Stop treating vets as untrustworthy, second-class citizens in the SecDef debate

Like many Americans, I was surprised to hear that Michèle Flournoy was not president-elect Joe Biden’s pick for Secretary of Defense.  Frankly, I was also disappointed as I know her and she’s a brilliant person who I’m convinced would make a superb SecDef.  But allow me to also say that the objection now being raised against Biden’s pick, retired Army General Lloyd Austin, is a very wrong reason to reject him out of hand.

Various politicos, academics, and others are aflutter about the fact that Austin is a retired military officer.  Evidently, they think that veterans are somehow untrustworthy, second-class citizens simply and solely because they served their country in uniform.  That is a loathsome idea, one unworthy of a great nation.

I wrote about this four years ago almost to the day (“Don’t discriminate against vets who want to serve the new administration”), but the issue has reemerged.  Of course, critics point to 10 U.S.C. §113 that says “A person may not be appointed as Secretary of Defense within seven years after relief from active duty as a commissioned officer of a regular component of an armed force.”  (Austin would need a statutory waiver to serve.)

Let’s understand this piece of legislation clearly: it doesn’t bar ax murderers, child rapists, white supremacists, terrorists, or any other category of abhorrent person from being appointed as Secretary of Defense.  Only veterans.  Decide for yourself if that makes sense, particularly given there are a few executive branch positions ifor which the law explicitly bars those with a criminal record from holding.

Shouldn’t veterans who served honorably have the same opportunity as someone convicted of a serious felony?

Critics will blather about “civilian control of the military” as being threatened by a nominee who is a retired officer despite the fact that all political appointees are vetted and selected by the civilian occupying America’s highest elected office.  They then have to run the gauntlet of the all-civilian Senate in order to be confirmed.

That’s quite a filtering process by elected civilians. Notably, there isn’t a scintilla of evidence suggesting that General Austin is any sort of threat to civilian control of the military,  Likewise,  no evidence has yet been unearthed raising any question as to his loyalty to the Constitution.

The fact is that the Founders’ concern about civilian control of the military was all about the physical threat that a “Standing Army” – not retirees or other veterans – might pose to the country.  At no point since George Washington quashed the “Newburgh Conspiracy” in 1783 has the military imperiled democratic government.

The Newburgh Conspiracy was a scheme by disgruntled Continental Army officers to march on Congress to seek redress for the years of backpay they were owed. I urge you to read John R. Miller’s short New York Times piece (“George Washington’s Tear-Jerker”) about the incident as it explains how Washington’s leadership humiliated the plotters.  The end result, Miller tells us, was this:

In the United States, it was the story of Newburgh and Washington’s iconic status in our early years that so firmly established a tradition of civilian control in the minds of both our military and civilians. That tradition continues, a testament to our first, finest and most political general. (Emphasis added.)

To reiterate, civilian control of the military has never been seriously endangered in U.S. history.  Not only did the Founders not include in the Constitution any bar to further government service by veterans, America’s first elected civilian leader was a retired general.

Let’s ask ourselves this: given America’s history, does it really support the principle of civilian control of the armed forces to sterotype all veterans as being somehow suspect?  Indeed, if there is to be a stereotype, isn’t it just the opposite from the one the critics suppose?  If anything, isn’t military service vastly more of an indication of loyalty and adherence to the Constitution than it is some sort of omen of nefariousness?

Today, polls show that the American public has very high regard for those who serve in uniform.  It seems “selfless actions in putting themselves in harm’s way for the benefit of others” by those in uniform is a key reason the military has long been an institution in which the public has the most confidence. Indeed, Americans trust those in the military to be most likely “to act in the best interests of the public.”

Does the public’s respect for the military extend to veterans?  It would seem so.  Pew Research Center reported in 2019:

Large shares among veterans and the U.S. public say people who have served in the military are more disciplined, patriotic and loyal than those who have not served.  And about a third or more in both groups say veterans are more hard-working.  (Emphasis added.)

For those who nevertheless fret about retirees serving as political appointees in the administration, recall that the Constitution permits the Senate to conduct as searching an inquiry as it wants before it gives its advice and consent.

If the Senate finds something untoward – or simply decides the nominee lacks sufficient expertise – they can vote him down for those reasons (or virtually any other).  But eliminating him without any individual consideration is, in my book, wrong.

I don’t think we need statutory bars for persons who must be personally nominated by the President and, further, clear Senate confirmation.   

But if we do, let’s not start with bars targeting those honorable Americans who put on a uniform to go in harms’ way prepared to lay down their lives to defend this country and its Constitution.

Still, remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!