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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 »

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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Risen, Holder, and Journalists’ Sensitivity to Accountability

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Thursday, February 19, 2015 at 2:24 PM

I largely agree with Ben’s critique of James Risen’s sharp twitter criticisms of Attorney General Holder, but want to add (or reiterate) several points. First, to underscore what Ben says, the absence of a First Amendment reporter’s privilege long preceded Eric Holder and cannot plausibly be said to be part of his “legacy,” as Risen . . .
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Errors and Misconceptions About the Obama Draft AUMF

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Monday, February 16, 2015 at 3:03 PM

Much of the discussion in recent days about the Obama draft AUMF for ISIL contains mistakes and misconceptions, at least as I see matters. The Draft AUMF Does Not Limit The President.  The biggest canard has come from several Republicans who continue to talk as if the President has proposed an authorization that limits his . . .
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More on Administration’s Draft AUMF

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Thursday, February 12, 2015 at 12:50 PM

Some follow-ups to my earlier post on the administration’s ISIL-specific AUMF: Marty Lederman has a good analysis of the substance of the draft AUMF that is consonant with my analysis.  Marty charitably notes that the draft “raises some questions that I doubt the President intended to leave unsettled for future administrations.”  Those questions include the . . .
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The Administration’s Hard-To-Fathom Draft AUMF

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Thursday, February 12, 2015 at 6:33 AM

Before I get to analysis and criticism, let me give the Obama administration credit for proposing a draft AUMF yesterday.  The administration’s many promises about working with Congress to craft an AUMF for the Islamic State (ISIL), combined with the lack of a concrete proposal that has long been the President’s responsibility, had led me . . .
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Great Harvard National Security Journal Issue

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Monday, February 9, 2015 at 9:03 AM

The Harvard National Security Journal just published an unusually good issue that will be of interest to many Lawfare readers. The piece I have read most carefully is Intelligence Legalism and the National Security Agency’s Civil Liberties Gap by Margo Schlanger of the University of Michigan Law School.  She argues that the post-Church hyper-legalization (my . . .
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The Bush Administration Wanted to Close GTMO Because (in Part) of its Propaganda Value to Jihadists

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Thursday, February 5, 2015 at 8:31 PM

Senator Tom Cotton, whom I like, doesn’t support the closure of the Guantanamo Bay detention center.  As the SASC hearing today he said of the Guantanamo detainees, “every last one of them can rot in hell, but since they don’t do that, they can rot in Guantanamo Bay.”   Senator Cotton served in the U.S. Army . . .
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Why a Sunset Clause is Important in Any New AUMF

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Thursday, February 5, 2015 at 10:24 AM

The rumors circulating that the administration might in the next week finally present a draft AUMF against the Islamic State causes me to ask: What is the point of a new AUMF? Military operations against al Qaeda and its associates and the Taliban – in Afghanistan, Pakistan, Yemen, Somalia, and almost certainly (according to Mark . . .
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The Legal Basis for the Mughniyah Killing

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Saturday, January 31, 2015 at 1:30 PM

The Washington Post and Newsweek report that the CIA in 2008 worked with Israel’s Mossad to kill Imad Mughniyah, Hezbollah’s operations chief, in Damascus, Syria.  The Post says that Mughniyah “had been implicated in the killing of hundreds of Americans, stretching back to the embassy bombing in Beirut [in 1983] that killed 63 people, including . . .
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The Obama Administration Does Not Want a New AUMF

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Wednesday, January 21, 2015 at 6:35 AM

Last night the President “call[ed] on this Congress to show the world that we are united in this mission by passing a resolution to authorize the use of force against ISIL.”  This comes on the heels of his November statement that “I’m going to begin engaging Congress over a new authorization to use military force . . .
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Reactions to NYT Story on North Korean Cyber Penetration

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Monday, January 19, 2015 at 9:45 AM

David Sanger and Martin Fackler write in the NYT that the NSA “drilled into the Chinese networks that connect North Korea to the outside world, picked through connections in Malaysia favored by North Korean hackers and penetrated directly into the North with the help of South Korea and other American allies,” and also placed malware . . .
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There is Nothing Wrong with Comey Criticizing the NYT

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Friday, January 16, 2015 at 1:30 PM

The U.S. government has effectively granted journalists immunity from prosecution for violating the criminal prohibitions on publication of certain classified information, and it has begun to recognize a norm against forcing journalists to disclose their sources.  As I wrote in Power and Constraint, “Underlying this persistent restraint [by the USG] is a recognition—based in part . . .
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On the Tired War v. Law Enforcement Distinction

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Saturday, January 10, 2015 at 2:07 PM

I agree with much of what Wells says in response to Bryan Cunningham’s piece on War v. Crime, but thought I would add my two cents. It is not fair to say, as Bryan does, that the attacks in France were a “consequence” of a return to a “largely law enforcement approach to terrorism” by . . .
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Quick Responses to Schneier on Attribution in the Sony Hack

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Monday, January 5, 2015 at 2:04 PM

Bruce Schneier has two typically fine new essays on the Sony hack.  The first (at the Atlantic.com) argues that “we still don’t know who’s behind” the Sony hack, and the second (at Time.com) explains why the government should “be much more forthcoming about its evidence” about attribution.  I generally agree.  But matters are even more complex . . .
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The Consequences of Credible Doubt About the USG Attribution in the Sony Hack

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Tuesday, December 30, 2014 at 8:15 AM

A few weeks ago I wrote critically of the FBI’s statement that it had “enough information to conclude that the North Korean government is responsible” for the Sony hack: First, the evidence” is of the most conclusory nature – it is really just unconfirmed statements by the USG.   Second, on its face the evidence shows only that . . .
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A Modest Defense of the Government’s Legal and Policy Confusion Re Sony

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Tuesday, December 23, 2014 at 8:25 PM

The attribution problem makes it very hard for the public to know if North Korea in fact attacked Sony, the precise damage Sony suffered, and the party responsible for the (apparent) counter-attack in North Korea.  Attribution problems are present in other realms of conflict, of course.  Some kinetic terrorist attacks leave no fingerprint; covert action is . . .
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USG Seems Befuddled About How to Respond to Sony Hack

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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 . . .
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