Jeh Johnson, who served as the Pentagon’s general counsel during the Obama administration, has recently emerged as a leading candidate for secretary of defense. But his role in a legally and ethically controversial military decision is likely to raise objections from progressives and civil libertarians.
In 2011, President Barack Obama had an American citizen killed without due process of law. News reports and Johnson’s public statements after leaving office indicate that he gave the legal authorization for the extrajudicial killing.
The citizen was Anwar al-Awlaki, an American-born imam with numerous ties to Al Qaeda. He was living in Yemen when the US killed him and three other people in a drone strike.
Johnson and his team at the Pentagon “oversaw legal approvals for military drone strikes,” according to NBC News. And Johnson said in an interview with 60 Minutes that he had to directly approve targeted strikes that occurred outside of Iraq and Afghanistan.
The government has never released the contents of any such approval by Johnson for al-Awlaki’s killing. But a speech he gave in 2013, after leaving office, laid out his legal rationale for killing an American citizen accused of terrorism.
Johnson justified targeting “a terrorist who happens to be a US citizen” by referencing a World War II-era Supreme Court case which held that an American who defects to the enemy “does not enjoy immunity on the battlefield.” He added that the citizen “should represent a continuing and imminent threat to the nation and capture should not be feasible” and implied that this was an extra protection added under the Obama administration.
But there is disagreement over whether Yemen qualified as a “battlefield” at the time. Johnson himself has said that the military then considered only Iraq and Afghanistan to be a “hot battlefield.” And whether al-Awlaki posed “a continuing and imminent threat” to the US was unclear, as many analysts pointed out at the time. “Contrary to what the Obama administration would have you believe, [al-Awlaki] has always been a minor figure in Al Qaeda,” Gregory Johnson, a Yemen scholar, wrote in 2010 as al-Awlaki’s father fought to have his son’s name taken off of the Obama administration’s kill list.
The legal logic that Johnson laid out in his 2013 speech closely resembles that of a 2010 memo that the Obama administration produced when forced to give a justification for the killing. The memo’s author relies on a legal theory that government agents can break the law in an emergency — in this case, an “imminent threat” from an American citizen that must be addressed.
These arguments got a frosty reception from some corners. The New York Times editorial board called the memo “a slapdash pastiche of legal theories — some based on obscure interpretations of British and Israeli law — that was clearly tailored to the desired result,” and a lawyer for the ACLU said that the document is “ultimately an argument that the president can order targeted killings of Americans without ever having to account to anyone outside the executive branch.”
In response to al-Awlaki’s killing, many activists and scholars called for judicial oversight of targeted killings — “drone courts” that would be able to critically appraise arguments like those presented in the 2010 memo.
But Johnson seems to oppose such courts, citing “a number of legal and practical problems” with them. “If I must be labeled one way or another, I guess I belong in the category of ‘skeptic,’” he said in a 2013 speech.
Al-Awlaki’s death was part of a post-9/11 revival of targeted killing. The US largely abandoned the practice after a 1975 Senate report revealed CIA plots to assassinate the leaders of at least five foreign countries.
Until 9/11, the only country that frequently used targeted killing was Israel. Then-Ambassador to Israel Martin Indyk was critical of the practice. “The United States government is very clearly on record as against targeted assassinations,” he said in July 2001. “They are extrajudicial killings, and we do not support that.”
The government’s calculus shifted dramatically with the advent of the “War on Terror.” The legal logic was essentially that “targeted killing” was distinct from assassination — which remains illegal — because it did not involve subterfuge and was operationally necessary in a new type of war.
George W. Bush’s administration carried out its first targeted killing in 2002 and ramped up the practice over the next few years. Obama expanded the program in his first term. Al-Awlaki’s killing was the first known occasion when an American citizen was intentionally targeted by the US government in a drone assassination.
The use of targeted killing has now become widespread. For example, Turkish President Recep Tayyip Erdogan has reportedly sought to kill Mazloum Kobani, a Kurdish military officer who worked closely with the US to fight ISIS in Syria. Kobani is the leader of the Syrian Democratic Forces, which Turkey considers a terrorist group. Reports indicate that Erdogan justified this effort by citing the American drone program.
In addition to the al-Awlaki killing, Johnson’s Pentagon legal team apparently greenlit a strike that killed al-Awlaki’s son Abdulrahman weeks later. His unintended death is categorized under the military justification of “collateral damage.”
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