Rule of Law

Trump’s Secret Subpoenas: Professor William C. Banks Discusses with Bloomberg Law

Trump DOJ Secret Subpoenas Crossed Line

(Bloomberg Law | July 15, 2021) National security law expert William Banks, a professor at Syracuse University College of Law, discusses the controversy over revelations the Justice Department under former President Donald Trump had secretly subpoenaed records from House Democrats, former White House counsel Don McGahn and members of the media.

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Professor William C. Banks Speaks to Bloomberg Law About Secret DOJ Subpoenas

Trump DOJ Secret Subpoenas Crossed Line

(Bloomberg Law | June 15, 2021) National security law expert William Banks, a professor at Syracuse University College of Law, discusses the controversy over revelations the Justice Department under former President Donald Trump had secretly subpoenaed records from House Democrats, former White House counsel Don McGahn and members of the media.

Listen to the podcast.

 

Hon. James E. Baker: Ethics and Artificial Intelligence—A Policymaker’s Introduction

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Policymakers contemplating the burgeoning field of artificial intelligence will find, if they have not already, that existing laws leave huge gaps in deciding how (and whether) AI will be developed and used in ethical ways. The law, of course, plays a vital role. While it does not guarantee wise choices, it can improve the odds of having a process that will lead to such choices. Law can reach across constituencies and compel, where policy encourages and ethics guide. The legislative process can also serve as an effective mechanism to adjudicate competing values as well as validate risks and opportunities.

But the law is not enough when it contains gaps due to lack of a federal nexus, interest, or the political will to legislate. And law may be too much if it imposes regulatory rigidity and burdens when flexibility and innovation are required. Sound ethical codes and principles can help fill legal gaps. To do so, policymakers have three main tools:

  • Ethical Guidelines, Principles, and Professional Codes
    Academic Internal Review Boards (IRBs)
  • Principles of Corporate Social Responsibility (CSR)
  • Below is a primer on the limits and promise of these three mechanisms to help shape a regulatory regime that maximizes the benefits of AI and minimizes its potential harms.

This paper addresses six specific considerations for policymakers:

  1. Where AI is concerned, ethics codes should include indicative actions illustrating compliance with the code’s requirements. Otherwise, individual actors will independently define terms like “public safety,” “appropriate human control,” and “reasonable” subject to their own competing values. This will result in inconsistent and lowest-common-denominator ethics. If the principle is “equality,” for example, an indicative action might require training data for a facial recognition application to include a meaningful cross-section of gender and race-based data.
  2. Most research and development in AI is academic and corporate. Therefore, Institutional Review Boards and Corporate Social Responsibility practices are critical in filling the gaps between law and professional ethics, and in identifying regulatory gaps. Indeed, corporations might consider the use of IRBs as well.
  3. Policymakers should consider the Universal Guidelines for Artificial Intelligence (detailed below) as a legislative checklist. Even if they don’t adopt the guidelines, the list will help them make purposeful choices about what to include or omit in an AI regulatory regime consisting of law, ethics, and CSR.
  4. Academic leaders and government officials should actively consider whether to subject AI research and development to IRB review. They should further consider whether to apply a burden of proof, persuasion, or a precautionary principle to high-risk AI activities, such as those that link AI to kinetic or cyber weapons or warning systems, pose counterintelligence (CI) risks, or remove humans from an active control loop.
  5. Corporations should create a governance process for deciding whether and how to adopt CSR national security policies answering the question: What does it mean to be an American corporation? They should consider adopting a stakeholder model of CSR that is, in essence, a public-private partnership that includes input from consumers and employees as well as shareholders and the C-Suite.
  6. Policymakers, lawyers, and corporate leaders should communicate regularly about the four issues that may define the tone, tenor, and content of government-industry relations: uniformity in response, business with and in China and Russia, encryption, and privacy.
  7. Where government agencies, corporations, and academic entities have adopted AI Principles, as many institutions now have, it is time to move from statements of generic principle to the more difficult task of applying those principles to specific applications.

No Conviction? Professor William C. Banks Comments on Trump’s Second Impeachment

House impeaches Trump once more

(China Daily | Jan. 14, 2020) With the US Capitol secured by armed National Guard troops inside and out, the House of Representatives voted Wednesday to impeach President Donald Trump for a historic second time, indicting him for “incitement of insurrection” in the storming of Congress a week ago.

“I predict no conviction in an eventual Senate trial.”

As impeachment heads to the Senate, President-elect Joe Biden said he hoped the Senate can balance a second impeachment trial of Trump with “other urgent business” of the nation, which remains gripped by the raging COVID-19 pandemic.

In a statement released hours after the bipartisan House vote, Biden did not take a position on whether the Senate should convict Trump, but again condemned the violent attack on Capitol Hill …

William Banks, distinguished professor emeritus at the Syracuse University College of Law in New York, said the House vote on impeachment was not surprising.

“It underscores that he is the ONLY President in US history to be impeached two times. It is clearly a stain on his record and should underscore the view that his presidency was an aberration in the US,” Banks told China Daily.

Some Republicans joined because Trump lost the election, he can’t impact them directly in the future, and in addition, Trump’s actions were far more grave and harmful this time around, Banks said.

“I predict no conviction in an eventual Senate trial, and with luck the Senate will relegate the trial to off hours so they can begin working on the Biden agenda,” Banks said. “It should have little impact on the Biden administration” …

Read the full article.

 

Professor William C. Banks Helps Explain Insurrection Act for USA Today

What is the Insurrection Act and how could Trump use it? Here’s what to know

(USA Today | Jan. 11, 2021) False social media posts swirled late Sunday that President Donald Trump in the wake of the U.S. Capitol riots had invoked the Insurrection Act, a law that allows the president to deploy the military to quell rebellion.

