Jeh Johnson: “The Role of Lawyers in National Security Policy-Making”

“I was an eyewitness to 9/11- I saw the second plane hit the twin towers…Afterwards, like so many people in New York, I wandered the streets, wondering how I could help. I’ve spent the last few years answering that question,” said Jeh Johnson at an October 3rd talk at the Stanford Law School. About 150 people listened to Johnson discuss both his life story and his actions as General Counsel of the US Department of Defense in his talk, “The Role of Lawyers in National Security Policy-Making.”

Johnson began by urging the audience, composed largely of Law School students, to pursue careers in public service. “Law firms are an excellent training ground for the practice of law. But there are many other career paths that you can pursue- public service especially,” he said. “These opportunities often are not as apparent. But they are there.”

He then described his own career path: despite early interest in politics and government, he spent his first 6 years after graduating from Columbia Law School at Paul, Weiss, Rifkind, Wharton & Garrison, LLP, where he concentrated in hostile takeover litigation. Seeking increased court exposure, he then spent two years working as a public prosecutor before returning to private practice. In 1998, President Clinton asked Johnson to serve as the General Counsel of the Air Force- a request that came absolutely out of the blue to Johnson, who had had little previous contact with the Clinton Administration. When asked about his selection during Q&A, Johnson guessed that “the Clinton Administration was just looking for good lawyers…Part of Clinton’s legacy is that he took lawyers like me and steeped us in national security knowledge.”

Johnson first met then-Senator Obama in 2006, at a fundraiser for Robert Menendez, who was running for US senator in New Jersey. Pressure was already building for Obama to run for President: Johnson described how Obama called him the day before Thanksgiving, two months before he officially announced his candidacy, to ask for Johnson’s support if he did run. Johnson went on to serve as a surrogate for Obama on TV, a national security advisor, and a member of Obama’s national finance committee. After Obama was elected, he nominated Johnson to be the General Counsel of the DoD.

As General Counsel, Johnson was in charge coordinating the DoD’s position on legislation, Executive Orders, and Freedom of Information Act requests, determining policy on legal issues, and overseeing the DoD’s force of over 10,000 lawyers.

In his time as General Counsel, Johnson concentrated on two major issues: the proposed repeat of “Don’t Ask, Don’t Tell,” (DADT) and the legal limits on counter-terrorist operations.

Johnson co-chaired, with General Carter Ham, a committee of 65 people assigned to consider DADT repeal. They spoke with over 25,000 soldiers at Information Exchange Forums, so named because “we didn’t want to call them town halls.” They also relied on anonymous online surveys, which allowed LGBT soldiers to speak out without fear of violating DADT: one anonymous soldier said “Repeal would simply take a knife out of my back. You have no idea what it’s like to serve in silence.” They also provided President Obama’s favorite quote on the subject: “We have a gay guy in the unit. He’s big, he’s mean, he kills lots of enemies. Nobody cares that he’s gay.” In the end, Johnson and Ham reported that the risks of DADT repeal would likely be “minimal,” and Congress repealed it.

Johnson’s other concentration has been on the legal aspects of counter-terrorist operations. He said that “Armed conflict against al-Qaeda and its affiliates is the most challenging aspect of my job…We fight the enemy where we find the enemy…[but] our approach has been to apply the conventional principles of armed conflict. We have also tried to be more transparent.” To this end, the US has negotiated agreements with host nations, such as Afghanistan, Somalia, and Yemen; it has also revised guidelines at Guantanamo Bay, in an effort to improve the transparency, legality, and humanity of previous guidelines.

Much of the Q&A session focused on these reforms. A few questions, such as one regarding the criteria for use of force without host nation consent or one regarding potential lawsuits following the publication of No Easy Day, forced Johnson to beg off a complete answer due to classified information. (His answer to the first question was that “in an act of self-defense, we can go into a nation to deal with a terrorist thread it is unable or  unwilling to deal with itself;” his answer to the second was that “he would have publically stated that [the author of No Easy Day] is in violation of his agreements.”) Others evoked a more legalistic response, such as his outline of US options for trying the killers of Ambassador Stevens, should they to be captured. Another question, regarding civilian oversight of the military, elicited a summary of how legal decisions get made at the DoD: the DoD’s 9,500 Judge Advocate Generals review and pass significant decisions to Johnson, the Secretary of Defense, and finally the President. Johnson’s approval of legality is required before the Secretary of Defense and President start to consider potential military-related operations.

Johnson also has had to deal with a number of what he described as “thorny legal issues.” For example, Mt. Soledad in San Diego, is the location of a military cemetery topped by a large cross. Since 1989, the state and federal governments have been involved in rounds of litigation sponsored by the ACLU, veterans groups, and christian organizations, dealing with the presence of the cross. Some solutions, such as selling the land in question, have been ruled illegal or failed as ballot initiatives, while others, like passing the land from the state to federal government, did nothing to solve the problem.