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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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By mike66 on 10/22/13, Rating: 0
RE: Pity
By BSMonitor on 10/22/13, Rating: -1
RE: Pity
By Dorkyman on 10/22/13, Rating: 0
RE: Pity
By BSMonitor on 10/22/2013 1:55:20 PM , Rating: 2
BTW your loathed FoxNews is generally judged to be the most-balanced of the major news sources.

LMAO Grow up, nothing else you said means anything if you really believe this.

RE: Pity
By Chaser on 10/22/2013 2:04:31 PM , Rating: 3
Persuasive counterpoint. I'll turn to MSLSD from now on.

RE: Pity
By tng on 10/22/2013 2:52:03 PM , Rating: 3
nothing else you said means anything if you really believe this.
I think that allot of people mistake "The News" for the opinion and hyperbole that all of the news stations throw out there.

If you just watch the top of the hour news on Fox, MSNBC, or CNN they are all basically the same with the same stories and headlines. It is after that where they have the shows with Wolf Blizter and Shawn Hannity where the stations diverge from each other.

Face it, if you want just the news, watch CNN Headline News. 24/7 news and very little opinion.

RE: Pity
By DFSolley on 10/24/2013 12:45:47 PM , Rating: 2
Certain news channels don't bring up certain stories at all, as they hurt their favored politicians or causes. The more likely a news channel is talking about stories that hurt its perceived bias, the more likely that is trying to be unbiased.

Headline News has a very high bias for not bringing up certain new stories but instead showing more fluff pieces. None of the channels are unbiased.

RE: Pity
By foxalopex on 10/22/2013 12:49:18 PM , Rating: 2
I highly doubt you could shoot down the larger drones which likely carry a laser guided missile from high altitude or from far away. You'd likely be blown up before you even knew what was happening. It takes some very expensive and sophisticated military grade equipment to protect against something like that.

If it was that easy, then the folks in the middle east would be shooting down drones all the time and seeing how they're armed to the teeth, you would think they would have an easier time than armed civilians but instead their best strategy is to hide.

Still I doubt the US would be daring enough to kill folks on domestic soil short of a massive terrorist attack. In a hostile country, in the company of questionable folks, all bets off.

RE: Pity
By Ammohunt on 10/22/2013 2:07:35 PM , Rating: 2
You wouldn't need to shoot them down. There are other simpler means to defeat drones.

RE: Pity
By Schrag4 on 10/22/2013 2:08:05 PM , Rating: 2
They got they guns.. They'll shoot down those drones from their back yards.

Is my sarcams meter broken today? If you were being serious, I'd like to know what gun you or I can own that's capable of downing a drone flying at 10k-30k feet.

RE: Pity
By BSMonitor on 10/23/2013 12:46:02 PM , Rating: 2

Mocking would be a better word... They need all their guns in case the government comes... With their tanks, and jets, and nukes, and helos..

RE: Pity
By Chaser on 10/22/2013 1:59:21 PM , Rating: 2
We'd be more than happy to have those countries that are much closer to the middle east assume full responsibility for the safe flow of trade and oil including the Suez Canal. Please! Budget more to your military, and we'll cut ours (even more).

RE: Pity
By ShieTar on 10/23/2013 9:53:35 AM , Rating: 2
Why would anybody budget more to their military? There is absolutely nothing to be achieved by attacking anybody in the Middle East & Central Asia, as the US have proven beyond a shadow of a doubt over the last 3 decades. With every war that was "won", the opposition has grown stronger. Over the last 2 decades, all the opponents have been fighting with weapons provided by the US and Europe, since the exact definition of friend or foe has been changing almost on a daily basis, with little to no logic behind.

Who knows when we will come to the surprising conclusion that the leaders of Saudi-Arabia are actually treating own their people just as badly as the leaders of Iraq and Lybia have, and that we now need to fight for annother regime change. This time against German tanks and French fighter jets, good luck with that.

The combined cost of the Marshall Plan was 150 billion in today's economic conditions, i.e. 1/5th of the current annual military budget of the US. It turned the continent that had seen almost 5 millenia of continuous warfare into the most peaceful place on the entire planet. Now that's what I call intelligent geopolitics, not the current resurrgance of "Let's just kill everybody who is evil, then things will be fine".

