Clarified Dec. 8 | The newly released defense authorization bill for fiscal 2023 would all but complete a decadelong campaign to overhaul the tradition-bound military justice system, advocates of the change say.
The measure would achieve changes in areas where these advocates contend the fiscal 2022 NDAA fell short. The fiscal 2023 measure was released Tuesday and is expected to go to the White House for enactment soon.
The new bill would put the finishing and critical touches on the fiscal 2022 bill’s transfer of authority over prosecutions for major crimes from military commanders, where they have long resided, to professional prosecutors who will start work late next year.
The changes have been driven from the start by many lawmakers’ concerns about thousands of sexual assaults and rapes in the military each year, a problem that surveys show has only grown worse. According to the latest anonymous survey, covering fiscal 2021, there were 36,000 rapes and sexual assaults that year just among those on active duty, with thousands more sexually harassed — even as Congress and the Pentagon have heightened their focus on the scourge.
In the decade since the legislative campaign began, a large swath of Congress, including a critical mass on the Senate Armed Services Committee, has completely changed its mind on how courts-martial should address major crimes. Pentagon leadership, after years of staunch resistance, finally surrendered almost completely this year and only after the political tide had turned in Congress.
“It’s a huge milestone,” said Sen. Kirsten Gillibrand, D-N.Y., referring to the fiscal 2023 NDAA in an interview, in which she provided a detailed insider’s account of how she worked to get key senators to change strongly held views.
“The most important thing, and it seems so simple, it’s just don’t give up, because the day you give up is the day you lose,” she said.
Gillibrand, who chairs the Armed Services Subcommittee on Personnel, has been Washington’s most visible advocate for removing authority over prosecutions of rapes and other major criminal allegations from the chain of command. The officers who preside over these cases, she has long said, rarely have legal training and may have a relationship, good or bad, with the accused, the accuser or both — an inherent conflict.
But Gillibrand did not do it alone.
Rep. Jackie Speier, D-Calif., herself a victim of sexual assault when she was a congressional aide, and who also survived the brutal Jonestown massacre after being shot, first offered a bill, the STOP Act, to remove sexual assault prosecutions from commanders in 2011.
Speier chairs the Military Personnel panel on the House Armed Services Committee, which has also approved numerous provisions, including many that reflect Gillibrand’s proposals.
Commanders retained powers
Many lawmakers and other observers thought the fiscal 2022 NDAA accomplished the changes that advocates have sought — the culmination, they thought, of some 250 provisions enacted to deal with the issue over a decade-plus.
For instance, Senate Armed Services Chairman Jack Reed, D-R.I., said on the floor last year that the fiscal 2022 NDAA represented “sweeping and historic reforms” and would move “all meaningful prosecutorial authority” out of commanders’ hands.
Speier, too, heaped praise on the law, though she said it should have made sexual harassment one of the crimes covered by independent prosecutors.
But Gillibrand and some legal experts were more angry than happy about the fiscal 2022 law.
The fiscal 2022 law did break with the past. It made sexual harassment a military crime. And it gave the soon-to-be created special trial counsels, who will be legally trained military officers appointed by the service secretaries, the authority to make binding recommendations on whether to prosecute any of 11 sexual and related crimes, not including ones unique to the military like desertion, that are punishable by a year or more in prison. Included were crimes such as rape, domestic violence, stalking, murder, manslaughter and kidnapping.
However, there was a problem. Under that law, a military officer in the chain of command of the accused still would be the public face of the court-martial and retain what the military calls the convening authority.
That officer would still have the power to select juries (or “members” of the court-martial). The commander also could discharge an accused person instead of going to trial, or could grant the accused immunity from prosecution.
While her colleagues enthused, Gillibrand fumed.
“They were saying, ‘Oh, this is the best thing ever,’” Gillibrand recalled. “And I was like: ‘No, it’s not. You don’t fix the problem if you leave it this way.’”
A question of independence
By comparison, the fiscal 2023 NDAA would now require the president to move those leftover powers to the special counsels or to other officials.
What’s more, the new bill would slightly increase, from 11 to 14, the crimes covered by the new special prosecutors, adding sexual harassment, death or injury of an unborn child, and deposit of obscene matter.
The measure would all but finish the nearly decadelong process of rewriting critical courts-martial rules, said Don Christensen, a former top Air Force prosecutor.
“The new NDAA is incredibly significant, because those remaining powers allowed a commander or convening authority to undercut what the prosecutor was trying to do,” said Christensen, now president of Protect Our Defenders, a human rights group specializing in military issues.
