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hoover daily report

Hoover Daily Report items by Jack Goldsmith

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January 16, 2014 | Advancing a Free Society

The Briefing: A Partial Defense of the Front-Page Rule

August 31, 2013 | New York Times

What Happened to the Rule of Law?

The United Nations Charter has been violated more than times than it has been followed.
May 23, 2013 | Foreign Affairs

Obama Passes the Buck

February 25, 2013 | Defining Ideas (Hoover Institution)

Is the "War on Terror" Lawful?

January 23, 2013 | Advancing a Free Society

The Briefing: What to Do About Growing Extra-AUMF Threats?

July 19, 2012 | Defining Ideas (Hoover Institution)

Obama: Counterterrorist-in-Chief

June 22, 2012 | New Republic

Temple of Silence

Why SCOTUS leaks less than the CIA...
April 26, 2012 | Washington Post

Obama’s weak spots on counterterrorism are open to Romney

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

How Obama Learned To Love Military Commissions

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

Legitimization of counterterrorism policies

...[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

The pervasive cyberthreat that goes unchallenged

[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

A Just Act of War

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

How Dick Cheney Reined in Presidential Power

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

War Power

The president's campaign against Libya is constitutional...
February 11, 2011 | Washington Post

Why the U.S. shouldn't try Julian Assange

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

Ghailani verdict makes stronger case for military detentions

The Obama administration's critics are missing the point on Ahmed Ghailani...
October 22, 2010 | Washington Post

Our nation's secrets, stuck in a broken system

Woodward calls into question the legitimacy of the U.S. secrecy system...
October 8, 2010 | New York Times

Don’t Try Terrorists, Lock Them Up

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

A way past the terrorist detention gridlock

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

New START Treaty could erode Senate's foreign policy role

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 cybersecurity changes we need

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

Anti-counterfeiting agreement raises constitutional concerns

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

KSM's dispensable trial

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

Can we stop the global cyber arms race?

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

No place to write detention policy

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

Holder's reasonable decision

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

Defend America, One Laptop at a Time

OUR economy, energy supply, means of transportation and military defenses are dependent on vast, interconnected computer and telecommunications networks...

June 29, 2009 | Washington Post

Will Obama Follow Bush Or FDR?

December 8, 2008 | Slate

Nuts and Deadbolts

President-elect Barack Obama has made clear that he will close the Guantanamo Bay detention center...

November 26, 2008 | Washington Post

No New Torture Probes

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

Secrecy and Safety

In May 1940, defying a congressional ban, President Franklin D. Roosevelt secretly authorized warrantless wiretapping inside the United States...

Blogs

March 17, 2014 | Lawfare

The Precedential Value of the Kosovo Non-Precedent Precedent for Crimea

When the Obama administration invoked the 1999 Kosovo intervention as a precedent in the run-up to the planned Syria invasion, I wrote a post that argued that Kosovo was not a precedent for lawful international action.  The Kosovo intervention violated the
March 14, 2014 | Lawfare

The SSCI Fracas and the CIA’s Duty to Make Criminal Referrals to DOJ

Ken Dilanian has a story on Acting CIA General Counsel Robert Eatinger (whom Caroline Krass, just confirmed, will succeed.)  Eatinger is at the center of the fracas between CIA and SCCI because he sent a criminal referral to DOJ related to the SSCI’s staff
February 26, 2014 | Lawfare

Lederman on Secrecy, Nonacknowledgement, and Yemen

Marty Lederman has a long post picking apart the errors in last week’s AP story on last December’s drone strike in Yemen.  Along the way he carefully parses the covert action statute, and has interesting things to say about the relationship between secrecy
February 25, 2014 | Lawfare

What is the Domestic Legal Basis for Planned Cyberattacks in Syria?

