For the last six weeks, the U.S. Department of Homeland Security — one of nation’s largest cabinet departments — has been director-less, following the departure of Janet Napolitano, who left Washington to become the new president of the University of California system. On Friday, President Obama announced the appointment of a former senior Pentagon lawyer who infamously defended the administration’s unmanned drone targeted strike program to head the DHS, indicating that the department’s primary agenda may segue from immigration and border control toward national defense.
Jeh C. Johnson, a long-time Democratic appointee — including postings as an assistant U.S. attorney for the Southern District of New York, general counsel for the U.S. Air Force and general counsel for the Department of Defense under President Obama — has served as an administration frontman on the overturning of “Don’t Ask, Don’t Tell,” on the government’s challenge on the Wikileaks disclosures and on the administration’s continued involvement in the “war on terror.” Should the Senate confirm him, he will be the fourth permanent secretary of Homeland Security. The grandson of Charles S. Johnson — the first Black president of Fisk University and noted advocate for civil rights and racial equality for all ethnic minorities — Jeh Johnson offers a mixture of military pragmatism and hopefulness in the nature of humanity.
“The president is selecting Johnson because he is one the most highly qualified and respected national security leaders, having served as the senior lawyer for the largest government agency in the world,” a senior administration official told ABC News. “During his tenure at the Department of Defense he was known for his sound judgment and counsel.”
A changing agenda
Napolitano, the former governor of Arizona, came into the DHS championing immigration reform. During her primary confirmation hearing in the Senate and throughout her history of primary policy while as head of the DHS, terrorism was rarely raised as a directionable issue. Johnson’s experience — including cracking down on unauthorized leaks coming from the Department of Defense, stopping former Navy SEAL Matt Bissonnette from publishing secrets about the assassination of Osama bin Laden and the investigation of retired Gen. John Allen and socialite Jill Kelley — suggests that Johnson’s DHS leadership will be indicative of the administration’s hardened posture toward using legal force to ‘slay all of the dragons’ still challenging the White House: cybersecurity, restoring public trust in the government’s pursuit of national security, immigration reform and refining and leak-proofing National Intelligence.
“We need someone who appreciates that you can’t secure the country from inside the Beltway,” said Tom Ridge, the first secretary of Homeland Security, who has been critical of some of the president’s national security strategies. Ridge feels that the department’s secretary should be an expert in some of the department’s missions — but not necessarily all of them — and should have an understanding of national security.
While Johnson has been outspoken in his views on fighting terrorism overseas, he has remained largely silent on other DHS responsibilities, including countering homegrown radicalization, enforcing the nation’s immigration laws, responding to natural disasters, and effectively sharing threat information with local law enforcement.
Nevertheless, Johnson ‘was a key decision maker on various legal questions regarding different points of overlap between the Defense Department and the Department of Homeland Security,’ the senior administration official said. ‘During disaster responses, the Department of Defense oftentimes coordinates with DHS to provide personnel, equipment, money and other resources. Whether it was Hurricane Sandy or the Deepwater Oil Spill, DoD was working with its partner, DHS, to support the government’s efforts to quickly respond effectively.’
Forcing change
In two key areas, Johnson’s policies and views will be questioned and tested. First, Johnson’s 2010 report on the long-term effect of the repealing of the military’s “don’t ask, don’t tell” (DADT) policy — which prohibited officials from ordering a military members to disclose his or her sexuality but freed the military to respond if the officer’s sexuality was disclosed voluntarily — concluded with the understanding that repealing the law would cause short-run limited disruptions in unit cohesion and retention, which could easily be remedied with strong leadership. This report formed the justification for the administration’s repealing of DADT.
“We are both convinced that our military can do this, even during this time of war,” Johnson and General Carter F. Ham, commander of the U.S. Army in Europe and co-author of the report, wrote. “We do not underestimate the challenges in implementing a change in the law, but neither should we underestimate the ability of our extraordinarily dedicated service men and women to adapt to such change and continue to provide our nation with the military capability to accomplish any mission.”
