Jack Goldsmith

Until this past weekend, it was easy to construe FBI Director James Comey’s extraordinary intrusions into the presidential campaign this year as consistent with a career defined by bureaucratic turf protection, and defensiveness of the institutions he’s served. These aren’t always the most high-minded or important principles, but they’ve helped distinguish him from scores of unprincipled opportunists who’ve held and hold positions of high power in our government...As his former Justice Department colleague Jack Goldsmith explains, Comey hasn’t really “reopened” the Clinton email investigation. “[T]he language Comey used in his letter suggests something less than a full reinvigoration of the investigation…something more like a preliminary inquiry to figure out what, if any, aspects of the earlier investigative conclusions might require revisiting.”

An op-ed by Jack Goldsmith. Three years ago, the Guardian published the first story based on the huge archive of documents Edward Snowden stole from the National Security Agency while working as an NSA contractor. Then–attorney general Eric Holder’s Justice Department quickly charged Snowden with felonies for theft of government property and mishandling classified information. This May, however, Holder praised Snowden. “I think that he actually performed a public service by raising the debate that we engaged in and by the changes that we made,” Holder said. This seems like an improbable claim. Snowden compromised scores of surveillance techniques, representing billions of dollars of investments over many years. U.S. firms that secretly cooperated with government intelligence agencies stopped doing so to the extent they could, and public defiance became the business-compelled norm.

The Senate and the House are expected to vote this week on whether to override President Obama’s veto of a bill that would allow families of the victims of the Sept. 11 attacks to sue Saudi Arabia for any role it had in the terrorist operations. The lawmakers should let the veto stand. The legislation, called the Justice Against Sponsors of Terrorism Act, would expand an exception to sovereign immunity, the legal principle that protects foreign countries and their diplomats from lawsuits in the American legal system. While the aim — to give the families their day in court — is compassionate, the bill complicates the United States’ relationship with Saudi Arabia and could expose the American government, citizens and corporations to lawsuits abroad. Moreover, legal experts like Stephen Vladeck of the University of Texas School of Law and Jack Goldsmith of Harvard Law School doubt that the legislation would actually achieve its goal.

Even if the Russian government was behind the hack of the Democratic National Committee (DNC) and various other political organizations and figures, the US government's options under international law are extremely limited, according to Jack Goldsmith, a Harvard law professor and former US assistant attorney general. Goldsmith, who served at the Justice Department during the administration of George W. Bush and resigned after a dispute over the legal justifications for "enhanced interrogation" techniques, spoke on Tuesday about the DNC hack during a Yale University panel. "Assuming that the attribution is accurate," Goldsmith said, "the US has very little basis for a principled objection." In regard to the theft of data from the DNC and others, Goldsmith said that "it's hard to say that it violates international law, and the US acknowledges that it engages in the theft of foreign political data all the time."

An op-ed by Jack Goldsmith. A “pardon Snowden” campaign was launched Wednesday in conjunction with the Snowden film. Snowden himself made the “moral case” for why he should be pardoned, and Tim Edgar made a much more powerful case. I remain unconvinced. I don’t think the president will, or should, pardon Snowden...But to say that the intelligence community benefited from the Snowden leaks is not to say that the president should pardon Snowden, for the price of the benefits was enormously high in terms of lost intelligence and lost investments in intelligence mechanisms and operations, among other things. Many Snowden supporters pretend that these costs are zero because the government, understandably, has not documented them. But it is naïve or disingenuous to think that the damage to US intelligence operations was anything but enormous.

An op-ed by Jack Goldsmith & Stephen I. Vladeck. President Obama has said he will veto the Justice Against Sponsors of Terrorism Act, a bill that purports to make it easier for 9/11 victims and their families to sue Saudi Arabia in US federal court for its alleged role in indirectly financing the attacks. He would be absolutely right to do so. Reasonable people can disagree over whether giving the 9/11 victims their day in court justifies the diplomatic and foreign relations problems this law would provoke. (In fact, the two of us have disagreed on this issue in the past.) What should be clear to everyone, though, is that the bill Congress actually enacted last week provides virtually no benefits to justify its substantial costs.

