Congress Executive Branch

The Military Waiver Requirement for Secretary of Defense Shouldn’t Substitute Individuation

Dan Maurer
Tuesday, December 22, 2020, 9:01 AM

Gen. Lloyd Austin’s nomination for defense secretary has prompted many civil-military experts to criticize the pick as damaging to civilian control over the military. But the categorical assumptions the experts make are flawed.

Gen. Lloyd Austin III addresses the crew of the aircraft carrier USS George H.W. Bush in 2014 (U.S. Navy photo).

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President-elect Biden, like President Trump before him, has chosen to nominate a well-regarded retired four-star general (Lloyd Austin III) to serve as his first secretary of defense. The conventional wisdom among most scholars of civil-military relations is that the United States should never have a retired military general or admiral serve in the political position of secretary of defense, and that two such cases in consecutive administrations is just a shade short of setting a terrible precedent. But insofar as it rejects retired military flag officers out-of-hand, this conventional wisdom is wrong. Congress—if it wishes to regain its constitutionally provided stature in national security—would do more to correct an imbalance in civil-military relations with a thoughtful, deliberative appointments process than by presumptively preferring “pure” civilians to head the Department of Defense.

Nine Good Reasons to Object, Generally, to Retired General Officers

Advocacy on behalf of Austin’s nomination is more muted than it was the last time a president wanted a former general in the job. After Trump’s election, some observers did warn that surrounding oneself with generals, retired or otherwise, was dangerous to healthy civil-military relationships and could undermine the blessings of “civilian control of the military.” However, there was much more said in favor of James Mattis for the level of maturity, intellect and experience he would bring as one of the few “adults” in the room—he could shield the rest of the country from an “impulsive and uninformed” Trump administration.

But that level of urgent preventive medicine seems less crucial in a Biden administration unlikely to create so many dramatic self-inflicted wounds, either recklessly or deliberately. Some supporters of Austin’s nomination emphasize that he would be the first Black American to serve in this position—a welcome and significant signal at a time of extraordinary public reckoning with racial injustice, including within the military. Others focus their support for this nomination on Austin’s specific background, combat experience and other qualities, including that Biden already voiced trust in Austin’s capacities. But others criticize the underlying assumption that old soldiers make terrible political leaders, and condemn the presumptions that their martial code of virtue and discipline either is immaterial to the work of being the second only to the president in the chain of command or is disqualifying altogether.

The standard arguments against a retired military officer—a James Mattis, a George Marshall or a Lloyd Austin—can be divided into several categories.

The Not-Really-a-Civilian Objection

A person who spends three or four decades in uniform is the “product of an all-absorbing institution as total in its way as the priesthood in the Catholic Church[,]” as noted scholar Eliot Cohen wrote. In other words, the individual’s civilian status is a superficial status. To the New York Times editorial board, “more than four decades of military service doesn’t fade in four years.”

The Military Predisposition Objection

A former high-ranking officer will militarize a cadre of key advisers and subordinates, creating an orbit of uniformed personnel trusted for their experience or existing personal relationships and comfort and relegating civilian expertise, judgment and perspective to the JV team—especially when there is evidence of civilian incompetence or infighting. Military, not civilian, perspectives will dominate, the opposite of what should be the case. This places an undue emphasis on loyalty over competence, and “it could hamper independent thinking and fresh proposals,” as Fred Kaplan wrote recently.

The Politicization Objection

A now-politically dependent former general officer will politicize national security issues or those internal bureaucratic subjects for which technical expertise, not politics, is relevant. This not only confuses the public, and can dim the military’s credibility by association, but also sends messages throughout the Armed Forces that defense matters are to be judged through partisan lenses.

The Blurred Lines Objection

The United States must avoid actions that “blur” the line between civilian and militarya division as critical to American democratic freedom as the separation between church and state.

The Can’t “Upskill” Objection

Retired general officers like Austin clearly excelled in very narrow, tactically focused decision-making; therefore, presumptively, they lack the talents and patience needed to think broadly about policy and politics. “[E]ffective secretaries of defense are also skilled politicians, capable of translating the president’s political priorities in the Pentagon,” as three well-informed scholars wrote recently.

