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Posts by Jack Goldsmith

Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, a Senior Fellow at the Hoover Institution at Stanford University, and co-founder of Lawfareblog.com. 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. Follow him on Twitter @JackLGoldsmith. His personal website can be found at jackgoldsmith.org. Full bio »

Daniel Meltzer, R.I.P.

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Tuesday, May 26, 2015 at 5:29 PM

My colleague and friend Dan Meltzer passed away Sunday night after a long battle with cancer. Here is what Dean Martha Minow wrote: Colleagues, it is with profound sadness that I write to let you know that Dan Meltzer, our beloved friend, teacher, and colleague, has passed away.  No one has better exemplified the highest . . .
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Cyberwar, Surveillance and Security MOOC

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Thursday, May 21, 2015 at 5:59 AM

The University of Adelaide has a free new MOOC called Cyberwar, Surveillance and Security that is taught by Melissa de Zwart, Dale Stephens, and Rebecca LaForgia.   The web page and registration can be found here. And here is a teaser introduction to the MOOC, which contains brief statements from some of the experts who participate, including . . .
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Intelligence Officials’ Unpersuasive Response To the NYT’s Identification of Three Undercover CIA Officers

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Thursday, May 14, 2015 at 11:02 AM

The New York Times identified three undercover senior CIA officials in an April 25 story by Mark Mazzetti and Matt Apuzzo about oversight of the CIA’s lethal drone operations. (Background here and here.)  ODNI General Counsel Bob Litt and twenty former CIA officials, all of whom I admire, argue that the Times was wrong to do so. Their arguments taken together are that (1) . . .
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My Speech at ODNI Legal Conference: “Toward Greater Transparency of National Security Legal Work”

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Tuesday, May 12, 2015 at 8:30 AM

I was honored to be invited to give a keynote speech at an Intelligence Community legal conference last Wednesday, May 6.  The speech was entitled Toward Greater Transparency of National Security Legal Work.  The main question I addressed was: “How should [the intelligence community]  think about and react to the government’s growing inability to keep secrets?”  I . . .
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20 Senior Former CIA Officials Criticize NYT For Publishing Names of Covert Operatives

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Monday, May 11, 2015 at 5:24 PM

Twenty senior former CIA officials—including every CIA Director (including DCIs) dating back to William Webster (1987-91)—wrote a letter to the NYT to take issue with NYT Executive Editor Dean Baquet’s defense (in this interview on Lawfare) of his decision to publish the names of the three covert CIA operatives in a story a few weeks . . .
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The Obama Administration-Zarif Disagreement About What the Iran Deal Will Do, and the Implications for the Iran Review Bill

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Thursday, April 30, 2015 at 10:37 AM

One side is wrong. The Obama administration has made plain that the deal it is negotiating with Iran will be non-binding under international law, will not be converted to a binding international agreement that affects U.S. sanctions via Security Council approval, and will not be implemented until Iran demonstrates compliance. Moreover, under the Iran Review . . .
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Interview With Dean Baquet, Executive Editor of New York Times, on Publication Decisions About Intelligence Secrets, and More

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Wednesday, April 29, 2015 at 9:10 AM

On April 25, two days after President Obama announced that a U.S. drone strike accidentally killed two innocent hostages, Mark Mazzetti and Matt Apuzzo published a story in the New York Times about congressional and White House support for the CIA’s “targeted killing program.” A major point in the story was that some of the . . .
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Why Republicans Skeptical of the Iran Deal Are Trying to Make it Easier for the President to Implement the Iran Deal

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Tuesday, April 28, 2015 at 12:53 PM

The NYT reported yesterday that the Iran Review bill is “now endangered by Republican amendments that would peel away bipartisan support for a measure begrudgingly accepted by the White House this month. “ It identifies three such bill-killing amendments: one “that would require Iran to recognize Israel,” one that “would give any final nuclear deal . . .
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The Latest Erosion Of Norms Against Publishing Classified Information

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Tuesday, April 28, 2015 at 9:00 AM

Director of National Intelligence General Counsel Bob Litt says the NYT “disgraced itself” by “publishing an article in which it purported to name three covert CIA officers.” The article in question identified the “chief of operations during the birth of the agency’s detention and interrogation program [who] then, as head of the C.I.A. Counterterrorism Center, . . .
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The Perils of Partial Official Acknowledgment

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Friday, April 24, 2015 at 9:20 AM

Yesterday the President acknowledged that the United States inadvertently killed an American citizen and an Italian citizen held hostage by al-Qaida.  The killings, he said, took place during “a U.S. counterterrorism operation targeting an al Qaeda compound in the Afghanistan-Pakistan border region.”  The President also directed his press secretary to acknowledge that the government inadvertently killed . . .
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Another Response to Andrew McCarthy on the Corker Bill Iran Review

