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February 25, 2013 | Defining Ideas (Hoover Institution)
January 23, 2013 | Advancing a Free Society
July 19, 2012 | Defining Ideas (Hoover Institution)
June 22, 2012 | New Republic
Why SCOTUS leaks less than the CIA...
April 26, 2012 | Washington Post
As the general-election campaign comes into focus, conventional wisdom holds that President Obama is untouchable on national security. But the presidential politics of counterterrorism are less clear than they may seem...
March 21, 2012 | Slate
At least one good thing came out of the war on terror: We now know that military commissions are the right solution to a tough problem...
February 16, 2012 | Washington Post
...[O]ur constitutional system of checks and balances has worked extraordinarily well in the last decade to legitimize these policies and to generate a national consensus in support of them...
November 25, 2011 | Washington Post
[A recent Defense Department report to Congress] aims to bolster U.S. deterrence against cyberthreats but, in fact, highlights weaknesses in our deterrence policy...
October 1, 2011 | New York Times
The Obama administration’s decision to order a drone strike against an American citizen in Yemen was legal and justified...
September 18, 2011 | New York Times Magazine
Unilateralism in secret is sometimes necessary at the height of a crisis, and Cheneyism was effective in the short run. But it is disastrous over the medium and long term...
March 21, 2011 | Slate
The president's campaign against Libya is constitutional...
February 11, 2011 | Washington Post
The government's most prudent course is to ignore Assange and focus instead on tightening the lax security safeguards that allowed the leaks to happen...
November 19, 2010 | Washington Post
The Obama administration's critics are missing the point on Ahmed Ghailani...
October 22, 2010 | Washington Post
Woodward calls into question the legitimacy of the U.S. secrecy system...
October 8, 2010 | New York Times
The Obama administration wants to show that federal courts can handle trials of Guantánamo 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...
September 10, 2010 | Washington Post
Nine years after Sept. 11 and 20 months into the Obama presidency, our nation is still flummoxed about what to do with captured terrorists...
August 4, 2010 | Washington Post
Critics of the new Strategic Arms Reduction Treaty (START) warn that it may endanger the United States' capacity to go forward with missile defense. But the treaty, Senate consideration of which has been pushed back to the fall, raises another concern...
May 29, 2010 | Washington Post
The news is filled with scary stories about the insecurity of the computer and telecommunication systems on which our nation's prosperity depends...
March 26, 2010 | Washington Post
The much-criticized cloak of secrecy that has surrounded the Obama administration's negotiation of the multilateral Anti-Counterfeiting Trade Agreement was broken Wednesday. . . .
March 19, 2010 | Washington Post
The Obama administration and its critics are locked in a standoff over whether to try Khalid Sheikh Mohammed and the other alleged Sept. 11 conspirators in a military commission or in federal court. . . .
February 1, 2010 | Washington Post
In a speech this month on "Internet freedom," Secretary of State Hillary Clinton decried the cyberattacks that threaten U.S. economic and national security interests. . . .
December 22, 2009 | Washington Post
Since U.S. forces started taking alleged terrorists to Guantanamo Bay, Cuba, the task of crafting American detention policy has migrated decisively from the executive branch to federal judges. . . .
November 20, 2009 | Washington Post
Reasonable minds can disagree about Attorney General Eric Holder's decision to prosecute Khalid Sheik Mohammed and four other alleged Sept. 11 perpetrators in a Manhattan federal court. . . .
July 1, 2009 | New York Times
OUR economy, energy supply, means of transportation and military defenses are dependent on vast, interconnected computer and telecommunications networks...
June 29, 2009 | Washington Post
December 8, 2008 | Slate
President-elect Barack Obama has made clear that he will close the Guantanamo Bay detention center...
November 26, 2008 | Washington Post
There has been much speculation about how the Obama administration will deal with what many view as the Bush administration's harsh, abusive and illegal interrogation program...
August 13, 2008 | New Republic
In May 1940, defying a congressional ban, President Franklin D. Roosevelt secretly authorized warrantless wiretapping inside the United States...
Blogs
October 17, 2012 | Lawfare
October 3, 2012 | Lawfare
September 20, 2012 | Lawfare
September 11, 2012 | Lawfare
September 11, 2012 | Lawfare
June 13, 2012 | Lawfare
The motivation for the book was to rebut widespread claims that the post-9/11 Terror Presidency is legally unconstrained by showing that the presidency is embedded in a novel web of consequential internal and external legal and related constraints...
