department of Defense has sought to mitigate risk by requiring “a human in the loop.” “The Defense Department calls this a centaur model of employment,” writes Baker, “but instead of being part-human and part-horse, this centaur is part-human and part-machine, the machine augmenting human capacity with the human seeking to understand and control the machine’s capabilities.”

Adopting a realistic approach in assessing how the law can be used, or even misused, to regulate this new technology, Baker covers—among other topics—national security process, constitutional law, the law of armed conflict, arms control, and academic and corporate ethics. Using his own background as Chief Judge of the US Court of Appeals for the Armed Forces, Baker examines potential points of contention and litigation in an area where the law is still evolving and might not yet provide clear and certain answers.

Reviewing the book, Avril Haines—an SPL Distinguished Fellow who was recently nominated by President-Elect Joseph R. Biden Jr. L’68 to the role of Director of National Intelligence—writes that “The Centaur’s Dilemma is a must-read for anyone interested in national security and technology. James Baker provides an extraordinary and timely roadmap for how to think about the intersection of the law and artificial intelligence. What is exceptional about this work is his focus on how to use the law as a tool for making wiser and more strategic decisions regarding the use of AI in national security.”

Symposium: National Security Law and the Coming AI Revolution | 10.29.20

Syracuse University Institute for Security Policy and Law and the Center for Security and Emerging Technology at Georgetown University’s Walsh School of Foreign Service present a one-day virtual symposium on:

National Security Law and the Coming AI Revolution

Oct. 29, 2020 

Register Here Download Program


Optional Introduction to AI

Matthew G. Mittelsteadt
Artificial Intelligence Policy Fellow, Syracuse University Institute for Security Policy and Law

Matthew Mittelsteadt is an Artificial Intelligence Policy Fellow for the Institute for Security, Policy, and Law and a guest lecturer for the Syracuse University College of Law.

Previously he has conducted technology and data policy research for the RAND Corporation and the Autonomous Systems Policy Institute. He holds a Masters of Public Administration from the Maxwell School of Citizenship and Public Affairs and previously worked in healthcare technology.



James E. Baker
Director, Syracuse University Institute for Security Policy and Law

The Hon. James E. Baker is a tenured professor in the Syracuse University College of Law, with a courtesy appointment in the Maxwell School. Also serving as Director of the Syracuse University Institute for Security Policy and Law, Judge Baker teaches classes on national security law, emerging technologies and national security, ethics, leadership, intelligence, and the laws of war.

Judge Baker is one of the most highly regarded national security lawyers and policy advisors in the nation. Starting his career as an Infantry Officer in the US Marine Corps, Judge Baker subsequently joined the staff of Sen. Daniel Patrick Moynihan before serving the US Department of State, Foreign Intelligence Advisory Board, and National Security Council. Mostly notably, he served on the US Court of Appeals for the Armed Forces for 15 years—the last four as Chief Judge—before stepping down in 2015. The Court hears appeals arising under the Uniform Code of Military Justice, and its decisions are subject to review by the US Supreme Court. Judge Baker authored more than 250 opinions for the Court, addressing criminal law and procedure, rules of evidence, jurisdiction, and the First, Fourth, Fifth, and Sixth Amendments to the Constitution.

Since 2015, when he was appointed by President Barack Obama, Judge Baker has served as a Member of the Public Interest Declassification Board, established by Congress in 2000 to promote transparency in national security activities. He is also a Member of the ABA Rule of Law Initiative (ROLI) Board of Directors; a former Consultant for the Intelligence Advanced Research Projects Activity; and a former Chair of the American Bar Association’s Standing Committee on Law and National Security, which promotes public understanding of, and careers in, national security.

In addition to his exemplary public service, Judge Baker has been a teacher and scholar his entire career. He has taught as an Adjunct or Visiting Professor at Yale Law School (his alma mater, where he received a B.A. and J.D.); University of Iowa College of Law; University of Pittsburgh School of Law; Washington University School of Law; and the Georgetown University Law Center. His courses have included those on Managing National Security, Challenges in National Security, Federal Courts, and Ethics and Leadership. In 2017-2018, Judge Baker was Robert E. Wilhelm Fellow at MIT’s Center for International Studies, where he pursued scholarship on emerging technologies and artificial intelligence. Previous recipients of this prestigious fellowship include former UK Foreign Secretary David Miliband and Adm. William Fallon, former Commander of US Central Command.