The House on Friday approved a bill to allow families of those killed in the Sept. 11, 2001, attacks to sue Saudi Arabia for any role in the terrorist plot, setting up a rare bipartisan showdown with the White House...The bill “is a politically cost-free way for Congress to send a signal of seeming seriousness about terrorism on the dawn of the 15th anniversary of 9/11,” said Jack Goldsmith, a professor of law at Harvard who served in the Department of Justice under President George W. Bush. “Congress itself could have investigated lingering questions about 9/11, but instead is delegating those tasks to the unelected judiciary. The costs of the law will be borne by courts, which are an awkward place to ascertain Saudi responsibility for 9/11, and especially the president, who will have to deal with the diplomatic fallout with Saudi Arabia and other nations.”

An op-ed by Jack Goldsmith and Matthew Waxman. Tomorrow is the fifteenth anniversary of the beginning of the longest armed conflict in American history. But another significant anniversary in the “Forever War” is today, September 10, for two years ago on this date President Obama announced his “comprehensive and sustained counterterrorism strategy” to defeat the Islamic State. The United States had been bombing the Islamic State sporadically throughout the summer of 2014, under the President’s Article II Commander-in-Chief power. But at about the time on September 10 when President Obama announced the United States’ ramped-up efforts “to degrade and ultimately destroy” the Islamic State, he also shifted the legal basis for the effort to the 2001 Authorization to Use Military Force (AUMF) that had been the foundation for the conflict against the Taliban, al Qaeda, and Associates since a few days after the 9/11 attacks. Obama “welcome[d] congressional support for this effort” in that address while making clear that he did not require it. One month later, the Pentagon named the campaign “Operation Inherent Resolve.”

By Jack L. Goldsmith: The 'Forever War' has posed enormous challenges to our constitutional system, which assumes that war will be exceptional, not perpetual. Continue Reading »

Analysts largely agree that the hacking of various arms of the Democratic Party, and the release of hacked emails that deepened divisions within the party just ahead of its presidential convention, is a big deal. But there’s less agreement about whether what we’re witnessing is fundamentally old or new. The answer to that question could shape not just the Obama administration’s response to the hack, but international norms on the limits to foreign influence in democratic elections...As U.S. authorities investigate who was behind the hack, legal scholars and cybersecurity experts have been scrambling to sort the old from the new. Jack Goldsmith, a Harvard Law professor and former George W. Bush administration official, says there’s something novel about the mechanisms and scale of the intervention, in that it seems to have involved not just cyber operations, but also partnering with a third-party organization to publish a massive amount of data. That last step is what made ordinary espionage extraordinary—and what potentially invites more ambitious interventions in American democracy in the future. The U.S. government, he fears, may be unprepared for the onslaught.

...To discuss the DNC hack, I corresponded over email with Jack Goldsmith, a Harvard Law School professor and fellow at Stanford University’s Hoover Institution...But the truth is that there is no public evidence whatsoever tying Russia to the hack. Attribution for cyberoperations of this sort is very tricky and tends to take some time. Even if the hack can be linked to computers in Russia, that does not show that the hack originated there (as opposed to being routed through there). And even if it originated in Russia it does not show who was responsible. That said, it would not be surprising if the Russians were behind this.

The F.B.I. investigation into the suspected state-sponsored Russian theft of emails and documents from the Democratic National Committee’s computer networks has expanded to determine if aides and organizations considered close to Hillary Clinton were also attacked, according to federal officials involved in the investigation...“There is nothing new in one nation’s intelligence services using stealthy techniques to influence an election in another,” Jack Goldsmith, a professor at Harvard Law School, wrote on the Lawfare blog on Monday. He noted that the United States had engaged in covert actions to influence elections in Indonesia, Italy, Chile and Poland during the Cold War. But he added that “doing so by hacking into a political party’s computers and releasing their emails does seem somewhat new.” It could foretell an era of data manipulation, in which outsiders could tinker with votes, or voter data, or “lose” electronic ballots.

