WASHINGTON, D.C. – During a Senate Armed Services Committee hearing today on civilian control of the military, U.S. Senator Angus King (I-Maine) announced his support for a carefully-crafted provision that would grant a one-time exception to allow retired General James Mattis to serve as Secretary of Defense.

Under current law, a former member of the military must be out of active duty military service for at least seven years in order to serve as the Secretary of Defense. That measure was signed into law in 1947 to help preserve the principle of civilian control over the military. The narrowly-tailored provision considered today by the Senate Armed Services Committee would grant a one-time exception allowing General Mattis, who retired from the U.S. Marine Corps. three years ago, to serve as Defense Secretary, if confirmed by the Senate. The waiver would apply only to General Mattis’ confirmation.

This proposed waiver is not without precedent. After the civilian control structure was signed into law in 1947, Congress almost immediately granted an exception for retired Army General George Marshall in 1950 so that he could serve as Secretary of Defense under President Harry Truman.

“When I was a small town lawyer in Maine, one of the principles we used to discuss was ‘hard cases make bad law’ – cases that are very appealing on the merits […] – end up creating precedents that are bad law, and that’s what I’m struggling with in this case. I think that’s exactly what we’re talking about here,” Senator King said. “I have decided to support this amendment because I don’t think it will make bad law because of the narrow way that it’s drafted. And I think it’s important, we haven’t discussed the specific language, but the language is – this section applies only to the first person appointed as Secretary of Defense as described in subsection A after the date of this act and to no other person.

“That means it can’t even be used by another appointment of this President,” Senator King continued. “It is an extremely narrow precedent – and the precedent was broken, if you will, 70 years ago, hasn’t been broken since – and I’m comforted by this language. And I suspect if a future occasion of this nature arises, number one: there is no statutory basis for providing an automatic exemption. We will have to have a hearing like this. It will be decided upon the facts of the case, just as you both have suggested today.”

Both witnesses today – Dr. Eliot A. Cohen, the Robert E. Osgood Professor of Strategic Studies, at Johns Hopkins School of Advanced International Studies and Dr. Kathleen H. Hicks, the Senior Vice President and Director of the International Security Program at the Center For Strategic And International Studies – approved of Congress issuing an exception under the particular circumstances of this case, including the expectation that General Mattis could play an important role in moderating the incoming Administration’s policies.

Senator King is continuing to evaluate General Mattis’ record and, on Thursday of this week, will question him during his confirmation hearing before the Senate Armed Services Committee. In the days following that hearing, Senator King will cast a vote to either favorably or unfavorably report General Mattis’ nomination out of the Committee and to the Senate floor for the full body’s consideration.

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