Judge Baker is the author of three books: The Centaur’s Dilemma: National Security Law for the Coming AI Revolution (Brookings, 2020); In the Common Defense: National Security Law for Perilous Times (Cambridge University Press, 2007); and Regulating Covert Action (Yale University Press, 1992, with Michael Reisman). As a Marine Corps Reserve Officer (1979-2000), he authored the revised Marine Corps Counterinsurgency Field Manual. Subjects addressed in his numerous book chapters and articles range from military justice, transnational law, and covert operations to teaching national security, effective presidential transitions, and the ethics of national security law. Among his several awards, Judge Baker has been honored by the National Security Council, Central Intelligence Agency, and the US Army Command and General Staff College (Honorary Master of Military Arts and Science, 2009).


AI & the Law of Armed Conflict

Margarita Konaev
Research Fellow, Georgetown University Center for Security and Emerging Technology

Dr. Margarita Konaev is a Research Fellow at Georgetown’s Center for Security and Emerging Technology (CSET) interested in military applications of AI and Russian military innovation. Previously, she was a Non-Resident Fellow with the Modern War Institute at West Point, a post-doctoral fellow at the Fletcher School of Law and Diplomacy and a post-doctoral fellow at the University of Pennsylvania’s Perry World House. Before joining CSET, she worked as a Senior Principal in the Marketing and Communications practice at Gartner.

Konaev’s research on international security, armed conflict, non-state actors and urban warfare in the Middle East, Russia and Eurasia has been published by the Journal of Strategic Studies, the Journal of Global Security Studies, Conflict Management and Peace Science, the French Institute of International Relations, the Bulletin of the Atomic Scientists, Lawfare, War on the Rocks, Modern War Institute, Foreign Policy Research Institute and a range of other outlets. She holds a Ph.D. in Political Science from the University of Notre Dame, an M.A. in Conflict Resolution from Georgetown University and a B.A. from Brandeis University.

Jason R. Stack
Director, Ocean, Atmosphere, and Space Research Division, US Office of Naval Research


Dr. Jason Stack is ONR’s Portfolio Manager for Autonomy where he leads ONR’s corporate strategy; manages the corresponding investment portfolio; and provides focus on transition, operationalization, and fielding for autonomy and autonomous unmanned systems. He also serves as the Director for the Ocean, Atmosphere, and Space Research Division where he is responsible for planning, execution, and management of an integrated research and technology development program supporting the Dept. of Navy’s maritime warfare areas and scientific research efforts.

Dr. Stack holds the MSE and Ph.D. degrees in electrical engineering from the Georgia Institute of Technology, an MBA from the Massachusetts Institute of Technology, and the BSE degree in electrical engineering from Mercer University. He holds over 40 publications in the fields of machine learning and autonomous systems and is a Senior Member of the IEEE.

Iben Yde
Assistant Professor, Royal Danish Defense College; Former Legal Advisor to the Admiral Danish Fleet and Joint Defence Command, Denmark

Iben Yde is Assistant Professor in international and operational law at the Royal Danish defence College (RDDC), Institute for Military Technology and Head of the very newly established Center for Operational Law, RDDC. Her research focuses on the legal aspects of emerging technologies, with particular focus on AI and autonomous weapons systems.

Iben has served as legal advisor to the Admiral Danish Fleet and Royal Danish Dfenece command and has three operational deployments behind her. She serves as advisor in relation to national as well as international research and policy projects on emerging technologies and teaches and publishes widely on topics related to the law of armed conflict and military technology.

John R. Cherry, Moderator
Deputy Chair and Military Professor, Stockton Center for International Law, US Naval War College

Lt. Col. John R. Cherry is the Deputy Chair and Military Professor at the Stockton Center for International Law at the US Naval War College (NWC) in Newport, RI. He was commissioned in the US Marine Corps in August 1997 and has served in a variety of assignments including Deputy Legal Counsel, Office of the Chairman of the Joint Chiefs of Staff; Staff Judge Advocate, 2d Marine Logistics Group; and Assistant Professor of International and Operational Law and Vice Chair, The Judge Advocate General’s Legal Center and School.

