Legal Reflections on the Past, Present, and Future of National Security

JOANNE MYERS: Good afternoon. I'm Joanne Myers, and on behalf of the Carnegie Council, I want to welcome our members and guests to what I know will be a very special program, not only because our speaker, Jeh Johnson, played a role in drafting some of the most important policies during President Obama's first administration, but earlier today the president delivered a major speech in which he reviewed our country's counterterrorism policies and the legal framework under which our nation takes action against terrorist threats. Additionally, he spoke about the use of drones and the detention centers at Guantanamo Bay. These are all issues that Jeh has been intimately involved with and can comment on with authority. It is a privilege to have him as our guest.

I also just want to thank Ernie Rubenstein, who suggested that I invite you.

On January 8, 2009, President-elect Obama publicly designated Jeh Johnson to be his nominee for general counsel of the Defense Department. After a fairly swift Senate confirmation, Jeh assumed his position on February 6, 2009. During his time at the Pentagon, our speaker was a central player in some of the most important, complicated, and contentious legal policy deliberations of the Obama administration.

With the nation in armed conflict in Iraq and Afghanistan, and dodging terrorist threats from al-Qaeda, Jeh found himself dealing with issues that ranged from the fate of prisoners being held at Guantanamo Bay; the efficacy of military tribunals; his involvement in the repeal of the controversial policy on gays and lesbians in the military, Don't Ask, Don't Tell; to the escalation of drone strikes. If that wasn't enough, he was also there during the time of WikiLeaks, the raid on Osama bin Laden's compound, and the conflict in Libya—all issues that raise excruciatingly difficult questions of security, morality, and the law.

During these difficult times, his job, as he has so often said, was to ensure that everything the military and the Defense Department did was consistent with U.S. and international law. But this also meant interpreting the law in light of the executive branch's precedents and tradition, which could mean advocating on behalf of policies you favor or defending government actions that you find distasteful.

Jeh retired this past December. The verdict on his service was unanimous. It has been said that he proceeded honestly, fairly, and thoroughly by adhering to an abiding commitment to American values, human rights, and the rule of law.

While the years since 9/11 could easily be described as an age of uncertainty, the future looks even more unpredictable. While Jeh is no longer with the government, having recently returned to private law practice, his experience over the past four years as one of Obama's key advisors provides us with a rare opportunity to cast light on the decision making and legal basis of our military policies. We are fortunate to be privy to his wise counsel.

Please join me in giving a very warm welcome to our very distinguished guest, Jeh Johnson. Thank you so much for coming.

JEH JOHNSON: Thank you, Joanne. Thank you for that nice introduction. It's a pleasure to be here to speak in front of this distinguished audience.

I was invited through Ernie Rubenstein to come and speak here. I think the invitation was extended to me back in January, right after I left government, before I had even returned to my private practice. I spoke to Joanne then, and we made this date for four months out, May 23.

She said, "One of the things we want you to talk about is drones. You'll talk about drones, right?"

I said, "Well, that's four months from now. Let's see how things go. Let's see what happens. Lots of things could happen in the world in the next four months. You may not necessarily want me to talk about drones."

She said, "No, I'm pretty sure we're going to want you to talk about drones."

So here we are on May 23, 2013, on the day that happens to be a day when the president gave a major address on drones and other aspects of this government's counterterrorism policy. So there is much to discuss.

Given the speech today and the letter that the attorney general sent to the Senate yesterday declassifying certain things, which I'll get into in a moment, I have actually spent a fair amount of time talking about these issues. I was on Rachel Maddow last night, MSNBC. Then they had me back again today to talk with Andrea Mitchell on MSNBC. I'm like a regular over there. They know which shade of makeup to put on me when I show up in the studio.

I just completed my third stint in public service. I was an assistant U.S. attorney 22 years ago or so. You know you're getting old when most of the judges that you show up in front of are now younger than you are. A lot of the people who are now federal judges in the Southern District of New York were people who came into the U.S. attorney's office after me.

