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[House Report 115-13]
[From the U.S. Government Publishing Office]

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115th Congress    }                                   {       Report
                        HOUSE OF REPRESENTATIVES
 1st Session      }                                   {        115-13

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  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

                                _______
                                

 February 16, 2017.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

  Mr. Thornberry, from the Committee on Armed Services, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 393]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Armed Services, to whom was referred the 
bill (H.R. 393) 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, having considered the 
same, report favorably thereon without amendment and recommend 
that the bill do pass.

                          PURPOSE AND SUMMARY

    The purpose of this legislation is to authorize the 
President to appoint General James N. Mattis, USMC (Ret.), as 
Secretary of Defense. The legislation authorizes the President 
to nominate and, by and with the advice and consent of the 
Senate, appoint, an individual as Secretary of Defense who is 
within 3 years of relief from Active Duty as a commissioned 
officer of a regular component of the Armed Forces. The 
legislation applies only to the first person appointed after 
enactment. At the date of introduction of the legislation, 
President-elect Donald J. Trump had announced his intention to 
nominate General Mattis as Secretary of Defense.

                  BACKGROUND AND NEED FOR LEGISLATION

    In 1947, Congress created the position of Secretary of 
Defense as part of the National Security Act of 1947 (Public 
Law 80-253). Public Law 80-253 required that the Secretary of 
Defense be appointed from civilian life by the President, by 
and with the advice and consent of the Senate, but it made 
ineligible for appointment any person who had been on Active 
Duty as a commissioned officer in a regular component of the 
Armed Services within the past 10 years. The limitation was 
codified in section 113 of title 10, United States Code. In 
2007, section 903 of the National Defense Authorization Act for 
Fiscal Year 2008 (Public Law 110-181) reduced the limitation 
from 10 years to 7 years.

Need for legislation

    On November 8, 2016, Donald J. Trump was elected President 
of the United States. On December 1, 2016, President-elect 
Trump announced his intention to nominate General James N. 
Mattis, USMC (Ret.) to the position of Secretary of Defense. 
General Mattis retired from the Marine Corps in 2013. Thus, 
absent legislation, section 113 of title 10, United States 
Code, prohibits the appointment of General Mattis as Secretary 
of Defense.

Prior exceptions to the prohibition on recently retired officers 
        serving as Secretary of Defense

    An exception to section 113 of title 10, United States 
Code, is rare but not unprecedented. On September 13, 1950, 
President Harry S. Truman sent a letter to Congress requesting 
legislation that would authorize General of the Army George C. 
Marshall, then Secretary of State, to serve as Secretary of 
Defense. General Marshall had received a lifetime commission, 
and was still an officer of the Army even while serving as 
Secretary of State. Thus, General Marshall was prohibited from 
being appointed Secretary of Defense by what is now section 113 
of title 10, United States Code.
    Two days later, on September 15, 1950, the House Committee 
on Armed Services met to consider legislation (H.R. 9646) 
waiving the prohibition for General Marshall. The committee met 
in executive session and reported out the legislation favorably 
by a vote of 18-7. No witnesses attended. The Committee on 
Rules met that same morning and issued a rule providing for 
floor debate on the bill. The House adopted the rule and, at 
the conclusion of the allotted time for debate, voted to pass 
the bill by a vote of 220-105.
    The Senate had been simultaneously considering similar 
legislation, and by unanimous consent substituted the bill that 
had just passed the House. That evening, the Senate passed the 
legislation and on September 18, 1950, the President signed it 
into law (Public Law 81-788). The President promptly nominated 
General Marshall to the position of Secretary of Defense, and, 
after a confirmation hearing, his nomination was approved by 
the Senate and General Marshall was confirmed as Secretary of 
Defense on September 20, 1950.