The Congress-Has-Spoken Objection

Congress felt pretty strongly about keeping retired flag officers out of the job, requiring a seven-year gap between active-duty service and appointment as the secretary, and it has granted the waiver only under extraordinary circumstances (the Korean War in George Marshall’s case; the uncertainty surrounding the competence of the Trump administration in Mattis’s case). This argument, of course, is largely premised on the first five objections.

The Norms-Are-Good Objection

There is an entrenched “norm” of not relying on former military leaders to run the department. Returning to the norm is necessary to rehabilitate the Pentagon’s credibility and reemphasize the dominance of the “civil” in the civil-military relationship. This argument relies on the statute that time bars certain retired nominees absent a congressional waiver.

The “Credibility Alchemy” Objection

Tapping a retired general to lead the Department of Defense as the senior civilian taps into the public’s reservoir of “high esteem” for the military, allowing the president to drink credibility from that well. This turns the military’s dull, long-held reputation for nonpartisanship into political gold (for the politician).

The Nonargument Objection

It “just feels off,” as one member of Congress recently said.

Individually, these are compelling reasons. Collectively, they make it clear why this dilemma is so rare. Some observers have suggested that these are rebuttable objections, but even still, the burden shifts to nominees to explain to the Senate how they will mitigate those concerns. It is not at all surprising that both President-elect Biden and Austin have launched a charm offensive to quell lingering concern and reluctance on both sides of the partisan divide.

What These Objections Lack

All of these objections share two common defects. First, they elevate status over suitability. Second, they reflect a faith that foreordained catastrophe awaits because of the secretary’s previous employment as a career uniformed professional (the less categorical of the critics argue that it at least presents an unjustifiable risk). Of course, many former military commanders who reached the pinnacle of their profession would not be able to avoid apparent or real conflicts of interest, might play favorites with former colleagues still in uniform or turn national security issues into partisan talking points, but that is not because of their military experience. A retired general can breach norms, vitiate public confidence, or behave unethically and ineptly out of pure partisan drive or naked self-interest. But so might a civilian. When a retired general does it, it is not because he or she wore the uniform for so long. It is because of who that person is.

It seems important to recognize, also, that the position of defense secretary cannot easily be equated to other politically appointed cabinet positions, not just because it stewards the largest of the executive branch departments and wields the sword in the nation’s defense. The men and women under the secretary’s authority—from the infantry soldier to the sonar technician, from the fighter pilot to the division commander, from the Department of the Army’s civilian police force to the civilian intelligence analysts—are specialized agents, with varying degrees of technical expertise and professional judgment, whose work and advice is regulated or informed by certain customs, norms, duties and moral expectations that define unique professional cultures of the armed forces. A politically appointed civilian “principal” with no familiarity with the institutional culture of the military—and how it influences the “advice, action, and ability” of its members—risks imposing demands on the military that are drawn from cartoonish, incomplete or unrealistic expectations. It would be like suggesting that the U.S. attorney general should be chosen presumptively from among those who have been retired from the Justice Department for at least seven years, but—preferably—not a retired Justice Department attorney and, if at all, possibly not even an attorney (of note, neither the Constitution nor federal law requires that the attorney general be “learned in the law” or otherwise be a licensed lawyer). Or, similarly, that the director of the CIA should be someone with no institutionalized perspective on intelligence gathering, analysis and production. But that “just feels off”—a reasonable person would intuitively reject these conclusions. It is not a challenge to understand why. When the consequences of administrative negligence, ineptitude, malfeasance or managerial toxicity are placed in the context of their effects on these organizations’ personnel and missions, the particular qualities and competencies of the aspiring nominee are of paramount concern.

This by no means suggests that someone with experience in the Department of Defense should always be short-listed for the top job; in fact, familiarity may breed arrogance, overconfidence and condescension—one can look at the tumultuous tenure of Donald Rumsfeld in the George W. Bush administration as Exhibit A. Under certain conditions, many otherwise competent civilians, even with both civilian Defense Department and junior officer experience behind them, fail to recognize when their conduct politicizes the military, as former Defense Secretary Mark Esper infamously did during the June protests in Washington, D.C. Under other conditions, many otherwise competent former generals may fail to shield the department from pure politics and safeguard its nonpartisan ethos and public reputation, for which Mattis has been faulted.