I did that a while back. I was general counsel of the Department of the Air Force in the last 27 months of the Clinton administration. I was recruited by Senator Obama to his presidential campaign in late 2006, just as it was getting ready to take off. Everyone thought I was this great national security law expert, given my prior Pentagon experience. I guess I fooled them. I did a lot for the campaign and then through the election, the transition team and then my appointment to my last position as general counsel of the Department of Defense.

In the post-9/11 world, the job of being the senior legal authority for the Department of Defense, the United States military, is sort of the perfect storm collision of law, national security, and politics. I came into the job believing that a general counsel should never be seen or heard. I was very wrong about that. I ended up testifying before Congress, either in public or classified sessions, at least two dozen times, numerous press briefings, several speeches that I gave on the legal foundation for our efforts, at the Heritage Foundation, Yale Law School, then the Oxford Union late last year.

There are over 10,000 attorneys in the Department of Defense. That gets everybody with that same look. The Department of Defense, as most taxpayers know, is the largest agency of government in the United States. It's the largest agency of government in the world. I've heard that the Department of Defense is the largest single employer in the world. I'm not sure whether that's true or not. But by definition, therefore, I had the largest general counsel's job in the world in the post-9/11 period, with armed conflicts in Iraq, Afghanistan, Libya, elsewhere.

So the job was demanding. It was never dull. My day started at 6:00 a.m. and went through to about 7:30 at night, somewhere between 10 and 13 meetings a day. I had 10 deputies, 10 divisions within my office.

The issues ranged from personnel, religious accommodation—for example, the U.S. military, at least at some point, was the only place in American society where your employer could ask you to take your yarmulke off for the sake of uniformity, unit cohesion, good order, and discipline. There was a Supreme Court case that said that. So we wrestled with issues of religious accommodation. While I was there, we defended a lawsuit brought by an Orthodox rabbi with a beard who wanted to become part of our chaplain corps. The case settled in a way that I was very satisfied with.

Personnel issues, religious accommodation issues, environmental issues, issues involving base closings and realignment—acquisition is huge, buying the planes, the aircraft carriers, the subs, the tankers, transport, contractor suspension, and debarment. Women in combat was a major policy change that we brought about early this year. It was long in the making. We ended the combat mission in Iraq. We have a timetable with our Afghan partners in that country.

I visited Afghanistan three times in four years. My first visit there was to Bagram Air Base, after about three weeks on the job. We had a Taliban rocket attack. One landed 500 feet from where my head hit the pillow. That was an interesting experience.

In my last trip to Afghanistan, I spent Thanksgiving with our troops there. It was a one-day trip to the country. I left Washington Tuesday night. I promised my family I would be home the day after, on Thursday, in time for leftovers. I remember I left Bagram, went through Kandahar, went through Qatar, went through Dulles, went to Kennedy, got on the Long Island Railroad, went to Penn Station, New Jersey Transit to my home in New Jersey. I was there in all of about 38 hours.

I ran into a friend on New Jersey Transit. I had not slept in 38 hours. I had not been to bed in 38 hours. And I was kind of dusty. He said, "Where have you been?"

I said, "You wouldn't believe it if I told you."

Guantanamo Bay was an issue that I probably spent more than half my time in 2009 working on, the detainees at Guantanamo, the detainee review that we undertook there case by case, the efforts to find an alternative location. The president directed that we close the facility in a year, as I'm sure everybody knows. We actually did the hardest part of the job. We actually found an alternate location, in Thomson, Illinois. We found two U.S. senators and a governor who were willing to accept this detention facility in their state. The local congressman wasn't too happy, but the senators and the governor believed that it was good for the local economy. We had this large empty facility that was not being used for anything. We signed a deal with the state of Illinois.

So we actually did the hard work, but the politics of the issue, as I'm sure everybody knows, went south.