Qualifications of General Mattis

    General James N. Mattis, USMC (Ret.) has distinguished 
himself as a national security leader; a wartime commander, 
with multiple deployments to the Republic of Iraq and the 
Islamic Republic of Afghanistan; a scholar who has written on 
civilian-military relations at Stanford University's Hoover 
Institution; and a student of military history.
    General Mattis enlisted in the Marine Corps in 1969 and 
attended Central Washington University as part of the Reserve 
Officers' Training Corps program. He earned a bachelor's degree 
in 1971 and was commissioned as a second lieutenant the 
following year. He retired in 2013 after a 41-year Marine Corps 
career that included field commands in the Persian Gulf, Iraq, 
and Afghanistan.
    Following the terrorist attacks on September 11, 2001, 
General Mattis commanded the First Marine Expeditionary Brigade 
and Naval Task Force 58 in operations against the Taliban in 
southern Afghanistan. As a major general, he commanded the 
First Marine Division during the initial attack and subsequent 
stability operations in Iraq. In his first tour as a lieutenant 
general, he was in charge of Marine Corps Combat Development 
Command, and while there helped compile the U.S. Army/Marine 
Corps Counterinsurgency Field Manual, the tenets of which have 
been employed in Iraq and Afghanistan. Subsequently, he served 
as Commander, I Marine Expeditionary Force/Commander, U.S. 
Marine Forces in the Middle East. In 2007, General Mattis was 
promoted to general, and served concurrently as the Commander 
of U.S. Joint Forces Command and the North Atlantic Treaty 
Organization's Supreme Allied Commander Transformation. He 
established the Center for Advanced Operational Culture 
Learning, a training academy for Marine Corps officers and 
senior enlisted personnel, to instill cultural awareness and 
language skills. In 2010, he took command of U.S. Central 
Command, with responsibility for ongoing U.S. military 
operations in Iraq and Afghanistan.
    Since retiring from the U.S. Marine Corps in 2013, General 
Mattis has been a visiting fellow at Stanford University's 
Hoover Institution and taught courses on various subjects at 
other colleges nationwide. He is co-editor of the book, 
``Warriors & Citizens: American Views of our Military'', which 
explores the paradoxes in American attitudes toward the U.S. 
military and provides recommendations for civil-military 
relations.

The principle of civilian control of the military

    Civilian control of the Armed Forces is a long-standing 
national principle, and the committee recognizes the importance 
of considering the issues associated with its preservation in 
the context of authorizing an exception to section 113 of title 
10, United States Code, for General Mattis. Such consideration 
was also central to the debate in September 1950, when Congress 
last considered a legal exception for General of the Army 
George C. Marshall.
    While scholars and practitioners generally believe the 
United States still adheres to the principle of civilian 
control of the military, some have observed that civilian-
military relations have deteriorated over the past two decades. 
These scholars and practitioners further worry that greater 
deference to generals may lead to greater militarism in the 
Department of Defense. Others worry that, as retired generals 
engage more in the political arena, the risk of politicizing 
the military grows. Some also question how such an appointment 
might affect the Chairman of the Joint Chiefs of Staff's 
ability to perform his statutory role as principal military 
advisor to the President, and how the appointee would avoid 
perceptions of bias towards the military branch he served in.
    The committee notes that several leading scholars in 
civilian-military issues, after considering these issues, 
support the exception for General Mattis. One scholar concluded 
that General Mattis is ``an exceptional candidate'' in 
``exceptional circumstances,'' while another believes that 
General Mattis can be a ``stabilizing and moderating force.'' 
His nomination has also been supported by several former 
Secretaries of Defense.
    General Mattis appears to understand the importance of 
civil-military relations and of upholding the long-standing 
principle of civilian control of the military. He testified to 
the Senate Committee on Armed Services during his confirmation 
hearing in January 2017, that he ``recognize[s] my potential 
civilian role differs in essence and in substance from my 
former role in uniform,'' and ``will provide strong civilian 
leadership of military plans and decisions . . . [and] hold 
senior military and civilian leaders accountable.''
    The committee recommends authorizing a one-time exception 
to section 113 of title 10, United States Code. The committee 
believes that General Mattis is qualified to serve as Secretary 
of Defense and that the country can once again benefit from his 
leadership and public service.

