Walter Pincus is a contributing senior national security columnist for The Cipher Brief. He spent forty years at The Washington Post, writing on topics from nuclear weapons to politics. In 2002, he and a team of Post reporters won the Pulitzer Prize for national reporting.
OPINION — The Senate Armed Services Committee this afternoon is scheduled to question retired-Gen. Lloyd J. Austin III on his qualifications to be the next Secretary of Defense but hanging over the confirmation hearing is the matter of waiving the law that requires him to have been out of service for at least seven years.
Austin retired from the Army on May 1, 2016, less than five years ago.
Two days from now, Austin will make an unprecedented appearance before the House Armed Services Committee as a nominee for the Defense Secretary job, although it won’t be a confirmation hearing. It will be in preparation for the House vote on the waiver. As Committee Chairman Rep. Adam Smith (D-Wash.) put it January 8, Austin will testify in public so “the American people can hear directly from Secretary-designate Austin regarding civilian control of the military.”
Underlying the waiver issue is that often used and time-honored phrase, “civilian control of the military.” But I suggest those words have lost their authority because the military over the past several decades has functioned much more efficiently in the public’s mind than the civilians in Congress or even those in the White House.
Last Tuesday, in advance of Austin’s appearance, the Senate Armed Services Committee held a virtual hearing entitled “Civilian Control of the Military,” with testimony from Dr. Lindsay P. Cohn, Associate Professor, Naval War College and Dr. Kathleen J. McInnis, specialist in International Security, Congressional Research Service.
As Dr. Cohn put it, “The U.S. military enjoys high levels of public trust. That is good. What is not good is when the military is more trusted than the basic institutions of democratic governance, which, at this point, it is.”
During the hearing it was brought out that the military has a 70 percent confidence rating among the public, while Congress, for example, is far lower.
How did we get to this state?
Article II, Section 2 of the Constitution states, “The President shall be the Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States when called into the actual Service of the United States.”
Article I, Section 8 says that the roles for Congress with regard to the military are, “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy.”
I suggest if you see Congress as the “civilian” side of this relationship, history shows that since World War II, we have been in at least two wars (Korea and Vietnam) without a congressionally approved war resolution. Since the 9/11 attacks on the New York World Trade Center and the Pentagon, there have been continuous overseas military operations initiated by Presidents in their role as commanders in chief, and almost all without prior congressional approval.
Alexander Hamilton, in Federalist Paper 8, published on November 20, 1787, wrote, “The perpetual menacing of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil.” In Hamilton’s time, and even in ours, the fear has been that the military then takes over the government.
Current U.S. public support of the military has also benefited from two other factors: the polarization of American politics which has limited Congress’ ability to solve problems; and the ability, up to now, for the military to remain non-partisan, despite recent Trump administration attempts to change that.
Another Trump contribution undermining civilian leadership of the military has been the failure to fill senior, political jobs in the Defense Department. In November, Defense News reported, “24 of the 60 positions at the Department of Defense are not occupied by confirmed individuals, with experts seeing little chance any current nominees will receive Senate approval before the clock runs out.” Remember, Trump in four years has had gone through two confirmed Secretaries of Defense and Chris Miller, the current acting-Defense Secretary, is the fourth person to have that title since Mattis retired.
Introduction of the waiver in the National Security Act of 1947 had at least one other purpose beyond maintaining civilian control. According to a Congressional Research Service study, it also would “help ensure that no one military service dominated the newly established Defense Department,” which joined under one person, what previously had been separate services.
In the first months of the Korean War in September 1950, President Truman wanted to replace his then-Defense Secretary Louis A. Johnson with Gen. George C. Marshall, a World War II leader who had recently resigned after two years as Secretary of State. Marshall had actually returned to active duty and was assigned to the Office of the Army Chief of Staff when Truman nominated him to be Defense Secretary.
The nomination did draw some opposition, but Marshall was approved, based on the ongoing Korean War, by a vote of 57-to- 11, with 28 Senators not voting.
In 2008, the original 10-year ban was reduced to seven to enable “the President to choose from a greater pool of qualified candidates with relevant military expertise,” according to Rep. Walter B. Jones (R-N.C.), who introduced the measure.
In early January 2017, Congress passed a waiver to allow retired-Gen. James Mattis to become then-President-elect Donald Trump’s choice to become Defense Secretary, although he had been retired for less than four years. The Senate vote was 81-to-17. The House vote, which took place a week before Trump’s inaugural, was 268-to-15.
Mattis, a Marine for 44 years, had been chosen by Trump in part because of the nickname “Mad Dog,” which the general disliked. The argument for his waiver among legislators was that Mattis, who in reality was a thoughtful and well-read scholarly soldier, would provide experience and maturity to Trump’s top cabinet and be one of the few adults in the room when Trump made national security decisions.
He was, but within two years, Mattis resigned after Trump’s impulsive policy decision to withdraw most U.S. troops from Syria.
When the Mattis waiver was under consideration in 2017, Sen. Kirsten Gillibrand (D-N.Y.), a member of Armed Services, said “Civilian control of our military is a fundamental principle of American democracy, and I will not vote for an exception to this rule.” At last week’s hearing, in answer to a Gillibrand question, Dr. Cohn said that a waiver for Austin after the one for Mattis would represent a “dangerous precedent.”
I doubt that Biden and most of the public shares that concern.
One day before Biden publicly announced his choice of Austin, the President-elect wrote in an Atlantic article, “I hope that Congress will grant a waiver to Secretary-designate Austin, just as Congress did for Secretary Jim Mattis. Given the immense and urgent threats and challenges our nation faces, he should be confirmed swiftly.”
Biden attempted to justify choosing Austin by writing, “If confirmed, he will be the first African American to helm the Defense Department – another milestone in a barrier-breaking career dedicated to keeping the American people secure.”
There are more personal reasons that Biden chose Austin.
“I’ve spent countless hours with him, in the field and in the White House Situation Room. I’ve sought his advice, seen his command, and admired his calm and his character. He is the definition of a patriot,” Biden wrote in the Atlantic article.
But just as important was that in 2009, when Austin headed U.S. forces in Iraq, Major Beau Biden of the Army Reserve JAG Corps was deployed for a year and served on Austin’s staff. The younger Biden, then on leave from being Delaware’s attorney general, and Austin used to attend Catholic services together and developed a friendship.
At the December 9, announcement that he was choosing Austin for the Secretary of Defense role, Biden said, “I know how proud Beau was to serve on the general’s staff.” In response, Austin described Beau as “a very special person and a true patriot, and a good friend to all who knew him.”
Anyone aware of Biden’s strong affection for his late son knows that the President-elect sees Austin as someone more than just another one of his cabinet nominees.
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