The Senate Armed Services Committee approved a sweeping legislative package to reform the way the military prosecutes serious crimes, handing the lawmaker leading the years-long effort a major victory.
Behind closed doors, the panel incorporated New York Sen. Kirsten Gillibrand's measure as part of the annual defense bill, also known as the National Defense Authorization Act or NDAA.
For weeks this summer, Gillibrand openly sparred on the Senate floor with her Democratic colleague, Senate Armed Services Committee Chairman Jack Reed of Rhode Island, to gain approval for her measure. By late Wednesday, the two had issued a joint statement hailing a new agreement.
"We are proud to announce the committee has put forth a strong bill that makes historic changes to the military justice system and combats the scourge of military sexual assault," Gillibrand and Reed said Wednesday night after a daylong Armed Services committee meeting. "We look forward to working together to bring this bill to the Senate floor and making the NDAA law."
Divisions inside committee and both parties stalled action
Previously, Reed objected to broader goals in Gillibrand's legislation to move all felony crimes — not just sexual assaults — from the chain of command and into the hands of trained military prosecutors. Now, the defense measure approved by the committee includes Gillibrand's so-called Military Justice Improvement and Increasing Prevention Act, a Senate aide confirmed to NPR.
The defense bill now heads to the Senate floor, and faces a new round of hurdles in the House where some objections remain. Traditionally, the authorization bill draws wide bipartisan support, but the effort to revamp how the military handles felonies has met steadfast objections from Pentagon leaders and key congressional members since it was introduced eight years ago.
For example, these concerns remained even as Gillibrand had drawn key Republican support in the Senate, including that of Iowa GOP Sen. Chuck Grassley, who has signed on as a co-sponsor since 2013.
However, those dynamics shifted earlier this year, after Gillibrand joined forces with Iowa Republican Sen. Joni Ernst, a sexual assault survivor before she became a veteran combat company commander. Increasingly, Ernst and others pointed to the need for dramatic change as statistics showed sexual assault crimes rising in the ranks despite other legislative fixes.
"We are bound and determined," Ernst told NPR in May.
It marked a game changer as a new wave of former holdouts joined forces with the duo to become co-sponsors, giving the bill the 60 votes needed to gain passage on the Senate floor.
Shifting cases from commanders to criminal prosecutors
The legislation would keep serious crimes under military oversight, but allow such cases to be handled by criminal justice attorneys with relevant expertise rather than commanders who often lack legal training. Gillibrand and other supporters said the plan must go beyond sex-related crimes and include all major crimes, such as murder, manslaughter and child pornography.
"These are hard cases, and these are cases that deserve a professional person reviewing it properly without bias," Gillibrand told NPR last month.
Also in June, several key House members, including Speaker Nancy Pelosi and Democratic Rep. Jackie Speier of California, signed on to the Senate plan to overhaul the military's justice system, boosting the measure's chances further.
For years, Speier has sponsored her own bill to move sex-related crimes away from military commanders. Now, a new group of bipartisan House members have coalesced around the broader plan.
"We're here today for the service members who have spoken out or who have suffered in silence because the message and culture in the military has been clear: Shut up, suck it up and don't rock the boat," Speier told reporters last month.
This, as President Biden and key military leaders have shared public support to at pull at least serious sex-related crimes from commanders. However, they have stopped short of endorsing the legislation's broader goals to yank other felonies from the chain of command.
This month, an independent review found that commanders are woefully ill-prepared at handling sex-related crimes and harassment. This followed Defense Secretary Lloyd Austin's new backing to amend the Uniform Code of Justice to move sex-assault cases to independent military lawyers.
Earlier in May, Gen. Mark Milley, chairman of the Joint Chiefs of Staff, said he was dropping his opposition to the plan to pull sex-related assault cases from commanders.
Reed has been of the same mind as Pentagon leaders. And his objections to Gillibrand’s broader efforts stalled movement on the issue in recent months.
Gillibrand was persistent, taking to the floor at least 20 times since May pushing for quick approval for her plan, arguing she and other co-sponsors had the votes. Gillibrand, who has served on the Armed Services Committee for the past decade, has said repeatedly she's determined to reach the finish line on her plan finally this year.
"I asked for a vote in 2016, 2017, 2018, 2019, 2020," Gillibrand said in Senate floor debate in May. "And I was denied every single time."
But she and other supporters were met repeatedly with Reed's objections, who argued the bill should go through the regular order of the committee process.
"I object," Reed said in a recent face-off on Monday.
Other senators also joined in the series of debates. Other opponents of the reforms included Senate Armed Services ranking Republican Jim Inhofe of Oklahoma and South Carolina GOP Sen. Lindsey Graham, a former military lawyer.
"I respect Senator Gillibrand a lot, and she is very passionate about this. All I can say is that passion and justice have to be measured, and we have to be making decisions based on facts, not just on an outcome that we would like," Graham said in a floor objection last month. "When we start talking about cases where somebody was acquitted and as if that was the wrong result, that scares the hell out of me."
In the military, commanders who are not lawyers get to choose which serious criminal cases go to trial. That means leaders who are pilots, infantry officers or hold other positions can be tasked with making weighty legal decisions with little to no experience.
Supporters argue that Gillibrand’s legislation protects both victim and defendant rights alike. That includes, for example, a service member facing a serious crime worried about their rights as a defendant when they already have an acrimonious relationship with their current commander.
"I began calling for a full floor vote since May 24. Since that time, an estimated 3,136 servicemembers will have been raped or sexually assaulted and more will have been victims of other serious crimes," Gillibrand said on the Senate floor on Monday.
"While I am heartened to see, after many years of pushing for reform, the growing numbers of our colleagues, the Department of Defense, and the president, have acknowledged that we must move sexual assault and related crimes like domestic violence out of the chain of command," Gillibrand continued, "but it is simply not enough."
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