Former official sees "challenge" ahead pursuing terrorists
Jeh Johnson, former Pentagon General Counsel
July 11th, 2013
06:00 AM ET

Former official sees "challenge" ahead pursuing terrorists

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By Larry Shaughnessy

Jeh Johnson recently stepped down as the Pentagon’s top attorney. Now in private practice as a partner at PaulWeiss law firm in Washington, Johnson recently spoke to CNN about some of the issues he faced overseeing the Defense Department’s 10,000 uniformed and civilian lawyers, issues he may be asked about when he speaks at the Aspen Security Forum.

CNN: What is the biggest legal hurdle the Defense Department and Intelligence community face?

Johnson: “I would say that the biggest legal challenge that DoD and the intelligence community face right now is to settle upon a new legal architecture for, what I perceive to be, the next phase of our counterterrorism efforts against al Qaeda and other terrorism efforts.

“We’ve been through 12 years of what some people would characterize as conventional armed conflict. And most intelligence experts would agree that core al Qaeda has been decimated and we’re at an inflection point now. And it is most likely the case that the traditional approach to armed conflict is no longer the best approach and so we need, in my view, to develop a legal architecture and a legal strategy that is a whole of government approach that deals with the new terrorist threats in forms that are not necessarily al Qaeda and it’s affiliates.”

CNN: Are lawyers too involved in the decision-making process for commanders/operators in the field? Are there now too many lawyers who have to sign off on something before these people can act?

Johnson: “On the one hand, I think lawyers have to be careful not to become too involved. I was very clear about when I was providing legal advice and avoiding providing something that was not legal advice. And on the rare occasion when I thought I was providing advice or judgment on a military operation, I made it very clear it was not legal advice because nobody in the military chain of command wants to act contrary to laws.”

“There are a lot of lawyers and I think it’s a good thing that just about everybody in the chain of command has a lawyer to advise them. And I think a lot of people in the chain of command take comfort in having legal advice. Having the assurance of a legal review on a military operation - but we have to stay in our lane and I have seen lawyers on occasion get out of their lane. Lawyers do not have a corner on wisdom by any means. So I think we have to be careful to stay in our lane.”

CNN: When the National Security Agency material was leaked – admittedly by Edward Snowden - some said it put America at great risk. They called him a traitor. His defenders say that is the standard government answer. Others also point to accused WikiLeaker Bradley Manning and say the government has not found one case of a person being harmed by WikiLeaks. What’s the truth about these leaks?

Johnson: “Well, it’s difficult to provide a simple answer because the leaks that we’ve seen over the last several years are of different characters. Nobody can take the law into their own hands, and there a distinction to be highlighted between a whistleblower and somebody who engages in an unauthorized leak of classified informant contrary to law and contrary to their non-disclosure obligations. And so I won’t characterize either of these accused leakers as traitors. The criminal justice system will get to a result, assuming that Snowden is brought to justice at some point. The criminal justice system in the Manning case will get to a particular result. So I won’t put labels on what they did but I do think there is a distinction to be drawn between a whistleblower and somebody who decides to make an unauthorized disclosure of classified information. Strongly as we may feel about something we can just decide to take the law into our own hands and do something like that, otherwise you have anarchy.”

CNN: There has long been a debate over how to best handle terror suspects at Guantanamo Bay. Where do you stand?

Johnson: “I am someone who is a supporter of use of reformed military commissions in the proper context. So for a case like (Abd al-Rahim al-Nashiri), the alleged Cole bomber, if it is an offense that occurred in the course of an armed conflict and we say that the efforts against al Qaeda and their efforts against us are in the course of an armed conflict, and the victims were principally military, I would be prepared to say that the case ought to be prosecuted in a military commission and in fact that case is being prosecuted in a military commission. The KSM case (Khalid Sheikh Mohammed), the alleged 9-11 mastermind) is of a different nature because the victims were principally civilian. So one could take the view that the KSM case should have been prosecuted in the Southern District of New York. But we are where we are with that case. We also have to be mindful of the security challenges to bringing a group of five like that into the continental United States, into lower Manhattan.

