Maxwell’s Hammer Redux: Syracuse University and the Effort to Break Down the Rule of Law

In the wake of President Obama’s new National Defense Authorization Act (NDAA), which does away with habeas corpus for those who are labeled “terrorists,” it really shouldn’t be all that surprising to see academic institutions race to provide intellectual backdrop to justify the end to such basic American constitutional rights. But I was a little surprised and a lot appalled to see my alma mater at it again. The fall 2011 issue of “Maxwell Perspective,” alumni journal of Syracuse University, has a very disturbing article called “Truer Threat” by Kathleen Haley. Based on a reading of Haley’s piece, it would seem that Syracuse’s Maxwell School of Citizenship has as part of its mission the production of students whose public policy ideological bent will be Islamophobic and anti-Constitution and rule of law. These students are gaining such perspectives while compiling data on growing and more diverse “terrorist” threats. Haley reports that Maxwell has its students doing “capstone” projects working for clients with government/state department/military ties, all supervised by law school faculty adviser William Banks, an enthusiastic justifier of the use of unmanned drones and targeted killings.

When last we left Mr. Banks, he was busily immersing Maxwell in the counterterrorism philosophy he shares with his Israeli counterparts while the university enjoyed funding by a pro-Israel donor. (All explored in a 2007 piece I wrote with my husband Ira Glunts called “Maxwell’s Silver Hammer.”) Banks and his brainchild the Institute for National Security and Counterterrorism (INSCT) – part of Maxwell – argued for the use of lethal force vs. “asymmetric non-state actors,” even if it meant unfortunate civilian “collateral” deaths. Fast-forward to another administration and apparently Banks’ rules of “new battlefields” in the world of never-ending terrorism still apply. Banks as counterterrorism expert remains, but now his expertise is for a “liberal” face of the Empire and a liberal breakdown of the rule of law.

Haley’s “Truer Threat” appears in a “Maxwell Perspective” issue featuring the Arab Spring. James B. Steinberg, the new dean of Maxwell, writes that “[a]s Americans we naturally empathize with those in the Middle East seizing the opportunity to build a more hopeful future …” Therefore, Maxwell has teamed up with the State Department to host young leaders from Arab countries, one of whom, Matar Ebrahim Matar, won political office in Bahrain, and when he spoke out for reform, was abducted and tortured. Oddly, Steinberg never mentioned the State Department’s close alliance with Bahrain’s authoritarian government and our government’s steadfast refusal, to this day, to speak out against Bahrain’s treatment of protesters like Matar. As we will see, in yet another paradox, we have the Maxwell admiration for the young pro-democracy Arabs, but we also have casual Islamophobia – just a given that Arabs will, of course, be terrorists.

“Truer Threat” features an alarming photo of people in hazmat (hazardous materials) suits and its subtitle ominously says that “on American soil, Islamist extremism is only part of the picture.” The Maxwell project is, in concert with the New American Foundation, to study the data to show us there’s much to fear besides a terrorist act done from “Islamic-extremist motivation.” Student researcher Aaron Sanders has concluded that government resources should be allocated to include all sorts of potential terrorists: “[I]t’s important to understand that Islamic jihadism isn’t the only threat.” We are told we have much to fear, first, “obviously,” from Islamic-related terrorists, but second, and apparently even more ominously, according to student Kathryn Sepka, from all sorts of domestic terrorists from “a lot of ideologies”; from (my favorite) “ideologies from left, right and center motivated by a variety of interests and rationales and included in an expansive demographic group.” Center?!

As noted, this Maxwell terrorism project is done under the auspices of the New America Foundation. The foundation’s mission seems a bit vague, but, founded by “economic global leader” Ted Halstead and now run by Google’s Chairman Eric Schmidt, the foundation definitely enjoys a high level of political connection. Its web site says the foundation is a “nonpartisan public policy” institute, which “invests in new thinkers and new ideas to address the next generation of challenges facing the US,” including, but not restricted to, “wealth creation,” “mobile capital” and “financial imbalances.”

One important focus of the foundation is National Security Studies, directed by Peter Bergen, who clearly represents a liberal face of Empire. He’s written extensively on Bin Laden and al-Qaeda and has a page on the foundation web site featuring a “Counterterrorism strategy initiative.” In an article featuring an initiative for the US and Pakistan, Bergen emphasizes “wealth creation” in arguing a new “collaborative agenda” with Pakistan in order to lay “the frameworks” for developing South Asian mineral wealth. Bergen doesn’t mention that collaboration may be hindered by Pakistani grievances against its “outside partner” for the large number of Pakistani civilians killed by unmanned drones. On his drone page, Bergen’s map of strikes in Northwest Pakistan – between 1700 and 2700, to 2012 – refutes the Pakistani version and says that according to their “reliable press accounts,” only 17 percent of those deaths were civilians, with the rest (terrorist) militants.

