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Senate panel adopts Gillibrand’s military justice proposal

Military leaders oppose change, which now faces full committee vote

New York Sen. Kirsten Gillibrand touts her proposal to overhaul the way the military prosecutes serious crimes at an April press conference.
New York Sen. Kirsten Gillibrand touts her proposal to overhaul the way the military prosecutes serious crimes at an April press conference. (Tom Williams/CQ Roll Call)

The Senate Armed Services Personnel Subcommittee voted overwhelmingly Tuesday to change how the military decides to prosecute most major crimes.

The panel rendered that decision just before approving by voice vote its portion of the fiscal 2022 defense authorization bill — including authority for a 2.7 percent pay raise for Americans in uniform and Defense Department civilian workers. The panel also adopted a package of 15 uncontroversial amendments, the details of which were not disclosed.

When the full committee markup begins Wednesday behind closed doors, it will be the scene of a robust debate on military justice — not whether to change the system, but how much.

The Personnel panel voted 5-1 to adopt an amendment by its chair, New York Democrat Kirsten Gillibrand, that would create special prosecutors’ offices in the military services to decide which felonies go to courts martial. Such decisions are now made by a handful of generals and admirals in the chain of command. Under Gillibrand’s amendment, the generals would retain control only over military-unique crimes, such as desertion.

Gillibrand’s proposal reflects her legislation on the subject, which has garnered 66 co-sponsors.

Republicans Josh Hawley of Missouri and Tommy Tuberville of Alabama backed Gillibrand’s amendment, while Thom Tillis of North Carolina said he voted no simply because he believes the full committee should handle the matter.

Hawley, a former prosecutor, said at the markup that it is imperative that the procedures and standards are uniform in the military justice system and that “trained military prosecutors make the final call” on going forward with cases.

Full committee fracas ahead

Gillibrand said she is bracing for the full committee debate and beyond.

“Essentially, this is round one of a 10-round fight,” Gillibrand told reporters after securing adoption of her amendment in the subcommittee.

Gillibrand is opposed on this issue on the full committee by Democrat Jack Reed of Rhode Island, the chairman, and James M. Inhofe of Oklahoma, the ranking Republican.

Reed and Inhofe would prefer to limit the change to sex crimes and related offenses such as domestic violence. The Joint Chiefs of Staff have grudgingly acceded to that limited change after years of military opposition to it, and it is backed by Defense Secretary Lloyd J. Austin III.

Gillibrand told reporters Tuesday that Reed has an amendment in the general provisions section in the full committee mark that would adopt the more limited change.

She said her amendment taking the overhaul further is now part of what the full committee will debate and any changes to her language would have to be voted on. She said the Personnel amendment “will supersede any language in the chairman’s mark that is in conflict.”

A Republican committee aide disputed Gillibrand’s statement that her amendment supersedes the chairman’s mark. “The two sets of provisions would be competing, and this will need to be addressed in the rest of the markup process,” the aide said.

Gillibrand also said she will attempt to enhance Reed’s provision in the full committee so that it includes more of the recommendations put forth recently by a Pentagon commission on the issue.

Whether the committee will alter Reed’s amendment or retain Gillibrand’s or some combination remains to be seen.

It appears that Gillibrand has the votes to include her provision in the final committee bill.

She remains concerned, however, that her amendment could be diluted or deleted in a conference with the House reconciling the bill’s versions.

“I will pray that it all stays in conference,” she said. “It may not, because that’s been done to us before.”

“If that happens,” she said, Senate Majority Leader Charles E. Schumer, D-N.Y., has assured her of a floor vote on her bill by the end of the year as a standalone measure.

Military construction money

Four of the seven Senate Armed Services subcommittees have approved their portions of the fiscal 2022 defense authorization bill. The remaining markups — three subcommittees and the full committee — are closed and classified secret.  

Earlier on Tuesday, the Readiness Subcommittee approved by voice vote its portion of the bill, after adopting a manager’s package of 28 noncontroversial amendments. The committee did not immediately make the package available.

Dan Sullivan of Alaska, the Readiness panel’s top Republican, said the measure supports President Joe Biden’s $9.8 billion request for military construction and includes $1 billion in unfunded requirements sought by the armed services. He complained, however, that the total amount of money for military construction is one of the lowest in history.

Republicans have decried Biden’s proposed $753 billion national defense budget for fiscal 2022, a 1.7 percent increase over the current fiscal year, as insufficient.

Sullivan and other hawks advocate a 3 percent annual increase for defense above inflation. “I think we’re going to win” that argument, Sullivan told reporters after the markup Tuesday.

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