On U.S. Drone Policies, Ex-Pentagon Lawyer Warns of ‘Erosion of Support’

Former Pentagon general counsel Jeh Johnson offers three suggestions for how Obama might carry on targeted killing operations with stronger public support.

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Brendan Smialowski / Getty Images

Pentagon General Counsel Jeh Johnson, right, with Martin Dempsey, Chairman of the Joint Chiefs of Staff, during a Senate Armed Services Hearing on Capitol Hill in Washington, Nov. 10, 2011.

Amid the roiling debate about the Obama administration’s drone program, a former top Pentagon lawyer is weighing in today on the wisdom of adding  judicial oversight to the government’s targeted killing activities.

In a speech at Fordham University this morning, Jeh Johnson, who stepped down as chief counsel to the Defense Department in January, acknowledges that many Americans now imagine “dark images of civilian and military national security personnel in the basement of the White House–acting, as Senator Angus King put it, as ‘prosecutor, judge, jury and executioner’…deciding for themselves who shall live and who shall die, pursuant to a process and by standards no one understands.” In a striking acknowledgment of how fast the national political debate has moved, Johnson acknowledges that the government’s anti-terror targeted killing program, once a campaign bragging point for Obama, “risks an erosion of support by the people.”

(MORE: On U.S. Drone Policies, Ex-Pentagon Lawyer Warns of ‘Erosion of Support’)

But in the heart of his speech, Johnson calls himself a “skeptic” when it comes to an idea for gaining support in Congress and policy circles: a “drone court,” modeled after the FISA judicial panel that approves the government’s wiretapping operations. Like some other former government lawyers, Johnson—-whose former job that involved signing off on (or in some cases vetoing) dozens of proposed targets for drone strikes–worries about both the constitutionality and practicality of having judges approve or deny targeting requests that often depend on fast-changing situations and involve a president’s commander in chief powers. He also notes that such a court would have to act in secret, and–like the FISA court–would probably approve most requests, doing little to assuage critics of the drone program.

Johnson also offers three suggestions for how Obama might carry on targeted killing operations with stronger public support. One is to be more transparent. (“Put 10 national security officials in a room to discuss de-classifying a certain fact,” he says, and “they will all say ‘I’m for transparency in principle,’ but at least 7 will be concerned about second-order effects, someone will say ‘this is really hard, we need to think about this some more,’ the meeting is adjourned, and the 10 officials go on to other more pressing matters.”) Second, he advises constraining targeted killing operations within the boundaries of “Congressionally-authorized armed conflict,” although just what that means has become a topic of debate. Finally, Johnson advises an institutionalized process for making targeted killing decisions, apparently along the lines of the “playbook” that newly-confirmed CIA director John Brennan has been devising.

The legal and policy details of Johnson’s thoughts are interesting and useful. But ust as interesting is the political implication of his address. Johnson is in effect warning his former colleagues that public opinion is turning fast, and they’d better do something about it even faster.

PHOTOS: Everyday Drones: Photographs by Gregg Segal

36 comments
BenevolentLawyer
BenevolentLawyer

I just stopped in to read the news and saw that Halperin is going away on BOOK LEAVE. He is going away for some time.HIP HIP HIP HOOOORAYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYY.

Okay, I got that off my chest. He was so anti-Obama during the elections, my bet was that he would become a Fox contributor since I knew Romney was going to lose. Book Leave first, and Fox News next. By bye HALPERIN!!!!!!!!!!!!!!!!!!  woohoooooo

drudown
drudown

Well, if the US Military has any real or imagined "erosion of support" it is solely attributable to idiot GOP lackeys like Rand Paul that seem to take great airs for "pointing out" how drones could be (drudown, I can write this) "used to kill US citizens sipping coffee at a SF cafe") but have not the slightest remorse for how their (cough, cough) "Libertarian policies" WEAKEN the US government. 

Ah, me- the entire "Tea Party" and/or "Libertarian" movement is a mere pretext for Big Business to trample the People's rights and general welfare under the auspices of some unfounded ideology, i.e., "government is not the answer, it's the problem". Is that so? Well, perhaps someone- ANYONE- can point to a "real world" example where deregulating a major industry had a discernible pecuniary and strategic upside for the People, e.g., when CA "deregulated" the Energy Industry.

"After the event, even the fool is wise." - Viscount Symonds

professorkaos
professorkaos

@drudownLook, I'm pretty far left and in most cases I support the current administration. In this case, however, I'm not super happy that the decision to kill a U.S. citizen can be made without a court trial. Everyone deserves a chance to prove their innocence or to be proven guilty in a court of law with a jury of your peers. Yes, it happened on the other side of the world, and I make no judgement on the innocence or guilt of the victim, but there is nothing that allows the government the right to execute U.S. citizens without trial, judge or jury.

