What’s at Stake in the Austin Waiver

On Tuesday, Jan. 19, the day before President-elect Joe Biden is sworn in, the Senate Armed Services Committee is scheduled to begin confirmation hearings for Gen. Lloyd Austin to be the next secretary of defense. Usually, a Senate hearing is all that’s needed for a cabinet nominee to be confirmed. But this time, the House of Representatives has a role to play, too—and it will convene its own hearing on Thursday, the first full day of the Biden administration. Because Austin retired from the United States Central Command in 2016, both chambers must agree to waive the statutory requirement that the secretary of defense not have served in active military duty within the prior seven years.

While related, the question of Austin’s individual qualifications and the question of granting him a waiver are actually distinct. The jumbled timing of the hearings risks obfuscating the reality that the waiver is the preliminary and independent matter—and the decision with the most significant implications for the future. Similarly, the political dynamics and national security imperatives of a swift confirmation make it tempting to collapse the harder question into the easier one. But the consequences here are too high for Congress or the incoming administration to avoid a frank assessment of what’s at stake. The vote on whether to grant Austin a waiver is, at its core, a decision over whether and how the statutory requirement will act as a meaningful constraint in the future.

The waiver requirement dates back to the National Security Act of 1947, which created both the Department of Defense and the position of the secretary of defense. The original legislation required a 10-year cooling-off period to create a distance between military service and civilian leadership, a period which Congress reduced to seven years in 2008. The purpose was to reinforce the foundational democratic principle that the military is controlled by and accountable to a civilian government, and not the other way around. Congress has waived the statutory requirement only twice before. In 1950, soon after the statute was created, the legislature granted a waiver for Truman nominee George Marshall, a storied Army general who had previously served as secretary of state. In 2017, Congress did so again for Trump’s first secretary of defense, James Mattis, who had retired from active duty in 2013.

Waivers are intended to preserve flexibility while setting particular assumptions—in this case, that a secretary of defense will not be a recent veteran, unless there is a very compelling reason. By creating an additional confirmation obstacle for a certain group, the requirement incentivizes the president to select from a different, unencumbered group. This is especially important in the context of the secretary of defense, where members of Congress might be inclined to view recent military service as a qualification for the job, perhaps even a necessary qualification, rather than a deficit. After all, who has more knowledge of the military than someone from its ranks? What better way to earn the trust of the men and women risking their lives in the armed forces? In the face of all this, the waiver requirement intentionally turns recent military service into a liability.

The problem is that the requirement to obtain a waiver only functions as intended when it operates as a substantive obstacle and not merely as a procedural formality. Prior to 2017, members of Congress felt compelled to justify and explain a vote to support a waiver. After reluctantly granting Mattis a waiver in 2017, Sen. Jack Reed, the ranking member of the Senate Armed Services Committee, vowed not to do so again, saying, “Waiving the law should happen no more than once in a generation.” Given the circumstances of Trump’s election, the outgoing president’s campaign pledges to commit war crimes and the anxieties of U.S. allies in January 2017, members of Congress believed Mattis was a uniquely qualified secretary of defense. Importantly, the qualities that Congress and Trump valued in Mattis in the moment are precisely those that the waiver seeks to disincentivize—that is, that Mattis’s reputation as a thoughtful and aggressive Marine general, and the independent stature of his service record, made him seem particularly qualified to counterbalance and reign in Trump’s worst impulses.

Whatever the merits of granting Mattis a waiver may have been at the time, it is clear in retrospect that granting the exception altered the underlying normative assumptions. This is evident both in Biden’s decision to nominate Austin and in the debate surrounding Austin’s nomination. Indeed, Reed has already softened his “once in a generation” pledge, saying “It is the obligation of the Senate to thoroughly review this nomination in the historic context it is being presented and the impact it will have on future generations,” and that “one cannot separate the waiver from the individual who has been nominated.”

Other members of Congress have been more explicit on the connection. Rep. Ro Khanna told the Washington Post, “Having Mattis get a waiver three years ago and then saying to one of the more qualified African American generals, the first African American secretary of defense, that somehow a waiver doesn’t work for you is hypocritical.”

There is a difference between once in a generation and twice in a generation. There’s also a difference between once in an exceptional circumstance and twice in a row. But beyond that, the fundamental difference between 2017 and 2021 is not between Mattis and Austin, but between Trump and Biden. At the time of Mattis’s confirmation, there were deep and genuinely bipartisan concerns over Trump’s fitness to be commander in chief. These concerns simply don’t exist with Biden. Republicans might disagree with Biden’s policy judgments, but they do not fear, for example, that he might recklessly invite a nuclear confrontation.

If Congress grants Austin the waiver, this will create a precedent that a waiver is justified whenever a president believes the best person for the job is someone who needs a waiver. That is an endlessly malleable standard. At the moment, there is an answer to “Why Mattis and not Austin?” But there will be no good answer to “Why Mattis and Austin, but not this next person?” In the span of four years, the presumption that the secretary of defense will not have recently served in the military will have more or less collapsed.

There are actually good arguments for still supporting a waiver for Austin, even in light of the precedent it would set. But it is essential that Congress not delude itself into believing that it is possible to make two exceptions in a row and then return to the status quo ex ante. This is a big decision—and it should be made with a frank and clear-eyed assessment of the pros and cons, despite the possible political inconvenience.

So what are the arguments in favor of granting Austin the waiver, despite the larger consequences?

Most fundamentally, a reasonable member of Congress and a reasonable president might just not believe that the rule against recent service is really that essential in preserving civilian control of the military—or might believe that it should be a weak rule, rather than a strong one. In this view, the rule is merely one norm of a multitude that reinforces the principle of civilian control over the military, including most significantly a chain of command that reports to the president. After all, there was no actual confusion that Mattis was a civilian secretary of defense. He didn’t wear a uniform; where his policy judgments conflicted with Trump’s, there was no ambiguity over whose orders the military was compelled to obey.

The seven year waiting period between serving in the armed forces and leading the Pentagon is arbitrary. It used to be 10 years. It could just as easily be five years, or even four years, nine months, and 21 days—Austin’s distance from service as of Inauguration Day. Certainly, no one is arguing that veterans should be barred from becoming defense secretary. Conversely, no one is endorsing the notion that it would be appropriate for a president to nominate an individual on active duty who would be required to resign to serve, at least not yet. The question is where to draw the line and how bright the line should be wherever it is. Maybe it is enough if the waiver gives the president a slight disincentive to appoint a recent officer and gives Congress an additional point of intervention to debate whether there is a sufficient distance. Maybe it is enough to require that a nominee convince both chambers that he or she intends fully to embrace norms of civilian control.

The Trump administration has altered the traditional norms for former military officers. The 2016 election brought unprecedented willingness of former generals to speak out on behalf of and against candidates. Former Gen. John Kelly served as Trump’s homeland security secretary and then—in an unusual but Become a supporter of IT Security News and help us remove the ads.