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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. Follow him on Twitter @JackLGoldsmith. Full bio »

Analysis of Senator Paul’s Proposed Declaration of War (and Authorization of Force) Against the Islamic State

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Monday, November 24, 2014 at 8:15 AM

Senator Paul has proposed a declaration of war and authorization of force against the Islamic State.  A few reflections, drawn in part from an article I wrote a decade ago with Curtis Bradley: 1.     The United States has declared war in five armed conflicts in American history: The War of 1812, the Mexican-American . . .
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The Immigration Imbroglio as (Pretty) Normal Separation of Powers

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Saturday, November 22, 2014 at 10:03 AM

It has been instructive during the last six years to watch President Obama and most Democrats evolve from Executive power critics to Executive power apologists, just as it has been instructive to watch many Republicans evolve from Executive power apologists (or quiet fence-sitters) to Executive power critics.  It has also been instructive to watch President . . .
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End of Forever War Watch, Weekend Edition

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Saturday, November 22, 2014 at 6:54 AM

Mark Mazzetti and Eric Schmitt report: President Obama decided in recent weeks to authorize a more expansive mission for the military in Afghanistan in 2015 than originally planned, a move that ensures American troops will have a direct role in fighting in the war-ravaged country for at least another year. Mr. Obama’s order allows American . . .
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Seeking Consensus on AUMFs

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Saturday, November 15, 2014 at 9:00 AM

[Cross-posted at Just Security] The three of us have coauthored an Op-Ed in Sunday’s Washington Post on the topic of congressional authorization for the use of force against ISIL and the 2001 AUMF.  We outline the broad underlying agreement we personally share and that we believe is shared by two proposals published earlier this week at Lawfare and Just Security.

CRS Analysis of AUMF Proposals

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Friday, November 14, 2014 at 11:54 AM

Via Secrecy News, I see that the CRS has summarized and analyzed the seven proposals in Congress for a New AUMF.

The Legal Consequences of Islamic State + Al Qaeda Cooperation, and Implications for AUMF Reform

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Friday, November 14, 2014 at 10:20 AM

Deb Riechman at AP is reporting: Militant leaders from the Islamic State group and al-Qaida gathered at a farm house in northern Syria last week and agreed on a plan to stop fighting each other and work together against their opponents, a high-level Syrian opposition official and a rebel commander have told The Associated Press. . . .
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The U.S.-China Climate “Deal” Does Less Than Has Been Hyped

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Thursday, November 13, 2014 at 8:21 AM

I am (as I have previously noted) no expert on climate change.  But reading the text of the much-vaunted U.S.-China Joint Announcement on Climate Change makes me think there is a large gap between how the document is being spun and what it actually does.  “US and China reach historic climate change deal, vow to . . .
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A New AUMF, The Lame-Duck Session, and the Meaning of Sunset Clauses

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Wednesday, November 12, 2014 at 8:50 AM

Two quick reactions to John Bellinger’s post on a new ISIL AUMF: I agree that the new Congress and not the lame duck Congress is best suited to revise the 2001 AUMF (and, in my opinion, also to put the war against ISIL on a firmer statutory footing).  I don’t think our proposal suggested otherwise.  . . .
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Why A Substantively Neutral But Procedurally Constraining AUMF Makes Sense

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Tuesday, November 11, 2014 at 5:55 AM

A few weeks ago Matthew Waxman and I ended our critical essay on President Obama’s war powers legacy by noting that “Obama’s legacy will look quite different if, after the midterm elections, he seeks and receives congressional authorization for the use of force against IS, especially if he also works with Congress on a framework . . .
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A Draft AUMF to Get the Discussion Going

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Monday, November 10, 2014 at 1:00 PM

President Obama said last week that he wants an AUMF for the ISIL conflict, and he further stated that he wants to “right-size and update whatever authorization Congress provides to suit the current fight, rather than previous fights.” So we thought we would draft a notional AUMF along those lines to get a discussion going. What . . .
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Event at Wilson Center on Islamic State AUMF and Related Issues

