Rule of Law

Like the Warmbiers, Former CIA Detainees Deserve Chance to Seek Justice

By David M. Crane 

(Re-published from The Hill | May 19, 2019) In the headlines again recently was the tragic case of University of Virginia student Otto Warmbier, when it was disclosed that North Korea billed the United States $2 million for his medical treatment while a captive. Warmbier died in 2017 shortly after arriving home following more than a year in North Korean detention. Arrested by the North Koreans for spying, Warmbier was accused of ripping down a propaganda poster in a restricted area of his hotel in Pyongyang. He likely suffered unimaginable torture during his time in detention, but because of the opaque nature of the North Korean regime, little is known about his treatment and what caused the severe brain injury that led to his coma and death.

“Indeed, if the United States expects other countries to open their courts for U.S. victims overseas, it needs to do that for those who claim torture and ill-treatment by the United States.”

The news raised questions about the negotiations for Warmbier’s release and whether the medical bill the U.S. apparently had agreed to pay essentially was a ransom payment. The Trump administration has denied that it ever was paid. Warmbier’s mother, Cynthia, said that if she knew the North Koreans were after money she would have given it to them from day one. It is understandable that the relatives of victims of torture and cruelty by foreign governments are prepared to do anything to see them released and to gain justice for their families.

The Warmbiers received a modicum of justice in a federal court last December, when North Korea was ordered to pay the family over $500 million in damages. At the time of the ruling, his parents commented, “We are thankful that the United States has a fair and open judicial system so that the world can see that the Kim regime is legally and morally responsible for Otto’s death. … We promised Otto that we will never rest until we have justice for him.” The judge in the case noted that the award was substantial to deter the North Koreans from engaging in this type of behavior again.

Although the U.S. courts have offered a legal venue for the Warmbiers to seek judicial redress, under Article 14 of the Convention against Torture (CAT) and international legal standards, they also should have meaningful access to legal proceedings where the torture took place. They have a right to judicial redress, adequate compensation and means for as full a rehabilitation as possible. This is something that the United States and the 163 other signatories to the CAT have committed to and is an important tool for ensuring reconciliation, healing and prevention.

Unfortunately for the Warmbiers and their quest for justice, North Korea is unlikely to pay a damages award or to provide this sort of judicial process for redress and compensation. But imagine if similar torture, cruel treatment and even death happened to a U.S. citizen in a country that had signed the CAT. The United States surely would demand the right of our citizens to have access to judicial redress and the ability to seek adequate compensation for their treatment.

Indeed, if the United States expects other countries to open their courts for U.S. victims overseas, it needs to do that for those who claim torture and ill-treatment by the United States. Specifically, victims of the U.S. post-9/11 Rendition, Detention and Interrogation (RDI) program thus far have been unable to seek meaningful redress in U.S. courts. These individuals were suspected of terrorism, rounded up in Afghanistan on promise of a bounty. After months or years of detention, many were released without charge or explanation …

Read the full article.

David M. Crane is a Syracuse University College of Law Distinguished Scholar in Residence.

William C. Banks Discusses Trump, Barr, & Executive Privilege with Bloomberg Law

(Bloomberg Law | May 9, 2019) William Banks, Syracuse University Law School Professor discusses the clash between House Democrats and Attorney General William Barr over a subpoena for the unredacted version of the Mueller report and Trump’s decision to assert executive privilege. He speaks with Bloomberg’s June Grasso.

What’s Next After the Mueller Report? William C. Banks Speaks to WAER

National Security Expert at SU Speaks About What’s Next After the Mueller Report

(WAER | April 19, 2019) WAER’s Chris Bolt spoke with Professor Emeritus William Banks on some of the legal and historical aspects of the report and what it means going forward.

One of most significant things about the report William Banks says, might be what’s not there. President Trump was never directly interviewed about any of the allegations.

“One of the aspects of his presidency is to treat it more like a business and a personal fiefdom, as though he was a king or autocrat.”