David Sanger reports that the Pentagon and the NSA planned a sophisticated cyberattack aimed at “the Syrian military and President Bashar al-Assad’s command structure” that “would essentially turn the lights out for Assad.” He also reports that President O
February 11, 2014 | Lawfare

The ISIS Expulsion and the AUMF

Karen DeYoung and Greg Miller report in the WP that Al-Qaeda’s recent expulsion of the Islamic State of Iraq and Syria (ISIS) has raised questions about whether the AUMF “still applies” to ISIS.  “According to some administration lawyers and intelligence o
February 10, 2014 | Lawfare

U.S. Citizen Possibly Targeted for Drone Attack

Kimberly Dozier AP reports this morning that "[a]n American citizen who is a member of al-Qaida is actively planning attacks against Americans overseas, . . . and the Obama administration is wrestling with whether to kill him with a drone strike and how to
February 7, 2014 | Lawfare

Bipartisan Group of Senators Push for Congressional Vote Before Extending Afghanistan Troop Presence

That is the title of this press release by Senator Jeff Merkley, announcing a resolution “calling for Congress to have a role in approving any further United States military involvement in Afghanistan after the current mission ends on December 31, 2014.” 
January 15, 2014 | Lawfare

Two Thoughts on the Sanger/Shanker Story on NSA Infiltration of Foreign Networks

David Sanger and Thom Shanker have a lengthy story in the NYT about various NSA techniques for penetrating foreign computers and networks, including a strategy for accessing seemingly air-gapped computers.  Two thoughts: First, this article shows how mu
December 27, 2013 | Lawfare

Morosov on the Significance of Snowden

Evgeny Morosov has an interesting piece in the FT that asks about the broader and mostly ignored implications of Snowden’s revelations about the scope of NSA surveillance.  He argues that controlling the NSA and raising government privacy protections does
December 20, 2013 | Lawfare

40,000 Foot Reactions to President’s Review Group Report and Recommendations

Pre-Snowden, the USG faced few constraints in its collection and analysis other than what the law imposed and what its large budget permitted.  Within these constraints, the USG could focus almost solely on the national security benefit side of communicati
December 17, 2013 | Lawfare

Krass on Numerous National Security Law Issues

Caroline Krass had her confirmation hearings today before SSCI to become General Counsel of CIA.  Krass is, in my opinion, wildly qualified for the job, and I hope her confirmation process goes smoothly despite unrelated SSCI-CIA disagreements over the rel
December 10, 2013 | Lawfare

Reflections on U.S. Economic Espionage, Post-Snowden

Cheng Li’s and Ryan McElveen’s good post over the weekend (via Daniel Byman) sparked the following reflections on U.S. economic espionage, post-Snowden.  Li and McElveen nicely summarize U.S.-Chinese relations concerning cybersecurity in the run-up to and
December 2, 2013 | Lawfare

Extraordinary U.S. Press Freedom to Report Classified Information

The Washington Post reported last week that the United States government had decided not to prosecute Julian Assange for his role in the massive release of classified State Department cables because “government lawyers said they could not do so without als
September 23, 2013 | Lawfare

Baker on Cybersecurity Post-Snowden

James A. Baker, who for a long time ran the Office of Intelligence Policy Review in DOJ (which focused on FISA), and more recently worked in the Deputy Attorney General's Office on cyber issues, gave a Constitution Day address at Dickinson College.  The sp
September 20, 2013 | Lawfare

Alexander and Inglis Letter to the “NSA/CSS Family,” and the USG’s Unconscionably Weak Defense of NSA

Kevin Gosztola at Firedoglake has a copy of a two-page letter from NSA Director Gen. Keith Alexander and NSA Deputy Director John Inglis to the “NSA/CSS family” about the Snowden leaks.  The letter essentially defends NSA from what Alexander and Inglis see
September 9, 2013 | Lawfare

Tanenhaus on the Presidency

Sam Tanenhaus had an essay over the weekend in the NYT that I think is at bottom a “little c” conservative critique of President Obama’s Syria push.  But the essay makes little sense, at least to me. Tanenhaus starts with the claim that President Obama
September 9, 2013 | Lawfare

Tanenhaus on the Presidency

Sam Tanenhaus had an essay over the weekend in the NYT that I think is at bottom a “little c” conservative critique of President Obama’s Syria push.  But the essay makes little sense, at least to me. Tanenhaus starts with the claim that President Obama
September 5, 2013 | Lawfare