We reformed the process of military commissions' prosecutions in a way that I believe makes the process more sustainable, more credible. You heard the president in his remarks today say that our government should be trying these cases in the United States, not at Guantanamo Bay. We got through the Congress reforms to that system in the Military Commissions Act of 2009 on a bipartisan basis. We hired Brigadier General Mark Martins to be our chief prosecutor, a Rhodes scholar. He was on the Harvard Law Review with the president. I'm told he had better grades. I don't know whether that's true or not.

The system is, I believe, more sustainable, more credible. We obviously have some very big, complex cases to be tried in that system—Khaleid Sheik Mohamed, the alleged Cole bomber investigation, and others.

One of the issues that I spent most of my time on in 2010 was the repeal of Don't Ask, Don't Tell. This was sort of my night job. The secretary of defense, at the beginning of 2010, asked me and General Carter Ham, who was then commander of the U.S. Army in Europe, to co-chair a working group to assess the effects of the repeal of Don't Ask, Don't Tell, the law that prevented gay and lesbian service members from serving openly in the military—the risk of repeal of that law on overall military effectiveness. We were given 10 months to do our task.

What was most interesting about that project was that through most of 2009, any discussion of Don't Ask, Don't Tell and the potential repeal of Don't Ask, Don't Tell was a very, very sensitive thing to do. Around the Pentagon, you wouldn't have a discussion about Don't Ask, Don't Tell in a room of more than, say, four people, behind closed doors, because we were so afraid of the issue getting away from us early. We didn't want to repeat the experience of 1993, when this law was imposed.

At the beginning of 2010, the president said, "We've got to move forward on this issue." He put it in the State of the Union. Secretary Gates appointed General Ham and me to chair this working group.

Some people were not happy that we were going to take 10 months to study this issue. Commissions and working groups and panels tend to have a bad reputation. The rap on them is that you appoint them, they go off while the political heat dies down, nobody ever hears from them again, and then they come up with something nobody pays attention to.

But Secretary Gates, I think in his wisdom—and he was one of the most impressive clients I have ever worked for—recognized that if we were going to bring about change on this very controversial issue, we had to, in effect, have a conversation with the entire U.S. military first, to get buy-in, to get them used to the idea. For 17 years, it had been a sleeper issue pretty much.

What Carter and I did was to basically go have a conversation with the entire United States military over the next 10 months. We visited, with our working group, 51 installations. We came face to face with, I think, at least 25,000 service members in these large group sessions we would have at each of these bases—Air Force, Navy, Marine Corps, Army. We solicited 72,000 emails from service members. Everybody had an opinion on Don't Ask, Don't Tell: "We should keep it." "We should get rid of it." Everybody had an opinion. Nobody was shy about this issue.

We solicited 3,600 confidential emails, on an anonymous basis, in a system designed to solicit the views of gay and lesbian service members. We conducted a survey where we surveyed 400,000 service members. In presidential polls of the entire nation, the sample size is very often 3,000 people, 4,000 people. We polled 400,000 people on this issue and got a 28 percent response rate. We polled 150,000 spouses on the issue.

We learned a lot, obviously. We had a 10-month dialogue.

Memorable moments: A lot of opposition in these large group sessions to changing the status quo, a lot of opposition to permitting gay and lesbian service members to serve openly. There was something negative about the connotation. When you said "serve openly," it conjured up an image for a lot of people that they just couldn't get their heads around. When we changed the terms of the discussion to "allowing gay and lesbian service members to be honest about their personal lives," people were more receptive to the issue.

Interestingly, the Navy, where people are in the closest quarters, was the most receptive to change—like, "What's the big deal?" This one submariner at Norfolk—he had been a submariner for 25 years—said to me, "Sir, you can put women on my boat, you can put gays on my boat, but just don't take away my cigarettes, please."

Within the Special Ops community, the sentiment we often heard expressed was a quote that ended up in our report: "We had a gay guy in the unit. He was big. He was mean. He killed lots of bad guys. Nobody cared that he was gay."