“His responses to the written questions were that he simply didn’t recall, most of the time when the questions probe his state of mind. Had they obtained oral testimonial from the president would be far more difficult to walk away from direct answer to the question about his state of mind.”

Intent would have to be established for prosecutors to be able to bring any charges for obstruction of justice against the president. But that doesn’t mean the investigation didn’t have legal ramifications … he notes two dozen indictments of others came out of it. Still, no direct questioning of President Trump leaves a hole in any possible criminal case.

He found in the report less redaction that he thought by Attorney General William Barr. Most things blacked out had to do with grand jury materials, things relevant to ongoing congressional investigations, and identification of ancillary witnesses. What does concern him, is the lack of objectivity from the Attorney General’s office.

“The willingness of the justice department to go behind the scenes to allow them to prepare their rebuttal today speaks more of an effort to support the administration than it does to simply speak for the rule of law for the United States. So I think this is a very unfortunate aspect of investigation and one that somewhat unique in our history.”

Of course you can’t escape the political aspects of the investigation and the report. Senator Kirsten Gillibrand, who’s a presidential candidate, called it an embarrassing display of propaganda. She said in a release that the nation can’t trust a hand-picked attorney general and that congress should see the full, un-redacted report to really find the truth.

Area Congress members John Katko and Anthony Brindisi had different reactions to the release of the report, both speaking at a public event in Oswego. Katko told Syracuse.com he had no problem with Barr’s press conference and then releasing the report. He’s more concerned with what’s in it and how we reduce Russian influence in elections. Brindisi wants to see a full, un-redacted version before drawing conclusions, though he also does not want the investigation to overshadow other issues that need attention. Professor Banks meanwhile believes the prospect of Congress starting impeachment proceedings is not in the cards.

“I think the democrats recognize if they start an inquiry in the house, they may or may not have sufficient votes to impeach there. If they did, they would certainly not have votes to convict to the senate. It would be a way like the Clinton inquiry many years ago, a lot of effort for vey little outcome, any positive outcomes.”

While the President might not face that challenge, Banks says the whole process draws into question just how Mr. Trump views the office.

“One of the aspects of his presidency is to treat it more like a business and a personal fiefdom, as though he was a king or autocrat, rather than a democratically elected leader of a country who shares authority with the congress and the court in between nation government and states. So in many respects, I think the president has treated the office of presidency in a way as no other president has before as though he was above the law. That’s the most dramatic challenge to our constitutional system that I can imagine.”

And he adds things are far from over. There are still ongoing grand jury investigations; congress will have its own investigations and hearings; and Banks expects you should get used to hearing about the report and all manner of reactions to it on the campaign trail.

“I think certainly through the 2020 election, this is not going to be done. And then whatever the result the election produces, certainly the president and perhaps the shape and contour of the congress on the partisan, aside democrats from republicans. Then maybe on the November, 2020, this will all go away, but I doubt that it will before then.”

Listen to the segment.

INSCT Welcomes Five National Security Experts as Distinguished Fellows

The Institute for National Security and Counterterrorism (INSCT)—a collaboration between the Syracuse University College of Law and the Maxwell School of Citizenship and Public Affairs—has added five senior national security experts to its academic and advisory leadership team.

These Distinguished Fellows—drawn from the upper echelons of the national security and intelligence communities—will assist the Institute’s mission with a variety of assignments that will directly benefit students and expand INSCT’s portfolio of research and policy projects.

Joining INSCT are Steve Bunnell, Co-Chair of Data Security and Privacy at O’Melveny & Myers LLP, former General Counsel of the US Department of Homeland Security, and former Chief of the Criminal Division at the US Attorney’s Office in Washington, DC; Rajesh De, Chair of the Cybersecurity and Data Privacy practice and Co-Chair of the National Security practice at Mayer Brown LLP and former General Counsel for the US National Security Agency; Avril Haines, Senior Research Scholar at Columbia University, former Deputy National Security Advisor, and former Deputy Director of the Central Intelligence Agency; Amy Jeffress, Partner at Arnold & Porter Kaye Scholer LLP and former Counselor to the US Attorney General; and Lala Qadir, Associate and Member of the Artificial Intelligence Initiative at Covington & Burling LLP and Lecturer in Law at George Washington University Law School.

