'It's Always a Long Game': Inside Kirsten Gillibrand's Campaign to Overhaul Military Justice

Sen. Kirsten Gillibrand has a large whiteboard in her office displaying the name of every U.S. senator and whether they support the Military Justice Improvement and Increasing Prevention Act, a bill that would shift the decision to prosecute rape, sexual assault and many other felonies from the chain of command to actual prosecutors.

The New York Democrat originally introduced the effort in 2013, but it failed to gain significant traction. She faced an uphill battle against the Pentagon and even her own party to remove commanders, who often have little to no legal training, from legal decisions.

She largely credits a 2012 documentary on sex crimes in the military and the retaliation survivors face as her original inspiration in launching the effort.

"One of my constituents handed me a copy of 'The Invisible War.' [It had] these stories about sexual violence and being retaliated against; I was outraged. That's what propelled me to ask to be on the personnel committee and be the chair when I had a choice of which subcommittee I wanted to chair. ... I've met survivors at Fort Drum [New York] and across the country; each story fuels my fire."

Her bill now has 66 cosponsors, and 70 total supporters, including lawmakers who opposed her earlier efforts. Her broad coalition includes strange bedfellows such as Sens. Ted Cruz, R-Texas; Elizabeth Warren, D-Mass.; Joni Ernst, R-Iowa; Sherrod Brown, D-Ohio; Bernie Sanders I-Vt.; Josh Hawley, R-Mo.; and Minority Leader Mitch McConnell, R-Ky.

Gillibrand told Military.com she isn't done adding supporters. The wide bipartisan backing is virtually unheard of on Capitol Hill with bills of any real consequence.

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Now, she has the support of Rep. Jackie Speier, D-Calif., who introduced a House version of the bill Wednesday to move serious crimes away from the jurisdiction of commanders. The bill also has the backing of House Speaker Nancy Pelosi, D-Calif.

"Removing this longstanding and obvious conflict of interest will give more victims the confidence to come forward and result in greater accountability for perpetrators," Speier said in a statement.

In a dramatic about-face for the Pentagon, Defense Secretary Lloyd Austin said Tuesday he will recommend to President Joe Biden changing how the military justice system handles sex assault and rape accusations. However, he stopped short of endorsing the Senate or House bills or saying whether he backed revamping how other criminal accusations are dealt with. The changes were recommended to Austin by a Pentagon commission.

"In the coming days, I will present to President Biden my specific recommendations about the commission's finding," he told lawmakers at a House Armed Services Committee hearing Wednesday. "But I know enough at this point to say that I fully support removing the prosecution of sexual assaults and related crimes from the military chain of command."

Getting the Pentagon and most of Congress on board has been a legislative ultra-marathon for Gillibrand building relationships on Capitol Hill and earning key allies over the past decade.

"It's always a long game; you need to be patient and bring people along with you," she told Military.com in an interview. "With sexual assault, I've been meeting with 50 senators every year for the past eight years to get them to 'yes.' I've moved 20 from no to yes. It takes time. ... It takes passionate, authentic advocacy. ... People don't have a lot of time or necessarily care about the issues you're trying to advocate for."

An annual Pentagon report released in May found that 6,290 service members had reported rapes, sexual assaults and other incidents of unwanted sexual contact in 2020, a 1% uptick from the previous year. Of the 255 cases that went to trial, 61% resulted in a conviction on at least one charge.

Right now, commanders are given recommendations by Judge Advocate General, or JAG, officers before making decisions. Gillibrand and advocates for her bill argue that commanders have an inherent bias over whether they will prosecute coworkers. However, some are concerned that taking commanders out of the equation will reduce the volume of trials and generate a more permissible environment for predatory behavior.

"We could see less cases going to trial," Victor Hansen, a retired JAG officer and current law professor at New England Law Boston, told Military.com. "A prosecutor, when they look at a case and decide if it should go to trial, they typically ask a much more narrow set of questions."

Hansen said prosecutors often lean heavily on whether they can get a guaranteed guilty conviction. This could lead to accused service members never setting foot in a courtroom. The Defense Department's annual report noted that strong evidence is rare in many cases. A commander might ask fewer legal technical questions and send a service member to trial even if a guilty verdict isn't a slam dunk.

"A prosecutor's question isn't necessarily did this happen or not; their question is can I prove beyond a reasonable doubt that this happened," he added. "It's not whether something happened, it's, can it be proved. You can have a line officer who tells JAG something needs to go to trial to send a message."

'The Long Game'

On top of the military's pervasive sexual assault problem, Gillibrand's military priorities include providing presumptive care for the estimated 3.5 million veterans exposed to burn pits overseas in one of the largest health care efforts since Obamacare.

