Critical Issues in National Security Law

Episode Notes

Transcript

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Intro: Welcome to the official ABA Law Student Podcast where we talk about issues that affect law students and recent grads from finals and graduation to the bar exam and finding a job. This show is your trusted resource for the next big step. You’re listening to the Legal Talk Network.

Meghan Steenburgh: Hello and welcome to another edition of the ABA Law Student Podcast. I’m Meg Steenburgh, a 2L at Syracuse University College of Law JDI Program. This episode is sponsored by NBI. Taught by experienced practitioners, NBI provides practical skill-based CLE courses attorneys have trusted more than 35 years. Discover what NBI has to offer at nbi-sems.com.

Today, we are honored to have with us William C. Banks, Emeritus Professor at the Syracuse University College of Law and the Maxwell School where he is professor of public administration and international affairs. He has also served as Interim Dean of the College of Law. A teacher and scholar at SU for more than four decades, Professor Banks was the founding director of the Institute for National Security and Counterterrorism, now called the Syracuse University Institute for Security Policy and Law. Professor Banks is an internationally recognized scholar on a wide variety of topics including constitutional law and national security and counterterrorism law, laws of war and asymmetric warfare, cyber security, civilian military relations and government surveillance and privacy. He is also the author or co-author of numerous scholarly works including books and book chapters related to those issues and more.

In 2017, Professor Banks was named Senior Fellow at Georgetown Law’s Center on National Security and the Law. Among his many public service appointments, Professor Banks served as a special counsel to the U.S. Senate Judiciary Committee for the confirmation hearings of Supreme Court Nominee Stephen Breyer. He is presently chair of the ABA standing committee on law and national security and editor-in-chief of the Journal of National Security Law and Policy.

I must also note, I had the honor of learning constitutional law from Professor Banks. Thank you for joining us today.

William C. Banks: It’s good to be with you, Meg. Happy to do it.

Meghan Steenburgh: I want to begin today with a focus on one area of expertise for you and that is national security law. This discussion is for the common person who wants to link current events and national security interests to law and keep up with the paper and media. We see headlines every day whether it’s the South China Sea, cyber security, the pandemic, these are all national security interests that impact us daily. Let me begin with this question. Through your lens, professor, as a national security law expert, what are the most critical issues facing us today?

William C. Banks: Well, Meg, we’ve lived now for more than a year through the worst public health crisis that the United States has known since World War I, more than a hundred years and the crisis has tested us in many ways including our legal preparedness and our capability to respond effectively with law based public health measures. We’re not out of the woods and I think that even though we’ve made great headway with vaccinations and testing, much more remains to be done and even though the national government is now responding very effectively I think to COVID-19 for almost a year, we struggled to respond and as you know, as a student of constitutional law, Meg, our system of the federal system so indeed much of the legal response to COVID-19 was driven by states and cities, so governors and mayors with 50 different legal systems and sets of rules to decide who’s in charge, how the response is to be governed, what kind of limits might be imposed on individual conduct and practices as well as businesses, local governments, churches, organized associations, restaurants and all panoply and as we’ve learned over the course of the last year, year plus, there have been many disputes that have had to be resolved through the legal system and that’s going to continue.

I think that crisis that we’re still immersed in along with the series of events that culminated in the January 6th assault on the Capitol had tested our legal system perhaps in ways that it hasn’t been tested since the Civil War.

Meghan Steenburgh: Keeping it broad, is there one geographic area of focus for you, a region or a country?

(00:04:57)

William C. Banks: Well, it so happens that in the last few days, the Director of National Intelligence has released two major reports that we come to expect from the DNI. One is released every four years, another one comes every year. The one that comes every four years looks forward up to 15-20 years ahead, so the intelligence report that was released few days ago looks at worldwide threats in the year 2040 and their prediction is for a number of crises to be manifest over the next 15 to 20 years.

Regionally, it meshes with the report that was released only yesterday which is the annual threat assessment that’s also produced by the DNI and looking regionally at the threat assessment as well as at the global threats picture, the consensus view seems to be that China is where the action is going to be in terms of the national security contestation for the United States in the global environment. The Chinese I think have become our peer so it’s a peer competition now in economic terms, in military terms, in strategic terms and in terms of global influence.

The DNI does not predict a military confrontation between the United States and China but we’re competing in many very significant and serious ways and indeed the legal system I think is going to have a great deal to do with how that conflict is managed.

Meghan Steenburgh: Well, it’s interesting because recent headlines are also showing that increasing aggression from China toward Taiwan in that circumstance and in that situation, how do you think nations should be responding?

William C. Banks: Well, the China issue is a very serious one as is the threat in the Xijiang Region for the Uyghur people and others that have been subordinated in that region of Western China. The Taiwan picture is clouded because we don’t know what the Chinese will do, how aggressive they’ll be in continuing to play their cards, if you will. They’ve become more active in the South China Sea lately, coming very close to Taiwan at the same time that the United States and other nations are conducting naval exercises in the region. Our militaries, our naval forces and our security personnel as well as diplomatic personnel are very tuned in to the centrality of the Taiwan issue.