Study Reveals the Many Faces of Terrorism,” written by Peter Bergen and Andrew Lebovich, describes a partnership with Maxwell students who “conducted a survey of terrorism incidents and cases” in the US since 9/11, motivated by ideologies other than Bin Laden’s “violent Islamism.” They found 114, as opposed to the 188 Islamist terrorism incidents Maxwell and the foundation found in an earlier capstone project.

Bergen and Lebovich insist on “the persistence of the threat from Islamist terrorists.” But, helped along by the research generated by Maxwell’s capstones, Bergen can now warn us that a “chemical, biological or radiological attack” may well come from a right- or left-wing domestic extremist – could be neo-Nazi, could be “violent environmentalist” (watch out for those “no frackin’ way” people). Many of the cases cited involve people, mostly right wing, who collected and stockpiled or purchased weapons. Again, there’s a lot of concern over the 16 percent environmentalists, who plotted against “businesses or corporations.” Who? How? It’s unclear exactly what the “terrorists'” driving ideologies were in these cases, or how many people were killed in which incidents. For example, the article states that 14 people were killed by “political” extremists and 17 by Islamist militants; and then, that eight fatalities happened in “non-Islamist” incidents, twice that of Islamist: four. What? Using the information from the capstone web site, done with the New America Foundation, “homegrown.newamerica.net,” you can do the math yourself, but explanations for the numbers are thin.

The most dangerous aspect of this piece (and the project) is its vagueness and its refusal to define “terrorist.” Neither Bergen, nor Lebovich nor the Maxwell students come up with a definition of terrorism. So just about anything and anyone could fall under its rubric. The New America Foundation piece and the “Maxwell Perspective” piece, fan fears of not only the Islamic threat, but also vague and shadowy people and groups that could come from “any” political ideology or any group, up to and including environmental “terrorists.”

The “Truer Threat” article states that the Obama administration recognizes this new “diverse” terrorist threat, but also recognizes “changing public perception might be more complex.” Student researcher Gary Clark tells us that “theories of what makes an Islamic terrorist are easily digestible,” but finding “individuals and groups of US citizens that want to use violence against us is a tough pill to swallow.” So, in order to get at these individuals and groups, the government will need new laws, policies and justifications for doing so. And this is where Maxwell, INSCT, the New America Foundation and William Banks and his capstone students come in.

Faculty adviser Banks is a longtime advocate of stretching existing legal parameters to justify questionable governmental action, including governmental assassination. In a 2003 piece featured on Maxwell’s INSCT web site called “Targeted Killing and Assassination: The US Legal Framework,” which he wrote with Peter Raven-Hansen (in the Richmond Law Review Vol 37), Banks outlines his legal justification for targeted killing, beginning with: “Legal authority is what differentiates murder from lawful policy.” Banks and Raven-Hansen decided “assassination” is bad and illegal, but “targeted killing” can be lawful under existing US law. It’s clearly legal in wartime, but how about when the US is “under terrorist attack”? They argue that the CIA seems to have the authority for targeted killing as part of the National Security Act of 1947 under “other functions,” which have been since “shaped by practice and necessity” to include targeted killings.

Banks further argues that this is a power that the executive, and the executive alone, holds. Any prohibition stated in these acts, such as to exclude foreign heads of state, “was never absolute and is best viewed as a management control for insuring that the President alone makes the decision for peacetime targeted killing.” In peacetime, but under “terrorist” threat, the president and the president alone, has this power. The “legal framework” exists and “they leave the nasty business of targeted killing where it should lie, as a permissible but tightly managed and fully acceptable weapon of national self-defense in an era of horrific terrorist attacks on the US and its people.” And so Maxwell’s national security director apparently approves targeted assassination.

Of course, targeted killing is sometimes done, with less “nasty business,” via unmanned drones. Maxwell’s INSCT page prominently features its “Drone Project,” which “explores the legal justifications” for their use. Director Banks testified before Congress on April 23, 2010, (to the Subcommittee on National Security and Foreign Affairs) that State Department lawyer Harold Koh should be applauded for his “vigorous defense of the use of force against terrorists” by utilizing unmanned drones. At that time, Banks felt Congress should clarify and fine-tune the 2001 Authorization for Military Force. Using language remarkably similar to the recent NDAA, he asked “who and where are killings good?” – “Are there Al Qaeda associations? Does a sovereign state have to consent to drone killings or targeted killings?”

