from The Water's Edge

Transition 2021: Should a Retired General Be Secretary of Defense?

Retired General Lloyd Austin speaks after President-Elect Joe Biden announces his nomination as defense secretary in Wilmington, Delaware, on December 9, 2020.
Retired General Lloyd Austin speaks after President-Elect Joe Biden announces his nomination as defense secretary in Wilmington, Delaware, on December 9, 2020. Kevin Lemarque/Reuters

Each Friday, I look at what is happening in President-Elect Joe Biden’s transition to the White House. This week: Biden’s nomination of General Lloyd Austin to be secretary of defense raises questions about civilian oversight of the military.

December 11, 2020
4:45 pm (EST)

Retired General Lloyd Austin speaks after President-Elect Joe Biden announces his nomination as defense secretary in Wilmington, Delaware, on December 9, 2020.
Retired General Lloyd Austin speaks after President-Elect Joe Biden announces his nomination as defense secretary in Wilmington, Delaware, on December 9, 2020. Kevin Lemarque/Reuters
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Joe Biden announced on Tuesday that he would nominate retired four-star General Lloyd Austin to become secretary of defense. However, naming the first African American to run the largest department in the U.S. government didn’t get the rousing reception that the president-elect likely anticipated.

The issue isn’t Austin’s understanding of the military. The Alabama native is a West Point graduate who commanded U.S. forces in Iraq from September 2010 to December 2011. In 2013, he became the first African American named to lead U.S. Central Command. In that post, which he held until his retirement in 2016, he oversaw all U.S. military operations in the Middle East and Afghanistan, including the campaign to defeat ISIS in Iraq and Syria.

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The debate instead is over the wisdom of having a recently retired general lead the Defense Department. Civilian control of the military is a bedrock principle of American government. The framers feared the “man on horseback” who might ignore the directives of civilian leaders or even overthrow democratic government. Those fears may seem farfetched today. (Or maybe not.) But another risk exists as well. A retired general may be too accustomed to seeing things from a purely military as opposed to a diplomatic or domestic perspective to provide the kind of well-rounded leadership the Defense Department needs.

These concerns shaped the writing of the National Security Act of 1947, which created the Department of Defense. That law bars former military officers from serving as secretary of defense for seven years—originally ten years—after their retirement, unless Congress grants a waiver. Only twice before have presidents requested one: Harry Truman did so for George Marshall in 1950 in the middle of the Korean War, and Donald Trump did so for James Mattis in 2017 at the start of his administration.

Biden acknowledged the issues at stake in an article he wrote for the Atlantic defending his decision to pick Austin:  

I respect and believe in the importance of civilian control of our military and in the importance of a strong civil-military working relationship at DoD—as does Austin. We need empowered civilians working with military leaders to shape DoD’s policies and ensure that our defense policies are accountable to the American people. Austin also knows that the secretary of defense has a different set of responsibilities than a general officer and that the civil-military dynamic has been under great stress these past four years. He will work tirelessly to get it back on track.

That message, however, hasn’t resonated with all Democratic lawmakers. Some voted four years ago against granting a waiver to Mattis on the grounds, as one put it, that “civilian control of our military is a fundamental principle of American democracy.” They are reluctant to reverse course now. Senators Richard Blumenthal of Connecticut, Jon Tester of Montana, and Elizabeth Warren of Massachusetts have already said they will oppose a waiver for Austin. Others remain on the fence. Representative Elissa Slotkin of Michigan, who worked with Austin when she was a CIA analyst, no doubt spoke for many of her colleagues when she expressed her own reservations: “I have deep respect for General Lloyd Austin….But choosing another recently retired general to serve in a role that is designed for a civilian just feels off.”  

It likely feels off because of the fear that a waiver intended to be an exception may be headed toward becoming the rule. The Democrats’ 2020 party platform stressed the need to restore balance to civil-military relations:

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Democrats believe that healthy civil-military relations are essential to our democracy and to the strength and effectiveness of our military. We will end the Trump Administration’s politicization of the armed forces and distortion of civilian and military roles in decision-making. We will reinstate national security policymaking processes that advance competent civilian control. 

As Eliot Cohen, one of the country’s most keen-eyed observers of civil-military relations, wrote after Austin’s nomination was announced: “It would be a bitter irony for an incoming administration to strike a different kind of blow at the democratic norms that it is so clearly, in other domains, keen to recover and restore.”

Concerns about having another general oversee the Defense Department are by themselves, however, unlikely to derail Austin’s nomination. Republican lawmakers, some of whom criticized him during his time at CENTCOM for a failed program to train Syrians to fight ISIS, have not attacked the pick. Senator Jim Inhofe of Oklahoma, the chair of the Senate Armed Services Committee, said, “I always support waivers.” Meanwhile, Democratic lawmakers who voted for Mattis’s waiver four years ago will be under pressure to do the same for Austin, and not just because of the perceived need to support a Democratic president. As Representative Ro Khanna of California, who voted against the Mattis waiver, said: “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.”

Should Austin be confirmed, one can only hope that he allays the fears of those who oppose granting him a waiver and has a long and successful run in the job. The Defense Department has gone through nine confirmed or acting secretaries over the last decade—and none of them served more than two years in the job. With such turbulence at the top, it’s a wonder that any leadership or oversight of the military can take place.

