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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. Full bio »

Two Legal Takeaways from Yesterday’s HASC Hearing

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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 . . .
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Foreign Relations Law Casebook Update

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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 . . .
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Paul on Audible on Cyber

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

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

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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 . . .
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Commentary on Bond

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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]

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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 . . .
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The President Pretty Clearly Disregarded a Congressional Statute in Swapping GTMO Detainees for Bergdahl

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Monday, June 2, 2014 at 1:03 PM

Marty Lederman tries mightily to interpret Bergdahl’s release as consistent* not inconsistent with the wishes of Congress, but I don’t think he succeeds. Section 1035 of the 2014 NDAA authorizes the Defense Secretary to “transfer or release any individual detained at Guantanamo” if he makes certain certain determinations, and it further requires without exception that the . . .
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Critical Comments by Rahul Sagar on My Post on Kinsley

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Monday, June 2, 2014 at 10:51 AM

Rahul Sagar is Associate Professor at Yale NUS and the author of the terrific and timely Secrets and Leaks: The Dilemma of State Secrecy (reviewed favorably by Steven Aftergood on Lawfare and Eric Posner in TNR).  He writes in with some critical comments on my post last week on Michael Kinsley, to which I have . . .
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Schoenfeld on the Selective Prosecution of Leakers

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Wednesday, May 28, 2014 at 12:23 PM

Gabriel Schoenfeld, author of the indispensable Necessary Secrets, has a new essay in Hoover’s Emerging Threats series entitled “Secrecy, Leaks, and Selective Prosecution.”  He offers this description of the essay: Does it matter that low-level government officials are prosecuted and sent to prison when they leak classified information, yet high-ranking officials in the White House and . . .
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Why Kinsley is Wrong About the Connection Between Democracy and the Publication of National Security Secrets

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Wednesday, May 28, 2014 at 9:18 AM

Michael Kinsley, in his review of Glenn Greenwald’s book, made the following claims about leaks of national security secrets: The question is who decides.  It seems clear, at least to me, that the private companies that own newspapers, and their employees, should not have the final say over the release of government secrets, and a . . .
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Double Standard in Publishing Classified Information?

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Tuesday, May 27, 2014 at 11:14 AM

I am struck by the circumspection of the American press in not revealing the name of the CIA Station Chief in Afghanistan whom the Obama Administration inadvertently disclosed over the weekend.  That name will surely come out, if it hasn’t already.  But the episode made me wonder why the press appears to follow old norms . . .
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Memorial Day Thought by Joshua Lawrence Chamberlain

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Monday, May 26, 2014 at 12:39 PM

Robert Samuelson reminds us today of the Civil War origins of Memorial Day in this lovely piece in the Washington Post, which contains a long excerpt from James McPherson’s terrific Battle Cry of Freedom.  And a friend who serves in the Army writes to me today with another thought appropriate for Memorial Day.  It comes from a . . .
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Senator Corker on AUMF Reform

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Sunday, May 25, 2014 at 4:05 PM

Senator Corker has an op-ed in the WP on the need to update the AUMF.   He documents the growth of extra-AUMF terrorist threats and then argues: These incidents seem to suggest that the September 2001 Authorization on the Use of Military Force (AUMF) is too narrow and that the president is hamstrung by stale semantic . . .
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Raha Wala Responds on AUMF Debate

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Saturday, May 24, 2014 at 7:51 AM

Raha Wala of Human Rights First writes in with some reactions to my posts last week on the AUMF hearings, to which I respond briefly at the end. Jack’s posts on the Senate Foreign Relations Committee (SFRC) Hearing on the AUMF raise important issues regarding the administration’s claimed Article II authorities to use force (see . . .
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Agreeing with Harold Koh on the Need For and Contours of a New AUMF

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Friday, May 23, 2014 at 11:28 AM

I find myself mostly agreeing with the essentials of Harold Koh’s testimony and post on “ending” the Forever War, especially his proposal for a new and narrowed AUMF.  I hope this doesn’t cause my old teacher to change his mind. By ending the Forever War, Koh appears to mean (a) declaring war against al Qaeda (and, possibly, . . .
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More on the Administration’s AUMF Strategy

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Thursday, May 22, 2014 at 9:00 AM

A friend who is familiar with Obama administration thinking responds to my post on yesterday’s AUMF hearing: The administration’s focus is not on ending the war, but on ensuring that future presidents don’t have the latitude the AUMF provides. The focus is on restraint. And the message is not intended to be read as supporting . . .
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Revised Counterinsurgency Field Manual

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Thursday, May 22, 2014 at 6:51 AM

The revised COIN Field manual is available here.  I have not read it but Small Wars Journal has critical commentary by Charles Dunlap, Bing West, Adam Elkus, and Robert Cassidy, and Ganesh Sitaraman weighs in at Foreign Policy. Update: Steve Aftergood of Secrecy News has a review here.

Reactions to Foreign Relations Committee Hearing on the AUMF

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Wednesday, May 21, 2014 at 9:12 PM

There is much to say about today’s hearing on the AUMF, and I am sure my colleagues will weigh in with much more.  But I have two quick reactions for now. First, I suggest reading two recent Eli Lake articles together.  The first is about internal Executive branch debates about how to characterize the continuing threat from al . . .
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The U.S. Corporate Theft Principle

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Wednesday, May 21, 2014 at 8:07 AM

David Sanger’s piece in this morning’s NYT explores the USG’s attempts to justify cracking down on cyber-theft of intellectual property of U.S. firms while at the same time continuing to spy on non-U.S. firms for different purposes.  We are familiar with the USG policy.  As DNI Clapper says in Sanger’s story, the USG does not . . .
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