The definition of terrorism
By roykahn on 10/22/2013 4:37:48 PM , Rating: 3
One of the more laughable aspects of this topic is the definition of terrorism. The US government officials would argue that these drones are necessary to fight terrorism, in other words, they are using anti-terrorist techniques. On the other hand, one could easily claim that these drones are being used for terrorist activities. The only distinction is who is doing the killing and who is being killed.

Congratulations America, you now have a democratically elected terrorist Government. What a unique situation!

RE: The definition of terrorism
By ShieTar on 10/23/2013 5:11:19 AM , Rating: 2
Gets even funnier if you consider that terrorists are mainly identified by the combination of bearing arms (but in the wrong part of the world) and speaking freely (but about anti-American topics). Apparently, the first two amendments to the US constitution immediately turn into capital crimes as soon as you cross the border.

By Cerin218 on 10/22/2013 6:49:25 PM , Rating: 3
And believes 1984 is an instruction manual.

And people seriously ask...
By lexluthermiester on 10/22/2013 9:52:11 PM , Rating: 2
... why I've been calling Bush and Obama traitors? Really? Any FURTHER questions?

Nice Try
By BSMonitor on 10/22/13, Rating: -1
RE: Nice Try
By tng on 10/22/2013 12:16:41 PM , Rating: 2
Never mind that these Americans are actively living and working with terrorist cells/groups in the Middle East. Otherwise known as an active war zone, declared by GW Bush... "Either you are with us, or with the terrorists"

But you are right, your anti-Obama rant simply adds to the negative balance of credibility the blogger wanna-be Jason Mick has accumulated..

Not sure how you really feel about this... You seem to come down as both Pro and Con on strikes, but anti Jason Mick.

IMO I see this as a policy that can only go bad long term. You can blame GWB for starting it, but if you do you also must put just as much blame on Obama for continuing and even expanding it.

I can't blame Jason for putting this out there, not like he put the policy in place. I aso don't see it as an "anti-Obama" rant, just an explanation of the way things are at the moment.

RE: Nice Try
By BSMonitor on 10/22/13, Rating: -1
RE: Nice Try
By brasstax on 10/22/2013 2:26:16 PM , Rating: 3
Pretty belligerent post BSMonitor.

I remember the days of hating Jason Mick because he was a flaming liberal. I wonder has he changed or has the world around him?

To the point. A President always runs the risk of being on the wrong side of Congress and impeachment - so Obama's real authority is a shadow of what you suggest. What a President is able to get away with in the short-term, however, is the issue at hand.

I don't disagree with the killings, but I'm frustrated by the lack of a warrant. With a grand total of three (3) individuals that we know of, it doesn't seem like a warrant should be an impossible thing. We aren't talking about fighting hundreds of thousands of Americans. Why it is necessary to tempt running afoul of the Constitution is beyond me.

I'm sure they have their reasons, but I'm also sure that those reasons are wrong.

RE: Nice Try
By Amedean on 10/22/13, Rating: -1
RE: Nice Try
By integr8d on 10/23/2013 2:37:38 AM , Rating: 3
That's funny. Most of those sites just regurgitate press releases, while the rest are blatantly left wing.

Ars is as far left as any of them. And they come down pretty damn hard on the current admin, for exactly the same reasons that Jason Mick states. Of course, you can also get your daily dose of climate change blah blah blah as well.

If you want to join the echo chamber and can't handle hearing someone else's perspective, please leave.

RE: Nice Try
By Amedean on 10/23/2013 6:43:37 PM , Rating: 2
Technology, that is what you will find. I rarely encounter a political article in those sites so how does a stubborn person draw a conclusion like yours?

Again, keep sipping the bigotry Cool-Aid.

RE: Nice Try
By Just Tom on 10/23/2013 11:02:59 AM , Rating: 2
I don't disagree with the killings, but I'm frustrated by the lack of a warrant.

What court does one go to to get a warrant to kill someone?

RE: Nice Try
By Captain Orgazmo on 10/24/2013 5:42:31 AM , Rating: 2
When he [POTUS] kills without due process, he disobeys the laws he has sworn to uphold, no matter who agrees with him. When we talk about killing as if it were golf, we debase ourselves. And when the government kills and we put our heads in the sand, woe to us when there is no place to hide.

RE: Nice Try
By BSMonitor on 10/23/2013 12:43:44 PM , Rating: 2
Your utter lack of the context of this discussion is laughable.

