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 »

A New White House Signal on AUMF Reform?

By , , and
Sunday, July 27, 2014 at 1:51 PM

Josh Gerstein of Politico reports that “[a] top White House official suggested Saturday that Congress pass new legislation to support President Barack Obama’s authority to act against an array of terrorist groups not clearly linked to the September 11 attacks.”  Gerstein quotes White House counterterrorism czar Lisa Monaco as stating this weekend at the Aspen Security Forum: “The 2001 AUMF has provided us . . .
Read more »

Schlesinger v. Cillizza

By
Tuesday, July 22, 2014 at 7:34 AM

Chris Cillizza has a piece in the WP that argues that the world is too splintered and partisan and complex, and communication and persuasion too difficult, for the president of the United States to succeed.  This is an old claim.  John Steinbeck said of the presidency under Johnson: “We give the President more work than . . .
Read more »

Bahlul: A Longer View

By
Tuesday, July 15, 2014 at 6:46 AM

Steve says of yesterday’s Bahlul decision. Whether or not you agree with the result of today’s decision, the D.C. Circuit has done no one any favors–not the government, which will still be terribly uncertain as to which cases it can and can’t bring; not the defendants, for obvious reasons; not the public; and, most importantly, not the commissions–the fragility . . .
Read more »

Holder on “Something That Gives Us Really Extreme, Extreme Concern”

By
Sunday, July 13, 2014 at 2:01 PM

President Obama, in his NDU speech last year, stated: “[T]his war, like all wars, must end.  That’s what history advises.  That’s what our democracy demands.” Attorney General Holder, in a conversation today (scroll down) with Pierre Thomas on ABC’s “This Week” about the threat from Americans and Europeans in Syria, stated: HOLDER: “In some ways, it’s more frightening . . .
Read more »

Obama’s Blueprint for Fighting Terrorism Collides With Reality in Iraq

By
Friday, July 4, 2014 at 8:42 AM

That is the title of a NYT story this morning by Landler, Gordon, and Mazzetti.  The “Blueprint” they have in mind is the one the President laid out at West Point, which (in their words) “relies less on American soldiers . . . and more on training troops in countries where those threats had taken . . .
Read more »

Suing the President for Executive Overreach

By
Monday, June 30, 2014 at 10:48 AM

President Obama has exercised executive power aggressively – as did his predecessor, albeit in different ways.  I don’t have time to parse and compare the differences, but in a nutshell (and simplifying a lot), the Obama administration has asserted enormous discretion under the “take care” clause to not enforce certain federal statutes, while President Bush . . .
Read more »

Lake and Rogin on Absence of Immunity for U.S. Troops in Iraq

By
Monday, June 23, 2014 at 10:05 AM

Eli Lake and Josh Rogin have a revealing story entitled Obama Flips on Immunity for U.S. Troops.  It begins: President Obama pulled U.S. forces out of Iraq in 2011 because he couldn’t get Iraq’s parliament to offer U.S. soldiers immunity from Iraqi prosecution. But now Obama has promised to send in hundreds of special operations . . .
Read more »

2001 and 2002 AUMFs as Basis for Iraq Strikes?

By
Thursday, June 19, 2014 at 9:53 AM

Various reports of the President’s meeting with congressional leaders (e.g here and here – note especially Pelosi’s comments) suggest that the administration believes that the 2001 AUMF (post-9/11) and the 2002 AUMF (that was the basis for the 2003 invasion of Iraq) together provide all the authorization it needs for any new uses of force . . .
Read more »

Civilian Trial is the Only Option for Abu Khattala

By
Wednesday, June 18, 2014 at 7:08 AM

Many have criticized the Obama administration’s plans to try the alleged leader of the Benghazi, Ahmed Abu Khattala, in civilian court.  “Ahmed Abu Khattala should be held at Guantanamo as a potential enemy combatant,” said Senator Lindsey Graham.  Representative Trey Gowdy, who is leading the House committee investigating the Benghazi attack, argued for “a noncivilian . . .
Read more »

Readings: “Jus Extra Bellum: Reconstructing the Ordinary, Realistic Conditions of Peace,” by Michael Jefferson Adams

By
Monday, June 16, 2014 at 7:44 AM

We’ve talked a lot on this blog about what legal regime should prevail against remaining terrorist threats if and when the armed conflict with the Taliban and/or al Qaeda ends.  Commander Michael Adams, the Deputy Legal Counsel to the Chairman of the Joint Chiefs (and a former student), has an excellent article addressing this issue . . .
Read more »

The Relatively Weak Article II Basis for Bombing Iraq and Syria (and, Remember the President’s August 31, 2013 Speech?)