But just as there is no guarantee that a civilian will make a competent and valuable secretary, there is no guarantee that a retired general will make an incompetent one—one who is inherently dangerous to the health of the civil-military relationship. In the unforgiving context of national security, there is a greater likelihood that the retiree’s uniformed experience will be an advantage rather than a hindrance if other relevant factors are accounted for. And that is the problem with the majority opinion to date that criticizes the Austin nomination on these civil-military relations grounds: It dims the consideration of relevant and material questions other than the nine objections noted above. The spotlight, in other words, is firmly (and unreasonably) fixed on a presumptive exclusion. The majority, in Congress and among civil-military relations experts, seems to read the statute’s waiver requirement as an obstacle emplaced deliberately to make it harder to nominate and confirm a retired general officer. But that is not how the requirement should be read at all. It is an obstacle, but one placed purposely to slow the process so that Congress can engage in a meaningful, deliberative assessment of the individual nominee’s background and qualities in full view of the “risk” to civilian control that the common objections above identify. It is what Congress should want to do for any presidential nominee, and certainly for those filling key national security positions. That assessment is neither presumptively antagonistic toward a retired general nor presumptively deferential to the president’s preferences.

While history demonstrates that most secretaries do not come from elite uniformed positions, history also demonstrates that secretaries are all white men. History is not conclusive, nor does following it blindly reveal good judgment. Moreover, while the statute itself establishes the waivable seven-year gap requirement, the statute does not say the waiver need be a “once-in- a-generation” grant, as Sen. Jack Reed said it ought to be in 2017. Instead, both history and the statute should be read as implying a different requirement altogether: that the nominee’s background, professional experience and potential be weighed against nominee-specific concerns that might be drawn from the standard civil-military relations objections noted earlier.

The Senate’s Three Possible Frameworks for Secretary of Defense Nominees

So, the Senate has three choices. It can commit to the scholarly per se nondebatable presumption that a retired general officer is inappropriate as a secretary of defense. Or it can commit to a slightly less rigid position, where the nominee can theoretically overcome the strong arguments against his or her confirmation through persuasion. Or instead, as I think is more rational and still consistent with the seven-year waiting period established by law, the Senate can, and should, commit to having no presumption at all—the arguably harder task of weighing the individual’s merits and demerits holistically informed by the risk of the nine abstract concerns listed above. In other words, a Senate confirmation of a recently retired general as secretary of defense is a case-specific determination that this nominee—under the known and reasonably foreseeable circumstances—overcomes a satisfactory number of objections. This is precisely the point of Senate confirmation hearings anyway. Far from being simply a rubber stamp, the confirmation hearing must be thought of as a hiring committee charged with determining if the candidate is the most qualified. Prior employment is one factor and feature and ought not necessarily be dispositive.

The Senate serves its function, the national security establishment, and the Department of Defense more ably by considering a nominee on the merits, and those merits should not be limited to the retired officer’s deployment experience, command résumé and rank. Nor should the Senate’s civilian-military relations concerns be assuaged by a stock answer to the stock question of “if confirmed, how would you ensure that your tenure as Secretary of Defense reflects the requirement for civilian control of the Armed Forces that is embodied in our Constitution?” Instead, as any number of former secretaries of defense would likely explain, the job is about building and sustaining certain key relationships, and keeping the faith with both the uniformed and civilian members of the department, just as it is about making judgments affecting the lives of millions both at home and abroad.

Nine Questions, Not Nine Objections

When considering the civil-military relations effect of a president’s nominee for secretary of defense, the Senate should consider how the nominee, or the nominee’s background, answers the following questions:

  • What is the proper role of the secretary in communicating with Congress, with field commanders and combatant commanders, with rank-and-file service members, with the Joint Chiefs of Staff, with the National Security Council, with other cabinet members and with the president?