The predictions are by and large that the tensions will continue to rise but not boil over. I don’t know at what point temperatures rise so much that they boil without any further action but I hope that that’s some time into the future.

Meghan Steenburgh: Nuclear weapons used to be sort of the number one concern growing up. Are they still?

William C. Banks: I think they are and I think a lot of people who know a lot about nuclear weapons or about the threats that a nuclear detonation can pose to the world and to the citizens and life on the planet are very concerned about them as well. We allowed various agreements with Russia to expire over the course of the Trump administration. President Biden and Putin have already re-engaged on one of the lapsed agreements at one of the very first days of the Biden presidency this year and I think there will be efforts to negotiate fresh agreements with the Soviets but the arsenals of both our countries are still much, much higher than are needed for any strategic defense reason and should be brought down.

In addition to the threat of an actual war that would bring our societies to an end, there’s concern that a rogue state or a rogue actor might get its hands on a nuclear weapon either through theft or through the theft of the technology and the materials that allow for a weapon to be developed, so a terrorist with a nuclear weapon is indeed a doomsday scenario that I think we should be concerned about. The most important thing we can do I think about nuclear weapons is to try to launch new agreements to bring down the numbers until they get to zero and at the same time, prevent proliferation, to prevent other states that are now feeling threatened by nuclear states from getting their own so that they can join the club.

(00:10:03)

Meghan Steenburgh: Well, that speaks to an issue right now as Iran continues to enrich uranium and the United States negotiates with it, how do you build that trust between the U.S. and a nation like Iran and is the goal to build also that trust for others like Israel?

William C. Banks: It’s complicated as we both know because of the explosion that occurred at the Natanz facility in Iran in the last week that was almost surely perpetrated by Israeli intelligence assets to attempt to slow down the enrichment of the uranium into nuclear grade materials in Iran and apparently successfully so, they’ve slowed them down. Israel views Iran as the quintessential doomsday threat for good reason given the proximity of the two countries and the mammoth size of Iranian forces compared to Israel and the possibility that even one weapon if delivered through nuclear means could essentially wipe Israel off the face of the earth.

Our negotiating strategy isn’t exactly the same as our friends the Israelis, but in the large measure, it shares common objective to assure that Iran does not develop nuclear weapons. I think that the nuclear agreement that was in place during the Obama Administration and that President Trump backed out of was not a not a great agreement by any stretch. Most observers agree that it was weak in many respects but the idea of an agreement remains very appealing. I think it’s appealing to the Biden Administration, so the question is whether the Iranians want to be relieved from most of the serious sanctions that prevent them from selling oil on the international market if they want that badly enough to be able to come to terms with an inspection regime and a slowed development of the materials for use in peaceful power generation facilities for example.

I think time is on our side there that the economic impact of the sanctions on Iran is serious and getting more serious by the day. Unfortunately, those sanctions tend to hurt common Iranian citizens, men and women and children, in Iran more than they do the officialdom but this is an election year in Iran for whatever that is worth and I think there’s a chance that the long game here toward negotiation may prove to be successful.

Meghan Steenburgh: We are speaking with Professor William C. Banks, Syracuse University College of Law. We’ll be right back.

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Meghan Steenburgh: And now we are back with Professor William C. Banks, Syracuse University College of Law. Let’s focus on national security interests at home now. When it comes to the pandemic, what lessons have we learned from the national security perspective?

William C. Banks: The pandemic has brought many things to it in stark relief. One of the things — well let me focus on two. One is that a lot depends on the leadership of the national government even if the decisions about what to do in the public health situation are largely made at the state and local level. Federal leadership involves coordination, planning, execution, bringing the resources of the national government to bear to make things happen in the public health space. Historically, one of the things that the pandemic has reminded us is that public health, while it’s a state and local affair in almost every respect, has also been relegated to the bottom of the budget priority pile, if you will, in virtually every state in the United States.

When the pandemic struck just as when other public health crises have happened in the past, states and cities are by and large unprepared in part because they’re so under-resourced.

(00:15:06)

On the legal side, what we learned over the course of now 14 months is that the decisions made by states and cities often press civil liberty’s components that can stand in the way of an effective enforcement of a public health regime. For example, restrictions on religious observances, large gatherings at churches or synagogues or cathedrals. As you probably know, Meg, the Supreme Court and lower courts have had to visit and revisit various petitions from groups who feel that their ability to practice religion has been interfered with because of otherwise neutral regulations that have been put in place by state governors or even local officials, mayors and the like.

Now, we’re in the realm of vaccination of course and there’ll be questions about whether governments or universities or businesses can require vaccination as a condition for example being a student at Syracuse University or being an employee of the City of Tucson or being a worker at the local grocery store. Those are tough questions and they haven’t all been resolved yet and they’re going to come in droves I think in the weeks and months to come, not to mention that they don’t bode well for our preparedness for the next pandemic, which I think is fair to say is not in the distant future.

Meghan Steenburgh: From your perspective, you mentioned this earlier a little bit too but the attack on the Capitol on January 6th. What changes do we need following that?

