Narrower Military Justice Reform Among Changes that Survive Defense Bill Compromise

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The National Defense Authorization Act sets the Pentagon's budget for the year, though Congress still must pass an appropriations bill. (U.S. Army photo by Sgt. 1st Class Marisol Walker)
The National Defense Authorization Act sets the Pentagon's budget for the year, though Congress still must pass an appropriations bill. (U.S. Army photo by Sgt. 1st Class Marisol Walker)

A major overhaul of the military justice system has been scuttled from a defense policy bill in favor of narrower approach preferred by the Pentagon that is focused more on sex crime reform, one of several significant changes that emerged from negotiations.

A compromise version of the National Defense Authorization Act, or NDAA, released Tuesday does not include an overhaul championed by Sen. Kirsten Gillibrand, D-N.Y., that would have taken commanders out of the decision to prosecute most major crimes.

Instead, it hews more closely to a proposal that was in the initial House-passed version of the bill that would establish special victims prosecutors in each of the military branches to handle sexual assault, sexual harassment, crimes against minors and other related offenses.

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This year's compromise NDAA, the sweeping annual defense bill that sets a benchmark for the defense budget, also includes a provision to conduct an independent review of the war in Afghanistan, while eschewing proposals backed by Democrats to sharpen the Pentagon's response to extremism and to provide greater protections for military-connected domestic violence victims.

The compromise bill also added cases of murder, manslaughter and kidnapping to the list of crimes that would be under the purview of special victims prosecutors.

While the compromise NDAA does not go as far as Gillibrand and advocates were pushing, it would still mark a major change to the military justice system after years of Pentagon resistance to any reforms.

Gillibrand's proposal had made it into the Senate's version of the NDAA, but so too had a provision that was more similar to the House's proposal.

Gillibrand and her supporters argued the House and alternate Senate proposals fell short of real reform since the list of crimes they would apply to is narrower. Gillibrand's measure would have applied to all crimes that are not unique to the military that have a minimum sentence of at least a year.

"As sexual assault survivor advocates warned would happen for months, House and Senate Armed Services leadership have gutted our bipartisan military justice reforms behind closed doors, doing a disservice to our service members and our democracy," Gillibrand said in a written statement. "This bill represents a major setback on behalf of service members, women and survivors in particular. However, we will not stop seeking true military justice reforms for our brave service members and I will continue to call for an up or down floor vote."

Earlier this year, Defense Secretary Lloyd Austin became the first Pentagon chief to support taking sex crime prosecutions outside the chain of command, following the recommendation of an independent commission he empaneled to study new ways to combat military sexual assault.

But many military leaders continued to oppose the broader overhaul Gillibrand sought, arguing that changing prosecutions for more than just sex crimes required further study and that doing so could undermine the authority of commanders.

Gillibrand's proposal, which she had also introduced as a stand-alone bill, had support from more than 60 senators and 200 House members, including House Speaker Nancy Pelosi, D-Calif., and Senate Majority Leader Charles Schumer, D-N.Y. But in addition to the Pentagon, its opponents include the leaders of the Senate and House Armed Services committees who negotiated the compromise NDAA.

Senate Armed Services Committee ranking member Jim Inhofe, R-Okla., told reporters the compromise is "not exactly the way I would have done it," but added "that's the way these things are."

Afghanistan Oversight

The entire 20-year war effort in Afghanistan is set to get an independent review under the compromise NDAA.

The bill includes a provision to establish an independent Afghanistan War Commission, an idea proposed by lawmakers from both parties in the wake of the quick collapse of the U.S.-backed Afghan government as U.S. troops withdrew from America's longest war in August.

The commission would be composed of 16 members chosen by the bipartisan leaders of each chamber's armed services committee, foreign relations committee and intelligence committee, as well as the Democratic and Republicans leaders of the House and Senate. Nobody who was involved in the war, including current and former members of Congress, former Cabinet officials and former four-star generals and admirals who served in Afghanistan, would be allowed on the commission.

The commission would be tasked with studying "the key strategic, diplomatic and operational decisions that pertain to the war ... including decisions, assessments and events that preceded the war," as well as crafting "a series of lessons learned and recommendations for the way forward that will inform future decisions by Congress and policymakers throughout the United States Government."

The initial House-passed NDAA included a similar proposal from Rep. Liz Cheney, R-Wyo., while Sen. Tammy Duckworth, D-Ill., championed the idea of a commission in the Senate.

Extremism

A multipronged proposal aimed at giving the military more tools to root out extremists in the ranks is not in the compromise bill.

The provision, which was sponsored by Rep. Anthony Brown, D-Md., and was in the House-passed NDAA, would have created an Office of Countering Extremism in the Pentagon, required more training and data collection, and clarified that service members are barred from being members of extremist groups.

Austin has called countering extremism one of his top priorities in the wake of the Jan. 6 attack on the U.S. Capitol, in which dozens of service members and veterans have been charged with participating.

But the White House opposed Brown's provision, saying it would "impose onerous and overly specific training and data collection requirements and would foreclose other options to address extremism."

Brown announced Tuesday afternoon he opposes the compromise bill.

"If we do not take this moment, in the face of the rising threat of extremism, and persistent racial inequities in both our civilian and military justice systems, we fail the communities who elected us, the Constitution on which we swore an oath, and the servicemembers who sacrifice so much to defend our nation," he said in a statement, alluding to both his extremism provision and the military justice reforms.

While Brown's provision is out, the compromise NDAA is not entirely silent on the issue of extremism.

The bill would require the Pentagon to recommend to Congress whether to create a separate "violent extremism" offense in the Uniform Code of Military Justice. That too falls short of what was in the initial House bill -- which would have actually established the offense of violent extremism -- but matches what was in the Senate version of the NDAA.

Red Flag Law

Also gone from the compromise NDAA is a provision that would have given civilian courts and police authority to confiscate the firearms of service members accused of domestic violence.

The provision, which was sponsored by Rep. Jackie Speier, D-Calif., and included in the House-passed bill, would have created a system for military courts to issue protective orders.

The proposal was aimed at closing a loophole in the current system of military protective orders, which are issued by commanders and so not recognized by civilian authorities since the orders do not follow due process. That means if a victim wants to be protected both on and off a military base, they must go through two separate processes, which advocates say can be traumatizing and leave victims vulnerable to violence.

But conservatives staunchly opposed the provision, arguing it would infringe on troops' Second Amendment right to bear arms. In particular, Republicans took issue with the fact that an emergency order could be issued on an "ex parte basis," meaning without all parties present in court, which Republicans argued would itself violate due process rights.

Funding

The compromise NDAA would authorize a $768 billion defense budget, including $740 billion for the Pentagon.

That's $25 billion more than the Biden administration requested, an outcome that was expected after both the House and Senate Armed Services committees backed a boost to the defense budget.

The funding includes $7.1 billion for the so-called Pacific Deterrence Initiative aimed at countering China. It would also support a pay raise of 2.7% for service members.

But the NDAA is a policy bill, not a spending bill, meaning the funding won't become a reality until Congress passes a separate appropriations bill. Lawmakers recently passed a stopgap spending measure that locks in fiscal 2021's funding level until at least mid-February.

The House is expected to vote on the compromise NDAA later Tuesday, followed by the Senate later this week.

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

Related: Lawmakers Are Worried a Major Military Justice Overhaul Is Going to Get Stopped

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