Jack L. Goldsmith

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There has been much debate about whether a bill advancing through Congress that aims to expose Saudi Arabia to lawsuits in American courts for its alleged connection to the 9/11 attacks would unduly harm diplomatic and economic relations between the two countries. But the bill’s potential for harm extends far beyond bilateral relations with one ally. It would also violate a core principle of international law, and it would jeopardize the effectiveness of American foreign aid and the legitimacy of the United States’ actions in the war on terrorism.

A nation’s immunity from lawsuits in the courts of another nation is a fundamental tenet of international law.…  Seguir leyendo »

Since the United Nations was created in 1945, its Charter has been more honored in the breach than the observance. So maybe it should not surprise us that President Obama seems poised to authorize American military action against Syria, in clear violation of international law.

The Charter permits nations to use force against other nations only for self-defense or when the Security Council authorizes such force “to maintain or restore international peace and security,” as it did for Libya in 2011.

Mr. Obama seems to recognize the problem. “If the U.S. goes in and attacks another country without a U.N. mandate and without clear evidence that can be presented, then there are questions in terms of whether international law supports it,” he told CNN last week.…  Seguir leyendo »

On Friday, an American drone flying over northern Yemen killed Anwar al-Awlaki, a leader of Al Qaeda in the Arabian Peninsula — a Qaeda affiliate. Mr. Awlaki helped support an attempted attack on a Detroit-bound flight in 2009 and had been linked to other attempted attacks in the United States.

Drone strikes against terrorists outside of so-called hot battlefields like Afghanistan have become commonplace during the Obama presidency, and have reportedly decimated the leadership of Al Qaeda and its affiliates. What made this strike unusual, however, was that Mr. Awlaki was an American citizen, having been born in New Mexico.

This fateful new step in our ever-expanding war against terrorists — intentionally killing an American citizen — is fraught with the danger of executive overreach or mistakes. …  Seguir leyendo »

The Obama administration is under pressure to respond to WikiLeaks' massive disclosures of State Department cables. It cannot stop the continued publication of the cables, which several news organizations around the world possess. It is reportedly leaning toward using criminal law to make an example of WikiLeaks founder Julian Assange in order to deter future Assanges. The government is conducting "an active, ongoing criminal investigation," says Attorney General Eric Holder.

The government should fully investigate how this major breach of national security occurred. But prosecuting Assange would be a mistake.

The first problem with going after Assange is that the effort is likely to fail.…  Seguir leyendo »

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. On Wednesday a federal judge, Lewis Kaplan of the United States District Court in Manhattan, made the government’s case much harder when he excluded the testimony of the government’s central witness because the government learned about the witness through interrogating Mr. Ghailani at a secret overseas prison run by the C.I.A.

Some, mostly liberals and civil libertarians, applauded the ruling, saying it showed that the rule of law is being restored.…  Seguir leyendo »

Nine years after Sept. 11 and 20 months into the Obama presidency, our nation is still flummoxed about what to do with captured terrorists. The Obama administration is stuck about where the Bush administration was, with little hope in sight for progress.

Guantanamo Bay has proved harder to close than the Obama administration anticipated. Many terrorists there are too dangerous to release and, for a variety of evidentiary reasons, cannot be brought to trial. Our allies have taken fewer detainees than we would like. These men will thus have to be held in U.S. custody. But neither Congress nor the American people is keen on transferring them to the United States.…  Seguir leyendo »

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. Consent to it as it stands will further erode the Senate's constitutional role in American foreign policy.

This treaty does not constrain future development of missile defense (except in a few limited ways). It does, however, create a Bilateral Consultative Commission with power to approve "additional measures as may be necessary to improve the viability and effectiveness of the treaty."…  Seguir leyendo »

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. Both sides are busily ignoring the obvious solution: Don't bother trying them at all.

Mohammed has already spent more than seven years in military detention. Both the Obama administration and the Republicans who object to trying him in federal court accept the legitimacy of such detention as a traditional incident of war for those in the command structure of al-Qaeda, and perhaps for associated forces as well. In general outline, so do the courts.…  Seguir leyendo »

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. These judges, not experts in terrorism or national security and not politically accountable to the electorate, inherited this responsibility because of the Supreme Court's intervention in detention policy. Over time they maintained it because legislative and executive officials of both political parties refused to craft a comprehensive legislative approach to this novel set of problems that cries out for decisive lawmaking.

Many commentators have complained about this state of affairs and the contradictory and incoherent body of law it is producing and have urged the political branches to enact legislation to create a uniform and democratically legitimate detention policy.…  Seguir leyendo »

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. But some prominent criticisms are exaggerated, and others place undue faith in military commissions as an alternative to civilian trials.

Mohammed is many things: an enemy combatant in a war against the United States whom the government can detain without trial until the conflict ends; a war criminal subject to trial by military commission under the laws of war; and someone answerable in federal court for violations of the U.S. criminal code. Which system he is placed in for purposes of incapacitation and justice involves complex legal and political trade-offs.…  Seguir leyendo »

Eric Holder, President-elect Barack Obama’s nominee for attorney general, is scheduled to appear today at a confirmation hearing before the Senate Judiciary Committee. The Op-Ed page asked five legal experts to pose the questions they would like to hear the nominee answer.

1. Do you believe the president has authorities under the Constitution’s executive power and commander in chief clauses on which Congress cannot impinge? What are they?

2. Will you give legal approval to covert counterterrorism actions that you believe are lawful but which you know will engender legal and political controversy if made public? What factors other than your best legal judgment will you consider?…  Seguir leyendo »