Lawmakers last year gave the military the benefit of the doubt that its leaders were working hard to stop the epidemic of sexual assault within their ranks, opting for a package of modest changes over far more controversial proposals that had drawn staunch opposition from the Pentagon.
This year is a different story altogether.
The news on military sexual assault has gone from bad to worse to unbelievable over the past two weeks after two sexual-assault-prevention officials were themselves charged with assault. A third was arrested last week in a domestic dispute and relieved of his command.
A new Pentagon report, meanwhile, only underscores the pervasiveness of this problem, concluding that these crimes spiked 37 percent over the past two years, rising to an average of 77 assaults per day within the military.
The result has been a flurry of legislation from all corners of Capitol Hill aimed at correcting the problem. The annual defense authorization bill, which House Armed Services subcommittees start marking up Wednesday, will incorporate some of these proposals, although the proposals are likely to trigger strong arguments.
The approaches differ widely, but there is one constant throughout each bill: Lawmakers of both parties — even some of the Pentagon’s biggest boosters — no longer trust the military to handle this problem on its own.
“They still seem to be incredibly clueless,” said Republican Rep. Michael R. Turner of Ohio, a senior House Armed Services Committee member who co-chairs the Military Sexual Assault Prevention Caucus. “When we talk to the leadership, I think they honestly don’t understand that they have a culture problem, which they should see in the statistics.”
Turner’s name has been attached to many of the provisions addressing military sexual assault that have made it through Congress the past several years. But as the problem has persisted, the Ohio Republican has only become more frustrated.
“The military has got to understand that this is a crime,” he said. “It’s a vicious, violent crime, and it needs to be treated as such.”
Last year, Congress, with the support of the Pentagon, agreed to move the decision for prosecuting these crimes up the chain of the command, to the colonel level, to try to eliminate bias. But proposals to move this decision out of the chain of command — subverting a tradition that dates back to the 18th century — were never seriously considered on Capitol Hill.
Even after the latest scandals, the issue of chain of command is still prickly, with lawmakers such as Turner and others preferring to move this critical decision further up the chain rather than out of it entirely. But it nonetheless is an idea that is picking up steam in both parties at a critical time.
The flurry of recent accusations has made it nearly impossible for Armed Services Committee lawmakers in the House or the Senate to defend the status quo.
“I think at this point the question is just how much and how far,” said House Armed Services ranking member Adam Smith, D-Wash., last week. “There’s a consensus that the current system isn’t working. The question is now, how do you change it?”
Turner’s bill (HR 1867), which he co-sponsored with Democrat Niki Tsongas of Massachusetts and will be included in the House panel’s version of the authorization bill, would ensure those found guilty of rape, sexual assault, sodomy or an attempt to commit any of those crimes are — at a minimum — dismissed or dishonorably discharged from the military. That requires a general court martial, essentially kicking decision-making for the most serious crimes to the level of a general officer.
“We’re for taking it out of the immediate chain of command,” Turner said. “But at this point, we don’t have a problem with the failure of military tribunals. We have a problem with failure of prevention, prosecution and protection of victims.”
There are plenty of other lawmakers, however, who find Turner’s approach simply too conservative. Rep. Jackie Speier, D-Calif., has been pushing a bill for years that would give a new, independent and mostly civilian body jurisdiction over sexual assaults.
Speier attracted 129 co-sponsors, but the bill (HR 1593) is unlikely to make it out of the House Armed Services Committee. The fact that it exists, however, could make other substantial revisions to the military’s justice system look more middle-of-the-road.
Chief among those is a bill (S 967) pushed by New York Democratic Sen. Kirsten Gillibrand, who chairs the Senate Armed Services Subcommittee on Personnel. Her measure, which she hopes to attach to the broader defense policy bill, would essentially take the decision out of the accused’s chain of command for all felony-level offenses but keep it within the military itself. It would leave the prosecutorial decision up to military lawyers, a move that supporters call “professionalizing the military justice system.”
The bill has picked up three Senate Republicans as sponsors, including Susan Collins of Maine, who last year said in an interview that the “jury is still out” on the chain of command issue. Collins, one of the first senators to focus on the issue of sexual assault, last week said there has been little progress made on the issue despite sincere commitments from today’s military leaders.
“We must take these allegations seriously and, most of all, we must ensure that justice is swift and certain for the criminals who have perpetrated these crimes,” she said.
Gillibrand’s bill will likely draw heated debate when her subcommittee marks up the authorization bill next month, with the top Republican on the panel, Lindsey Graham of South Carolina, saying he is “adamantly opposed” to the legislation. Graham, an Air Force Reserve lawyer, has argued that bypassing the chain of command would hurt commanders’ ability to maintain good order and discipline within their units.
Other key lawmakers, including Smith and Senate Armed Services Chairman Carl Levin, D-Mich., are still reviewing Gillibrand’s bill. Whether or not her bill makes it into the authorization measure, the very fact that it is being seriously considered is significant for those who want to take commanders out of the prosecution equation.
“The details are sticky,” Smith said. “But I am wide open to the idea.”
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.