[Congressional Record Volume 163, Number 8 (Thursday, January 12, 2017)]
[Senate]
[Pages S299-S307]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   PROVIDING FOR AN EXCEPTION TO A LIMITATION AGAINST APPOINTMENT OF 
   PERSONS AS SECRETARY OF DEFENSE WITHIN SEVEN YEARS OF RELIEF FROM 
   ACTIVE DUTY AS A REGULAR COMMISSIONED OFFICER OF THE ARMED FORCES

  The ACTING PRESIDENT pro tempore. The clerk will report the bill by 
title.
  The senior assistant legislative clerk read as follows:

       A bill (S. 84) to provide for an exception to a limitation 
     against appointment of persons as Secretary of Defense within 
     seven years of relief from active duty as a regular 
     commissioned officer of the Armed Forces.

  The ACTING PRESIDENT pro tempore. Under the provisions of Public Law 
114-254, there will now be up to 10 hours of debate, equally divided 
between the two leaders or their designees.
  Mr. McCONNELL. Mr. President, we are on the Mattis waiver.
  Anyone who would like to debate, please come over.
  In the meantime, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. BLUMENTHAL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Sasse). Without objection, it is so 
ordered.
  Mr. BLUMENTHAL. Mr. President, I ask unanimous consent that I be 
permitted to speak as in morning business for 15 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                      Nomination of Jeff Sessions

  Mr. BLUMENTHAL. Mr. President, the Senate is holding hearings on each 
of President-Elect Trump's nominees to his Cabinet. Traditionally, 
Presidents are accorded a very high level of deference on assembling 
their own team, in part because these nominees are directly accountable 
to the President. But they are accountable to the American people too.
  No Cabinet member is more powerful or has more impact on the day-to-
day lives of Americans than the Attorney General of the United States.
  The Attorney General is, indeed, a general, in command of an army of 
thousands of lawyers whose words carry enormous weight and power. It is 
the weight and power of the people of the United States. He speaks for 
us. He charges defendants in our name. He has sweeping authority to 
bring criminal charges in all Federal offenses, enormous unreviewable 
discretion in cases ranging from minor misdemeanors to the most serious 
felonies. In every sense, as capital penalties can be sought for some 
of these crimes, he wields the power of life and death.
  The Attorney General's authority is not only sweeping, it is uniquely 
independent of the President's Cabinet. His decisions must supersede 
partisan politics. In most cases, there is no recourse to overrule his 
decisions unless there is political interference. He is not just 
another government lawyer or even just another member of the 
President's Cabinet. He is the Nation's lawyer, and he must be the 
Nation's legal counsel and conscience.
  The job of U.S. Attorney General at stake here is one that I know 
pretty well. Like some of my colleagues in this body, I served as U.S. 
attorney, the chief Federal prosecutor in Connecticut.
  I reported to the U.S. Attorney General. For years afterward as a 
private litigator and then as attorney general of the State of 
Connecticut for 20 years, I fought alongside and sometimes against the 
U.S. Attorney General and the legal forces at his disposal. I have seen 
his power, or hers, firsthand. The power of this Attorney General is 
awesome, as is that of any Attorney General.
  In the best of cases, they are inspiring too. Even as he protects the 
public from vicious and violent criminal offenders, his role is also to 
protect the innocent from unfounded charges that could shatter their 
lives even if they are acquitted. As Justice Robert Jackson, a former 
Attorney General himself, once said: His job is not to convict, but to 
assure justice is done.
  So this job requires a singular level of intellect and integrity and 
nonpartisan but passionate devotion to the rule of law and an 
extraordinary sense of conscience. That is because he is responsible 
for so much more than prosecuting and preventing crime and ensuring 
public safety. He is responsible for aggressively upholding our 
Nation's sacred constitutional commitment to protecting individual 
rights and liberties and preventing infringement on them, even by the 
government itself, maybe especially by the government.

[[Page S300]]

  This responsibility for safeguarding equal justice under the law is 
particularly important today, at a time when those civil rights and 
freedoms are so much in peril. This historic moment demands a person 
whose life work, professional career, and record shows that he will 
make the guarantee under our Constitution of equal justice under law a 
core mandate of his tenure.

