Homeland Security Watch

News and analysis of critical issues in homeland security

October 24, 2013

Mr. Johnson Goes to Oxford

Filed under: Legal Issues,Terrorist Threats & Attacks — by Philip J. Palin on October 24, 2013


Video of Mr. Johnson’s address to the Oxford Union

Nearly eleven months ago Jeh Johnson, then coming to the close of his tenure as DOD General Counsel, addressed the Oxford Union on how the conflict with al-Qaeda and its affiliates will end.

Mr. Johnson has now been nominated to serve as the secretary of homeland security.

Following is most of that speech.  I do not include a long preface of administration priorities achieved nor any of the twenty-five footnotes.  Other lacunae are noted below.

–+–

The United States government is in an armed conflict against al Qaeda and associated forces, to which the laws of armed conflict apply. One week after 9/11, our Congress authorized our President to “to use all necessary and appropriate force” against those nations, organizations and individuals responsible for 9/11. President Obama, like President Bush before him, as Commander-in-Chief of our Armed Forces, has acted militarily based on that authorization. In 2006, our Supreme Court also endorsed the view that the United States is in an armed conflict with al Qaeda.[7] Therefore, all three branches of the United States government – including the two political branches elected by the people and the judicial branch appointed for life (and therefore not subject to the whims and political pressures of the voters) – have endorsed the view that our efforts against al Qaeda may properly be viewed as an armed conflict.

But, for the United States, this is a new kind of war. It is an unconventional war against an unconventional enemy. And, given its unconventional nature, President Obama – himself a lawyer and a good one – has insisted that our efforts in pursuit of this enemy stay firmly rooted in conventional legal principles. For, in our efforts to destroy and dismantle al Qaeda, we cannot dismantle our laws and our values, too.

The danger of al Qaeda is well known. It is a terrorist organization determined to commit acts of violence against innocent civilians. The danger of the conflict against al Qaeda is that it lacks conventional boundaries, against an enemy that does not observe the rules of armed conflict, does not wear a uniform, and can resemble a civilian.

But we refuse to allow this enemy, with its contemptible tactics, to define the way in which we wage war. Our efforts remain grounded in the rule of law. In this unconventional conflict, therefore, we apply conventional legal principles – conventional legal principles found in treaties and customary international law.

As in armed conflict, we have been clear in defining the enemy and defining our objective against that enemy.

We have made clear that we are not at war with an idea, a religion, or a tactic. We are at war with an organized, armed group — a group determined to kill innocent civilians.

We have publicly stated that our enemy consists of those persons who are part of the Taliban, al-Qaeda or associated forces, a declaration that has been embraced by two U.S. Presidents, accepted by our courts, and affirmed by our Congress.

We have publicly defined an “associated force” as having two characteristics: (1) an organized, armed group that has entered the fight alongside al Qaeda, and (2) is a co-belligerent with al Qaeda in hostilities against the United States or its coalition partners.

Our enemy does not include anyone solely in the category of activist, journalist, or propagandist.

Nor does our enemy in this armed conflict include a “lone wolf” who, inspired by al Qaeda’s ideology, self-radicalizes in the basement of his own home, without ever actually becoming part of al Qaeda. Such persons are dangerous, but are a matter for civilian law enforcement, not the military, because they are not part of the enemy force.

And, we have publicly stated that our goal in this conflict is to “disrupt, dismantle, and ensure a lasting defeat of al Qaeda and violent extremist affiliates.”

Some legal scholars and commentators in our country brand the detention by the military of members of al Qaeda as “indefinite detention without charges.” Some refer to targeted lethal force against known, identified individual members of al Qaeda as “extrajudicial killing.”

Viewed within the context of law enforcement or criminal justice, where no person is sentenced to death or prison without an indictment, an arraignment, and a trial before an impartial judge or jury, these characterizations might be understandable.

Viewed within the context of conventional armed conflict — as they should be — capture, detention and lethal force are traditional practices as old as armies. Capture and detention by the military are part and parcel of armed conflict. We employ weapons of war against al Qaeda, but in a manner consistent with the law of war. We employ lethal force, but in a manner consistent with the law of war principles of proportionality, necessity and distinction. We detain those who are part of al Qaeda, but in a manner consistent with Common Article 3 of the Geneva Conventions and all other applicable law.

But, now that efforts by the U.S. military against al Qaeda are in their 12th year, we must also ask ourselves: how will this conflict end? It is an unconventional conflict, against an unconventional enemy, and will not end in conventional terms.

Conventional conflicts in history tend to have had conventional endings…

(Here Mr. Johnson provides a quick summary of how a few prior wars have ended.)

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. They are terrorist organizations. Nor can we capture or kill every last terrorist who claims an affiliation with al Qaeda.

I am aware of studies that suggest that many “terrorist” organizations eventually denounce terrorism and violence, and seek to address their grievances through some form of reconciliation or participation in a political process.[20]

Al Qaeda is not in that category.

Al Qaeda’s radical and absurd goals have included global domination through a violent Islamic caliphate, terrorizing the United States and other western nations from retreating from the world stage,[21] and the destruction of Israel. There is no compromise or political bargain that can be struck with those who pursue such aims.

In the current conflict with al Qaeda, I can offer no prediction about when this conflict will end, or whether we are, as Winston Churchill described it, near the “beginning of the end.”

I do believe that on the present course, there will come a tipping point – a tipping point at which so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed.

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…

(Here Mr. Johnson considers legal issues in making the transition from war time to peace time.)

