Faculty Bibliography
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The article presents a reprint of the article "The Other Forever War" by Jack Goldsmith and Matthew C. Waxman, which appeared in the "Time" magazine. It discusses the comprehensive and sustained counterterrorism strategy launched by the U.S. against the Islamic State terrorist group under the administration of President Barack Obama. The controversial use of the 2001 Authorization to Use Military Force (AUMF) as the legal foundation for war against the Islamic State was noted.
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Despite massive changes in the geographical scope of the conflict that began on 9/11, the strategy and tactics employed, and the identity of the enemy, the 2001 Authorization for Use of Military Force (“AUMF”) remains the principal legal foundation under U.S. domestic law for the President to use force against and detain members of terrorist organizations. For many years, President Obama proclaimed that he wanted to repeal the AUMF and end the AUMF-authorized conflict. By the closing year of his presidency, however, his administration had established the AUMF as the legal foundation for an indefinite conflict against Al Qaeda and associated groups and extended that foundation to cover a significant new conflict against the Islamic State. This transformation of the AUMF is one of the most remarkable legal developments in American public law in the still-young twenty-first century, and it will stand as one of President Obama’s primary legal legacies. In addition to establishing this descriptive claim, this Essay considers how the Obama administration has invoked international law in making arguments about the scope of the AUMF. As the Essay explains, although the Obama administration often maintained that international law was an important constraint on its actions, on a range of issues where international law was unsettled it interpreted it in ways that supported presidential discretion and flexibility under the AUMF.
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The author reflects on the issue of advancing a bill to the U.S. Congress which aim to expose Saudi Arabia to a lawsuit in U.S. courts alleging the country's connection in the 9/11 terrorist attack, citing concerns on its implication on diplomatic and economic relation between the countries.
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With this essay, Professor Goldsmith provides a tour of the horizon of the Obama administration's international law record in order to identify the distinctiveness of its approach and to tie it in to some general themes in international and foreign relations law. He describes what is interesting and distinctive about the Obama administration's approach to international law by considering its practices through the lens of the two mechanisms through which a president and his team can influence international law: the interpretation of international law commitments, and the use of tools of diplomacy to contribute to the making of new international agreements.
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Lea Brilmayer, Jack L. Goldsmith & Erin O’Hara, Conflicts of Laws: Cases and Materials (Aspen 7th ed. 2015).
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The books starts with a discussion of traditional approaches to choice-of-law problems, followed by an examination how modern courts and commentators have struggled to formulate more responsive approaches.
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Jack L. Goldsmith, Zivotofsky II as Precedent in the Executive Branch, 129 Harv. L. Rev. 112 (2015).
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Conventional wisdom holds that 9/11 sounded the death knell for presidential accountability. In fact, the opposite is true. The novel powers that our post-9/11 commanders in chief assumed—endless detentions, military commissions, state secrets, broad surveillance, and more—are the culmination of a two-century expansion of presidential authority. But these new powers have been met with thousands of barely visible legal and political constraints—enforced by congressional committees, government lawyers, courts, and the media—that have transformed our unprecedentedly powerful presidency into one that is also unprecedentedly accountable. These constraints are the key to understanding why Obama continued the Bush counterterrorism program, and in this light, the events of the last decade should be seen as a victory, not a failure, of American constitutional government. We have actually preserved the framers’ original idea of a balanced constitution, despite the vast increase in presidential power made necessary by this age of permanent emergency.
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On Friday, an American drone flying over northern Yemen killed Anwar al-Awlaki, a leader of Al Qaeda in the Arabian Peninsula -- a Qaeda affiliate. Mr. Awlaki helped support an attempted attack on a Detroit-bound flight in 2009 and had been linked to other attempted attacks in the United States.
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THE Obama administration wants to show that federal courts can handle trials of Guantanamo Bay detainees, and had therefore placed high hopes in the prosecution of Ahmed Khalfan Ghailani, accused in the 1998 bombings of American embassies in East Africa. On Wednesday a federal judge, Lewis Kaplan of the United States District Court in Manhattan, made the government's case much harder when he excluded the testimony of the government's central witness because the government learned about the witness through interrogating Mr. Ghailani at a secret overseas prison run by the C.I.A.
