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Posts by Jack Goldsmith

Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, where he teaches and writes about national security law, presidential power, cybersecurity, international law, internet law, foreign relations law, and conflict of laws. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003–2004, and Special Counsel to the Department of Defense from 2002–2003. Professor Goldsmith is a member of the Hoover Institution Task Force on National Security and Law. Full bio »

A New Tactic to Avoid War Powers Resolution Time Limits?

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Tuesday, September 2, 2014 at 6:54 AM

Yesterday President Obama sent a War Powers Resolution (WPR) letter to Congress concerning U.S. airstrikes “in support of an operation to deliver humanitarian assistance to civilians in the town of Amirli, Iraq.”  This is the third Iraq WPR letter to Congress in a month, and the sixth this summer.  In June the President sent three . . .
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A Politically Palatable Authorization to Use Force Against IS [UPDATED]

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Wednesday, August 27, 2014 at 2:20 PM

One senses growing pressure, within and without the White House, for the President to seek authorization from Congress for what he and his aides say will be a long battle against the Islamic State (IS).  Last week I outlined the political concerns in Congress and the White House, and earlier this week I argued that . . .
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Behind the NYT Climate Accord Story

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Wednesday, August 27, 2014 at 10:50 AM

I am no expert at all on climate change.  With that large caveat, I think the Coral Davenport’s New York Times story about President Obama’s international climate accord ambitions overstates the domestic significance of what the President is up to—probably to the delight of the White House.  A clue to the problem is found in the Times headline . . .
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Why the President Should Seek Congressional Authorization for the Use of Force Against The Islamic State [UPDATE on War Powers Resolution]

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Friday, August 22, 2014 at 9:10 AM

A few days ago I discussed why President Obama is shying away from seeking congressional authorization to use force against The Islamic State (IS, or ISIS, or ISIL).  But as the aims and scope of U.S. military involvement against IS expand on a daily basis, the case for the President getting Congress formally on board . . .
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Government Protection of Classified Information, August 2014 [UPDATED]

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Thursday, August 21, 2014 at 3:37 PM

From this morning’s NYT story on the Foley rescue operation: The officials revealed the mission in a conference call with reporters, in which they spoke on the condition of anonymity because of the classified nature of the operation. . . . Two Defense Department officials, who spoke separately [about the classified operation] on the condition of . . .
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The Politics of War Powers in Iraq

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Wednesday, August 20, 2014 at 7:39 AM

The WSJ reports that the initial success of American airstrikes in Iraq is spurring a push for broader military engagement against the Islamic State (IS, or ISIS, or ISIL) in Iraq.  Our deepening military involvement in Iraq accentuates the dysfunctional politics of war powers that Julie Hirschfeld Davis writes about in the NYT.  President Obama . . .
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Obama’s Foreign Policy and the Nirvana Fallacy

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Wednesday, August 13, 2014 at 1:03 PM

President Obama’s foreign policy appears in shambles.  Many of his major decisions – decisions to act, and not to act – seem to have turned out badly.  To take a few examples of prominent criticisms: If the President had not intervened in Libya, we would not now face the large terrorist threats and related disorder . . .
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The Case for Seeking Congressional Authorization for Iraq Strikes Just Grew Stronger

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Saturday, August 9, 2014 at 12:28 PM

In his WPR notification yesterday, President Obama stated that military operations in Iraq “will be limited in their scope and duration.”   But today, according to the NYT, President Obama “sought to prepare Americans for an extended presence in the skies over Iraq, telling reporters on Saturday that the airstrikes he ordered this week could go on . . .
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President Obama’s War Powers Letter to Congress on Iraq

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Saturday, August 9, 2014 at 9:56 AM

Here is the letter.  Two points of note. First, the President makes clear that he is authorizing military force in Iraq “pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.”  This is a standard formulation in this context for inherent Article II power.  The President is not . . .
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The Case for Seeking Congressional Authorization for the Iraq Strikes – Made by President Obama

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Friday, August 8, 2014 at 8:16 PM

It is pretty clear that President Obama today relied on Article II to attack the Islamist State (IS) in Iraq.  I have addressed the legality of such unilateral military action here and here.  I have also argued that the 2002 AUMF could be used as a basis for attacks in Iraq now.  But the administration appears . . .
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The Legal Stakes in an Article II Humanitarian Intervention in Iraq

