Lawmakers Are Worried a Major Military Justice Overhaul Is Going to Get Stopped

Dozens of lawmakers in both parties and both chambers of Congress are demanding negotiators keep a major overhaul of the military justice system in the final version of a massive defense policy bill.

In a letter Tuesday to the leaders of the House and Senate armed services committee, Sen. Kirsten Gillibrand, D-N.Y., and 65 of her congressional colleagues said it would be "outrageous" for negotiators to "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."

"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," the lawmakers wrote in the letter. "This provision is the only reform that will provide true independence for prosecutors in the military justice system and is essential to ensure that victims, accused, and the public all have full faith and confidence in the military justice process."

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The letter was co-signed by 38 Democrats and five Republicans in the Senate, and 17 Democrats and five Republicans in the House.

The White House has not publicly opposed the measure, but in statements on the defense bill has thanked Congress for advancing other provisions that compete with Gillibrand's. Nonetheless, the White House has also thanked Gillibrand for her work to address military sexual assault.

At issue is a Gillibrand-sponsored provision in the Senate version of the National Defense Authorization Act, or NDAA, that would take the decision to prosecute most major crimes away from military commanders and give it to independent prosecutors.

A separate provision that's also in the Senate bill, as well as a third approach in the House version of the NDAA, would apply to fewer crimes, and would not give prosecutors outside the chain of command the authority to actually convene a court-martial. Those other suggested modifications do allow independent prosecutors to begin the court-martial process, but commanders would still be able to intervene, unlike in Gillibrand's model.

Each reform is intended to better address the epidemic of sexual assault in the military. But Gillibrand's would also affect other major crimes, such as murder, which Gillibrand and supporters argue is necessary since sexual assault is often interwoven with other crimes.

Further, supporters argue, a broader reform could help address racial disparities in the military justice system and avoid creating a "pink court" that focuses on crimes mostly affecting women.

For years, the Pentagon resisted removing commanders from the decision to prosecute any crimes. But earlier this year, Defense Secretary Lloyd Austin became the first Pentagon chief to support taking sex crime prosecutions outside the chain of command.

Still, top generals have continued to oppose the broader reform sought by Gillibrand, arguing that changing prosecutions for more than just sex crimes requires further study and that doing so could undermine good order and discipline.

In addition to Gillibrand's proposal, the Senate NDAA also includes a provision that more closely follows the Pentagon's recommendation to create special victim prosecutors offices in each of the military departments to handle sex crimes.

The House version of the NDAA, which passed the lower chamber in September, similarly includes a provision to create special victim prosecutors offices in the military departments to handle cases of sexual assault, sexual harassment, crimes against minors and other related offenses.

In their letter Tuesday, the lawmakers pointed to an October report from the Congressional Research Service, the nonpartisan office that serves as Congress' think tank, that found Gillibrand's proposal is the only one of the three that would create a "court-martial convening authority outside the chain of command."

Under the Senate's other provision and the House bill, a special victims prosecutor could force commanders to take the first step in a court-martial, preferring charges, according to CRS. The House bill would also make a special victims prosecutor's recommendation on the next step -- referring charges -- binding on commanders.

"The only way we will be able to reassure victims that they will get an impartial review of their case is to make experienced judge advocates the convening authority in their cases," the lawmakers wrote in their letter. "Without the duties inherent to convening authorities, the perception and reality of commanders influencing the outcome will be unavoidable."

Because both bills contain the Pentagon's preferred outcome but only the Senate bill contains Gillibrand's, supporters of Gillibrand's proposal have been sounding the alarm that it could get stripped out when negotiators meet to reconcile the two bills.

The warnings have gotten louder as time runs out to get a deal on a final NDAA before the end of the year, increasing the likelihood armed services committee leaders will hash out a deal among themselves without entering into formal House-Senate negotiations known as a conference committee. The Senate has yet to pass its version of the NDAA, and a procedural issue that arose Monday night has further thrown timing on the upper chamber acting into doubt.

In addition to Tuesday's letter, 15 veterans groups sent a similar letter to armed services committee leaders last week. Earlier this month, 29 state attorneys general also sent a letter to congressional leadership supporting Gillibrand's provision.

"These issues have been plaguing the military for decades, despite countless congressional mandates, $1 billion of funding, and promises from leadership that they would address it," the lawmakers added in their letter. "We must act with an urgency that meets this moment and urge you to ensure the NDAA provides true independence for prosecutors in the military justice system and covers all major offenses in the UCMJ."

-- Rebecca Kheel can be reached at rebecca.kheel@military.com. Follow her on Twitter @reporterkheel.

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