Senator: Changes to military justice must go beyond sexual matters
There is now broad support for the use of independent military lawyers to deal with cases of sexual misconduct, but Gillibrand is promoting legislation that goes beyond that, extending this change to all major crimes. Senior Pentagon officials and key lawmakers are open to sexual assault change, but say its broader application requires a lot more study and debate.
In an interview with The Associated Press, Gillibrand said broader change is needed to tackle racial injustice within the military, where studies have found black people are more likely to be subjected investigations and arrests for professional misconduct. She intends to insist on this point in the coming days.
When asked if she could compromise on her bill, Gillibrand said the time had passed. “We’ve been doing it for eight years. We’ve done something every year, and some things just don’t work. You need this large-scale 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 issues of sexual misconduct. Victims – mostly women – have long said they are reluctant to press charges of sexual assault or harassment because they fear they will not be believed or face retaliation. They complained that the allegations are sometimes dismissed by a good network of boys among unit commanders or that attackers get away with minimum sentences.
These complaints resonated and support grew on Capitol Hill and the Pentagon, where senior defense officials recognize that, despite years of effort, they have made little progress in addressing sexual misconduct in communities. ranks. Secretary of Defense Lloyd Austin and General Mark Milley, Chairman of the Joint Chiefs of Staff, for the first time said they were ready to drop charges of sexual assault and harassment from the chain of command .
But both also said extending the change to all major crimes would require more time and scrutiny.
Likewise, Senator Jack Reed, chairman of the armed services committee, supports the change for sexual misconduct and said this week he believes it will get committee approval. But he said he wanted a more in-depth discussion in 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 pass a bill that cannot be implemented effectively or on time, creates too much work for too few qualified military judges,” says jeopardize the prosecution, lead to the overturning of convictions on appeal, or lead to cases neglected because the necessary attention cannot be given to them, ”he said.
Reed, a Democrat from Rhode Island, said Pentagon estimates indicate the larger bill would require more qualified lawyers than the department, and its implementation will take 180 days. He has also repeatedly opposed Gillibrand’s efforts to gain unanimous approval to submit his bill separately to the entire Senate for a vote, saying it should be included in the comprehensive bill on defense.
Asked about the cost, Gillibrand said it would be “very little” because prosecutors are already in place and they are already taking cases to court.
The Pentagon, however, believes it won’t be that simple, and that if lawyers are taken off the chain of command to deal with 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 vast mission envisioned by Bill can be carried out by a small group of elite JAGs in a sequel somewhere in Northern Virginia.
Johnson said a change to crimes of sexual assault was long overdue, but added: “Congress should be careful to find a solution proportionate to the problem at hand, and not go too far.”
Gillibrand, who has 65 other Senate supporters for his bill, acknowledged that overcoming opposition from committee heads would be a challenge.
“The opposition of the president and the rank member to this reform is very problematic if this bill is referred to 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 board set up by Austin recommended a similar change for sexual misconduct, but did not consider other crimes in its study. His plan would have the judge advocates report to an office of the Special Chief Prosecutor for Victims headed by civilians, and they would decide whether to indict someone and whether the charge goes to court martial. . The panel is expected to deliver a report on victim prevention and support programs to Austin shortly, and will then send its own recommendations to the president.
The Pentagon, Gillibrand said, will use the panel’s initial report “to confuse members of Congress, and they’ll try to cover their tracks and say, we’ve looked at this before and they’ve only recommended that the sexual assault come out. of the chain to order. “
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 change to sexual assault would be discriminatory – setting up what some call a “pink” court to deal with crimes typically involving female victims.
“I am deeply concerned that if they limit themselves to sexual assault, it will really hurt women in the military. It will marginalize them further, undermine them further and they will be seen as receiving special treatment, ”she said.
Eugene R. Fidell, a military law expert at New York University Law School, said a separate system that largely benefits women would undermine the cohesion of the unit. And he noted concerns from opponents that removing all major crimes from the chain of command could result in fewer prosecutions. He said it was possible, but added that independent lawyers would have to make those decisions, and the result would be a higher conviction rate.
Gillibrand agrees to continue going to the Senate, seeking that his bill be considered separately. “I will continue to do this until I convince Jack Reed that he should not be running for this bill,” she said.