BenevolentLawyer
BenevolentLawyer

@professorkaos  I support trials and I am against the death penalty, BUT for these identified terrorists whose actions are verified and confirmed by intelligence, I do not know if they deserve the rule of law. *Sigh* Contradictory I know, but I was in NY during the Trade Center attacks and I am very rabidly anti-sparing any terrorist for a second. I saw people on TV jumping out of the WTC. And I will NEVER forget the African American man in the suit that extended his hands and leaped while the wild flames were raging behind him. 

I am pro religion, Islam included, but I am anti-extremists who use Islam, the religion of peace, for their heinous acts of murder!!!

professorkaos
professorkaos

@BenevolentLawyer @professorkaos There is no doubt, nor argument that the acts these people commit are not atrocious and despicable. Again, I'd have to go with the home grown terrorist argument, in that we afford everyone a right to jury trial. Including people that we find to be morally reprehensible. Serial killers and child rapists get a jury trial. Why not terrorists? Ted Kazinski got a jury trial. What do they all have in common? They are U.S. citizens who broke the law.

drudown
drudown

@professorkaos

Restated, if you take up arms against the US government, you implicitly waive your rights to be protected by the selfsame rule of law upon which our Military is founded.

drudown
drudown

@professorkaos

As a threshold matter, it is beyond tenuous to compare apprehending American citizens domiciled within the jurisdiction the United States for felony murder and al-Awlaki leading Al Qaeda in Yemen. With the former, there is no geopolitical implications, nor any choice of law/jurisdiction/extradition issues that exist with the latter. 

From my vantage point, the entire "Al Qaeda movement" is a complete farce. It is a phony "holy war" instigated by the ruling elite in the Middle East that, quite candidly, simply want to justify the disproportionate distribution of power and wealth in their own Arab society. By blaming the United States and Israel for the poor Arabs' collective woes, it conveniently deflects attention from their own refusal to "share the wealth." The fact that the US could eradicate the entire Arab world with a nuclear barrage tends to show the "war on terror" is likewise a convenient pretext for Defense Contractors and the Industrial War machine to be in a perpetual state of conflict, despite the self-evident fact that protracted Arab occupations seem to (lo and behold!) effectuate the self-fulfilling prophecy that was probably cooked up like a crusty Armadillo at Crawford Ranch. Enough already. The Arab world is not our enemy. 

Pursuing useless, wasteful policies while concurrently pushing these emasculating political agendas (e.g., "no new taxes" and "libertarianism" and "deregulation") is the problem. 


As for al-Awlaki or the Oklahoma City bombers, I don't share your undue remorse for their self-perceived plight. Don't mess with the United States or its People.

professorkaos
professorkaos

@drudown @professorkaos Last time I checked, even the Oklahoma City bomber got a trial by jury. He was a terrorist and a U.S. citizen, so do you believe that the administration should have just gone in, guns blazing and shot him? The una-bomber also received a jury trial. What makes this different???

drudown
drudown

@shepherdwong

I do not subscribe to the theory and/or position that the US government has the jurisdiction, much less the impetus, to pick people up off the battlefield and drag them into court (e.g., which tribunal and under what theory?) if he/she is engaged in active service in Al Qaeda. For me, it's that simple.   With that said, I do not believe the US should be engaged in protracted Arab occupations whatsoever. If we deserve self-determination, so do other cultures: whether Islamic, Christian or otherwise. 

With regards to drone strikes, I feel it is patently unfair to single out this particular means of warfare and "recast" it as some means of Police Power. Thus, it is unpersuasive to contend that the US government must adhere to even the "rule of law" if the enemy combatants abide by no such parameters. They have no such regard for our soldiers (or any civilians) by using IEDs. Again, we need to re-examine what role we actually want to play in the Middle East. Letting the Arabs rule themselves will have a much greater effect than stifling drone use against our actual enemies. 

The killing of 3,000 innocent people in NY on 9/11 was entirely preventable, i.e., as evidenced by the infamous FBI memo warning the Bush Administration of Bin Laden's intentions. As such, from my vantage point, if the US government needs to act swiftly (e.g., killing al-Awlaki via drone) to prevent a future attack, it is disingenuous for people to assert that the "enemy combatants" that seek to inflict bodily harm on the People of the United States deserve (i.e., as a matter of law) the same legal protections as others under the rule of law.

shepherdwong
shepherdwong like.author.displayName 1 Like

@drudown "Restated, if you take up arms against the US government, you implicitly waive your rights to be protected by the selfsame rule of law upon which our Military is founded."

If someone has taken up arms against the US government, it should be easy to prove it in court, before assassinating them. Outside a declared war zone, civilian courts and the rule of law must rule. Even in a war zone, there is rule of law.

drudown
drudown

@professorkaos

Well, I guess that's where we disagree. When a person (US citizen or not) is an active leader in a self-described terrorist organization with a stated goal to "destroy the US government", it is disingenuous- if not laughable- to suggest that said person organizing ways to kill US soldiers and civilians deserves a hearing in court when their activities are wholly outside the ambit of criminal behavior. To even imply that killing al-Awlaki "without a trial" was legally impermissible presupposes that we are dealing in common law parlance. It is a different game. 

