President Barack Obama has chosen former Pentagon lawyer Jeh Johnson as the new secretary of the Homeland Security Department. (AP Photo/Charles Dharapak, File)
Back in 2012, just before he stepped down as general counsel for the Department of Defense, Jeh (“Jay”) Johnson delivered a speech at Oxford University titled: “The Conflict Against Al Qaeda and its Affiliates: How Will It End?” The very title carries an optimistic ring, since it often seems that the war on terror will never, ever end—as evidenced, perhaps, by the simultaneous raids last week into Libya and Somalia that captured a former Al Qaeda big wig and sought, without success, to take down an Al Shabab leader. The two actions, coming amid a steady stream of statements from top Obama administration officials that Al Qaeda has been decimated, followed an extraordinary sign earlier this year that Al Qaeda—or at least the threat of Al Qaeda as bogeyman—is still alive and kicking: that, you’ll remember, was the reported intercept of an e-mail from Ayman al-Zawahiri, Al Qaeda’s chieftain in Pakistan, to the head of Al Qaeda’s Yemen franchise, containing an unspecified threat against the United States that led to dozens of American embassies shutting down from North Africa to the Middle East and deep into South Asia. No attack was forthcoming.
Now, Johnson has been tabbed by Obama to be the new Secretary of Homeland Security. Which makes his speech at Oxford relevant again. To be sure, in his post at the Department of Homeland Security, as opposed to DOD, Johnson won’t have responsibility for the war on terror, if we’re still calling it that. (Obama, at least, isn’t.) But Johnson’s speech was widely cited as important back in December 2012 because he had the temerity to suggest that there would come a day when the conflict with Al Qaeda will “end.” In the speech, Johnson said:
I do believe that on the present course, there will come a tipping point—a tipping point at which so many of the leaders and operatives of al Qaeda 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 Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed.
At that point, we must be able to say to ourselves that our efforts should no longer be considered an “armed conflict” against al Qaeda and its associated forces; rather, a counterterrorism effort against individuals who are the scattered remnants of al Qaeda, or are parts of groups unaffiliated with al Qaeda, for which the law enforcement and intelligence resources of our government are principally responsible, in cooperation with the international community—with our military assets available in reserve to address continuing and imminent terrorist threats.
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Problem is, of course, until that as-yet-undefined moment when the “war” against Al Qaeda ends and the “counterterrorism effort against individuals” begins has not, it appears, yet occurred—at least in the eyes of the Obama administration. So, as a result, the White House continues to order drone strikes in Pakistan, Afghanistan, Somalia and elsewhere, launch Special Forces raids to kill or capture alleged Al Qaeda officials in Africa and Asia, and, in Afghanistan, insist on the continuing right of U.S. forces to seek and destroy Al Qaeda units in that country, even though experts say only about 75 members of the organization remain there. And, as long as the “war” continues, then everything that goes with it—extra-judicial detention of captured fighters, vast electronic surveillance of U.S. and foreign citizens by the National Security Agency and its partners, the Guantanamo prison, and the rest, continues too. All of that, in his Oxford speech, Johnson—as the then-DOD lawyer—was willing to support, justify and explain, even while admitting, as he did:
Some legal scholars and commentators in our country brand the detention by the military of members of al Qaeda as “indefinite detention without charges.” Some refer to targeted lethal force against known, identified individual members of al Qaeda as “extrajudicial killing.”
Indeed, The Wall Street Journal, in reporting Johnson’s 2012 speech, noted that in fact it was delivered primarily as a justification to the Europeans for Obama’s widely reviled counterterrorism policies:
Pentagon officials and legal experts also noted that Mr. Johnson chose to deliver the speech in the United Kingdom, in part to reassure European allies about the Obama administration’s legal justification for its continuing war on al Qaeda as well as other counterterrorism operations.
“It’s important that the DOD General Counsel has chosen to give this speech in Britain where many legal experts disagree with the concept that the U.S. is in a war with al Qaeda,” said John Bellinger, a former State Department legal adviser during the George W. Bush administration. “Most of the previous speeches by administration officials have been given inside the U.S.”
And, according to the Washington Post, Johnson helped shape the rationale for killing Anwar al-Awlaki, an American citizen living in Yemen, over his Al Qaeda affiliation:
Johnson was also involved in one of the most controversial counterterrorism questions of Obama’s first term, whether the United States could use an armed drone to kill a U.S. citizen who had joined al-Qaeda.
He and others concluded that the U.S. government had the authority to carry out a strike on Anwar al-Awlaki, who was born in New Mexico and became a senior figure in al-Qaeda’s branch in Yemen before being killed in a joint CIA-U.S. military operation in 2011.
Johnson, a 56-year-old African-American lawyer who’s spent many years at the ultra-establishment law firm of Paul, Weiss, Rifkind when not serving in government, is no boat-rocker. How he’ll deal with the issues confronting him at Homeland Security, including the thorny issue of immigration and border security, aren’t at all clear. He’s been a prosecutor and a Democratic party stalwart, serving in the Clinton administration and then as counsel to John Kerry’s 2004 presidential campaign, in addition to his stint at DOD under Obama. (Notably, it was Kerry who, in 2004, suggested that the the threat of terrorism could eventually be reduced to the level of a nuisance, an ahead-of-his-time statement for which he was roundly savaged by the Bush campaign and its various attack dogs in the media and the neoconservative movement.)
But, as AP reports:
As general counsel at the Defense Department during the wars in Iraq and Afghanistan, Johnson was an aggressive advocate on a number of complex and contentious legal issues. He oversaw the escalation of the use of unmanned drone strikes, the revamping of military commissions to try terrorism suspects rather than using civilian courts and the repeal of the military’s ban on openly gay service members. He also mapped out the legal defense for the American cross-border raid into Pakistan that killed Osama bin Laden.
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