By Pam Benson
Even with the war in Afghanistan winding down, the United States will continue its fight against al Qaeda and its affiliates, wherever they may be, by using all means available in an armed conflict, the Pentagon's chief lawyer said Friday.
"We must counter al Qaeda in the places where it seeks to establish safe haven and prevent it from reconstituting in others. To do this, we must utilize every national security element of our government," said Jeh Johnson, the top lawyer for the U.S. Defense Department, at a speech Friday at Oxford University in England.
Those elements of force, he said, include unmanned aerial vehicles, widely referred to as drones, to kill suspected terrorists hiding in the ungoverned regions of Pakistan, in Yemen and elsewhere, as well as the indefinite detention of extremists caught on the battlefield.
Johnson said that some legal scholars and commentators refer to the drone attacks as extrajudicial killing and criticize the U.S. government for holding individuals without formal charges. But he argued that the tools used against al Qaeda in what he called "an unconventional conflict" are legitimate.
He said that capture and detention by the military are parts of war, adding: "We employ lethal force, but in a manner consistent with the law of war, principles of proportionality, necessity and distinction."
Johnson said that approach is consistent with the Geneva Conventions governing conflict and that all three branches of the U.S. government have endorsed the efforts used to combat al Qaeda.
His remarks echoed those of President Barack Obama's national security adviser early this week. Tom Donilon told an audience at Harvard University Wednesday night that the United States uses methods "in full compliance with domestic and international law ... in the framework of an international armed conflict against groups that present a threat to the United States."
The use of drones against al Qaeda is done in a very targeted, specific way so as to avoid civilian casualties, he said.
"It's done prudentially and it's done in a narrow way with a lot of deliberation and very conscious with respect to collateral damage, civilian casualties," Donilon said.
Counterterrorism concerns in Afghanistan after the U.S. military drawdown is completed in 2014 are very much on the minds of American officials.
At a news conference on Thursday, Defense Secretary Leon Panetta said the United States will have to be continually vigilant about preventing al Qaeda terrorists from re-establishing themselves there and once again posing a threat to Americans.
Even after combat troops leave, the United States will have an "enduring presence" for counterterrorism, he said.
"And although, you know, we clearly have had an impact on their presence in Afghanistan, the fact is that they continue to show up and intelligence continues to indicate that, you know, they are looking for some kind of capability to be able to go into Afghanistan," Panetta said.
In his Oxford speech, Johnson posed the question of how the conflict with al Qaeda will end, and answered by saying it will not happen in conventional terms.
"We cannot and should not expect al Qaeda and its associated forces to all surrender, all lay down their weapons in an open field, or to sign a peace treaty with us," the Pentagon's top lawyer said. Nor can the United States strike a deal with groups that terrorize the United States and other nations and call for Israel's destruction, he said.
Johnson said the United States must continue its fight against al Qaeda, but that does not mean it expects to be able to end the battle by capturing or killing every terrorist connected to al Qaeda.
There will be a "tipping point," he said, at which the group will be "effectively destroyed," no longer having sufficient numbers to be capable of launching a strategic attack against the United States as it did in 2001.
"At that point, we must be able to say to ourselves that our efforts should no longer be considered an armed conflict against al Qaeda and its associated forces; rather, a counterterrorism effort against individuals who are the scattered remnants of al Qaeda, or are parts of groups unaffiliated with al Qaeda, for which the law enforcement and intelligence resources of our government are principally responsible, in cooperation with the international community - with our military assets available in reserve to address continuing and imminent terrorist threats."
Even when that point comes, Johnson said, the United States will face another critical question: What happens to the terrorists still held in U.S. military custody without criminal charges? Currently, there are more than 160 detainees at the Guantanamo Bay military complex in Cuba, some of whom are awaiting trial, but many more who are either designated to be transferred to other countries if arrangements can be made or are considered too dangerous to be released even though there is insufficient evidence to charge them with a crime.
Johnson said the United States will have to "look to conventional legal principles to supply the answer," but he did not elaborate.