“These Distinguished Fellows are five of the leading experts in the field of national security law and policy, and I am thrilled that they have chosen to affiliate with the Institute,” says the Hon. James E. Baker, Director, INSCT. “They bring extraordinary practice experience and diverse expertise to Syracuse. They will expand the Institute’s reach in areas such as emerging technology, data privacy, and cybersecurity. Even better, if you think they are great at what they do—and they are—they are even better people, among the most honorable and ethical public servants I have known. If your mission is to train the next generation of thought leaders and practitioners in the field of public and private national security law, you would want this team of Fellows on your side.”

Among the Fellows’ roles—in Syracuse, New York City, and Washington, DC—they will help teach national security courses; lecture in the Institute’s speakers program; provide students with career advice and guidance; and offer insights and input regarding the Institute’s classroom and practical curriculum and its research and policy portfolio. They also will help the Institute stand up and teach a cutting-edge course on the practice of private national security law.

“Specifically, the Distinguished Fellows give the Institute the opportunity to fill a need that is not being met,” continues Judge Baker. “They will help us teach students at the College of Law and the Maxwell School what they need to know in order to practice in the area of private national security law and policy—at law firms, as in-house counsel, or as business officers and executives. This is an area of private practice that is growing exponentially, that offers career opportunity for our students, and that is critical to US national security, as well as the protection and advancement of US legal values.” It is anticipated that additional Fellows will join those announced today.

“The addition of these national security experts to the Institute for National Security and Counterterrorism significantly strengthens the Institute’s already formidable academic and research portfolio,” says Dean Craig M. Boise, Syracuse University College of Law. “Crucially, INSCT Distinguished Fellows will open up important opportunities and avenues for law and public policy students, especially in emerging areas of national security studies, such as artificial intelligence, data privacy, and transnational crime.”

“With decades of experience working on some of the most pressing law and policy issues of our time, INSCT Distinguished Fellows will add greatly to our students’ understanding of the practice of national security law and policymaking,” says Dean David M. Van Slyke, Maxwell School of Citizenship and Public Affairs. “Their insights as senior civil servants and practitioners in political positions, as well as in private practice and academia, will enrich the student experience and expand the depth and reach of Maxwell’s thought leadership and emerging research.”

William C. Banks Reviews the Mueller Report with KPCC

AirTalk special: DOJ releases redacted Mueller report to the public

(KPCC (Los Angeles) | April 18, 2019) Two years and countless subpoenas and indictments later, the Department of Justice has released a redacted version of the Mueller report to the public.

In a press conference, Attorney General William Barr on Thursday laid out in advance what he said was the “bottom line:” No collusion between the Trump campaign and Russian government hackers.

Barr said at a news conference that the president did not exert executive privilege to withhold anything in the 400 page-plus report. And he said the president’s personal attorney had requested and gotten a chance to review the report before its public release.

Barr said that no one outside the Justice Department has seen the unredacted Mueller report. And he added that no redactions were either made or proposed outside of the small group of Justice staffers that pored over Mueller’s report.

https://www.scpr.org/programs/airtalk/2019/04/18/64401/airtalk-special-doj-releases-redacted-mueller-repo/

GUESTS:

Nick Akerman, partner at the New York City office of Dorsey & Whitney LLP; he is a former Assistant U.S. Attorney in the Southern District of New York and served as Assistant Special Watergate Prosecutor with the Watergate Special Prosecution Force

