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
Brian Resnick and Matt Berman
Brian Resnick Matt Berman
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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