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Monday, November 10, 2014 at 9:57 AM

On Wednesday morning at 10 a.m. the Wilson Center will host an event on Congress’s role in the conflict against the Islamic State entitled Congress, the Presidency and Military Intervention.  Senator Kaine, who has taken the lead in urging the President to seek congressional authorization for the use of force against the Islamic State, will . . .
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The Complexities in an Islamic State AUMF

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Friday, November 7, 2014 at 6:42 AM

In August I described a politically palatable AUMF against the Islamic State (IS).  What was politically palatable in August is not necessarily politically palatable after three months of air strikes, however, and will likely be even less so when a new and different-looking Congress comes to power next year.  In August the emphasis was on . . .
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The Zivotofsky Oral Argument Transcript

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Tuesday, November 4, 2014 at 10:19 AM

is here.

End of Forever War Watch, Election Day Edition

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Tuesday, November 4, 2014 at 8:49 AM

The wise Walter Pincus had a good piece yesterday in the WP that makes two points: (1) the United States’ fight “against the so-called Islamic State has just begun and will last for years,” and (2) “Iraqi boots on the ground are the only ones that can defeat the Islamic State in Iraq. But that . . .
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On Journalists’ Claims for Immunity From Legal Accountability

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Monday, November 3, 2014 at 8:37 AM

I think I am unusual among former government officials in arguing that the publication of national security secrets can promote democracy and good government.  Such publications are often costly, sometimes very costly, to national security – more so than is generally realized.  But as I wrote in Power and Constraint, “it does not follow that . . .
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Final Note on Zivotofsky

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Sunday, November 2, 2014 at 6:30 AM

A quick response to Marty Lederman’s latest post on Zivotosfsky.  I confess that I do not fully understand either Marty’s or the SG’s (pp. 46-48) argument about the relevance of Article I.  They both seem to want to argue that Congress is not exercising legitimate power in the Jerusalem Passport legislation, but – perhaps to . . .
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How the Supreme Court Should Resolve Zivotofsky

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Thursday, October 30, 2014 at 8:09 AM

Zivotofsky is an important case because it appears to require the Supreme Court to address the scope of the President’s exclusive foreign relations power vis a vis Congress.  This is a very hard question, rarely addressed by the Court, about which the relevant sources (text, original meaning, historical practice) are, in my view, unclear.  And . . .
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Susan Rice Did Not Consult DOD When She Urged Repeal of 2002 AUMF That DOD (Correctly) Thought Was “Still Needed”

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Monday, October 27, 2014 at 8:18 AM

Michael Hirsh has a piece at Politico on the disorganized, uncoordinated crafting and implementation of the administration’s strategy to defeat the Islamic State.  Of particular interest to Lawfare readers is the news that National Security Advisor Susan Rice failed to consult with DOD when she wrote a letter to Congress last summer asking for the . . .
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A Bit More On the Debate About the Extraterritorial Scope of the Torture Convention’s Provisions on Cruelty

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Monday, October 27, 2014 at 7:45 AM

In his piece on Nobel Peace Prize Laureates pressuring the President to disclose information about torture, Charlie Savage explains why some officials in the administration oppose the broad extraterritorial expansion of Article 16 of the CAT: The officials opposed to accepting the cruelty provision as applying abroad insist they do not want to resume abusive . . .
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The Debate About the Extraterritorial Scope of the Torture Convention’s Provisions on Cruelty is (Almost Certainly) Not About USG Interrogation Policy

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Friday, October 24, 2014 at 10:22 AM

A week ago Charlie Savage reported that the Obama administration “is considering reaffirming the Bush administration’s position that the [Convention Against Torture(CAT)] imposes no legal obligation on the United States to bar cruelty outside its borders.”  The provision of the Torture Convention in question is Article 16, which provides: “Each State Party shall undertake to . . .
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