  • Miriam Baer, professor of law at Brooklyn Law School where she specializes in corporate and white-collar crime and criminal law and procedure
  • William C. Banks, professor emeritus of law, public administration and international affairs at Syracuse University
  • Christian Berthelsen, legal reporter at Bloomberg
  • John Eastman, professor law and community service and director of the Center for Constitutional Jurisprudence at Chapman University
  • Robert G. Kaufman, public policy professor at Pepperdine where he focuses on U.S. foreign policy, national security and international relations; author of “Dangerous Doctrine: How Obama’s Grand Strategy Weakened America” (University Press of Kentucky, 2016)
  • Laurie L. Levenson, professor of law at Loyola Law School and former federal prosecutor
  • Justin Levitt, professor of law at Loyola Law School and former deputy assistant attorney general in the Civil Rights Division of the Justice Department under President Obama; he tweets @_justinlevitt_
  • Amanda Renteria, chair of Emerge America, a national organization that works to identify and train Democratic women who want to run for political office; she is the former national political director for Hillary Clinton’s 2016 presidential campaign; she tweets @AmandaRenteria
  • Sean T. Walsh, Republican political analyst and partner at Wilson Walsh Consulting in San Francisco; he is a former adviser to California Governors Pete Wilson and Arnold Schwarzenegger and a former White House staffer for Presidents Reagan and H.W. Bush

US Once Led International Justice But, Today, We’re on Wrong Side of the Law

By David M. Crane, Ben Ferencz, & Hans Corell

(Re-published from The Hill | April 14, 2019) With this month’s 25th anniversary of the Rwandan genocide it is important that mankind continue to maintain a system of international accountability to help prevent future atrocities. The Rwandan atrocity was one of the catalysts that created the modern international criminal law system. Coupled with the horrors in the Balkans, the United Nations, under the leadership of the United States, created the first international war crimes tribunals since Nuremberg in 1945.

The United States was a key player in developing what became the International Criminal Court, created to deal with the most egregious international crimes, complemented by the efforts of the various state parties.

The International Military Tribunal at Nuremberg was mankind’s first attempt to hold those who committed atrocities accountable under the rule of law. That seminal effort to try the leaders of Nazi Germany was led by an American, Robert H. Jackson, who was the chief U.S. prosecutor at the tribunal. The jurisprudence coming from the International Military Tribunal at Nuremberg in 1945-49 was the cornerstone by which the modern system of accountability was established in the mid 1990s.

All this was historically significant because the international community for centuries looked the other way when heads of state, dictators and monarchs turned against their own citizens and others for their sordid political, religious or ethnic advantage. Military historian John Keegan has said the history of war is the history of mankind, and the history of mankind is the history of war.

At the end of the 20th century, and the end of the decades long Cold War, the events in the Balkans, Rwanda and West Africa, particularly Sierra Leone, called for a different — even bold — approach to help seek justice for the millions of victims. The ad hoc and hybrid tribunals created for Yugoslavia, Rwanda and Sierra Leone were successful examples of what could be done when righteous fury is channelled into using the rule of law to hold accountable those who commit international crimes. These courts and tribunals were created with the focused effort and assistance of the United States.

As these efforts worked to seek justice for the crimes committed in Europe, as well as East and West Africa, the international community was working together at the Rome Conference in 1998 in making those experiments in international justice permanent. The United States was a key player in developing what became the International Criminal Court, created to deal with the most egregious international crimes, complemented by the efforts of the various state parties.

As world power shifted, with a diminished United States, in the 21st century, the very country that “built the house” called modern international criminal law stepped away from that house and handed back the keys, perhaps permanently. Since 2002, the United States has had a cynical and skeptical relationship with the International Criminal Court and, ironically, never became a state party …

Read the full article.

David M. Crane is a Syracuse University College of Law Distinguished Scholar in Residence.

Ben Ferencz was a leading force in the establishment of the International Criminal Court and is the last living prosecutor from the Nuremberg Trials.

Hans Corell, a former judge, was the legal counsel of the United Nations from 1994-2004. He was involved in the establishment of the tribunals and courts mentioned in the article.

