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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 »

The Obama Administration’s Legal Justification for Strikes Against the Islamic State In Syria

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Tuesday, September 23, 2014 at 3:38 PM

Based on comments from senior Obama administration officials who spoke on “the condition of anonymity,” Charlie Savage reports the Obama administration’s legal theory for the use of force against the Islamic State. Savage says that the domestic legal justification is both the 2001 and the 2002 AUMFs: Administration officials have said that as a matter . . .
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Ongoing “Covert” Training of Syrian Rebels: But Is It Still Covert . . . , And, If So, Why?

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Monday, September 22, 2014 at 8:45 AM

[Cross-Posted at Just Security]  Last week Congress approved, and the President signed, legislation that authorizes the Secretary of Defense (see section 149) to “provide assistance, including training, equipment, supplies, and sustainment, to appropriately vetted elements of the Syrian opposition and other appropriately vetted Syrian groups and individuals,” for three specified purposes, including “defending the Syrian people from . . .
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Senator Udall Discusses Covert Action in Syria to Train 2-3K Moderate Rebels

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Thursday, September 18, 2014 at 1:46 PM

From yesterday’s Senate Arms Services Committee Hearing (at about the 2:23 mark): Senator UDALL (NM):  And my question to you has to do with – and this is all public information, but everybody’s well aware there’s been a covert operation, operating in the region to train forces, moderate forces, to go into Syria and to . . .
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Declassified Articles from the CIA’s In-House Intelligence Journal

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Thursday, September 18, 2014 at 12:41 PM

Via  Steve Aftergood, I learned that the CIA “has posted hundreds of declassified and unclassified articles from its in-house journal Studies in Intelligence.”  The articles are here.  I have just skimmed the articles—there appear to be several hundred—and I do not know which ones were previously classified and unavailable to the public.  But on the whole they . . .
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The Draft AUMFs for the Islamic State Do Not Limit Congressional Authorization on Ground Troops, or Geography, or Associated Forces

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Thursday, September 18, 2014 at 8:12 AM

The two most promising Islamic State AUMFs I have seen are the one sponsored by Representative Schiff and the one sponsored by Senator Kaine.  Both drafts, in different ways, purport to limit the authorization for the President to use force against the Islamic State in at least three respects: (1) They authorize force only in . . .
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Obama Administration Claims that 2002 Iraq Resolution is a Legal Basis for Air Strikes Against the Islamic State [UPDATED]

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Saturday, September 13, 2014 at 6:57 AM

I always thought the 2002 AUMF was an obvious basis for air strikes against the Islamic State, easily in Iraq and possibly (given the right circumstances) in Syria.  Today Charlie Savage reports that “the White House believes that Congress’s 2002 authorization of the Iraq war — and not just the 2001 authorization to fight Al Qaeda . . .
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We are (or Will Soon Be) at War With the Islamic State

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Friday, September 12, 2014 at 9:05 AM

Secretary of State Kerry said yesterday: We’re engaged in a major counterterrorism operation [against the Islamic State], and it’s going to be a long-term counterterrorism operation.  I think war is the wrong terminology and analogy . . . . Though the Secretary was not thinking in legal terms, it is worth noting that his statement is . . .
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Further Reflections on the Legal Rationale For Using Force Against the Islamic State

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Friday, September 12, 2014 at 7:47 AM

I had a pretty harsh reaction to the administration’s claim that Congress in the 2001 AUMF authorized force against ISIS in Iraq and Syria.  (For a different view, see Marty Lederman’s post.)  While I think the administration’s interpretation of the 2001 AUMF is unconvincing, I do not believe (as Bruce Ackerman appears to say today . . .
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President Obama’s Astonishing War Powers Legacy

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Thursday, September 11, 2014 at 7:55 AM

That is the topic of my essay at Time.com in reaction to the announcement yesterday that the Obama administration believes the 2001 AUMF authorizes force against the Islamic State today.  The essay begins: Future historians will ask why George W. Bush sought and received express congressional authorization for his wars (against al Qaeda and Iraq) . . .
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Yet Another Iraq War Powers Letter, and a Response to Lederman

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Tuesday, September 9, 2014 at 9:16 AM

Yesterday the President sent his seventh Iraq-related War Powers Resolution (WPR) letter since June, and the fourth in about a month.  The new letter concerns U.S. Armed Forces using “targeted airstrikes in the vicinity of the Haditha Dam in support of Iraqi forces in their efforts to retain control of and defend this critical infrastructure . . .
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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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