Important Context Missing from the Austin Nomination Debate

Making good on his promise to appoint a Cabinet that looks like America, President-elect Joe Biden nominated retired Army Gen. Lloyd Austin to serve as secretary of defense. If confirmed, Austin would be the first African-American defense secretary in U.S. history. This would mark the culmination of centuries of military service by African-American men and women, including the all-Black 54th Massachusetts regiment that fought for the Union in the Civil War, the Tuskegee Airmen in World War II, and the 24 percent (and rising) currently serving Black enlisted Army soldiers on active duty. As my colleague Bishop Garrison eloquently wrote in an earlier Just Security piece, the Austin nomination represents a milestone for Black Americans in and out of uniform. Congress shouldn’t reject Austin’s nomination out of hand (as some have already stated they will do) before he has been provided a fair hearing.

Beyond race, Austin also adds diversity to the Biden administration as a veteran (Pete Buttigieg is the second veteran named to a standing Cabinet position). Because Austin didn’t retire from the Army until April 2016, Congress must consider whether to waive a prohibition against commissioned officers serving as secretaries of defense within seven years of their separation from active duty. Critics of the Austin nomination rightly note that President Donald Trump has dealt a significant blow to civil-military relations throughout his presidency. Indeed, civil-military relations may well be at a modern nadir. Trump repeatedly politicized the military, among other things by personally intervening in military justice matters, appointing unqualified people to the Defense Business Board, and turning events with troops into opportunities to score political points.

Civil-Military Relations Look Markedly Different post-Trump

First, let’s be clear about why civil-military relations are at such a low: because of Trump himself. The real civil-military relations repair work begins in just under 40 days with a new commander-in-chief. And there is a stark difference between Biden’s measured approach to his commander-in-chief responsibilities when compared to Trump’s erraticism, reported statements labeling service members as “suckers and losers,” and repeated disdain for advice provided by his key uniformed military advisers. Biden, too, has extraordinary foreign relations experience, having served as both vice president and senator, and has a far more nuanced understanding (and respect for) the relationship between civilian and military leadership. Biden also knows personally the sacrifices made by military families–his son Beau served in the Delaware National Guard in Iraq. On January 21st, civil-military relations look far different and much more stable.

Civilian Control of the Military Goes Far Beyond a Single Vote on a Waiver

Second, civilian control of the military is an essential part of our constitutional fabric, but that doesn’t mean that recently retired officers are inevitably inappropriate defense secretaries. To the contrary, treating them as such oversimplifies and misconstrues the concept of civilian control. As I have argued before, the term “civilian control of the military” is absent from the Constitution’s text but its meaning can be gleaned from our constitutional structure. It is not just a norm, it also a legal, constitutional requirement that envisions a role for each branch of government in asserting and maintaining civilian preeminence. The elected president is the commander-in-chief and possesses authority to protect the American people and repel sudden attacks. Congress possesses funding authority over the military, declares war, “makes rules and regulations” governing the military, and confirms officers appointed by the president. And the judiciary can review certain military activities to ensure that the military is staying within constitutional bounds.

Congress will have two immediate opportunities to exercise civilian control over the military when considering the Austin nomination. The Senate will provide its advice and consent to Austin’s appointment. Both the House and Senate will vote on whether to waive the statutory seven-year cooling-off period for retired military officers prior to serving as secretary of defense.

And this seven-year period is not some magical number. We lacked any prohibition on former officers serving as the civilian head of the military (as Secretary of War) for our nation’s first 160 years. With the 1947 National Security Act and creation of the Secretary of Defense, a 10-year cooling off period for former officers was established. In 2008, the House actually sought to change this provision to three years with the express purpose of enabling “the President to choose from a greater pool of qualified candidates with relevant military experience.” Congress ultimately settled on seven years as a compromise. The statute essentially requires that Congress pause and take stock of a recently retired officer’s nomination—that’s already occurring, although some senators have already made up their mind on a “no” vote. Contrary to some reporting, the statute itself does not actually reference a waiver prohibition nor set a legal standard (for example, “extraordinary circumstances”) when the cooling-off period can be waived. Each member of Congress makes this decision independently, applying his or her independent judgment and standard.

These votes by themselves do not guarantee civilian control of the military. As Rosa Brooks noted in 2016, too often civilian control of the military “has become a rule of aesthetics, not ethics” that is unmoored from its original purposes. It’s also not an on/off toggle switch—either you have it or you don’t. It is more akin to a rheostat that requires active engagement and vigilance, particularly from Congress. Indeed, I hope that handwringing over the Austin nomination will not overshadow Congress’s abdication of its constitutional duties governing the military in other areas. As Tess Bridgeman and others have noted in these pages, Congress has largely ceded its authority on its constitutional war powers, failing to update its 2001 Authorization for Use of Military Force. And Congress has yet to hold hearings to address Trump’s surprising redeployment of troops from several areas of the world. Regardless of the outcome of the Austin nomination, Congress must follow through on its constitutional duties over the military through spending decisions, reporting requirements, and other oversight mechanisms. Most importantly, it must reinvigorate its constitutional duty governing military use of force.

