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.