All posts by William C. Banks

Professor William C. Banks is an internationally recognized authority in national security law, counterterrorism, and constitutional law. Banks has helped set the parameters for the emerging field of national security law since 1987, co-authoring two leading texts in the field: National Security Law and Counterterrorism Law. In 2008, Banks was named the College of Law Board of Advisors Distinguished Professor at Syracuse University, where he has been a member of the faculty for over 30 years.

Shadow Wars

Those of us who remember the 1980s lived through the Iran-Contra Affair and its labyrinth of arms-for-hostages deals, secret transfers of U.S. government funds, backdoor support for the Nicaraguan Contras after Congress cut off funding, and the duplicity of Reagan administration officials who tried to hide and then cover up what they were doing. Some of us even recall the covert war in Laos and Cambodia in the 1960s and 1970s where the U.S. military, the CIA, and various paramilitaries pursued Communist forces in campaigns that were common knowledge in the region but kept secret from Congress and the American people. A few seasoned chroniclers of our national security are even able to remember earlier secret support for paramilitary forces, coup attempts, and a plethora of covert operations that were undertaken by the United States as an adjunct to its Cold War with the Soviet Union.

In the post-9/11 environment, the United States confronted the Taliban, al Qaeda, and associated terrorist and insurgent groups, where the conventional military force that quickly forced Iraq’s retreat from Kuwait and subdued the Milosevic regime in Kosovo in the 1990s was far less effective. Paramilitary campaigns waged by the CIA and contractors became an integral part of the counterterrorism response to these new enemies, and our military greatly expanded its own capabilities to collect intelligence and carry out clandestine operations. Over time, first in the Bush administration and now in an expanded and more aggressive strategy by the Obama administration, the United States has been conducting what The New York Times described as a “shadow war against Al Qaeda and its allies”:

In roughly a dozen countries – from the deserts of North Africa, to
the mountains of Pakistan, to former Soviet republics crippled by
ethnic and religious strife – the United States has significantly
increased military and intelligence operations, pursuing the enemy
using robotic drones and commando teams, paying contractors to
spy and training local operatives to chase terrorists.

Attached Files:

Introduction

For many of us, the cyber threat to U. S. national security is amorphous and not easy to comprehend. At the same time, in the last two years of the Bush administration and through the first year of the Obama presidency, cybersecurity has been characterized as “one of the most urgent national security problems facing the new administration.”1 Our cyber systems have increasingly been infiltrated in recent years by malefactors with widely ranging motivations and associations. Experts point to stunning amounts of sensitive material lost to cyber thieves.

Given the increasing dependence on cyber technology, the vulnerabilities within insecure cyber networks are hard to quantify and even harder to understand and protect against. We have devoted the current issue of the Journal of National Security Law & Policy (JNSLP) to cyber threats in an attempt to raise awareness and focus national debate on what should be done in a variety of contexts to improve cybersecurity.

Many have helped in this project, but particular thanks go to Gary Sharp, special editor for this issue, who conceived the idea and did much to shape its content. Thanks are also due to Richard Shiffrin, who graciously served as an unofficial editor of this special issue, reviewing and critiquing significant amounts of material.

For many reasons, the collection of views presented in this issue is especially timely. By any measure, developing and implementing a forward-looking cybersecurity policy is among the most compelling items on the Obama administration national security agenda. It may also be the most complex. Developing such a policy requires a sophisticated understanding of the technology, interests, and motivations involved in perpetrating cyber attacks, on the one hand, and an appreciation of the tradeoffs implicated in decisions to create new authorities and institutional arrangements for cyber defense, on the other. That the Administration has not yet implemented a blueprint for action, despite the issue’s priority, may simply reflect its understanding that, given the intricacies of the threat and its management, leadership means showing restraint, rather than acting precipitately.

National Security Law Advice to the New Administration

By any measure, the period between September 11, 2001, and the 2008 presidential election witnessed an unprecedented tangle of controversies at the intersection of national security law and policy. The Bush administration responded to the September 11 attacks and the threat of further terrorism by asserting expansive executive authority across a wide range of national security domains. The President fashioned new rules for detaining those captured in what was called the “global war on terror” …