We can’t overuse that system. Right after the Boston Marathon, some people said why don’t we just designate these guys enemy combatants? Well, I think that’s an impulse we ought to steer clear from, especially if you are talking about a U.S. citizen because military commission’s jurisdiction doesn’t extend to a U.S. citizen and we can’t over militarize our approach to our counter terrorism efforts.”

CNN: Will the Gitmo debate be a legal headache for the Defense Department until the last detainee dies?

Johnson: “I would not characterize it that way. I think that over time, as the population decreases, people will say, hey what are we doing here it is costing us so much money to keep this facility open on this island, let’s just break up the population and send them to various places in the continental U.S.

Ultimately I think that’s what’s going to happen, I can’t give you a time line for that, but I think that’s what’s going to happen.”

soundoff (24 Responses)
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  8. Samuel Cesena

    It’s onerous to search out knowledgeable folks on this matter, however you sound like you understand what you’re talking about! Thanks

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  10. Rebecca's

    Military-industrial complex still looking for bugabears, but there is no protection of US citizens and open borders. Shame on Congress, both sides, and on President Obama too.

    July 13, 2013 at 9:14 pm | Reply
  11. California

    This administrtion loves terrorists hence not calling them just that.

    July 11, 2013 at 3:34 pm | Reply
    • The REAL Truth...

      Yeah, they love them so much that they went and took out the head terrorist while he was in hiding in Pakistan...

      July 12, 2013 at 4:28 pm | Reply
      • USMC1371

        They went into a room and watched a t.v. the seals took out the terrorist.

        July 13, 2013 at 5:58 am |
      • Rebecca's

        Seals do as told. If they failed, it Would have been blamed on Obama. I am not denigrating Seals, but Obama is their Commander-in-Chief. Yep, he is also a black man.

        July 13, 2013 at 9:19 pm |
      • USMC1371

        You just told a black man that the president is black. ......retard

        July 13, 2013 at 11:13 pm |
  12. jim terwiliger

    The real terror threat to America is our militarized police force and corrupted government officials.

    Can't wait to hear the next story of patriotism served to these villains

    July 11, 2013 at 11:13 am | Reply
    • George patton

      Good posting, jim. Thank you.

      July 11, 2013 at 2:25 pm | Reply
    • necronn99

      I bet i can Hijack a Drone if it get close enough. It runs on a signal and multiplicand is easy to pick up . Wonder how affective it is in a real military situation since the other side will be blocking these bands. I see them only good for small and civilian attacks.

      July 12, 2013 at 12:23 am | Reply
    • Rebecca's

      The real threat are the Ku Korp Klan that controls our corrupt government. They threw money at it until it was corrupt enough to do their bidding. Oligarchy.

      July 13, 2013 at 9:22 pm | Reply
  13. George patton

    It appears that the right-wing thugs in Washington are still trying to scare the public now that it's common knowledge that Al Qaeda is not an effective "terrorist" organization nor ever was. It is also apparent that Al Qaeda with it's funds frozen and lack of sophistication could never have pulled off 9/11 without outside help. We all know now that 9/11 was a boon to the Bush Administration as it gave him the perfect pretext to invade Afghanistan and got the Patriot Act passed in Congress with minimal opposition.

    July 11, 2013 at 9:00 am | Reply
    • The REAL Truth...

      Fear is how they keep the low information right wing lemmings voting against their own best interests time after time. They push Fox Entertainment into every public venue in the south – by capturing all the sports activity (we know they love the NFL, MLB, NBA and NHL) – so they can be brainwashed, and channeled into believing the garbage they are being fed.

      July 12, 2013 at 4:32 pm | Reply
  14. SWAT

    X-47B Navy drone completes first ever unmanned carrier landing

    July 11, 2013 at 8:28 am | Reply

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