Gillibrand said she learned about "the long game" after the years-long fight to secure health care for victims of 9/11 who now face serious ailments.

The military toxic exposure issue has faced an almost identical legislative ultra-marathon to provide presumptive care through the Department of Veterans Affairs to veterans exposed to toxins abroad.

"The team we had for burn pits started with the 9/11 bill," Gillibrand said. "That coalition of first responders and advocates really taught me how to elevate an issue and keep it elevated until Congress responds."

The Senate and House are still working on the details of a toxic exposure health care package lawmakers hope to pass this year. However, it's expected to be an enormously expensive bill and could face an uphill battle with Republicans. The issue got mainstream attention through advocacy by Jon Stewart, the former host of "The Daily Show." Gillibrand also garnered support from key veteran advocacy groups and bipartisan backing in the Senate.

Sexual Assault

That same long game has guided Gillibrand's efforts against military sexual assault.

"I've spent a lot of time talking to service members and their families. Sexual assault and toxic exposure are looming so largely in the military community," she said.

Gillibrand said Spc. Vanessa Guillen's brutal death and the scathing Army report in December detailing how leaders at Fort Hood, Texas, failed to act was a flashpoint that brought military sexual assault to mainstream attention. She added that it was the story that needed to be told on Capitol Hill for lawmakers to understand the scope of the issue.

The Army suspended or fired 14 officials, including several high-ranking officers. Maj. Gen. Scott L. Efflandt, deputy commanding general for support at III Corps; Col. Ralph Overland, the 3rd Cavalry Regiment commander; and Command Sgt. Maj. Bradley Knapp, the regiment's sergeant major, were relieved of command.

What was different about the Fort Hood report was that it came from the DoD itself, not an independent body, Gillibrand explained. The Pentagon essentially admitted there's a fundamental flaw in its justice system and that women in the ranks face serious risks, so lawmakers could no longer cede power to military leaders, she said. Most importantly, it brought Ernst into Gillibrand's coalition, which gave her the momentum she needed to get Republicans on board.

"It was an earth-shattering story that people could not comprehend," she said. "When they did the investigation and found the climate was so toxic that was was permissable for sexual assault and harassment, and that it was the DoD's findings, that changed several people's minds. It changed a bunch of Democrats' minds but also Jodie Ernst's mind. As the only female Republican combat veteran, she really pulled a lot of weight. Having her join really made a difference in bringing more people to the table."

But Gillibrand has yet to win over Sen. Jack Reed, D-R.I., the chair of the Armed Services Committee, who has blocked multiple attempts by her to bring the bill to a vote in the Senate. Instead, Reed wants to debate the bill in committee and include it in the must-pass National Defense Authorization Act, which sets policy and funding priorities for the Pentagon.

Gillibrand said Reed and Sen. Jim Inhofe, R-Okla., the top Republican on the committee, are the only people standing in the way. She argues that taking only sexual assault prosecutions away from commanders would create two justice systems in the military and risk overwhelming harm to minorities in the service.

"[Reed] wants the bill narrowed to just sexual assault. That's a grave mistake," she told Military.com. "It doesn't account for racial biases in punishments. This aims to help both plaintiffs and defendants."

Gillibrand also chairs the Senate Armed Services subpanel on personnel, which oversees the welfare of troops. The assignment was directly motivated by her key policy goal of revamping the military justice system.

Given her public stage as a key player on high-profile issues, Gillibrand wants to run for president again at some point, she told Military.com when asked about future ambitions.

"I really loved it," she said about her 2020 presidential campaign. "It was one of the most important opportunities for growth as a public servant."

Army Fitness Test

Along with Sen. Richard Blumenthal, D-Conn., Gillibrand also has paused implementation of the new Army Combat Fitness Test, or ACFT, until an independent study from Rand Corp. is completed on how the test impacts women and whether it adversely affects soldiers stationed in areas where conducting the test can be a logistical challenge.

Nearly half of female soldiers cannot pass the ACFT, and few women can score well on it, according to Army data acquired by Military.com. In a hearing last month, Gillibrand grilled service leaders over the data, which Lt. Gen. Gary Brito conceded was "troubling."

"The standards are disproportionately harming ... service women. We want to make sure those standards are accurate while also not limiting female service members," Gillibrand told Military.com.

She said that men and women can, and probably should, be held to the same physical standards. However, high fitness thresholds not only hurt women, she argues, but also could damage the Army's ability to recruit for jobs that are critical to warfighting but aren't physically demanding.

"Our cyber defenders, our doctors, people who aren't necessarily in physical warfighting don't need those same standards," she said. "You're going to miss out on some of the best and brightest."

-- Steve Beynon can be reached at Steve.Beynon@military.com. Follow him on Twitter @StevenBeynon.

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