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Monday, April 20, 2015 at 3:25 PM

Andrew McCarthy has a thoughtful response to my critique of his weekend column on the Corker Review bill.  I recommend it. We seem to have fewer disagreements than I thought. Rather than a lengthy a point-by-point response, let me just say this: Yes, Obama’s aim is to permanently lift U.S. sanctions.  But that does not . . .
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Great New Podcast Series by Juliette Kayyem

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Monday, April 20, 2015 at 2:29 PM

My friend and colleague Juliette Kayyem – Assistant Secretary for Intergovernmental Affairs in DHS, and before that the Undersecretary for Homeland Security in Massachusetts – has a great new podcast series called “Security Mom.”   Juliette describes the motivation for the series as follows: Our national dialogue about security can feel like a foreign language: distant . . .
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Andrew McCarthy’s Distortion of the Corker Bill (and the Constitution)

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Saturday, April 18, 2015 at 5:40 PM

Andrew McCarthy, like the New York Times, doesn’t like Senator Corker’s Iran Review bill.  But in contrast to the NYT’s argument that the bill “inappropriately diminishe[s] the president’s power” (a view I criticized here), McCarthy today argues that the bill inappropriately enhances the president’s power.  This represents a pretty large reversal of constitutional positions for . . .
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Stephen Preston’s Important Acknowledgement that the 2001-AUMF-Forever-War is Not Ending Anytime Soon

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Friday, April 17, 2015 at 9:01 AM

Stephen Preston’s speech at last Friday’s ASIL Meeting was the latest of many efforts by the administration to explain (in Preston’s words) “the bases, under domestic and international law, for the United States’ use of military force abroad.”  It was a good and informative speech, and good that he gave it.  Especially noteworthy, I thought, . . .
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What the NYT Editorial Board Gets Wrong About the Sensible, Bipartisan Iran Review Bill

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Wednesday, April 15, 2015 at 11:58 AM

Here is the Bill passed unanimously by the Senate Foreign Relations Committee yesterday (and here is my lengthy analysis of the similar earlier version of the Bill).   The NYT Editorial Board doesn’t like the Bill.  But not for the first time, it gets some things wrong, and is misleading in other respects. First, the editorial . . .
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What Might Congress Do To Stop the Obama Administration From Disregarding Congressional Transfer Restrictions In the Course of Closing GTMO?

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Friday, April 10, 2015 at 1:00 PM

Last week I explained how the Obama administration might extend it constitutional arguments for disregarding statutory detainee transfer restrictions in the Bergdahl context to the restrictions on transferring GTMO detainees to the United States.  (Earlier today I elaborated on these arguments.) Some people questioned this passage in my post last week: As far as I . . .
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More on the Legal Basis for the Administration’s Disregard of Congressional Restrictions on Detainee Transfers in the Bergdahl Context, and on the Implications for Closing GTMO

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Friday, April 10, 2015 at 7:13 AM

Last summer I wrote of the administration’s constitutional arguments for disregarding congressional transfer restrictions in swapping the Taliban 5 for Bowe Bergdahl: To say that the President disregarded a federal statute because he interpreted it in the emergency context before him to impinge upon Article II is not at all to say that the President . . .
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Review of Schneier’s Data and Goliath

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Tuesday, April 7, 2015 at 11:30 AM

Over at The New Rambler Review – a new online book review site that I highly recommend – I have a piece on Bruce Schneier’s new book, Data and Goliath.  An excerpt that provides a sense of the book: Data and Goliath is an informed, well-written, accessible, and opinionated critique of “ubiquitous mass surveillance” by governments . . .
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The Bergdahl Roadmap to Unilateral Presidential Closure of GTMO

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Wednesday, April 1, 2015 at 11:15 AM

We have not paid enough attention to the significance of the administration’s legal argument in support of the Bergdahl trade for President Obama’s goal of closing GTMO.  The Article II logic in the administration’s disregard of the congressional notice requirement in swapping the Taliban five for Bergdahl could be the basis for transferring the remaining . . .
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Was the Bergdahl Swap Lawful?

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Wednesday, March 25, 2015 at 9:19 PM

With Bowe Bergdahl back in the news, it is perhaps worth outlining the legally controversial circumstances of the Taliban swap.  I argued here and here that the transfer was inconsistent with three federal statutes: The thirty-day notice requirement before transfer of GTMO detainees in Section 1035 of the 2014 NDAA; the appropriation restrictions in Section 8111 . . .
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