(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.
(Associated Press | Sept. 18, 2019) President Donald Trump is flexing his executive power to declassify secret documents in the Russia investigation, an extraordinary move he says will ensure that “really bad things” at the FBI are exposed. But the decision, made against the backdrop of Trump’s spiraling outrage at the special counsel’s Russia investigation, may expose sensitive sources and methods and brush up against privacy law protections, experts say.
The order is likely to further divide the president from the intelligence agencies he oversees and raises new concerns that Trump is disclosing government secrets for his own political gain. Critics of the move say the president has a clear conflict by trying to discredit an investigation in which he himself is a subject …
… William Banks, a Syracuse University national security expert, said that by making the information public, Trump is essentially overruling the decisions of career officials intent on keeping it from foreign intelligence services, terrorist groups and other adversaries.
He said while there’s nothing to prevent Trump from releasing the bulk of the information identified by the White House, he may face some problems releasing the Russia-related text messages because of the federal Privacy Act, which governs the type of personal information the government can make public.
“The Privacy Act is a big hurdle here unless Congress takes control of the materials and tries to release them themselves,” Banks said.
The FBI earlier released in heavily redacted format 412 pages of surveillance applications and court orders related to Page. Monday’s declassification order covers 21 pages of a 101-page June 2017 application to renew the warrant — the last of four filed by the Justice Department. His communications were monitored for nearly a year starting in October 2016 …
(WJLA ABC 7 | Sept. 18, 2019) President Donald Trump said Tuesday he wants “total transparency” in the investigation of Russian interference in the 2016 election, calling some of the details revealed so far “a disgrace to our nation,” but critics say his latest effort to shine light on the probe is a self-serving attempt to undermine special counsel Robert Mueller.
“This is a witch hunt,” Trump told reporters before a meeting with President Andrzej Duda of Poland. “Republicans are seeing it. The Democrats know it’s a witch hunt, too, but they don’t want to admit it because that’s not good politics for them. But it’s a terrible witch hunt, and it’s hurt our country.”
In a statement issued Monday night, White House Press Secretary Sarah Sanders announced the president is ordering the declassification of selected documents related to the FBI’s applications to a Foreign Intelligence and Surveillance Act court to conduct surveillance of Carter Page, a former adviser to Trump’s campaign, and text messages sent by several officials involved in the investigation. Sanders said Trump was acting “at the request of a number of committees of Congress, and for reasons of transparency” …
… “What’s being released here has been reviewed by officials in the executive branch already and they decided the documents should not be declassified,” said William Banks, former director of the Institute for National Security and Counterterrorism at Syracuse University.
National security law experts say there is no precedent for a commander in chief selectively declassifying materials from an investigation of his own conduct, but they agree it is within Trump’s authority to do so …
… According to Banks, FISA proceedings are secretive for good reason, and pulling back the curtain could demoralize intelligence and law enforcement officers.
“Anytime the FISA materials see the light of day, our adversaries can learn more about the processes we use to keep tabs on them,” he said …
… Experts and former DOJ officials have warned of the risk to intelligence-gathering methods in this investigation and others if the sources identified in the documents are exposed
House Intelligence Committee Chairman Devin Nunes, R-Calif., dismissed these concerns, telling Fox News host Laura Ingraham Monday night it is “laughable” to claim this declassification endangers national security.
“This is really full transparency for the American people,” Nunes said.
Banks rejected the notion that declassifying 21 hand-picked pages of the FISA applications is about “full transparency.”
“If you want a more complete understanding of what went on here, you wouldn’t declassify two pages here or four pages there. You’d declassify all of it, and that’s not what they did,” he said …
(Re-published from The Jurist | June 26, 2018) June 26th is the United Nations’ International Day in Support of Victims of Torture. Its purpose — to denounce the crime of torture and proclaim solidarity with its survivors — is in stark opposition to the policy of my government.
As a former Chief Prosecutor of an international war crimes tribunal in West Africa, I walked the countryside, interviewing hundreds of victims — often people who had been tortured by their own government. The atrocities scarred them physically, emotionally, and psychologically for life.
But they shared their stories enthusiastically with our team, willing to relay the horror in order to receive human empathy, long after giving up hope of finding anything resembling justice.
Having prosecuted the officials of other governments for torture, I now find myself in a United States increasingly identified with torture and cruelty. Intensifying torture was presidential campaign rhetoric. A person who oversaw waterboarding in black site prisons is promoted to lead the CIA. Children are removed from their families as they flee gang violence. The U.S. reportedly now plans to leave the UN Human Rights Council, although a member has never before departed that body voluntarily.
A leader in building the post-World War II consensus against torture and for the rule of law, the United States chose a path of lawless brutality after the horrendous crime of 9/11. Lashing out broadly at Muslims, it threw aside its own rules and embarked on the rendition, detention and interrogation program (RDI).