June 11, 2012 | Lawfare
Digital tools can help identify a list of possible suspects (which is not nothing), and can sometimes tie together meta-data to reach substantive conclusions or rule out particular defenses. But they cannot typically demonstrate illegal conduct...
June 9, 2012 | Lawfare
Holder appointed U.S. Attorneys Ronald Machen and Rod Rosenstein to “direct[]separate investigations currently being conducted by the FBI.” But he did not say what those investigations are about...
May 31, 2012 | Lawfare
Both the NYT Becker-Shane “Kill List” story and the Klaidman book excerpt have implications for the pending ACLU FOIA suit in CADC, which seeks CIA records on CIA drone strikes...
May 21, 2012 | Lawfare
While there is much at stake here, and while I think the scholars have the better of the legal argument, it is unlikely that a court will rule against the government...
May 10, 2012 | Lawfare
The issue should be how to improve Title 1 of Lieberman-Collins, not whether the government should have a serious role in ensuring that the private sector adequately protects CI...
May 1, 2012 | Lawfare
[Brennan’s speech] strikes me as meeting if not exceeding the administration’s “good government” duty to explain to the American people the legality and justification for and operation of its targeted killing program...But that does not mean the government won’t be forced to disclose more information...
April 23, 2012 | Lawfare
The “review and hearing” process was designed to operate on top of the habeas review process and the other internal review processes for GTMO detainees, and to facilitate release of detainees who were not “a significant threat to the security of the United States"...
April 15, 2012 | Lawfare
An important predicate for the legal and political justification for the U.S. role in the Libya intervention was that the United States, following the initial air attacks in March 2011, would transfer responsibility for operations in Libya to NATO and thereafter play only a secondary, supportive role...
April 5, 2012 | Lawfare
It was not a bad idea because it constituted bullying of the Court. It was a bad idea – at least from the President’s perspective – because it makes it harder for the Justices to rule in favor of the President’s position...
March 27, 2012 | Lawfare
The NGOs and the many other forces (inside and outside the government) that got us to this place deserve credit, and thanks. There are still many open legal issues, of course, but they are all addressable by Article III courts...
March 22, 2012 | Lawfare
Through a robust but messy constitutional process in which no administration or institution got what it originally wanted, we finally see commissions emerging as an effective and legitimate tool of terrorist incapacitation...
March 12, 2012 | Lawfare
I have a new book out today: Power and Constraint: The Accountable Presidency after 9/11. It argues that constitutional checks and balances deeply constrain the national security presidency...
March 7, 2012 | Lawfare
President Obama, at his press conference yesterday, in response to republican candidates’ hawkish calls for a more aggressive posture toward Iran...There is truth in what President Obama says here. And he speaks from experience...
February 20, 2012 | Lawfare
Keller is right that the Wikileaks phenomenon was overblown...But it does not follow that the government is more secretive than ever...
February 4, 2012 | Lawfare
...Russia might have used the veto here even if the Libya intervention never occurred. But at a minimum, the nexus between Libya and Syria that Horton and Mead predicted is clearer than ever...
January 12, 2012 | Lawfare
The WSJ reports that Google is returning to China after its confrontation with the Chinese over Chinese censorship and alleged Chinese hacks into its computer systems led it to shut down its Chinese site, Google.cn, and direct visitors to its Hong Kong site, Google.com.hk...
January 9, 2012 | Lawfare
I worked on a few recess appointments during my time in the Bush administration. Based on a superficial analysis I think the constitutional issues are much closer than the President’s legal critics suggest...
December 14, 2011 | Lawfare
This is not nearly as remarkable as the Libya intervention’s WPR-narrowing, attack-from-a-distance precedent, but it is a small narrowing-in-practice of the WPR nonetheless...
November 21, 2011 | Lawfare
I doubt that the President will blow up the [Defense Authorization Bill]. Too many liberal democrats, including Senate Arms Services Chair Carl Levin, support it, so the president cannot charge political extremism...
November 8, 2011 | Lawfare
In an interview with Reuters, General James Cartwright, who retired a few months ago as the vice chairman of the Joint Chiefs of Staff, maintains that the United States needs to disclose its offensive cyber capabilities in order to enhance the deterrent effect of these capabilities...
November 4, 2011 | Lawfare
There is nothing untoward about the President disregarding a statute that he concludes, based on the advice of subordinates, is unconstitutional...
