Secrecy

Nathan Sales Speaks to CBS, People About Clinton Emails

Expert: Email Scandal Reinforces Narrative Clintons Operate By Own Set Of Rules

(CBS New York, May 26, 2016) … “It’s not good news for the Clinton camp,” said Nathan Sales, a Syracuse law professor and a former lawyer for the Departments of Justice and Homeland Security.

Sales said Clinton faces possible legal exposure on two fronts: the 2009 Federal Records Act for using a non-governmental email server, and Title 18, Chapter 37 of the U.S. Code, which covers handling of classified material.

Sales said the FBI team investigating will do it “by the book.”

‘These are serious career professionals who have at heart the nation’s best interest, and something here has caught their eye,’ Sales explained …”

To read the full article, click here.

What Does the Inspector General’s Report on Hillary Clinton’s Emails Really Mean?

(People, May 26, 2016) … The report also stated that Clinton should have handed over records of her emails to the government at the time that she was working for the Department, or at the very least before she left her position as secretary of state.

“Because she did not do so,” the report continued, “she did not comply with the Department’s policies that were implemented in accordance with the Federal Records Act.”

Nathan Sales, a Syracuse law professor and a former lawyer for the Departments of Justice and Homeland Security, told CBS the report is “not good news for the Clinton camp.” …

To read the full article, click here.

Nathan Sales Discusses Clinton Email Case with AP

EXPERTS SEE LITTLE CHANCE OF CHARGES IN CLINTON EMAIL CASE

(Associated Press, March 22, 2016) Asked earlier this month whether she’d be indicted over her use of a private email server as secretary of state, Hillary Clinton responded: “It’s not going to happen.”

Though Republicans characterized her response as hubris, several legal experts interviewed by the Associated Press agreed with the front-runner for the Democratic presidential nomination.

The relatively few laws that govern the handling of classified materials were generally written to cover spies, leakers and those who illegally retain such information, such as at home. Though the view is not unanimous, several lawyers who specialize in this area said it’s a stretch to apply existing statutes to a former cabinet secretary whose communication of sensitive materials was with aides – not a national enemy …

One potentially relevant statute carrying up to a year in prison makes it a crime to knowingly remove classified information and retain it at an unauthorized location. Former CIA Director David Petraeus pleaded guilty to that misdemeanor offense last year after providing eight black binders of classified information to his biographer. He was sentenced to two years’ probation as part of a plea deal, and prosecutors made clear in that case that Petraeus knew he was turning over highly classified information.

With Clinton, though, “I look at something which requires knowledge, and the first question I’ve got to ask is, ‘How do they prove knowledge?'” said Bill Jeffress, a Washington criminal defense lawyer.

While knowledge that information is classified is a critical component, it can likely still be established even in the absence of classification markings on the emails in question, said Nathan Sales, a Syracuse University law professor who used to work at the departments of Justice and Homeland Security and who thinks that the investigation raises important legal issues.

“Sometimes information is so obviously sensitive that you can infer knowledge from the content,” in which case the lack of markings may not matter for the purpose of establishing liability, Sales said …

To read the full article, click here.

 

William C. Snyder Speaks to CNET About Apple, FBI, & the “All Writs Act”

Feds to Apple: You’re not above the law in iPhone case

(CNET, March 10, 2016) The US Department of Justice fired back at Apple on Thursday in an ongoing battle over unlocking an iPhone, saying that complying with the FBI’s request wouldn’t be an “undue burden” for the company.

The government, in a 43-page court filing, said Apple “deliberately raised technological barriers that now stand between a lawful warrant and an iPhone containing evidence related to the terrorist mass murder of 14 Americans.”

To argue that the All Writs Act doesn’t apply in the Apple case “is like arguing that the Writ of Habeas Corpus shouldn’t apply to persons held in custody because it is hundreds of years old.”

“Apple alone can remove those barriers so that the FBI can search the phone, and it can do so without undue burden,” the government said.

The Justice Department noted that the Constitution, the All Writs Act (the 227-year-old law used to compel Apple to assist the FBI), and the three branches of government should be trusted to “strike the balance between each citizen’s right to privacy and all citizens’ right to safety and justice. The rule of law does not repose that power in a single corporation, no matter how successful it has been in selling its products.”

Apple, during a call with reporters on Thursday, disputed the assertions in the Justice Department’s filing and accused the government of taking cheap shots.