By
Saturday, June 14, 2014 at 9:12 AM

I explained yesterday why I believe the administration has a straightforward argument for relying on the 2002 Iraq AUMF if it chooses to use force against ISIS in Iraq.  (Bobby and Wells disagree, and they may be right, but I note that such purposivist arguments to limit the text of the operative authorization have not . . .
Read more »

The 2002 Iraq AUMF Almost Certainly Authorizes the President to Use Force Today in Iraq (and Might Authorize the Use of Force in Syria) [UPDATED]

By
Friday, June 13, 2014 at 11:29 AM

Following up on a parenthetical near the end of my last post, the 2002 Iraq AUMF states in part:  “The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to . . . defend the national security of the United States against . . .
Read more »

The Unreality of “Ending the War”

By
Friday, June 13, 2014 at 10:32 AM

The march of ISIS across Iraq (and in Syria), and the Obama administration’s scramble to react to it, and the new round of drone strikes in Pakistan, and continuing and growing Islamist terrorist threats from North Africa to Yemen to Afghanistan and many places in between, all got me thinking about President Obama’s NDU speech . . .
Read more »

Two Legal Takeaways from Yesterday’s HASC Hearing

By
Thursday, June 12, 2014 at 9:19 AM

Yesterday’s HASC Committee Hearing (video here) on the Bergdahl swap was pretty eventful.  At least two important legal issues were discussed: the legality of not notifying Congress about the swap, and the legal consequences of the end of the Afghan conflict.  The first has received the most attention, but the administration arguably made some underappreciated news . . .
Read more »

Foreign Relations Law Casebook Update

By
Tuesday, June 10, 2014 at 7:03 AM

Because Curtis Bradley and I have a new edition of our Foreign Relations Law casebook, we only have a slim summer update, here.   It has an excerpt of Bond, with questions, and a discussion of legal issues related to the President’s failure to notify Congress about the transfer of five Taliban detainees in exchange for . . .
Read more »

Paul on Audible on Cyber

By
Saturday, June 7, 2014 at 11:07 AM

I listen to a lot of books from audible.com, and especially enjoy the “Great Courses” series, which in my experience is, on a number of topics, very high quality.  I just this morning noticed that our own Paul Rosenzweig has a course called Thinking About Cybersecurity: From Cyber Crime to Cyber Warfare.  I have not yet listened to it . . .
Read more »

Vice-President Cheney’s Funny Criticism of President Obama for Not Complying with the GTMO Notice Requirement

By
Wednesday, June 4, 2014 at 4:46 PM

I laughed when I heard former Vice-President Cheney on the Laura Ingraham show (approximately the 8:15-9:10 mark) criticizing President Obama for not notifying Congress under Section 1035 of the 2014 NDAA about the Bergdahl swap.  Ingraham complained about the failure of members of Congress to stand up to “the flouting of American law,” including the “failure . . .
Read more »

The Administration’s New (and Unconvincing) Reading of the Notice Requirement for GTMO transfers

By
Tuesday, June 3, 2014 at 11:04 AM

The Obama Administration has backed away from its suggestions over the weekend that it failed to comply with the notice requirement in Section 1035 of the 2014 NDAA on constitutional grounds.  It is now claiming, as Marty Lederman notes, that it complied with the statute because it determined “that the notification requirement should be construed not to . . .
Read more »

Commentary on Bond

By
Tuesday, June 3, 2014 at 10:46 AM

Curt Bradley’s thoughts are at AJIL Unbound, the Volokh Conspiracy has commentary by Nick Rosenkranz and Ilya Somin, and Jean Galbraith and Peter Spiro weigh in at Opinio Juris.

One or Two Other Statutes the President Likely Disregarded in The Bergdahl Deal [UPDATED]

By
Monday, June 2, 2014 at 7:45 PM

Earlier today I explained why the President almost certainly disregarded Section 1035 of the 2014 NDAA when he swapped the GTMO detainees for Bergdahl.  The President probably disregarded another statute as well, Section 8111 of the Fiscal Year 2014 Consolidated Appropriations Act, which provides: None of the funds appropriated or otherwise made available in this Act may . . .
Read more »