  Having reviewed the full record and recent testimony, regrettably and 
respectfully, I cannot support the President-elect's nominee, our 
colleague and friend Jeff Sessions, for this job.
  At his confirmation hearing, Senator Sessions simply said he would 
follow the law and he would obey it, but the Attorney General of the 
United States must be more than a follower. He must be a leader in 
protecting the essential constitutional rights and liberties. He must 
be a champion, a zealous advocate. He must actively pursue justice, not 
just passively follow or obey the law.
  Senator Sessions' record reflects a hostility and antipathy--in fact, 
downright opposition--to civil rights and voting rights, women's health 
care and privacy rights, antidiscrimination measures, and religious 
freedom safeguards. He has prided himself on his vociferous opposition 
to immigration reform legislation, a measure that passed this body with 
68 bipartisan votes, and a criminal justice reform bill that has 
attracted a group of 25 cosponsors, Democrats and Republicans. He even 
split with the majority of his own party to vote against reauthorizing 
the Violence Against Women Act. He opposed hate crime prohibitions. 
Senator Sessions' views and positions on these issues and others, which 
are critical to protecting and championing rights and liberties under 
our Constitution, are simply out of the mainstream. There is nothing in 
Senator Sessions' record, including his testimony before the Judiciary 
Committee this week, that indicates he will be the constitutional 
champion the Nation needs at this point in its history.
  Equally important, the Attorney General must speak truth to power. He 
must be ready, willing, and able to say no to the President of the 
United States and ensure that the President is never above the law. 
Senator Sessions' record and testimony give me no confidence that he 
will fulfill this core task.
  When I asked him about enforcement of cases against illegal conflicts 
of interest involving the President and his family, such as violations 
of the emoluments clause or the STOCK Act, he equivocated. When I asked 
him about appointing a special counsel to investigate criminal 
wrongdoing at Deutsche Bank, owed more than $300 million by Donald 
Trump, he equivocated. When I asked him about abstaining from voting on 
other Presidential nominees while he is in the Senate, he equivocated. 
Those answers give me no confidence that he will be the independent, 
nonpolitical law enforcer against conflicts of interest and official 
self-enrichment that the Nation needs now more than ever--at a moment 
when the incoming administration faces ethical and legal controversies 
that are unprecedented in scope and scale.
  Senator Sessions' record over many years and his recent testimony 
fail to demonstrate the core commitments and convictions necessary in 
our next Attorney General.
  Back in 1986, the Senate Judiciary Committee rejected Senator 
Sessions' nomination to a Federal judgeship due to remarks he made and 
actions he took in a position of public trust as U.S. attorney in 
Alabama. However, my position on his nomination is primarily based on 
his record since those hearings and less on what was considered at that 
time.
  On voting rights, Senator Sessions has often condoned barriers to 
Americans exercising their franchise. He has been a leading opponent of 
provisions in the Voting Rights Act designed to ensure that African 
Americans can vote in places, such as his home State of Alabama, which 
have a unique history of racial segregation. He has advocated for 
needlessly restrictive and draconian voter ID laws, citing utterly 
debunked threats of rampant voter fraud as an excuse for curtailing the 
real and legitimate rights of entire groups of voters.
  On privacy--very important--Senator Sessions has passionately opposed 
this longstanding American right, which is enshrined in five decades of 
Supreme Court precedent. It protects women's health care and personal 
decisions involving reproductive rights. At a time when these rights 
are facing an unprecedented assault, he has continued to condemn Roe v. 
Wade and the many court decisions upholding that case.
  He is also supported by extremist groups like Operation Rescue that 
defend the murder of doctors and the vilification and criminalization 
of women. With him as Attorney General, American women would 
understandably feel less secure about those rights.
  On religious freedom, Senator Sessions has advocated for using a 
religious test to determine which immigrants can enter this country. 
When this issue arose in committee, Senator Sessions was the only 
Senator--the only Senator--to argue forcefully for religious tests and 
against principles of religious liberty that have animated our Republic 
since its founding. With Senator Sessions as Attorney General, a Trump 
administration would enjoy a permanent green light for any racially or 
religiously discriminatory immigration policy that might appeal to him.
  On citizenship, Senator Sessions has called for abolishing a time-
honored tradition that dates back to reconstruction. Birthright 
citizenship is the distinctly American concept that anyone born on our 
soil is a citizen of our country. We do not exclude people from 
citizenship based on the nationality of their parents or grandparents. 
Senator Sessions disagrees, a position that most other Republicans 
think is extreme.
  With Senator Sessions as Attorney General, the Trump administration 
would be encouraged in attempting to deport American citizens--who have 
raised families and spent their entire lives here--from the only 
country they have ever known.
  Senator Sessions declined my invitation at his nomination hearing to 
exercise moral and legal leadership and demonstrate his resolve to 
serve as the Nation's legal conscience. He refused to reject the 
possibility of using information voluntarily provided by DACA 
applicants to deport them and their families. As a matter of 
fundamental fairness and due process, when a DREAMer has provided 
information to our government after being invited to come out of the 
shadows, this information should never be used to deport that person. 
With Senator Sessions as Attorney General, that sense of legal 
conscience would be lacking.
  On issues of discrimination and equal protection, Senator Sessions 
has publicly opposed marriage equality, claiming it ``weakens 
marriage'' and even tried to eliminate protections for LGBT Americans 
contained in the Runaway and Homeless Youth and Trafficking Prevention 
Act. He has repeatedly voted against steps to enhance enforcement 
against hate crimes--violent assaults involving bigotry or bias based 
on race, religion, and sexual orientation. He even defended President-
Elect Trump's shocking admission on video of his pattern of engaging in 
sexual assault.
  Senator Sessions himself has said that public officials can be fairly 
judged by assessing who their supporters are. Senator Sessions is 
backed by groups with ties to White supremacists.
  He has even accepted an award and repeated campaign donations from 
groups whose founder openly promotes the goal of maintaining a 
``European American majority'' in our society. Neither award, nor many 
other important parts of Senator Sessions' record, was reported on the 
questionnaire he prepared for the Judiciary Committee.
  I gave Senator Sessions an opportunity at the hearing earlier this 
week to repudiate these hate groups and racist individuals who have 
endorsed his nomination and supported him in the past. In fact, instead 
he doubled down, saying that a man who has accused African Americans of 
excessive criminality and American Muslims of extensive ties to 
terrorism was ``a most brilliant individual.''
  So I reach my decision to oppose this nomination with regret because 
Jeff Sessions is a colleague and a friend to all of us. Indeed, he and 
I have a rapport. I have come to like and respect

[[Page S301]]

him through a number of shared experiences in this building, traveling 
abroad, and outside.
  We have common causes. He and I both support law enforcement 
professionals who serve our communities and the Nation with dedication 
and courage. They are never given sufficient thanks and appreciation.
  He and I both believe that individual corporate criminal culpability 
should be pursued more vigorously. Individual corporate executives 
should be held accountable for the wrongdoing of corporations when they 
are criminally involved.
  This job, this decision, this responsibility is different. Here, my 
disagreements stem from bedrock constitutional principles. While I 
could envision deferring to Presidential authority and supporting him 
for other positions, my objections to his nomination here relate 
specifically to this particular, essential, all-powerful job.
  At this historic moment, there must be no doubt about the ironclad 
commitment of the Attorney General of the United States to the bedrock 
principle of equal justice under law, his resolve to be an independent 
voice, assuring that the President is never above the law, his 
determination to be a champion for all people of America and our 
constitutional principles that protect all people, and to be a legal 
conscience for the Nation.
  Reviewing his record, I cannot assure the people of Connecticut or 
the country that Jeff Sessions would be a vigorous champion of these 
rights and liberties. Therefore, I stand in opposition to his 
nomination.
  Mr. President, I yield the floor.
  I suggest the absence of a quorum
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. GILLIBRAND. Mr. President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. GILLIBRAND. Mr. President, I rise to strongly oppose this 
legislation concerning a waiver for General Mattis.
  I know that all of my colleagues on the Armed Services Committee who 
just left the hearing on this very topic with General Mattis and this 
entire body take the oversight role of our committee very seriously. We 
take civilian control of the military as a fundamental constitutional 
principle of the Founding Fathers. Even George Washington put aside his 
commission 5 years before he became our Commander in Chief and became 
the President of the United States. When Congress in 1947 debated the 
National Security Act to create the Department of Defense and create 
the Secretary of Defense, they decided to imbue this idea of civilian 
control into the Secretary of Defense by law, by mandating that he had 
to be separated from the military at least 10 years before taking on 
the role of Secretary of Defense, enshrining again this notion that 
civilian control is so important to our democracy and our American 
values.
  On Tuesday, the Armed Services Committee had a very compelling 
hearing. We had two experts testify about the reasons for civilian 
control and why they are still so important today. The importance of 
having a Secretary of Defense who brings a civilian perspective to this 
position and brings with him or her a breadth of views and experience--
those views coming from a civilian are very important.
  Second, they said it is very important not to politicize our officer 
ranks, meaning our senior, top military advisers jockeying for the next 
job as a political appointee. That undermines the functioning of the 
military, and they testified about countries where it has had such 
deleterious effects.
  The third reason is concern about bias toward one service or another. 
Arguably, if one comes from a particular service, one may have 
preferences innately for that branch of service, which could undermine 
the strength of our military.
  The fourth reason, which is really important in today's world, is the 
desire to model civilian control for other countries around the world 
that are struggling to become more democratic, less autocratic, and 
less militarily run.
  Those are the four reasons given as to why civilian control of the 
military is so important. Dr. Cohen and Dr. Hicks both agreed--despite 
those four reasons--that from their perspective, it should be 
abrogated. Dr. Cohen said it was because the characteristics of the 
incoming administration gave him such concern that he needed to have 
someone like General Mattis and thought the qualities of General Mattis 
were important. Even Dr. Hicks said it was the qualities of General 
Mattis that were so unique and important, but she very importantly 
said: Never, though, should we say that it is time for a general to be 
the Secretary of Defense. In her perspective, it should never be that 
you need a general. So for her it was not the exigencies of 
circumstances; it was the specific characteristics of General Mattis.
  Overwhelmingly, the Senators and the Members of the Armed Services 
Committee, myself included, have expressed enormous gratitude for the 
extraordinary service of General Mattis. That is not in debate. But if 
there is no civilian in all the world as of today at this moment who 
could meet the needs of the incoming administration, then who is to say 
that there will be no civilian in the future who could meet the needs 
of this administration, should they need another Secretary of Defense, 
or the next administration?
  What we are doing today, inadvertently, because of a cherished notion 
we have toward this one nominee, is subverting the standard, and, in 
fact, this exception now can swallow the whole rule. If we are 
literally saying an exception could be made because of the nature of an 
administration and the nature of a nominee, we have literally swallowed 
the rule.
  I think it is a historic mistake. I truly believe we are about to 
unwind something that has served this country well for the past 50 
years. We are about to unwind it. Interestingly, the last time the 
Congress unwound it, they said: Never again.
  They didn't say: If you have an urgency as we have now, which was the 
concern, according to these experts, that World War III was looming, 
the concern that we needed a well-known, well-loved general because of 
all the foreign policy worries of the moment with North Korea; they 
said: Never again.
  I don't know why we are here. I really don't know why--because it is 
not the standard.
  Now this is the world we are going to live in. President-Elect Trump 
will mainly have his foreign policy input from two four-star generals 
and a three-star general. So where is the diversity of opinion coming 
from? Where is that balance going to come from, the No. 1 reason the 
experts gave for why we have civilian control of the military--
Tillerson?
  Even General Marshall, if we remember history correctly, had the 
experience of being a former Secretary of State and head of the Red 
Cross, so he had civilian experience in addition to his military 
experience. Civilian control has very important constitutional reasons 
based on our democratic values, the balance of power, and how our 
democracy runs. Those principles are being gutted and ignored. We are 
not using the right standards, and I think it is a historic mistake.
  As I stated, this has nothing to do with our particular nominee. 
These principles exist for a reason. It has enabled our country's 
success for decades and has kept our democracy safe. If we take this 
change in our laws lightly, as we are about to do today, when future 
Congresses--or even this same Congress 2 or 3 year from now--look at 
this and want to make the same exception, it will be much easier to do.
  I will continue to oppose this waiver for any nominee who is not a 
civilian or who has not met the waiting period that is required by law, 
and I urge all of my colleagues to do the same. I urge them to vote no.
  Ms. COLLINS. Mr. President, today I wish to support the legislative 
waiver required for retired General James Mattis to become the next 
Secretary of Defense.
  The principle of civilian control of the military has been 
fundamental to the concept of American Government since the inception 
of our Republic. It was the Continental Congress that granted General 
George Washington his commission, and General Washington reported to 
that legislative body throughout the entire war.

