NEW YORK -- Jeh Johnson, who was until three months ago the Pentagon's top lawyer, outlined his objections to a drone court in a speech Monday, dashing cold water on the proposal to add a layer of 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 to an audience at a Center on National Security conference at the Fordham University School of Law.
Sen. Angus King, an independent from Maine who caucuses with the Democrats, raised the idea of creating a court to police drone killings during CIA Director John Brennan's confirmation hearings in February. The idea has been praised by the editorial board of The New York Times, which compared it to the Foreign Intelligence Surveillance Court, which reviews spy agencies' wiretap plans.
Supporters of a so-called drone court hope such a body could legitimize the government's targeted-killing program, which was recently criticized for its secrecy during a filibuster by Sen. Rand Paul (R-Ky.). Johnson admitted in his speech that a drone court could bring "some added levels of credibility, independence and rigor" to the secretive process the administration uses to decide who to kill in the name of the war against al Qaeda.
But critics would quickly become disenchanted, he argued, and the whole idea rests on the dubious constitutional premise that the courts can second-guess the president's military powers. The Constitution names the president as commander-in-chief, and he or she "cannot assign part of it away to another branch of government, nor have it taken away by an act of Congress," Johnson said.
"I guess I belong in the category of 'skeptic,'" he said.
Johnson is no longer with the Obama administration, but his experience during four years there provides a critical window into its thinking on the drone court idea.
Johnson shed little light on what legal standard the Department of Defense now uses to decide when it can kill American citizens, a topic that has been the subject of heated debate since a leaked white paper revealed the Justice Department's legal case for drone strikes on Americans. Behind closed doors, some senators have had access to some of the memos authorizing drone strikes.
"There is a standard that we apply in the Department of Defense. I'm not sure it's public, unfortunately," Johnson said.
"I caution that we lawyers in particular want to think about these things in litigation, law enforcement terms, because we are used to, experienced with evidence admissible in court," he said. "What you're dealing with in armed conflict, in counterterrorism very often is intelligence, not evidence."
As Johnson hinted during his speech, there are not one but two prongs of the U.S. drone war: the Department of Defense and the Central Intelligence Agency. It was the CIA, not the Pentagon, that killed Anwar al-Awlaki, a U.S. citizen, in a 2011 drone strike in Yemen because of his alleged role in planning al Qaeda operations.
In response to a question, Johnson said, "I can't and I won't comment on the counterterrorism activities of any other agency." But he did suggest at least some sympathy with the opinion that secret CIA drone strikes lack public legitimacy.
"Targeted lethal force is at its least controversial and on its soundest legal footing when it is conducted by the U.S. military as part of a congressionally authorized armed conflict," he said.