The survey results came back. They showed remarkable and, frankly, surprising receptivity to change. We went public with our report in December, right in the middle of the lame-duck session of Congress in 2010, right after the midterms. Repeal of Don't Ask, Don't Tell passed probably three weeks later. Repeal has gone even more smoothly than General Ham and I predicted. It's a good news story.

The issue that was the weightiest issue for me, which I want to spend the balance of my remarks on, was the conflict, as we call it, against al-Qaeda and its affiliates—or, as the president referred to it today, in more legal terms, the conflict against al-Qaeda, the Taliban, and associated forces. There's sort of the public, non-lawyer description of it, al-Qaeda and its affiliates, and then there's the more legal description, al-Qaeda, the Taliban, and associated forces.

Because of its unconventional nature, the legal issues presented were the weightiest for me. Part of my job, in addition to all the other things you heard about, was to conduct the legal review and give legal sign-off to every military operation that the secretary of defense and the president signed off on outside of Iraq and Afghanistan. The approval for those special ops was at a very high level of our government, which meant that the military activities all had to come through me, the lawyer for the military, up through a chain of command of lawyers. Everybody in the chain of command has a JAG [judge advocate general], has a lawyer, which is how you get to those 10,000 lawyers. But I personally would sign off on every military operation that the secretary and the president had to sign off on. That, for me, was the weightiest part of my job.

In the conflict against al-Qaeda and its affiliates, the legal foundation for everything that we do is the statute that the president referred to today in his speech, the Authorization for Use of Military Force [AUMF], which was passed by the Congress one week after 9/11. It is now almost 12 years old. It essentially says that the president is authorized by the Congress to conduct military operations against those—I'm paraphrasing here—nations, persons, and organizations responsible for the attack on 9/11 and those that harbor such nations, persons, organizations.

How we have interpreted that statutory authorization over the last 12 years is an authorization to go after "al-Qaeda, the Taliban, and associated forces," quote/unquote. A lot of people asked about the concept of "associated forces." Where do you get that from in that statutory authorization? It's a concept that is a law-of-war principle.

The example that a lot of people use in historic terms is Vichy France. Our Congress, when it declared war against Germany, didn't declare war against Vichy France, but we engaged them militarily in North Africa. Everyone assumed we had that authority because they were associated with Nazi Germany. So the concept of an associated force is a traditional historic one in law-of-war principles, which we have incorporated into our Authorization for Use of Military Force, and the courts, in the habeas litigation brought by Guantanamo detainees, have accepted the concept.

The Congress, in the National Defense Authorization Act that was passed for last year, also accepted the concept when they wanted to essentially reaffirm the AUMF and codify our interpretation of it in the detention context. They included the concept of an associated force.

So in speeches while I was in office, I would like to say that all three branches of our government had accepted that definition and accepted that concept.

The concept of an associated force has become more important as al-Qaeda has become more decentralized and relies more on affiliates like al-Qaeda in the Arabian Peninsula or the al-Qaeda-affiliated elements of al-Shabaab in Somalia. So the concept has become more and more important, and it's one that I frequently focused on.

How we would typically evaluate a military objective, a particular military operation is we wanted to know that there was domestic legal authority for the operation and international legal authority for the operation. From the perspective of international law, we generally go into another country with host-nation consent or pursuant to a UN Security Council resolution or as an act of self-defense, when the host nation is unwilling or unable, itself, to deal with the situation.

From the domestic legal point of view, preferably we act with congressional authorization. The president has constitutional authority himself, without the Congress, to commit the armed forces into hostilities. But the preference is always congressional authorization so that the people's representative in Congress is also invested in the armed conflict. But constitutionally the president does have the authority to commit the armed forces, the most recent example being Libya, where we acted without congressional authorization, which stirred up a little controversy, the year before last.

So we want to know that we have international legal authority and domestic legal authority for what we do in our military operations. Then the backdrop of all of this: 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 objectives—no excessive collateral damage—and 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 weaponry—targeted lethal force—is 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 years—it really went back to the latter part of the Bush years, I think—the 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.

