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Jack Goldsmith

  • At HLS, DOJ’s top national security lawyer discusses U.S. vulnerability to cyberterrorism

    December 8, 2015

    John P. Carlin ’99, assistant attorney general for National Security, spoke last week at Harvard Law School on the National Security Cyber Threat, at an event hosted by the Harvard National Security Journal.

  • Obama Quietly Signs Guantanamo Freeze Into Law — But Hints at Executive Action

    December 2, 2015

    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.”

  • ‘The long war’ is being waged in the passive voice

    November 25, 2015

    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.

  • The Paris Attacks Will Really Complicate Obama’s Plan to Close Guantanamo

    November 20, 2015

    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."

  • Jack Goldsmith: Obama’s Failing National Security Legacy

    November 16, 2015

    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.

  • Harvard Law Review releases special bicentennial edition 2

    Harvard Law Review releases Supreme Court issue

    November 10, 2015

    The Harvard Law Review today published its annual Supreme Court issue, featuring discussion and analysis of the Court’s 2014–15 Term. Following a tradition dating back over a half century, the issue provides a definitive look at the state of constitutional law.

  • Growing from all branches of the Armed Forces: A look at this year’s military service members

    November 9, 2015

    Harvard students who have served in the various branches of the Armed Forces represent a diverse range of backgrounds and experience, but all have at least one thing in common: a profound dedication to serving the nation, under the most perilous of circumstances.

  • Donald Trump’s Line on Iraq Is the Harvard of Harvard Comparisons

    November 3, 2015

    Describing something as the Harvard of its field is usually a compliment. But that wasn’t quite Donald Trump’s intent when he called Iraq the “Harvard of terrorism” during a recent appearance on CNN...Harvard Law Professor and terrorism expert Jack Goldsmith – perhaps the person best equipped to respond to the presidential candidate’s analogy – said he had no words for the analogy. “It is a silly comment,” he wrote by email.

  • Guantánamo Is Leaving Obama With Choices, Neither of Them Simple

    November 2, 2015

    As President Obama approaches his final year in power, a political impasse over the Guantánamo prison appears increasingly likely to force him to choose between two politically unsavory options: Invoke executive power to relocate the remaining detainees in defiance of a statute, or allow history to say he never fulfilled his promise to shutter the prison....Against that backdrop, Jack Goldsmith, a Harvard Law School professor and former Justice Department lawyer in the George W. Bush administration, said Mr. Obama was heading toward a dilemma at the end of his term. “Not closing Gitmo eight years after he pledged to do so would be a failure for his legacy, plus whatever continuing costs it has to national security in his eyes,” Mr. Goldsmith said. “But the only way to close it is to use an extraordinarily aggressive interpretation of executive power to act against the will of Congress and not obviously in a way that the American people support, just as he is walking out the door.”

  • The misguided, condescending letter from Republican senators to Iran

    March 10, 2015

    As first reported by Bloomberg's Josh Rogin, a group of 47 Republican senators signed a letter addressed to "the leaders of the Islamic Republic of Iran," warning them not to be too optimistic about ongoing negotiations with the Obama administration over Tehran's nuclear program...On the Lawfare blog, Harvard Law School professor Jack Goldsmith describes the letter as "embarrassing," because it's technically wrong: The letter states that “the Senate must ratify [a treaty] by a two-thirds vote.” But as the Senate’s own web page makes clear: “The Senate does not ratify treaties."

  • A law for war

    February 12, 2015

    A political eternity ago, back in May 2013, President Barack Obama felt able to boast that the core of al-Qaeda in Pakistan and Afghanistan was on a path to defeat, allowing America to declare an end to the global war on terror that began after the September 11th 2001 attacks...Jack Goldsmith, a former Pentagon lawyer who teaches national-security law at Harvard Law School, says the draft AUMF amounts to a striking expansion of presidential authority. The 2001 AUMF is already being interpreted broadly to allow strikes on IS. But rather than supersede that old authorisation or place time limits on its validity, this new 2015 AUMF “builds on and adds to it”, he says.

  • Obama’s Dual View of War Power Seeks Limits and Leeway

    February 12, 2015

    In seeking authorization for his six-month-old military campaign against the Islamic State terrorist group, President Obama on Wednesday did something that few if any of his predecessors have done: He asked Congress to restrict the ability of the commander in chief to wage war against an overseas enemy...“In a way, that’s been the story of his presidency,” said Jack Goldsmith, a Harvard Law School professor who, as a top lawyer in Mr. Bush’s Justice Department, was at the heart of the last administration’s debates about presidential power. “He’s been talking during his entire presidency about wanting to restrain himself. But in practice, he’s been expanding his power.”

  • No One’s War

    January 22, 2015

    Tuesday's State of the Union address was the first since 2001 to not mention al-Qaeda. It opened with the promise of a post-post-9/11 era...Jack Goldsmith, a Harvard Law professor and former Bush administration official, believes Obama's call for Congress to authorize force against ISIS isn't sincere. Writing the morning after the State of the Union, he noted that the administration hasn't submitted draft language for a new AUMF to Congress, as the Bush administration did in 2001. But he also speculated that the U.S. government's expansive use of the 2001 AUMF since 9/11 may have had a chastening effect on Obama, who is wary of releasing another vaguely worded authorization into the wild:

  • 4 Theories Regarding the Sony Hack

    January 9, 2015

    It’s been a little over two weeks since the U.S. government blamed North Korea for the cyber-attack against Sony Pictures, and Cybersecurity firms and hackers have continued to express doubts as to the legitimacy of these claims. Two cyber security firms, Norse Corporation and Cloud Flare, conducted independent investigations into the hack. Their results are in stark contrast to the FBI’s claim that Pyongyang carried out the hack....After examining the malware used to infiltrate the studio, the FBI said it found similarities between that software and software used in previous cyber-attacks carried out by North Korea. But Jack Goldsmith, a Harvard Law Professor, who serves on the Hoover Institution Task Force on National Security and Law, is unconvinced.

