Jack Goldsmith

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?

Is Supreme Court nominee Merrick Garland a judicial progressive or a moderate? One way to judge is to look at his many opinions that defer to administrative agencies and that are a hallmark of his jurisprudence during his nearly 20 years on the D.C. Circuit Court of Appeals. In disputes over union power, his opinions nearly always benefit unions. According to the onlabor.org website, which is run by Harvard Law professors Benjamin Sachs and Jack Goldsmith, Judge Garland wrote the majority opinion in 22 cases that considered appeals of decisions made by the National Labor Relations Board. In 18 of these decisions, Judge Garland sided with the NLRB’s judgment against a company for unfair labor practices. In all of those cases, the blog notes, “deference to the NLRB has had favorable consequences for labor and unions.”

An op-ed by Jack Goldsmith. One unmistakable sign of the stellar reputation of Merrick Garland, President Obama’s Supreme Court nominee, is the praise he received from the President’s most conservative critics. Ed Whelan, an influential opponent of President Obama’s judicial nominees, expressed “very high regard” for Garland, whose “intellect and decency” he admires. His National Review colleague Andrew McCarthy, another sharp critic of the President’s judicial choices, thinks “very highly” of Garland and says “there is no doubting Garland’s intellect and integrity.” Both men, however, oppose Garland and urge the Senate not to consider the nomination. And Senate majority leader Mitch McConnell announced that Garland would not in fact receive a hearing.

Even by the standards of an epically polarized Washington, the political talk about President Obama’s effort to close the Guantánamo Bay prison is starkly divorced from facts. On both sides of the debate, many claims collapse under scrutiny....“Both the Republicans and the president are significantly exaggerating the threats and harms posed by the other side’s positions,” said Jack Goldsmith, a top Justice Department official in the George W. Bush administration, now at Harvard Law School. “The moral and national security arguments on both sides mostly serve other agendas — political advantage for the Republicans, and legacy burnishing for the president.”

But, for these reasons, several prominent legal scholars—Jack Goldsmith of Harvard Law School, Ryan Goodman of New York University Law School and Steve Vladeck of American University's Washington College of Law—have suggested that any new authorization of force against ISIS include a sunset provision which would "force the next Congress and president to decide after several years of experience whether and how the authorizations should be updated, or whether, if conditions warrant, they should be allowed to expire."

An op-ed by Jack Goldsmith. For months the Obama administration has raised the stakes on its seven-year pledge to close the Guantanamo Bay detention center. In November three former senior Obama administration attorneys argued that the president had the constitutional power to ignore the legal restrictions Congress has placed on bringing dangerous detainees to the United States. Presidential aides suggested that the White House was taking the argument seriously. And then last week, in preview interviews for the President’s State of the Union address, Chief of Staff Denis McDonough put down a marker about Guantanamo.

Political scientists need a new sub-specialty to describe the end-of-year extravaganzas that influence peddlers and special interests have combined to make a Capital Christmas tradition: the racket of wholesale plundering of the government's treasury. Paraphrasing Willie Sutton, that's where the (tax-farmed and public-debt) money is. ... And then, barely worth remarking in the Bush/Obama permanent state of discretionary imperial war, there is a constitutionally required declaration of warhidden in there somewhere, according to Harvard's expert on such things, Jack Goldsmith. "Congress is not calling its funding an authorization for the use of force against ISIL, much less debating the authorization. But make no mistake: The funding to continue the war against ISIL is an authorization of force against ISIL, albeit a quiet one, designed not to attract attention." "Authorization of force" is bureaucratic euphemism for "declaration of war."

Congress has avoided authorizing the war against the self-described Islamic State for nearly a year and a half, but it had no problem voting Friday to spend billions more on it. Wait -- did lawmakers also just vote to authorize it? Jack Goldsmith, a Harvard Law School professor who previously served in the Justice Department's Office of Legal Counsel, says that because lawmakers voted for a $1.1 trillion government spending bill that clearly appropriates money for the fight against the Islamic State, they also voted to approve the war itself. Goldsmith explained his reasoning in a Thursday post on the legal blog Lawfare: A 2000 Justice Department opinion states that Congress can "authorize hostilities through its use of the appropriations power" if a spending bill is directly focused on a specific military action. The year-end spending bill that lawmakers passed Friday includes $58.6 billion for Overseas Contingency Operations for military activities. House Appropriations Committee chairman Hal Rogers (R-Ky.) has specifically said some of those funds will be used to "combat the real-world threat of the Islamic State of Iraq and the Levant (ISIL)." That means that, at least for the period of time covered by the funding bill -- it goes through Sept. 30, 2016 -- lawmakers just voted to authorize the war against the Islamic State, Goldsmith said.

When President Obama vetoed the 2016 defense authorization bill five weeks ago — in part because it wouldn’t let him close the military prison at Guantanamo — he did it with broad publicity and a photo op. Last week, he quietly signed the $607 billion bill, along with five others, just before the Thanksgiving holiday. But in his statement accompanying his signature, he signaled the fight’s not over yet. ... Obama might, for example, issue an “at the buzzer” executive order in January 2017. “But can he really do it as he’s walking out the door? I don’t think so,” said Harvard law professor Jack Goldsmith, who served in the Bush administration as assistant attorney general in the Office of Legal Counsel from 2003 to 2004, and before that, special counsel to the Defense Department. Goldsmith told Defense One the administration would have to start preparations in “early 2016, if not sooner…You can’t just put people on an airplane on Jan. 18.”

After the terror in Paris, most Democrats and Republicans agree that America should end the Islamic State. Even the socialist Democrat, Bernie Sanders, has called on America to lead a coalition to rid the world of this caliphate. ...So far, Congress has been too divided on exactly what it wants this war to be. When Obama presented his AUMF in February, Congress couldn't agree on key questions like the war's duration, scope and ground troops. But this was largely what Harvard Law professor Jack Goldsmith has called a "faux debate." Obama never proposed scrapping the 2001 AUMF, which already gave him and his successors broad authorities to wage a war on terror with no temporal or geographic limit. Nor did Obama's AUMF limit his Article II constitutional authority as commander in chief of the military. Goldsmith says the safest course would be to use the 2001 AUMF as a model, but include the Islamic State in addition to al-Qaida.

President Barack Obama repeatedly promised to close the Guantanamo Bay detention facility in Cuba after he took office in 2009, but that hasn't worked out so well. Now, as he approaches his final year in office in the wake of last week's terror attacks in Paris, his pledge seems as doomed as ever — but he insists he's undeterred...In testimony this week before the House Judiciary Committee, US Attorney General Loretta Lynch said that she is unaware of any effort by Obama to act unilaterally on Guantanamo. In response, Jack Goldsmith, the former head of the Justice Department's Office of Legal Counsel, which provides legal guidance to the president, wrote on the blog Lawfare, "Nothing in Lynch's remarks would preclude the President from later concluding that the transfer restrictions are unconstitutional."

An op-ed by Jack Goldsmith. Friday’s gruesome terrorist attacks by the Islamic State in the heart of Paris mark the latest setback in President Obama’s seven-year effort to end the wars and reverse the counterterrorism policies of his predecessor. Many will claim that the attacks are traceable to the President’s failed policies against the Islamic State, and to his related hesitancy in managing the implosion of Syria. The day before the attacks, the President sanguinely told ABC’s George Stephanopoulos that the Islamic State had been “contained.” That claim having been repudiated in dramatic fashion, the President immediately faced pressure to ratchet up the fight against the Islamic State.