National Security Law

WILLIAM C. BANKS – National Security Laws describe the parameters following which the US government can project its power internationally.

How have the wars in Iraq and Afghanistan changed the government’s role in overseeing Intelligence agencies? 

The 9/11 attacks caused Congress and the President to recreate intelligence organization to include a czar – the Director of National Intelligence, whose job is to coordinate and oversee the intelligence agencies. The courts are compromised in reviewing the lawfulness of intelligence activities because of the demands of classification. The state secrets privilege effectively insulates some CIA actions from judicial review. An example of this development has been “extraordinary rendition.”

What international and domestic legal constraints exist with regard to the appropriate use of force across borders and within the national boundaries of sovereign nations?

The United States is bound by its Constitution and other domestic laws in using force abroad, and by incorporated international law. The latter includes treaties, e.g., the UN Charter, and international humanitarian law (the laws of war). The war on terror has shown that there are gaps in such laws when the U.S. fights nonstate enemies.

Does the US Constitution address the legal problems inherent to the ‘War on Terror,’ such as the CIA’s interrogation methods and the problems of trying US citizens engaged in terrorist activities?

The Constitution does not specifically address terrorism, nor interrogation. Limits on the government’s activities must be found in the Bill of Rights or in a lack of constitutional authority for government action.  Were it not for the Authorization for the Use of Military Force (AUMF), the executive branch would not have had as much authority to conduct the war on terror.

How do domestic and multinational legal institutions come into play during international conflict, conflict resolution, and arms control? 

The International Criminal Court (ICC), International Criminal Tribunal for the Former Yugoslavia (ICTY), and others impact the United States to the extent the U.S. accedes to their jurisdiction. We have not done so regarding the ICC.

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WILLIAM C. BANKS is the College of Law Board of Advisors Distinguished Professor at Syracuse University, and the director of Syracuse’s Institute for National Security and Counterterrorism. He has testified before the United States Congress about the legality of military drone-strikes overseas, and is also the Editor-in-Chief of the Journal of National Security Law & Policy.

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