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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 »

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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Schneier on Hoarding v. Patching Vulnerabilities

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Tuesday, May 20, 2014 at 12:11 PM

Bruce Schneier has a very good piece on whether the USG should “stockpile Internet vulnerabilities or disclose and fix them.”  Part of his  answer: If vulnerabilities are sparse, then it’s obvious that every vulnerability we find and fix improves security. We render a vulnerability unusable, even if the Chinese government already knows about it. We . . .
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Why Did DOJ Indict the Chinese Military Officers?

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Tuesday, May 20, 2014 at 6:55 AM

Why did the USG indict Chinese military officers for cybertheft?  It knows that there is no practical chance of convictions (because, among other reasons, the defendants will never appear in the United States).  It knows that mere indictments are unlikely to slow China’s corporate cyber-espionage, and thus might make even more obvious the fecklessness of USG . . .
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Readings: “A New Strategy for Reducing the Threat of Dangerous Øday Sales to Global Security and the Economy,” by Michele Golabek-Goldman

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Monday, May 19, 2014 at 5:59 AM

We have discussed the manifold challenges of zero day vulnerabilities quite a lot on this blog – why they are central to the cybersecurity challenge, how their discovery is vital to both offensive and defensive postures in cybersecurity, optimal USG policy on stockpiling v. publishing and patching vulnerabilities, and the like.  One little discussed but . . .
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David Cole on Glenn Greenwald’s New Book

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Tuesday, May 13, 2014 at 1:11 PM

The best review I have seen of Glenn Greenwald’s new book No Place to Hide is by David Cole in the Washington Post, who concludes: This is an important and illuminating book. It would have been more important and illuminating were Greenwald able to acknowledge that the choices we face about regulating surveillance in the . . .
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Questions About CIA v. DOD Drone Strikes

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Tuesday, May 13, 2014 at 9:55 AM

Two reasons often given for the need to transfer targeting killing by drone from CIA exclusively to DOD are (i) collateral damage reduction, because DOD supposedly has stricter targeting criteria and better law-of-war compliance, and (ii) more robust oversight.  Neither reason is sound. Taking the second point first, as we have often noted on this blog, . . .
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ODNI Clarifies New Pre-Publication Review Policy

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Sunday, May 11, 2014 at 4:01 PM

On Friday I said that on a quick read, the Obama administration’s new pre-publication review policy seemed “overbroad to the point of practically unenforceable.”   Friday afternoon, as Marty Lederman noted, the Office of the Director of National Intelligence distributed a memorandum that sought to clarify that the new policy was being interpreted more broadly than . . .
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The Latest Obama Administration Anti-Leak Initiative

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Friday, May 9, 2014 at 5:28 AM

Charlie Savage reports: The Obama administration is clamping down on a technique that government officials have long used to join in public discussions of well-known but technically still-secret information: citing news reports based on unauthorized disclosures. A new pre-publication review policy for the Office of Director of National Intelligence says the agency’s current and former employees and . . .
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