Our government embraced torture, long known by interrogation professionals to be counter-productive. It did so as an attempt at payback, out of anger. Weak justifications defied logic, morality, and international legal norms that had stood for decades.
Two Libyan victims of the RDI program, Abdul-Hakim Belhaj and his wife Fatima Boudchar, exemplify how far the U.S. moved to the dark side. They were on their way to the U.K. to seek asylum as opponents of the Gaddafi regime. With intelligence from the U.K., the CIA detained them in Thailand and tortured them: painful stress positions, drugs, and vicious beatings. Boudchar was several months pregnant.
From Thailand they were rendered to Libya, to the hands of their enemies, where they suffered further torture. Ms. Boudchar was released from prison just three weeks before she gave birth.
Fourteen years later, the British Prime Minister finally issued an apology for the U.K.’s role in the couple’s rendition and torture, a crime led by the United States. Stating that her country had contributed to the couple’s capture, Teresa May admitted “neither of you should have been treated this way,” and apologized unreservedly.
Less than a month later, the European Court of Human Rights also repudiated torture. It delivered judgments against Romania and Lithuania, which both hosted secret CIA torture prisons, finding this supporting role a violation of the European Convention on Human Rights.
In stark contrast, at the same time such moral progress was occurring across the Atlantic, the U.S. confirmed a key figure in the RDI program to lead the CIA. Gina Haspel oversaw detention and torture at a black site occupied by Abd al-Rahim Al-Nashiri, the detainee whom the European Court said was subject to “an extremely harsh interrogation regime.”
I am part of one attempt to answer that question and give the survivors a safe space to tell their stories. I am a Commissioner of the North Carolina Commission of Inquiry on Torture (NCCIT). As part of the RDI program, the CIA used contractors and public facilities in North Carolina to move victims around the world to be tortured. Now local citizens are demanding to know how and why this was allowed to occur …
(Bloomberg Law | Feb. 15, 2018) William Banks, a professor at Syracuse University Law School, discusses why the judge in the Paul Manafort money laundering case is complaining that there have been too many secret filings in the case. President Trump’s former 2016 campaign chairman and his deputy Rick Gates have been accused of failing to register as foreign agents for political consulting they did for Ukraine and pro-Russian politicians there. Plus, Greg Stohr, Bloomberg News Supreme Court reporter, discusses a group of Supreme Court justices who have emerged as consensus-builders in the court, even as partisan in-fight takes over much of Washington politics. They speak with Bloomberg’s June Grasso.
(WIRED | Feb. 2, 2018) AFTER WEEKS OF Twitter users demanding Congress #ReleaseTheMemo, the House Intelligence Committee—chaired by Republican Devin Nunes—disclosed the contentious four-page report to the public Friday, after President Donald Trump signed off on its release. And while, as expected, the document alleges that federal law enforcement officials abused their surveillance powers in investigating the Trump campaign’s ties to Russia, national security experts see something very different. In fact, they see almost nothing at all—or at least not enough to make any definitive judgement calls.
As had been rumored, the memo details supposedly improper actions by law enforcement officials in seeking a warrant to wiretap Carter Page, one of Trump’s campaign advisors. But understanding what the memo says—and, critically, doesn’t say—requires familiarity with the secretive Foreign Intelligence Surveillance Court, which governs requests made under the Foreign Intelligence Surveillance Act, better known as FISA. Those who know the law best say the memo is largely bunk …
… “The dossier and Steele and all that—it’s cherrypicking a piece of what was probably a 50, or 60, or 100 page application,” says William C. Banks, founder of the Institute for National Security and Counterterrorism at Syracuse University College of Law
FISA applications also have to go through an in-depth protocol known as the “Woods Procedure,” during which the intelligence community needs to verify every single fact. For example, if the application says a person was on a specific train at a specific time, the agent would need to show Department of Justice lawyers how they found out that information. There are other oversight mechanisms as well. For example, applications need to be first certified by the Director or Deputy Director of the FBI, as well as the Attorney General, Deputy Attorney General, or Assistant Attorney General for the National Security Division. In other words, FISA warrants are reviewed at the highest levels, which is part of the reason Nunes’ allegations are so explosive—they implicate multiple parties at the very top of the US intelligence apparatus …
… “I can’t recall any instance in 40 years when there’s been a partisan leaning of a FISA court judge when their opinions have been released,” says Banks …
To read the full article, click here.
William Banks, a professor at Syracuse University Law School, discusses the House’s passage of an extension to the Foreign intelligence Surveillance Act, otherwise known as FISA, which has seen unsteady support from the President, who says he now supports the warrantless spying bill. He speaks with Bloomberg’s June Grasso on Bloomberg Radio’s “Politics, Policy, Power and Law.”
(Bloomberg Radio | Dec. 22, 2017) William Banks, a professor at Syracuse University School of Law, discusses whether or not Congress will vote to reauthorize the Foreign Intelligence Surveillance Amendments Act of 2008—and specifically FISA Section 702—which allows the NSA to collect emails and other communications from U.S. companies and persons while pursuing overseas foreign targets. He speaks with Bloomberg’s Michael Best on Bloomberg Radio’s “Politics, Policy, Power and Law.”
