Skip to content

Email Jack

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 »

USG Seems Befuddled About How to Respond to Sony Hack

By
Saturday, December 20, 2014 at 9:25 PM

David Sanger, Nicole Perlroth, and Eric Schmitt have a must-read NYT story on USG thinking about a response to the Sony hack, allegedly carried by the North Korean government.  The story is jaw-dropping because, after many years of USG thinking about cyberwar and its cousins, the government seems in disarray about how to respond to . . .
Read more »

The Sony Hack: Attribution Problems, and the Connection to Domestic Surveillance

By
Friday, December 19, 2014 at 5:19 PM

The FBI said today of the Sony hack: As a result of our investigation, . . . the FBI now has enough information to conclude that the North Korean government is responsible for these actions.  While the need to protect sensitive sources and methods precludes us from sharing all of this information, our conclusion is . . .
Read more »

The SFRC Vote on the Menendez AUMF

By
Friday, December 12, 2014 at 12:15 PM

The Senate Foreign Relations Committee voted 10-8 yesterday to approve Senator Menendez’s draft AUMF for ISIL.  As endorsed by the Committee, the bill: — Authorizes the President to use force against ISIL or against “associated forces or associated persons”  (a phrase defined to mean means “individuals and organizations fighting for or on behalf of [ISIL] . . .
Read more »

The Obama Administration Wants a Super-Broad AUMF for the Islamic State (and Other Reactions to Yesterday’s AUMF Hearing)

By
Wednesday, December 10, 2014 at 2:07 PM

Secretary of State Kerry testified yesterday before the Senate Foreign Relations committee on the need for a new AUMF for the Islamic State (which Kerry referred to by the new moniker “Daesh,” and I will for now call “IS”).  It was a revealing few hours.  The Senators were well-informed and asked good questions with an . . .
Read more »

On the Sad Collapse of the New Republic [UPDATED]

By
Thursday, December 4, 2014 at 6:21 PM

I’ve read the New Republic since college.  And I’ve read book reviews in the “back of the book,” edited by Leon Wieseltier, most devotedly.  I have always loved the books he chose and the reviews he edited.  Through many different styles of Editor-in-Chief and other upheavals at the magazine over the years, Leon’s book reviews . . .
Read more »

Bruce Fein’s Revealing Defense of Senator Paul’s Draft Declaration of War

By
Friday, November 28, 2014 at 9:29 AM

Earlier this week I analyzed Senator Paul’s proposed war declaration.  Bruce Fein has a spirited defense of Senator Paul’s draft (which includes a swipe at me for asking an “obtuse[e]” question).  But the defense contains two errors that reveal the limits of what the Senator proposes. Fein’s first and most important error is in this . . .
Read more »

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

By
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 . . .
Read more »

The Immigration Imbroglio as (Pretty) Normal Separation of Powers

By
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 . . .
Read more »

End of Forever War Watch, Weekend Edition

By
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 . . .
Read more »

Seeking Consensus on AUMFs

By , and
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

By
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

By
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. . . .
Read more »

The U.S.-China Climate “Deal” Does Less Than Has Been Hyped

By
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 . . .
Read more »

A New AUMF, The Lame-Duck Session, and the Meaning of Sunset Clauses

By
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.  . . .
Read more »

Why A Substantively Neutral But Procedurally Constraining AUMF Makes Sense

By
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 . . .
Read more »

A Draft AUMF to Get the Discussion Going

By , , and
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 . . .
Read more »

Event at Wilson Center on Islamic State AUMF and Related Issues

By
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 . . .
Read more »

The Complexities in an Islamic State AUMF

By
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 . . .
Read more »

The Zivotofsky Oral Argument Transcript

By
Tuesday, November 4, 2014 at 10:19 AM

is here.

End of Forever War Watch, Election Day Edition

By
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 . . .
Read more »