As lawmakers gear up for defense bill season, it appears all but certain change is coming to the military justice system in an effort to tackle sexual assault.
The only question remaining is just how broad lawmakers will go.
Biden administration officials, up to President Biden himself, have endorsed taking the decision to prosecute sexual assault and related crimes out of the chain of command.
But dozens of lawmakers, led by Sen. Kirsten Gillibrand (D-N.Y.), want to take almost all major crimes out of the chain of command, saying only changing how sex crimes are prosecuted could create a two-tiered justice system.
Despite their growing numbers, those lawmakers are facing strong headwinds from the Joint Chiefs of Staff and the leaders of the Senate Armed Services Committee, who argue going too far with military justice reform could have detrimental effects on “good order and discipline.”
Even if the Uniform Code of Military Justice (UCMJ) is only changed for sex crimes, “it would be a huge deal,” said retired Col. Don Christensen, president of Protect Our Defenders, an advocacy group for military sexual assault reform that backs Gillibrand’s bill.
The Defense Department “has had a full press effort the last 10 years to stop this,” Christensen added. “They have claimed during that time the commanders alone are responsible and have the ability to make these prosecution decisions. So this is an acknowledgement, at least from the secretary of Defense and President Biden, that the commanders were wrong, that they aren’t the solution. In fact, they’re part of the problem.”
On Friday, the Biden administration formally rolled out the findings of the Independent Review Commission (IRC) that Defense Secretary Lloyd Austin tasked with finding ways to stamp out sexual assault in the ranks after years of the Pentagon’s failure to adequately address the issue.
Among the report’s recommendations was to take the decision to prosecute sexual assault, sexual harassment and related crimes such as domestic violence away from military commanders and give it to independent special victims prosecutors.
Austin and Biden both endorsed the recommendation, which would represent a sea change for the military justice system.
“Today’s announcement is the beginning, not the end of our work,” Biden said in a statement Friday announcing his support for the IRC recommendation. “This will be among the most significant reforms to our military undertaken in recent history, and I’m committed to delivering results.”
But changes to the UCMJ are the prerogative of Congress, and military justice reform is expected to be a preeminent issue when the Armed Services committees begin debating the annual defense policy bill later in July.
Gillibrand’s bill, which has the support of more than 60 of her Senate colleagues, including a majority of Senate Armed Services Committee members, would go further than the IRC recommendations.
The bill, which Gillibrand first proposed nearly a decade ago, would affect crimes that aren’t unique to the military that have a sentence of at least one year in confinement. That includes sexual assault, but also other felony-level crimes such as murder.
Gillibrand and her supporters argue the broader reform is needed because sex crimes are often interwoven with other crimes, such as the case of Army Spc. Vanessa Guillen, who was sexually harassed by a supervisor before being killed last year, allegedly by another soldier at Fort Hood.
They have also expressed concern about creating a “pink court” that segregates crimes mostly involving women, stigmatizing victims. Further, they argue, there are racial disparities in military prosecutions that could be helped by taking more crimes out of the chain of command.
“We must resist the urge to create a separate but unequal system of justice within the military and must guarantee a professional, unbiased system for all service members,” Gillibrand said in a statement Friday. “Vanessa Guillén’s memory deserves no less.”
During the 2020 presidential campaign, Biden indicated he would support removing all major crimes from the chain of command. But in a call with reporters about the IRC report, senior administration officials sidestepped a question on whether he supports Gillibrand’s bill.
“This review commission has been squarely focused and was asked to focus only on addressing the problems of sexual assault and harassment in the military,” a senior administration official said. “We’re going to now look to Congress to work out the details for legislating that change.”
Gillibrand has gone to the Senate floor more than a dozen times since late May to try to get a vote on her bill, and on Friday vowed to do so again when the Senate returns from its Fourth of July recess.
But she has been blocked each time by either Senate Armed Services Committee Chairman Jack Reed (D-R.I.) or committee ranking member Sen. James Inhofe (R-Okla.).
Reed supports the IRC’s recommendation, saying in a statement Friday he will include it in his version of the annual defense policy bill known as the National Defense Authorization Act (NDAA).
“This will be a historic and momentous change for the Department of Defense and the military services,” Reed said.
But Reed does not support Gillibrand’s bill and also argues the issue is best handled in the NDAA rather than as a stand-alone vote as she is pushing for.
“Measures that have strong support in the United States Senate don’t sometimes turn out to be the best,” Reed told Rhode Island station WPRI this past week. “I think there were about 78 senators who supported the invasion of Iraq in 2002. I opposed it. … Simply having a long list of co-sponsors is a factor, but the real factor is getting into the details of the bill.”
Inhofe, meanwhile, continues to oppose taking any crimes out of the chain of command. In late June, Inhofe released letters from the chairman of the Joint Chiefs of Staff and the chiefs of the Army, Navy, Air Force, Marine Corps, Space Force and National Guard Bureau warning against the sweeping UCMJ overhaul in Gillibrand’s bill.
“I don’t believe this well-intentioned bill will change anything — in fact, I remain concerned that, as written, it would not reduce sexual assault or other crime in the slightest and would complicate the military justice system unnecessarily,” Inhofe said in a statement on the letters.
In their letters, the Joint Chiefs acknowledged the military needs to better address sexual assault and appeared largely resigned to Congress at least removing commanders from sex crimes prosecutions. But they warned against going further.
“It is my professional opinion that removing commanders from the prosecution decisions, process, and accountability may have an adverse effect on readiness, mission accomplishment, good order and discipline, justice, unit cohesion, trust, and loyalty between commanders and those they lead,” Chairman of the Joint Chiefs of Staff Gen. Mark Milley wrote in his letter.
Still, Milley reiterated that “in the specific and limited circumstance of sexual assault, I remain open-minded to all solutions.”
The officers also expressed concern about the 180-day implementation period required in Gillibrand’s bill, saying that is not enough time to overhaul the military justice system. By contrast, the IRC recommended its proposed UCMJ reform for sex crimes be enacted by Congress this year but not implemented until 2023.
But Christensen, at Protect Our Defenders, predicted the Joint Chiefs’ concerns would not carry as much weight as they have in the past.
“The military has lost credibility on this issue with the vast majority of Congress,” he said. “That doesn’t mean they don’t respect them, but they’ve heard the same song and dance and seen no improvement.”
“I’m 100 percent confident major reforms are coming. It’s just a question of, will we go all the way,” Christensen added.
In the House, Reps. Jackie Speier (D-Calif.) and Mike Turner (R-Ohio) have introduced a bill mirroring Gillibrand’s with support from a bipartisan group of House members.
House Armed Services Committee Chairman Adam Smith (D-Wash.) has endorsed a dual-track approach to trying to reform the UCMJ, vowing to consider the Speier-Turner bill as a stand-alone bill in mid-July and as part of his committee’s NDAA debate.
Smith, who has previously endorsed removing sex crimes from the chain of command, told reporters this past week he was undecided on whether to support removing commanders from the decision to prosecute all major crimes.
While Smith said Gillibrand makes “a reasonably compelling case,” he expressed concern that some misdemeanors often linked with sex assault and harassment, such as domestic violence, would not be affected. Meanwhile, some felonies, such as drug crimes, would also not be covered by her bill, Smith said.
“We have to make this change,” Smith said. “There is no question about it. But, like I said, we’ve got the two approaches, I’m trying to figure out what the best approach is.”