  • A stylized graphic of two scissors cutting the red stripes of the American flag

    Faculty Sampler: Short takes from recent op-eds

    November 24, 2014

    “How to Deregulate Cities and States” Professor Cass R. Sunstein ’78 and Harvard economics Professor Edward Glaeser The Wall Street Journal Aug. 24, 2014 “In 2011…

  • Five principles that should govern any U.S. authorization of force

    November 19, 2014

    An op-ed by By Jack Goldsmith, Ryan Goodman and Steve Vladeck. President Obama has stated that he wants “to begin engaging Congress” over a new Authorization for Use of Military Force (AUMF) against the Islamic State and also that he wants to “right-size and update” the 2001 AUMF “to suit the current fight, rather than previous fights.” It appears that Congress, too, is finally getting serious about putting U.S. counterterrorism operations on a contemporary and more rigorous statutory footing. There are many politically contested questions about how the government should accomplish these goals — about, for example, whether U.S. ground troops should be banned from Syria and Iraq, how the fight against the Islamic State should be conducted consistent with U.S. policy against Syrian dictator Bashar al-Assad and what rules should govern the targeted killing of U.S. citizens abroad...We differ among ourselves on some questions. We nonetheless believe that, however they are resolved, an important foundational consensus can be reached — across branches and parties — on five core principles that should guide any new or revised authorization of force related to counterterrorism.

  • Congress dishonors veterans by dodging debate over Obama’s war on Islamic State

    November 13, 2014

    If Congress got what it deserved, the Capitol Dome would never have been permitted to be the backdrop for Tuesday’s Concert for Valor on the Mall honoring Veterans Day. Why? The 535 lawmakers who work there have cravenly dodged their constitutional responsibility to make the tough decision about whether President Obama is right to lead the country into war against the Islamic State in Iraq and Syria...Harvard Law professor Jack Goldsmith, a former special counsel to the Defense Department, said that when he testified before Congress last year, he was stunned by key senators’ lack of knowledge about U.S. military operations, such as drone strikes in Yemen, Somalia and Pakistan. “It was remarkable how little the members of the Senate Armed Services Committee knew about where we were fighting and against whom,” Goldsmith said. “They don’t even know where it’s going on.”

  • Obama, Not Bush, Is the Master of Unilateral War

    October 15, 2014

    An op-ed by Jack Goldsmith and Matthew Waxman. Late in the summer of 2013, President Barack Obama pulled back from his announced plans to use unilateral military force against Syria and stated that he would instead seek Congress’s approval. “I believe our democracy is stronger when the president acts with the support of Congress,” and “America acts more effectively abroad when we stand together,” he said. “This is especially true after a decade that put more and more war-making power in the hands of the president … while sidelining the people’s representatives from the critical decisions about when we use force.” Congress never authorized Obama to use force in Syria, and Russian President Vladimir Putin gave him an out by brokering a deal to eliminate Syria’s chemical weapons. But Obama’s statement on the need for congressional consent, and the noted contrast with his predecessor, are nonetheless clarifying in their irony.

  • In Syria, Obama stretches legal and policy constraints he created for counterterrorism

    September 24, 2014

    After spending nearly six years of his presidency installing a series of constraints on U.S. counterterrorism operations, President Obama has launched a broad military offensive against Islamist groups in Syria that stretches the limits of those legal and policy enclosures....“There are a lot of lines that he’s drawn in the sand. Just about every one of which he seems to have crossed now,” said Jack Goldsmith, a Harvard University law professor and senior Justice Department official in the Bush administration, who attributed the outcome in part to the nature of Obama’s job. “The reality is that security threats are his first responsibility,” Goldsmith said. “Between past statements and pretty-sounding principles on the one hand, and the reality of security threats on the other, every president will always address the security threats and discard the principles.”

  • Law Professors Talk Obama’s ISIS Strategy

    September 23, 2014

    Two Harvard Law School professors critiqued the legal grounds of President Obama’s military strategy against the Islamic State of Iraq and Syria during a lecture Monday. Speaking to an audience of nearly 200 people at the Law School, professors Jack L. Goldsmith and Noah R. Feldman ’92 analyzed the Obama administration’s legal justifications for the increased use of U.S. military force against ISIS.

  • Congress’s Inaction Could Be Legal Basis for Stronger Executive War Powers

    September 19, 2014

    As lawmakers grapple with President Obama’s claim that he already has congressional authorization for airstrikes against the Islamic State, legal specialists are saying that even legislative inaction could create a precedent leaving the executive branch with greater war-making powers....Still, the Obama administration’s broad claims, and the fact that “Congress has done nothing to push back,” may become a precedent that the executive branch could use for future interpretations of statutory authorizations to use military force, said Jack Goldsmith, a Harvard Law School professor and former Justice Department official.