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

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 military—a 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,

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