Again, the President could order any military, CIA, FBI asset to kill you in your bed. Yet somehow the drones are different relating to warrants and due process??

The connection between courts and drones is even more laughable..

Keep trying right-wing flamers... Some day something you post will actually pass the test of the simplest rational scrutiny.

RE: Nice Try
By conq on 10/24/2013 9:15:08 AM , Rating: 2
Again, the President could order any military, CIA, FBI asset to kill you in your bed. Yet somehow the drones are different relating to warrants and due process??

You apparently live in a world that's only black or white with a complete disregard for reality which is far more gray and complex. You're describing a US president as a dictator with limitless power to kill, which is really not true. With that kind of authority he'd have no problem pushing any bill through congress. But in reality power is slippery thing, it's all rather invisible and difficult to quantify. We put things down on paper and establish legal laws but there's nothing directly tangible to measure it. So let's pretend for a moment he decided to use his legal authority to perform a kill order on you without just cause while in bed sleeping. Let's also presume the people given the order, regardless of dept, up and down the hierarchy chain, would actually carry it out. Now if such an order was ever publicly discovered (likely), it would get him swiftly removed from office from public outrage.

So could one plausibly argue he never really quite had that power in the first place? Yes, that argument is there.

Personally I believe every left wing and right wing nut job should get their fair day in court, no warrantless kill orders. Some things need red tape. Even with red tape, it's still just red tape, and it can still get broken. So in extreme unusual circumstances people break rules but as long as society can justify it, even if it was wrong, they'd let it slide.

RE: Nice Try
By ClownPuncher on 10/22/2013 2:50:37 PM , Rating: 2
Even soldiers on the battlefield get a trial. There is no due process when you lob a missile at someone's face without ever having to prove they were guilty in a court of law.

RE: Nice Try
By tng on 10/22/2013 2:55:08 PM , Rating: 2
Grow up
Obviously you have some issues...

RE: Nice Try
By BSMonitor on 10/23/2013 12:48:01 PM , Rating: 2
I just meet people at levels of intellect they can relate to.

RE: Nice Try
By tng on 10/25/2013 1:11:05 PM , Rating: 2
No American on American soil, or in any civilized nation is in danger of "drone strikes".
Now who is reading in meaning where there is none? Don't think I mentioned "Drone Strikes on American Soil" in my post. That really was not where I was going and that is fairly clear.

By the way, how much time do you spend off American soil? I spend allot of time traveling and yes this kind of crap does concern me.

I am as patriotic as anybody, but I also recognize that there are limits that our government should be held to and they are slowly exceeding those limits.

My 2 cents.

RE: Nice Try
By Skywalker123 on 10/22/2013 3:25:07 PM , Rating: 2
No need to "attempt" to discredit Obama, he has already done that himself. Everyone has abandoned him except hard core idiots.

RE: Nice Try
By Reclaimer77 on 10/22/2013 4:38:50 PM , Rating: 2
Skywalker you've tried to tear me apart for making comments JUST like that in the past. Could it be you've had your eyes opened as of late?

RE: Nice Try
By Skywalker123 on 10/24/2013 4:48:38 PM , Rating: 2
??? I don't recall EVER defending the Messiah.

RE: Nice Try
By wookie1 on 10/22/2013 12:23:55 PM , Rating: 5
You're right, the politicians will only have the purest of objectives with this power. They would never use it against a political opponent or someone who may cause them embarrassment that could jeopardize their re-election. How do you know who these Americans are, the only information you have about them comes from their killers. Also, the CIA/military has admitted that they aren't sure who is getting killed at least 25% of the time, especially since anyone near the target may also be killed by the blast. I know that they're just collateral damage, and they probably had it coming even though they may not have anything to do with the target. Is this the hope and change that people wanted? Wasn't there some fierce moral urgency to end GWB's policies, not ramp them up to the next level?

RE: Nice Try
By inperfectdarkness on 10/23/2013 2:38:12 AM , Rating: 3
Perhaps that's why their approval ratings are nearly identical--relative to this point in their respective administrations?

No, I'm afraid when the analysis is in, the only good and benevolent thing that will be chalked up to the Obama administration--is net neutrality. Everything else has been a trainwreck of fail.

"I mean, if you wanna break down someone's door, why don't you start with AT&T, for God sakes? They make your amazing phone unusable as a phone!" -- Jon Stewart on Apple and the iPhone

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