“In 30 years of practice, I don’t think I’ve ever seen a legal brief more intended to smear the other side with false accusation and innuendo,” Bruce Sewell, Apple’s top attorney, said. “I can only conclude the DOJ is so desperate at this point it’s thrown all decorum to the winds.”

The back-and-forth on Thursday is the latest skirmish in the war between the FBI and Apple, which is resisting a February 16 federal court order to unlock an iPhone 5C tied to December’s San Bernardino, California, massacre. The FBI wants Apple to create a special version of its mobile software to help access data on an iPhone used by Syed Farook, one of two terrorists who killed 14 people and wounded 20 others. Apple, which said it has already helped the FBI as much as it can, contends the court doesn’t have the authority to force it to write a special version of iOS and has turned this into a broader debate over personal privacy, one that has drawn the tech industry to its side.

The Cupertino, California, company says that complying with the FBI’s request will create a back door into the iPhone and set a “dangerous precedent” that exposes all its customers to security risks. The government says this is a onetime request (even though there is a list of a dozen other iPhones it wants unlocked) and argues that getting information from the iPhone is a matter of national security …

… The government defended its use of the All Writs Act, saying in passing the act, “Congress gave courts a means of ensuring that their lawful warrants were not thwarted by third parties like Apple.”

William C. Snyder, visiting assistant professor of law at Syracuse University College of Law and a former federal prosecutor, said he personally used the All Writs Act scores, if not hundreds, of times in the 1990s when prosecuting organized crime and narcotics cases. The act may be seen by Apple as outdated, he said, but it’s viewed in the legal community as a well-established, useful tool.

To argue that the All Writs Act doesn’t apply in the Apple case “is like arguing that the Writ of Habeas Corpus shouldn’t apply to persons held in custody because it is hundreds of years old or that the Fourth Amendment [that protects from unreasonable search and seizure] doesn’t apply in cyberspace because it is from a different technological era,” Snyder said.

The government also accused Apple of being accommodating to similar requests in China, something Sewell and Apple’s other attorneys fiercely disputed. The attorneys called the accusations “ridiculous” and said Apple has never built a back door in its products, nor has any government ever asked it to do so. Only now, in the US, is it facing that question, the attorneys said.

The Justice Department, meanwhile, said that Apple, by its own calculations, would have to set aside as few as six of its 100,000 employees for as little as two weeks to assist the FBI in accessing the iPhone 5C. And the government said Apple’s concern that its reputation would be harmed and consumers would lose faith in Apple’s security isn’t reason enough to allow it to avoid the search warrant. The same argument has been used before, by telecommunications companies and others, but it hasn’t stood up in court, the government noted …

To read the full article, click here.

RFI Brasil Interviews Nathan Sales About a Possible “French PATRIOT Act”

To author of the “Patriot Act,” new French law surveillance stricter than the US

(Translated from the Portuguese, RFI Brasil, Nov. 18, 2015) Following the attack on the newspaper Charlie Hebdo in January 2015, there were few voices in French policy to ask for a ‘Patriot Act à la française’, a new legislation to address terrorism inspired by the American law. The controversial Patriot Act enacted by George Bush after Sept. 11, 2001 is criticized for having increased the permissions for the government to monitor suspects through surveillance techniques such as wiretapping. Law professor at Syracuse University in New York and INSCT Faculty Member Nathan A. Sales was part of the team that wrote the law. To this jurist, who at the time worked at the US Department of Justice, the French do not need a “Patriot Act” to fight terrorism because their current surveillance law, passed last summer, gives even more power to the French government than US laws provide Washington, DC. 

“French law is more permissive than the American. It provides stronger surveillance authorities of the United States.”

RFI Brazil – Is the Patriot Act still useful in fighting terrorism?

Nathan A. Sales – It’s working well, but no anti-terrorist surveillance will be perfect. Technological change is putting a lot of pressure on surveillance laws here in the United States but also in France. One of the challenges that we started to face last year is encryption. There is now a large number of new technologies that did not exist years ago, applications like WhatsApp and other technologies that terrorists such Islamic State and other groups increasingly use to protect communication. This means that even if you have a law like the Patriot Act or a new French surveillance law that allow researchers to intercept the communications of suspects, these laws cannot do much if you cannot decipher the information. This type of high-quality encryption used to be a unique, sophisticated technology for governments such as the US, Britain, and France. It is now available to anyone who has an iPhone.

