[Congressional Record Volume 163, Number 10 (Tuesday, January 17, 2017)]
[Extensions of Remarks]
[Page E71]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]





PROVIDING FOR EXCEPTION TO LIMITATION AGAINST APPOINTMENT OF PERSONS AS 
   SECRETARY OF DEFENSE WITHIN SEVEN YEARS OF RELIEF FROM ACTIVE DUTY

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                               speech of

                        HON. STEPHANIE N. MURPHY

                               of florida

                    in the house of representatives

                        Friday, January 13, 2017

  Mrs. MURPHY of Florida. Mr. Speaker, I rise--reluctantly--in 
opposition to S. 84.
  There is a federal law, enacted as part of the National Security Act 
of 1947, providing that the Secretary of Defense shall be ``appointed 
from civilian life by the President.'' Originally, the law provided 
that the individual being considered for appointment to this position 
cannot have served as a commissioned officer in a regular component of 
the military within 10 years of his appointment as Secretary. In 2008, 
Congress amended the law from 10 years to seven years.
  The law, which is rooted in the deeply American principle that 
civilians should exercise control over the military, does not provide 
for any waivers or exceptions. In the 70 years that this statutory 
restriction has been on the books, Congress has only once enacted 
legislation to suspend the restriction. In September 1950, in the first 
year of the Korean War, Congress--acting at the behest of President 
Truman--approved legislation to suspend the provision in order to 
enable General George Marshall, at the time an active-duty member of 
the military, to serve as Secretary of Defense. The 1950 law providing 
for the suspension referenced General Marshall by name and expressed 
the sense of Congress that ``after General Marshall leaves the office 
of Secretary of Defense, no additional appointments of military men to 
that office shall be approved.''
  This Congress is now being asked to provide a second exemption. 
President-elect Trump has nominated former General James Mattis--who 
was, by nearly all accounts, one of the nation's most distinguished and 
capable military officers, inspiring loyalty from the men and women 
under his command--to serve as Secretary of Defense. Because General 
Mattis retired from active service within the last seven years, 
Congress must enact legislation suspending applicable law in order for 
General Mattis to become Secretary.
  While the Constitution gives the Senate the sole power to confirm 
presidential nominees, we are not talking simply about a confirmation 
process here. To the contrary, we are also dealing the enactment of 
significant, potentially precedent-setting legislation. That means that 
both the Senate and the House must approve the bill authorizing the 
exception before it is sent to the president for signature. It is up to 
each chamber to determine whether General Mattis is uniquely qualified 
to serve as Secretary of Defense, such that legislation suspending 
generally applicable law would be warranted.
  General Mattis testified before the Senate Armed Services Committee, 
and was fully prepared to testify before the House Armed Services 
Committee. However, despite General Mattis' willingness to appear 
before the House Armed Services Committee, the president-elect's 
transition team declined to make him available to testify.
  This decision is difficult to fathom, and strikes me as an unforced 
error. It is highly likely that, were General Mattis to testify, the 
House Armed Services Committee would conclude in bipartisan fashion 
that approving legislation granting an exception to General Mattis is 
appropriate. I, personally, would be likely to support an exception, in 
light of General Mattis's impeccable record of service.
  But I cannot in good conscience support legislation granting an 
exemption without the House Armed Services Committee having had the 
opportunity to speak with General Mattis, to ask him about his views on 
civilian-military relations and other issues related to our national 
defense, and to take the full measure of the man. To reiterate, based 
on everything I know about General Mattis, he would have passed this 
test with flying colors.
  We are a nation of laws. We abide by those laws whether they are 
convenient or not. Federal law, in place for many decades, prohibits a 
former military officer within seven years of his departure from active 
military service from being appointed as Secretary of Defense. We can 
debate whether this law should be modified, but unless and until it is, 
it remains the law. Congress can, as it has on one previous occasion, 
enact legislation to suspend this law. As long as the law remains on 
the books, it stands to reason that exceptions to the law should be 
granted only in exceptional circumstances, where the individual to be 
appointed is uniquely qualified in light of all the circumstances. The 
House Armed Services Committee cannot reasonably be expected to make 
such a determination without at least having had an opportunity to pose 
questions to that individual.
  My hope is that the president-elect's transition team would 
reconsider its decision not to authorize General Mattis to testify 
before the House Armed Services Committee, that General Mattis would so 
testify (as he is prepared to do), and that the Committee would act 
expeditiously on legislation to exempt General Mattis--and Mr. Mattis 
alone, which the broadly-worded legislation before us does not do--from 
generally applicable federal law.

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