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:
MASSOUD HOSSAINI/AFP/Getty Images
Kevin Baron reports on the people and policies driving the Pentagon and the national security establishment in The E-Ring.