Jeh Johnson, the Pentagon’s top lawyer until three months ago, is skeptical of the need for a so-called drone court.
Johnson, who personally approved the legal authority behind every major military strike ordered by the secretary of defense and President Obama until January 1, says the U.S. military is best equipped to conduct targeted killings of terrorism suspects abroad, without the need for a new court.
This morning, Johnson, who has returned to private practice, is at Fordham University to deliver a speech that he bills as the first to tackle the pros and cons of such a court. Johnson directly challenges advocates of the idea, including senators calling for more oversight and transparency, such as Dianne Feinstein (D-CA), intelligence committee chairwoman, and his old boss, former Defense Secretary Robert Gates.
Legal authority for targeted strikes against terrorism suspects that are conducted by the military is already in place, Johnson argues. What is needed, he offers, is more transparency around how those suspects are identified. Some secrets about targeted operations, Johnson claims, can be revealed without compromising national security.
“Most people, I think, do not have a quarrel with the bottom-line conclusions and results,” Johnson says in the speech, an advance copy of which was obtained by The E-Ring. “The problem is that the American public is suspicious of executive power shrouded in secrecy.”
Because U.S. officials will not confirm targeted killings even though they are widely reported by the media, the government is losing the trust and support of the public it is trying to protect, Johnson claims. But, even though an oversight court may sound like a good idea because judges are thought to be fairer than White House politicos, Johnson argues that a new court would be problematic and unnecessary -- at least for the military.
“We must be realistic about the degree of added credibility such a court can provide,” he said. Those few cases that would require the court’s approval likely would be kept secret anyway, and most of those cases still would be approved. The current FISA, or foreign intelligence court, is “derided” as a rubber stamp by the same groups calling for a new drone court, he notes.
Johnson analyzes three possible versions of a drone court and argues why all three would fail. A court that reviews all desired strikes away from a battlefield and against terrorists, including by the military, would be a logjam and require too much evidence to act in real time. A court that reviewed only the evidence for strikes against U.S. citizens abroad would require an impractical standard of intelligence, essentially forcing the government prove it knows the exact nationality of every target, American or not.
Finally, Johnson offers his least bad option: a court that would review and approve lethal force only against terrorists known to be U.S. citizens “but only in instances not part of a congressionally-authorized armed conflict conducted by the U.S. military.” In other words, this court would review killings of Americans abroad conducted by the CIA or other non-military agencies.
“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.”
“Lethal force outside the parameters of congressionally-authorized armed conflict by the military looks to the public to lack any boundaries, and lends itself to the suspicion that it is an expedient substitute for criminal justice.”
Johnson also notes that courts are not equipped to decide “questions of feasibility of capture and imminence,” which can change rapidly.
Finally, he argues, the president has the constitutional authority to use force, and the debate over killing terrorists one-by-one seems to naively forget that the president has sole authority to launch a nuclear strike that could kill millions of people.
“Article II of the Constitution states that the President ‘shall’ be the commander-in-chief of the armed forces. That is his burden and responsibility,” Johnson argues. “He may delegate his war-fighting authority within his chain of command, but he cannot assign part of it away to another branch of government, nor have it taken away by an act of Congress.”
In the end, Johnson says more transparency will go a long way, if administration officials are willing to find that path.
“Put 10 national security officials in a room to discuss de- classifying a certain fact, 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.
“Last year we declassified the basics of the U.S. military’s counterterrorism activities in Yemen and Somalia and disclosed what we were doing in a June 2012 War Powers report to Congress. It was a long and difficult deliberative process to get there, but certain people in the White House persevered, we said publicly and officially what we were doing, and, so far as I can tell, the world has not come to an end.”
You can read the full speech here:
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Looking back on his time in Iraq and Afghanistan, Gen. John Allen believes the United States is not going to jump into another big land war anytime soon -- and neither will its NATO allies.
Speaking yesterday at a four-hour, invitation-only roundtable on the 10th anniversary of the Iraq War -- held at FP's offices, in conjunction with RAND -- the former ISAF commander said, "My guess is...that it'll be 20 years before we undertake something like this again. It's going to be a long time before NATO is going to be interested probably in undertaking something that could look like this again." He added: "Coalition development and coalition management is going to be extraordinarily important in the future. I'm not sure that we've put enough emphasis on that."
If Western allies do embark on another massive counterinsurgency effort, Allen argued, the development side of the affair must be done better.
"Something I worry about increasingly as time goes on is the sense that the development strategies in Iraq and now Afghanistan have failed," Allen said. "And that the development dimension of what we have attempted to undertake was either the wrong approach or was just flawed from the beginning...and I think that really deservers some rigorous testing."
"Development with a little 'd' that was wielded day-to-day" by company commanders, Allen contended, was "enormously successful." It was the larger planning and implementation of aid and civilian governance that troubled him. Allen, who retires on April 1, said he worried about people drawing the "wrong conclusions" on development during the counterinsurgencies.
Allen recently turned down President Obama's nomination to lead NATO as supreme allied commander.
Allen was a deputy brigadier commander in Anbar province and played a key role in the so-called Awakening there. Still wearing his 4-starred Marine Corps uniform on Wednesday, he credited the military's effort to learn about local culture for its success in winning local support.
"We spent an extraordinary amount of time preparing ourselves for what we would face in the Anbar province," he said. Understanding the local tribes, where there was "complete absence of governance," he said, gave the military "entree to the tribes" and helped his forces recognize "the potential value of the Awakening when it occurred. We really sensed something was changing in the battle space."
Allen said he is concerned about how the military will retain the lesson of learning local culture as the military services refocus on other types of warfare after Iraq and Afghanistan.
"We're really at a critical moment here, right now," he said.
"The challenge I think for the future for us is how to best prepare our forces for irregular warfare....We must always have a fundamental understanding of the social fabric of the environment in which we're going to be serving. We spent a great deal of time before going to the Anbar province studying the tribes. Tribe by tribe, from the Syrian border right down to Baghdad. I don't think anybody spent more time with the sheikhs than I did. I could tell the sheikhs stories about their grandfathers. Because we spent the time learning about the tribes, thus we were able to operate within the tribes.
"I can remember the day Ken Pollack was sitting with Michael O'Hanlon and Tony Cordesman in the D1 in Fallujah, where we had the sheikhs assembled and we were talking about how, then, do we do the next thing, which is more important, and that's the outlying government with the central government. And that was for us the challenge.
"I remember the sheikh reaching over and patting my thigh and saying here is my government. Well, I couldn't be his government, it had to be al Maliki."
Allen said he was most successful in connecting a local government to the national government.
"That doesn't come naturally. That kind of capacity within our military does not come naturally," he stressed.
"For the future, the intellectual preparation of our officers -- we cannot lose these intellectual qualities that we purchased so dearly over the last 10 or 11 years. As we reset our forces for the future, and our service seeks to re-grasp what makes them essential to the national security of the United States...we've got to maintain our faithfulness to the basic intellectual principles of irregular warfare, the components of which are such things as the proper deployment of development, understanding the relations of subnational and national governance, the social fabric in which you're going to operate. These are Ph.D.-level intellectual demands on our officers, we cannot permit that to go."
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Kevin Baron reports on the people and policies driving the Pentagon and the national security establishment in The E-Ring.