[[Page S302]]

  At the conclusion of the war, General Washington was the most popular 
and important figure in America. He easily could have positioned 
himself as the leader of the American government and, in fact, was 
urged to do so by many. Instead, General Washington famously resigned 
his commission on December 23, 1783, thus firmly establishing the 
principle that, in this new country, ultimate authority over the Armed 
Forces would rest with democratically elected civilians. General 
Washington's noble act was the foundation of such an important tenet of 
our democracy that the scene is depicted in a magnificent painting by 
John Trumbull, which occupies a prominent position in the rotunda of 
the United States Capitol.
  The principle of civilian control of the military was at the center 
of the debate when the structure of our Armed Forces was dramatically 
reorganized after World War II. A congressional consensus emerged from 
the military readiness failures of Pearl Harbor that the modern world 
required a more significant standing military force with a more 
centralized command structure. But harkening back to the precedent 
established by George Washington, it was imperative that this new 
structure have civilian leadership. This was especially concerning at 
the time, given the number of remarkable generals who had deservedly 
attained heroic status in the eyes of the American public and the free 
world. Thus, in 1947, Congress passed section 202 of the National 
Security Act, which provided that the Secretary of Defense needed to 
have at least a 10-year gap, later reduced to 7, from any military 
service.
  Since that time, 16 of the past 24 Defense Secretaries have had some 
prior military service. If approved, however, Gen. Mattis would only be 
the second Defense Secretary to receive a congressional waiver of the 
law--the other being General George Marshall in 1950.
  In order to examine this important history and review the wisdom of 
granting a waiver for Gen. Mattis, the Senate Armed Services Committee 
held a hearing exploring the issue of civilian control of the Armed 
Forces. After carefully reviewing the testimony from those hearings, I 
do support making an additional, one-time exception to the law in the 
specific case of James Mattis.
  In 1950, the world was a tumultuous place, with a hot war in Korea 
coupled with the extraordinary risks associated with a growing cold war 
in the nuclear age. President Truman turned to General Marshall to 
serve as Secretary of Defense because his noted character and 
competence, combined with his experience and ability, made him an ideal 
fit for the unique challenges presented at that time.
  Today the world is again a tumultuous place. The combination of the 
threat from terrorist organizations like ISIS and al Qaeda, as well as 
the threats emanating from countries such as Iran, North Korea, Russia, 
and China, has heightened tensions around the globe. And all our 
international challenges today take place against the backdrop of the 
knowledge that the world has a large and aging nuclear arsenal that 
could quickly create chaos in the wrong hands.
  As was the case with Gen. Marshall, Gen. Mattis, with his exceptional 
character and competence and his remarkable skills and ability, is a 
fit for these dangerous times.
  Over the course of his 44-year career in the Marine Corps, Gen. 
Mattis has earned a reputation as a warrior and commander who is 
beloved by soldiers and veterans alike. The ``warrior monk,'' as he is 
known in military circles, is a voracious reader and a student of 
history. He has served as a military commander at all levels and all 
over the world. His assignments have included a combat deployment 
during the Persian Gulf Wars and difficult leadership posts in both 
Operation Enduring Freedom in Afghanistan and Operation Iraqi Freedom, 
where Mattis commanded the 1St Marine Division in the city of Fallujah.
  His work over the past decade has demonstrated a deep appreciation 
for the challenges our country faces today. In 2006, Mattis coauthored 
the military's counterinsurgency manual with then-Army General David 
Petraeus. As an expert in counterinsurgency, Mattis understands the 
crucial role military power plays in conjunction with other civil 
instruments of national power, including diplomatic and economic 
efforts.
  Between 2007 and 2010, while serving as commander of the now 
disestablished U.S. Joint Forces Command, Mattis gained experience in 
broad DOD policy and management at an organization focused on the 
transformation of U.S. military capabilities.
  In 2010, I supported Gen. Mattis's nomination to serve as commander 
of U.S. Central Command, where he oversaw the wars in Iraq and 
Afghanistan and was responsible for an area which includes Syria, Iran, 
and Yemen. His experience at CENTCOM is a tremendous asset in 
developing a coherent strategy to address the threats posed by state 
actors and terrorist networks in the region and elsewhere around the 
world.
  In 2015, he testified before the Senate Armed Services Committee on 
the United States' global challenges and offered insight to the 
committee on crafting a coherent, bipartisan national security strategy 
with an eye towards international diplomacy and alliances, defense 
budgeting, and military force size and capabilities.
  Last year, he coedited a book on civil-military relations that 
explored the growing cultural gap between civilian society and the 
military, as well as the impact this lack of understanding may have on 
the civilian-military relationship.
  Finally,I would note that Gen. Mattis has the support of three very 
capable and successful former Secretaries of Defense whose careers were 
either largely or entirely in the civilian workforce. Secretaries 
Cohen, Panetta, and Gates know as well as anyone what it takes to 
succeed in that position and the importance of civilian leadership of 
the military. Their unqualified support of Gen. Mattis carries 
considerable weight with me and further convinces me that, in this 
particular circumstance, a waiver is warranted.
  Mr. CARDIN. Mr. President, civilian control of our military is one of 
the bedrock principles of American self-government. The National 
Security Act of 1947, U.S.C. Title 10 Section 113(a), stipulates that 
an individual ``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.'' President-Elect Donald Trump's 
choice of retired U.S. Marine Corps General James N. Mattis violates 
that provision since he has only been out of the uniform for 3 years; 
thus, Congress will need to pass a waiver so that he can serve if 
confirmed.
  I have considered this issue carefully, and I have listened to Gen. 
Mattis's testimony earlier today before the Senate Armed Services 
Committee. I believe Gen. Mattis is committed to the principle of 
civilian control of the military. I was reassured by his testimony this 
morning, and I will vote to grant the waiver. There is a precedent: in 
1950, the Senate voted to confirm General George C. Marshall's as 
Secretary of Defense, despite the fact that he had been retired for 
only 5 years. Former Secretaries of Defense Donald H. Rumsfeld, Robert 
M. Gates, and Leon E. Panetta have expressed bipartisan support for 
Gen. Mattis. I am willing to vote for the waiver, as long as one 
nomination does not turn into a trend. There are particular times and 
circumstances in which granting the waiver may be appropriate, but the 
bedrock principle of civilian control of our military must not be 
eroded.
  Mr. VAN HOLLEN. Mr. President, I oppose changing the law to allow a 
recently retired general to serve as Secretary of Defense. While I 
admire Gen, Mattis and I am grateful for his decades of service to our 
Nation, I believe that, except in a national emergency, we should abide 
by the longstanding principle of civilian control of the military 
enshrined in the National Security Act.
  Civilian control of the military is a fundamental tenet of our 
American democracy. It was in Annapolis, MD that General George 
Washington resigned his military commission in 1783, after leading the 
Continental Army to secure America's independence. Washington believed 
that our new Nation could survive only with civilian leadership. Five 
years later, Washington returned to serve the Nation, as a civilian, as 
our first President. George Washington's example has been embodied in 
the statutory requirements of the National Security Act.

