President Joe Biden recently told Sen. Kirsten Gillibrand that he would sign her bill revising how the military decides to prosecute most major crimes, the New York Democrat told reporters Thursday.
Biden said he would "love to sign that into law," Gillibrand said.
Gillibrand's measure, which has 66 Senate co-sponsors, would remove from senior military commanders the authority to decide whether to prosecute most felonies and instead would create an office in each armed service, staffed with professional prosecutors, to make those decisions.
California Democrat Jackie Speier has a comparable measure in the House. Gillibrand and Speier chair the Armed Services panels that oversee military personnel matters. Both bills have GOP co-sponsors.
Defense Secretary Lloyd J. Austin III, Chairman of the Joint Chiefs of Staff Gen. Mark Milley and the other service chiefs have backed making the change Gillibrand and Speier proposed — but, crucially, they would limit the covered offenses to ones that are sexual in nature or closely related, such as domestic abuse.
Biden, in a July 2 statement, backed the brass on their more limited approach but didn't mention the disagreement over the scope of the overhaul and was conspicuously silent about his view on Gillibrand’s broader legislation.
During the 2020 presidential campaign, however, when Biden was asked whether he supports the more sweeping Gillibrand-Speier approach, he replied: “Yes, yes, yes.”
The New York Democrat, in a virtual news conference with the Defense Writers Group on Thursday, said Biden called to congratulate her when her bill obtained 66 co-sponsors, including herself — enough to overcome a filibuster. That milestone occurred in late spring.
“I spoke to President Biden. I'm not going to say what he said because that would be inappropriate of me to relay that conversation,” Gillibrand said. “But it was essentially a congratulatory call when I got 66 co-sponsors. And there was an indication that he would love to sign that into law. So I believe that the president 110 percent supports what we're doing.”
While Gillibrand’s comments suggest Biden would be willing to sign the senator’s bill into law if it arrived on his desk, it still remains to be seen whether he can avoid a public split with the brass over the issue.
Regardless, Congress appears poised to send Biden legislation along the lines favored by Gillibrand and Speier whether or not the military supports it and regardless of the president's position.
The House appears likely to pass Speier’s bill, which has the backing of influential Republicans such as Michael R. Turner of Ohio.
Not only does Gillibrand have a supermajority of the Senate, she also seems to have a majority on the Armed Services Committee despite the opposition to her broader approach from Rhode Island Democrat Jack Reed, the panel’s chairman, and James M. Inhofe of Oklahoma, the committee’s top Republican.
That is also the case despite the fact that some Republicans on the committee are uncommitted, publicly at least, and even though Angus King, an independent from Maine and co-sponsor of Gillibrand’s bill, seemed to suggest in a published report this week that he is reconsidering supporting the broader approach favored by Gillibrand.
Gillibrand also told reporters Thursday that she intends to seek a vote on her measure as an amendment to the fiscal 2022 defense authorization bill, or NDAA, which the Senate Armed Services Committee will write next week.
Moreover, she said, even if the committee adopts her proposal, she plans to also get a Senate vote on a freestanding version of her bill because, she said, she is wary of her provision being stripped from the NDAA in conference.
Gillibrand has sought repeatedly in recent weeks to get a Senate vote on her stand-alone bill but has faced objections. The pushback has been led by Reed, and his disagreement with Gillibrand has become an unusually public airing of an intra-party spat.
Senate Majority Leader Charles E. Schumer has not filed cloture on Gillibrand’s bill. But Gillibrand said Schumer has assured her the measure will get a vote later in the year after other major legislative priorities have cleared.
Gillibrand said the measure could be done in a day. But, she said, Reed’s objections could stretch that out as much as two weeks.
Gillibrand predicted a vote on her measure as a stand-alone bill “in the fall.” Schumer, she said, “supports the measure and has voted for it in the past, and he has told me that he will give me a vote.”
The Senate Armed Services subcommittees begin marking up their portions of the fiscal 2022 NDAA on July 19. Five of the seven panels will mark up behind closed doors in classified sessions, as will the full committee. But the Personnel panel, which Gillibrand chairs, will be open on July 20.
Gillibrand didn't say whether she would offer her military justice amendment at the open Personnel markup or at the closed full committee markup.