Military Justice Reforms at Finish Line After Decade-Long Fight

Changes to the military justice system intended to combat sexual assault that got cut from last year's defense policy bill are poised to become law this year.

The compromise version of this year's National Defense Authorization Act, or NDAA, released Tuesday night kept provisions that expand upon last year's military justice reforms by giving the newly created role of special trial counsel more independence from the chain of command and adding more crimes to the special trial counsel's purview.

Advocates for sexual assault survivors are hailing the bill as a culmination of a decade-long effort to remove commanders from making decisions on prosecuting service members accused of sexual assault and other serious crimes.

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"This is a historic milestone in our efforts to reform and professionalize the military justice system," Sen. Kirsten Gillibrand, D-N.Y., told reporters during a news conference Wednesday. "And while it will take time to see the results of these changes, it is still important for us to celebrate this victory and continue our fight."

Last year's NDAA overhauled the military justice system by creating the role of special trial counsel and imbuing the job with the power to make some prosecutorial decisions on sex crimes and certain other serious offenses instead of commanders.

While historic, the reform did not go as far as Gillibrand and her supporters desired. Specifically, last year's bill did not move as many crimes outside of the chain of command as she wanted, and it left commanders with some roles in the court-martial process.

Gillibrand wanted all felony-level crimes to be covered by the special prosecutor, but last year's NDAA covered only sexual assault, revenge porn, murder, manslaughter, sexual assault of a child, kidnapping, domestic violence, stalking, retaliation and child pornography.

Under this year's NDAA, two more crimes will be added to the special prosecutor's job: death or injury of an unborn child and use of the mail to send obscene material. Sexual harassment will also be added to the prosecutor's jurisdiction in 2025, according to the bill.

Last year's NDAA also left commanders with the authority to select the jury, choose witnesses, grant or deny witness immunity requests, order depositions and approve hiring expert witnesses. All those roles will now be done by the special trial counsel under this year's NDAA.

"What we're really getting out of this is a professionalized justice system," retired Col. Don Christensen, president of advocacy group Protect Our Defenders, said at the news conference alongside Gillibrand. "It is something that is going to result in a fair process for both the accused and the victim."

While Gillibrand is touting the bill as a victory, it still does not cover all the crimes she originally wanted to be in the special prosecutor's job.

But she said she will give the Pentagon a few years to implement the new changes before reviving her fight for the rest of the crimes.

"I want to see if they work, and if they don't, we'll amend the system," she said. "And then long term, like I said, I'd like to actually get a bright line at all felonies, so all serious crimes can be prosecuted by a trained military prosecutor. But the time will give us a chance to stand up those independent prosecutors, get them to be more senior, make sure there's enough lawyers so they can handle a bigger workload over time."

The House is expected to pass the bill Wednesday night, followed by the Senate next week.

This year's NDAA comes as the Pentagon has been making progress implementing last year's reforms.

The military branches nominated their picks for their respective lead special trial counsel last month, and the Senate confirmed the choices for the Army, Marine Corps and Air Force last week. The Navy's nominee is still awaiting confirmation.

"We are restructuring the way the Army prosecutes perpetrators of covered offenses such as murder, rape, and sexual assaults," Army Secretary Christine Wormuth said in a statement Monday about the confirmation of the service'slead prosecutor, Col. Warren Wells. "As Army's lead special trial counsel, Col. Wells is the experienced leader the Army needs to lead the Office of Special Trial Counsel and ensure its independent oversight of the Army's most complex cases."

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

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