[[Page S303]]

  George C. Marshall, nominated by President Truman in 1950, was the 
only Secretary of Defense for whom Congress enacted an exception. In 
enacting the exception for General Marshall, Congress expressly 
emphasized that:
  ``the authority granted by this Act is not to be construed as 
approval by the Congress of continuing appointments of military men to 
the office of Secretary of Defense in the future. It is hereby 
expressed as the sense of the Congress that after General Marshall 
leaves the office of secretary of defense, no additional appointments 
of military men to that office shall be approved.''
  Congress should not cavalierly disregard the principle of civilian 
leadership of our military. I have no doubt that President-Elect Trump 
was briefed on the National Security Act's requirement, but chose to 
proceed notwithstanding the law and our Nation's tradition. President-
Elect Trump's lack of regard for this law and the principle of civilian 
control of the military should be a matter of concern.
  Our Founders' emphasis on civilian leadership distinguished the young 
United States from the other nations of the time. It remains an 
important bulwark of our democracy today.
  My vote today is not against Gen. Mattis. It is a vote to uphold an 
important principle of our American democracy. Should Congress vote to 
waive this law at this moment in time, I will review the nomination of 
Gen. Mattis on its individual merits.
  Mrs. GILLIBRAND. I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Perdue.) The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Sasse). Without objection, it is so 
ordered.


                            ObamaCare Repeal

  Mr. HATCH. Mr. President, several years ago, Democrats in Congress 
pulled out all the stops to pass the so-called Affordable Care Act and 
force the system we now call ObamaCare on the American people. They 
passed the law on a purely partisan basis and without any regard for 
public opinion. Quite simply, it was one of the most blatant exercises 
in pure partisanship in our Nation's history. It deepened partisan 
divides in Washington and around the country and contributed to the 
cynicism many have about whether their government is actually paying 
attention to their needs. Worst of all, in the years since the passage 
of ObamaCare, the American people have been paying the price in the 
form of skyrocketing costs, fewer choices, burdensome mandates, and 
unfair taxes.
  For 7 years, many of us in Congress--virtually all of us on the 
Republican side--have been working to right what has gone wrong under 
the Affordable Care Act. We have pledged to our constituents that, 
given the opportunity, we would repeal ObamaCare and replace it with 
reforms more worthy of the American people. Those promises are among 
the biggest reasons why we Republicans are now fortunate enough to find 
ourselves in control of Congress and, very soon, the White House.
  Last night we took a big step in the effort to repeal and replace 
ObamaCare. With the budget resolution passed, many in Washington and in 
the media are talking about what happens next. We are hearing a lot of 
discussion about the timing of our repeal-and-replace efforts, with 
some arguing that we should hit the brakes and solve every problem in 
advance of taking another vote. My view is that the repeal of ObamaCare 
cannot wait. The American people need us to act now. While there is 
still some debate as to what our replacement plan should look like, a 
majority of Senators voted last night to give us the tools to take the 
next steps to repeal and replace ObamaCare. The American people have 
entrusted us with the power to do just that.
  We could spend the next several months coming up with more slogans 
and analogies, but this is not a campaign. The elections have been won, 
and it is time to do what our constituents have sent us here to do. I 
am not saying we need to put off the replacement effort. On the 
contrary, I think it is important that the legislation we draft 
pursuant to the budget reconciliation instructions include as many 
sensible health reforms as possible, keeping in mind the limitations 
that exist with our rules and the necessary vote count.
  We should definitely work on making the largest possible downpayment 
on the ObamaCare replacement with the budget reconciliation bill. That 
downpayment should include measures that give individuals and families 
more control over their health care decisions and empower States to do 
more of the heavy lifting when it comes to regulating health care. In 
addition, we need to provide for a smooth transition period so we can 
maintain some stability in the health insurance markets and ensure that 
we are not leaving Americans who have insurance under the current 
system out in the cold.
  As chairman of one of the primary committees with jurisdiction over 
these matters, I have been working closely with my House counterparts--
Chairman Kevin Brady of the House Ways and Means Committee and Chairman 
Greg Walden of the House Energy and Commerce Committee--to develop 
proposals on the matters that fall within our purviews. We have been 
talking with stakeholders throughout the country and working through 
the various problems that exist. That work will continue unabated as we 
work on the immediate repeal effort and into the future. I am quite 
certain that my friend who chairs the Senate HELP Committee has been 
similarly engaged in addressing the draconian insurance regulations 
that were imposed under ObamaCare, as well as the other parts of the 
law that are within that committee's jurisdiction.
  In other words, the work to replace ObamaCare is ongoing, and we hope 
to have some initial elements ready to include in the budget 
reconciliation package. That work will continue once the repeal has 
been passed and signed into law so that we can help ensure that 
affordable health care options exist for Americans. We do not need to 
wait until every single replacement measure is drafted and agreed upon 
before moving forward. Instead, we need the incoming administration to 
add to our current efforts and work with us to produce a full 
replacement plan and then to execute it. I look forward to continuing 
to work with President-Elect Trump and his team.
  The path forward on replacing ObamaCare could end up taking many 
forms. We could draft and pass a series of limited reforms to replace 
ObamaCare piece by piece or we could pull together a full and 
comprehensive replacement package that puts all the necessary changes 
into law at once. I think there are merits and potential pitfalls with 
either approach. That is something we need to consider as we move 
forward, but it is not a decision that needs to be made before we can 
keep the promises we all made to our constituents to repeal ObamaCare.
  To be sure, replacing ObamaCare is going to be a difficult process; 
however, with a new and more cooperative administration in place, I 
have every confidence we can accomplish these important objectives 
without imposing artificial deadlines or goalposts or putting the 
repeal process on hold. All of this is possible so long as we remain 
committed to the principles that have guided most of our efforts thus 
far. For example, in my view, the new reforms need to be patient-
centered, not government-driven. They need to recognize the reality of 
the marketplace and the benefits of competition. Perhaps most 
importantly, any suitable reforms need to put the States back in charge 
of regulating and overseeing health care policy. If the ObamaCare 
experience has taught us anything, it is that when the Federal 
Government gets a hold of something that is as consequential as health 
care, it will overpromise results, overstep its authority, and 
overregulate the subject matter.
  As I have said a number of times, Utah is not California or 
Massachusetts, and California and Massachusetts are not Utah. All of 
our States face different challenges and have different needs. There is 
no reason to begin with the premise that any single approach to health 
care policy is what is best for the entire country. That is why I, 
along with several of my colleagues, have been engaging with 
stakeholders at the State level for quite some time as we work to craft 
reforms and to put them in place. For example, next week the Senate 
Finance