Civilian Control: An Integral Part of the Military’s Training & Culture

Third, senior military officers such as Austin tend to have a deep, measured understanding of civilian control of the military and receive training about the special trust placed in the military within a democratic society. The bedrock principle of democratic control of the armed forces is well understood by military officers from the day they are commissioned and drilled into each service member throughout their careers. I recently taught future officers at the U.S. Naval Academy’s Leadership, Ethics, and Law department where the Navy has the foresight to see leadership, ethics and law as inextricably linked. (Austin went to West Point receiving a similar education.) At Annapolis, we reinforced the duty to obey lawful orders from both senior civilian and military leaders. And we engaged in complex and wide-ranging discussions of civilian control of the military, what it means to have a civilian change of command, and the significance of taking an oath to the Constitution.

Peter Feaver pointed out that Austin must communicate that he understands the reasons for civilian control and the norms on which civil-military relations depend. He’s correct, and I bet that Austin will have already thought deeply about this answer. This special relationship between the military and its civilian leaders is drilled into each officer on day one of entering the service and is reinforced throughout their careers.

Austin’s Deep Operational Experience & Focus on Behavioral Health Should Aid Him as Secretary of Defense

Fourth, let’s not dismiss the value of having someone with both recent operational military experience and a leader that addressed the silent struggles that service members face upon returning from combat. Austin knows firsthand the human costs of conflict and is all-too familiar with the loss that Gold Star families endure after losing a loved one. He has also made difficult operational decisions governing the practical application of the law of armed conflict as well as the need to balance harm to civilians with military objectives. He is keenly aware that operational mistakes can have strategic consequences, understanding that protecting the civilian population can both save lives and uphold the legitimacy of a mission. Congress should ask him difficult questions about all of these weighty matters, but let’s give him an opportunity to respond.

Closer to home, Austin worked hard to combat suicide prevention and sexual assault within the ranks and made resourcing behavioral health a priority. For too long, seeking mental health counseling has carried a stigma in the military and Austin worked to heal hidden wounds, leading the Army’s system-wide review of behavioral health care in 2012.

And Austin’s position as a geographic combatant commander in the Middle East included an increasingly important role beyond planning and fighting the nation’s wars. It also required the deft management of complex, diplomatic relations. I’ve noted before that combatant commands are led by senior military officers whose duties now go well beyond purely military matters. Whether we are witnessing an over-militarization of foreign policy and are resourcing the State and Defense Departments appropriately are separate and important questions for Congress to address. Regardless, Austin’s role as the Central Commander provided him with unique military and foreign relations experience (and relationships) that will serve him well if confirmed. Yes, it would be ideal if Austin had deeper experience in the Pacific where we are facing so many challenges. But to paraphrase Mark Twain, reports on the death of U.S. engagement in the Middle East are grossly exaggerated. Complex foreign policy and defense challenges in Saudi Arabia, Iran, Syria, Pakistan, Iraq and beyond will assuredly challenge any Secretary of Defense. Austin’s diverse experiences in uniform and in the Middle East should be viewed as a strength, not a weakness.

The Cautionary Tale of Rumsfeld and McNamara

Finally, Robert McNamara and Donald Rumsfeld are proof that defense secretaries without recent military experience do not inherently set better policy. McNamara senselessly escalated the Vietnam War and Rumsfeld signed off on the infamous torture memos. Rumsfeld and his civilian experts acted contrary to the uniformed military lawyers, who understood that clear compliance with the law of armed conflict legitimizes U.S. missions overseas—and that failure to comply places U.S. servicemembers at risk. Would having recent, firsthand perspective on the human costs of conflict have prevented these disastrous policy choices? It’s impossible to say, but surely humanizing conflict isn’t a bad thing.

Any nomination to key national security posts must take Trump’s assault on civil-military norms into account. We shouldn’t over-correct in a misguided effort to right these wrongs. Congress should ask tough questions on Austin’s views on a variety of topics to include his relationships to his former colleagues in uniform and how he envisions his civilian advisors’ role and their relationship with the Joint Staff and senior uniformed officers. Whether Congress ultimately agrees to grant Austin a waiver to serve his nation again as secretary of defense remains to be seen. In the interim, Senators should pause before voting “no” when Austin has not been permitted to answer these key questions. In fact, his nomination’s greatest purported “weakness”—military service—may actually prove to be a significant strength as we reset civilian-military relations after Trump.

Image: Retired Army General Lloyd Austin speaks after being formally nominated to be secretary of the Department of Defense by President-elect Joe Biden at the Queen Theatre on December 09, 2020 in Wilmington, Delaware. Photo by Chip Somodevilla/Getty Images

 

About the Author(s)

Mark Nevitt

Associate Professor of Law at Syracuse University College of Law; Previously Class of 1971 Distinguished Military Professor of Leadership & Law at the United States Naval Academy, Sharswood Fellow at the University of Pennsylvania Law School, and former commander in the Navy, serving as a tactical jet aviator and attorney in the Judge Advocate General’s Corps for 20 years. Follow him on Twitter (@marknevitt).