October 18, 2011 | Lawfare
Schmitt and Shanker [of the NYT] give several reasons why the USG declined to use [offensive cyber-weapons], some of which make more sense to me than others...
October 6, 2011 | Lawfare
Walter Russell Mead argues (via Instapundit) that as a result of the Libya intervention, the world may be “farther from enshrining the duty to protect in international law than we were six months ago...
October 5, 2011 | Lawfare
...I think there is no serious bar to the government revealing more about the legal basis for its action against al-Awlaki in Yemen...
October 3, 2011 | Lawfare
I agree that the administration should release a redacted version of the opinion, or should extract the legal analysis and place it in another document that can be released consistent with restrictions on classified information...
August 10, 2011 | Lawfare
The United States should obviously take whatever steps it can to prevent or slow the damage caused by Chinese cyber-espionage. But I have yet to see any coherent strategy for doing so...
August 4, 2011 | Lawfare
Here is the July 29 opinion in which Judge Brinkema explains why NYT reporter James Risen will not have to testify, in the Jeffrey Sterling leak prosecution, about whether Sterling was Risen’s source for Chapter 9 of State of War and related matters...
June 24, 2011 | Lawfare
Charles Krauthammer today argues for “a new constitutional understanding, mutually agreed to by both political branches, that translates the war-declaration power into a more modern equivalent...”
June 23, 2011 | Lawfare
The Defense Department announced today that Brigadier General Mark Martins, the commander of the Rule of Law Field Force-Afghanistan, will be the Chief Prosecutor in the Office of Military Commissions, beginning around October 1...
June 22, 2011 | Lawfare
I realize that the two Libya Resolutions being considered in the House are more for political than legal effect, but the Resolution that seeks to check the President’s Libya intervention is an especially unfortunate vehicle...
June 21, 2011 | Lawfare
President Obama is in a legal and political pickle concerning his unilateral intervention in Libya...
June 17, 2011 | Lawfare
There are many things to say about this but here are a few quick reactions...
June 16, 2011 | Lawfare
In this long post I analyze the Obama administration’s legal arguments for compliance with the War Powers Resolution...
June 14, 2011 | Lawfare
The problem with Boehner’s letter is that it assumes that the WPR clock for terminating the introduction of forces into hostilities is 90 days long...
June 9, 2011 | Lawfare
Most of the legal discussion about Libya intervention has focused in recent weeks on the War Powers Resolution. But the constitutional issue of the President’s power to order the intervention without congressional authorization in the first place is also still in play...
May 26, 2011 | Lawfare
Last Thursday the Washington Post editorial page opined that President Obama should either seek congressional authorization for the military actions in Libya, or “should inform Congress and the public about his intention of going forward with the campaign, openly challenge the constitutionality of the War Powers Resolution and work toward its repeal or amendment...
April 7, 2011 | Lawfare
On a quick read, the opinion appears to be significant for its extension of some OLC precedents and its (implicit) contraction of other OLC (and DOJ) precedents...
March 29, 2011 | Lawfare
All of this makes me think that the Libya intervention will stand as a precedent for ten-or-so-days (or however long this lasts) of a congressionally unauthorized bombing campaign that the President deems to be in the U.S. interest, broadly conceived...
March 25, 2011 | Lawfare
In the last few days several smart people have disagreed with my argument in favor of the constitutionality of the Libya intervention...
March 24, 2011 | Lawfare
Critics are starting to swarm around the Obama administration’s increasingly unintuitive claim – in the sixth day of what the New York Times now describes as “ferocious” air strikes on ground forces, tanks, and artillery – that the intervention in Libya is not “war...
March 22, 2011 | Lawfare
Charlie Savage reports that the Obama administration’s “legal team appears to be distinguishing between a full war and a more limited military operation, on the theory that the Libyan intervention falls short of what would prompt any Congressional authority to control decisions about whether to initiate hostilities...
March 21, 2011 | Lawfare
Today President Obama sent this letter to Congress, “as part of [his] efforts to keep the Congress fully informed, consistent with the War Powers Resolution,” about the recent operations in Libya...
March 21, 2011 | Lawfare
The U.S. invasion of Libya without authorization from (or even much consultation with) Congress has caused many people to note Barack Obama’s 2007 statement that “the President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation...
March 17, 2011 | Lawfare
The U.N. Security Council has authorized “all necessary measures” to protect Libyan civilians, but we still have no word on whether the President thinks he needs congressional authorization to intervene in Libya...