[[Page S304]]

Committee is hosting a roundtable discussion on Medicaid with some of 
the most prominent Governors in the country. I am pleased that Energy 
and Commerce chairman Greg Walden will join us for the discussion as 
well. This meeting and others like it will give States the opportunity 
to detail the challenges they face and how we can empower them to meet 
those challenges instead of dictating solutions from offices here in 
Washington, DC.
  I believe all of my colleagues want to be judicious and methodical 
with this undertaking. No one wants to act recklessly and do even more 
damage to our Nation's health care system. Discussions and debates over 
the substance of our ObamaCare replacement should continue. As I said, 
they have been going on for some time now, and they are not going to 
stop. But after last night, we have the tools we need to take the first 
major step in this effort by repealing ObamaCare. In my view, we need 
to take that step now.
  Republicans are united in our desire to repeal ObamaCare. We have the 
support of the American people to do just that, and I personally will 
do all I can to deliver on that promise. I hope our friends on the 
other side will work with us. If they will, I think we can come up with 
an approach toward health care that not only will work but will be 
better for our country but most importantly, better for our citizens, 
better for the States that will manage a lot better than we will here, 
and better for our citizens within those States.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Perdue). The Senator from Rhode Island.
  Mr. REED. Mr. President, I rise today to discuss S. 84, a bill that 
would provide a one-time exception from the longstanding law that 
requires a member of the military to be retired from the armed services 
for at least 7 years before being appointed as Secretary of Defense. We 
are considering this legislation today because the President-elect's 
nominee for Secretary of Defense, General James Mattis, has only been 
retired from the U.S. Marine Corps for 3 years.

  In considering the unique situation presented by this nomination, 
this week the Armed Services Committee held two hearings. The first 
hearing, on Tuesday, had a panel of two excellent outside witnesses who 
discussed the history of the retirement restriction law and the 
benefits and challenges of legislating an exception to that law. Then, 
this morning, the committee held a nomination hearing with General 
Mattis and examined his views on a wide range of defense challenges 
facing our country and the Defense Department.
  General Mattis has a long and distinguished military career, and he 
is recognized by his peers as a thoughtful and strategic thinker. 
However, since its passage in 1947, the statutory requirement designed 
to protect civilian control of the Armed Forces has only been waived 
one other time. Therefore, I believe it is extremely important that we 
carefully consider the consequences of setting aside the law and the 
implications such a decision may have on the future of civilian and 
military relations.
  Civilian control of the military is enshrined in our Constitution and 
dates back to George Washington and the Revolutionary War. This 
principle has distinguished our Nation from many other countries around 
the world, and it has helped ensure that our democracy remains in the 
hands of the people.
  The National Security Act of 1947, which established the Department 
of Defense, included a provision prohibiting any individual ``within 
ten years'' of ``active duty as a commissioned officer in a regular 
component of the armed services'' from being appointed as the Secretary 
of Defense. However, in 1950, President Harry Truman nominated former 
Secretary of State and former Chief of Staff of the United States Army 
General George Marshall to serve as the Secretary of Defense, thus 
causing Congress to pass an exception to the statute.
  While Congress ultimately waived the restriction for General 
Marshall, the law included a nonbinding section that stated: ``It is 
hereby expressed as the intent of the Congress that the authority 
granted by this Act is not to be construed as approval by the Congress 
of the continuing appointments of military men to the office of 
Secretary of Defense in the future. It is hereby expressed as the sense 
of the Congress that after General Marshall leaves the office of the 
Secretary of Defense, no additional appointments of military men to 
that office shall be approved.''
  Nearly 70 years later, Congress again must make a determination if an 
exception should be made in the case of General Mattis. Let me remind 
my colleagues why making this change is so significant. During our 
committee hearings, Dr. Kathleen Hicks astutely noted: ``The Defense 
Secretary position is unique in our system. Other than the President 
acting as commander in chief, the Secretary of Defense is the only 
civilian official in the operational chain of command to the Armed 
Forces. Unlike the President, however, he or she is not an elected 
official.''
  As I stated during the committee's consideration of the waiver 
legislation, we must be very cautious about any actions, including this 
legislation, that may inadvertently politicize our Armed Forces. During 
this past Presidential election cycle, both Democrats and Republicans 
came dangerously close to compromising the nonpartisan nature of our 
military with the nominating convention speeches from recently retired 
general officers advocating for a candidate for President.
  I am also concerned about providing a waiver for General Mattis in 
light of the fact that he will join other recently retired senior 
military officers who have been selected for high-ranking national 
security positions in the Trump Administration. Throughout our Nation's 
history, retired general officers have often held positions at the 
highest levels of government as civilians. In fact, a few have even 
been elected President.
  What concerns me, however, is the total number of retired senior 
military officers chosen by the President-elect to lead organizations 
critical to our national security and the cumulative affect it may have 
on our overall national security policy. Specifically, there may be 
unintended consequences having so many senior leaders with similar 
military backgrounds crafting policy and making decisions as weighty as 
those facing the next administration.
  In the course of our review of General Mattis' nomination, the reason 
most often cited in support of a waiver allowing him to serve is that a 
retired four-star general known for his war-fighting skills and 
strategic judgment to lead the Department of Defense will 
counterbalance the President-elect's lack of defense and foreign policy 
experience. As Tom Ricks wrote recently in The New York 
Times: ``Usually I'd oppose having a general as Secretary of Defense, 
because it could undermine our tradition of civilian control of the 
military. But these are not normal times.''