In 2004, he deployed to Guantanamo Bay, Cuba, serving as the forward Legal Advisor for the Combat Status Review Tribunals. In 2010, Cherry deployed to Delaram, Afghanistan, as the Staff Judge Advocate for 2d Marine Regiment/Regimental Combat Team-2. His focus areas include the laws of armed conflict, targeting operations, autonomy and artificial intelligence in armed conflict, and detention operations.

Cherry is the US NWC’s delegate to the CCW Lethal Autonomous Weapon Systems Group of Governmental Experts (LAWS GGE) and has been a member of the U.S. Delegation. In addition to his duties with the Stockton Center, Cherry is the president of the US Group of the International Society of Military Law and Law of War (ISMLLW).


AI & National Security Ethics: Bias, Data, & Principles

Tarun Chhabra
Senior Fellow, Georgetown University Center for Security and Emerging Technology; Nonresident Fellow, Brookings Institution

Tarun Chhabra is a senior fellow at the Center for Security and Emerging Technology at Georgetown University, and a non-resident fellow at the Brookings Institution. He previously worked on the National Security Council staff at the White House, in the Office of the Secretary of Defense at the Pentagon, and in the Executive Office of the United Nations Secretary General.

Andre Douglas
Senior Professional Staff Member, The Johns Hopkins University Applied Physics Lab

Dr. Andre Douglas is a Senior Professional Staff Member at the Johns Hopkins University Applied Physics Lab, where he supervises staff engineers, leads advanced studies, deploys robotic systems, and serves as a project manager for autonomy, integration, and teaming tasks.

Many of his projects involve designing, building, integrating, testing, and evaluating various platforms and systems in tactical environments enabling him to fully understand the system life cycle process. His sponsors include a variety of organizations such as NAVSEA, WARCOM, SOCOM, Strategic Systems Program (SSP), NASA, and NAVAIR. Before working as a primary developer, he served as a Commissioned Officer in the United States Coast Guard where he conducted salvage engineering assessments and ship’s stability technical reviews for certification and compliance. His knowledge and skills have grown to where he now works on land, sea, air and space projects around the lab that involve developing autonomous systems.

Dr. Douglas earned his Bachelor of Science in Mechanical Engineering (2008) at the U.S. Coast Guard Academy in New London, CT, a Master of Science in Mechanical Engineering and a Master of Science in Naval Architecture and Marine Engineering from the University of Michigan (2012) in Ann Arbor, MI, a Master of Science in Electrical and Computer Engineering (2019) from the Johns Hopkins University in Baltimore, MD, and a PhD in Systems Engineering from George Washington University in Washington, DC. He is also a registered Professional Engineer in Virginia.

Edward W. Felten
Board Member, Privacy and Civil Liberties Oversight Board; Director, Princeton University Center for Information Technology Policy

Edward W. Felten is the Robert E. Kahn Professor of Computer Science and Public Affairs at Princeton University, and the founding Director of Princeton’s Center for Information Technology Policy. He serves as a member of the United States Privacy and Civil Liberties Oversight Board.

In 2015-2017 he served in the White House as Deputy U.S. Chief Technology Officer. In 2011-2012 he served as the first Chief Technologist at the US Federal Trade Commission. His research interests include emerging technologies, information security and privacy, and technology law and policy. He has published more than 170 papers in the research literature, and three books. He is a member of the National Academy of Engineering and the American Academy of Arts and Sciences and is a Fellow of the ACM.

Laurie N. Hobart, Moderator
Assistant Teaching Professor, Syracuse University College of Law

Laurie Hobart teaches national security law courses at Syracuse University. She has worked as an Assistant General Counsel in the Intelligence Community, receiving a Harvard Heyman Fellowship for federal service; as an associate at King & Spalding LLP; and as a law clerk to the Hon. Charles F. Lettow of the US Court of Federal Claims.

She received a B.A., summa cum laude, from Cornell University’s College of Arts & Sciences; a J.D. from Harvard Law School; and an M.F.A. in fiction writing from Syracuse University.


AI & National Security Decision-Making

Gregory C. Allen
Chief of Strategy and Communications, US Department of Defense Joint Artificial Intelligence Center

Gregory C. Allen is the Chief of Strategy and Communications at the Department of Defense Joint Artificial Intelligence Center (JAIC). At the JAIC, Allen advises on development and implementation of the DoD AI Strategy and is responsible for the JAIC’s communications and messaging.