March 14, 2011 | Lawfare
In the esoteric discussion about whether and how Article 75 of Protocol I...applies in the Non-International Armed Conflict (NIAC) with al Qaeda and The Taliban, the ambiguities in the administration’s Fact Sheet are piling up...
March 11, 2011 | Lawfare
There has been much confusion in recent days about this statement in the Administration’s Fact Sheet on Guantanamo and Detainee Policy...
March 10, 2011 | Lawfare
There are many other precedents that must be considered to assess the legality of an intervention in Libya. None of them comes from the George W. Bush administration...
March 8, 2011 | Lawfare
...[I]nfluential Senators yesterday urged the President to consider a no-fly zone, and the administration is considering its military options. Which raises two questions...
March 2, 2011 | Lawfare
My friend Steve Walt weighs in against media patriotism. But he gives the game away, I think...
March 1, 2011 | Lawfare
Glenn Greenwald has an interesting response to my post on the patriotism of American media, but he exaggerates the significance of the media’s patriotic bent, and he misses some important points...
February 28, 2011 | Lawfare
In its story last week about the ties between the CIA and Raymond Davis, the American recently arrested in Pakistan, the New York Times offered this explanation for why it sat on the story...
February 14, 2011 | Lawfare
In connection with the publication of his new book, Known and Unknown, Donald Rumsfeld has created an on-line library of interesting documents drawn from his time in U.S. government service...
February 9, 2011 | Lawfare
Chapter 40 (“Law in a Time of War”) of Donald Rumsfeld’s new book, Known and Unknown, will be of special interest to Lawfare readers. In it, Rumsfeld discusses his views on “lawfare,” the origins and travails of military commissions, and the Supreme Court detention and habeas cases...
February 4, 2011 | Lawfare
That is Attorney General Eric Holder, on March 15, 2010, explaining to the House Judiciary Committee how long it would take the Obama administration to decide where to try 9/11 mastermind Khalid Sheik Mohammed. Nearly eleven months later, still no word...
January 25, 2011 | Lawfare
Many will claim that Ghailani’s life sentence vindicates the trial system as a vehicle for incapacitating terrorists...But we must also remember that the basic outcome (long term detention for Ghailani) was foreordained...
January 7, 2011 | Lawfare
President Obama’s options with respect to the GTMO transfer restrictions in the 2011 Defense Authorization bill appear to be as follows...
December 17, 2010 | Lawfare
I think David is engaged in revisionist history, and that he misses the most significant implication of the Obama differences from Bush...
December 15, 2010 | Lawfare
[Charging Assange as a conspirator to Manning’s leak] would not distinguish the Times and scores of other media outlets in the many cases in which reporters successfully solicit and arrange to receive classified information and documents directly from government officials...
December 9, 2010 | Lawfare
One of many reasons why America’s digital networks are so insecure is that so many ordinary computers users do not take computer security – firewalls, up-to-date anti-virus software, and the like – seriously...
December 7, 2010 | Lawfare
Judge Bates wrote a solid, careful, and in my view persuasive opinion in al-Aulaqi. The opinion is clearly a victory for the government. But it was not without small victories for ACLU, CCR, and others who want to establish judicial limits on presidential targeting authorities...
December 1, 2010 | Lawfare
Michael Leiter, the Director of the National Counterterrorism Center, gave an important speech today at CSIS that touched on many topics, including an overview of the foreign and homeland terrorist threat...
November 25, 2010 | Lawfare
Marc Thiessen has taken a lot of heat for this argument in the course of defending TSA screening procedures...Conor Friedersdorf, for example, chides Thiessen...I think Thiessen’s argument lends itself to a more charitable interpretation...
November 21, 2010 | Lawfare
I assume that TSA’s intrusive patdowns are not cost-effective, that some TSA employees will abuse the new body scanners, and that the TSA on the whole focuses too much on “security theater” and not enough on targeted interrogation. But I also think some of the many harsh criticisms of TSA go too far...
November 16, 2010 | Lawfare
William Greider argues in an interesting essay in The Nation that President Obama’s political difficulties are tied to his failure to exercise the full powers of the presidency...
November 14, 2010 | Lawfare
President Bush’s new book Decision Points, and the interviews Bush has given in connection with the book, have caused some commentators from different parts of the political spectrum to suggest that Bush’s rhetorical and decision-making style..seems more attractive now than when he was president...