  Likewise, Dr. Eliot Cohen testified before the Senate Armed Services 
Committee earlier this week, and he argued that if it weren't for his 
deep concern about the Trump Administration, he would oppose the waiver 
for General Mattis. Specifically, he stated: ``There is no question in 
my mind that a Secretary Mattis would be a stabilizing and moderating 
force . . . and over time, helping to steer American foreign and 
security policy in a sound and sensible direction.''
  If Congress provides an exception for General Mattis, we must be 
mindful of the precedent that action sets for such waivers in the 
future. The restriction was enacted into law for good reason, and 
General George Marshall is the only retired military officer to receive 
this exception.
  Based on General Mattis' testimony this morning, as well as his 
decades of distinguished service in the U.S. Marine Corps, and weighing 
all of the other factors, I will support a waiver for him to serve as 
Secretary of Defense. General Mattis testified to the fact that the 
role of Congress does not end with the passage of this legislation. As 
Dr. Hicks stated, ``The United States Congress, the nation's statutes 
and courts, the professionalism of our Armed Forces, and the will of 
the people are critical safeguards against any perceived attempts to 
fundamentally alter the quality of civilian control of the military in 
this country.''
  Any of us who support this bill have a profound duty to ensure that 
the Department of Defense and its leaders,

[[Page S305]]

both civilian and military, are following and protecting the principles 
upon which this country is founded.
  Let me be very clear. I will not support a waiver for any future 
nominees under the incoming administration or future administrations. I 
view this as a generational exception, as our bipartisan witnesses 
recommended. I would ask that my colleagues on both sides of the aisle 
make this same commitment. Indeed, I intend to propose reestablishing 
the original 10-year ban which was in place when the Defense Department 
was established. Restoring the threshold for service to 10 years would 
send a strong signal that this principle of civilian control of the 
military is essential to our Democratic system of government.
  At this point I would ask if the chairman of the committee might 
engage in a colloquy. I do that first by thanking him for the 
extraordinarily fair, thoughtful, and careful way he has guided this 
nomination through the committee and here to the floor.
  I wish to thank the Senator from Arizona for the thoughtful and 
thorough process we have had in considering the nomination of General 
Mattis. I think one of the high points was a hearing on civilian 
military relations with Eliot Cohen and Kathleen Hicks. Both witnesses 
emphasized that while they supported this waiver, it should be a rare, 
generational exception to ensure the integrity of civilian control of 
our military, which is the bedrock of our democracy.
  I agree wholeheartedly with that assessment, and I would ask the 
chairman if he also agrees with that assessment.
  Mr. McCAIN. Mr. President, I would say that I also agree. I want to 
thank the Senator from Rhode Island for his leadership, and I want to 
thank him for setting the tenor and the environment that surrounds the 
Armed Services Committee, which resulted in the 24-to-3 vote today in 
the Armed Services Committee. Because of the relationship that we have, 
but also because of his leadership, we have a very bipartisan 
committee, which is vital to maintain, considering the awesome 
responsibilities we hold.
  The Senator from Rhode Island has displayed time after time a 
willingness to work together for the good of the country. I think this 
is the latest example, even though he had significant reservations--
which are valid--concerning the short period of transition from wearing 
the uniform to holding down the highest civilian position as far as 
defense of the Nation is concerned. I know he didn't reach this 
conclusion without a lot of thought, a lot of study, a lot of--as he 
has displayed--references to history; reasons for the origination of 
this legislation, which requires 7 years before an individual is 
eligible to be Secretary of Defense after leaving the military.
  So I just wanted to thank the Senator from Rhode Island, and I look 
forward to an overwhelming vote.
  Mr. President, could I ask the parliamentary situation as it is right 
now.
  The PRESIDING OFFICER. The Senate is considering S. 84 with 10 hours 
equally divided.
  Mr. McCAIN. Mr. President, has a time been set for the vote?
  The PRESIDING OFFICER. There is not yet an order for the vote.
  Mr. REED. Mr. President, I believe I have the floor.
  Mr. McCAIN. I yield to my friend from Rhode Island.
  Mr. REED. Mr. President, I believe the chairman does concur with me 
regarding the fact that this is a rare and generational exception; I 
think that is fair to say.
  Mr. McCAIN. Mr. President, is it accurate to say that 2:45 p.m. is a 
time that is being seriously considered?
  Mr. REED. We hope so, and I think, if we recognize Senator Merkley 
for his comments, and then I think the chairman of the committee has 
comments, we would be on that schedule.
  Mr. McCAIN. Mr. President, I ask unanimous consent that I be allowed 
5 minutes prior to the vote, if the time of the vote is set, and the 
Senator from Rhode Island be given 5 minutes prior to that, in the case 
of the time of the vote being set.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. McCAIN. Mr. President, I yield the floor.
  Mr. REED. Mr. President, I believe I still retain the floor.
  Let me make the point that I appreciate very much the Senator from 
Arizona allowing me 5 minutes, but I will yield that 5 minutes so that 
at the end, the Senator from Arizona would have 5 minutes, and then I 
would suggest we recognize Senator Merkley so that we can conduct the 
vote at 2:45 p.m.
  Mr. McCAIN. Mr. President, I would like to modify my unanimous 
consent request that I be allowed 5 minutes prior to the vote.


                           Order of Procedure

  Before I do that, however, I ask unanimous consent that the time 
until 2:45 p.m. be equally divided between the managers or their 
designees, and that following the use or yielding back of that time, 
the bill be read a third time, and the Senate vote on passage of S. 84; 
further, that following the disposition of S. 84, the Senate recess 
subject to the call of the Chair for the all-Members briefing.
  So I would ask the Senator from Oregon how much time he needs.
  Mr. MERKLEY. Less than 10 minutes.
  Mr. McCAIN. Mr. President, I am asking for a ruling on the unanimous 
consent request I just made.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. McCAIN. Mr. President, I add to that unanimous consent request 
that I be given the final 5 minutes before the vote.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. REED. Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. MERKLEY. Mr. President, we have a longstanding tradition in our 
country of civilian control of government and civilian control of the 
military. This was first symbolized by George Washington through his 
act of resigning as Commander in Chief for all of the Continental Army 
on December 23, 1783. It is a tradition, or a moment in time, that is 
preserved on the walls of the Rotunda where a mural depicts 
Washington's noble and selfless act.
  Our early days were full of the warnings of a standing Army and of 
ongoing military control at high levels, and those ideas came from 
Thomas Jefferson and from Alexander Hamilton and from Samuel Adams. 
When we came to the point in our history where we realized that a 
continuing military force was necessary, we preserved the importance of 
civilian control.
  We did so for a host of important reasons, which others have pointed 
out on this floor but I think are worth restating. It is important to 
have a Secretary of Defense who brings a broad world view that includes 
a civilian perspective to the position.
  Second, it is important not to politicize our officer ranks and have 
them essentially competing to position themselves to hold this position 
of Secretary of Defense.
  Third, we do not want the services competing against each other in 
order to hold this position. This is why the Joint Chiefs of Staff 
position is rotated on a specific schedule. And if we have a Secretary 
of Defense come from one military service, then another branch of 
service is going to say: Next time it should be our turn. The Marine 
Corps today, the Air Force tomorrow, the Army after that, and then the 
Navy. That is not the position we want to end up in.
  We also know that across the world, countries wrestle with preserving 
civilian control; that is, preserving democratic republics in the face 
of the power of military machinery in their country, military 
organizations, and we see military coups and we see massive military 
influence.
  It has been the desire of our country to model a republic that is of 
the people, by the people, and for the people, not a nation that 
becomes controlled by a massive concentration of power in the military. 
Now my colleagues--many of whom are very learned in the history of our 
country--have arisen to say that there is a set of special 
circumstances, a unique set of circumstances, that merit an exception, 
and they note that there was an exception once before in our history. 
That exception was the appointment of George C. Marshall to become 
Secretary of Defense in the time following

