Bill Moving Prosecution Decisions for Serious Crimes Out of the Chain of Command Advances in Senate

In this March 14, 2021, file photo, Sen. Kirsten Gillibrand, D-N.Y., speaks during a news conference in New York. (Seth Wenig/AP Photo)

A Senate Armed Services subcommittee has advanced a proposal that would give the decision for prosecuting most felony cases involving U.S. troops to military attorneys outside of the chain of command.

In the first step to craft the annual defense policy legislation, personnel subcommittee chairwoman Sen. Kirsten Gillibrand, D-N.Y., said that the basic bill, which will be considered Wednesday by the Senate Armed Services Committee, contains a provision that would remove prosecution decisions for sex crimes from unit commanders and the chain of command.

While she praised that inclusion, noting it's the first time that a Senate Armed Services Committee chairman -- in this case, Sen. Jack Reed, D-R.I. -- has supported it since she first introduced the idea in 2013, Gillibrand said that proposal would "create a separate but unequal system within the military for survivors." Instead, she is pushing to include felony crimes other than those that are uniquely military, such as desertion or disobeying an order.

Under Gillibrand's proposal, known as the the Military Justice Improvement Act, military attorneys outside the chain of command would decide whether to prosecute crimes such as murder, robbery, fraud and child endangerment, in addition to sexual assault.

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"We must resist the urge to isolate sex crimes," she said before offering her bill as an amendment to the subcommittee's draft of the Senate fiscal 2022 National Defense Authorization legislation. "We must guarantee a professional unbiased system for all service members."

Gillibrand's bill currently has 65 sponsors, but its track to be passed as a stand-alone bill has been thwarted by Reed. He has said the proposal should be part of the annual defense policy bill and restricted to rape, sexual assault and harassment crimes.

Gillibrand has said in the past that commanders have an inherent bias because they know and work with alleged perpetrators and victims. She argued that limiting prosecutions to sexual assault doesn't take into account the racial bias prevalent in the military's legal system.

"That's a grave mistake," Gillibrand told in June, referring to limiting the bill to sex crimes. "It doesn't account for racial biases in punishments. This aims to help both plaintiffs and defendants."

Supporting Gillibrand on the personnel subcommittee is Sen. Josh Hawley, R-Mo., former attorney general for Missouri, who said Tuesday that the amendment "will go a long way toward standardizing our system and doing justice for military families."

"I think it's a predictable system," Hawley said. "I think it is one that both defendants and victims can support because the rules are uniform. It's across the board, it's analogous to our civilian system, but still, of course, stays within the military system of justice and is one I believe that our allies also use and use successfully."

Gillibrand's amendment passed the subcommittee in a 5-1 vote with Sen. Thom Tillis, R-N.C., casting the lone "no." Tillis said he believed the issue to be "a matter for the full committee" and preferred to deal with it there.

"For that reason, I'll be opposing the amendment," he said before the vote. "But make no mistake about it, we have to make progress on military sexual assault, and I believe in this [update] that we will."

A Pentagon commission has recommended that the Defense Department institute changes for sexual assault prosecutions in 2023, putting an independent prosecution system in charge of those cases.

Pentagon officials said those changes will be made that year, giving the U.S. military time to establish the system.

Defense Secretary Lloyd Austin has said he supports the commission's recommendations, to include placing domestic violence and other special victims crimes in the system.

Nearly 6,300 sexual assaults were reported in the U.S. military in fiscal 2020, a 1% increase from the previous year.

Gillibrand and her counterpart on the House Armed Services personnel subcommittee, Rep. Jackie Speier, D-Calif., have worked for years to improve reporting and accountability on sexual assaults and increase prevention efforts within the Defense Department. But the issue came under renewed scrutiny last year following the murder of Army Spc. Vanessa Guillen at Fort Hood, Texas. Before she was killed, she had reported that she had been sexually harassed by a colleague. Later investigations found base commanders tolerated a permissive environment for sexual harassment and assault.

The Senate Armed Services Committee will review the proposed fiscal 2022 National Defense Authorization legislation and any amendments offered by members during a closed session Wednesday.

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

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