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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 »

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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The Supreme Court’s Lurking Relevance to the Iran Deal

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Monday, March 16, 2015 at 9:16 AM

The Supreme Court will decide the Jerusalem passport case, Zivotofsky, sometime between now and late June.  (For details on the case, see the SCOTUSblog page and Lawfare coverage here and here and here.)  At a broad level of generality, the issue in Zivotofsky is how to think about whether and when Congress, in the exercise . . .
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Four Thoughts on Denis McDonough’s Letter to Senator Corker on the Iran Deal

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Sunday, March 15, 2015 at 12:27 AM

President Obama’s Chief of Staff, Denis McDonough, has written a good response to Senator Corker’s letter to the President on the Iran nuclear deal.  Recall that Senator Corker had asked “whether [the President is] considering going to the United Nations Security Council without coming to Congress first.”  Here is my summary of McDonough’s answer: The . . .
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The State of Play on the Form and Effect of the (Possible) Iran Deal

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Friday, March 13, 2015 at 9:34 AM

Every day brings a new and different story about the Obama administration’s plans with regard to a possible deal with Iran as it relates to domestic and international law.  One can understand why the administration might not have wanted to talk about any of this publicly.  It might have wanted to hold back on these . . .
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NSC Spokesperson Says U.S. Has “No Intention” of Using U.N. Security Council to Legalize Non-Legal Agreement With Iran

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Thursday, March 12, 2015 at 9:29 PM

I was just about to post on this presser, where State Department spokesperson Jen Psaki refused to answer whether the United States would bless any nonbinding agreement with Iran in a UN Security Council Resolution, a possibility I analyzed this morning.  And then I read this BuzzFeed news story by Hayes Brown, which cites my post, and in . . .
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How a U.N. Security Council Resolution Transforms a Non-Binding Agreement with Iran Into a Binding Obligation Under International Law (Without Any New Senatorial or Congressional Vote)

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Thursday, March 12, 2015 at 8:37 AM

It is now clear that any deal with Iran will by its terms be a non-binding agreement.  That means the United States will have no international law obligation to comply with the agreement, considered in isolation, and that only diplomatic and political considerations – which might not be trivial – will stand in the way . . .
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Non-Legal Agreements: Easier to Make, Easier to Break

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Wednesday, March 11, 2015 at 9:05 AM

If, as Marty and I just argued, the deal with Iran is a non-binding agreement under international law, then, as we stated, “there is little doubt about the President’s constitutional authority to make the deal on his own.”  I think Senator Cotton agrees.  I take that to be the import of his statement this morning . . .
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The Case for the President’s Unilateral Authority to Conclude the Impending Iran Deal is Easy Because it Will (Likely) be a Nonbinding Agreement Under International Law

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Wednesday, March 11, 2015 at 8:38 AM

[Cross-posted at Just Security.] In Marty’s post yesterday about the letter that 47 Senators sent to “the Leaders of the Islamic Republic of Iran,” he briefly addressed the question of “whether the President has the constitutional authority to complete the agreement in question without further congressional involvement.”  The answer to that legal question depends, he wrote, “largely on what . . .
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More on the Senate’s Role in the Impending Iran Deal

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Tuesday, March 10, 2015 at 6:58 AM

Iran’s Foreign Minister Javad Zarif has responded here to the letter from the 47 Republican Senators, on which I commented yesterday.  Just as the Senators’ letter purported to school Iran on U.S. constitutional law of foreign relations, Zarif says that the Senators “not only do not understand international law, but are not fully cognizant of the . . .
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The Error in the Senators’ Letter to the Leaders of Iran

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Monday, March 9, 2015 at 5:55 AM

  Please like our Facebook page and follow Lawfare on Twitter: Follow @lawfareblog Josh Rogin reports that a “group of 47 Republican senators has written an open letter to Iran’s leaders warning them that any nuclear deal they sign with President Barack Obama’s administration won’t last after Obama leaves office.”  Here is the letter.  Its premise is . . .
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Bruce Schneier’s Important New Book

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Wednesday, March 4, 2015 at 2:18 PM

Bruce has just published Data and Goliath: The Hidden Battles to Collect Your Data and Control Your World, a book that will interest many Lawfare readers.  Data and Goliath is deeply informed and accessibly written analysis of mass surveillance by firms and the government.  Part One is a terrific tutorial on big data and data mining, . . .
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DNI’s 2015 Worldwide Threat Assessment

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Friday, February 27, 2015 at 9:14 AM

I highly recommend that Lawfare readers peruse the annual the Worldwide Threat Assessment of the US Intelligence Community, as well as DNI Clapper’s opening statement before the SASC yesterday.  I read both quickly (though I did not watch the hearing).  Both seem less watered-down than usual.  Some highlights: “Cyber” is at the top of the . . .
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The Tricky Issue of Severing US “Control” Over ICANN

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Tuesday, February 24, 2015 at 5:30 AM

I have written an essay for Hoover’s The Briefing series entitled The Tricky Issue of Severing US “Control” Over ICANN.  Tomorrow the Senate Commerce, Science, and Transportation committee will have an important hearing on this subject.  The hearing is specifically about the Commerce Department’s planned relinquishment of contractual control over the Internet’s domain name system in . . .
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Six Questions Congress Should Ask the Administration about its ISIL AUMF

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Friday, February 20, 2015 at 11:00 AM

[Cross-posted at Just Security] With congressional hearings on the Obama Administration’s proposed Authorization for the Use of Military Force (AUMF) for the Islamic State on the horizon, we propose six questions that Members of Congress should ask Administration witnesses: 1. What, exactly, is our strategic military objective? As numerous commentators have pointed out, the Administration’s . . .
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The New York Times Public Editor Backs James Risen’s “Truth-Telling”

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Thursday, February 19, 2015 at 5:09 PM

Soon after Jack posted this piece on James Risen’s attacks on Eric Holder, which Ben had criticized earlier, the New York Times’s Public Editor, Margaret Sullivan, wrote a post in support of Risen’s tweets. Reasonable people will differ over the right norms for journalists on Twitter—an issue Ben’s original post and Sullivan’s both engage. But there is one . . .
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