                                HEARINGS

    No hearings were held by the committee on H.R. 393.
    However, after President-elect Trump announced on December 
1, 2016, his intention to nominate General James N. Mattis, 
USMC (Ret.) to the position of Secretary of Defense, the 
committee convened two events to discuss issues related to any 
potential legislation to provide an exception to section 113 of 
title 10, United States Code.
    On December 6, 2016, the committee received a briefing from 
committee staff on the legislative background and history of 
the statutory limitations on the position of Secretary of 
Defense and an ``Act to authorize the President to appoint 
General of the Army George C. Marshall to the office of 
Secretary of Defense'' (Public Law 81-788). On December 7, 
2016, the committee held an informal discussion with non-
government scholars and experts on civil-military relations.

                           COMMITTEE POSITION

    On January 12, 2017, the Committee on Armed Services held a 
markup session to consider H.R. 393. No amendments were offered 
to the bill. The committee ordered the bill H.R. 393 favorably 
reported to the House of Representatives by a recorded vote of 
34-28, a quorum being present.

                            COMMITTEE VOTES

    In accordance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, a record vote was taken with 
respect to the committee's consideration of H.R. 393. The 
record of this vote is contained on the following page.

                      committee on armed services

                             115th Congress

                          roll call vote no. 1

                                h.r. 393

    Description: On motion by Mr. Wilson to adopt the bill, 
H.R. 393, and report it favorably to the House, with a 
recommendation that it do pass.
    January 12, 2017.

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            Member                 Aye       No       Present        Member          Aye       No       Present
----------------------------------------------------------------------------------------------------------------
Mr. Thornberry................  x         ........  ..........  Mr. Smith.......  ........  x         ..........
Mr. Jones.....................  x         ........  ..........  Mr. Brady.......  ........  x         ..........
Mr. Wilson....................  x         ........  ..........  Mrs. Davis......  ........  x         ..........
Mr. LoBiondo..................  x         ........  ..........  Mr. Langevin....  ........  x         ..........
Mr. Bishop....................  x         ........  ..........  Mr. Larsen......  ........  x         ..........
Mr. Turner....................  x         ........  ..........  Mr. Cooper......  ........  x         ..........
Mr. Rogers....................  x         ........  ..........  Ms. Bordallo....  ........  x         ..........
Mr. Franks....................  x         ........  ..........  Mr. Courtney....  ........  x         ..........
Mr. Shuster...................  x         ........  ..........  Ms. Tsongas.....  ........  x         ..........
Mr. Conaway...................  x         ........  ..........  Mr. Garamendi...  ........  x         ..........
Mr. Lamborn...................  x         ........  ..........  Ms. Speier......  ........  x         ..........
Mr. Wittman...................  x         ........  ..........  Mr. Veasey......  ........  x         ..........
Mr. Hunter....................  x         ........  ..........  Ms. Gabbard.....  ........  x         ..........
Mr. Coffman...................  x         ........  ..........  Mr. O'Rourke....  ........  x         ..........
Mrs. Hartzler.................  x         ........  ..........  Mr. Norcross....  ........  x         ..........
Mr. Scott.....................  x         ........  ..........  Mr. Gallego.....  ........  x         ..........
Mr. Brooks....................  x         ........  ..........  Mr. Moulton.....  ........  x         ..........
Mr. Cook......................  x         ........  ..........  Ms. Hanabusa....  ........  x         ..........
Mr. Bridenstine...............  x         ........  ..........  Ms. Shea-Porter.  ........  x         ..........
Dr. Wenstrup..................  x         ........  ..........  Ms. Rosen.......  ........  x         ..........
Mr. Byrne.....................  x         ........  ..........  Mr. McEachin....  ........  x         ..........
Mr. Graves....................  x         ........  ..........  Mr. Carbajal....  ........  x         ..........
Ms. Stefanik..................  x         ........  ..........  Mr. Brown.......  ........  x         ..........
Ms. McSally...................  x         ........  ..........  Mrs. Murphy.....  ........  x         ..........
Mr. Knight....................  x         ........  ..........  Mr. Khanna......  ........  x         ..........
Mr. Russell...................  x         ........  ..........  Mr. Peters......  ........  x         ..........
Dr. DesJarlais................  x         ........  ..........  Mr. Aguilar.....  ........  x         ..........
Dr. Abraham...................  x         ........  ..........  Mr. Castro......  ........  x         ..........
Mr. Kelly.....................  x         ........  ..........                    ........  ........  ..........
Mr. Gallagher.................  x         ........  ..........                    ........  ........  ..........
Mr. Gaetz.....................  x         ........  ..........                    ........  ........  ..........
Mr. Bacon.....................  x         ........  ..........                    ........  ........  ..........
Mr. Banks.....................  x         ........  ..........                    ........  ........  ..........
Ms. Cheney....................  x         ........  ..........                    ........  ........  ..........
                               ---------------------------------------------------------------------------------
Roll Call Vote Total:.........  34        28        0                             ........  ........  ..........
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                  CONGRESSIONAL BUDGET OFFICE ESTIMATE