November 1, 2010 | Lawfare
General Michael Hayden, former Director of the CIA and the NSA, gave an interesting speech on the media and national security last Friday at the Newseum’s conference last Friday on Criminal Law, National Security, and the First Amendment...
October 21, 2010 | Lawfare
Cyber threats are an enormous challenge to our economic and national security, and we should use every tool at our disposal to meet them. NSA has unparalleled technical expertise and experience in cyberdefense...
October 19, 2010 | Lawfare
This Obama administration’s caution about using presidential power unilaterally will likely change after the expected surge in republican congressional numbers following the midterm elections...
October 18, 2010 | Lawfare
Kevin Heller claims that the D.C. Circuit in its al-Bihani panel opinion has reached the conclusion, with which he agrees, that “there [is] no justification for the government’s attempt . . . to import the concept of co-belligerency into non-international armed conflict...”
October 14, 2010 | Lawfare
I have argued that the Executive branch should rely on military detention, not trial, for the GTMO population. In practice, this is what the Obama and Bush administrations have been doing...But as time goes on, military detention may give rise to two problems...
October 11, 2010 | Lawfare
My argument for military detention as the solution for Guantanamo detainees is a pragmatic one based on the growing belief that, despite many efforts, trials for this population of terrorists simply are not (and will not be) legally or politically feasible...
October 7, 2010 | Lawfare
Largely overlooked in Judge Kaplan’s Ghailani Order is his statement that Ghailani’s “status as an ‘enemy combatant’ probably would permit his detention as something akin to prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end even if he were found not guilty in this case"...
September 30, 2010 | Lawfare
[The Authorization to Use Military Force] authorizes force only against the “nations, organizations, or persons” connected to the 9/11 attacks...
September 29, 2010 | Lawfare
[Bob] Woodward clearly got his information [for the first chapter of his "Obama's Wars"] from participants in [Obama’s first post-election intelligence briefing] or their close aides. Was it right for these people to speak to Woodward about these matters? Was it legal...?
September 29, 2010 | Lawfare
...[I]t is not right to claim that those who support the President’s authority to make such decisions free from judicial review do not believe in legal constraints on the presidency...
September 26, 2010 | Lawfare
The USG’s brief in Al-Aulaqi, the targeted killing case, reveals a great deal about the Obama administration’s thinking about its legal authorities...
September 21, 2010 | Lawfare
Last week the Senate Foreign Relations Committee approved the resolution of ratification for the New Strategic Arms Reduction Treaty (“New START), sending it to the entire Senate...
September 20, 2010 | Lawfare
The Second Circuit’s holding in Kiobel that plaintiffs cannot sue corporations under the Alien Tort Statute (ATS) will, I predict, eventually be embraced by the Supreme Court...
September 15, 2010 | Lawfare
It is now well known that the Obama administration has embraced almost all of the Bush administration’s counterterrorism policies without substantial modification...
September 13, 2010 | Lawfare
An interesting aspect of the recent en banc decision in Jeppesen is the court’s reliance on the new Obama administration internal procedures to support its “independent conclusion..."
September 9, 2010 | Lawfare
Cybersecurity is in my opinion and the opinion of many in Washington the most significant national security challenge that the United States faces today...
September 8, 2010 | Lawfare
A friend bristled at the title of this blog, Lawfare, because he thinks that the first sense in which Ben uses the term in his initial post – the use of law as a weapon of war – has derogatory connotations for the rule of law in warfare...
Interviews
July 19, 2012 | John Batchelor Show
April 4, 2012 | Daily Show With Jon Stewart (Comedy Central)
Jack Goldsmith's book "Power and Constraint" argues that, surprisingly, America's governmental checks and balances do a pretty decent job of constraining executive power...
April 4, 2012 | Daily Beast
When it comes to counterterrorism, is there any difference at all between the Obama and Bush administrations? Daniel Klaidman sits down with Harvard Law School professor Jack Goldsmith...
March 18, 2012 | John Batchelor Show
Guests: Jack Goldsmith, author; Allan Meltzer, Hoover; David Livingston, The Space Show; Michael de la Merced, NYT...
March 12, 2012 | Lawfare
Guess what? Jack has a new book out. You probably already knew that, but in case you didn’t, it’s called Power and Constraint: The Accountable Presidency after 9/11...
December 8, 2010 | Brookings Institution
...[I]magine that sometime in the near future the government mandates the use of a government-coordinated intrusion-prevention system throughout the domestic network to monitor all communications, including private ones...