What Biden Is Saying

Biden said relatively little publicly about foreign policy this week. He instead focused on his plan to combat COVID-19 in his first months in office. He did take time to mark the seventy-ninth anniversary of Pearl Harbor with a tweet

Biden’s Appointments

General Austin wasn’t the only person to be named to Biden’s foreign policy team this week. Yesterday the president-elect announced his intention to nominate Katherine Tai to be the U.S. Trade Representative. Tai, who has been chief trade counsel for the Democrats on the House Ways and Means Committee since 2017, speaks Mandarin fluently. She would be the first woman of color and first Asian American to head USTR.

The Biden-Harris transition team also tweeted out a video showcasing its national security team and highlighting its foreign policy vision.

The main message, summarized by Linda Thomas-Greenfield, Biden’s pick to be U.S. ambassador to the United Nations, is: “Multilateralism is back, diplomacy is back, democracy is back, America is back.”

The Biden Agenda

My colleague Edward Alden reviewed a report that Jake Sullivan, Biden’s pick for national security advisor, helped prepare on making foreign policy work for the middle class. Alden concluded that “the government needs to institutionalize what the report’s authors set out to do—listen to more of the country when making foreign policy.”

Jason Bordoff wrote that what the Biden administration plans to do on foreign and trade policy can “do at least as much as his domestic agenda to shake up global energy markets and give a boost to clean energy firms and technologies.”

Vanda Felbab-Brown argued that “multiple friction points are clearly visible on the horizon” in U.S.-Mexico relations even as the Biden administration seeks to build a more comprehensive relationship “anchored in lasting institutional cooperation.” 

Bruno Maçães wrote that the conventional wisdom “that U.S. policy on China will not change when President-elect Joe Biden replaces President Donald Trump” is “wrong. There is a fundamental choice to be made on how to deal with China, and Biden is very close to picking one alternative. There’s good reason to fear it’s the wrong one.”

Barnett Rubin urged the Biden administration to continue the drawdown of U.S. troops in Afghanistan, but to do so “as part of a coordinated regional strategy” between the United States and regional powers, including China and Russia.

John Spacapan warned Biden that making Saudi Arabia “a pariah state will not curb its nuclear ambitions or its human rights violations.”

The Washington Post added a foreign policy section of their series on “The Biden Agenda.” Post reporters review some of the challenges Biden will have to face in “a changed world,” including China, Iran, Russia, Venezuela, and “forever wars.”

The Vote Count

The “safe harbor” deadline passed on Tuesday, December 8. Only West Virginia missed the deadline. It certified on Wednesday. The electoral counts in the states that met the deadline are now immune from most conceivable legal challenges. However, that didn’t stop Texas Attorney General Ken Paxton from filing a lawsuit Tuesday asking the Supreme Court to bar electoral votes from Georgia, Michigan, Pennsylvania, and Wisconsin from being counted when the Electoral College convenes on Monday. Paxton wants the legislatures in those states to have time to investigate allegations of voting irregularities.

Officials in the four targeted states denounced the lawsuit. Pennsylvania’s attorney general went so far as to accuse Paxton of “seditious abuse of the judicial process.” Nonetheless, seventeen Republican attorneys general filed an amicus brief in support of his lawsuit, as did 106 U.S. House Republicans. Trump filed a motion to join the lawsuit and asked Senator Ted Cruz to argue his case before the Supreme Court.

Most legal experts dismiss the suit’s chances. Among other things, Paxton would need to show that Texas has legal standing to contest election procedures in other states. There is also the matter of the lack of evidence of large-scale voting irregularities. Overall, Trump has had scant success challenging the results of last month’s election. The Associated Press counts fifty-six lawsuits filed by the Trump campaign and other Republicans since Election Day. Forty-two of those suits have been lost, dismissed, or withdrawn. ABC News counts twenty-two cases that the Trump campaign has directly filed or joined. Its lone victory was a lawsuit in Pennsylvania in which a state judge ruled that the state could not count a small number of mail-in ballots that were “cured” after the state’s original curing deadline.

Another challenge to Biden’s election could come on January 6 when the new House and Senate meet in a joint session to review and certify the results of the Electoral College. In this normally ceremonial process, Congress, with the sitting vice president presiding, reviews the electoral results state by state. Under federal law, if one member of the House and one member of the Senate object to a state’s electors, then each chamber has to convene separately, assess the claim, and vote whether to accept that state’s electors or not. On four occasions, all since 1969, at least one House member has objected to a state’s slate of electors. Only twice, in 1969 and 2005, did a senator concur, thereby forcing the House and Senate to retire to their own chambers to review the charges and vote. In neither instance did Congress sustain the challenge.

Some Trump supporters on Capitol Hill say they will file just such a challenge next month. They argue that Democrats can’t complain because the three challenges since 2001 were all initiated by Democrats. (When a Democratic member challenged the certification of Georgia’s electoral votes for Trump in 2017, then Vice President Joe Biden responded, “It is over.” He was applauded by congressional Republicans.) While the prospect of Republican challenges on January 6 may attract a lot of media commentary in the coming weeks, they will be exercises in political theater. Both chambers must vote to sustain a challenge for a state’s electoral votes to be excluded. The Democrats will be the majority in the new House, so that won’t happen.

The Electoral Calendar

December 14       Electoral College electors cast their votes.

January 3             The new Congress is sworn in.

January 6             A joint session of Congress counts electoral votes and                                           formally declares a winner.

January 20           Inauguration Day.

Inauguration Day is forty days away.

Margaret Gach assisted in the preparation of this post.

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