What was the main concern when the Patriot Act was written?

Nathan A. Sales – We had two key objectives. One of the things that the Patriot Act did was allow counterterrorism investigators to use the same techniques that ordinary police have been using for decades; for example, use mobile wiretapping. Another thing that the Patriot Act tried to do was to create a judicial approval system that would allow the anti-terrorism investigators to conduct wiretaps, but subject to strict authorization of a judge. You needed permission of the court, for example, to watch Khalid Sheikh Mohammed [the terrorist imprisoned in Guantanamo, accused of being an “architect of 9/11”].

How do you see the new French law surveillance law passed in June?

Nathan A. Sales – French law is more permissive than American. It provides stronger surveillance authorities than the United States. There is no need for court approval, and there are a greater number of case types that you can monitor not only terrorism and espionage but also for industrial and economic research. In terms of legal authorities, the French government has more tools than the American.

So that French law should be enough?

Nathan A. Sales – Hard to say. The attack in Paris took place despite this law. We need to know why. The attack was a very sophisticated operation, involving a lot of money, training, travel, and communication. It will be very important for researchers to figure out how the attack could happen without the French authorities detecting it. [At a time when France is considering new surveillance laws, it’s important to understand whether there are any gaps in the current laws that contributed to the attacks.]*

The French generally reject the idea of making a “French Patriot Act” because they are afraid of losing civil liberties. Does this make sense?

Nathan A. Sales – France already has surveillance laws that go beyond the US Patriot Act.

“The most important part of the Patriot Act is the judicial approval. Generally, if the NSA wants to intercept a communication in the US, it must go to the court responsible for surveillance and intelligence and demonstrate probable cause that the target is a spy or terrorist.”

Does the Patriot Act not affect the individual rights of citizens?

Nathan A. Sales – The most important part of the US Patriot Act is the judicial approval. Generally, if the NSA wants to intercept a communication in the US, it must go to the court responsible for surveillance and intelligence and demonstrate probable cause that the target is a spy or terrorist. This is very similar to the laws that apply to ordinary criminal investigation. The basic concept is: you need to ask a judge before acting. And this is an important way to avoid abuse or unnecessary surveillance.

How would you advise President François Hollande to act from now on?

Nathan A. Sales – There is no single answer or a silver bullet to solve the problem. In part action will have to be an international military coalition led by France, and I would like to see the United States have a greater role. Our president said Friday (Nov. 13, 2015), throughout the day, that Islamic State was contained. This was a surprise to the people of Paris. I would advise the French president and others to put together a military coalition, including Sunni Arab states such as Saudi Arabia, and others like Georgia and Egypt, which are in the region and have a military force that, combined with NATO, can defeat this threat.

Is the fight against ISIS different from that fight al-Qaeda?

Nathan A. Sales – There are some disturbing similarities between the two. Al-Qaeda in 2000 looked a lot like the ISIS in 2015. The two have territories where they are safe, but the territory controlled by ISIS is much larger than that of Al-Qaeda in Afghanistan. ISIS held large-scale attacks as did al-Qaida in the 90s, such as attacks on US embassies in Africa. My concern is that ISIS is now just warming up. The catastrophic attack on Paris, the downing of the Russian plane, and the attack in Lebanon could be the prelude to something bigger, something with a Sept. 11, 2001 scale.

To see the original article, click here.

* English translation of this sentence clarified by Professor Sales on Nov. 18, 2015. 

INSCT Faculty Discuss Security, Law, & Geopolitics

Several INSCT faculty members have recently been asked to comment in the media on national security, international law, and geopolitical topics …

College of Law Professor Nathan Sales spoke with news outlets about the national security implications of the alleged use by then-US Secretary of State Hillary Clinton of a private server to send and store emails containing classified information:

Maxwell School Professor Miriam Elman co-authored an editorial about the Iran nuclear deal:

College of Law Professor Tara Helfman commented on Somali pirates and the Law of the Sea:

Nathan Sales Speaks to Public Radio About Clinton Emails

Undo Send: Email-Gate Continues to Haunt Clinton Campaign, with Potential Justice Probe in Sight

(KPCC Public Radio, July 27, 2015) As the State Department prepares to release a third batch of emails sent and received by Hillary Clinton while she was Secretary of State, the Justice Department is considering opening an inquiry to look at whether classified information was leaked from the use of Clinton’s personal email server.