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Friday, August 8, 2014 at 3:37 PM

Yesterday I maintained that the Iraq strikes were not legally problematic to the extent that they were justified as self-defense of U.S. persons, but said that “[i]f the Iraq strikes are conceptualized as pure humanitarian intervention, they would go further than even the Kosovo and Libya precedents, for they would lack both congressional authorization or any . . .
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U.S. Air Strikes in Iraq Begin

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Friday, August 8, 2014 at 9:44 AM

The Pentagon tweets that the U.S. military has begun airstrikes against Islamic State (IS) positions in Iraq.  Precisely, force has been deployed against IS artillery that was used “against Kurdish forces defending Erbil, near US personnel.”  I have not yet seen a clear explanation of the domestic legal basis for the strikes, but the mention . . .
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Dan Geer Cybersecurity Keynote at Black Hat

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Friday, August 8, 2014 at 8:47 AM

Dan Geer gave this keynote address at the Black Hat conference yesterday.  It is entitled Cybersecurity as Realpolitik.  It begins with some general thoughts on the state of play in cybersecurity, addresses ten pressing policy issues, and is characteristically filled with insights throughout.  The speech is very much worth a read.  Or a watch – . . .
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Quick Thoughts on the (Domestic) Legal Basis for Air Strikes in Iraq

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Thursday, August 7, 2014 at 2:03 PM

As Wells notes, the Obama administration is contemplating air strikes in Iraq to protect threatened religious minorities there. Setting aside the moral and strategic merits of such strikes, how might they be consistent with domestic law? The President has three possible legal bases for the strikes. The first is the 2001 AUMF.  The problem with relying on . . .
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Why Indictments Won’t Stop China’s Cybersnooping

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Tuesday, July 29, 2014 at 8:58 AM

The Chinese government and its proxies have recently ratcheted up harassment of U.S. IT firms doing business in China.  In the last week, China has deployed its antitrust laws against Qualcomm and Microsoft.  This comes on the heels of recent attacks in China on Apple and Cisco and IBM.  China has also increased its harassment of . . .
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A New White House Signal on AUMF Reform?

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Sunday, July 27, 2014 at 1:51 PM

Josh Gerstein of Politico reports that “[a] top White House official suggested Saturday that Congress pass new legislation to support President Barack Obama’s authority to act against an array of terrorist groups not clearly linked to the September 11 attacks.”  Gerstein quotes White House counterterrorism czar Lisa Monaco as stating this weekend at the Aspen Security Forum: “The 2001 AUMF has provided us . . .
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Schlesinger v. Cillizza

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Tuesday, July 22, 2014 at 7:34 AM

Chris Cillizza has a piece in the WP that argues that the world is too splintered and partisan and complex, and communication and persuasion too difficult, for the president of the United States to succeed.  This is an old claim.  John Steinbeck said of the presidency under Johnson: “We give the President more work than . . .
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Bahlul: A Longer View

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Tuesday, July 15, 2014 at 6:46 AM

Steve says of yesterday’s Bahlul decision. Whether or not you agree with the result of today’s decision, the D.C. Circuit has done no one any favors–not the government, which will still be terribly uncertain as to which cases it can and can’t bring; not the defendants, for obvious reasons; not the public; and, most importantly, not the commissions–the fragility . . .
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Holder on “Something That Gives Us Really Extreme, Extreme Concern”

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Sunday, July 13, 2014 at 2:01 PM

President Obama, in his NDU speech last year, stated: “[T]his war, like all wars, must end.  That’s what history advises.  That’s what our democracy demands.” Attorney General Holder, in a conversation today (scroll down) with Pierre Thomas on ABC’s “This Week” about the threat from Americans and Europeans in Syria, stated: HOLDER: “In some ways, it’s more frightening . . .
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Obama’s Blueprint for Fighting Terrorism Collides With Reality in Iraq

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Friday, July 4, 2014 at 8:42 AM

That is the title of a NYT story this morning by Landler, Gordon, and Mazzetti.  The “Blueprint” they have in mind is the one the President laid out at West Point, which (in their words) “relies less on American soldiers . . . and more on training troops in countries where those threats had taken . . .
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