Gillibrand determined to force change in military justice system, but it's an uphill battle
The debate over a commander’s role in the military justice system isn’t over.
Sen. Kirsten Gillibrand’s legislative efforts to remove prosecutorial authority from commanders in most serious crimes failed last year, but the Democrat from New York will reintroduce her bill during the new session of Congress, which begins today.
And while Gillibrand is determined to force change, she will face even more hurdles pushing the bill forward as a member of the minority party.
She’s not without Republican supporters: Sen. Chuck Grassley of Iowa, Sen. Susan Collins of Maine, Sen. Rand Paul of Kentucky, Sen. Ted Cruz of Texas and Sen. Dean Heller of Nevada stood with her at a press conference in favor of the bill in early December. Sen. Mitch McConnell, then the Senate minority leader, voted for the legislation in March.
Yet when she tried to force a vote just a few days before the Senate adjourned last year, Sen. Lindsey Graham, R-S.C., a powerful member of the Senate Armed Services Committee, would not have it.
“You’re going too far,” Graham said. “This is no longer about reforming a system. This is a political cause going out of control.”
The bill died without a vote.
“The DOD has failed on this issue for over 20 years now,” Gillibrand said, “and the scandals of the last 12 months and the latest data shows that they still don’t get it.”
Five votes short
Gillibrand first introduced the legislation in November 2013, but she was not the first member of Congress to propose removing prosecution authority from the chain of command. Rep. Jackie Speier, D-Calif., in 2011 introduced the Sexual Assault Training, Oversight and Protection (STOP) Act, which differs from Gillibrand’s legislation in that it would remove prosecution authority for only sexual assaults – not for other serious crimes, like murder or robbery.
Speier has reintroduced the STOP Act in each session of Congress since, but it has never been voted on by the House.
Gillibrand had better luck gaining support for her bill, but in March, it fell five votes short of the 60 needed to break a filibuster threat in the Senate.
She began a new push for the bill just after Thanksgiving, standing with the former chief prosecutor of the Air Force and a bipartisan group of colleagues two days before the Department of Defense released its report outlining how many sexual assaults were officially reported and how many more they estimate were not reported.
Gillibrand’s timing appeared to be calculated to get in front of the report, which President Barack Obama ordered in 2013, saying he would consider additional reforms if he didn’t see the kind of progress he expected.
Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, has consistently fought Gillibrand’s efforts to remove prosecution authority from the chain of command. But in March, he seemed open to a different path if there was no improvement.
“If we haven’t been able to demonstrate we’re making a difference, you know, then we deserve to be held to the scrutiny and standard,” he said.
At her press conference before the results were released, Gillibrand said the military had failed to show that progress.
“We are here to say the military has not been able to demonstrate they have made a difference, and they need to be held to that scrutiny and standard this year,” she said.
Yet, the same day, Sen. Claire McCaskill, D-Mo., wrote an opinion piece in the Huffington Post saying nearly the opposite.
“One year ago, a sexual assault survivor in the U.S. military faced a daunting landscape,” she wrote. “Things are different now.”
The stakes were high, and many assumed the numbers would reveal who was right and who was wrong.
But instead of providing a clear picture, the data lends ammunition to both camps: those who believe commanders should not have the ability to decide which charges their troops should stand trial for, and those who believe removing that ability would diminish commanders’ accountability.
The numbers debate
Estimates based on an anonymous survey indicated that the number of sexual assaults decreased by about 27 percent from 2012 to 2014, while the number of reports increased. Feedback from the troops indicated that the vast majority are satisfied with the climate in their command.
Yet even with the dip, the estimated number of sexual assaults is virtually identical to the estimate from 2010 – before any of the recent reforms. And though servicemembers expressed confidence in their commands’ climate in regard to sexual assault, two-thirds of the victims surveyed said they had experienced retaliation after reporting an assault.
Gillibrand called the results disappointing, while McCaskill, Graham and military leaders including Defense Secretary Chuck Hagel said the numbers showed the reforms are working.
It’s difficult to tell which side will win out, said Eugene Fidell, who teaches military law at Yale University and supports Gillibrand’s bill.
“It’s very hard to handicap it,” he said. “There are so many numbers floating around that a determined partisan could spin the story whichever way.”
It’s clear the military has a sexual assault problem, Fidell said, but the answer does not reside in statistics.
“We are dealing with a structural problem, and the structural problem is there whether you have low numbers, numbers that you feel are just right, or numbers that are too high,” he said.
Anu Bhagwati, president of the advocacy group Service Women’s Action Network, also supports Gillibrand’s bill, and said she hopes to see it enacted soon.
“Clearly victims don’t feel safe,” she said after the results of the DOD’s survey were released. She worries that if Congress doesn’t continue to debate how to reduce sexual assaults in the military and there is a lull in pressure from Capitol Hill and the public on the military, things will return to how they were.
She said the way the military handles sexual assaults is the “typical bureaucratic way to deal with a cultural problem: Let’s fix it after it happens.”
The advocacy group Protect Our Defenders also is working to keep up the momentum: Shortly after the DOD report was released, the group launched an online campaign asking Obama to change the military justice system.