Congress poised to force historic change in military justice system

Lawmakers increasingly frustrated with military's inability to get control of sexual assault epidemic

Sens. Kirsten Gillibrand and Charles E. Grassley attend a news conference outside the Capitol to discuss the Military Justice Improvement and Increasing Prevention Act on Thursday. (Tom Williams/CQ Roll Call)
Sens. Kirsten Gillibrand and Charles E. Grassley attend a news conference outside the Capitol to discuss the Military Justice Improvement and Increasing Prevention Act on Thursday. (Tom Williams/CQ Roll Call)
Posted April 30, 2021 at 5:38pm

Supporters of fundamentally changing how the U.S. military handles allegations of sexual assault and other major crimes say they now have the votes to make their proposal, which the president supports, the law of the land.

After nearly a decade of failed attempts, Sen. Kirsten Gillibrand, D-N.Y., and her allies in both chambers are poised to transform the military justice system so that independent military prosecutors, not unit commanders, may soon decide which allegations of major crime are prosecuted, notably including rapes.

The most recent Defense Department survey showed 20,500 sexual assaults on active-duty women and men in fiscal 2018. Less than half of those assaults were formally reported, and only 108 people were convicted of these crimes.

The 20,500 assaults “tells us that it makes them more likely to be sexually assaulted by a fellow service member than be shot by the enemy at war,” Gillibrand told reporters Thursday.

Supermajority secured

Gillibrand chairs the Senate Armed Services Subcommittee on Personnel. The full committee for years has been the bastion of resistance to Gillibrand’s proposal, with considerable pressure against her measure coming traditionally from the military brass.

Now Gillibrand appears to be just a few commitments shy of securing inclusion of her proposal, which is co-sponsored by Iowa Republican Charles E. Grassley, in the annual defense authorization bill, the so-called NDAA.

But the committee’s views may not matter all that much. That’s because 46 senators have cosponsored Gillibrand’s bill. And, of critical importance, enough additional senators have privately signaled their support to indicate there are 60 or more yes votes, according to Don Christensen, a former top prosecutor in the Air Force, who tracks the issue closely.

“It’s in play in the Senate Armed Services Committee, but I am confident that it would pass in a Senate floor vote, if it came to that,” said Christensen, who is now president of Protect Our Defenders, a human rights group that focuses on the military.

The vote projection of Gillibrand’s supporters has not previously been publicized.

Nearly a half-dozen senators, including Texas Republican Ted Cruz, told reporters this week that they believe the measure will pass.

“And it’s about damn time,” Cruz added at an April 29 press conference.

The House, for its part, is widely expected to adopt a similar provision taking prosecution decisions out of commanders’ hands, at least for sexual crimes. The champion of such a measure there is California Democrat Jackie Speier, who chairs the Armed Services Subcommittee on Military Personnel.

Meanwhile, a Pentagon task force, in a draft report disclosed by AP earlier this month, supported the change, at least for decisions on sexual crimes. Defense Secretary Lloyd J. Austin III is conferring with military officials and has yet to deliver the department’s recommendation on the matter.

Yet the Pentagon’s decision, like the Senate Armed Services Committee’s views, is quickly being overtaken by events, if the tally of Gillibrand’s support in the Senate proves accurate.

“Pentagon opposition at this point, if it comes, I don't believe is going to have any influence on the decision in Congress,” said Christensen. “The Pentagon’s support would be welcome. But I don't think they can kill it anymore.”

Revised bill

Gillibrand’s 2021 bill is an updated version of her longstanding measure. It would move — from commanders to a team of uniformed prosecutors — decisions on whether to prosecute allegations of essentially any crime that would be a felony in a civilian court, with a few exceptions, including military-unique offenses such as disobeying an order or desertion.

The proposal is partly a response to the fact that commanders have not succeeded in prosecuting enough sexual assault cases or stemming the tide of their occurrence. Also driving Gillibrand and her allies is the view that victims are not reporting enough crimes under the current system due to concerns about whether those who report will be treated fairly by the chain of command — or even retaliated against, which Gillibrand says happens in two of three cases.

