A bipartisan group of several dozen lawmakers from both chambers urged Armed Services Committee leaders on Tuesday to write a National Defense Authorization Act that would substantially change the military justice system. 

Forty-four senators and 22 representatives, in a letter obtained by CQ Roll Call, said Congress should send the president a final fiscal 2022 NDAA that includes a provision adopted by the Senate Armed Services Committee that would create teams of trained military prosecutors to make charging decisions on most major crimes. The prosecutors would not serve in the chain of command of the accused or the victim.

“Putting serious criminal cases in the hands of independent military prosecutors is a commonsense reform that will professionalize our military justice system,” the 66 lawmakers wrote.

The authors of Tuesday’s letter represent less than a quarter of the 283 lawmakers who favor this approach.

Sixty-six senators — enough to overcome a filibuster — have sponsored a stand-alone bill by New York Democrat Kirsten Gillibrand that forms the basis of the Senate Armed Services provision.

In the House, 217 representatives have backed a companion measure by California Democrat Jackie Speier. 

Gillibrand and Speier chair the respective Armed Services subcommittees that oversee military personnel programs. 

Competing approaches

In the current military justice system, top officers who are not necessarily trained in the law are empowered to decide whether to convene courts martial for serious criminal allegations. 

Congress is poised to change that system, after years of concerns that sexual assault in the ranks, in particular, is not prosecuted enough — but the question now is how lawmakers will alter the system.

The House’s version of the NDAA, which passed in September, would create a system similar in many ways to the Gillibrand-Speier proposal. But instead of removing decisions on most major crimes from the chain of command, the House measure would remove only decisions on sexual or related crimes. 

The Pentagon favors the House’s more circumscribed approach. 

As a presidential candidate, Joe Biden endorsed the broader Gillibrand-Speier solution. But he has not indicated as much while he has been president.

Most of the lawmakers who oppose the Gillibrand and Speier approach are Republicans, though Senate Armed Services Chairman Jack Reed, D-R.I., has also blocked Gillibrand’s efforts to get a floor vote on her bill.

Complicating the picture, the Senate measure includes not just Gillibrand’s provision but also an amendment by North Carolina Republican Thom Tillis that largely mirrors the more limited House approach. 

The Congressional Research Service, in an October analysis of the competing proposals, found that only the Gillibrand provision in the Senate bill would set up a military prosecution system that is fully independent of the chain of command.

Concerns about conference

When members write the final defense authorization bill, they have to sort all this out. 

The Senate bill is the chamber’s pending business, but the NDAA’s progress there has been stymied by partisan spats. 

If the Senate stays stuck, House and Senate Armed Services leaders could reconcile the two versions into a final bill in an informal conference and then have the two chambers vote up or down on it.

Gillibrand has publicly expressed worries that conferees, whether formal or informal, could jettison or dilute her provision. That concern was reflected in Tuesday’s letter.

“It is outrageous that the Senate and House Armed Services Committees would even consider stripping out a provision that is backed by a bipartisan majority in both chambers and has been included in the Senate version of the bill,” the members wrote. “Sexual assault in the military is a serious concern and demands a real solution, not a watered-down provision slipped in the final bill behind closed doors.”

Support for a bigger change

The Gillibrand-Speier approach has the backing of many military and veteran service organizations, 15 of which wrote their own letter to Armed Services leaders last week on the subject.

A group of 29 state attorneys general made the same case in another letter this month to congressional leaders.