News of the potential probe broke last week in the New York Times, which erroneously reported that two inspectors general had asked the Justice Department to look into opening a criminal investigation. The paper later corrected its initial reporting, saying that the potential probe is not criminal in nature.
Clinton maintains that she never processed classified information through her own personal email server.

If the Justice Department decides to open a probe, what would they look for? What would the investigation look like? How would the latest in this brewing scandal impact the Clinton campaign?

Guests:

Nathan A. Sales, associate professor of law at the Syracuse University College of Law. He is a former Deputy Assistant Secretary for Policy Development at the US Department of Homeland Security, focused on on intelligence and information sharing.

David Mark, co-author of “Dog Whistles, Walk-Backs, and Washington Handshakes (ForeEdge, 2014), and co-author of a weekly political language column for the Christian Science Monitor.

To listen to the segment, click here.

William C. Banks Speaks to WAER About Phone Data Collection

Sunset of the Patriot Act Leads to a Rise in Restrictions of Collection of Americans’ Phone Data

[pullquoteright]When the government has been pressed to identify cases that have been thwarted or instances where viable intelligence has been collected they have not identified any specifics.”[/pullquoteright](WAER, June 4, 2015) A Syracuse University counter-terrorism expert says the changes to federal surveillance powers will result in needed oversight and transparency of the government’s activity. In six months, the national security agency will no longer be able to collect bulk data from all domestic phone records. Instead, the NSA will have to request the information on a case-by-case basis from the phone companies by obtaining a court order. William Banks directs SU’s Institute for National Security and Counter Terrorism, and says the additional oversight is welcome.

Banks says the balance between security and liberty is an elusive one, which can make it hard to cut back or justify the programs. He says part of the problem is no one really knows how effective the phone record surveillance program has been.

“What we really like to know has not been shared. When the government has been pressed to identify cases that have been thwarted or instances where viable intelligence has been collected they have not identified any specifics. They say it has been helpful, but we do not know that for sure …

To read the whole story and to listen to the radio segment, click here.

“State of State Secrets Panel Discussion” Now Online

A panel discussion on US state secrets privilege moderated by INSCT Director William C. Banks, with George Jameson, Principal, Jameson Consulting; David M. Crane, Professor of Practice, SU College of Law; and Nathan Sales, Associate Professor, SU College of Law. Incorporating a discussion on “What National Security Lawyers Do.”

State of State Secrets

[infobox color=”orange”]

WHAT: “State of State Secrets” (incorporating “What Do National Security Lawyers Do?”)

WHO: George Jameson, William Banks, David Crane, Robert Murrett, and Nathan Sales

WHEN: Oct. 15, 2014 | 11:50 a.m. – 12:50 p.m.

WHERE: 360 Dineen Hall

[/infobox]

A panel discussion on US state secrets privilege.

MODERATOR
William C. Banks, INSCT Director

DISCUSSANTS

  • George Jameson, Former Director, Office of Policy and Coordination, CIA
  • David M. Crane, Professor of Practice, SU College of Law
  • Nathan Sales, Associate Professor, SU College of Law

 

 

“National Security Surveillance After Snowden” Video Now Online

On Aug. 8, 2014, during the American Bar Association 2014 Annual Meeting in Boston, MA, a group of national security experts convened to discuss privacy, foreign intelligence surveillance requirements, and potential reforms, including new legislation, in a panel entitled “National Security Surveillance after Snowden,” sponsored by the ABA Standing Committee on Law and National Security, Aug. 8 during the ABA Annual Meeting in Boston.

INSCT Director William C. Banks was the moderator. He was joined by Carrie Cordero, Director, National Security Studies, Georgetown Law; Robert Litt, General Counsel, Office of the Director of National Intelligence; Harvey Rishikof, Dean, National War College; and Alasdair Roberts, Rappaport Professor of Law and Public Policy, Suffolk University Law School.

  • For the ABA SCOLANS summary of the panel, click here.
  • For a list of relevant reading materials, click here.
  • For a podcast of the entire panel, click here.
(L to R)
(L to R) Robert Litt, Alisdair Roberts, Carrie Cordero, and William C. Banks.