Christensen would still like to see more changes. These include: a standing court system instead of ad hoc courts-martial; a single prosecution system for all major crimes that are not military-unique, meaning several dozen, not just 14; and a requirement for unanimous verdicts of the military equivalent of juries, not the current three-quarter majorities.
The fiscal 2023 NDAA would create “the almost-final stage of a truly independent prosecution system,” he said.
Even so, much work remains, he and others say. Advocates acknowledge that courts-martial changes address the major crimes after they have happened. Preventing them is obviously preferable.
But Gillibrand and her allies hope that a more independent and professional judicial process will make more victims come forward, which in turn can help deter the crimes. Currently, only an estimated quarter of assaults are reported.
Gillibrand reflected recently on how she, Speier and others pulled Congress and the military slowly but surely to this point.
In May 2013, Gillibrand first introduced what she then called the Military Justice Improvement Act.
Outraged by press reports about rapists in the ranks and instances of impunity, her initial bill sought to take commanders out of the prosecution process for nearly three dozen crimes — not just rape but also murder, arson and certain financial crimes that she says predators sometimes commit in tandem with rape or harassment.
Supporters of the change first had to overcome the view that a commander’s authority to enforce discipline was endangered if criminal prosecutions were not in his or her job description, even though many U.S. allies had more independent prosecution systems in their militaries for years.
The Pentagon has been dead set against all but minimal changes to the chain of command’s court role. Even a 2021 change of position among senior military officials and top civilians was still not a complete embrace of what some saw as the required change.
In 2013, for example, Army Gen. Martin E. Dempsey, then chairman of the Joint Chiefs, wrote lawmakers to say that commanders are responsible for order in the ranks, and “a message that commanders cannot be trusted to mete out discipline will undermine this responsibility.”
Texas case as a pivot point
Congress, too, was reluctant to accept a sweeping overhaul at first. But that would change.
In 2014, Gillibrand fell five votes short of the 60 needed to proceed to her military justice bill. Ten Democrats joined with the lion’s share of Republicans in voting not to invoke cloture. In 2015, her measure again fell short of the 60-vote threshold to be included in the fiscal 2016 NDAA.
Many of the nay voters in both parties from 2014 are no longer in the Senate. But of those who are still there and who serve on the Armed Services Committee, several changed their minds only this year after relentless lobbying from Gillibrand, including meetings in every new Congress, she said. And most of the committee’s newcomers in the last few Congresses, including just over half the GOP members, ended up backing Gillibrand by this year.
Getting there was a slog.
Several moderates on Senate Armed Services were among the no votes in 2014. Four of them still serve in the Senate: Democrats Reed and Mark Warner and Tim Kaine of Virginia, plus independent Angus King of Maine.
“Can we give it a little more time?” Gillibrand said the moderates asked her for several years.
In 2020, however, came a pivot point when Vanessa Guillen, an Army specialist at Fort Hood, Texas, was murdered. Her family later said she had been sexually assaulted, and a subsequent Army investigation found that Fort Hood had a climate that was “permissive of sexual harassment and sexual assault.”
That assessment made a big difference, particularly for Warner, Kaine and King, Gillibrand recalled, calling the report “the real coup de grace.”
As for Republicans, three-quarters of whom had voted against her proposal in the 2014 cloture vote, they remained largely opposed, even after the Fort Hood news. One notable exception was Iowa’s Charles E. Grassley, the top Republican on the Judiciary Committee, who became the first GOP senator to support Gillibrand’s efforts.
Ernst weighs in
The outward signs that many closed-door conversations were yielding results first became apparent in April 2021, when CQ Roll Call disclosed that Gillibrand’s proposal had at least 60 Senate votes, enough to overcome the kind of filibuster that had blocked her in 2014. The bill eventually netted 66 Senate co-sponsors.
In the House, a companion bill by Speier had at least 217 sponsors as of last November, nearly a majority.
A number of key Republicans on the Senate Armed Services Committee came around to supporting Gillibrand from about 2020 to at least this year, she said, and a big reason why was her alliance with Sen. Joni Ernst, the Iowa Republican.
Gillibrand recalled this month how she had heard then-candidate Ernst say during her 2014 Senate campaign that she thought the military justice system needed prosecutions independent of the chain of command.
So when Ernst arrived in Congress in 2015, Gillibrand said she excitedly asked her: “Did you mean it? Can you work with me on this?”
It would be six more years before Ernst publicly signaled her support.
Ernst, an Army combat veteran, also revealed in 2019 that she had been raped in college. Her personal history, both her service and her pain, seemed to help her sway a handful of key Republicans who had been wavering on the issue and who ultimately backed Gillibrand’s proposal this year.
Ernst “brought at least 10 Republicans with her,” Gillilbrand said.