    In compliance with clause 3(c)(3) of rule XIII of the House 
of Representatives, the cost estimate prepared by the 
Congressional Budget Office and submitted pursuant to section 
402 of the Congressional Budget Act of 1974 is as follows:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, January 13, 2017.
Hon. Mac Thornberry,
Chairman, Committee on Armed Services,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 393, a bill 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.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is David Newman.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

H.R. 393--A bill 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

    Current law bars the appointment to the position of 
Secretary of Defense of any person who has served on active 
duty as a commissioned officer of the Armed Forces during the 
previous seven years. H.R. 393 would waive that prohibition for 
the next person appointed to the office. CBO estimates that 
enacting H.R. 393 would have no budgetary effect.
    CBO estimates that enacting H.R. 393 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    H.R. 393 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is David Newman. 
The estimate was approved by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

                        COMMITTEE COST ESTIMATE

    Pursuant to clause (3)(d)(2)(B) of rule XIII of the Rules 
of the House of Representatives, the Congressional Budget 
Office Estimate included in this report satisfies the 
requirement for the committee to include an estimate by the 
committee of the costs incurred in carrying out this bill.

   NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the committee finds that H.R. 
393 would result in no new or increased budget authority, 
entitlement authority, or tax expenditures or revenues.

                          ADVISORY OF EARMARKS

    The committee finds that H.R. 393, as reported, does not 
contain any congressional earmarks, limited tax benefits, or 
limited tariff benefits as defined in clause 9 of rule XXI of 
the Rules of the House of Representatives.

                           OVERSIGHT FINDINGS

    With respect to clause 3(c)(1) of rule XIII of the Rules of 
the House of Representatives, the committee reports that the 
findings and recommendations of the committee are incorporated 
in the descriptive portions of this report.

                GENERAL PERFORMANCE GOALS AND OBJECTIVES

    In compliance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the general goal and objective 
of H.R. 393 is to authorize the Senate to consider the 
nomination of General James N. Mattis, USMC (Ret.) to the 
position of Secretary of Defense. The legislation does not 
authorize any funding.

                     STATEMENT OF FEDERAL MANDATES

    Pursuant to section 423 of Public Law 104-4, this 
legislation contains no Federal mandates with respect to state, 
local, and tribal governments, nor with respect to the private 
sector. Similarly, the bill provides no Federal 
intergovernmental mandates.

                  FEDERAL ADVISORY COMMITTEE STATEMENT

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                APPLICABILITY TO THE LEGISLATIVE BRANCH

    The committee finds that this legislation does not relate 
to the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act (Public Law 
104-1).

                    DUPLICATION OF FEDERAL PROGRAMS

    No provision of H.R. 393 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  DISCLOSURE OF DIRECTED RULE MAKINGS

    The committee estimates that H.R. 393 requires no directed 
rule makings.

               SECTION-BY-SECTION ANALYSIS OF LEGISLATION

 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

    This section would authorize the President to appoint, by 
and with the advice and consent of the Senate, an individual as 
Secretary of Defense who is within 7 years, but not less than 3 
years, of relief from Active Duty as a commissioned officer of 
a regular component of the Armed Forces. The legislation 
applies only to the first person appointed after enactment of 
this Act.

         CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, H.R. 393 would not make any 
changes to existing law.

                                  [all]
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