(Spectrum | May 22, 2017) This is a special edition of SPECTRUM featuring intelligence expert, David Crane. The way President Trump is dismissive of “intelligence briefings” and makes disclosure decisions without prior consultation with intelligence experts causes grave concern to a long time security veteran.
Recently, the news has focused on security gaffes in the White House. Some reports have said that President Trump gave the Russians intelligence information that was classified at the highest level of secrecy.
It is reported, by Trump’s National Security Advisor, that he made the decision to do so “on-the-spot” without any prior consultation with his security team. His National Security Advisor H.R. McMaster said at a press briefing that before making the disclosures, the President did not know the source of the information or from where the information came.
Although McMaster claims the President’s disclosures to the Russians were “wholly appropriate,” many experts question the wisdom of such spur-of-the moment Presidential decisions to share highly secretive information without consulting with the security team first.
To understand exactly what happened and what the “intelligence terminology” we hear means, we’ve called in an expert — David Crane.
Crane spent over three decades in top-level Intelligence work for the government. He helped create and was the founding director of the Office of Intelligence Review in the Department of Defense. He is an international law specialist and has acted as a prosecutor of war crimes for the United Nations.
Crane is very concerned about how this Administration is handling intelligence and what the dire ramifications could be. He is troubled by the President’s seemingly casual attitude about “intelligence” and his dismissive policies toward “briefings” by veteran intelligence officers. He also describes how the President’s mishandling of critical information can put other countries and individuals in jeopardy as well as the United States.
By David M. Crane & Catherine Reed
(Jurist | May 4, 2017) Last Monday, 24 April, it was easy to miss the important news that the Supreme Court denied cert in the ACLU’s Freedom of Information Act lawsuit to make public the full Senate Intelligence Committee report on the CIA’s use of torture. The news was lost in the frenzied media analysis of Trump’s first 100 days, new opinion polls on his performance, and a looming possible government shutdown over the border wall.
The ACLU is to be commended for their leadership both in this FOIA request, and in the ground-breaking lawsuit Salim v. Mitchell. That suit was brought by torture victims and the family of a man tortured to death by the CIA, and fortunately is moving forward in a Spokane federal court.
But this Supreme Court decision on the Senate report is a blow to efforts at accountability for this dark chapter in US history, and bad news for Americans who want open government and transparency. From the declassified but heavily-redacted executive summary that is available, we know that the CIA’s interrogation tactics were both more brutal and less effective than was acknowledged publicly. The CIA did not provide oversight at the black sites it maintained, and it lied to Congress and the public about the number of detainees it held and tortured during the period following 9/11.
The Supreme Court’s denial of public access to the full Senate report means we will be forced to continue wondering how much torture was used, the level of damage it did to the US, and which private entities may have been involved. Most disturbingly, the decision blocks the robust public debate that release of the full report would stimulate. It continues the shielding of responsible officials from any form of accountability, and keeps the American public and our elected leaders from learning lessons from the failed tactics of the past.
One of President Obama’s final acts in office was to preserve the report under the Presidential Records Act — a positive step given that many elected officials, including Senate Select Intelligence Committee Chair Richard Burr (R-N.C.), have advocated destroying all classified versions. But this step also meant that the report would remain hidden from the public for at least twelve years, and perhaps much longer.
Our current President has, at best, easily influenced and inconsistent views on torture. President Trump, both while campaigning and even after taking office, has openly supported and endorsed resuming torture, although he has also backtracked on his own statements. His appointment of Deputy CIA Director Gina Haspel, who once oversaw a CIA black site in Thailand and was physically present during torture sessions, further underscores that more information about the torture, rendition and detention program must be revealed.
The lack of government transparency and public accountability—reinforced by this week’s Supreme Court decision—makes the work of organizations pushing for accountability all the more vital. One such initiative worth noting is the recently launched non-governmental North Carolina Commission of Inquiry on Torture (NCCIT).
NCCIT was established to investigate and bring about public accountability for the specific role that North Carolina’s state and local governments played in supporting the US torture program …
To read the full article, call here.
INSCT Affiliated Faculty Member David M. Crane was Founding Chief Prosecutor for the Special Court for Sierra Leone and currently is a Professor of Practice at Syracuse University College of Law. Catherine Read is Executive Director of the North Carolina Commission of Inquiry on Torture.
Flynn Faces Legal Action Over Russian Business Dealings
(Bloomberg Law | April 26, 2017) William Banks, Director, Institute for National Security and Counterterrorism at Syracuse University, discusses potential legal charges against former national security adviser Michael Flynn for not fully disclosing his business dealings with Russia. He speaks with Michael Best and Greg Stohr on Bloomberg Radio’s “Bloomberg Law.”