The military maneuvers
By 2021, the Pentagon had reversed itself on the issue — almost 180 degrees but not quite.
That year, Defense Department leaders endorsed a shift of prosecutorial powers from commanders to legal specialists, but only for sexual crimes and certain closely related offenses.
And the military service chiefs only changed their long-standing position grudgingly.
Removing commanders from prosecution decisions “may have an adverse effect on readiness, mission accomplishment, good order and discipline, justice, unit cohesion, trust, and loyalty between commanders and those they lead,” wrote Army Gen. Mark Milley, the chairman of the Joint Chiefs, in a letter to senators last April. “However, in the specific and limited circumstance of sexual assault, I remain open-minded to all solutions.”
Then, a few months later, in June, Defense Secretary Lloyd J. Austin III, a retired four-star Army general, became the first civilian Defense Department leader to say essentially the same thing as Milley.
“I fully support removing the prosecution of sexual assaults and related crimes from the military chain of command,” Austin announced.
By that time, however, Austin’s and Milley’s words were more an acknowledgment of political reality than a catalyst.
Still, even though the brass only wanted to change how a limited number of crimes were prosecuted, Gilllibrand says the military’s new stance helped propel her efforts.
On the heels of Austin’s announcement, Gillibrand got her military justice bill into the Senate Armed Services Committee’s fiscal 2022 NDAA on the strength of a Personnel Subcommittee vote in July.
The House, meanwhile, had somewhat similar language in its NDAA, though it was limited to sexual crimes.
However, in December, House and Senate negotiators who wrote the fiscal 2022 bill’s final version in an informal conference committee stripped from it the new prosecutors’ full set of proposed authorities and kept key powers still in commanders’ hands.
Reed and other Armed Services leaders celebrated the change. But Gillibrand was irate. She felt her legislation had been, in her words at the time, “gutted,” despite support of more than 280 members in both chambers.
Reed, a former Army captain, was among the last Democratic holdouts in favor of retaining commanders’ traditional powers.
When Gillibrand tried to get a Senate vote on her stand-alone bill in 2021, she was blocked 23 times, mostly by Reed.
Reed said then that he wanted the committee to decide, not the Senate.
The two senators’ dispute had gone very public. Gillibrand openly accused Reed and other Armed Services leaders — “four men in a closed room,” she called them — of doing the bidding of Pentagon officials who were “willing to pretend” they supported change.
Lawmakers, she said at the time, “are not supposed to do what the generals have asked us to do.”
Gillibrand now chalks up last year’s dustup to a misunderstanding of what the fiscal 2022 bill would and would not accomplish. She said she has been working side by side with Reed since then to ensure the fiscal 2023 bill had an outcome that was, in her view, actually worth celebrating.
Fiscal 2023 vote
When the fiscal 2023 NDAA process got underway this year, Gillibrand aimed at restoring the parts of her legislative vision that had been removed the year before.
The full Senate Armed Services Committee voted for the first time this year on her proposal. It was an amendment to the initial Senate NDAA bill and was adopted 19-7.
Supporters included Armed Services Republicans who had been with her for some time, such as Ernst, Tommy Tuberville of Alabama and Josh Hawley of Missouri. She also netted the backing of GOP latecomers Dan Sullivan of Alaska, Kevin Cramer of North Dakota and Thom Tillis of North Carolina. Also voting with Gillibrand now was Deb Fischer, R-Neb., who had voted against cloture on Gillibrand’s bill in 2014.
The seven no votes on the committee this year were Republicans James M. Inhofe of Oklahoma, Roger Wicker of Mississippi, Tom Cotton of Arkansas, Mike Rounds of South Dakota, Rick Scott of Florida and Marsha Blackburn of Tennessee, plus Democrat Joe Manchin III of West Virginia.
In the version of the fiscal 2023 NDAA made public on Tuesday, commanders would no longer exercise all the key powers over prosecutions that Gillibrand has long backed. It also would slightly expand to 14 the number of crimes the new special trial counsels are responsible for prosecuting.
Gillibrand had originally wanted almost three times as many crimes covered. Going forward, she said, she will work to augment that list in future NDAAs, because the process of legislative compromise has now produced two distinct military prosecution systems, one command-dominated for certain crimes and another professionalized for others. She had wanted a single system for major crimes and will keep at that.
But the heaviest lifting seems to be done for now.
It lasted nearly a decade, time that was measured one senator at a time.
“You have to build your coalitions when you can and where you can — and not give up on that,” she said.
This report was clarified to reflect the inclusion of sexual harassment among crimes covered by special prosecutors and when their authority goes into effect.