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  (Source: DNA Films)
"Negotiation's over. Sentence is death." -- Judge Dredd (Dredd, 2012)

Jeh (pronounced "Jay") Johnson has been nominated by President Obama to become the next Secretary of the Department of Homeland Security (DHS).  The appointment is drawing mixed reactions from social libertarians who are pleased with some of Mr. Johnson's past stands, but very disturbed by his support of perhaps America's most controversial antit-terrorism tactic.

I. You Have Been Judged

As a U.S. Department of Defense (DOD) lawyer Mr. Johnson distinguished himself by in 2010 authoring study advocating ending the inconsistency of allowing heterosexual men and women to serve together, open in their sexuality, while disallowing gay men and women to serve together in the U.S. military if they were were open in their sexuality.

While many social libertarians on both "sides of the aisle" praised that work, another important legacy of his is much more controversial -- warrantless drone death strikes on Americans deemed terrorists.

Mr. Johnson has taken a relatively interesting -- if controversial -- stand in the warrantless drone killings debate.  The Obama administration has admitted it has killed 4 Americans in targeted, warrantless drone death strikes without trial -- three of whom it intended to kill (a fourth was an "accidental" casualty, which the Obama administration argues is sometimes necessary).

Jeh Johnson
President Obama shakes Jeh Johnson's hand at his nomination conference. [Image Source: AP]

Unlike some factions within the Obama administration he has fought against keeping the programs a secret.  But at the same time he has argued that such killings are Constitutional and justifiable in extreme circumstances.

Predator missile
Some Democrats and some Republicans alike in Congress have fought to preserve the Obama administration's privilege to kill Americans it deems "terrorist" with warrantless drone missile strikes. [Image Source: Drone Wars UK]

Mr. Johnson's position is for the U.S. military and intelligence agencies to at times behave like the fictional "Justice Department" of the fictional "2000 AD"/Judge Dredd universe, acting as judge, jury, and if need to be executioner -- while at the same time outline these functions openly and transparently to the public.

In a 2012 speech at Yale University Law School, he argued:

Belligerents who also happen to be U.S. citizens do not enjoy immunity where noncitizen belligerents are valid military objectives.  Under well-settled legal principles, lethal force against a valid military objective, in an armed conflict, is consistent with the law of war and does not, by definition, constitute an 'assassination.'


In a March speech at Fordham University's Law School in New York City, New York, he made an even more direct reference to drone death strikes, arguing, "Our government is in a lose-lose position.  The problem is that the American public is suspicious of executive power shrouded in secrecy.  In the absence of an official picture of what our government is doing, and by what authority, many in the public fill the void by envisioning the worst."


He then followed up with a justification for an open policy in which senior military and intelligence commanders were appointed "judges" of sorts, deciding, in certain cases to execute a targeted killing of an American citizen without warrant.

He argues:

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. Furthermore, the parameters of congressionally authorized armed conflict are transparent to the public, from the words of the congressional authorization itself, and the Executive Branch's interpretation of that authorization, which this Administration has made public.

II. What the Constitution Says

To understand this viewpoint, we must first look at the Consitution -- the central ruling document of the U.S.  The Constitution is unequivocal in that Congress has the power to authorize the use of deadly military force.  Article 1, Section 8 of the U.S. Constitution, the foundation of the U.S. government, clearly grants Congress the power:

U.S. Constitution
[Image Source: EL Civics]
 

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

The controversy begins with that latter point -- that the U.S. Congress can call forth a militia to "suppress insurrections".  The Obama administration and some in the military and intelligence circles argue that terrorism is a form of insurrection and that the "militia" in modern context is the U.S. military and intelligence agencies.

Assuming that view, the next question comes from the Fifth and Sixth Amendments to the Constitution in the Bill of Rights.  These rights guarantee that "life...and liberty" will not be deprived without "due process" -- i.e. an arrest warrant, "speedy" trial discussed in the Sixth Amendment, and a verdict.  These amendments state:

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

In the case of targeted killings, there is no due process and no trial -- there is only death.  In many cases, the accused may not have even committed a crime -- yet -- but rather the DOD or intelligence departments believe they are an imminent risk to commit an act of terrorism.

III. Mr. Johnson Raised $200,000 for Obama in 2008

The first question in such cases is whether the war powers clause overrides the Bill of Rights.  The next question -- assuming that the answer to the prior question is "yes" -- is whether Congress has authorized President Obama, the DOD, and intelligence agencies a blank check to execute warrantless targeted killings to put down terrorist "insurrections".

The Obama administration's answer -- and Mr. Johnson's opinion on that matter -- is even more controversial as the answer to that question is even less clear.

Some have suggested that the Obama administration -- if given full approval to carry out drone death strikes -- might look to kill prominent leakers like Edward Snowden.  

Representative Ron Paul (R-Texas) -- one of the aforementioned members of Congress tasked with defining powers to put down a rebellion -- blasted warrantless targeted killings, warning, "I’m worried about somebody in our government might kill him with a cruise missile or a drone missile.  I mean we live in a bad time where American citizens don’t even have rights and that they can be killed, but the gentlemen is trying to tell the truth about what’s going on."

Ron Paul debates Obama
Rep. Ron Paul says Americans live in a time when their rights have been stripped and they must fear being killed if they disagree with the ruling administration.  [Image Source: AP]

Fortunately (or unfortunately in the eyes of some), such a warrantless killing of Mr. Snowden will not be possible as he has since moved on to asylum in Moscow, Russia, a region where the U.S. does not have the authorization or capability to conduct warrantless drone death strikes.  Future leakers, though, may not be so lucky, based on what Mr. Paul states.

The issue of drone killings is unlikely to lessen.  
The U.S.'s military research complex is pushing hard to create unmanned fully-autonomous armed drones and has refused to sign robotic warfare treaties that would keep a human soldier "in the loop" for any killing decisions.
 
Drone Killing
The U.S. pays families of those killed in drone death strikes "grief payments", but it has not paid the families of the four Americans it murdered, three of whom it claims were looming terrorist threats. [Image Source: Reuters]
 
As facial recognition and fully autonomous warfare advances, domestic spying programs may offer enhancement of warrantless death strike capabilities.  As data handling advances we may eventually reach a state where every citizen's phone signal is used to provide government databases with a discrete target location.  And combined with data mining of social networks and other records, autonomous drones may eventually be able to hunt Americans via phone signal and facial appearance (from harvested images), allowing warrantless death-strikes with a mere press of the button.

Given his advocacy of making military officials Judge Dredd-like figures in the war on terrorism, his nomination to replace interim Secretary Rand Beers (who in turn was filling in for former Secretary Janet Napolitano) is sure to provoke controversy.

Obama bribery wide
Jeh Johnson raised $200,000 for Obama in 2008. [Image Source: Politically Incorrect]

In addition to the targeted killings issue, there's the ever-present question of cronyism and federal corruption.  A USA Today piece from 2009 indicated that Mr. Johnson raised $200,000 USD for President Obama during his first election cycle.  While the President surely appreciates Mr. Johnson's endorsement of some of his key policies -- including targeted, warrantless killings of U.S. citizens -- one must wonder how much of a role this financial contribution played to the President decision to nominate Mr. Johnson to one of high bureaucratic positions in Washington.

Sources: Yale University [speech], Fordham Law School [speech], USA Today, NY Daily News





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