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Analysis and Commentary

Justice Alito's Kiobel Concurrence And The “Touch And Concern” Circuit Split

by Jack Goldsmithvia Lawfare
Monday, May 15, 2017

As Lawfare readers know, the question of corporate liability under the Alien Tort Statute is once again before the Supreme Court. But other ATS issues are still dividing lower courts. One of them—recently covered by John here and here—is how much an ATS claim must “touch and concern” the United States to rebut the presumption against extraterritoriality, as outlined in Kiobel.

Analysis and Commentary

Partisan Political Figures Cannot Run The FBI

by Jack Goldsmith, Benjamin Wittesvia Lawfare
Monday, May 15, 2017

Rumors are flying that Donald Trump will soon nominate a replacement for James Comey as FBI Director—perhaps even before he leaves on his foreign trip at the end of this week. It’s hard to imagine the universe of people who would both accept the nomination in the current environment and in whom the public could repose confidence in holding the job. But some of the names Trump is reportedly considering should be unacceptable per se.

Analysis and Commentary

Lawyerly Integrity In The Trump Administration

by Jack Goldsmithvia Lawfare
Sunday, May 14, 2017

The New York Times’s story on “What It Means to Work for Trump,” on top of Jim Comey’s firing last week, got me thinking again about how difficult it is for a lawyer who is a political appointee to act with integrity in the Trump administration.


The Spotlight Shifts To The DOJ Inspector General

by Jack Goldsmith, Helen Klein Murillovia Lawfare
Thursday, May 11, 2017

As Daphna Renan and David Pozen note, Deputy Attorney General Rod Rosenstein’s memorandum to Attorney General Sessions on Comey’s action last summer, which was the ostensible basis for firing FBI Director James Comey, circumvented the ongoing investigation into Comey’s actions by DOJ Inspector General Michael Horowitz. That investigation, and Horowitz himself, are now about to assume center stage in the Comey firing drama.


The Yates Testimony And The White House Counsel

by Jack Goldsmithvia Lawfare
Tuesday, May 9, 2017

Sally Yates’s testimony yesterday calls into yet greater doubt the effectiveness of White House Counsel Don McGahn.

Analysis and Commentary

Yates Changes Her Tune

by Jack Goldsmithvia Lawfare
Monday, May 8, 2017

“Sally Yates made the fake media extremely unhappy today—she said nothing but old news!” So tweeted our President a few hours ago about today’s testimony by the former Deputy (and Acting) Attorney General, whom Trump fired on January 30. As with so many of the President’s tweets, this one was inaccurate. Yates made a lot of news today.


The Constitutionality Of The Syria Strike Through The Eyes Of OLC (And The Obama Administration)

by Jack Goldsmithvia Lawfare
Friday, April 7, 2017

“The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant,” wrote the esteemed Robert Jackson in the first paragraph of the most celebrated opinion in the most famous presidential power decision in Supreme Court history.


The “Grand Bargain” At Risk: What’s At Stake When The President Alleges Politics In Intelligence

by Jack Goldsmith, Benjamin Wittesvia Lawfare
Tuesday, April 4, 2017

The U.S. intelligence community is on the verge of a crisis of confidence and legitimacy it has not experienced since the 1970s. Back then, the crisis was one of the community’s own behavior. In the 1950s, 1960s, and 1970s the intelligence community used its secret powers of surveillance and other forms of government coercion—often but not always at the behest of its political superiors—to spy on and engage in operations against Americans for political ends. 


Cautionary Notes On A Select Committee For The Russia Matter

by Jack Goldsmithvia Lawfare
Monday, March 27, 2017

I agree with Susan and Ben that an independent national commission to investigate the Russia matter is, at this time, unrealistic. But I’m unconvinced by their argument that a select congressional committee—a specially formed committee in one or both houses of Congress, with special staffing and resources—would be an improvement on the three committees now investigating the matter.

How Hard Is It To Work For President Trump?

by Jack Goldsmith
Wednesday, March 22, 2017

The Wall Street Journal has a surprisingly tough editorial urging President Trump to stop the “seemingly endless stream of exaggerations, evidence-free accusations, implausible denials and other falsehoods.” The thrust of the editorial is that Trump’s mendacity is hurting his presidency.


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.