The Senate Armed Services Committee approved a defense authorization bill last week with seemingly contradictory instructions to the Pentagon on how to overhaul the military justice system in order to combat sexual assault and other crimes in the ranks.
The bill, which was marked up mostly behind closed doors and has yet to be published, would replace the current system overseen by military commanders with two different prosecutors’ organizations in the military services making prosecution decisions on many of the same crimes and operating on two different timelines, according to aides, committee statements and portions of the draft measure obtained by CQ Roll Call.
Proposals to change how courts-martial get started have fallen mainly into two camps in Washington. One group, led in the Senate by New York Democrat Kirsten Gillibrand and backed by a supermajority in the chamber, wants to change how the military makes prosecution decisions on most felonies, a sweeping overhaul that would take such decisions out of commanders’ hands and instead empower new prosecutors' offices to make such calls.
The other group — led in the Senate by Rhode Island Democrat Jack Reed, the committee’s chairman, and backed by the Pentagon — wants to task the new prosecutors' offices with handling sexual crimes and related offenses but leave the rest with the commanders.
The committee’s new fiscal 2022 NDAA effectively says “yes” to both camps.
Reed and Gillibrand issued a joint statement when the committee finished its work, saying it "makes historic changes to the military justice system and combats the scourge of military sexual assault."
But the bill would create one prosecutor's office that reflects Gillibrand's plan and another that mirrors Reed's. In fact, as the bill is currently written, prosecution decisions on nine crimes are the responsibility of both offices.
Some say the two provisions are in conflict, others that they are complementary.
Yet, even if the offices would be able to operate simultaneously and harmoniously, the Senate bill does not yet spell out how they would work together, according to aides on both sides of the debate who are familiar with the entire measure.
‘Special victim prosecutors’
Gillibrand's proposed change, which the committee voted to incorporate in full in the new NDAA, would be enacted six months after the NDAA becomes law.
But the committee also adopted an amendment by North Carolina Republican Thom Tillis that is reflective of Reed's position.
Tillis’ amendment would set up “special victim prosecutors” in each service to decide on the disposition of allegations on nine mostly sexual crimes, including rape, sexual misconduct, nonconsensual pornography, domestic violence, stalking, sexual harassment (a proposed new military crime under the bill) and retaliation against those who report such offenses through official channels, according to the amendment text, which has yet to be made public.
Tillis’ amendment would not take effect until two years after enactment, a much longer timeline than the one in Gillibrand’s amendment. Supporters of Gillibrand's proposal do not think the timing difference would matter, as the special victims unit could be incorporated into the services' proposed new courts-martial offices.
Tillis did not reply to a request for comment on the issue.
The Gillibrand and Tillis provisions are “completely compatible,” Gillibrand told CQ Roll Call in a statement.
Gillibrand said her proposed office would be akin to a district attorney, while Tillis’ office would be like a special victims unit within the DA's office.
Gillibrand added that she favors Tillis’ proposal, which is based on recommendations from a recently completed “Independent Review Commission” at the Pentagon.
“Working together, the two will create additional processes for special victims cases to respond to issues unique to those kinds of charges and give all service members a more professionalized justice system,” Gillibrand said.
But James M. Inhofe of Oklahoma, the committee’s top Republican, told CQ Roll Call he believes the two structures created by the bill are in direct conflict in terms of the schedule of their implementation and the ambit of the duties.
The committee “did not reach consensus on the scope and timeline for implementing these changes or how to do this in a way that protects our service members without overly burdening the department and making it impossible to deliver justice,” Inhofe said. “We have several options on the table that will now need to be ironed out as we continue consideration of this legislation.”
Inhofe has opposed removing officers in the chain of command from any prosecution decisions.
Reed did not reply to a request for comment.
Don Christensen, a former top Air Force prosecutor, said the two offices that the Senate’s NDAA would create can complement one another, but how they would interconnect still needs to be clarified.
“This has to be resolved, and I think it can be,” said Christensen, president of Protect Our Defenders, a human rights group that specializes in military issues. “It is progress, though, that the debate is now over how far reform should go, not whether it should happen.”
House ready for the debate
The House, too, may soon take up whether and how to overhaul the military justice system. House Armed Services subcommittees plan to mark up their portions of the NDAA this week, though the full committee does not plan to finish its work until Sept. 1.
Rep. Jackie Speier, D-Calif., the chair of the Armed Services Military Personnel panel, has sponsored a companion to Gillibrand’s proposal.
Lawmakers who support limiting the change to covering just sexual crimes and related offenses could argue in the weeks ahead that Congress should do what the military wants (or at least can accept): adopt the Tillis amendment and get rid of the Gillibrand proposal. They could make that move at any point in the process, including in the House-Senate conference writing the final version.
But such an effort would face strong pushback, given the widespread support Gillibrand’s proposal enjoys. Sixty-five senators have co-sponsored her stand-alone bill. It could even complicate the NDAA’s road to passage, a journey that legislation has completed through to enactment for 60 straight fiscal years.