Meet Jeh Johnson: Drone Lawyer and Obama’s Homeland Security Nominee

If his name doesn’t sound familiar, his pet issues will: Drones and the end of “don’t ask, don’t tell.”

Department of Defense General Counsel Jeh Johnson and Major General Steven Hummer, Chief of Staff, Repeal Implementation Team, during a press conference on the repeal of 'Don't Ask, Don't Tell' July 22, 2011 at the Pentagon in Washington, DC. 
National Journal
Matt Berman and Brian Resnick
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Matt Berman and Brian Resnick
Oct. 17, 2013, 12:45 p.m.

Pres­id­ent Obama plans to nom­in­ate former De­fense De­part­ment law­yer Jeh (pro­nounced “Jay”) John­son for Home­land Se­cur­ity sec­ret­ary on Fri­day, The Daily Beast‘s Daniel Klaid­man re­ports. John­son will re­place act­ing Sec­ret­ary Rand Beers, who has been filling in since Janet Na­pol­it­ano left to be­come pres­id­ent of the Uni­versity of Cali­for­nia sys­tem in Septem­ber. John­son was the De­fense De­part­ment’s gen­er­al coun­sel from 2009 un­til last Decem­ber.

John­son’s leg­acy at the De­fense De­part­ment is marked by two high-pro­file is­sues: his ad­vocacy of the re­peal of “don’t ask, don’t tell,” and — as chief law­yer at the Pentagon — his leg­al au­thor­ity over all drone strikes car­ried out by the De­fense sec­ret­ary and Pres­id­ent Obama.

John­son cowrote a re­port on gays in the mil­it­ary in 2010, an ex­per­i­ence that helped turn him in­to the lead­ing ad­voc­ate for re­peal of the mil­it­ary’s don’t ask, don’t tell policy. In 2010, he told The New York Times that people “un­der­es­tim­ate the mil­it­ary’s abil­ity to ad­apt.”

But des­pite that lead­ing, pub­lic ad­vocacy on a ma­jor so­cial is­sue, John­son’s role in the Obama ad­min­is­tra­tion’s drone policy is much more rel­ev­ant to his pos­sible new perch at Home­land Se­cur­ity. And it could speak volumes about how the ad­min­is­tra­tion will con­duct se­cur­ity policy through the end of Obama’s term.

Speak­ing at Ford­ham Law School in March, John­son out­lined much of his philo­sophy on drone strikes and tar­geted killings. He said “our gov­ern­ment is in a lose-lose po­s­i­tion” in re­gards to keep­ing such pro­grams secret. “The prob­lem is that the Amer­ic­an pub­lic is sus­pi­cious of ex­ec­ut­ive power shrouded in secrecy, ” he said. “In the ab­sence of an of­fi­cial pic­ture of what our gov­ern­ment is do­ing, and by what au­thor­ity, many in the pub­lic fill the void by en­vi­sion­ing the worst.”

But yet he be­lieves in the sys­tem.

“In my view, tar­geted leth­al force is at its least con­tro­ver­sial when it is on its strongest, most tra­di­tion­al leg­al found­a­tion. The es­sen­tial mis­sion of the U.S. mil­it­ary is to cap­ture or kill an en­emy. Armies have been do­ing this for thou­sands of years. As part of a con­gres­sion­ally au­thor­ized armed con­flict, the found­a­tion is even stronger. Fur­ther­more, the para­met­ers of con­gres­sion­ally au­thor­ized armed con­flict are trans­par­ent to the pub­lic, from the words of the con­gres­sion­al au­thor­iz­a­tion it­self, and the Ex­ec­ut­ive Branch’s in­ter­pret­a­tion of that au­thor­iz­a­tion, which this Ad­min­is­tra­tion has made pub­lic.”

John­son also sug­ges­ted that U.S. cit­izens could be tar­geted in strikes in a Feb­ru­ary 2012 speech at Yale Law School. “Bel­li­ger­ents who also hap­pen to be U.S. cit­izens do not en­joy im­munity where non­cit­izen bel­li­ger­ents are val­id mil­it­ary ob­ject­ives,” John­son said. In the same speech, John­son pushed the Obama ad­min­is­tra­tion’s leg­al ra­tionale for the tar­geted-killing pro­gram, say­ing that “un­der well-settled leg­al prin­ciples, leth­al force against a val­id mil­it­ary ob­ject­ive, in an armed con­flict, is con­sist­ent with the law of war and does not, by defin­i­tion, con­sti­tute an ‘as­sas­sin­a­tion.’ “

John­son’s role in drone policy at the De­fense De­part­ment could play in­to the De­part­ment of Home­land Se­cur­ity’s quest to build up a fleet of do­mest­ic drones, in­clud­ing Pred­at­or drones, with “non­leth­al weapons.” And it could make for a tense con­firm­a­tion hear­ing once John­son makes it to the Sen­ate (re­mem­ber Rand Paul’s fili­buster?).

To­ward the end of his ten­ure at the Pentagon, John­son gave an idea of how the “war on ter­ror­ism” could come to an end:

“On the present course, there will come a tip­ping point. A tip­ping point at which so many of the lead­ers of op­er­at­ives of al-Qaida and its af­fil­i­ates have been killed or cap­tured and the group is no longer able to at­tempt or launch a stra­tegic at­tack against the United States, such that al-Qaida as we know it, the or­gan­iz­a­tion that our Con­gress au­thor­ized the mil­it­ary to pur­sue in 2001, has been ef­fect­ively des­troyed.”

As The Guard­i­an‘s Spen­cer Ack­er­man wrote then for Wired, such an out­line could “her­ald an ef­fort to fi­nally bring more than a dec­ade of war to a close.”

John­son has a long re­sume in the Amer­ic­an leg­al sys­tem. He was an as­sist­ant United States at­tor­ney in New York between 1989 and 1991, be­fore re­turn­ing to the private sec­tor for mid-‘90s. In 1998, he served as gen­er­al coun­sel for the Air Force. John­son, 56, is the neph­ew of a Tuskegee air­man, and is named after a Liberi­an chief his fath­er met in Africa in 1930. John­son raised more than $200,000 for Obama dur­ing his first cam­paign for of­fice, USA Today re­por­ted in 2009.

John­son’s nom­in­a­tion was not at all ex­pec­ted. In a re­cent Na­tion­al Journ­al poll of na­tion­al se­cur­ity in­siders, John­son’s name wasn’t even men­tioned once in the “oth­er” field for nom­in­ees.

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