The Mysterious Origins of the Secretary of Defense ‘Exclusion’ Clause: Truman, Hoffman, and the Chowder Marines

February 24, 2021
thornhill

“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.” 

Title 10, U.S.C., § 113A

 

When President Joe Biden introduced Lloyd Austin as his nominee for secretary of defense, he called Austin a person “I hold in the highest personal regard as a man of great decency and a man of dignity” and the right person to lead the Department of Defense “at this moment in our nation’s history.” Clearly Biden had chosen a strong candidate based on his training, experience, and character, who also happened to have retired from the military just four years prior. Austin’s nomination caused unease on Capitol Hill and spurred several opinion pieces questioning the wisdom of his nomination. Those raising concerns expressed great personal regard for Austin but worried about what the nomination portended for civilian control of the military. In making their case, most commentators cited the latest version of the Title 10 language that requires a secretary of defense nominee to have been out of the military for at least seven years. This language reflects a 2008 amendment that reduced the exclusionary period from 10 to seven years, and is now cited with deep reverence by defense experts in and out of government for the critical role it plays in civilian control of the military. But those who cite the text make only vague reference to the origins of the secretary of defense “waiver” clause, and no one has identified the individual who had such high regard for civilian control that he insisted on the exclusionary clause. The story that follows attempts to identify both.

 

 

Tracing the Legislation: S. 758, H.R. 2319, H.R. 4214, and the National Security Act of 1947

Those who study post-World War II defense policy know that the early years after the war were extremely fraught, as President Harry Truman sought to protect the nation from another Pearl Harbor and to codify the hard-learned organizational lessons of World War II. Truman, the Congress, and the military services all had different ideas about what the postwar defense establishment should look like, making any reform difficult. After many failed efforts to address the ad hoc defense structures and processes of World War II, Truman directed the drafting of the legislation that eventually became the National Security Act of 1947. Its principal authors, Vice Adm. Forrest Sherman, Maj. Gen. Lauris Norstad, and Clark Clifford, in theory represented the interests of the key actors — respectively, the Department of the Navy, the War Department, and the White House. Although the Marine Corps was part of the Navy Department, its leaders firmly believed the authors ultimately sacrificed the Marine Corps’ interests in order to achieve a compromise. Specifically, they believed the Navy sacrificed the Marine Corps’ mission and force structure to protect naval aviation. They also believed the Army agreed to this trade-off, despite concerns from the Army Air Forces, because it wanted to exclude the Marine Corps from large-scale amphibious operations.

These three men presented draft legislation to Congress on Feb. 26, 1947 that was ultimately introduced as S. 758 in the Senate and H.R. 2319 in the House. Sweeping in scope, it established, among other things, the National Security Council, the National Military Establishment (the forerunner to the Department of Defense), the Joint Chiefs of Staff, the U.S. Air Force, and the Central Intelligence Agency. It offered several specifics, but it contained no restrictions on any civilian nominated to be the secretary of national defense, simply stating: “The Secretary of National Defense shall be appointed from civilian life by the President, by and with the advice and consent of the Senate.”

In other words, Truman, and those drafting the legislation on his behalf, did not care about the military background of the secretary — or at least weren’t concerned enough to address the issue in the legislation. The Senate didn’t really care either. The Senate Committee on Armed Services voted the bill out of committee without changing the original language, reinforcing only that the secretary must be “appointed from civilian life,” and made only minor changes to the entire bill, which the Senate then passed on July 9, 1947.

When the bill reached the House as H.R. 2319, however, interesting things happened. Rather than assign it to the House Committee on Armed Services, House managers sent it to the House Committee on Expenditures in the Executive Departments for hearings. The bill’s supporters thought it would pass more easily going through this committee because its chairman, Rep. Clare Hoffman of Michigan, was an isolationist who cared almost exclusively about labor issues. They could not have been more wrong. When the committee reported out on July 16, 1947, H.R. 2319 had so many changes legislators assigned it a new number, H.R. 4214. These changes included new language that renamed the secretary of national defense position:

There shall be a Secretary of Defense, who shall be appointed from civilian life by the President, by and with the advice and consent of the Senate: Provided, That a person who has held a Commission in a Regular component of the armed services shall not [emphasis added] be eligible for appointment as Secretary of Defense.