3skil
3skil

@MartinFagervik Og jeg som trodde at drone-bruken var historie.. :( Du har jo ikke skrevet om det på mange timer :):)

MartinFagervik
MartinFagervik

@3skil hehehehehe Nei, jeg er som Jokke: Når noe (musikk\/fotballspillere\/meninger) begynner å bli pop: Så er det ikke så viktig lenger :D

MartinFagervik
MartinFagervik

@JoakimMB Men trøster meg foreløpig med det caddy'n til Sam L Jackson sa da han klikket på golf-banen: 'Du er ikke god nok til å bli sint!'

MartinFagervik
MartinFagervik

@JoakimMB Teori: FM er så forfengelig på å få realistiske tabell-resultat at de tyr til hva som helst for å få dem: Ergo: AI-crack.

MartinFagervik
MartinFagervik

@JoakimMB Merker og en ting: De kampene man taper mot feks dårlige lag har ofte i forkant blitt gitt noen faktorer som gjør at du skal slite

MartinFagervik
MartinFagervik

@JoakimMB Ja, du har rett i den: Men aldri blitt så sint\/frustrert over et spill før pga ukontroll: Så mye rett har han uansett..

JoakimMB
JoakimMB

@MartinFagervik ser poengene ja.. Og om du ser kampene full time,så stemmer det godt at spillene ofte gjør det motsatte av instructions ja..

MartinFagervik
MartinFagervik

@JoakimMB "Frustrating and enraging, as opposed to what games should be: fun and relaxing." - Enormt sagt! Akkurat den jeg sitter igjen med!

MartinFagervik
MartinFagervik

@3skil @JoakimMB Men skal faktisk være enig med deg: Av og til lest under nyhets-saker på feks VG: Sjokkert over hva nordmenn skriver..

MartinFagervik
MartinFagervik

@3skil @JoakimMB hæhæhæhæhæhæ Ja, som om noen av oss noen gang har tatt oss nær av nettmobbing! Eneste vi driver med jo! :D

3skil
3skil

@JoakimMB @MartinFagervik Jeg syns også den var langt over streken! Si unnskyld, Martin! Nettmobbing; sosiale mediers verkebyll! :)

VoxLogicae
VoxLogicae

The public is turning against drones because they are being used as a symbol of other problems that people have with the government.  The drone debate and gun control are two examples of people using misleading words and terms to describe a problem:  http://voxlogicae.wordpress.com/2013/03/12/words-have-meaning-part-2/

wrathbrow
wrathbrow

@VoxLogicae  

Agree or disagree with the terms. But many American's don't like the idea of attacks on other people without some review process.

VoxLogicae
VoxLogicae

@wrathbrow @VoxLogicae Completely agree, but why is that debate confined to drones right now?  The government had the ability to target people long before drones came into the picture.  By framing the whole debate about drones, two things happen.  One, the positive uses for drones is lost in the fear created and two, the debate becomes too narrow.  Let's say someone passes a law banning drone strikes on US citizens on US soil, just for the sake of debate. Does that mean strikes on US soil on US citizens by manned helicopters are valid?  

VoxLogicae
VoxLogicae

@drudown @VoxLogicae @wrathbrow Drudown I think you have completely missed my point.  My point was not that the government has a pattern or habit of killing US citizens.  My point, which was part of a larger discussion in the link above is that sometimes the words the media or politicians use to describe an issue can hide or confuse any real issues that may or may not exist.  Take the drone example.  By turning the debate over the last couple of weeks to targeted killings and surveillance by drones, some politicians and the media have muddled the issue.  Drones have not really changed the government's ability to do anything.  The govt had the ability to target people or conduct surveillance before drones existed.  I am not claiming they had a pattern of doing so, but why is this suddenly a major issue in the public eye?  If it wasn't a problem before, why is it now?  If it is a problem now, why confine the issue to drones only when there are clearly other tools to do the same thing.  

drudown
drudown

@VoxLogicae @wrathbrow 

Perhaps you'd like to humor me with factual specifics? You talk as if the US government has a pattern or habit of killing US citizens without Due Process. Or are you claiming that al-Awlaki the Al Qaeda leader has "Due Process" rights after taking up arms and vowing to destroy the US government? Explain.

UMMLocal12
UMMLocal12

The real erosion of support will occur when the bad guys have them.

formerlyjames
formerlyjames like.author.displayName 1 Like

I doubt that public opinion is turning fast on the drone strikes, as it is part of a smarter war on terror than what the Bush administration did.  

In any event, until Bush, Cheney, Rumsfeld, and the neocon punks are tried and hanged, anything short of their atrocities and war crimes is safe territory.