Before joining the JAIC, Allen was an Adjunct Senior Fellow at the Center for a New American Security (CNAS) where he focused on the intersection of Artificial Intelligence, cybersecurity, robotics, space, and national security.

Before working at CNAS, Allen was the head of market and competitive strategy Blue Origin, a space technology manufacturer. Before that, he was a senior project manager at Avascent, a management consulting firm that provides corporate strategy advisory services to major technology firms.

Allen holds a joint M.P.P./M.B.A. degree from the Harvard Kennedy School of Government and the Harvard Business School.

Laura A. Dickinson
Oswald Symister Colclough Research Professor of Law, The George Washington University Law School

Reginald Brothers, Moderator
CEO, NuWave Solutions; former Under Secretary for Science and Technology, US Department of Homeland Security

Reggie Brothers is the CEO of NuWave Solutions, a recognized leader in providing anticipatory intelligence and advanced data analytics to the defense, intelligence and private sectors and a Distinguished Fellow at Georgetown’s Center for Security and Emerging Technology (CSET).

Most recently, Dr. Brothers was CTO of Peraton and Principal with the Chertoff Group. Prior to that, he served as Under Secretary for Science and Technology at the U.S. Department of Homeland Security, where he was responsible for a science and technology portfolio that included basic and applied research, development, demonstration, testing and evaluation. From 2011 to 2014, Dr. Brothers served as Deputy Assistant Secretary of Defense for Research at the Department of Defense. In this position, he was responsible for policy and oversight of the Department’s science and technology programs and laboratories.

He has also held senior roles at the Defense Advanced Research Projects Agency and BAE Systems. Dr. Brothers received a B.S. in Electrical Engineering from Tufts University, an M.S. in Electrical Engineering from Southern Methodist University and a Ph.D. in Electrical Engineering and Computer Science from the Massachusetts Institute of Technology.


Where Are We Headed?

Jason Matheny
Founding Director, Georgetown University Center for Security and Emerging Technology; Commissioner, National Security Commission on Artificial Intelligence

Jason Matheny is Founding Director of Georgetown’s Center for Security and Emerging Technology (CSET), and a Commissioner on the National Security Commission on Artificial Intelligence, to which he was appointed by Congress in 2018.

Previously, he was Assistant Director of National Intelligence, and Director of IARPA, responsible for the development of breakthrough technologies for the U.S. intelligence community. Before IARPA, he worked at Oxford University, the World Bank, the Applied Physics Laboratory, the Center for Biosecurity, and Princeton University, and was the co-founder of two biotechnology companies.

James E. Baker
Director, Syracuse University Institute for Security Policy and Law



AI and National Security

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.

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” …

“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

( | 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.

Background Briefing: William C. Banks Assesses the Possibility of Martial Law

Is Trump Both the Arsonist and the Fire Brigade Sparking Insurrection Then Declaring Martial Law?

(Background Briefing | April 19, 2020) We look further into Trump’s encouragement of insurrection, aided and abetted by his propaganda mouthpiece Fox News, and speak with William Banks, Distinguished Professor Emeritus at Syracuse University College of Law who is the author of Soldiers on the Home Front: The Domestic Role of the American Military and has an article at The AtlanticMartial Law Would Sweep the Country Into a Great Legal Unknown“.

He joins us to discuss how Trump is both the arsonist and the fire brigade igniting the spark of insurrection while possibly declaring martial law to put out the “Reichstag Fire” he has lit. Unfortunately while unprecedented, this prospect is not entirely hypothetical given Trump’s hatred of the press which he would shut down, and his fear of losing the election, which he would suspend.

William C. Banks Discusses Emergency Powers on ABA National Security Podcast

Emergency Powers & COVID-19 with William Banks

William Banks is the Chair of the ABA Standing Committee on Law and National Security Advisory Committee and a Distinguished Professor and Emeritus Professor at the Syracuse University College of Law and the Maxwell School of Citizenship and Public Affairs, and the author of several constitutional law textbooks.

This episode references:

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

By William C. Banks & Stephen Dycus

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

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

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

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

Read the whole article.