SIMI VALLEY, California — Congressional Republicans may move to speedily confirm former US Marine Gen. James Mattis as defense secretary despite complaints his appointment upsets the balance of civil-military power in US foreign-policy institutions.
The retired four-star general needs an exception, or waiver, from Congress to be eligible to be defense secretary because of a 1947 law barring anyone who was on active duty in the previous seven years from taking the job.
Senate GOP leaders are considering how they might make it happen, and Arnold Punaro, an influential former Marine Corps major general and Senate Armed Services Committee staff director, said he has a way. But it requires Congress and Trump to do some high-wire juggling, and it hinges on the prohibition being on the appointment, not on the confirmation process.
Congress, Punaro said, could run a parallel confirmation process while moving legislation for the exception through to passage. Then, on Inauguration Day, President Donald Trump could be sworn in, nominate Mattis with the rest of his cabinet, the Senate could confirm Mattis, Trump could receive and sign the exception and, finally, Trump could officially appoint Mattis.
"Lets say its all done on Jan. 20: The president sends the nomination, the Senate confirms and the legislation creating the exception, if they want Trump to sign it, he can sign it that same day," Punaro told Defense News. "Then Mattis would be eligible to be appointed that same day."
Other options are to pass the waiver separately in the current Congress's lame duck session, perhaps by tying it to a must-pass piece of legislation — and then proceed with Mattis' nomination and appointment on Inauguration Day. However, any such move would be ill-advised without assurances President Barack Obama will not veto it, Punaro said.
Already, the chairmen of the Senate and House armed services committees, Sen. John McCain, R-Ariz., and Rep. Mac Thornberry, R-Texas, respectively, have expressed support for Mattis.
"I will work with my colleagues in the coming days to clear the way for his confirmation by the Senate," Thornberry said.
McCain said he looks forward to advancing confirmation, "as soon as possible," though the strategy is not yet set, according to a McCain aide.
There has been almost universal praise for the blunt-talking 'Mad Dog' Mattis, who retired as head of U.S. Central Command in 2013, as a warrior scholar with a deep knowledge of global affairs. That reputation, and the idea of him as a counterweight to Trump's lack of experience, is expected to clear a path for Mattis through Congress.
On possible hitch is that US Sen. Kirsten Gillibrand, the top Democrat on the SASC Personnel Subcommittee, says she will require a vote at a 60-vote threshold to allow Mattis to become the defense secretary, Politico first reported Friday.
"While I deeply respect General Mattis's service, I will oppose a waiver. Civilian control of our military is a fundamental principle of American democracy, and I will not vote for an exception to this rule," Gillibrand said in a statement.
HASC Ranking Member Adam Smith, D-Wash., said he admires Mattis but called for the HASC to perform a full review, including hearings because "the unusual circumstances of his nomination raise serious questions about fundamental principles of our Constitutional order."
Several Democratic-leaning groups have also raised concerns. Jim Arkedis, president of 4DPAC, said his organization opposes the waiver for Mattis in spire of Mattis' service and qualifications.
"Granting General Mattis a Congressional waiver would erode the institution of civilian control of the military," Arkedis said in a statement Friday. "We remain deeply concerned that the Trump administration will seek to weaken other long-standing pillars of American government, and we encourage Congress to hold firm against the first step down a perilously slippery slope."
Gordon Adams, who oversaw defense budgeting for the Clinton administration, argued in Foreign Policy on Friday that Trump's surrounding himself with retired generals risks limiting his options in a crisis to military force. (Trump has tapped as national security advisor retired Lt. Gen. Mike Flynn and is said to be mulling retired four-stars David Petraeus and John Kelly for secretary of state.)
"One can readily imagine the starting point to a conversation among generals about the Syrian crisis being about the application of greater or lesser U.S. military force, rather than the tools of diplomacy or negotiation. But that's an easy one," Adams writes. "Is the key to dealing with China's assertive presence in the South China Sea an aggressive U.S. military buildup in the Pacific or a diplomatic strategy that deals with the surrounding countries and seeks to resolve the most contentious issues? It's not that the generals are ignorant, but simply that diplomacy is not their stock in trade nor what they've spent their lives thinking about and planning for. The differences may appear slight, but they send U.S. global engagement in two very different directions."
Presented with these arguments, what will Democratic lawmakers do?
Senate Democrats could, if they wanted, waive Mattis through without an exception and approve his nomination by a voice or a simple majority. However, any one senator can invoke cloture, which would require 60 votes to let the nomination advance to a vote. That means at least eight Democrats would have to vote in favor of Mattis.
Punaro speculated that Democrats will not be able to muster opposition on the principle because it equates to opposition to the well-regarded and independent-minded Mattis.
"I would be very surprised if there would be enough Democrats with that approach," Punaro said. "This would be a vote against Mattis, and I would be extremely surprised at that."
The argument an exception for Mattis would erode civilian control, Punaro dismissed as "handwringing" fueled by misapprehensions about the law. The 1947 law, Punaro argued, is rooted in a national security apparatus that was drastically reorganized by the 1986 Goldwater-Nichols Act, which strengthened civilian control of the military. (Punaro, as a Senate aide, helped craft Goldwater-Nichols.)
"The facts that were compelling in 1947 are different today," Punaro said. "There ought to be a serious debate over the law, but that should occur later and not be tied to an exception to the law because the law's fundamental won't be changed. He's not going to be Gen. Mattis, he'll be Mr. Secretary."
Joe Gould was the senior Pentagon reporter for Defense News, covering the intersection of national security policy, politics and the defense industry. He had previously served as Congress reporter.