Defense pick faces big hurdle

President-elect Joe Biden’s choice to be Defense secretary is already facing a significant hurdle to being confirmed: getting a waiver that will allow him to lead the Pentagon.

Retired Gen. Lloyd Austin has been out of the military for four years, but a law aimed at preserving civilian control of the military requires a seven-year cooling-off period to be Defense secretary.

Congress could pass a waiver for Austin like it did four years ago for retired Gen. James Mattis to be Defense secretary. But key lawmakers said at the time that Mattis was a unique situation.

Austin would be the nation’s first Black Defense secretary, a historic milestone that could be hard for Congress to block. But lawmakers in both parties signaled Tuesday the bar will be high to grant Austin a waiver.

“I think the burden of proof is on the administration,” said Sen. Jack Reed (D-R.I.), the ranking member of the Senate Armed Services Committee, who warned after Mattis he would “not support a waiver for future nominees.”

“It also comes down … to the quality of the nominee,” Reed said Tuesday, calling Austin an “outstanding officer.”

“It’s still — I think the preference would be for someone who is not recently retired,” Reed added.

Biden officially announced Austin as his choice for Defense secretary Tuesday afternoon, picking him over other leading contenders such as former under secretary of Defense for policy Michèle Flournoy and former Homeland Security Secretary Jeh Johnson.

In a statement, Biden said he chose Austin for his “demonstrated exemplary leadership, character and command,” and that he is “uniquely qualified to take on the challenges and crises we face in the current moment.”

“Gen. Austin shares my profound belief that our nation is at its strongest when we lead not only by the example of our power, but by the power of our example,” Biden said.

In an op-ed for The Atlantic, Biden also said he “hope[s] that Congress will grant a waiver to Secretary-designate Austin, just as Congress did for Secretary Jim Mattis.”

Austin retired from the military in 2016, after serving as the commander of U.S. Central Command since 2013.

His military career also includes time as the commanding U.S. general in Iraq and as the vice chief of staff of the Army.

Austin was initially seen as a long shot candidate to be Defense secretary, but he emerged as the leading contender as Biden faced pressure from Black leaders to select an African American nominee. Biden and Austin developed a relationship during the Obama administration, including the then-vice president attending Austin’s change-of-command ceremony in Iraq in 2010.

But Democrats also campaigned during the 2020 presidential election on restoring civil-military relations they argue were eroded during the Trump administration.

A Biden transition spokesperson, who highlighted that Austin has been retired from the military for a year longer than Mattis was when he was granted a waiver, told The Hill on Tuesday that depoliticizing the military is “obviously a big priority” for Biden, and they said Austin believes in “strong and empowered” civilian voices at the Pentagon.

Congress has only twice granted a waiver needed under the National Security Act requirement since the Pentagon was established: Mattis in 2017 and George Marshall in 1950.

With Mattis, lawmakers were hoping one of the military’s most revered leaders would rein in President Trump’s most dangerous impulses. But some civil-military relations experts now consider Mattis’s tenure a prime example of why the cooling-off period exists as he tipped the balance of decisionmaking in the Pentagon toward military officers over civilians.

Mattis’s waiver was approved by the Senate 81-17, with the “no” votes coming from Democrats and Sen. Bernie Sanders (I-Vt.). In the House, lawmakers approved the waiver 268-151, with just 36 Democrats supporting it.

Despite weak Democratic support for Mattis’s waiver, Rep. Hakeem Jeffries (D-N.Y.), chairman of the House Democratic Caucus, predicted Tuesday that Austin’s waiver would sail through the lower chamber with the overwhelming support of Democrats. He sidestepped questions to explain the discrepancy but praised Austin as a highly qualified figure well-equipped for the position.

“By all accounts he is a ground-breaking, trail-blazing four-star general who dedicated his life to protecting and serving the freedoms that the American people hold dear,” Jeffries told reporters in the Capitol.

“He has been disconnected from the military for several years,” he added. “Let’s see what happens moving forward, but it’s my expectation that we are going to strongly support his nomination.”

Sen. Chris Coons (D-Del.), a close ally of Biden’s, similarly predicted strong support for Austin.