For some reason, Hoffman, despite his isolationism and minimal interest in military affairs, had seen fit to add an exclusion clause for potential defense secretaries.

A conference committee subsequently convened to reconcile the differences between the two bills. The conference committee codified the secretary of defense title and struck a compromise that addressed potential nominees for the position. The now-iconic language in the National Security Act of 1947 reads:

There shall be a Secretary of Defense, who shall be appointed from civilian life by the President, by and with the advice and consent of the Senate: Provided, That a person who has within ten years been on active duty as a commissioned officer in a Regular component of the armed services shall not be eligible for appointment as Secretary of Defense.

Certainly, the strong, exclusionary language prepared by Hoffman’s committee drove this compromise. Does that make Hoffman the prescient visionary on civilian control in 1947?

What Happened in the House Committee on Expenditures?

Interestingly, in over 2,000 pages of 1947 congressional testimonies and reports recording the discussions on the different drafts of the bill, the issue of commissioned military service as a possible disqualifier for secretary of defense never arose. The closest thing to a disparaging remark about military service came from Hoffman in a closed hearing about the new Central Intelligence Agency. When questioning the number of military leaders associated with the CIA, he observed,

do you not realize there is a fear among a great number of our people that there are too many military men getting in? For instance, Marshall is Secretary of State and … everywhere we look, we see an admiral or former military man.

Nothing resembling this concern, however, appeared anywhere in the public sessions.

During those public sessions, many who testified questioned the power given to the secretary, but none raised issues about military service as a qualifying or disqualifying factor. Army Chief of Staff Gen. Dwight Eisenhower, for example, when questioned about the secretary of defense position, made it clear that the president had the power to appoint whomever he liked as secretary. He noted,

I do not believe that most men put into such a place [secretary of defense] would indulge their prejudices much. It has been my experience, sir, that most men grow up somewhat to the size of the seat they are occupying.

He also commented that he’d be happy to serve under then-Secretary of the Navy James Forrestal as secretary of defense. To Eisenhower, selecting a person of character mattered most.

Since the impact of military service on the secretary of defense’s qualifications did not come up in the hearings, it had to have occurred during the committee’s bill-drafting process, when the committee met to review and revise the executive branch’s proposed language. So, what might have happened within the committee to prompt the addition of sweeping language excluding anyone who had served as an officer in the regular component? When Hoffman’s committee received the legislation, Don Hittle, an old friend of Hoffman’s, reached out immediately to introduce his son, Marine Lt. Col. James D. Hittle, to the congressman. The younger Hittle had asked for the introduction with a clear objective in mind. As a member of the informal, but powerful, Marine Corps group called the Chowder Society, he hoped to persuade the congressman to modify the draft national security legislation.

The Chowder Society had formed in the aftermath of World War II. It consisted mostly of accomplished lieutenant colonels (derisively referred to as “those lieutenant colonels” by Truman) who worked in the background, with the commandant’s unofficial approval, to protect Marine Corps interests. Immensely successful, at different times, the Chowder marines proved instrumental in revising, or even stopping, any legislative initiatives considered detrimental to the service. They had tried and failed, however, to persuade the Senate to save the Marine Corps from the perceived destructiveness of the Senate draft of the National Security Act. Thus, to the Chowder marines, the House offered the last opportunity to protect what they saw as the essence of the Marine Corps.

Hittle used his initial connection with Hoffman to convince him that the president and the other services (especially the Army) sought to diminish, and perhaps even eliminate, the Marine Corps. As trust grew between the two men, Hoffman asked the commandant to detail Hittle directly to his committee to work on the legislation until it was completed. In this capacity, Hittle worked closely with the committee through the markup process, during which the Marine Corps managed to insert specific language protecting its broader roles and missions in amphibious operations, along with the associated force structure. The much more pro-Marine Corps final bill, H.R. 4214, reflected the unflagging efforts of the Chowder marines to help the committee revise the legislation, and, in the process, rebalance the Marine Corps’ roles and missions relative to those of the other services.

