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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 »

More on the War Powers Resolution and the Use of Force Against the Islamic State

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Wednesday, October 8, 2014 at 12:56 PM

This morning I argued that the Obama administration had violated the War Powers Resolution unless its is correct in its contention that the 2001 and 2002 AUMFs together authorize the use of force against the Islamic State in Iraq and Syria.  Three follow-ups: First, I speculated this morning that “the administration was pushed by the looming . . .
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The Administration Has Violated the War Powers Resolution Unless It is Right About the Applicability of the AUMFs to the Islamic State

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Wednesday, October 8, 2014 at 7:50 AM

On Monday, Senator Cruz maintained that the War Powers Resolution (WPR) clock had expired because 60 days had passed since the first air strikes against the Islamic State, which the President notified Congress about in a letter to Congress on August 8.  “Given that 60 days has expired,” the Senator argued, “the president should come . . .
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History Suggests That Congress Will Only Authorize Force Against the Islamic State If the President Proposes and Pushes For an Authorization (or Screws Up Unilateral Force Badly)

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Tuesday, October 7, 2014 at 8:30 AM

President Obama says he would “welcome congressional support” but does not need authorization from Congress in order to use force against the Islamic State.  The President appears to have taken no steps to propose actual language to Congress or to move the idea of an authorization along.  And Congress appears to have done nothing significant . . .
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Judge Kessler’s Videotape Order and the Costs of Crying Wolf

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Saturday, October 4, 2014 at 9:57 AM

The First Amendment question in Judge Kessler’s opinion in support of her Order directing the videotapes of Abu Wa’el Dhiab’s forced feedings to be unsealed (see Jane’s summary) is whether the public’s presumptive right of access is outweighed by the government’s well-specified “compelling interest” in keeping the classified tapes sealed.  The Government claims there are five . . .
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The Significance of Harold Koh’s Legal Defense of the Administration’s Interpretation of the 2001 AUMF

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Wednesday, October 1, 2014 at 7:02 AM

Harold’s Koh’s grudging defense of the domestic legal basis for President’s Obama’s use of force against the Islamic State in Iraq and Syria is important.  It adds little new to other defenses of the President’s position – a legal position, I have argued in past posts, is politically stupid and constitutionally imprudent but nonetheless legally . . .
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Why it Might Matter Whether the Islamic State Was AUMF-able Last Year

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Tuesday, September 30, 2014 at 8:46 AM

In February, Karen DeYoung and Greg Miller wrote a story in the WP about how Al-Qaeda’s then-recent expulsion of the Islamic State of Iraq and Syria (ISIS, now Islamic State, or IS) raised questions about whether the AUMF “still applies” to ISIS.  “According to some administration lawyers and intelligence officials,” they reported, “the expulsion of ISIS . . .
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On Glenn Greenwald’s Skepticism on Threat Claims About the Khorasan Group

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Monday, September 29, 2014 at 11:56 AM

Glenn Greenwald has a skeptical takedown of the factual basis for the attacks on the Khorasan Group (KG) in Syria, and the American Press’s complicity, based on anonymous USG sources, in spreading war-mongering exaggerations about KG’s imminent threat to the American public.  Greenwald concludes: So after spending weeks promoting ISIS as Worse Than Al Qaeda™, they unveiled . . .
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Islamic State Reconciling with Jabhat al-Nusra, and Strengthening President’s 2001 AUMF Argument

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Sunday, September 28, 2014 at 4:34 PM

The Guardian reports that USG bombing of Jabhat al-Nusra, the al Qaeda group (or AQ-affiliated group) in Syria that has been at odds with the Islamic State for a year or so: Air strikes continued to target Islamic State (Isis) positions near the Kurdish town of Kobani and hubs across north-east Syria on Sunday, as . . .
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The Obama Administration’s Legal Justification for Strikes Against the Islamic State In Syria

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Tuesday, September 23, 2014 at 3:38 PM

Based on comments from senior Obama administration officials who spoke on “the condition of anonymity,” Charlie Savage reports the Obama administration’s legal theory for the use of force against the Islamic State. Savage says that the domestic legal justification is both the 2001 and the 2002 AUMFs: Administration officials have said that as a matter . . .
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Ongoing “Covert” Training of Syrian Rebels: But Is It Still Covert . . . , And, If So, Why?

