Defense

December 3, 2012

Johnson gives legal background for war against al Qaeda

The United States remains in an armed conflict with al Qaeda, but it is important that the fight against the terrorist group is done in a lawful manner that does not compromise American values, Jeh C. Johnson told the Oxford Union in England Nov. 30.

The group invited Johnson, the Defense Department’s general counsel, to discuss the implications of the fight against al Qaeda – a conflict that Britain has been involved in as well since the Sept. 11, 2001, terrorist attacks on the United States.

Al-Qaida planned and executed the attacks that killed 3,000 people from their base in Afghanistan. The United States has taken the fight directly to the terrorists, “the result of which is that the core of al-Qaeda is today degraded, disorganized and on the run,” Johnson said. “Osama bin Laden is dead. Many other leaders and terrorist operatives of al Qaeda are dead or captured; those left in al Qaeda’s core struggle to communicate, issue orders, and recruit.”

But, the group remains a danger. While the international coalition has degraded al Qaeda’s capabilities, it has decentralized, and relies much more on affiliates. The most dangerous of these are al Qaeda in the Arabian Peninsula based in Yemen and al Qaeda in the Islamic Maghreb, which operates in northern and western Africa. In Yemen, the United States works with the government there in counterterrorism operations.

But the question for some is whether all of these actions are legal. Taking on al Qaeda is not like declaring war on a sovereign nation. It is an amorphous terror group that operates worldwide. Some have asked what is the legal basis for armed conflict against such a group?

“The United States government is in an armed conflict against al Qaeda and associated forces, to which the laws of armed conflict apply,” Johnson said. “One week after 9/11, our Congress authorized our President ‘to use all necessary and appropriate force’ against those nations, organizations and individuals responsible for 9/11.”

Then-President George W. Bush, and now President Barack Obama have acted militarily based on that authorization ever since. The Supreme Court also endorsed this justification in 2006.

But, for the United States, this is a new kind of conflict. It is an unconventional fight against an unconventional enemy.

“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,” Johnson said. “For, in our efforts to destroy and dismantle al Qaeda, we cannot dismantle our laws and our values, too.”

He added that the United States is “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.”

The nation is also in conflict with groups that aid al Qaeda.

“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,” Johnson said. “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.’”

Johnson countered, by pointing out that “viewed within the context of conventional armed conflict – as they should be – capture, detention and lethal force are traditional practices as old as armies.”

He added, “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.”

He also emphasized the United States detains al Qaeda terrorists consistent with the Geneva Conventions and all other applicable law.

The armed conflict is now in its twelfth year. How will it end?

“It is an unconventional conflict, against an unconventional enemy, and will not end in conventional terms,” Johnson said.

Every defense secretary since 9/11 has said the war against terrorism will not conclude with a formal surrender such as the ceremony that took place on the deck of the USS Missouri that ended World War II.

“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,” Johnson said. “They are terrorist organizations. Nor can we expect to capture or kill every last terrorist who claims an affiliation with al Qaeda.”

Al Qaida’s “radical and absurd goals” include global domination through a violent Islamic caliphate, terrorizing the United States and other western nations so they retreat from the world stage as well as the destruction of Israel.

“There is no compromise or political bargain that can be struck with those who pursue such aims,” Johnson said.

The general counsel believes there will come a tipping point when so many al Qaeda leaders and operatives have been killed or captured that the group and its affiliates can no longer attempt to launch a strategic attack against the United States.

“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 affiliates; rather, a counterterrorism effort against individuals who are the scattered remnants of al Qaeda,” he said.

 




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