Armed Services Chair Faces Tough Decision on Removing COs from Military Prosecutions

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House Armed Services Committee Chairman Adam Smith.
House Armed Services Committee Chairman Adam Smith, D-Wash., gives an opening statement during a House Armed Services Committee hearing on Thursday, July 9, 2020, on Capitol Hill in Washington. (Greg Nash/Pool via AP)

The chairman of the House Armed Services Committee pledged Monday to pass legislation this year that would remove commanders from deciding whether to prosecute sex crimes cases, using various legislative approaches to accomplish the task.

Rep. Adam Smith, D-Wash., told reporters that his committee will consider a bill proposed by Rep. Jackie Speier, a California Democrat who chairs the House Armed Services personnel subcommittee, and language expected to be included in the fiscal 2022 defense policy bill that would ensure that military attorneys, rather than commanders, decide whether cases of rape and sexual assault warranted criminal charges and courts martial.

Smith said he also is weighing whether the effort should be broadened to remove most, if not all, felony prosecution decisions from the chain of command.

"We have to make this change," Smith said, referring to sex crimes cases, "there is no question about it."

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But as for the wider effort, he is less convinced.

"I have not decided yet. You know, we've been working on this for quite some time, and the focus has been to date trying to run sex cases out of the chain of command and give them to the [Judge Advocate General] Corps," Smith said.

The House Armed Services Committee is responsible for crafting the version of the fiscal 2022 National Defense Authorization Act that goes before the entire House for a vote. As chair, he holds significant sway in determining what gets forwarded.

Sen. Kirsten Gillibrand, D-N.Y., has worked since 2013 to remove the decision to prosecute rapes and sexual assaults from the military chain of command to attorneys with training in handling these cases.

Since 2014, her proposed legislation has sought to remove commanders from oversight of all serious crimes not related to military service, including murder, robbery, fraud, child endangerment and more. But most of the attention has been paid to the bill's changes to Section 920 of the Uniform Code of Military Justice, which covers rape, sexual assault and other sexual misconduct.

"When a service member is accused of sexually assaulting someone, who decides whether to prosecute? ... A bipartisan majority of the Senate agreed with me that this decision should be made instead by a highly trained military prosecutor, outside the chain of command of the victim and the accused," Gillibrand wrote in an opinion piece in the Washington Post in 2016.

This year, Gillibrand has argued that the broader application is needed to address racial bias in prosecution decisions by commanders.

"We have a bright line at all serious crimes. And that is an important bright line," Gillibrand told reporters last week. "We want to make sure that whether you're a plaintiff or a defendant, that you have access to a military justice system worthy of your sacrifice."

There were 7,825 cases of sexual assault reported across the military branches in fiscal 2019, up 3% from the 7,623 cases reported in fiscal 2018.

Defense Secretary Lloyd Austin said last week he supports removing the prosecution of sex crimes from the chain of command, echoing recommendations of a panel that recommended they be decided by trained judge advocates general.

In interviews with the Associated Press and CNN in May, Chairman of the Joint Chiefs of Staff Army Gen. Mark Milley said in May that he would drop his opposition to the change.

But in a letter released last week by the senior Republican on the Senate Armed Services Committee, Sen. Jim Inhofe of Oklahoma, Milley expressed reservations.

"It is my professional opinion that removing commanders from prosecution decisions...may have an adverse effect on readiness, mission accomplishment, good order and discipline, justice, unit cohesion, trust, and loyalty between commanders and those they lead," Milley wrote to Inhofe in a response to a request for his opinion. "However, in the specific and limited circumstance of sexual assault, I remain open-minded to all solutions ..."

Smith said Gillibrand has made a "reasonably compelling case" to include most felonies.

But, he added, he's speaking with experts to examine the arguments and the nuances in the proposed bill, which would move some felonies but not others.

"I'm trying to take the prudent approach of listening, examining and figuring out what the best approach is," Smith said.

Gillibrand's bill has 65 cosponsors from both sides of the aisle. Companion legislation introduced by Speier has 159 cosponsors. Most of the cosponsors are Democrats, but the list includes a handful of Republicans, notably Mississippi Rep. Trent Kelly, an Iraq war veteran and major general in the Army National Guard.

Editor's Note: This story has been updated to correct the number of sexual assault cases reported in fiscal 2018 and correct the description of Sen. Kristin Gillibrand's proposed legislation, dating to 2014.

-- Patricia Kime can be reached at Patricia.Kime@monster.com. Follow her on Twitter @patriciakime.

Related: 'It's Always A Long Game:' Inside Kirsten Gillibrand's Campaign to Overhaul Military Justice

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