WASHINGTON — Lloyd Austin, the retired Army general who is reportedly President-elect Joe Biden's choice for Defense secretary, already faces a gauntlet of questions from both sides of the aisle even before his nomination has come to Capitol Hill.
The Senate must confirm all Cabinet nominees. But in Austin's case, he would also need to obtain from both the Senate and the House a waiver from a law that bars retired military officers from becoming Defense secretary within seven years of leaving the service. He would be the second man within four years to require that waiver and the third in history.
Austin, 67, would be the first African American to be Defense secretary. Despite the prospect of a historic first in that regard, early reaction to reports of Austin's coming nomination, including concerns surrounding civilian control of the military, suggests Biden could have a battle on his hands to get Austin confirmed — including from Democrats.
"General Austin has had an incredible career," Michigan Democrat Elissa Slotkin said, "but I'll need to understand what he and the Biden administration plan to do to address these concerns before I can vote for his waiver."
Despite a flurry of criticism Tuesday, some believe Austin would still be confirmed.
"There will still be serious questions raised about civil-military relations, the threat posed by China, and how to more effectively and efficiently counter violent extremism, but they won't derail the nomination," said Mackenzie Eaglen, an analyst with the American Enterprise Institute.
The seven-year restriction, which is intended to ensure a proper divide between the military and civilian realms, could prove the stickiest challenge Austin could face.
John Thune of South Dakota, the second-ranking member of the Senate GOP leadership team, told reporters Tuesday that the waiver is to be an exception not the rule, but he did not telegraph how he would vote.
"There's a reason we have civilian oversight of the Defense Department," Thune said. "But again, I'm not ruling it in or ruling it out. It's just something we'll have to consider when the time comes."
Oklahoma Republican James M. Inhofe, chairman of the Senate Armed Services Committee, which will vet the nomination, told reporters Tuesday he would support a waiver and does not oppose Austin.
However, some Democrats on the committee may oppose the waiver, even if they are confident that Austin is qualified and even though they back having the first Black secretary of Defense.
Sen. Richard Blumenthal, D-Conn., a committee member, told reporters Tuesday he would not support the waiver. He said it would "contravene the basic principle that there should be civilian control of a non-political military."
The debate over the waiver is most pointedly illustrated by the case of Jack Reed of Rhode Island, the committee's top Democrat. After Reed voted for a waiver in 2017 when President Donald Trump nominated retired Gen. James Mattis for defense secretary, Reed said he "will not support a waiver for future nominees."
Reed, talking with reporters Tuesday, would only say that the Biden team needs to make the case for the waiver.
The issue looms large in the House too.
Slotkin knows Austin well. She is a member of the House Armed Services Committee who was a CIA analyst and an assistant secretary of defense for international security affairs when Austin was the U.S. commander in the Middle East.
Slotkin expressed skepticism Tuesday about the selection of another retired general for the Defense secretary post. Slotkin did not say she would oppose the nomination, only that she thought it "feels off" and that civilian-military relations are out of balance.
In January 2017, 150 House Democrats, plus Michigan Republican-turned-independent Justin Amash, joined with 17 senators who caucus with the Democrats in voting against Mattis' waiver, which was approved anyway.
Consistency is not either party's strong suit. But some of those lawmakers can be expected to at least press the issue hard if Austin's nomination comes forward.
On Twitter on Tuesday, the choice of another retired general to be the Pentagon's top civilian encountered resistance from all sides.
Tom Nichols, a professor at the U.S. Naval War College, said Austin's nomination would send "the wrong message for civil-military relations."
The debate over whether to give Austin a waiver has racial overtones, as some of his supporters contend the opposition on those grounds is racist.
Identity politics also plays in the Austin decision inasmuch as Biden picked him over Michele Flournoy, a former Pentagon official who would have been the first woman nominee for the job.
During the Obama administration, Austin commanded U.S. forces in Iraq in 2010 and 2011, then became Army vice chief of staff in 2012 and 2013 before he commanded all U.S. forces in the Middle East as the head of U.S. Central Command from 2013 to 2016, a period when the Islamic State insurgency overtook a large swath of Iraq and Syria.
Look for conservatives to bring up Austin's track record at Central Command if his nomination comes to Congress.
In 2015, congressional Republicans criticized Austin for what they said was his depiction of the battle against Islamic State in overly positive terms when it was in reality going badly.
Most dramatically, the late Sen. John McCain, R-Ariz., a longtime leader on the Senate Armed Services Committee, publicly assailed Austin in 2015 on those grounds.
"I have never heard testimony like this. ... Never," McCain told Austin.
A House task force established by Republicans in 2016 issued a report criticizing the production of intelligence at Central Command under Austin, saying harsh assessments were too often downplayed.
And Austin famously and frankly told lawmakers that year that after $42 million had been spent training Syrian rebels, only "four or five" were actually fighting there.
Islamic State is not the threat it was four years ago, and China is now foremost in many members' minds.
Mike Gallagher, R-Wis., a member of House Armed Services, tweeted Monday that Austin lacks experience to deal with the China threat.
"But this is not the pick if you believe China is an urgent threat & INDOPACOM (where seapower>land power) is the priority theater," Gallagher said. "Also, Mattis waiver was supposed to be a one off, not the start of a trend that's bad for civ-mil relations."
Austin is also under scrutiny on the left.
As a board member at Raytheon, his nomination has drawn flak from observers who worry about too much defense contractor influence on policy decisions.
"OH COME ON," tweeted Danielle Brian, executive director of the Project on Government Oversight. "A General and Raytheon board? Possibly the worst of all options. Bad news for civilian control and any real distance from the military-industrial-complex."