The 2021 version of the bill adds several new provisions not in previous iterations. These include measures aimed at preventing, not just responding to, sexual crimes. It would require, for instance, security measures such as cameras and locks on military installations. And it would mandate training military personnel in preventing sexual offenses and improving investigators’ skills as well.

Support for Gillibrand’s legislation has grown this year, particularly after the gruesome murder in 2020 of Army Spc. Vanessa Guillen of Fort Hood, Texas, a 20-year-old woman who had reported prior to her murder being sexually harassed. An Army report made public Friday said Guillen was sexually harassed, but not by the soldier accused of killing her, and that the suspected killer had been accused of unrelated sexual harassment.

Shifting stances

CQ Roll Call disclosed in February that congressional support for Gillibrand’s proposal had begun to build, including among Republicans and several Democrats who had previously opposed her on it.

Then, on April 27, The New York Times reported that Iowa Republican Joni Ernst, a member of the Senate Armed Services Committee and an Army veteran, is now behind Gillibrand’s measure.

The revelation of Ernst's long-rumored support seemed to accelerate the backing in the Senate for the Gillibrand bill.

In fact, Christensen, the former top Air Force prosecutor, said the bill gained about a dozen new supporters just this week.

The changes of opinion in the Senate this week were sometimes dizzying.

Democrat Gary Peters of Michigan said in a brief interview on April 28 that he needed to study the legislation, and the next day he was a cosponsor.

Tommy Tuberville, R-Ala., likewise told CQ Roll Call on April 28 he was skeptical but still not sure — and the following day, Tuberville, too, was listed as a cosponsor.

The support is as bipartisan as it gets in the Senate nowadays and so includes odd bedfellows. Liberals such as Massachusetts Democrat Elizabeth Warren are side by side with Republicans they usually fiercely oppose, such as Cruz and Rand Paul of Kentucky.

Senate Minority Leader Mitch McConnell, R-Ky., too, has backed Gillibrand’s bill in the past.

Her supporters now include — as of this week — several members of the Democratic bloc who voted against her measure the last time it came up in 2014. These include Independent Angus King of Maine and Democrat Tim Kaine of Virginia — both Armed Services members — plus Jon Tester of Montana, the chairman of the Senate Appropriations Subcommittee on Defense. And some Republicans who opposed her then are said to be quietly mulling a reversal.

Committee battleground

To be sure, however, there are still those in Congress who stand by the traditional system of commanders making decisions on discipline in their ranks.

These include the top Republican on the Senate Armed Services Committee, James M. Inhofe of Oklahoma.

“The chain of command is golden,” Inhofe said this week.

The committee’s chairman, Jack Reed of Rhode Island, is one of three Democrats on the committee who are not cosponsors of Gillibrand’s bill and who have yet to make known how they will vote on the issue. Reed, an Army veteran, opposed Gillibrand’s legislation seven years ago.

The other two undeclared Democrats on the committee are Joe Manchin III of West Virginia and Jacky Rosen of Nevada.

The committee is divided evenly between the parties, 13-13. Even if all three of those Democrats vote against Gillibrand, there may be four Republicans to make up for it, though that is not yet clear..

Some Republicans on the panel are opposed, and some, such as Mike Rounds of South Dakota, have not made their views publicly known.

Besides Ernst and Tuberville, two other Republicans on the committee have said they are open to considering her bill.

North Carolina Republican Thom Tillis said this week he is prepared to support Gillibrand’s legislation unless he hears something better from the Pentagon.

Another key GOP vote on the panel and on the floor will be Dan Sullivan of Alaska. He said in a brief interview this week that he believes the scope of crimes taken out of commanders' hands in Gillibrand's bill “can be narrowed more.” But he said he has been talking to Gillibrand for a long time on this legislation and is looking for a way to support it.

The fact that Gillibrand may have enough votes to secure passage of her measure on the floor will strengthen her hand in the committee.

Such significant support in the wider Senate would ultimately make it largely irrelevant how the panel acts. The same goes for the Pentagon’s review.

Chris Cioffi, Jessica Wehrman, Jennifer Shutt and Katherine Tully-McManus contributed to this report.