What happened today and yesterday? We saw some pretty significant announcements today and yesterday. Yesterday was a letter from the attorney general to Senator Pat Leahy, who is chairman of the Senate Judiciary Committee, that set forth a bunch of things.

Today the president gave a speech, and basically what our government has announced are essentially three things: One, in a continued effort at transparency consistent with our national security—and this really does also include the efforts we made last year when we declassified the military's activities in Yemen and Somalia. It actually did not get a lot of attention last June, when we put in a war powers report what we were doing militarily in Yemen and Somalia. We declassified that then.

In addition, I and Harold Koh and John Brennan and the attorney general gave a series of speeches that laid out the legal foundation for our counterterrorism efforts, all in an effort at transparency.

Yesterday in this letter from the attorney general, our government declassified and officially acknowledged that it was responsible for the death of Anwar al-Awlaki and, in this letter, laid out essentially the case for doing so and why the government believed it was necessary to take action against him, why he represented a continuing and imminent threat to Americans, and why capture was not feasible in his case. The president talked about this a bit more today and the fact that three other U.S. citizens had been killed as a result of our counterterrorism efforts, though they had not been specifically targeted, unlike Mr. Awlaki.

In the attorney general's letter there was also a reference to guidelines, enduring guidelines, for our counterterrorism efforts, a process and a new standard that the president had directed for when we take action in these circumstances.

In today's address, what you saw was the president telling the American people that it was time to move to a new phase in our efforts. We have been in what we refer to as armed conflict for the last 12 years, but armed conflict should not be perpetual. Given the state of the threat, how it has evolved, how it has metastasized, and how it is less reliant upon core al-Qaeda and more reliant on affiliates, we're in a new phase now, where we need to rely more on the traditional approaches to counterterrorism—law enforcement, intelligence resources, with our military in reserve. You heard the president talk about that today.

Those are the three major components of what we announced. Because I'm only six months out of government, I keep saying "we." I have to get away from that.

He also talked about making a renewed effort at closing Guantanamo, detainee transfers. My personal sense is that the politics of Guantanamo are evolving, such that Congress hopefully will be receptive to lightening up on some of the restrictions that they have imposed on detainee movements which make it virtually impossible to send a detainee back to his own country, unless the secretary of defense certifies certain things about the receiving country. It's a very, very high bar, virtually impossible to meet.

It's a law that has been in place for two years. The secretary of defense—I know because I was there; I was his lawyer—the secretary of defense, for two years, has not been able to make one of these certifications because the bar is so high.

My hope is that the politics of detainee transfers are evolving and the Congress will recognize that we are fundamentally in a different place now than we were before. This is a problem that's not getting any better, and we need to wrestle with it.

It's also, I think, the sense out there that the security situation in various countries, like Yemen, is evolving to the point where we can think about transfers of detainees back to Yemen. Something like half the remaining population at Guantanamo comes from Yemen. We suspended transfers to that country a couple of years ago, right after the attempted Christmas Day bombing. What the president said today is that it's time to think about renewing efforts at transfers to that country and others so that we can finally deal with Guantanamo Bay.

That's basically what happened yesterday and today. In terms of the future, in terms of the threat situation, we are in an evolving situation.

We have to be much more vigilant when it comes to the lone wolf, somebody who self-radicalizes. They may be inspired by a certain ideology, but they are not part of the enemy force, as we would think of an enemy force traditionally. They self-radicalize. They believe in the ideology, but they have never been in the camps. They have never accepted any specific orders. They are, therefore, militarily not part of the enemy force. They are not part of any armed conflict. But they self-radicalize. We have to think about ways to deal with that kind of threat, and we have seen that kind of threat very recently.

The future is a bit uncertain, but I think our government is in a position to try to wrestle with it. We realize we need to reform our legal architecture and our resources.

JOANNE MYERS: Thank you very much for being so forthcoming.

I'm just wondering how the drone court idea fits into this whole scenario. The president said today that he wasn't opposed to the idea. He said that he would entertain the idea of a drone court.