[[Page S306]]

World War II. But think about how many circumstances we face in the 
world that can be put forward to be an exceptional time. It was 
exceptional when terrorists used planes to attack the Twin Towers in 
New York City and our Pentagon, and had not one plane gone down, the 
additional target may have been the Capitol or the White House. That 
was an exceptional moment. It is an exceptional moment when we are 
fighting Al Qaeda. It is an exceptional moment when we are fighting 
ISIS. It is an exceptional moment when Russia invades Ukraine and takes 
over Crimea. There is an exceptional moment almost continuously in the 
face of a complex and changing world.
  So I stand on the side of maintaining the principle of civilian 
control. Each time we violate this principle, it is easier next time to 
say: It has been done before. But the conversation will not be ``We did 
it once half a century ago, and so we should do it again,'' it will be 
``We did it twice, once quite recently when we weren't facing a world 
crisis. Nobody had invaded the United States. We had not just lost a 
couple hundred thousand folks fighting for our country in a world 
war.'' So the conversation will get easier and more fragile, and that 
is not the direction we should go.
  It was Eisenhower who warned about the overreach of a military 
enterprise--the ``military industrial complex,'' as he referred to it. 
But one piece of our structure of government that has held back is to 
maintain that principle of civilian control. Can anyone in this room 
rise up and say that out of the thousands of experienced individuals 
who have both national security experience and civilian experience, 
there isn't one who currently meets either the 10- or 7-year standard 
of separation? I am sure there are hundreds who could meet that 
standard.
  So here we are. If we could send a message to the President-elect: We 
reject your effort to eviscerate civilian control. Send us someone who 
is qualified. And if we feel that person is so far out of the reach of 
reason--which is what I have been hearing from my colleagues in private 
conversation, terrified that this President-elect will nominate 
somebody who basically is unhinged, that we have to seize on this 
moment to take this individual because this body won't have the courage 
to turn down and reject an unhinged individual nominated by this 
President-elect. That is a sad commentary on the leadership of this 
body. It is a sad commentary on what has become of the U.S. Senate that 
we wouldn't have the courage under our advice and consent power to turn 
down someone we saw as unfit. That is, in fact, how we are charged 
under this Constitution, under the advice and consent clause. It was 
Hamilton who laid out that it is our responsibility to determine 
whether an individual is of fit character or unfit character, and we 
would retain that power for any nomination that, in the collective 
judgment of this body, did not meet that standard.
  So let's sustain the principle of civilian control and reject this 
change.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, in response to the Senator from Oregon who 
asked if there were not any people who were qualified to serve as 
Secretary of Defense, I am absolutely certain there are. Is there 
anyone as qualified as General Mattis? My answer to the Senator from 
Oregon is no. I have watched General Mattis for years. I have seen the 
way that enlisted and officers react to his leadership. I have seen the 
scholarly approach he has taken to war and to conflict.
  I hope the Senator from Oregon will have at some point a chance to 
get to know him, and he will then appreciate the unique qualities of 
leadership that are much needed in these times where the outgoing 
President of the United States has left the world in a state of chaos 
because of an absolute failure of leadership, which is disgraceful. We 
now see an outgoing President of the United States who in 2009 
inherited a world that was not being torn apart in the Middle East. The 
Chinese were not acting assertively in the South China Sea. The 
Russians had not dismembered Ukraine and taken Crimea, in gross 
violation of international law. All of those things have come about 
because of his presidency.
  So now he comes to the floor and objects to one of the most highly 
qualified individuals and leaders in military history. I say to the 
Senator from Oregon: You are wrong.
  I believe the overwhelming majority of this body will repudiate and 
cancel out his uninformed remarks.
  Mr. President, in a few minutes we will vote on a historic piece of 
legislation. For just the second time in seven decades, the legislation 
before us would provide an exception to the law preventing any person 
from serving as Secretary of Defense within 7 years of Active-Duty 
service as a regular commissioned officer of the Armed Forces. This 
legislation would allow Gen. James Mattis--the President-elect's 
selection for Secretary of Defense, who retired from the Marine Corps 3 
years ago--to serve in that office.
  Earlier today, the Senate Armed Services Committee received testimony 
from General Mattis. Once again, he demonstrated exceptional command of 
the issues confronting the United States, the Department of Defense, 
and our military servicemembers, but he also showed something else--
that his understanding of civil-military relations is deep and that his 
commitment to civilian control of the Armed Forces is ironclad.
  General Mattis's character, judgment, and commitment to defending our 
Nation and its Constitution have earned him the trust of our next 
Commander in Chief, Members of Congress on both sides of the aisle, and 
so many who are serving in our Armed Forces. General Mattis is an 
exceptional public servant worthy of the exceptional consideration. 
That is why, directly following the conclusion of today's hearing, the 
Senate Armed Services Committee reported this legislation to the Senate 
with an overwhelming bipartisan vote of 24 to 3--I repeat: with an 
overwhelming vote of 24 to 3.
  I am not saying that members of the Armed Services Committee are 
smarter than the Senator from Oregon, but I am saying that members of 
the Armed Services Committee have scrutinized--both sides of the aisle, 
Republican and Democrat, including the ranking member--have looked at 
General Mattis. Many of us have known him for years and years, as he 
has shown the outstanding characteristics of leadership that he has had 
the opportunity to display in his service to the country, and he was 
voted out by an overwhelming vote of 24 to 3. So obviously there are 24 
people on the Armed Services Committee who believe in General Mattis 
and believe that this exception should be made, as opposed to 3 who 
share the view of the Senator from Oregon.
  Mr. MERKLEY. I ask my colleague from Arizona if he will yield for a 
question.
  Mr. McCAIN. That is why, directly following the conclusion of today's 
hearing, the Senate Armed Services Committee reported this legislation 
to the Senate with a vote of 24 to 3. I urge this body to follow suit.
  That said, it is important for future Senators to understand the 
context of our action here today. Civilian control of the Armed Forces 
has been a bedrock principle of American Government since our 
Revolution. A painting hanging in the Capitol Rotunda not far from this 
floor celebrates the legacy of George Washington, who voluntarily 
resigned his commission as commander of the Continental Army to the 
Congress. This principle is enshrined in our Constitution, which 
divides control of the Armed Forces among the President as Commander in 
Chief and the Congress as coequal branches of government.
  Since then, Congress has adopted various provisions separating 
military and civilian positions. In the 19th century, for example, 
Congress prohibited an Army officer from accepting a civil office, more 
recently, in the National Security Act of 1947, and subsequent 
revisions, Congress's 7-year ``cooling off'' period for any person to 
serve as Secretary of Defense. It was only 3 years later, in 1950, that 
Congress granted GEN George Marshall an exemption to that law and the 
Senate confirmed him to be Secretary of Defense.
  Indeed, the separation between civilian and military positions has 
not always been so clear. Twelve of our Nation's Presidents previously 
served as generals in the Armed Forces, and over the years, numerous 
high-ranking civilian officials in the Department of

[[Page S307]]