Corri Zoli Presents Terrorism, Security Papers at ISA 2019

Corri Zoli, Director of Research at the Institute for National Security and Counterterrorism, presented two papers and was a panel discussant at the 2019 International Studies Association Annual Convention in Toronto, Canada, on March 27 and 28, 2019.

At the Wednesday session of “Revisioning International Studies: Innovation and Progress,” Zoli presented on the “Challenges for Contemporary Special Operations Forces” panel. Her paper—”Terrorist Critical Infrastructures, Organizational Capacity and Security Risk”—joined others on topics such as computer-mediated threat assessment, weak states, ethic conflict, and terrorists’ use of emerging technologies.

On Thursday, Zoli joined the “Shaping the National Security State” panel and read “Leviathan Revisited: Assessing National Security Institutions for Abuse of Power and Overreach.” Other papers on this panel addressed civil‐military relations, the defense industry, and Cold War Military Balance.

Later in the same day, Zoli was the Discussant on the panel “New Directions in Qualitative International Studies” chaired by Eric Stollenwerk of Freie Universität Berlin. This wide-ranging discussion looked at modern qualitative international studies through the lenses of multi-method research, philosophy, autoethnography, and public diplomacy.

 

As Trump Turns to a National Emergency, the Media Turns to William C. Banks

President Donald J. Trump has made it known that he would declare a “national emergency” at the US/Mexico border in order to secure funds to build a southern border wall, an effort to augment funds that Congress has appropriated for border security in a bill that the president is expected to sign.

It turns out it’s going to be quite the tricky fight for Trump should he decide to actually declare a national emergency solely to get the border wall built.

The national emergency declaration would be unusual in this case, as the southern border crisis lacks the immediacy of a catastrophe such as Sept. 11, 2001. The declaration also may be unconstitutional, and it probably will be challenged in the courts. National security expert Professor Emeritus William C. Banks has been in demand by top media outlets to explain the what, why, when, and how of declaring a national emergency.

Trump wants the military to build the border wall. It might not be legal.

(Vox | Feb. 14, 2019) After months of back-and-forth with Congress, President Donald Trump is expected to soon declare a national emergency in order for the US military to construct the southern border wall he’s promised for years.

But there’s a pretty big problem with that, according to experts — namely, that he has a very weak legal case, and there’s strong political opposition to making that happen.

Set aside the fact that Trump’s own administration doesn’t assess that there is a massive national security problem at the US-Mexico border. Trump believes there is, and he plans to take extraordinary measures to keep asylum seekers out of the country.

William Banks, a national security law expert at Syracuse University, helped me understand what to expect in the days ahead.

It turns out it’s going to be quite the tricky fight for Trump should he decide to actually declare a national emergency solely to get the border wall built.

The key law in question is the appropriately named “Construction authority in the event of a declaration of war or national emergency.” Here’s what it says:

In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces. Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated …

Read the full article.

SEE ALSO …

Trump’s ‘authoritarian’ streak stirs backlash at home and abroad (The Washington Post | Feb. 19, 2019)

Trump’s national emergency and GOP senators (CNN | Feb. 19, 2019)

State of Chaos: What Comes Next for Mueller and for Trump’s “Emergency”? (On Topic with Renato Mariotti | Feb. 16, 2019)

Prof. Bill Banks interviewed by KCBS Radio (Feb. 16, 2019)

Trump declares U.S.-Mexico border emergency; Democrats protest (Reuters | Feb. 15, 2019)

Trump’s national emergency to contend with lawsuits (China Daily | Feb. 18, 2019)

Trump’s Face-Saving Way Out of Crisis Raises Fears Over Rule of Law (The New York Times | Feb. 14, 2019)

National Emergency Powers and Trump’s Border Wall, Explained (The New York Times | Jan. 7, 2019)

No Evidence of Collusion? William C. Banks Discusses Senator Burr’s Comments with Bloomberg Law

