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Analysis and Commentary

What's Up With McGahn Revisionism?

by Jack Goldsmithvia Lawfare
Saturday, January 27, 2018

“[T]he WH Counsel seems to be renting out space in his office to the New York Times,” notes Bill Kristol in reference to the sympathetic New York Times story yesterday about White House Counsel Don McGahn’s efforts to “Corral Trump While Pushing G.O.P.’s Agenda,” on top of the Times story the day before on McGahn threatening to quit rather than carry out Trump’s directive to fire Special Counsel Robert Mueller.

Analysis and Commentary

Power And Integrity At The FBI: Chris Wray Stands Up To The President And The Attorney General

by Jack Goldsmith, Benjamin Wittesvia Lawfare
Monday, January 22, 2018

Jonathan Swan of Axios reported Monday night, based on “three sources with direct knowledge,” that FBI Director Chris Wray “threatened to resign” if FBI Deputy Director Andrew McCabe “was removed” from office. The threat apparently came in response to pressure on Wray by “Attorney General Jeff Sessions—at the public urging of President Donald Trump” to fire McCabe.

Analysis and Commentary

The Merits Of Supporting 702 Reauthorization (Despite Worries About Trump And The Rule Of Law)

by Jack Goldsmith, Susan Hennesseyvia Lawfare
Thursday, January 18, 2018

The Senate voted by a razor-thin margin Tuesday to invoke cloture on the FISA Amendments Reauthorization Act of 2017, which would reauthorize for six years Section 702 of the Foreign Intelligence Surveillance Act. The bill includes some significant changes to 702, though the reforms are substantially more modest than those sought by privacy advocates. The House approved its version last week. A final Senate vote is scheduled for Thursday; the bill is expected to pass handily.

Analysis and Commentary

Why Hasn’t Rod Rosenstein Recused Himself From The Mueller Investigation?

by Jack Goldsmithvia Lawfare
Friday, January 5, 2018

One puzzle that deepens with Mike Schmidt’s New York Times story on “Trump’s Struggle to Keep [a] Grip on [the] Russia Investigation” is why Deputy Attorney General Rod Rosenstein has not recused himself from overseeing the Mueller investigation. On Lawfare’s special edition podcast yesterday, Susan Hennessey briefly raised the issue, but the puzzle is worth unpacking a bit more here.

Analysis and Commentary

The President Can’t Kill The Mueller Investigation

by Jack Goldsmithvia Lawfare
Monday, January 1, 2018

One of most remarkable stories of 2017 was the extent to which President Donald Trump was prevented from executing his many pledges—both on the campaign trail and in office—to violate the law. As predicted, courts, the press, the bureaucracy, civil society, and even Congress were aggressive and successful in stopping or deterring Trump from acting unlawfully.*

Featured

The Ease Of Writing An OLC Opinion In Support Of Military Action Against North Korea

by Jack Goldsmithvia Lawfare
Thursday, September 14, 2017

I’ve been asked a lot recently about the President’s power under Article II to order a military strike on North Korea in the absence of congressional authorization. The proper meaning of Article II on this question is contested and I won’t offer my views on that here. But the only opinion about Article II that effectively matters on this question is the Executive branch’s. 

Blank Section (Placeholder)Analysis and Commentary

Nobody But Us

by Ben Buchananvia Hoover Institution
Wednesday, August 30, 2017

This paper examines how the NOBUS approach works, its limits, and the challenging matter of what comes next. Traditionally, signals intelligence is neatly bifurcated into offense and defense: intercept adversaries’ communication technology and protect one’s own. In the modern era, however, there is great convergence in the technologies used by friendly nations and by hostile ones. Signals intelligence agencies find themselves penetrating the technologies they also at times must protect. To ease this tension, the United States and its partners have relied on an approach sometimes called Nobody But Us, or NOBUS: target communications mechanisms using unique methods accessible only to the United States.

Analysis and Commentary

What If President Trump Orders Secretary Of Defense Mattis To Do Something Deeply Unwise?

by Sarah Grant, Jack Goldsmithvia Lawfare
Tuesday, August 22, 2017

Plausible hypotheticals sparked by recent events raise the question whether the Secretary of Defense or someone else high up in the chain of command must obey a presidential order he or she deems deeply unwise. May the Secretary of Defense refuse an order to initiate preemptive war against North Korea because he believes it is a terrible idea that will result in hundreds of thousands of deaths? What steps might the Secretary take to immunize the U.S. Armed Forces from carrying out such presidential commands?

To Understand Russian Election Interference, Start with This Movie About Doping

by Benjamin Wittes
Wednesday, August 9, 2017

In 2014, an amateur cyclist named Bryan Fogel had an eccentric idea for a film: He had just participated in a prestigious and grueling alpine stage race called the Haute Route in the Alps and had finished in 14th place. He decided to spend the next year not just training, but also doping. He meant to come back and run the race again the following year. He meant to not get caught for the doping. He expected the doping would vault him into the group of elite leaders who had finished above him.

Our Non-Unitary Executive

by Jack Goldsmith
Sunday, July 30, 2017

Trump’s tweets keep the attention on him, but the operation of some of the most important components of his administration seems entirely disconnected from the President and the White House generally.  

Pages

Aegis on Lawfare

 
Aegis explores legal and policy issues at the intersection of technology and national security.  Published in partnership with Lawfare, it features long-form essays of the working group, examines major new books in the field, and carries podcasts and videos or the working group’s events in Washington and Stanford.

Security by the Book Podcasts

The Security by the Book podcast series features monthly interviews with authors of important, new national security-oriented books and publications.

The Working Group on National Security, Technology, and Law brings together national and international specialists with broad interdisciplinary expertise to analyze how technology affects national security and national security law and how governments can use that technology to defend themselves, consistent with constitutional values and the rule of law.

The group will focus on a broad range of interests, from surveillance to counterterrorism to the dramatic impact that rapid technological change—digitalization, computerization, miniaturization, and automaticity—are having on national security and national security law. Topics include cybersecurity, the rise of drones and autonomous weapons systems, and the need for and dangers of state surveillance. The group’s output will also be published on the Lawfare blog, which covers the merits of the underlying legal and policy debates of actions taken or contemplated to protect the nation and the nation’s laws and legal institutions.

Jack Goldsmith and Benjamin Wittes are the cochairs of the National Security, Technology, and Law Working Group.