President-elect Joe Biden’s pick for Defense secretary, Lloyd Austin, is likely to face tough questions during his confirmation hearing Tuesday before the Senate Armed Services Committee, as lawmakers weigh whether approving the nominee would do further damage to civilian control of the military and set a precedent of ignoring a law that keeps recently retired officers from serving at the helm of the Pentagon.
Experts and lawmakers have said that confirming Austin, a former four-star Army general who retired in 2016, would effectively give military officers more control over the Pentagon at a time when the civilian side of the department has been muted, and faith in the government is at a low point.
The fears stem from Austin’s falling three years short of the seven-year "cooling off period" for a former officer to take the Pentagon's top civilian post. Lawmakers in both chambers would need to vote to waive that law for the Senate to proceed to his confirmation — breaking with precedent for a second time in four years.
President Donald Trump sought the same waiver for his first Defense secretary, James Mattis, a retired Marine Corps four-star general.
“The waiver for Mattis to become Defense secretary in 2017 was a precedent,” said Mark Cancian, a senior advisor to the Center for Strategic and International Studies and retired Marine Corps colonel. “A waiver for Austin would be a pattern,” he said.
Prior to Mattis, the only other Defense secretary who required a waiver was George Marshall in 1947.
During a Senate Armed Services Committee hearing last week, Sens. Elizabeth Warren , D-Mass., Tammy Duckworth , D-Ill., Richard Blumenthal, D-Conn. said they would not vote for a waiver. The following day, the Republican Study Committee, which counts most House GOP lawmakers as members, said it also opposes the waiver.
Experts say that Austin will have to demonstrate a commitment to running the department as a civilian leader.
“Civilian control of the military is a big issue that Austin will have to be acutely aware of and sensitive to,” said Richard Fontaine, CEO of the Center for New American Security and a former advisor to the late Sen. John McCain, R-Ariz.
“By all accounts, civilian personnel have been weakened in favor of the Joint Chiefs of Staff and the military for a whole variety of reasons. When you’ve got a retired commander who required a waiver to be Defense secretary, there’s going be a fine point on the relative influence of civilians at the Pentagon,” Fontaine said.
And some Pentagon watchers say Austin will need to be thorough when discussing civilian-military relations.
“He won’t get away with just saying it’s important to him,” said Arnold Punaro, a retired Marine Corps general and former staff director for the Senate Armed Services Committee. “He’ll need to get specific,” he said.
Austin will also face questions on extremism within the military, which has resurfaced in the national dialogue following the deadly Jan. 6 insurrection at the Capitol in which some former servicemembers took part.
The Pentagon’s internal watchdog on Thursday announced an investigation into whether the military is doing enough to root out extremism and white supremacist ideologies among service members following the riot.
Austin’s hearing is taking place on the eve of the inauguration of President-elect Joe Biden, happening amid threats of domestic terrorism across the country and the presence of over 20,000 armed National Guardsmen in the streets of Washington, D.C. and around the Capitol.
“Before we knew who the nominee would be, you could have possibly predicted some questions on China, Asia more broadly and foreign wars,” said Fontaine. “But given where we are, a lot of questions might be about the situation inside the U.S., which is a telling sign of where we are as a country.”
Austin can still expect questions on what the Pentagon’s approach to foreign adversaries should be, however.
“The committees are going to want him to talk about China. In explaining his decision to nominate Austin for secretary of Defense in a piece published in The Atlantic, President-elect Biden did not mention China once. Why is that?” Mackenzie Eaglen, a resident fellow and defense analyst at the American Enterprise Institute said in an email.
“Congress will want to know how U.S. force posture in the Indo-Pacific needs to change in order to deal with challenges posed by China,” Eaglen added, “and where Austin falls on the need for 3-5% real growth in the defense budget to compete with China and Russia.”
Also likely to come up is Austin’s track record in the Middle East, where he served as commander of U.S. forces in Iraq in 2010 and 2011 and then as head of U.S. Central Command from 2013 to 2016, when he commanded all U.S. forces in the region.
During that time, the Islamic State insurgency overtook large swaths of territory in Iraq and Syria.
In 2015, congressional Republicans criticized Austin for what they said was his depiction of the battle against ISIS in overly positive terms when in reality it was going badly.
And in 2017, the Defense Department inspector general declassified an investigation into allegations that Central Command intelligence products related to the counter-ISIS campaign were “falsified, distorted, delayed, or suppressed to make the counter-ISIS campaign appear more successful than the intelligence warranted.”
“He’ll likely get some tough challenges for his role in the drawdown of troops from Iraq, as Democrats and Republicans view it differently,” said Jim Golby, a senior fellow at the Clements Center for National Security at the University of Texas at Austin and a former special assistant to the Joint Chiefs of Staff.
“But at the same time, Austin can say he was operating under civilian control during the drawdown in 2011 and wasn’t making those decisions — and he carried out an extremely complex logistical effort during that drawdown and led during the U.S. response to ISIS,” Golby said.
On the subject of complex logistical tasks, lawmakers will also likely ask Austin how he intends to oversee the Pentagon’s involvement in Operation Warp Speed, the U.S. government-led effort to develop and distribute a vaccine to the coronavirus.
Senators, as they do, will also likely have their own parochial questions.
“Someone will want to know about moving the headquarters of Space Force from Colorado to Alabama,” said Punaro, “and if Dan Sullivan doesn’t talk about Alaska then I don’t know the Senate Armed Services Committee very well.”