Two Important Implications from President’s Press Conference in Sweden

I want to briefly unpack this extraordinary statement by President Obama yesterday in Sweden: [T]he truth of the matter is that under international law, Security Council resolution for self-defense or defense of an ally provides a clear basis for action.
September 4, 2013 | Lawfare

The Senate Draft AUMF for Syria is Narrower Than the Administration’s Draft, But Still Broad In Some Respects

The draft Senate Syria AUMF contains a narrower authorization for the use of presidential force than the one the administration proposed.  But it is in some respects still broad, and it actually enhances the president’s claims of independent constitutional
August 28, 2013 | Lawfare

Why Doesn’t President Obama Seek Congressional Approval for Syria?

I have a pretty broad view of presidential power to use military force abroad without congressional authorization.  On that view, which is close to the past views of the Office of Legal Counsel, the planned use of military force in Syria is a constitutiona
August 14, 2013 | Lawfare

The Snowden Revelations and Cybersecurity

One immediate consequence of Snowden’s various revelations about massive USG surveillance – at home and especially abroad – was to put a chill on the loud U.S. campaign against Chinese cyber-snooping.  (The hypocrisy in the U.S. position, and the fecklessn
August 9, 2013 | Lawfare

Reflections on NSA Oversight, and a Prediction That NSA Authorities (and Oversight, and Transparency) Will Expand

Last Friday I asked how NSA Director Alexander’s claim that “we can audit the actions of our people 100%” was consistent with USG uncertainty about what Snowden stole and with its claims that it was “putting in place actions” to allow it to track its syste
July 5, 2013 | Lawfare

On French Espionage

July 1, 2013 | Lawfare

Spying on Allies

October 17, 2012 | Lawfare

Five Thoughts On Hamdan

June 13, 2012 | Lawfare

Reviews of “Power and Constraint”

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

Leak Investigations in the Digital Era

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

What is the Scope of the Leak Investigations?

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

Drone Stories, the Secrecy System, and Public Accountability

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

The Doubtful Constitutionality of ACTA as an Ex Ante Congressional-Executive Agreement

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 Persuasive General Alexander, and Why Critical Infrastructure Protection Regulation is...Critical

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

John Brennan’s Speech and the ACLU FOIA Cases

[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

What Happened to the Periodic Review Process for GTMO Detainees?

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

NATO’s Role in Libya was a Joke [UPDATED]

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

The President’s Comments on the Supreme Court

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

“Mission Creep” in NGO Demands?

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

Obama Administration and Military Commissions: Response to Steve

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

Power and Constraint: The Accountable Presidency after 9/11

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

The Responsibilities of the Commander in Chief Focus the Mind

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

Wikileaks, Government Prosecutions, Secrecy

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

Does the Russian Veto of the Proposed UNSC Resolution on Syria Vindicate Scott Horton and Walter Russell Mead?

...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

Google Returns to China

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

OLC and the Obama Recess Appointments

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

The Uganda Intervention and the WPR 60-Day Clock

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

Is the President’s Veto Threat Credible?

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

General Cartwright on Offensive Cyber Weapons and Deterrence

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

More on Executive Disregard of Federal Statutes

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

Quick Thoughts on the USG’s Refusal to Use Cyberattacks in Libya

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 on Why the Libya Intervention Harms The Duty To Protect Norm

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

More on al-Aulaqi and Transparency

...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

Release the al-Aulaqi OLC opinion, Or Its Reasoning

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

What is the Government’s Strategy for the Cyber-exploitation Threat?