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Under international law, official-capacity suits brought against a foreign state’s officers are treated as suits against the state itself and thus as subject to the state’s immunity, even in suits alleging human rights abuses. This immunity regime differs from the immunity regime that applies in the United States in suits brought against state and federal officials for violations of federal law. Despite the federal government’s sovereign immunity and the immunity of state governments under Eleventh Amendment jurisprudence, courts often allow suits against federal and state officers for their official actions. This essay attempts to explain why the immunity rules differ between the two regimes. We begin by showing that the differential treatment of foreign and domestic officer suits has deep roots in British and American common law. We then show that Congress has not acted to alter this common law backdrop, and we explain the significance of this fact. Finally, we discuss functional reasons for the long-time differential treatment of suits against domestic and foreign officials.
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Our economy, energy supply, means of transportation and military defenses are dependent on vast, interconnected computer and telecommunications networks. These networks are poorly defended and vulnerable to theft, disruption or destruction by foreign states, criminal organizations, individual hackers and, potentially, terrorists. In the last few months it has been reported that Chinese network operations have found their way into American electricity grids, and computer spies have broken into the Pentagon's Joint Strike Fighter project.
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Curtis A. Bradley & Jack L. Goldsmith, Rights Case Gone Wrong: A Ruling Imperils Firms And U.S. Diplomacy, Wash. Post, Apr. 19, 2009, at A19.
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Features: Reorganizes the material into three thematic parts, concerning the government institutions that interact with foreign relations law, the role of international law in the U.S. legal system, and the legal issues associated with ...
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For thirty years, international human rights litigation in U.S. courts has developed with little attention to a lurking doctrinal objection to the entire enterprise. The paradigm international human rights case involves a suit against a foreign government official for alleged abuses committed abroad under color of state law. A potentially dispositive objection to this litigation is foreign sovereign immunity. The Foreign Sovereign Immunities Act (FSIA) creates presumptive immunity for foreign states and has no exception that would cover human rights cases. Many courts have assumed that the FSIA has no relevance to human rights suits as long as they are directed against state officials rather than the state itself. Recently, however, courts have begun to reject this assumption, and the issue is now before the Supreme Court in Yousuf v. Samantar. This essay makes two contributions to the debate over whether the FSIA applies to suits against individual foreign officials. First, it shows that, contrary to what some courts have assumed, suits against individual officials fall naturally within the plain language of the FSIA’s immunity provisions. Second, it shows that the international law of state immunity, which is relevant to the proper interpretation of the FSIA in several ways, supports this construction. Combining these and other points, the essay concludes that the FSIA confers presumptive immunity in suits against state officials, including former state officials, for their official acts committed while in office, and that this immunity applies even in human rights cases. This conclusion, if accepted, would narrow the scope of human rights litigation in U.S. courts, but it would not affect other legitimate mechanisms of human rights accountability.
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Six years after the 9/11 attacks, U.S. policy concerning the detention of alleged terrorists remains legally uncertain and politically contested. The Bush administration has used three different mechanisms--traditional civil trials, military commissions, and military detentions--to justify the detention of terrorists, and not always in an obviously principled or coherent fashion. Congress has legislated with respect to military commissions in the Military Commissions Act of 2006. But despite numerous reform proposals, Congress has declined to address the more consequential issue of military detention without trial in any detail or to address the proper relationship among the three detention mechanisms. The Supreme Court has continued its biannual consideration of detention issues by granting certiorari in Boumediene v. Bush, a case challenging the Military Commissions Act of 2006. But there is little prospect that Boumediene will lay the detention debate to rest...
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The author's duty as head of the Office of Legal Counsel was to advise President Bush what he could and could not do...legally. The author took the job in October 2003 and began to review the work of his predecessors. Their opinions were the legal framework governing the conduct of the military and intelligence agencies in the war on terror, and he found many—especially those regulating the treatment and interrogation of prisoners—that were deeply flawed. The author is a conservative lawyer whose unflinching insistence that we abide by the law put him on a collision course with powerful figures in the administration. This book provides his analysis of parallel legal crises in the Lincoln and Roosevelt administrations, which shows why Bush's apparent indifference to human rights has damaged his presidency and, perhaps, his standing in history.