JEH JOHNSON: He said he would entertain the idea, but he also said that there might be some huge constitutional issues with it.

I gave a whole speech on this at Fordham Law School. I wanted to talk about it, given my personal experience with these types of operations and conducting the legal reviews for these types of operations. I wanted to talk about the pros and cons of a national security court. I think it has a certain level of appeal. It would add credibility to a process. People tend to have a high regard for the independence of our judiciary.

The problems that I see with it are, first of all, I doubt seriously that judges even want this responsibility. Most of them probably didn't become judges so they could do that kind of thing. I think there are some real practical limitations with trying to bring a member of the Article III branch of government into the review of a military operation, which very often permits only minutes to think about it, in a secure setting in the basement of the Pentagon.

The other drawback is that all of this has to occur in a classified context, without a back-and-forth like a litigation. It would be like a Foreign Intelligence Surveillance Act [FISA] court. A lot of people criticize the FISA court because it's secret, because most of the applications are granted. The New York Times, on the one hand, wants a national security court for targeted lethal force, but on the other hand, The New York Times editorial page criticizes the FISA court as a rubber stamp. Necessarily, this court would have to act in a classified setting, so you wonder how much added credibility there could be to the process.

The biggest hurdle, I think, is the legal one. The president is commander-in-chief of the armed forces. The president is the one solely responsible for directing the armed forces, for conducting the foreign policy of the United States. He cannot constitutionally, in my humble legal view, assign any part of that responsibility away or have it taken away from him by Congress. It's solely the function of the executive branch to engage in armed conflict, to protect the nation.

I don't know how constitutionally you could bring in another branch of government and say, "Here, I want you to deal with this part of my job as the commander-in-chief of the armed forces, and I will accept your rulings as binding." I think there are huge constitutional problems with the issue, though I think it is worthy of consideration.

QUESTION: James Starkman.

I'm still trying to recover from the frightening image of 10,000 Defense Department lawyers in one place—

JEH JOHNSON: Not all in one place.

QUESTIONER: —armed with subpoenas, et cetera.

I would like to have you comment on the transference of certain drone operations from the Defense Department to the CIA that was announced this week.

Also what is the legal relationship and the legal architecture of the CIA as opposed to the Defense Department?

JEH JOHNSON: Let me answer the question this way. I believe that targeted lethal force is least controversial when it's on its surest legal footing. That would be targeted lethal force conducted by the entity of government that most traditionally engages in armed conflict. Armies have been capturing and killing enemies for centuries. Targeted lethal force that is part of a congressionally authorized armed conflict—and that's what we like to call this, an armed conflict—is the surest legal footing you can have for this type of activity, if it's conducted by the military as part of a congressionally authorized armed conflict.

If targeted lethal force by the United States government is outside of that context, I think it draws criticism and uncertainty by our government, in large part because it lacks any apparent boundaries. When it's armed conflict that is congressionally authorized, we know what the boundaries of the statutory authorization are or we know what the administration's interpretation of that statutory authority is because it's public. We put it out there publicly. We interpret this statutory authority to cover al-Qaeda, the Taliban, and associated forces.

Additionally, when it's armed conflict conducted by the military, every six months there has to be a war powers report given to the Congress, where the government essentially reports on what it has been doing pursuant to that filing we made 10 years ago in our initial war powers report. You give a report card every six months on who we're targeting, who we're going after, what our progress has been. Targeted lethal force, in theory, conducted by any other agency has a different legal foundation.

Put aside targeted lethal force for a minute. There's always a debate in Washington about what you hear referred to informally as Title 10 versus Title 50. Title 10 is military activity; Title 50 is the activity of the intelligence agencies, the intelligence community, which includes covert action. That has a totally different legal foundation. There is a finding made by the president, reported to the Congress, which is classified: "I hereby make a finding that it's in the national security interests of the United States that we do A, B, and C." That is not public. It's given to the intelligence oversight committees, but the public doesn't know the contours of covert action.