An op-ed by Jack Goldsmith. On Tuesday FBI Director Jim Comey stated that Hillary Clinton and her State Department colleagues were “extremely careless in their handling of very sensitive, highly classified information,” but concluded that “[a]lthough there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.” It is highly unusual for the FBI Director to publicly summarize the nature and conclusions of a major investigation, and then announce the FBI’s recommendation to the Justice Department that the focus of the investigation should not be prosecuted. So why did Comey do it?

War poses special threats to democracy, but the most pernicious challenges often come from within. History reveals that nothing has more power to undermine democratic institutions than the boundless fear of a foreign enemy. Rogue Justice is Karen Greenberg’s splendid new book about all the ways liberty was assaulted in America in the decade after the cataclysm of 11 September 2001. In these years, she writes, America came “perilously close” to “losing the protections of the bill of rights”...After Ashcroft made Jack Goldsmith the head of the Office of Legal Counsel in the Justice Department, Goldsmith concluded that Yoos’s memo seemed “designed to confer immunity for bad acts” and made arguments “wildly broader than was necessary to support what was actually being done”.

A 28-year-old Army officer on Wednesday sued President Obama over the legality of the war against the Islamic State, setting up a test of Mr. Obama’s disputed claim that he needs no new legal authority from Congress to order the military to wage that deepening mission...Jack Goldsmith, a Harvard Law School professor who has criticized the administration’s use of the 2001 war authorization to cover the Islamic State but is not involved in the suit, said the case was significant because it could overcome a major hurdle to getting a court to review that theory. But Mr. Goldsmith said Captain Smith faced many other hurdles, including precedents that suggest that when Congress appropriates money for a conflict it has implicitly authorized it. He also predicted that if a court did rule that the conflict was illegal, Congress would authorize the fight to continue – perhaps giving it broader scope than Mr. Obama has wanted. “We’re in a terrible equilibrium where Congress doesn’t want to step up and play its part in this military campaign and so the president has basically gone forward and done what he thinks he needs to do,” Mr. Goldsmith said. “It would be a lot better for everyone, including the president, if Congress got more involved.”

An op-ed by Jack Goldsmith and Curtis Bradley. There has been much debate about whether a bill advancing through Congress that aims to expose Saudi Arabia to lawsuits in American courts for its alleged connection to the 9/11 attacks would unduly harm diplomatic and economic relations between the two countries. But the bill’s potential for harm extends far beyond bilateral relations with one ally. It would also violate a core principle of international law, and it would jeopardize the effectiveness of American foreign aid and the legitimacy of the United States’ actions in the war on terrorism.

An op-ed by Jack Goldsmith. Last week the State Department’s top lawyer, Brian Egan, gave an important but underreported speech that marked the final stage of the Obama administration’s normalization of once-controversial Bush-era doctrines about the conduct of war. Before a gathering of geeky international law-loving lawyers in Washington, D.C., Egan announced the Obama administration’s official embrace of the same preemption doctrine that justified the invasion of Iraq. Egan’s speech marks the culmination of a continuity project that began, to many people’s surprise, at the beginning of Barack Obama’s first term. Since 2009, Obama has adopted the notion of a global war against al-Qaeda and associates; he expanded the legal basis of that war to include ISIS; he embraced military detention without trial, military commissions, state secrets and large-scale secret surveillance; and he ramped up drone strikes, deployment of Special Forces and cyberattacks.

An op-ed by Jack Goldsmith. On Thursday the Justice Department indicted seven Iranians for distributed denial of service (“DDoS”) attacks in 2011-2013 against 46 companies (mostly in the financial sector). The indictment alleges that Iran’s Revolutionary Guard sponsored the attacks. David Sanger of the New York Times reports that intelligence experts have long speculated that attacks “were intended to be retaliation for an American-led cyberattack on Iran’s main nuclear enrichment plant.” Sanger adds that “Iran’s computer networks have been a primary target of the National Security Agency for years, and it is likely that in penetrating those networks — for intelligence purposes or potential sabotage — the N.S.A. could have traced the attacks to specific computers, IP addresses or individuals.” Assuming these experts’ speculations are right, the Iranians were indicted for retaliating against U.S. cyberattacks on Iran’s nuclear weapons infrastructure, and they got caught because the NSA had penetrated Iranian networks. On its face this seems hypocritical. Might the U.S. indictments nonetheless be justified?