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This book tells the story of the Internet's challenge to governmental rule in the 1990s, and the ensuing battles with governments around the world. It's a book about the fate of one idea - that the Internet might liberate us forever from government, borders, and even our physical selves. We learn of Google's struggles with the French government and Yahoo's capitulation to the Chinese regime; of how the European Union sets privacy standards on the Net for the entire world; and of eBay's struggles with fraud and how it slowly learned to trust the FBI. In a decade of events the original vision is uprooted, as governments time and time again assert their power to direct the future of the Internet.
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National boundaries have survived in the virtual world--and allowed national laws to exert control over the internet.
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Jack L. Goldsmith, Justice Jackson's Unpublished Opinion in Ex parte Quirin, 9 Green Bag 223 (2006).
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In this response, the authors address criticisms of their 2005 book, "The Limits of International Law," identifying points of agreement, clarifying some of their positions, and responding to major criticisms. They also outline what appears to be an emerging consensus about the appropriate path of international law scholarship.
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This Essay identifies and analyzes the President's completion power: the President's authority to prescribe incidental details needed to carry into execution a legislative scheme, even in the absence of congressional authorization to complete that scheme. The Essay shows that the completion power is a common explanation for very different presidential powers, including the administration of a presidential statute, prosecutorial discretion, and the use of force abroad without express congressional authorization. Maintaining that the widespread use of the completion power is a partial vindication of Chief Justice Vinson's neglected dissent in the Youngstown Steel Seizure case, this Essay argues that the completion power sheds light on a structural symmetry that cuts across Articles I, II, and III of the Constitution--namely, that each of the three branches has some degree of inherent power to carry into execution the powers conferred upon it. The Essay also examines normative questions about the scope and limits of the power.
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In this book, Jack Goldsmith and Eric Posner argue that international law matters, but that it is less powerful and less significant than public officials, legal experts, and the media believe. International law, they contend, is simply a product of states pursuing their interests on the international stage. It does not pull states towards compliance contrary to their interests, and the possibilities for what it can achieve are limited. This book has important implications for debates about the role of international law in the foreign policy of the United States and other nations.
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George Orwell's Nineteen Eighty-Four is among the most widely read books in the world. For more than 50 years, it has been regarded as a morality tale for the possible future of modern society, a future involving nothing less than extinction of humanity itself. Does Nineteen Eighty-Four remain relevant in our new century? The editors of this book assembled a distinguished group of philosophers, literary specialists, political commentators, historians, and lawyers and asked them to take a wide-ranging and uninhibited look at that question. The editors deliberately avoided Orwell scholars in an effort to call forth a fresh and diverse range of responses to the major work of one of the most durable literary figures among twentieth-century English writers.
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Since September 11, the United States has mobilized enormous military, political, and legal resources to combat the threat of terrorism. This paper examines one component of these efforts: civil suits for acts of terrorism. We analyze current U.S. law governing civil actions against terrorists, consider the strengths and weaknesses of such actions, and propose alternative reforms. The paper proceeds in four parts. Part I describes the central pivot around which the doctrinal issues turn - the problem of state action. Part II analyzes U.S. law governing civil litigation against alleged terrorists who do not implicate the Foreign Sovereign Immunities Act ("FSIA"). Part III analyzes U.S. law governing civil litigation against alleged terrorists who do implicate the FSIA. Part IV discusses the policy tradeoffs of civil actions against terrorists, considers the strengths and weaknesses of current law in light of these policy issues, and analyze several legal reforms.
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This essay critiques the "cosmopolitan duty" argument that is raised in criticizing the United States for its failure to take affirmative steps that would help other nations and their peoples. This argument maintains that the United States should ratify global treaties and intervene more vigorously to stop human rights abuses, even if doing so would lower net U.S. welfare. This essay argues that underappreciated theoretical, practical, and moral factors limit the duty of liberal democracies to engage in cosmopolitan action, and that there cannot be a coherent ideal of liberal democracies' cosmopolitan duties unless these realistic limits on what liberal democracies can do is understood. However, this essay does not criticize the cosmopolitan stance per se; rather, it suggests ways that cosmopolitan sentiments can be more fully realized by being more realistic.
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