Defense have had long careers in military service.
  The basic responsibilities of civilian and military leaders are 
simple enough--for civilian leaders: to seek the best professional 
military advice while under no obligation to follow it; for military 
leaders: to provide candid counsel while recognizing civilians have the 
final say or, as General Mattis once observed, to insist on being heard 
and never insist on being obeyed. But the fact is that the relationship 
between civilian and military leaders is inherently and endlessly 
complex. It is a relationship of unequals who nonetheless share 
responsibility for the defense of the Nation. The stakes could not be 
higher. The gaps in mutual understanding are sometimes wide. 
Personalities often clash. And the unique features of the profession of 
arms and the peculiarities of service cultures often prove daunting for 
civilians who have never served in uniform.
  Ultimately, the key to healthy civil-military relations and civilian 
control of the military is the oath that soldiers and statesmen share 
in common ``to protect and defend the Constitution.'' It is about the 
trust they have in one another to perform their respective duties in 
accordance with our republican system of government. It is about the 
candid exchange of views engendered by that trust and which is vital to 
effective decisionmaking. And it is about mutual respect and 
understanding. The proper balance of civil-military relations is 
difficult to achieve, and, as history has taught us, achieving that 
balance requires different leaders at different times.
  I believe that in the dangerous times in which we live, General 
Mattis is the leader our Nation needs as Secretary of Defense. That is 
why, although I believe we must maintain safeguards of civilian 
leadership at the Department of Defense, I will support this 
legislation today and General Mattis' nomination to serve this Nation 
again as Secretary of Defense.
  I want to assure my friend from Rhode Island, the ranking member of 
the Armed Services Committee, who has very serious concerns--I want to 
assure him that this is a one-time deal. I know the Senator from Rhode 
Island had deep concerns about this whole process we have been through. 
Yet I think he has put the interests of the Nation and placed his 
confidence in General Mattis as being so exceptional that the law that 
was passed back in 1947--there can be made one single exception to it.
  The PRESIDING OFFICER. The majority's time has expired.
  The majority leader.


                   Unanimous Consent Request--H.R. 72

  Mr. McCONNELL. Mr. President, I ask unanimous consent that at 4:15 
p.m. on Tuesday, January 17, the Committee on Homeland Security and 
Governmental Affairs be discharged and the Senate proceed to the 
consideration of H.R. 72; further, that there be 30 minutes of debate 
equally divided in the usual form, and that upon the use or yielding 
back of time, the bill be read a third time and the Senate vote on 
passage of H.R. 72 with no intervening action or debate; finally, that 
if passed, the motion to reconsider be considered made and laid upon 
the table with no intervening action or debate.
  The PRESIDING OFFICER. Is there objection?
  Mr. MERKLEY. Mr. President, reserving the right to object.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. MERKLEY. Mr. President, I agreed----
  Mr. McCAIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Has time expired according to the previous UC?
  Mr. MERKLEY. Mr. President, I believe I have the floor.
  Mr. McCONNELL. Mr. President, I believe I have the floor.
  The PRESIDING OFFICER. The majority leader has the floor.
  Mr. McCONNELL. Just to let everybody know, all I am doing is setting 
up a vote for Tuesday afternoon at 4:15. That is what I was asking 
consent on.
  The PRESIDING OFFICER. Is there objection?
  Mr. MERKLEY. I reserve the right to object.
  The PRESIDING OFFICER. Is there objection?
  Mr. MERKLEY. I reserve the right to object.
  Mr. President, I was very gracious in agreeing to a unanimous consent 
request that would grant me 10 minutes. That was cut short by the 
filibuster of my colleague, who repeatedly brought me into the 
conversation and refused to yield for my question. So I ask unanimous 
to have 2 minutes to close.
  Mr. McCAIN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Is there objection to the majority leader's request?
  Mr. MERKLEY. I object.
  The PRESIDING OFFICER. Objection is heard.
  The majority leader.


                     Request for Committees to Meet

  Mr. McCONNELL. Mr. President, I have four requests for committees to 
meet during today's session of the Senate. They have the approval of 
the majority and minority leaders.
  Mr. MERKLEY. I object.
  The PRESIDING OFFICER. Duly noted.
  The bill was ordered to be engrossed for a third reading and was read 
the third time.
  The PRESIDING OFFICER. The bill having been read the third time, the 
question is, Shall it pass?
  Mr. McCONNELL. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The senior assistant legislative clerk called the roll.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Tennessee (Mr. Alexander) and the Senator from Kansas (Mr. 
Moran).
  Further, if present and voting, the Senator from Tennessee (Mr. 
Alexander) would have voted ``yea.''
  The PRESIDING OFFICER (Mr. Cassidy). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 81, nays 17, as follows:

                      [Rollcall Vote No. 27 Leg.]

                                YEAS--81

     Barrasso
     Bennet
     Blunt
     Boozman
     Brown
     Burr
     Cantwell
     Capito
     Cardin
     Carper
     Casey
     Cassidy
     Cochran
     Collins
     Coons
     Corker
     Cornyn
     Cortez
     Masto
     Cotton
     Crapo
     Cruz
     Daines
     Donnelly
     Enzi
     Ernst
     Feinstein
     Fischer
     Flake
     Franken
     Gardner
     Graham
     Grassley
     Harris
     Hassan
     Hatch
     Heinrich
     Heitkamp
     Heller
     Hirono
     Hoeven
     Inhofe
     Isakson
     Johnson
     Kaine
     Kennedy
     King
     Klobuchar
     Lankford
     Lee
     Manchin
     McCain
     McCaskill
     McConnell
     Menendez
     Murkowski
     Nelson
     Paul
     Perdue
     Peters
     Portman
     Reed
     Risch
     Roberts
     Rounds
     Rubio
     Sasse
     Schatz
     Schumer
     Scott
     Sessions
     Shaheen
     Shelby
     Stabenow
     Sullivan
     Thune
     Tillis
     Toomey
     Warner
     Whitehouse
     Wicker
     Young

                                NAYS--17

     Baldwin
     Blumenthal
     Booker
     Duckworth
     Durbin
     Gillibrand
     Leahy
     Markey
     Merkley
     Murphy
     Murray
     Sanders
     Tester
     Udall
     Van Hollen
     Warren
     Wyden

                             NOT VOTING--2

     Alexander
     Moran
       
  The bill (S. 84) was passed, as follows:

                                 S. 84

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. EXCEPTION TO LIMITATION AGAINST APPOINTMENT OF 
                   PERSONS AS SECRETARY OF DEFENSE WITHIN SEVEN 
                   YEARS OF RELIEF FROM ACTIVE DUTY AS REGULAR 
                   COMMISSIONED OFFICERS OF THE ARMED FORCES.

       (a) In General.--Notwithstanding the second sentence of 
     section 113(a) of title 10, United States Code, the first 
     person appointed, by and with the advice and consent of the 
     Senate, as Secretary of Defense after the date of the 
     enactment of this Act may be a person who is, on the date of 
     appointment, within seven years after relief, but not within 
     three years after relief, from active duty as a commissioned 
     officer of a regular component of the Armed Forces.
       (b) Limited Exception.--This section applies only to the 
     first person appointed as Secretary of Defense as described 
     in subsection (a) after the date of the enactment of this 
     Act, and to no other person.

                          ____________________