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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. 

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Nobody But Us

by Ben Buchananvia Aegis Paper Series
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?

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How China’s Views on the Law of Jus ad Bellum Will Shape Its Legal Approach to Cyberwarfare

by Julian G. Kuvia Aegis Paper Series
Thursday, August 17, 2017

This paper concludes that the Chinese government has adopted a strict positivist reading of the UN Charter’s limitations on the use of force that brooks no exceptions for humanitarian interventions and with a narrowly construed exception for self defense. Since China has not shown any willingness to abandon this legal approach to the law of jus ad bellum codified in the Charter, it is unlikely that China will embrace the US legal approach to cyberwarfare. Rather, China will probably use its restrictive reading of the UN Charter to garner political support among other countries to criticize and deter offensive US cyberwarfare.  This sharp divide between the US and Chinese legal positions calls into question the efficacy of longstanding US government efforts to convince China to accept and apply international law to cyberwarfare.  

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.  

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Appropriate Norms Of State Behavior In Cyberspace: Governance In China And Opportunities For US Businesses

by Mei Gechlikvia Aegis Paper Series
Thursday, July 27, 2017

Finding cybernorms that are acceptable to the United States and China, which have different ideologies and practices as well as enormous interests at stake, is challenging. This article identifies these developments in China - the new Guiding Cases System as well as foreign and domestic developments regarding facilitating everyone’s access to cyberspace - and discusses how they, together with the Shanghai Cooperation Organization’s growing significance in the international arena, call for more strategic thinking among US policymakers so that the United States can seize the new opportunities to engage meaningfully with China in establishing international norms for cyberspace.

How To Deal With A Kamikaze President

by Jack Goldsmith
Tuesday, July 25, 2017

Donald Trump’s angry morning tweet storm reached another new low with attacks on his Attorney General for not investigating his former presidential opponent, and on his acting FBI Director’s integrity. This and other attacks on key law enforcement figures in his own Executive branch goes far beyond breaking norms of investigatory independence.

Featured

Jack Goldsmith's Interview With Dean Baquet, Executive Editor Of The New York Times, On Publication Decisions About Intelligence Secrets

by Jack Goldsmithvia Lawfare
Monday, July 24, 2017

On April 25, two days after President Obama announced that a U.S. drone strike accidentally killed two innocent hostages, Mark Mazzetti and Matt Apuzzo published a story in the New York Times about congressional and White House support for the CIA’s “targeted killing program.” A major point in the story was that some of the CIA officers who built the CIA’s drone program also led the CIA’s detention and interrogation program. 

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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 is the chair of the National Security, Technology, and Law Working Group.