The answer should reveal nuance: The secretary acts on behalf of the president as his agent but also acts as a broker or translator of information from the department and subordinate commanders to the chairman of the Joint Chiefs of Staff and the president, thereby acting as an “agent” of sorts for the benefit of the institution he or she oversees. Fiduciary duties of candor and competence, of communication and diligence, of transparency and no self-dealing mean and imply different actions depending on the secretary’s role.

  • What should a secretary do when his or her oath of office conflicts with the political duty to the president? What, if anything, should a secretary do to intervene when a president implies that a subordinate military officer’s oath of office is outweighed by political duty?
  • How would the nominee handle dissent and disagreement by senior military officers? Encourage it? Stifle it? Punish it? What does “principled disobedience” mean to the nominee?
  • How will the nominee manifest his or her own dissent and disagreement with the president? If called to explain it by Congress, will he or she?
  • What is the nominee’s moral and ethical redline? Has he or she communicated that redline to the president? Is this influenced by his or her prior military experience? If so, should that redline “shift” given the civilian leadership role he or she would enjoy as secretary?
  • To what extent does the nominee value the expertise of civilian members of the Defense Department, across a range of disciplines and subject matter—from intelligence analysis, to budget analysts, to acquisitions and research, to strategy and policy, to uniformed personnel matters such as pay, quality of life, discrimination, crime and assignment opportunities?
  • What kinds of considerations are relevant and material in decisions about the use of military force abroad?

This question recognizes that every potential conflict is unique but probes just how far outside of “standard” military considerations the secretary is capable of going.

  • To what extent can the nominee leverage his or her existing relationships with military leaders or ministers of defense in partner, ally and competitor nations?
  • To what extent can the nominee engage collaboratively and productively with other cabinet members?

Some of these questions are generic, asking what any secretary would, could or should do in certain specified conditions. But others ask very personal “what would you do in these conditions?” questions. Each answer, however generic or targeted it aims to be, reveals something important about the nominee’s likely effect on civil-military relations. Taken as a whole, these questions help the Senate understand—and potentially underwrite—the risk to civil-military norms and conventions this particular nominee presents. Surely it is not a sufficient test of whether that nominee is “best qualified,” but it is a necessary one.

If there is a civil-military relations silver-lining to the relative confusion of the past four years, it is that pundits, politicians and the public—not to mention the service members—now have a historic “proof of concept.” During the Trump administration, the country has seen a litany of previously unthinkable, norm-shattering debacles (such as the president handing out campaign hats to soldiers deployed in combat zones, referring to American streets as “battlespace,” referring to “my generals,” pardoning officers for acts that would be considered “war crimes,” inexplicably ordering the withdrawal of forces from active campaigns with the nation’s partners, among many others). These prove the fragility of the system when actors in bad faith take advantage of its many seams, sometimes tripping over themselves out of nothing more nefarious than stupidity. There is a saying among lawyers that “bad facts make bad law.” Here, that means the extreme chaotic conditions of the Trump administration arguably seemed to justify the rare waiver for Mattis, but that is a one-off series of historically unique circumstances, not to be considered precedent. But it can also be said that bad facts make for bad lessons—like assuming it was a one-off series of historically unique circumstances.

Despite the well-argued objections raised over Austin’s nomination, the Senate has an obligation to deal in good faith with all comers fairly—whether they wore stars on their uniform in the past seven years or not. The Senate must understand that the law does not require a presumption against a recently retired general officer. The mere fact that a separate vote for a waiver is needed is not evidence that it is to be given sparingly under only the most drastic and dire of emergencies (if Congress thought so, it would have said so). It only implies that the Senate must conduct a searching inquiry into whether the nominee is best qualified. Which it should want to do anyway. When Congress engages in a deliberately piercing analysis of a presidential appointee’s idiosyncratic qualifications for the helm of the national security establishment, it reinforces the proper degree of civilian control over the military far more than defaulting to a pure civilian nominee ever could.

Dan Maurer is Assistant Professor of Law, U.S. Military Academy at West Point, and Lieutenant Colonel, Judge Advocate General’s Corps, U.S. Army.

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