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

Brinkema Opinion Sparing Risen from Testifying that Sterling was his Source

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

Krauthammer on War Powers

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

Mark Martins to be Chief Prosecutor, Military Commissions

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

The Legally Useless House Resolution to Stop the Libya Intervention

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

A Way Out of the Libya Conundrum: The Lebanon and Somalia Analogies

President Obama is in a legal and political pickle concerning his unilateral intervention in Libya...
June 17, 2011 | Lawfare

President Obama Rejected DOJ and DOD Advice, and Sided with Harold Koh, on War Powers Resolution

There are many things to say about this but here are a few quick reactions...
June 16, 2011 | Lawfare

Problems with the Obama Administration’s War Powers Resolution Theory

In this long post I analyze the Obama administration’s legal arguments for compliance with the War Powers Resolution...
June 14, 2011 | Lawfare

The Boehner Ultimatum Makes No Legal Sense

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

Is the Obama Administration’s Original Legal Rationale for the Libya Intervention Still Valid?

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

WPR Influence in Libya Action?

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

Office of Legal Counsel Opinion on Libya Intervention

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

The Libya Intervention as Precedent

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

Libya – Advice to Congress

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

The Legal Reason Why the Obama Administration Won’t Call the Libya Action “War”

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

Is the Libyan Intervention “War”?

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

Letter From the President to Congress re Libya Operations

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

Presidential War Unilateralism and the Role of a Government Lawyer: The Case of Harold Koh

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

U.S. Intervention in Libya Will Likely Take Place Without Congressional Authorization

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

My Last Word on Article 75

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

Why I Think the Obama Administration Did Not Extend Article 75 to Terrorists

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

Libya, Domestic Authority, and the Proper Analogy

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

Intervening in Libya – Domestic Law Authority

...[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

American Media Patriotism – Response to Walt

My friend Steve Walt weighs in against media patriotism. But he gives the game away, I think...
March 1, 2011 | Lawfare

American Media Patriotism – Response to Greenwald

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

The Patriotism of the American Media

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

The Rumsfeld Papers – Picking a CIA Director, 1975

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

Lawfare, Common Article 3, and Military Commissions in Rumsfeld’s “Known and Unknown”

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

“Weeks, not Months”

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

The Ghailani Sentence

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

What Will President Obama Do with the Defense Authorization Bill?

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

David Cole on Obama v. Bush

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

The Implications of Charging Assange for Conspiracy to Leak

[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

Senator Cardin’s Bill to Explore ISP Enforcement of Digital Security

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

What ACLU and CCR Won in al-Aulaqi

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

More on the Growing Problem of Extra-AUMF Threats

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

The Gap Between the Public’s and the Government’s View of the Terrorism Threat

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

Thoughts on the TSA Controversy

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

The Virtues and Vices of Presidential Restraint

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

The Perspective of Hindsight

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 Hayden on Government Secrets and the Press

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

The NSA’s Growing Role in Domestic Cybersecurity

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

The Obama Administration’s Forthcoming Increased Reliance on Presidential Power

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

The D.C. Circuit Has Not Rejected Co-Belligerency

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

Problems with Military Detention

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

More on Military Detention

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

The Inevitability of Military Detention

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 Growing Problem of Extra-AUMF Threats

[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

Classified Information in Woodward’s “Obama’s Wars”

[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

Al Aulaqi — Confounding Legal Compliance with Judicial Review

...[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

What the Government’s Al-Aulaqi Brief Reveals [Updated]

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

New START, Missile Defense, Treaty Amendments

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

Kiobel’s Practical Significance

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

Detention, the AUMF, and the Bush Administration — Correcting the Record

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

State Secrets – Power from Constraint

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 – Four New Essays

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

Thoughts on “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

Jack Goldsmith on the John Batchelor Show

April 4, 2012 | Daily Show With Jon Stewart (Comedy Central)

Jack Goldsmith on the Daily Show

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

What If Obama Had Been President on 9/11?

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

Jack Goldsmith and Allan Meltzer on the John Batchelor Show

Guests: Jack Goldsmith, author; Allan Meltzer, Hoover; David Livingston, The Space Show; Michael de la Merced, NYT...
March 12, 2012 | Lawfare

Lawfare Podcast Episode #6: Jack Goldsmith on Power and Constraint

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...

Other Media

December 8, 2010 | Brookings Institution

The Cyberthreat, Government Network Operations, and the Fourth Amendment

...[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...