Sen. Kirsten Gillibrand, D-N.Y., left, and Sen. Joni Ernst, R-Iowa, who worked together on legislation to reform the military justice system, arrive for a Senate vote on a different issue Dec. 2, 2021. AP / J. Scott Applewhite
With Defense Bill Set to Change Military Justice, One Senator Pushes for More
Gillibrand plans to call for an up-or-down vote on several proposals tossed from the 2022 NDAA.
Changes to the military’s Uniform Code of Military Justice are coming in the 2022 National Defense Authorization Act, but one senator who pushed for more comprehensive reforms will call for a vote to pass them in a separate bill.
Some, but not all, of the military justice reforms that Rep. Jackie Speier, Sen. Kirsten Gillibrand, and others have fought for over the last decade have made it into the authorization bill’s final text. But while some hailed the changes as transformative and historic, Gillibrand said Congressional leaders had “gutted” her bill and delivered “a major setback” to troops.
As currently written, the bill “does not reform the military justice system in a way that will truly help survivors get justice,” the New York Democrat said Wednesday morning.
The bill creates a special trial prosecutor in each of the military services, to be selected by and report to the service secretary. That prosecutor, or an assistant special trial prosecutor, will decide whether certain cases, including sexual assault cases, should go to court martial. Currently, that decision is made by the commander of the accused person’s unit.
But the bill stops short of removing commanders as the convening authority, and cuts the number of crimes handled by the outside prosecutor to 11 from 38. Gillibrand maintains that removing commanders as the convening authority is the “only way” to make the system fair.
And though commanders will no longer decide whether to prosecute, they will retain the power to convene the court martial, pick the jury, choose witnesses, and perform other critical tasks.
The bill also reforms sentencing and increases victims’ rights.
“Without hyperbole, this is the biggest reform of military justice in our country’s history. But it was a missed opportunity to really go all the way,” said Don Christensen, president of Protect Our Defenders advocacy group and a retired chief prosecutor for the Air Force. Still, Christensen noted, while commanders won’t be able to dismiss cases outright, they could still allow defendants to be discharged in lieu of trial, or could grant transactional immunity.
Speier, who since at least 2011 has been proposing legislation to remove prosecutorial decisions from the chain of command on sexual assault cases, said in a written statement that “the clarion call of sexual assault survivors has been heard.” The California Democrat added that the changes represent “Democrats and Republicans coming together to finally right generations of injustice.”
Christensen said he is “certain” that military leaders were “licking their wounds” after the text was published. “They were able to stop some needed reforms, but they never thought they would lose” prosecutorial decision-making ability for commanders, he said.
Gillibrand, who last week sent a letter to leaders urging them to keep her legislation in the final NDAA, said she believes House and Senate Armed Services leaders “ignored the will of a filibuster-proof majority in the Senate and a majority of the House in order to do the bidding of the Pentagon.”
In a tweet, she said she plans to call for a full floor vote on her bill.
On Wednesday, she joined Sens. Chuck Grassley, Joni Ernst, and Richard Blumenthal in a Hill press conference where she said that everything in the NDAA is “fine,” but that the upcoming up-and-down vote will “correct” the problems introduced when the congressional leaders blocked parts of the proposed reforms. Among them: Gillibrand’s bill included 38 crimes, while the NDAA text only includes 11. Blumenthal says that “makes no sense” and will make it “impossible” to prosecute sexual assault cases.
Gillibrand also noted that calling for an up-or-down vote on an issue like this is not new: Don’t Ask, Don’t Tell was repealed through a separate vote after an attempt to do so in the 2011 NDAA.