William C. Banks: The assault on the Capitol on January 6 was a horrifying moment for our democracy because it threatened at the very core of our constitutional fabric the way we make a transition from one elected administration to the next and seat the president. Legally, our system bent under great pressure on that day and around that entire period between the election in November and the inauguration in January. It bent but it did not break. It persevered and indeed, the mechanisms of government that were supposed to operate did in the end operate and operated successfully.

Now, as we attempt to enforce the laws against those who assaulted the Capitol, more than 400 individuals have been criminally charged and investigations are ongoing. There may be more than 400 before the Department of Justice is finished. Of that 400 plus, 300 are misdemeanor charges for things like trespass, pretty straightforward charges, many of them may be pled or negotiated towards some kind of a settlement. That leaves a hundred or more, I believe they’re more than a hundred now of felony charges and by and large, those are for assault type offenses, felony assault and some of them involve conspiracy charges.

From my perspective and I think that there are people, experts in the field who see this differently but from my perspective, I think we have the legal tools that we need to respond to events like January the 6th. What we didn’t have or what were not put into effective use on that day were the planning and preparedness tools to either prevent it from happening altogether or to mitigate considerably what actually happened on that day. We’ve now seen the various reports and there are bound to be more about the failures to adequately plan and prepare for what everybody reasonably could foresee what’s coming on that day.

There’s a real danger, I think that if we reach out to criminalize specific kinds of advocacy in the United States that will begin to threaten our core civil liberty’s values and we don’t want to do that. It’s about the First Amendment as you know that even ugly speech is protected speech, even speech which is antithetical to your core values is speech that we ought to allow because that kind of system is the best system for allowing more effective communication between people about our government to occur over the long haul.

(00:20:09)

So, I’m somewhat optimistic that our system is up to the task of policing against outrages like the January 6 assault. I’m more invested now myself in working to help prepare so that crises like these in the future are anticipated and that steps are taken to mitigate or prevent those kinds of events from happening again.

Meghan Steenburgh: And perhaps you just spoke to some of this but it is April 2021. What is the biggest constitutional crisis of our day?

William C. Banks: Well, I think it involves the very legitimacy of our system. As you know, the election and the attempt by then President Trump to assert that the election was fraudulent, that it was stolen in some way despite the absence of any factual support for those charges really called into question whether our system could sustain itself in the face of that kind of an attack by such a strong presence in our national culture and indeed, that view apparently continues to be held by a good number, a majority perhaps of the base of the Republican Party which is a very worrisome consideration because then, the democracy isn’t a democracy anymore if the people don’t believe that the mechanisms for allowing our democracy to further itself are not legitimate.

The challenge I think for the constitution is to return to regularized deliberations and voting and party conferences and nominations and the like that have allowed our democracy to persevere for well over 200 years and I think embedded in that crisis, it is an ongoing crisis will be the role of the courts. The courts of now because of a lot of partisan wrangling over appointments to the courts particularly the federal courts but in some states as well over the last few years, judges are being viewed less as impartial arbiters of what the law is and more as those who would advance the agenda of the official who appointed her or him. As a student of constitutional law, Meg, you know that that’s not a healthy view about the role of the judiciary which is supposed to be the arbiter of what the law is above the partisan fray.

I think time may heal that wound and we’ll find out, you saw in the last week or so that the President is creating a commission to study the role of the courts. He hasn’t put forth a proposal. I don’t believe he has one. He said that he doesn’t but he wants to see what experts think about how the courts can be made even more effective than they have been over our history. They’ve certainly been a bellwether for us about when things are bad and right now, I think the lights are blinking red that there’s a crisis afoot even in the judiciary, so we’re going to have to tread lightly and very deliberately with a lot of folks like you who are determined to learn what the law is and to be able practitioners going forward.

Meghan Steenburgh: Well, let’s head back to law school for a moment, if we may. What advice would you give yourself if you could do it over again and is that the same advice for a student today?

William C. Banks: Well, it’s so long ago. I could hardly remember but I think one of the things that — I have a young daughter who’s just finished undergraduate school and is wondering what to do with her life and I think one of the best things that a young person can do these days before law school or before graduate school or before medical school is to take a little time to do something else. Get out and experience the world. Work in a job. Volunteer in a community. Travel. Meet some people, kinds of people that you didn’t interact with when you were growing up or that were your roommates and friends in college.

(00:25:00)

One of the things that happens to us, those of us who march right through school and then law school and then into a career, is that we tend to get a little bit of tunnel vision. We don’t see the world and even our own society as broadly as it actually is and I think young people can benefit from a little time plowing some other fields, learning about life and the world before returning to the classroom. Law school will be here. We’ll still be teaching Marbury and Madison when you finish your time away.

Meghan Steenburgh: Wise words as always. Professor Banks, thank you so much for joining us today.

William C. Banks: It was my pleasure. Thank you, Meg.

Meghan Steenburgh: And thank you for listening. I hope you enjoyed this episode of the Law Student Podcast. I’d like to invite you to subscribe to the ABA Law Student Podcast on Apple Podcasts. You can also reach us on Facebook at ABA for Law Students and on Twitter @abalsd.

That’s it for now. I’m Meg Steenburgh, thank you for listening.

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Podcast transcription by Tech-Synergy.com