The public is inherently suspicious of government secrecy. That's the downside. We're suspicious of what we don't know about government power, about executive power. I think, therefore, that targeted lethal force conducted by the military is more credible, it's more sustainable, and it's on a surer legal footing. The legal architecture is traditional and it's public for that.

I hope I've answered your question.

QUESTION: Colonel Sergey Yakushev. I am from the Russian Mission.

The question concerns the collateral damage of the military operations. I have my own experience in my armed forces and I want to learn of your own experience of how you solved those problems with the collateral damage. You know what I mean.

JEH JOHNSON: I think two things. One, the government should try to be as forthcoming as possible about the instances when it occurs. There are a lot of reports of collateral damage that very often are not accurate, and our government very often is not in a position to confirm or deny what's in the newspapers. So what you read in the newspaper goes unrebutted. I think our government should make an effort to be more transparent about the instances—and there are some—when collateral damage occurs.

I actually don't like the phrase "collateral damage" because it sounds so impersonal—"regrettable losses of life."

When they occur, I think we should try to be a little more forthcoming about them, to reassure the public about the instances where it doesn't occur.

I also think that the government should be sensitive to the effect of unintentional losses of life in the communities in which these operations occur and what effect it has on public opinion in these communities when our military operations intrude into these communities. We ought to track that. We talk about how the existence of Guantanamo Bay is a recruitment tool for terrorist organizations. We have to be sensitive to the possibility that other aspects of our counterterrorism operations could be used in the same way.

I got to work with a lot of impressive people in the Department of Defense. One of the most impressive general officers I worked with was General John Allen. I got to know him pretty well, both during the time he was the commanding general in Afghanistan and before. In the speech I gave at the Oxford Union, I was talking about how war should be regarded as a finite, extraordinary state of affairs, and at some point in the conflict against al-Qaeda, we have to contemplate the end.

I showed a draft of the speech to General Allen, and he said, "Remember also to say something about how we have to be sensitive to how our operations appear in the communities in which al-Qaeda tends to recruit. If the enemy can recruit new members faster than we can kill and capture them, then we're losing the battle."

He's absolutely right. That comes from a battlefield commander.

QUESTION: Bryn Roberts Cohen.

It has been reported—I may not be 100 percent accurate—that there were hundreds of thousands of people killed in the Iraqi War. I would assume a good number of those were innocent bystanders. What I cannot comprehend is why there is such an uproar when there are a few people—and I'm not minimizing the loss of life anywhere—when there are a few people killed by a drone and called collateral damage versus the tens of thousands that might have been killed, also the same collateral damage, in a ground war.

JEH JOHNSON: I'm not sure I have a good answer for you. I think that's a legitimate observation. Every death is tragic. You're right to point out that in some parts of the world where our attention is not particularly focused, death and destruction occurs on larger scales and it's not on our radar. I think that's a worthwhile observation. I'm not sure what else I could add to it.

QUESTION: My name is Peter Russell.

You spoke of the legal authority for use of armed force internationally. I think you gave three broad categories: UN authority, cases where there may be no wars declared, cases where the local government may be unable to give its consent, or not want to. As you look ahead in this evolving situation, and in light of the announcements yesterday and today, do you see that third situation increasing or decreasing?

JEH JOHNSON: I hope it decreases. I think if we work at developing counterterrorism partnerships with other nations, that situation ought to decrease, and especially in a situation where the terrorist threat hopefully is being marginalized.

Yemen is a very good example, I think, of a situation where—it was a very tough counterterrorism situation as recently as a couple of years ago that hopefully is getting better, in large part because of the efforts we have made in partnership with the host government. A lot of people claim that we kill; we don't capture. What that assertion misses is that lots of times, in partnership with host governments, we support capture and arrest by the host government. That occurs virtually every day. It's only where capture is not feasible of a dangerous terrorist that we would consider lethal force.

I think our government is getting better at developing counterterrorism partnerships with a lot of host nations around the world. Hopefully the situations where we act in those circumstances as an act of self-defense are minimized.