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Monday, September 22, 2014 at 8:45 AM

[Cross-Posted at Just Security]  Last week Congress approved, and the President signed, legislation that authorizes the Secretary of Defense (see section 149) to “provide assistance, including training, equipment, supplies, and sustainment, to appropriately vetted elements of the Syrian opposition and other appropriately vetted Syrian groups and individuals,” for three specified purposes, including “defending the Syrian people from . . .
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Senator Udall Discusses Covert Action in Syria to Train 2-3K Moderate Rebels

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Thursday, September 18, 2014 at 1:46 PM

From yesterday’s Senate Arms Services Committee Hearing (at about the 2:23 mark): Senator UDALL (NM):  And my question to you has to do with – and this is all public information, but everybody’s well aware there’s been a covert operation, operating in the region to train forces, moderate forces, to go into Syria and to . . .
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Declassified Articles from the CIA’s In-House Intelligence Journal

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Thursday, September 18, 2014 at 12:41 PM

Via  Steve Aftergood, I learned that the CIA “has posted hundreds of declassified and unclassified articles from its in-house journal Studies in Intelligence.”  The articles are here.  I have just skimmed the articles—there appear to be several hundred—and I do not know which ones were previously classified and unavailable to the public.  But on the whole they . . .
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The Draft AUMFs for the Islamic State Do Not Limit Congressional Authorization on Ground Troops, or Geography, or Associated Forces

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Thursday, September 18, 2014 at 8:12 AM

The two most promising Islamic State AUMFs I have seen are the one sponsored by Representative Schiff and the one sponsored by Senator Kaine.  Both drafts, in different ways, purport to limit the authorization for the President to use force against the Islamic State in at least three respects: (1) They authorize force only in . . .
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Obama Administration Claims that 2002 Iraq Resolution is a Legal Basis for Air Strikes Against the Islamic State [UPDATED]

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Saturday, September 13, 2014 at 6:57 AM

I always thought the 2002 AUMF was an obvious basis for air strikes against the Islamic State, easily in Iraq and possibly (given the right circumstances) in Syria.  Today Charlie Savage reports that “the White House believes that Congress’s 2002 authorization of the Iraq war — and not just the 2001 authorization to fight Al Qaeda . . .
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We are (or Will Soon Be) at War With the Islamic State

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Friday, September 12, 2014 at 9:05 AM

Secretary of State Kerry said yesterday: We’re engaged in a major counterterrorism operation [against the Islamic State], and it’s going to be a long-term counterterrorism operation.  I think war is the wrong terminology and analogy . . . . Though the Secretary was not thinking in legal terms, it is worth noting that his statement is . . .
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Further Reflections on the Legal Rationale For Using Force Against the Islamic State

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Friday, September 12, 2014 at 7:47 AM

I had a pretty harsh reaction to the administration’s claim that Congress in the 2001 AUMF authorized force against ISIS in Iraq and Syria.  (For a different view, see Marty Lederman’s post.)  While I think the administration’s interpretation of the 2001 AUMF is unconvincing, I do not believe (as Bruce Ackerman appears to say today . . .
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President Obama’s Astonishing War Powers Legacy

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Thursday, September 11, 2014 at 7:55 AM

That is the topic of my essay at Time.com in reaction to the announcement yesterday that the Obama administration believes the 2001 AUMF authorizes force against the Islamic State today.  The essay begins: Future historians will ask why George W. Bush sought and received express congressional authorization for his wars (against al Qaeda and Iraq) . . .
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Yet Another Iraq War Powers Letter, and a Response to Lederman

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Tuesday, September 9, 2014 at 9:16 AM

Yesterday the President sent his seventh Iraq-related War Powers Resolution (WPR) letter since June, and the fourth in about a month.  The new letter concerns U.S. Armed Forces using “targeted airstrikes in the vicinity of the Haditha Dam in support of Iraqi forces in their efforts to retain control of and defend this critical infrastructure . . .
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A New Tactic to Avoid War Powers Resolution Time Limits?

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Tuesday, September 2, 2014 at 6:54 AM

Yesterday President Obama sent a War Powers Resolution (WPR) letter to Congress concerning U.S. airstrikes “in support of an operation to deliver humanitarian assistance to civilians in the town of Amirli, Iraq.”  This is the third Iraq WPR letter to Congress in a month, and the sixth this summer.  In June the President sent three . . .
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A Politically Palatable Authorization to Use Force Against IS [UPDATED]

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Wednesday, August 27, 2014 at 2:20 PM

One senses growing pressure, within and without the White House, for the President to seek authorization from Congress for what he and his aides say will be a long battle against the Islamic State (IS).  Last week I outlined the political concerns in Congress and the White House, and earlier this week I argued that . . .
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