Congress Faces Decision on Military Justice Overhaul

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Sen. Kirsten Gillibrand, D-N.Y.
In this March 13, 2013, file photo Sen. Kirsten Gillibrand, D-N.Y., Chair of the Senate Subcommittee on Personnel, addresses panel members testifying about sexual assault in the military during the subcommittee hearing Capitol Hill in Washington. Gillibrand is challenging the Pentagon’s top brass, and some of her more senior Senate colleagues, over how the services handle the epidemic of sexual assaults. It’s a fight that crosses gender and party affiliation, and one that the tenacious 46-year-old just may win. (AP Photo/Carolyn Kaster, File)

Lawmakers are poised to finally overhaul the military justice system in an attempt to ease an epidemic of sexual assaults following years of failed Pentagon efforts, though it remains to be seen how far they will go.

Both the House and Senate have proposed changes to the Uniform Code of Military Justice, or UCMJ, meant to reduce the violence through a new legal process that eliminates influence on prosecutions by commanders. The two chambers are aiming to put legislation in the annual must-pass defense policy bill.

But only the Senate supports broader changes that would remove all felony-level crimes, not just sex crimes, from the chain of command. The more extensive reforms are backed by Sen. Kirsten Gillibrand, a New York Democrat who has pushed to remove command influence from sex assault prosecutions for years.

House Armed Services Committee Chairman Adam Smith, D-Wash., told Military.com this week he believes the various camps are already narrowing their differences, based partly on talks with Gillibrand, and an agreement may be near.

"We're all moving towards getting sexual assault cases and all sex crimes out of the hands of the commander and into the hands of a special prosecutor," Smith added. "And I think we're pretty close on getting an agreement on the details."

But Gillibrand said in an interview with Military.com that she is concerned that the leaders of Congress' armed services committees -- four white men -- still could nix some of her proposals when they eventually negotiate a final bill behind closed doors later this year.

As part of the annual defense bill process, a final compromise version will be hammered out by Smith; Senate Armed Services Committee Chairman Jack Reed, D-R.I.; House Armed Services Committee ranking member Rep. Mike Rogers, R-Ala.; and Senate Armed Services Committee ranking member Sen. Jim Inhofe, R-Okla.

"We have the vast majority of senators who support our provision," Gillibrand said. "But again, once those doors are closed, and four men will be in conference, they will make their own judgments, and I will not be in that room to fight for survivors or fight for this preferred reform."

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The Senate is expected to vote on its initial version of the National Defense Authorization Act, or NDAA, later this fall. The House passed its version of the NDAA, which more closely follows a set of Pentagon recommendations for military justice reform focused only on sex crimes, not all felonies.

Once the Senate passes its bill, negotiators from both chambers will meet to hammer out a final version of the mammoth annual bill.

Despite the debate, Congress is closer than ever to taking the decision whether to prosecute at least some crimes away from commanders.

The Pentagon too is on board this time. Defense Secretary Lloyd Austin created an independent commission to review the issue of sex assaults earlier this year, and it recommended removing sexual assault and harassment, domestic violence and other related crimes from the chain of command.

Austin backed the Independent Review Commission over the summer, a sea change for a department that for years had staunchly opposed taking any prosecutorial decisions away from commanders.

But the Pentagon has continued to resist going beyond sex crimes.

Testifying before a House panel earlier this year, Deputy Defense Secretary Kathleen Hicks said she was concerned about "swamping ... and diffusing our efforts" to tackle sexual assault by including other crimes.

Proponents of taking other crimes outside the chain of command argue doing so could help address racial bias, pointing to reports such as an Air Force inspector general review last year that confirmed Black airmen are treated differently in criminal investigations and military justice than their white counterparts.

Hicks at that same hearing argued the Pentagon needs more data on the issue of racial disparities in the military justice system.

Members of the Joint Chiefs of Staff, including Joint Chiefs Chairman Gen. Mark Milley, sent letters to lawmakers earlier this year arguing that removing commanders from the decision to prosecute all felony-level crimes could have a negative effect on good order and discipline.

Meanwhile, the Pentagon already has started to make changes based on the commission review. It outlined a plan in September for a first wave of foundational reforms, including establishing offices of special victim prosecutors, that will take six years to complete throughout the Guard and Reserves.

Ultimately, though, changes to the UCMJ require laws to be passed by Congress.

The House-passed NDAA would create special victim prosecutors offices in each of the military departments to handle cases of sexual assault, sexual harassment, crimes against minors and other related offenses.

The Senate's defense bill, which was approved by the Senate Armed Services Committee in July and is expected to be voted on before the Thanksgiving break, similarly would create special victim prosecutors for sexual assault and related crimes.

But the bill also contains Gillibrand's proposal to take prosecutions of all major crimes outside the chain of command. That includes sexual assault, but also other felony-level offensives such as murder.

Gillibrand argues the two proposals are not mutually exclusive and compares them to a civilian scenario of a district attorney's office and a special victims unit within that office.

"It basically creates a state-of-the-art DA's office that is independent of the chain of command and, within that DA's office, within that office of 200 top-notch O-6 lawyers and above ... you will have 20, let's just say, special prosecutors who are sex crimes prosecutors, that are uniquely trained for sex assault and sexual harassment," she said.

She also holds that her broader reforms are needed because sex crimes often are interwoven with other crimes, such as in the case of Army Spc. Vanessa Guillen, who was sexually harassed by a supervisor before being killed last year, allegedly by another soldier at Fort Hood, Texas.

Gillibrand contends that changing only how sex crimes are prosecuted could create a "pink court" that would segregate crimes mostly involving women and stigmatize victims.

Ahead of House and Senate negotiations on the bill, Gillibrand is working to get the White House on her side, telling Military.com she has reached out to explain why the two proposals are not in competition.

"At the end of the day, it's a decision for President [Joe] Biden, and he'll decide what he wants in the NDAA, and he'll give his advice and guidance at the appropriate time," she said.

During the presidential campaign, Biden responded "yes, yes, yes" when asked by an advocate whether he would support removing "serious felonies like rape, murder and child abuse" from the chain of command. He has not commented directly on Gillibrand's bill since becoming president, but called the Independent Review Commission's recommendations "the beginning, not the end of our work."

Another hurdle for Gillibrand could be Reed, the Senate Armed Services chairman who will be a gatekeeper in what makes it into the final NDAA.

Reed called the two proposals in the Senate bill "an issue" and indicated various changes to the military criminal justice system will require debate.

"There's a significant commonality with recommendations that are in both bills, and then we'll have to have a serious discussion about additional aspects of UCMJ reform," he said.

If her proposal gets stripped out of the final NDAA that gets signed into law, Gillibrand said she is prepared to go back to pushing for a stand-alone vote on her bill. Earlier this year, she took to the Senate floor daily to try to set up a vote on her bill, but was blocked each time by either Reed or Inhofe.

"At the end of the day, this will happen if the president wants it to happen, and if the military listens to their commander-in-chief," she said. "And the only other way it happens is if I'm given the opportunity for an up-or-down vote, and we don't let four men in the room decide everything."

-- Rebecca Kheel can be reached at rebecca.kheel@military.com. Follow her on Twitter @reporterkheel.

Related: Pentagon's First Wave of Sexual Assault Reforms Will Take 6 Years to Complete

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