Congress erred in giving Lloyd Austin a waiver
Retired General Lloyd Austin, Joe Biden’s candidate for defense secretary, was legally barred from serving in the post without Congress granting him a special waiver under the National Security Act of 1947. General Austin retired from the military in April 2016, which is less than the seven years without a uniform required by the statute before becoming secretary of defense. The House and Senate voted for the waiver on Thursday by uneven margins, having waived the same demand for James Mattis four years ago. Granting two consecutive waivers was not the right way to go. A wiser solution would have been to repeal the ban entirely, or at least to shorten it considerably. Congress should do it now. Section 113 of the law, enacted when the war and navy departments were merged into a much-expanded Department of Defense overseeing a much-expanded Standing Army after World War II, imposed a ten-year ban on officers in uniform serving as secretary of defense. This was reduced to seven years in 2008. The theory of the ban was to ensure civilian control of the military, both to avoid the capture of Pentagon leadership by military-industrial interests and, more seriously, to prevent the growth of an unsupervised standing army that could one day threaten a civilian government. A few years after its passage, a waiver was granted to let George Marshall take over as defense secretary after the outbreak of the Korean War. Marshall was, by mutual agreement, unique qualifications at the time, having served as the Army Chief of Staff throughout WWII, and particularly confident in the job, having served as a civilian in as Secretary of State prior to his appointment to head the Department of Defense. Four years ago, I argued for a waiver for Mattis, the first granted since Marshall. A big part of my argument at the time was that the American Republic had done very well with the newer military who ran the war department before the ban. Indeed, it dates back to Henry Knox, as well as recent ex-generals such as Dwight Eisenhower and Ulysses S. Grant as president. However, there were three other reasons why a waiver for Mattis was particularly appropriate in 2017. First, Mattis was a man of unusual importance and respect as a caring warrior. He could legitimately be considered a man whose reputation inside and outside the armed forces gave the Department of Defense credibility and stability, in addition to qualifying him for this role. General Austin is undoubtedly a well-regarded man (despite questions about his involvement in intelligence handling during the Obama era), but he does not occupy an equally unique position. Second, there was a shortage of candidates of comparable stature to Mattis. Much of the Republican Party’s national security establishment (or independents or conservative Democrats like that who might serve in a Republican administration) had been alienated from Donald Trump during the 2016 presidential campaign. would refuse to serve under Trump and those Trump would refuse to hire, the choices for a top-notch Defense Secretary were slim. So there was a particular need for Mattis to get down to business. While the Democrats’ bench of potential defense picks isn’t exactly an inspiration, Austin wasn’t even the favorite among party watchers; Michèle Flournoy was, after having held senior positions in the Pentagon under Bill Clinton and Barack Obama. It’s not clear why General Austin would be significantly superior to Flournoy or other potential picks. Third, Trump was new to the government and a volatile temperament, but also potentially subject to the guidance and influence of a strong personality at the head of the military. There was a particular risk that Trump needed someone who knew the ropes. Despite Biden’s many flaws, inexperience is not one of them. Impulsivity either; Biden is more inclined to be too careful. Biden will need a serious person in the post who can push back the efforts of the left to hamper our defense capabilities, but the identity of the Secretary of Defense under Biden is unlikely to have a major influence on it. orientation of our foreign policy. There are two arguments suggested by Democrats – particularly those among the 17 Senate Democrats and 150 House Democrats who voted against the Mattis waiver – for giving Austin a waiver. One, which is entirely Biden’s fault, was that denying a waiver for Austin would unduly delay the installation of a Secretary of Defense. But that’s a danger for any Cabinet appointment that requires Senate approval. If Austin had lost the opt-out vote, it wouldn’t be any different from losing a confirmation vote. The second is the argument that Austin has unique value because there has never been an African-American Secretary of Defense. Of course, there is some value in getting “firsts” behind us. There is, however, no reason to suspect that he is the only black candidate qualified for the post. Moreover, a country that now has a black president and vice president and several black secretaries of state and national security advisers does not have an immediate and urgent need to break down this particular barrier. Flournoy, the main alternate candidate, would have been the first woman to hold the post, and it’s also likely not that if Austin had been denied the waiver, Biden would have prioritized race, gender, or some other form of identity by choosing. The point of forgoing the application of a general law is that the circumstances are exceptional. Granting consecutive exemptions without identifying an exceptional reason takes us from the exception to the habit. When refusing to enforce a law becomes a habit, Congress should rethink the law. My preferred solution is to reduce the seven-year period to simply require that the officer not wear the uniform until after a presidential or congressional election, to reduce the risk of uniformed officers lobbying or campaigning. for the post, or be granted. political favor, in uniform. A cooling-off period of this limited duration, similar to those used in various parts of the Constitution, could alleviate some of the potential constitutional objections to section 113. There is, at this time, no obvious reason why the Senate should not confirm Austin, but there was nothing exceptional to justify a waiver. Having voted twice to break the law, Congress should be honest and change it.