Tweets sharing images of military personnel in Washington continued to spread Monday morning and became a trending term on Twitter. However, Trump has not invoked the law.

The law, which has existed in various forms since the time of George Washington and in its current state since the Civil War, allows the president to dispatch the military or federalize the National Guard in states that are unable to put down an insurrection or are defying federal law …

William Banks, a Syracuse University College of Law Board of Advisors Distinguished Professor, said that when thinking about the Insurrection Act, it’s important to remember one of the most basic principles of the United States’ founding: that the military not be involved in civilian affairs.

“The Insurrection Act lays into U.S. law an exception to that background principle,” Banks said.

In most cases, a state would want to rely on National Guard troops in situations of unrest. The Insurrection Act is generally reserved for when “things are really bad,” Banks said …

… Hoffmeister and Banks said, however, there was no need for Trump to invoke the Insurrection Act on Jan. 6. given the federal government’s control of the district’s National Guard and federal law enforcement. Invoking the Act would have further allowed Trump to send active-duty military to the district when he already in effect had control over its National Guard and federal police …

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Hon. James E. Baker: Obedience to Orders, Lawful Orders, and the Military’s Constitutional Compact

(Just Security | Nov. 2, 2020) An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath:

“I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

Introduction

During the height of the Watergate scandal in 1974 Secretary of Defense James Schlesinger is said to have become so concerned about President Nixon’s emotional state that he instructed the military chain of command that any orders conveyed directly by the President to the military should be re-routed through him to determine if they should be followed. Schlesinger was particularly concerned about orders pertaining to nuclear command and The Trump Administration, which is to say President Trump, has renewed interest in the subject of nuclear command and control and more generally the question of lawful orders.

In 2017, the then Commander of U.S. Strategic Command was asked about the scenarios in which he might advise, or even push back against, the President in a discussion on nuclear matters. General John E. Hyten, who now serves as the Vice Chairman of the Joint Chiefs of Staff, responded:

I think some people think we’re stupid. We’re not stupid people. We think about these things a lot. When you have this responsibility how do you not think about it? And so – but what people forget is this is a military mission and a military function. And since the day I joined the service, 36 years ago, every year I get trained in a law of armed conflict. And the law of armed conflict has certain principles and necessities, distinction, proportionality, unnecessary suffering. All those things are defined. And we get, you know, for 20 years it was the William Calley thing that we were trained on because if you execute an unlawful order you will go to jail. You could go to jail for the rest of your life. It applies to nuclear weapons. It applies to small arms. It applies to small unit tactic. It applies to everything and we apply it as we go through it. It’s not that difficult. And the way the process works – if you want to get the details later, I’ll go into the details later. The way the process works is this simple: I provide advice to the President. He’ll tell me what to do and if it’s illegal, guess what’s going to happen?

Moderator: You say no.

General Hyten: I’m going to say, Mr. President, it’s illegal. And guess what he’s going to do? He’s going to say what would be legal? And we’ll come up with options of a mix of capabilities to respond to whatever the situation is. And that’s the way it works. It’s not that complicated.

More recently, the clearing of protesters in Lafayette Square, the advent of protest movements across the country following the death of George Floyd, and statements by President Trump about the electoral process have prompted questions about when and in what contexts the President may lawfully order U.S. Armed Forces, regular, reserve, or National Guard, into domestic and civil contexts.

President Trump’s tweets, some about military matters, also prompt consideration of what exactly is an order, does it have to take a particular form, and when is a statement by the President a military order? These are urgent questions the answers to which ought to be known not only to the Commander in Chief, but also to the military commanders and units under his ultimate constitutional command. The American public, which reveres the Armed Forces, in part because of their apolitical adherence to law, should know as well so that it can make informed judgments about whether to send its sons and daughters into the Armed Forces and determine whether the military’s leadership is supporting and defending the Constitution and America’s constitutional values and traditions.

However, although the question of lawful orders may be cast and debated with a particular president in mind, or through a partisan lens, questions about lawful orders are recurring and arise in daily national security contexts across administrations as well as everyday military life …

Good Governance Paper No. 21: Obedience to Orders, Lawful Orders, and the Military’s Constitutional Compact

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 …

Read the full article.


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 …

Read the full article.

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.

Listen to the segment.

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 …

Read the full article.


See also: 

What is martial law? Can the president declare it? Good questions.

 

Professor William C. Banks Explains Presidential Transfer of Power to WSYR

President Trump with COVID: What could transpire if his condition worsens?

(WSYR | Oct. 2, 2020) President Donald Trump and First Lady Melania Trump have tested positive for COVID-19, according to multiple sources. As of Friday, the president only had minor symptoms, but what would happen with the election about a month away if his condition worsens?

The 25th Amendment primarily deals with what would occur if a president passes away, but it also talks about what happens if a president can’t fulfill his duties.

William Banks, a law professor at Syracuse University, says, “If there is a determination that he is unable to fulfill his duties, then he can temporarily or permanently, should the president succumb to the virus, the duties can be passed along to his successor, who in this case would be Vice President Pence.”

America has never had to deal with COVID-19, but the amendment has been used when presidents have gone to the hospital for even minor surgeries.

“So now, even on a few occasions, say where a president has gone under anesthesia for a minor procedure like a colonoscopy, he has transferred his power to the vice president for the period of time needed to complete the procedure,” Professor Banks said. “With the president hospitalized, he should do the same with Vice President Pence” …

Watch the segment.

President Trump with COVID: What could transpire if his condition worsens?