Sen. Kirsten Gillibrand is on the brink of success in her years-long campaign to get sexual assault cases removed from the military chain of command. But getting over the finish line may depend on whether she can overcome wariness about broader changes she’s seeking to the military justice system.
There is now widespread support for using independent military lawyers to handle sexual misconduct cases, but Gillibrand is promoting legislation that goes beyond that, extending that change to all major crimes. Top Pentagon officials and key lawmakers are open to the sexual assault shift, but they say applying it more broadly requires far more study and debate.
Gillibrand said the wider change is necessary to combat racial injustice within the military, where studies have found that Black people are more likely to be investigated and arrested for misconduct. She intends to press that point in the coming days.
Asked if she might compromise on her bill, Gillibrand said that time has passed. “We’ve been doing that for eight years. We’ve been getting something through every year, and some things just don’t work. You need this broad-based reform,” the New York Democrat said. “This is a bill whose time has come.”
For years, however, lawmakers have framed their push for change in the military justice system around problems with sexual misconduct cases. Victims — largely women — have long said they are reluctant to file sexual assault or harassment complaints because they fear they won’t be believed or will face retaliation. They’ve complained that allegations are sometimes dismissed by a good ol’ boys network among unit commanders or that attackers get away with minimal punishments.
Those complaints have resonated, and support has grown on Capitol Hill and in the Pentagon, where senior defense leaders acknowledge that, despite years of effort, they’ve made little progress combating sexual misconduct in the ranks. Defense Secretary Lloyd Austin and Gen. Mark Milley, chairman of the Joint Chiefs of Staff, for the first time said they were open to taking sexual assault and harassment charges out of the chain of command.
But both also said that extending the change to all major crimes would require more time and review.
Similarly, Sen. Jack Reed, chair of the Armed Services Committee, supports the change for sexual misconduct and said this week that he believes it will get committee approval. But he said he wants more thorough discussion within the committee for changes that affect the entire Uniform Code of Military Justice.
“The worst thing we can do to victims of sexual assault is to move a bill through that can’t be implemented effectively or on time, creates too large a workload for too few qualified military judge advocates, imperils prosecutions, leads to convictions being overturned on appeal, or results in neglected cases because the necessary attention cannot be devoted to them,” he said.
Reed, a Rhode Island Democrat, said Pentagon estimates indicate the broader bill would require more senior qualified lawyers than the department has, and will take 180 days to implement. He also has repeatedly objected to Gillibrand’s efforts to get unanimous approval to move her bill separately to the full Senate for a vote, saying it should be included in the overall defense bill.
Asked about cost, Gillibrand said it will be “very little” because the prosecutors already are in place and they already take the cases to court.
The Pentagon, however, believes it won’t be that simple, and that if lawyers are pulled out of the chain of command to handle major crimes, others will be needed to deal with other cases and duties, such as desertion, military discipline or legal policy reviews.
Jeh Johnson, former Pentagon general counsel, wrote in the Lawfare blog on Wednesday that Gillibrand’s bill “appears to require a whole new bureaucracy. … No one should be under the illusion that the broad mission contemplated by the bill can be carried by a small band of elite JAGs in a suite someplace in northern Virginia.”
Johnson said a change for sexual assault crimes is long overdue, but added, “Congress should take care to fashion a solution commensurate with the problem at hand, and not go too far.”
Gillibrand, who has 65 other Senate supporters for her bill, acknowledged that overcoming committee leaders’ opposition will be a challenge.
“Having the chairman and ranking member opposed to this reform is highly problematic if this bill goes to the committee,” said Gillibrand, adding, “It would be easier if the chairman of the Joint Chiefs of Staff or the secretary of defense supported our proposal.”
An independent review commission set up by Austin has recommended a similar change for sexual misconduct but did not consider other crimes in its study. Its plan would have judge advocates report to a civilian-led Office of the Chief Special Victim Prosecutor, and they would decide whether to charge someone and if the charge goes to court martial. The panel is expected to give Austin a report on prevention and victim support programs shortly, and he will then send his own recommendations to the president.
The Pentagon, said Gillibrand, will use the panel’s initial report “to confuse members of Congress, and they will try to muddy the waters and say, we’ve already looked at this and they only recommended that sexual assault come out of the chain of command.”
She said she hopes lawmakers will be convinced by data that shows racial bias in prosecution decisions made by the military. And she argued that limiting the change to sexual assault would be discriminatory — setting up what some call a “pink” court to deal with crimes usually involving female victims.
“I’m deeply concerned that if they limit it to just sexual assault, it will really harm female service members. It will further marginalize them, further undermine them, and they’ll be seen as getting special treatment,” she said.
Eugene R. Fidell, a military law expert at New York University Law School, agreed, saying a separate system that largely benefits women will hurt unit cohesion. And he noted opponents’ concerns that taking all major crimes out of the chain of command could result in fewer prosecutions. He said that’s possible, but added that independent attorneys should make those decisions, and the result would be a higher conviction rate.
Gillibrand is pledging to keep going to the Senate floor, seeking to have her bill considered separately. “I will continue to do so until I convince Jack Reed that he should not stand in front of this bill,” she said.