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:


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.

Attached Files:

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.” Most of the detainees were held abroad, but a few were detained in military prisons here in the United States. Some detainees were subjected to coercive interrogation practices, including techniques that had been employed by members of the Japanese armed forces who were charged with war crimes by the United States after World War II. Secret prisons for Central Intelligence Agency detainees were acknowledged by President Bush, and the practice of extraordinary rendition of terror suspects to third countries was documented in instances embarrassing to the United States. In November 2001, the President issued a military order to try detainees by military commissions, attended by limited protections for the rights of the accused. The President also vigorously asserted that habeas corpus relief in the federal courts should not be available to these detainees.1 Meanwhile, the Bush administration launched a war against Iraq in 2003 at least in part on the basis of the controversial legal claim of preemption – the United States had to act to preempt a credible and imminent threat that Iraq would attack the United States and its allies with weapons of mass destruction. In December 2005, we learned that the National Security Agency (NSA) had since 2001 listened in on the conversations of U.S. citizens under a warrantless wiretapping program.

Congress did respond to the President’s request for support in the Authorization for the Use of Military Force,2 the USA PATRIOT Act,3 the Detainee Treatment Act,4 and the Military Commissions Act.5 Yet these were exceptions to the rule of unilateral presidential action. Congress’s independent duty to deliberate and legislate in response to national problems was largely forgotten during this decade, and that absence eliminated from our constitutional system the critical component of competition, clashes, and compromise that has served well over time to prevent the accumulation of power in any one branch. Although the precedents available to the courts often provided unclear and insufficient guidance in resolving the national security disputes of the twenty-first century, the Supreme Court rebuked the Bush administration and spurred some limited congressional reaction in a series of important decisions between 2004 and 2008.

It was thus to be expected that President Barack Obama entered office armed with a national security reform agenda. National security reform has been at or near the top of incoming administration priorities since the end of World War II. Most of the time, reforms have been directed at national security policies targeted in the incoming administration’s election campaign. During the 2008 campaign, that list grew to include the detention and interrogation policies – most often associated with the Guantánamo Bay facility and the Abu Ghraib prison in Iraq – the warrantless surveillance program conducted by the NSA, and the use of preventive war in Iraq and its lingering costs.

Less often has national security reform focused on the structures and processes of the national security system, including departmental and agency organization, management, and interagency cooperation. The National Security Act of 19476 was the product of one such effort, marking an unprecedented reorganization of the national security bureaucracy to respond to the post-war threats posed by the Soviet Union. Although there have been hundreds of systemic or structural national security reforms since 1947, accompanied by many more commission reports, legislative hearings, and studies, the only major reform occurred in response to the September 11 attacks. President Bush created an Office of Homeland Security and a Homeland Security Council in October 2001, and in 2002 Congress created the Department of Homeland Security and codified the HSC. The National Commission on Terrorist Attacks upon the United States released the 9/11 Commission Report in 20047 and, among other things, structural reform of intelligence followed. Congress passed the Intelligence Reform and Terrorism Prevention Act of 2004,8 creating the Office of the Director of National Intelligence…