|Jeh Johnson with Defense Sec. Robert Gates|
As Mr. Johnson recounted in an interview at the Pentagon last week, “A year ago, this subject was so sensitive that whenever I had a conversation with anybody about it in the building, it was always a group of three or less, behind closed doors.”
As he wrote the report, which is a crucial factor in the Congressional debate over reversing the “don’t ask, don’t tell” policy, he had to navigate the growing legal challenges to the 17-year-old law, which requires gay men and lesbians in the military to keep their sexual orientation secret or face discharge.
In October, a series of court decisions whipsawed the Pentagon into suspending and then resuming enforcement of the law over the course of little more than a week, creating bewilderment at recruiting stations and confusion among Defense Department lawyers. Wrangling in the courts continued into November.
“In the space of eight days we had to shift course on the worldwide enforcement of the law twice, and in the space of a month faced the possibility of shifting course four different times,” Mr. Johnson told the Senate Armed Services Committee last week.
The experiences have turned Mr. Johnson into a force behind the Pentagon’s argument that Congress has to repeal “don’t ask, don’t tell,” and soon, or the courts will do it for them. Although it is not at all clear whether the Supreme Court would strike down the law, Mr. Johnson and his boss, Defense Secretary Robert M. Gates, are warning of the dangers of repeal by abrupt “judicial fiat,” which they said would not give the Pentagon enough time to prepare the armed forces for change.
But Mr. Johnson, 53, an early fund-raiser for President Obama in New York and the first black partner at the law firm Paul, Weiss, Rifkind, Wharton & Garrison, also has a window into the “don’t ask, don’t tell” debate from beyond the courtroom — from his own family history.
His uncle, Robert B. Johnson, was not only one of the Tuskegee Airmen, but was also a participant in what is known as the Freeman Field Mutiny in 1945, when a group of the airmen were arrested for entering an all-white officers’ club at Freeman Field in Indiana. The airmen were imprisoned for 10 days until the Army chief of staff, Gen. George C. Marshall, intervened. Three years later, President Harry S. Truman integrated the military by executive order.
Although Mr. Johnson says that discrimination based on race and sexual orientation are different — sexual orientation, he maintains, is “not a self-identifier” — he has found similarities in the way the armed forces reacted in both cases to the prospect of change. The study Mr. Johnson wrote with Gen. Carter F. Ham found that, over all, 70 percent of the troops surveyed said the repeal of “don’t ask, don’t tell” would have little effect, but about 60 percent of Marines predicted a negative impact.
The opposition to integrating the armed forces in the 1940s, Mr. Johnson said, was as high as 80 percent. “The lesson to be drawn from that,” he said, “is that very often the predictions about what is going to happen overestimate the negative consequences and underestimate the military’s ability to adapt.”
Mr. Johnson said he did not consider his work on the study as an assignment to advance civil rights. As the Defense Department’s lawyer and the report’s co-author, his position is that the Pentagon could make the change, but whether it should, he said, is up to Congress.
In the meantime, Mr. Johnson is handling a raft of other issues like the stalled efforts to close the military prison at Guantánamo Bay and legal reviews of all United States military operations, including drone strikes. He supervises 10,000 Defense Department lawyers around the world and a staff of 200 at the Pentagon.
Mr. Johnson’s first name, pronounced “Jay,” is taken from a Liberian chief whom his grandfather, Charles S. Johnson, a sociologist who was president of Fisk University, met during a League of Nations mission to Africa in 1930. He has never served in the military, but when Bill Clinton was president, Mr. Johnson told their mutual friend, the lawyer Vernon E. Jordan Jr., that he wanted to work in the new administration and got the job of Air Force counsel, in part, he said, to advance diversity.
“I had never set foot in the Pentagon,” he said.
Mr. Johnson served in the Pentagon from 1998 to 2001 and then returned to his job as a litigator at Paul, Weiss, but he wanted to go back to the capital. “The scent and allure of Washington was very compelling to him,” said Gordon Davis, a former New York City parks commissioner and the founding chairman of Jazz at Lincoln Center who is a friend of Mr. Johnson.
Mr. Johnson, who is married and has two children, now has a home in Georgetown, but he has kept his old house in Montclair, N.J. Most of his waking hours are spent at the Pentagon.
As he told the Senate Armed Services Committee about what he faces on “don’t ask, don’t tell”: “This legal uncertainty is not going away anytime soon.”
A version of this article appeared in print on December 5, 2010, on page A32 of the New York edition.