For most of Barack Obama’s first term, Jeh Johnson was the top lawyer at the Pentagon and a behind-the-scenes thinker grappling with the thorniest legal issues of the war on terrorism confronted by the administration: Can American citizens suspected of terrorism be targeted for lethal drone strikes outside active battlefields? (Yes, under certain circumstances, he counselled.) Can the President maintain full military participation in the NATO-led air war in Libya beyond 60 days without authorization by Congress? (No, he argued, but was overruled.) Should the U.S. military lift its ban on gays and lesbians serving openly in the military? (Full speed ahead, he recommended.)
This month, the President nominated the 56-year-old New Yorker to the cabinet job with arguably the biggest significance to Canada: Secretary of Homeland Security.
If confirmed by the U.S. Senate, Johnson will lead the sprawling department created in response to the attacks of Sept. 11, 2001, whose purview includes border security, customs enforcement, immigration, infrastructure protection, transportation security, cybersecurity and disaster response, among others. In addition, many policies of the U.S. government—from agricultural inspections to transportation regulations—are interpreted and enforced at the border by the Department of Homeland Security (DHS).
In short, Johnson will wield substantial power to facilitate or frustrate the $680-billion of annual trade between Canada and the U.S.; the 400,000 people who cross the border each day; and the one in seven Canadian jobs that depend on cross-border trade.
And herein lies the challenge for Canada: DHS has an outsized economic impact on Canadians—but a mandate and a mindset focused on security, not commerce.
For more than a decade, successive Canadian governments have looked for ways to streamline the accumulating rules and procedures that add time and cost to North America’s integrated business environment. The latest effort has been the Beyond the Border agreement between Stephen Harper and Obama, which, like its predecessors (anyone remember the Smart Border Accords? The Security and Prosperity Partnership?), has met with mixed, incremental success.
If the Senate confirms him, Johnson’s arrival to take the reins from former secretary Janet Napolitano, who resigned in September to take over the University of California, may be an opportunity for Ottawa and Washington to jump-start the agenda of reducing reducing land-border costs—in order to keep up with the push for free-trade deals with overseas regions, such as Canada’s newly signed agreement with the European Union and the ongoing Trans-Pacific Partnership with various countries in Asia.
“We are faced with a border management at the land border that is more expensive and more uncertain than we’ve ever had before,” said Birgit Matthiesen, Washington representative for the Canadian Manufacturers and Exporters. “The result is cargo coming into North America in direct competition with U.S. and Canadian companies at a lower cost and higher speed.”
One question is what mindset Johnson brings to the job. His background in national security brings to mind former DHS secretary Michael Chertoff, a former prosecutor and judge, who was perceived by some Canadian officials as giving trade issues a backseat to security concerns. Johnson also lacks the executive management experience of two predecessors who had been former state governors—Napolitano of Arizona, and Tom Ridge of Pennsylvania.
But Johnson’s unique background could bring a different set of insights and skills to the table.
“I’m excited about this appointment because of his experience in the Pentagon. He would know better than almost anyone else the unique and special nature of the security collaboration with Canada,” said Scotty Greenwood, senior adviser to the Canadian-American Business Council. The two countries jointly run the North American Aerospace Defence Command (NORAD) and the bilateral Permanent Joint Board on Defense. They share intelligence and co-operate on counterterrorism, laying a foundation for trust, she said. “That is something that none of his predecessors had. This nominee knows it in his bones—he doesn’t have to get briefed on it.”
He also brings a close relationship with the President. “He’s been there in the Situation Room at the table in moments of decision,” said Obama, as he announced his nomination of Johnson in the White House Rose Garden on Oct. 18.
The issues facing North American business are less high-stakes than war and peace, but have big financial consequences. Take, for example, the treatment of business travellers. Companies that sell equipment across the border say they have trouble sending technicians across the border to install, service, or train employees. Unpredictable interpretations of visa laws by border agents impose wasteful costs in idled factories and legal fees, delays, and uncertainty that discourage sales, said Matthiesen. “I have heard hundreds of stories in the last few years from our members—and it’s growing worse,” she said.
Johnson will also be in a position to decide which of the pilot projects that were launched under the Beyond the Border Action Plan of 2011—from truck pre-inspection to the sharing of data on people who enter and exit each country—are worthy of being made permanent.
Other issues could tap Johnson’s background in legal policy. For example, the business community has long asked the government to create pre-clearance facilities for land-border shipments and rail cargo that would move some activities away from congested border crossings. But there has been disagreement on what authority border guards could have on foreign soil. “Those are big-ticket negotiating pieces,” says Theresa Cardinal Brown, an independent consultant and former director of Canadian Affairs at DHS, “dealing with fundamental issues of legal authority, of privileges and immunities for people operating on the soil of another territory—and you need a high-level decision-making power to say what each government is willing to accept.”
Obama presented Johnson as a deliberative thinker on security and civil liberties, noting his personal interest in rights in wartime. His uncle was a member of the Tuskegee Airmen—the pioneering group of African-American fighter and bomber pilots who served in the Second World War and came home to segregation. “He and his fellow airmen served with honour, even when their country didn’t treat them with the dignity and the respect they deserved,” said Obama. “Jeh believes, in a deep and personal way, that keeping America safe requires us also upholding the values and civil liberties that make America great.”
Johnson was deeply involved in crafting Obama’s controversial policies around using unmanned aircraft to kill suspected terrorists outside of the combat zones in Iraq and Afghanistan. He was also centrally involved in overhauling—and then relaunching—the military commission system for trying accused terrorists at Guantánamo Bay. He also warned against “over-militarizing” the prosecution of terrorists on U.S. soil, and advocated the use of civilian law enforcement. Since stepping down from the Pentagon at the end of 2012, he has publicly advocated for more transparency and media access in national security decision-making as a means of bolstering public trust.
The nomination of Johnson, an African American, also comes as Obama is under pressure to add more racial and gender diversity to his cabinet. Johnson graduated from Morehouse College, a historically black school, and earned his law degree from Columbia University. His unusual name, Jeh (pronounced Jay) comes from the name of a Liberian chief who reportedly saved the life of his grandfather while he was on a League of Nations mission in 1930.
While Canadians will surely be asking him to start thinking about the economic impacts of his decisions, it’s clear that security will never be far from his mind.
At the Rose Garden press conference, Johnson said his birthday happens to fall on Sept. 11. On the day of the attacks in 2001, “I wandered the streets of New York and wondered and asked, what can I do? Since then, I have tried to devote myself to answering that question.”