For now, we must continue our efforts to disrupt, dismantle and ensure a lasting defeat of al Qaeda. Though severely degraded, al Qaeda remains a threat to the citizens of the United States, the United Kingdom and other nations. We must disrupt al Qaeda’s terrorist attack planning before it gets anywhere near our homeland or our citizens. 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, and work closely with our friends and allies like the United Kingdom and others.

Finally, it was a warfighting four-star general who reminded me, as I previewed these remarks for him, that none of this will ever be possible if we fail to understand and address what attracts a young man to an organization like al Qaeda in the first place. Al Qaeda claims to represent the interests of all Muslims. By word and deed, we must stand with the millions of people within the Muslim world who reject Al Qaeda as a marginalized, extreme and violent organization that does not represent the Muslim values of peace and brotherhood. For, if al Qaeda can recruit new terrorists to its cause faster than we can kill or capture them, we fight an endless, hopeless battle that only perpetuates a downward spiral of hate, recrimination, violence and fear.

“War” must be regarded as a finite, extraordinary and unnatural state of affairs. War permits one man – if he is a “privileged belligerent,” consistent with the laws of war — to kill another. War violates the natural order of things, in which children bury their parents; in war parents bury their children. In its 12th year, we must not accept the current conflict, and all that it entails, as the “new normal.” Peace must be regarded as the norm toward which the human race continually strives.

Right here at Oxford you have the excellent work of the Changing Character of War program: leading scholars committed to the study of war, who have observed that analyzing war in terms of a continuum of armed conflict — where military force is used at various points without a distinct break between war and peace — is counterproductive. Such an approach, they argue, results in an erosion of “any demarcation between war and peace,” the very effect of which is to create uncertainty about how to define war itself.

I did not go to Oxford. I am a graduate of a small, all-male historically black college in the southern part of the United States, Morehouse College. The guiding light for every Morehouse man is our most famous alumnus, Martin Luther King, who preached the inherent insanity of all wars. I am therefore a student and disciple of Dr. King – though I became an imperfect one the first time I gave legal approval for the use of military force. I accepted this conundrum when I took this job. But, I still carry with me the words from Dr. King: “Returning hate for hate multiples hate, adding deeper darkness to a night already devoid of stars … violence multiplies violence, and toughness multiplies toughness in a descending spiral of destruction … The chain reaction of evil—hate begetting hate, wars producing more wars—must be broken, or we shall be plunged into the dark abyss of annihilation.”

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4 Comments »

Comment by William R. Cumming

October 24, 2013 @ 2:28 am

A thoughtful address presumably prepared by Mr. Johnson himself!

Comment by Quin

October 24, 2013 @ 10:32 am

It’s an admirable thought that we are not to remain in a perpetual state of war with Al Qaeda. I am personally very sympathetic to that point of view. But I don’t know how much of a reality it may be. More likely, it will end, only to be replaced by another. Look no further than World War I, which ashes sparked World War II, just like the incomplete ending to the First Gulf War helped lead to the Second Gulf War.

West Point was founded in 1802. Those officers that achieve a full career in the Army will serve for 30+ years rising to the rank of colonels and generals. Beginning with that first class, every one has fought what used be called a “major theater war”. This doesn’t even include smaller conflicts that you might describe as “interventions” such as sinking much of the Iranian Navy in the 1980′s, Grenada, the Banana Wars, Boxer Rebellion, the Barbary Pirates or the decades sprawling Cold War.

War of 1812 1812-1815

Mexican War 1846-1848

The Civil War 1861-1865 (note Winfield Scott personally served in these first three wars)

The Spanish-American War 1898 (note the gap between 1865 and 1898 was more than busy for the U.S. Army “pacifying” the Western U.S. Just ask the 7th Calvary)

World War I 1917-1918

World War II 1941-1945 (although we were already being shot at by German U-Boats, just ask the crew of the Rueben James)

Korean War 1950-1953

Vietnam War 1965ish (the landing if U.S. Marines at Da Nang but our first combat death was just at the end of WW II)-1973

First Gulf War 1990-1991

Second Gulf War (OIF)2003-2011

Afghanistan (OEF) 2001-today

It’s a laudable aspiration, but if it happened, it would be a first in our over 237 years of history. Wars, by nature, are rarely linear and more like a wildfire. They spark and jump, peter out, blow up, end, and then when the forest regrows, blow up again. The firefighter’s job is never done.

Unfortunately.

Comment by William R. Cumming

October 24, 2013 @ 1:28 pm

Quin! Blessed be Peacemakers!

Comment by Philip J. Palin

October 25, 2013 @ 6:19 am

Quin (and Bill and Dan):

Reading Martin Luther King and his scriptural sources (and, it seems to me, many complementary sources from Pythagoras, Plato, Buddha, Confucius, Mohammed, Nietzsche and modern natural science) we are encouraged to recognize timeless sources of suffering. We are taught our own choices can amplify or diminish the potential for suffering.

I am a Midwestern boy. Tornadoes, drought and flood, blizzard and such are (were?) understood as recurring. These are not aberrations. They are part and parcel of the natural order. Our psychological and sociological orders are not quite as predictable, but here too recurring patterns can be observed.

I read Quin as reminding us that tension, conflict, and worse are perpetual. Aiming to bring these processes to an end is delusional, potentially deepening the sources of division. The pursuit of unconditional victory is not always (even often) our best option.

I am suggesting mindfully working to mitigate effects of the predictably perpetual is reasonable. Our own vulnerability is a promising place to start. We will go other places as well, but we should not skip attention to self-induced vulnerability.

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