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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 »

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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Who’s Afraid of the Iran Nuclear Agreement Review Act of 2015?

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Wednesday, March 25, 2015 at 11:47 AM

Last Friday The Hill reported that Senator Corker believes he “will have a veto-proof majority” to enact the “Iran Nuclear Agreement Review Act of 2015” (INARA).  Below is my analysis of the Bill.  Bottom line: The Bill is simply designed to permit Congress to look closely at the Iran deal before President Obama exercises any . . .
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The Precise (and Narrow) Limits On U.S. Economic Espionage

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Monday, March 23, 2015 at 7:09 AM

This Intercept story on New Zealand’s surveillance of candidates for director general of the World Trade Organization sparked a related conversation yesterday on twitter about the exact scope of U.S. economic espionage.  There is a lot of confusion about this, I think.  Here is the U.S. position as I understand it, followed by a few . . .
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Letter from Heads of SFRC and SASC to Kerry and Carter on South China Sea

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Friday, March 20, 2015 at 4:38 PM

Yesterday the Chairmen and Ranking members of the Senate Armed Services Committee (McCain and Reed) and the Senate Foreign Relations Committee (Corker and Menendez) sent a noteworthy letter to Secretaries Kerry and Carter about growing Chinese hegemony in the South China Sea.  It begins: We are writing in regard to Chinese strategy in the Indo-Pacific . . .
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Why the AUMF for the Islamic State Has Stalled

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Friday, March 20, 2015 at 9:36 AM

“Congress is stalled in its effort to pass a separate resolution authorizing military force against the Islamic State of Iraq and the Levant,” write Austin Wright and Bryan Bender in a good Politico story two days ago.  The conventional explanation for the stall is, as Wright and Bender note, that “congressional action has gotten bogged . . .
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New Book on Islamic State by Stern and Berger

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Thursday, March 19, 2015 at 1:49 PM

Jessica Stern (who wrote Terror in the Name of God: Why Religious Militants Kill) and J.M. Berger have a new book that should be of interest to Lawfare readers: ISIS: The State of Terror.  The book is a fascinating history of The Islamic State, a rich of explanation of its motives, means, and lure, and . . .
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