“I don’t speak for other Senate Democrats, but I think he’ll be, I expect he will be strongly supported,” Coons said.

Senate Armed Services Committee Chairman James Inhofe (R-Okla.), who will lead Austin’s confirmation hearing if Republicans retain control of the upper chamber after January’s runoff elections in Georgia, said he would approve a waiver “in a heartbeat.”

“It’s not so much because of Austin, I don’t know him that well,” Inhofe added. “I just never have believed that we should … have that seven-year period.”

Some Republicans who supported Mattis, however, indicated hesitation about making the same exception for Biden’s nominee.

“I, like many other senators, have real reservations about giving another waiver under federal law for a recently retired general to become secretary of Defense,” Sen. Tom Cotton (R-Ark.) said on Fox News. “I can tell you that senators across the spectrum, from liberal Democrats to conservative Republicans, are opposed to doing that again.”

House Armed Services Committee Chairman Adam Smith (D-Wash.), who publicly endorsed Flournoy hours before news broke of Biden’s choice, called Austin “very qualified” in an interview with MSNBC but added that “the civilian control of the military is a bedrock principle of our Constitution and of our democracy.”

“So I would prefer it be a civilian person. Now, that doesn’t mean that a general can’t effectively be secretary of Defense,” added Smith, who stressed the importance of Austin testifying before his panel on the issue. Smith said a Biden aide committed to him that Austin will be allowed to testify; Trump did not allow Mattis to testify before the House in 2017.

Beyond notifying lawmakers about his choice, Biden’s team has not reached out to the panel about the waiver process, a House aide told The Hill.

But the aide also signaled the difficulty of rejecting a historic nominee, saying that “the selection of Gen. Austin as the first African American to lead the Department of Defense reinforces President-elect Biden’s promise to cultivate a leadership team that reflects the diverse composition of America’s society.”

The Biden transition spokesperson pushed back on the idea that outreach about the waiver has been lacking, telling The Hill “engagement” has been going on with key lawmakers “for the past couple of days.”

In a possible boon to Austin, Rep. Anthony Brown (D-Md.), a House Armed Services Committee and Congressional Black Caucus member who publicly backed Flournoy last week, threw his support behind Austin on Monday.

“Lloyd Austin is top flight and he’s the right choice to lead our civilian & military personnel at the Pentagon,” Brown tweeted.

Sen. Chris Murphy (D-Conn.), who voted against Mattis’s waiver, said he was inclined to be more deferential to Biden.

“I inherently trust the Biden administration on matters of national security, so I look forward to hearing from them about their rationale for this pick,” Murphy said. “Am I concerned about the erosion of civilian control of the Department of Defense? Yes. But I want to hear from the administration.”

But other lawmakers are expressing hesitation about granting a waiver so soon after Mattis.

Sens. Richard Blumenthal (D-Conn.) and Jon Tester (D-Mont.), who both voted against Mattis’s waiver, signaled opposition to Austin.

“I have the deepest respect and admiration for Gen. Austin and this nomination is exciting and historic,” Blumenthal told reporters at the Capitol. “But I believe that a waiver of the seven-year rule would contravene the basic principle that there should be civilian control over a nonpolitical military.”

Blumenthal declined to say if he believed Biden should nominate someone else, but added, “I will not support the waiver.”

Austin is also getting some pushback in the lower chamber, with concerns swirling around the muddling of traditional military and civilian roles.

Rep. Elissa Slotkin (D-Mich.), a former Pentagon official, said that while she has “deep respect” for Austin, choosing another retired general as Defense secretary “just feels off.”

“And after the last 4 years, civil-military relations at the Pentagon definitely need to be rebalanced,” she tweeted. “Gen. Austin has had an incredible career — but I’ll need to understand what he and the Biden Administration plan to do to address these concerns before I can vote for his waiver.”

Army veteran Rep. Michael Waltz (R-Fla.) tweeted Monday night that former generals as Defense secretaries “should be the exception not the norm,” while Rep. Mike Gallagher (R-Wis.), a former Marine said the “Mattis waiver was supposed to, be a one-off.”

Jordain Carney and Mike Lillis contributed.