If the Chowder marines helped draft H.R. 4214, is it possible they also conceived of the secretary of defense exclusion clause? Here, circumstantial facts converge to suggest their influence. Hittle, in particular, had a deep interest in the history of military general staffs, authoring The Military Staff: Its History and Development earlier in his career. As he worked with the Chowder marines and the committee members, he pointed out the historical parallels among the Truman administration’s defense reform initiatives, the rise of the Prussian General Staff, and ultimately Hitler’s centralized control over the German military. Hittle argued that unification of the military under the executive branch meant Congress would sacrifice much of its constitutional responsibility — an essential element of civilian control. He also argued that the creation of a secretary of defense and a powerful centralized military staff threatened not only the Marine Corps’ future, but that of democracy itself. At every opportunity, he wove this perceived connection into the Marine Corps leadership’s congressional testimony. Brig. Gen. Merritt Edson — a Medal of Honor recipient and Chowder Society member — for example, argued in his opening statement before Hoffman’s House Committee on Expenditures on June 17, 1947 that centralization of defense led to totalitarianism, rather than enhanced civilian control. By linking centralization to fears about the United States traveling down the same path as Nazi Germany had, Hittle managed to make H.R. 2319 about much more than the Marine Corps.

If the Chowder marines could not kill the idea of a secretary of defense in the legislation, at least they could weaken the position’s power by emphasizing this link between centralization and Nazism. Using the legislation to diminish the secretary of defense’s authority and limit who could serve, furthermore, would help protect the Marine Corps. Better a “pure” civilian as secretary of defense than a former senior Army or Navy leader from World War II. In the Chowder Society’s view, these World War II leaders had already demonstrated they disliked the Marine Corps with their support for the White House’s original draft legislation. Moreover, given the opportunity, they would not hesitate to undermine its viability as a service. Rather than fret about the possibility of former senior officers becoming secretary of defense, denying their eligibility for the position offered an alternative way to address this worry. In short, the facts and circumstantial evidence point toward the Chowder marines as the intellectual inspiration behind the draft clause fully excluding former officers from serving as secretary of defense in the House bill.

Ultimately, the Chowder marines did not get the lifetime secretary of defense exclusion, but they did get 10 years. When the Senate and House met in conference, both were intent on compromising and finalizing the national security legislation. The approved language that excluded anyone from serving as secretary of defense that “has within ten years been on active duty as a commissioned officer in a Regular component of the armed services” materialized out of that effort. Thus, the original 10-year exclusionary clause represented a classic legislative compromise, not an empirical assessment of how long it took to qualify as a civilian, or an explicit statement about civilian control. And, ironically, the Chowder marines — in seeking to protect their service — apparently provided what is now considered the prescient voice of civilian control in the final legislation.

What Might It Mean?

Since 1947, the 10, and now seven-year, secretary of defense exclusion clause has taken on greater meaning. Civil-military scholars, especially, see it as critical to understanding who is a civilian and what constitutes civilian control. But, at least two points are worth highlighting from the story above. First, Truman did not put a timeline on what constituted a civilian in his original conception of the position, and he asked for an exclusion clause waiver only three years later when he nominated Gen. George Marshall as secretary of defense. Second, then-Gen. Eisenhower cared about the character of the person occupying the position, not about how long they had been a civilian. Being a civilian, in this view, is more about the right mindset, not how long ago someone shoved a uniform into the back of a closet.

I, for one, am glad to see Lloyd Austin as secretary of defense. He meets the criteria Truman and Eisenhower set — the president trusts him, he is a person of sound character, and he understands that his responsibilities as secretary of defense extend far beyond the military. Congress, by supporting the waiver, recognized that as well. History will judge Austin’s ultimate success or failure as secretary of defense, but he is clearly qualified to serve. Hopefully, if the issue of military service comes up with future nominees, legislators and policymakers will remember that the National Security Act of 1947 involved huge legislative compromises, driven by many actors with myriad motives. When nominating a civilian for secretary of defense only good character ought to be nonnegotiable.

 

 

Paula G. Thornhill is a retired U.S. Air Force brigadier general, acting director of Strategic Studies, Johns Hopkins University (SAIS), and author of Demystifying the American Military.

Image: Lisa Ferdinando