Johnson was led by strong moral convictions in his determination on this issue. While Johnson does not see sexual orientation as a “self-identifier,” he does see discrimination in any form as inherently unfair. Johnson’s uncle, Robert B. Johnson, was a member of the Tuskegee Airmen — the highly-decorated all-Black bomber escort squadron known for having one of the best service records in World War II. The older Johnson was involved in the 1945 Freeman Field Mutiny, in which a group of the Tuskegee Airmen was arrested for entering an all-White officers’ club at Freeman Field, Ind. and held for ten days — with one court martial conviction and fifteen letters of reprimand — before Gen. George C. Marshall, the Army chief of staff, called an end to the fiasco. Under President Bill Clinton, the court martial and letters of reprimands were removed and the fines were returned.
The event is commonly seen as the trigger for racial integration of the American military. The opposition to integrating the armed forces in the 1940s, Johnson said, was as high as 80 percent, compared to the 60 percent of Marines that opposed the repeal of DADT. “The lesson to be drawn from that,” he said, “is that very often the predictions about what is going to happen overestimate the negative consequences and underestimate the military’s ability to adapt.”
“The president’s man”
Carrying with the theme that popular sentiment should not dictate policy, Johnson’s second challenge comes with his support of the administration’s use of unmanned aerial vehicles for targeted killings. During a March 18 keynote address at Fordham Law School, Johnson defended the administration’s disclosure of the “targeted killing” program:
“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. They see dark images of civilian and military national security personnel in the basement of the White House — acting, as Senator Angus King put it, as ‘prosecutor, judge, jury and executioner’ — going down a list of Americans, deciding for themselves who shall live and who shall die, pursuant to a process and by standards no one understands.
“Our government, in speeches given by the Attorney General, John Brennan, Harold Koh, and myself, makes official disclosures of large amounts of information about its efforts, and the legal basis for those efforts, but it is never enough, because the public doesn’t know what it doesn’t know, but knows there are things their government is still withholding from them.”
Johnson’s stance as “the president’s man” puts Johnson in an awkward position. He has defended the American mission in Iraq and Afghanistan as something the Rev. Martin Luther King, Jr. would have supported — which earned Johnson the scorn of Jeremy Scahill and Salon.com — defended the “war on terrorism” as a finite war nearing its tipping point and defended targetted killings, saying in 2012 at Yale Law School: “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 dealing with difficult questions on drone use, such as the targeting and killing of Anwar al-Awlaki and his son, he punts, insisting that it was the CIA and not the military that conducted that assassination, and that he is not empowered to speculate on that.
For example, Johnson criticized the notion of obtaining judicial oversight to targeted killings. “The idea is motivated by a desire to rein in the president’s constitutional authority to engage in armed conflict and protect the nation, which is the very reason it has constitutional problems,” Johnson said at the Fordham University School of Law.
“Article II of the Constitution states that the President ‘shall’ be the Commander-in-Chief of the armed forces. That is his burden and responsibility. He may delegate his war-fighting authority within his chain of command, but he cannot assign part of it away to another branch of government, nor have it taken away by an act of Congress. The Article III problems are just as serious: the judiciary does not exist to issue advisory opinions or offer legal advice to the President; they exist to resolve live cases or controversies.”
Challenges such as these, taken in consideration with Johnson’s stance on civil rights and the fact that Johnson was one of the few that called on the White House to take a softer military stance against Libya during America’s intervention and to get congressional approval first in accordance with the War Powers Act, make it difficult to draw a clear distinction on who Johnson is and how he will manage the DHS, and maybe that’s for the best. The 240,000-employee, 22-agency department, which answers to more than 100 different congressional committees and subcommittees, will need someone flexible and principled enough to roll with the punches, especially in light of the department’s numerous senior vacancies.
It’s now up to the Senate to decide if a “president’s man” deserves to be in charge of the nation’s security. Considering that Johnson was not even on the shortlist of possible nominees for the job, per national security insiders, there may be much to discuss.