Senate Intel Leaders Split Over Russia Collusion

(Bloomberg Law | Feb. 13, 2019) Syracuse University Law School Professor William Banks discusses comments made by Richard Burr, the Republican Chairman of the Senate Intelligence committee that the investigation had found no evidence of collusion, Senator Mark Warner, the top democrat on the committee disagreed saying the investigation is still ongoing and the committee still had to interview key witnesses. He speaks with Bloomberg’s June Grasso.

https://www.bloomberg.com/news/audio/2019-02-13/senate-intel-leaders-split-over-russia-collusion-radio

William C. Banks Discusses Posse Comitatus & the US Military’s Southern Border Deployment

The controversial deployment in late October 2018 of 5,800 US servicemembers to the US-Mexico border in response to a perceived migration and asylum crisis has caused a media stir. Not unsurprisingly, questions about the legality of the deployment have arisen, especially in the wake of a November 20 White House “Cabinet Order” allowing troops to perform law enforcement roles and to use lethal force, potentially in violation of the Posse Comitatus Act. Professor Emeritus William C. Banks, author of Soldiers on the Home Front: The Domestic Role of the American Military, has answered some of these questions for Military Times, Vox, and PRI, as well as on the Just Security blog.

What’s a Posse Comitatus, Anyway? The Military Role at the Southern Border

(ACSBlog | Dec. 3, 2018) … What about the “crowd control, temporary detention” and “cursory search” permitted by the order? Secretary Mattis responded to a question about involvement in law enforcement this way: “We do not have arrest authority. Detention, I would put it in terms of minutes. . . . [We would stop an assault on a CBP agent] and deliver them to a Border Patrol man, who would then arrest them” …

What’s a Posse Comitatus, Anyway? The Military Role at the Southern Border

What Trump’s “lethal force” authorization means at the border

(Vox | Nov. 27, 2018) “On one hand, it is kind of ridiculous because there is nothing approaching an invasion there,” William Banks, a national security expert with Syracuse University, said. “There is no indication that there is a force lining the border that [Customs and Border Protection] couldn’t take care of. But on the other hand, if you take the Cabinet order’s language at face value, and take what the president is saying as credible threats, then it becomes grayer.”

https://www.vox.com/policy-and-politics/2018/11/27/18112610/trump-lethal-force-caravan-migrant-border-military

Military at the southern border and the Posse Comitatus Act

(PRI The World | Nov. 23, 2018) The White House has signed a memo allowing troops stationed at the border to take on some law enforcement roles including using lethal force, if necessary. Some experts say the directive is at odds with the Posse Comitatus Act. The federal law, which dates back to the 19th century, forbids active military members from engaging in civilian law enforcement roles. The World’s Carol Hills interviews William C. Banks, a professor of law at Syracuse University, and co-author of “Soldiers on the Home Front: The Domestic Role of the American Military.”

https://www.pri.org/file/2018-11-23/military-southern-border-and-posse-comitatus-act

White House approves use of force, some law enforcement roles for border troops

(Military Times | Nov. 21, 2018) Posse Comitatus is “always looming in the background. You never invoke it as such because it is such a background principle,” said William Banks, author of “Soldiers on the Home Front: The Domestic Role of the American Military” and the former director of the Institute for National Security and Counter-terrorism at Syracuse University’s College of Law.

https://www.militarytimes.com/news/your-military/2018/11/21/white-house-approves-use-of-force-some-law-enforcement-roles-for-border-troops/#.W_a8R03c8js.twitter

Legal Analysis of “Cabinet Memo” on the Military’s Role at Southern Border

(Just Security | Nov. 26, 2018) More important is what the Constitution, Posse Comitatus Act, and other federal laws represent – a longstanding legal norm disfavoring military involvement in domestic affairs except in dire circumstances. It is no exaggeration to say that avoidance of military involvement in civil society is part of our cultural heritage. Let’s hope that Secretary Mattis’ cool head prevails in the days ahead.

Legal Analysis of “Cabinet Memo” on the Military’s Role at Southern Border