QUESTION: My name is Charles Liebling.

I have always felt that there is an ugly side to many of the things you have had to deal with—

JEH JOHNSON: And I would agree with that.

QUESTIONER: —droning, targeting, assassination. Torture is another one. Our government has for years now been giving explanations and justifications of why we can use these things. The ugly side that I see is that it seems to me that these justifications give our enemies justification to do it to us. If they take our prisoners, they can read our justifications of why they can torture them. If they have been droned, they can drone us in downtown New York. My question is, why isn't that true?

JEH JOHNSON: I'll say three things. One, targeted lethal force in the course of a lawful armed conflict is by definition not assassination. Assassination is killing for a political objective, not in the context of armed conflict.

Second, our government has ended torture or enhanced interrogation techniques. We just don't do those things anymore, in any context. No entity of our government engages in torture or enhanced interrogation techniques anymore.

I actually think that through our more sophisticated efforts at interrogation, we get pretty good intelligence. There are a couple of recent examples where, while I was general counsel of the Department of Defense, through standard interrogation practices conducted pursuant to the Army Field Manual or even after a suspect has been Mirandized, we got lots of valuable intelligence.

I guess my third observation is that no terrorist ever purports to act consistent with the law of war to begin with. They don't observe rules, irrespective of what our government is doing. It's sort of the nature of terrorism, by definition. Terrorists cause mass civilian casualties to further some radical objective. They don't purport to play by any rules that you and I would recognize.

But I do agree that there's an audience out there that's very important to our counterterrorism efforts, before whom we have to be credible. You could lose the fight if you lose that audience. I agree with the sentiment of your question.

QUESTION: Matthew Olson.

Just to shift gears, you mentioned Don't Ask, Don't Tell earlier. You have been involved with some of the sexual issues in the Department of Defense. Recently there have been suggestions in the press that we're at what appears to be a height of sexual problems in the Department of Defense. Is that your impression? Do you think things have changed?

JEH JOHNSON: There's an annual report issued by the Department of Defense, an office called the Sexual Assault Prevention and Response Office, SAPRO. The report for fiscal year 2012 said that there were an estimated 26,000 unwanted sexual advances, inappropriate sexual advances, in the military in that year alone. Then there were only—and my numbers might be a little bit off—3,300 reported incidents of sexual assault and only about 300 criminal convictions for sexual assault in the same period.

I think those numbers speak for themselves. I was asked about this on MSNBC last night. We have a big problem. I don't see it getting any better. Secretary Gates and Secretary Panetta were both very concerned about this issue. We tried a lot of things—better investigative tools, better training, better victim counseling, better victim advocacy. Last year, Secretary Panetta raised the level rank at which there is what we call the initial disposition authority.

The way the military justice system works, it all occurs within the chain of command. So there is this initial disposition authority, the commander in the unit or the chain of command, that decides how a case should be handled. Should it be prosecuted? Should it be dealt with administratively? Then there's a disposition authority for the final sentence or whatever you have that's within the chain of command.

The commander, the professional military, will tell you that military justice is a commander's tool necessary for unit cohesion, good order, and discipline. Military justice should remain in the chain of command for unit cohesion, good order, discipline.

There are a lot of people out there, especially on the Hill now, calling for a change to that when it comes to sexual assault—take the disposition authority out of the chain of command, because clearly the system is not working. It's not perceived as credible. It's not working properly.

It's my opinion that we ought to at least look at those proposals. Some are more aggressive than others. There's a panel now that has been appointed by the secretary of defense and the Congress that has been tasked to look at this. I think that everything should be on the table. I think they should look at possibly reshaping the military justice process here. With bad behavior so pervasive, I think you have to demonstrate that you're taking it seriously and that there are people who are going to lose their rank, lose their job, and possibly go to jail for this type of conduct.

More training, more prosecutors is probably not the solution of this. We have to do something more aggressive.

JOANNE MYERS: I thank you so much for sharing the challenges with us.