Congress approves waiver for Biden defense pick, with some reservations

Melissa Nann Burke
The Detroit News

Washington — The U.S. House and Senate both approved Thursday a waiver for President Joe Biden's defense secretary that allows him to bypass federal law prohibiting recently retired generals from holding the civilian post. 

Lawmakers supporting the waiver stressed the need to act swiftly on the nomination of retired Army Gen. Lloyd Austin in the wake of disruption at the Pentagon in the last months of the Trump administration and the violent attack on the U.S. Capitol by domestic terrorists two weeks ago. 

His supporters noted that, as the first African American poised to lead the Defense Department, Austin would be uniquely suited to tackle the problems of white supremacy and a lack of diversity in the military rank and file. 

Retired Army Gen. Lloyd Austin, the Biden administration's choice to be secretary of defense, listens during in Wilmington, Del., Wednesday, Dec. 9, 2020.

"The stark circumstances of this nomination in light of the deadly insurrection assault on the Capitol, the coronavirus pandemic, the undermining of the Pentagon by the previous president and more necessitate the expeditious confirmation of this extremely qualified leader," House Speaker Nancy Pelosi said on the House floor.

Austin, who retired in 2016, is three years short of the seven-year "cooling off period" required under defense policy law. 

His qualifications weren't in dispute during Thursday's House debate. Rather, members of Congress worried about upsetting precedent — that the presumption is now for approval of such exceptions. 

Waiver opponents pointed out that, with Thursday's vote, Congress will have granted two such waivers for defense nominees in four years — the last for Marine Corps Gen. James Mattis in 2017 at the beginning of Trump's presidency.

Freshman Republican Rep. Peter Meijer, an Army veteran from Grand Rapids Township, was among the lawmakers voting no Thursday out of concern for preserving civilian control of the military. 

Meijer said he served under Austin as an E5 sergeant for close to nine months while Austin was overseeing the withdrawal of troops from Iraq, where he was "handed a thankless task."

"This is not an up or down on someone's career or profession. It is the question of: Is there legitimate justification to issue a waiver? And that is something that prior to 2020 has only been given twice since we implemented that expectation after World War II," Meijer told The Detroit News this month. "That is a very high bar to clear."

The west Michigan lawmaker said it's "imperative" to maintain civilian guidance of the Department of Defense and interactions with the legislative branch.

"There is a strong, strong benefit to having somebody who has experience navigating between those worlds," Meijer said. "It's rare that the general officer, especially one so recently in the service, will have that depth of experience to be able to speak outside the military perspective."

Republican Rep. Jack Bergman, a retired Marine Corps lieutenant general, also voted against the waiver, which passed the House 326-78.

Bergman said his vote was not about Austin's character or credibility, but that civilian oversight of the military is a "critical component" to the success of the national defense. 

"I am concerned Congress is inadvertently turning this waiver process in to the new standard," Bergman said in a statement.

Austin testified Tuesday before the Senate Armed Services Committee hearing, pledging to "uphold the principle of civilian control of the military, as intended."

"I understand and respect the reservations some of you have expressed about having another recently retired general at the head of the Department of Defense," Austin said. "The safety and security of our democracy demands competent civilian control of our armed forces, the subordination of military power to the civil."

Rep. Rashida Tlaib, a Detroit Democrat and critic of "ever-increasing" military spending, said she was encouraged by Austin's statements about civilian control of the department, but ended up voting no.

“I want to be clear that my vote against the waiver was not a rebuke of General Austin personally, and I am hopeful he will chart a path much different than his immediate predecessors," Tlaib said in a statement. 

“As an anti-war legislator, I feel compelled to insist upon the principle of civilian control of the military and resist any erosion that risks deepening military influence over the executive branch."

Rep. Elissa Slotkin, a former top Pentagon official, had previously been "skeptical" of approving a waiver for Austin.

But he met with her and other lawmakers last week to discuss "strong civilian voice in the leadership" of the department, she said, and met Thursday for two hours with the House Armed Services Committee, on which Slotkin sits. She voted yes. 

"I feel satisfied that he intends to rebalance civilian control of the military, and is willing to be held accountable for these commitments," Slotkin said. 

 Democratic Sen. Gary Peters, who sits on the Senate Armed Services Committee, said the waiver should only be granted in "exceedingly exceptional circumstances" but that the nation is in an "unprecedented time" with a raging pandemic, the recent cyber attack against government agencies and the Jan. 6 insurrection. 

"At his confirmation hearing, Lloyd Austin demonstrated a strong commitment to civilian control of the military," Peters said Thursday in announcing his waiver support.

"In my conversations with him, I have been impressed with his qualifications, visions for restoring our standing in the world and how he will counter our military adversaries, including China, Russia and Iran."

The rest of Michigan's delegation also voted yes on the waiver, including Rep. Brenda Lawrence, D-Southfield, who described Austin's credentials as "amazing."

"It’s something that’s happened before," Lawrence said. "We want someone who's severed that (military) tie long enough so that when they come in, it's just not taking up where they left off. But I'm comfortable because it's not unprecedented."

Rep. Fred Upton, R-St. Joseph, also backed the waiver. "I believe in is strong defense, and I think plucking someone who was a four-star general with a pretty good understanding of the military is probably a wise choice," he said.

Rep. Andy Levin, D-Bloomfield Township, stressed that civilian control of the military is a value he takes "very, very seriously in a democracy," but Levin also weighed the importance of Biden selecting a Black nominee to lead the Pentagon.

"Through our our entire history, African Americans, Native Americans, other people of color and immigrants have played an outsized role in defending our country and have often come home — after shedding their blood to defend us — and faced just massive structural discrimination, de jure discrimination, from the very government that they serve," Levin said. "I just think it's profoundly important."

The Senate is set to vote Friday morning on Austin's nomination.