Speaker: Jeh Johnson, Former General Counsel for the U.S. Department of Defense


We always act pursuant to law-of-war principles of necessity, proportionality, and distinction. You distinguish between the lawful military objectives and innocent civilians. A military operation has to be proportionate to its objectivesno excessive collateral damageand it has to be necessary. Those are basic principles in the law of war.

Many people ask, should there be a separate legal regime for drone warfare, for targeted lethal force? The answer to that is that there is no separate legal regime for targeted lethal force. In fact, precision weaponrytargeted lethal forceis actually a manifestation of the principles that I referred to a moment ago, because it minimizes collateral damage.

We also had issues, obviously, concerning lethal force against U.S. citizens. The basic principle there, which goes back to Supreme Court jurisprudence from World War II, a case called Ex parte Quirin, is that a U.S. citizen can defect to the enemy, and once he does that, he does not enjoy immunity on the battlefield. Combatants can be U.S. citizens. They don't enjoy immunity.

In this administration, we have developed the additional principle that before we take action against a U.S. citizen, that person should represent a continuing and imminent threat to the nation and capture should not be feasible. That is something that the attorney general announced in a speech he gave last March. We heard references to it again today and yesterday. So those are the basic legal elements for circumstances in which we have to find ourselves targeting a terrorist who happens to be a U.S. citizen.

The results of all of this, I believe, have been a more sustainable legal framework for our efforts. We have had good success on the counterterrorism front over the last couple of yearsit really went back to the latter part of the Bush years, I thinkthe result of which is that the core al-Qaeda that the Congress authorized us to go up against in 2001 has essentially been decimated. There are still these affiliates out there that are busy at work, but the core al-Qaeda is largely degraded. They have a hard time communicating. They have a hard time recruiting.

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