Meanwhile, the “Hancock 38” faced (and still face) trials in Syracuse for trying to deliver a citizens’ indictment against drones and then laying down before the Hancock Field outside Syracuse gates in protest. According to the February Syracuse Peace Council newsletter, one defendant said that a world where remotely controlled drones can target any individual is a “nightmarish world.” Banks does not believe US citizens are exempt from drone attack: the law must be modernized to “reflect the modern battlefield” and articulate the “legal criteria for the use of force against non-state terrorists.” Now, such people might include political groups, left, right and center, so beware Hancock 38.

The consequences of fanning fears of terrorism and then capitalizing on that fear is to break down the rule of law. In September of 2010, the FBI raided homes and offices of antiwar and pro-Palestinian activists and served them grand jury subpoenas. These subpoenas cited federal law prohibiting “providing material support or resources to designated foreign terrorist organizations.” One victim of the raid, pro-Palestinian activist Maureen Clare Murphy, thinks the raid was really about intimidating the people in her movement. Coleen Rowley, former FBI agent and whistleblower, thinks that after 9/11: “[T]here was a very big blurring between protest, civil disobedience and terrorism.” The door opened to “targeting, without any level of factual justification, advocacy groups.” In my own work on women political prisoners, it’s clear how quickly and thoroughly the government can choose to ignore basic legal rights of political dissenters. Laws and precedent which expand the “terrorism” net show how dissent, not criminal action, can become “terrorism,” and how the “terrorist” label may be applied to Occupy encampments, coalmine protesters in Appalachia and demonstrators at political conventions and economic summits.

Jonathan Turley, George Washington University law professor, writes that America has “comprehensively reduced civil liberties in the name of an expanded security state.” Under the new NDAA, the president can now arbitrarily ignore citizen rights like habeas corpus or the right to a lawyer and a trial by declaring them “terrorists.” Beyond indefinite detention, also included in the provisions of the NDAA, Obama has claimed the right (and has exercised it in the case of Anwar al-Awlaqi) to order any citizen killed who is “considered a terrorist” or an “abettor of terrorism.” According to Turley, in so doing, our government claims “the right to strip citizens of legal protections based on its sole discretion.”

On January 16, 2012, journalist and activist Chris Hedges filed a complaint against Obama to challenge the legality of the “counterterrorism” section of the NDAA. He questions the constitutionality of the military being able to do “domestic policing” for the first time in over 200 years. Hedges also strongly objects to the executive’s stated power of being able to indefinitely detain citizens at his sole discretion. And – unlike Maxwell’s Banks – he objects to the president having “the legal cover to serve as judge, jury and executioner to assassinate a US citizen …” The people have “surrendered their rights in the name of national security.” Fear, again – give them articles accompanied by photos of people in hazmat suits and give vague social science data to back up a never-ending terrorism threat.

Glenn Greenwald, former Constitutional lawyer and brilliant political blogger has written:

“[T]his meaningless, definition-free word – Terrorism – drives so many of our political debates and policies. Virtually every debate in which I ever participate quickly and prominently includes defenders of government policy invoking the word as some sort of debate-ending, magical elixir: of course President Obama has to assassinate US citizens without due process: they’re Terrorists; of course we have to stay in Afghanistan: we have to stop The Terrorists; President Obama is not only right to kill people (including civilians) using drones, but is justified in boasting and even joking about it, because they’re Terrorists; of course some people should be held in prison without charges: they’re Terrorists. etc. etc. It’s a word that simultaneously means nothing and justifies everything.”

Fear and national security are cottage industries for academic institutions like Syracuse. Militarization of academe continues and then some. Banks’ newly hired second in command at INSCT is Vice Adm. Robert B. Murrett, former director of the National Geospatial-intelligence Agency; and INSCT’s first US Army War College Fellow is explosive ordnance expert Col. Geoffrey D. Stevens. According to Henry A. Giroux, hundreds of colleges and universities “design programs specifically for future employment with various departments and agencies associated with the warfare state.” (Giroux, “The University in Chains,” Paradigm, 2007.) What sort of cynicism produces, in the name of the war on terror, scholarly data and legal briefs to justify the stripping away of basic legal rights, even to justify targeted assassination? I guess it’s the kind we have at the Maxwell School of Citizenship of Syracuse University.