Waiver a hurdle for defense pick

Biden choice said unlikely to be in place by Inauguration Day

WASHINGTON — President-elect Joe Biden is facing a struggle to get his choice for secretary of defense in place by Inauguration Day, a senior national security position that all but one president in modern history has secured by day one.

The potential delay stems from the need of the nominee, retired Army Gen. Lloyd J. Austin III, to obtain a congressional exemption from a law that bars recently retired active- duty officers from serving in the top Pentagon job.

While only the Senate votes to confirm the secretary, House approval of Austin’s waiver is also required. The House Armed Services Committee will not be holding a hearing on the matter until the day after Biden is sworn in.

Starting an administration without a secretary of defense in place is undesirable for any president, but it would be particularly fraught at a time of extraordinary turmoil in the world, and in the nation’s capital. The issue is further complicated because Biden and his aides have repeatedly complained that Trump administration officials have obstructed the transition process at the Defense Department.

“It is very clear that we are in unprecedented times with internal threats and the real possibility of additional chaos, and this gives openings to adversaries externally,” said retired Marine Maj. Gen. Arnold Punaro, former staff director of the Senate Armed Services Committee. “If there was ever a time when you want a president’s confirmed secretary of defense in place as the only other civilian in the chain of command and fully in charge of the military — active duty, guard and reserve — it’s now.”

It is not clear what measures the Biden team is planning to take as an interim step to manage the Pentagon should the confirmation process drag past Inauguration Day.

The Senate could quickly confirm Kathleen Hicks, the nominee for deputy defense secretary, who could serve as acting secretary until Austin’s nomination was resolved. Or Biden could ask the current deputy secretary, David Norquist, or the Army secretary, Ryan McCarthy, to stay on for that same period. President Donald Trump f ired Defense Secretary Mark Esper in November.

Members of the transition team say they are focused on pushing their nominee through in a timely manner.

“President-elect Joe Biden will be sworn-in on Jan. 20 and the American people rightfully expect the Senate to confirm his crisis-tested, qualified, history- making Cabinet nominees as quickly as possible,” said Ned Price, a spokesperson for the transition. Austin has been making the rounds among House and Senate lawmakers in recent weeks to line up votes.

At the same time, the Biden team was slow to get the general’s financial disclosure forms to Capitol Hill for vetting, doing so only Friday. Such delays caused the confirmations of many early Trump administration officials to linger.

Many lawmakers from both parties have balked at having another former general leading the Pentagon in a nation that has a long tradition of civilian control of the military, one that has been severely tested under the Trump presidency.

While Congress approved a similar measure four years ago for Trump’s first defense secretary, retired Marine Gen. Jim Mattis, many are loath to do it again.

“Civilian control of a nonpolitical military is a foundational principle, written into our Constitution and absolutely essential to our democracy,” said Sen. Richard Blumenthal, D- Conn., who announced Friday that he would vote against a waiver. “If a waiver for the rule that protects this principle is approved twice in four years, in both Republican and Democratic administrations, it starts to become a norm, not an exception.”

The Senate has agreed to hold a hearing for the waiver this week and a confirmation hearing Jan. 19, which would allow Austin a path to be confirmed the next day if the House changes its plans. Unlike Mattis, who declined to attend a House hearing on his waiver, Austin said he was committed to showing up.

Every president since Eisenhower had his defense secretary confirmed within 24 hours of when he was inaugurated except for President George H.W. Bush, whose nominee, John G. Tower, was rejected.

On Saturday, a bevy of top former national security officials from both parties released an open letter urging the Senate to quickly confirm Biden’s entire national security team, warning of the need to have a fast transition of executive power after a week of chaos in the nation’s capital.

“Civilian control of a nonpolitical military is a foundational principle, written into our Constitution and absolutely essential to our democracy. If a waiver for the rule that protects this principle is approved twice in four years, in both Republican and Democratic administrations, it starts to become a norm, not an exception.”

— Sen. Richard Blumenthal, D-Conn.

Austin