The Wall Street Journal: Military Justice Overhaul Reaches Key Level of Support in Senate
Wall Street Journal – May 13, 2021
By: Lindsay Wise and Nancy A. Youssef
WASHINGTON—A sweeping overhaul of the military justice system has earned the backing of 61 senators from both parties, clearing a critical threshold needed to advance the legislation after years of resistance from the Pentagon.
The bill would change the way the U.S. military prosecutes sexual assault and other serious crimes by stripping commanders of their authority to decide whether to send such cases to trial. Instead, independent military prosecutors would make those calls.
Forty-one Democrats, two independents and 18 Republicans—including the majority of Senate Armed Services Committee members—have now signed on as co-sponsors of the Military Justice Improvement and Increasing Prevention Act, written by Sens. Kirsten Gillibrand (D., N.Y.) and Joni Ernst (R., Iowa). Co-sponsors span the political spectrum from GOP Sen. Josh Hawley of Missouri to independent Sen. Bernie Sanders of Vermont.
Senate Majority Leader Chuck Schumer (D., N.Y.) has supported previous iterations of the bill. His office didn’t immediately respond to a request for comment Thursday.
That level of support is enough to overcome the Senate filibuster rule, which requires at least 60 votes for most bills to advance. The bill would have to pass the House and Senate before heading to President Biden’s desk for his signature, but its supporters say they are optimistic that it could become law this year.
Mr. Biden has said that his administration plans an “all-hands-on-deck effort” to stop sexual assault in the military, but he hasn’t weighed in on the legislation.
A Pentagon spokeswoman declined to comment, saying the military doesn’t discuss pending legislation.
Defense Secretary Lloyd Austin has convened an independent review commission to examine the military’s handling of sexual harassment and assault cases and is expected to recommend that such cases be moved out of commanders’ hands and prosecuted by an independent body. That is a narrower approach than the Gillibrand-Ernst bill, which would apply to all felony-level crimes, including murder, manslaughter and child pornography.
Under the legislation, more than 55 uniquely military crimes, such as desertion, would remain under commanders’ purview, along with infractions punishable by less than a year of incarceration.
Ms. Ernst, a combat veteran and sexual-assault survivor, said her decision to back the legislation came after working for years within the military system to little effect. She said a turning point was the killing last year of Spc. Vanessa Guillén, 20 years old. A soldier in her regiment, Spc. Aaron Robinson, was believed to have killed her. As police surrounded Spc. Robinson, he killed himself.
The killing spurred outrage at the Army’s handling of sexual harassment and assault at Ms. Guillén’s base in Fort Hood, Texas. An Army investigation found that Fort Hood was a “permissive” environment for such behavior.
“When you have a command climate like that, you’ve already got soldiers that feel they can do bad and evil things and get away with it, and obviously in this situation, they were,” Ms. Ernst said. “So what we need to do is remove the commander from the decision-making for these heinous crimes and focus on prevention efforts, foster a climate of dignity and respect.”
Ms. Gillibrand said the pivotal moment for the legislation was winning over Ms. Ernst. Ms. Gillibrand said she had lobbied Ms. Ernst for years on the bill, striking up a rapport during overseas work trips, congressional softball team practices and workouts at Biker Barre, a Washington, D.C. cycling studio.
Within 24 hours of their bill’s unveiling in late April, it had 49 co-sponsors, a big jump from last year’s version, which had 30 co-sponsors—and only four Republicans—on board.
“Her experience as a female combat commander is so unique and so powerful that I knew she would be able to garner additional support that we hadn’t had up until that point,” said Ms. Gillibrand.
According to the most recent Defense Department report, there were 7,825 reported cases of sexual assault during fiscal year 2019, a 3% increase from the previous year but more than double the 3,327 reported in 2010.
Top military leaders concede that the Pentagon has struggled to address harassment and assault within its ranks. Earlier this month, Army Gen. Mark Milley said commanders had “lost the trust and confidence of those subordinates in our ability to deal with sexual assault. So we need to make a change.”
While the services, led by the Army, have made sexual harassment and assault a priority, many argue the military can’t combat harassment and assault if commanders aren’t leading the adjudication of such cases. Other commanders feel the legislation tackles the area where the military excels—prosecution—but doesn’t address areas where it falls short, such as preventing assault, collecting data on the prevalence of cases, and investigating reported cases.
Moving the decision-making to military prosecutors, known as judge advocates, would require more staffing for the new independent offices mandated in the bill. Service leaders also argue that moving cases out of commanders’ hands could add months to the litigation process. And like civilian lawyers, judge advocates may consider the likelihood of conviction while a commander may be more willing to bring charges in a bid to maintain good order in a unit, commanders say.
Eric Carpenter, a former Army lawyer and a professor of military law at Florida International University College of Law, called the Gillibrand-Ernst bill “by far the most significant erosion of the commander’s authority since the creation of the military justice system.”
Ms. Gillibrand disagrees. “There is no diminution of command authority with this change, it’s a professionalization of one part of the process,” she said, noting that commanders will play a central role in preventing crime and retaliation.
The bill requires commanders be notified when a report of sexual assault is made, and if a judge advocate declines to prosecute any serious case, military commanders could still refer it to a misdemeanor court, both changes made at the suggestion of Ms. Ernst.
Ms. Ernst also pushed for prevention measures such as increased training and a requirement to survey the need for security improvements, such as cameras and locks, on bases.
Ms. Ernst, a former Army National Guard commander, said she knows that some in the military aren’t going to like the bill.
“At the same time, we need to protect the men and women that choose to serve,” she said. “And if they’re unwilling to do that, then we’re just going to do it without them.”