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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 »

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

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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 . . .
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The SFRC Vote on the Menendez AUMF

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

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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 . . .
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On the Sad Collapse of the New Republic [UPDATED]

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

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

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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 . . .
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The Immigration Imbroglio as (Pretty) Normal Separation of Powers

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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 . . .
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End of Forever War Watch, Weekend Edition

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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 . . .
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Seeking Consensus on AUMFs

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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

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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

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

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

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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.  . . .
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Why A Substantively Neutral But Procedurally Constraining AUMF Makes Sense

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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 . . .
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A Draft AUMF to Get the Discussion Going

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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 . . .
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