A bipartisan group of Senators criticized the final version of the National Defense Authorization Act that passed the House late Tuesday night, saying the bill does not go far enough to reform the military justice system for survivors of sexual assault.
Sen. Kristen Gillibrand, a Democrat from New York, criticized the removal of provisions in the version of the NDAA that passed the Senate earlier this year, saying that without them, commanders have the power to choose the jury, witnesses and grant or deny witness immunity.
The Senate could pick up the House-passed measure as soon as this week, though given the chamber’s crowded year-end to-do list, that timing could slip to next week.
While the bill makes sexual harassment a crime in the Uniform Code of Military Justice for the first time in the military’s history, Gillibrand said it does not go far enough to ensure that sexual assault survivors get justice.
“While there’s no doubt that those are important advances, this bill does not reform the military justice system in a way that will truly help survivors get justice,” Gillibrand said at a Wednesday press conference.
A historic point
The White House applauded House passage of the National Defense Authorization Act Wednesday, calling it “a historical point … with meaningful reform of the military justice system and handling of handling of sexual assault cases.”
“The President believes that this legislation takes groundbreaking steps to improve the response and … prevention of sexual assault in the military,” White House deputy press secretary Karine Jean-Pierre told reporters traveling with the President to Kansas City, Missouri. She said the President extended his thanks to Gillibrand, Iowa Republican Sen. Joni Ernst, and California Democratic Rep. Jackie Speier “for their tireless work over many years of it to advance these important reforms.”
The provisions that were cut by the House included measures that would shift many responsibilities in the military justice system from the commander to the special prosecutor in sexual assault and other serious crime cases, Gillibrand said.
In the version that passed the House, military commanders would have to forward complaints of sexual harassment against their subordinates to an independent investigator. Commanders are also removed from “decisions related to the prosecution of covered crimes,” which include rape, sexual assault, murder, and manslaughter, according to the bill. Those decisions will instead be moved to an Office of the Special Trial Counsel that would be created in each service.
At the Pentagon, spokesman John Kirby hailed the provisions as “an historic initiative here, removing those crimes and related crimes, the prosecution of them outside of the chain of command.”
But Gillibrand believes those measures are not strong enough to fully reform the military justice system. In her proposal, commanders would be removed from the chain of command and from military judicial procedures around the prosecution of those crimes entirely when one of their subordinates is accused of sexual assault and harassment.
In the current bill, if the special trial counsel determines the crime does not fall under their authority or “elects not to prefer charges,” they can refer the charges back to a commander or convening authority.
Without Gillibrand’s changes, commanders are still able to pick the jury, select witnesses and grant or deny witness immunity requests, she said. They can also continue to allow service members accused of crimes “the option of separation from service instead of facing court martial, a total denial of justice,” Gillibrand said.
Critics of Gillibrand’s proposal argue that moving all of the powers in the judicial process, including selection of jury and witnesses, to a special prosecutor would create an “inherent conflict of interest,” a congressional aide said.
All of Gillibrand’s proposed reforms are also incorporated into a standalone bill, the Military Justice Improvement and Increasing Prevention Act, which has wide bipartisan support with 66 co-sponsors in the Senate, Republican Sen. Chuck Grassley of Iowa said at the Wednesday press briefing.
‘A path forward’
Gillibrand, Grassley and Ernst called for a separate floor vote on their bill to make sure these reforms are made to the military justice system, all three said at the news conference on Wednesday.
“Majority Leader (Chuck) Schumer and Speaker (Nancy) Pelosi support not just this bill but having a standalone vote on it, so there is a path forward, and we will be taking it,” Gillibrand said.
Ernst criticized the process surrounding the NDAA, an annual piece of legislation that both Senate and House Armed Services Committee members and staff have been working on for months.
The NDAA was stalled in the Senate last week after Republican Sen. Marco Rubio of Florida put a hold on the bill when his amendment regarding the persecuted Uyghur minority in China was not included in an amendment package agreement. In an agreement made by party leaders in both chambers, there will be no debate or added amendments in the Senate.
“We should have been on this bill much, much earlier so we could have a robust debate about the extremely important issues, especially the one of sexual assault and military justice reform,” Ernst said.
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