Defense Bill Headed to Biden’s Desk as Military Justice Debate Rages On

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The U.S. Capitol building in Washington, D.C., sits empty
The U.S. Capitol building in Washington, D.C., sits empty in the early morning a few hours prior to the 59th Presidential Inauguration, Jan. 20, 2021. (U.S. Air National Guard photo by Senior Airman Amanda Bodony)

Congress has approved a sweeping defense policy bill that would change the way the military prosecutes sexual assault, but the debate over military justice reform appears far from over.

The Senate on Wednesday passed the fiscal 2022 National Defense Authorization Act, or NDAA, in a bipartisan 88-11 vote.

The Senate vote followed the House's approval of the bill last week. The bill now heads to the desk of President Joe Biden, who is expected to sign it.

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The NDAA approved by Congress creates prosecutor positions the bill is calling "special trial counsel" to handle cases of sexual assault and related crimes, as well as murder, manslaughter and kidnapping -- taking those cases away from military commanders for the first time. The bill also would make sexual harassment its own offense under the Uniform Code of Military Justice.

While still a significant change after years of sputtering Pentagon efforts to eradicate sexual assault from the ranks, the reform does not go as far as a group of lawmakers led by Sen. Kirsten Gillibrand, D-N.Y., wanted.

Gillibrand has pushed to have independent prosecutors handle almost all major crimes.

Her proposal, which she first introduced nearly a decade ago, was included in the version of the NDAA passed by the Senate Armed Services Committee in July. But it was removed from the final version of the bill negotiated behind closed doors by the chairmen and ranking members of the House and Senate armed services committees.

The outcome was the preferred result of the Pentagon, which for the first time this year supported removing sex crimes from the chain of command but continued opposing Gillibrand's broader reform efforts.

"This bill does not reform the military justice system in a way that will truly help survivors get justice," Gillibrand said at a news conference after the compromise NDAA was released. "It does not remove serious crimes out of the chain of command, which is the only way to create the professional unbiased system that we've been advocating."

Sen. Joni Ernst, R-Iowa, a former opponent of Gillibrand's proposal whose support for it this year was seen as a turning point that could get it across the finish line, said at the same press conference that while the NDAA has "a number of momentous steps forward," there is still "a long ways to go."

In addition to covering fewer crimes than she proposed, Gillibrand argues the NDAA would still leave commanders in a position of power over prosecutions since the special trial counsel will not formally be the court-martial convening authority.

The special trial counsel will be able to issue recommendations – supposed to be binding on commanders – on whether to go to court-martial.

But, Gillibrand says, commanders still will select the jury, choose witnesses, grant or deny witness immunity requests, order depositions, approve hiring expert witnesses, and can allow an accused service member to separate from service rather than face court-martial.

House Armed Services Committee Chairman Adam Smith, D-Wash., has accused Gillibrand of "mischaracterizing" what the NDAA does.

"Her recent claims in the press that the language in the NDAA does nothing to take the commander's authority away -- specifically by arguing that the 'convening authority' allows commanders to pick judges and specific jurors and to decide what evidence can be introduced at trial -- simply mischaracterizes what are, in fact, bold reforms that deliver independence and justice for survivors of sexual assault in the military," Smith said in a lenghty statement Friday.

The NDAA, he added, "will deliver justice for survivors by bringing accountability, independence, and transparency to the prosecution of sexual assault and other sex crimes in the military -- anyone who pretends otherwise is doing survivors a great disservice."

Eric Carpenter, a former military lawyer who is now an assistant law professor at Florida International University, told Military.com the NDAA will indeed leave commanders with the ability to select jurors, or what the military justice system calls panel members. Defense attorneys can still litigate over who actually sits on the jury, as well as over witnesses, experts and depositions ordered up by the commander.

While Carpenter acknowledged commanders choosing jurors could cause perception issues about impartiality, he questioned whether it has any practical effect on prosecuting sexual assault cases.

"In my experience, when commanders are selecting panels, they're doing it above board. They're just trying to find people that they think have good judicial temperament," Carpenter said in a phone interview. "It looks really, really bad until you're inside the system and see that it's actually not a bad way to select panels."

Having someone other than a commander make a decision to prosecute a crime, as the NDAA does, is "historic" and "the biggest change of military justice since the system's been created," Carpenter added.

Advocates for military sexual assault survivors have also hailed the NDAA as a dramatic improvement even as they acknowledge it falls short of what they initially fought for.

"Military sexual assault survivors took on the world's largest employer with the world's largest budget and won a major victory," retired Air Force Col. Don Christensen, president of Protect Our Defenders, an advocacy group that has long backed Gillibrand's bill, said in a statement. "The provisions included in this year's NDAA are the most transformative military justice reforms in our nation's history. This is what happens when we champion survivors and ensure their voices are heard."

Still, Christensen stressed that "our work is far from done," calling out the fact that commanders will retain convening authority.

"Such influence erodes the independence of the [special trial counsel] and fails to address the concerns of the survivor community that conflicted commanders still have too much influence over the military justice process," he said.

While this year's NDAA is now settled, Gillibrand is vowing not to let up her fight for her proposal. She previously introduced it as a stand-alone bill that has the support of more than 60 senators and 200 House members.

Before Congress got to work on this year's NDAA, Gillibrand took to the Senate floor every day for months trying to force a vote on her bill, but was blocked each time by either Senate Armed Services Committee Chairman Jack Reed, D-R.I., or committee ranking member Sen. Jim Inhofe, R-Okla. Since the compromise NDAA was released, she has gone back to the floor at least twice to call for a vote on her bill.

Earlier this year, both House Speaker Nancy Pelosi, D-Calif., and Senate Majority Leader Charles Schumer, D-N.Y. -- the gatekeepers of what bills get voted on in each chamber -- voiced support for holding a vote on her bill, and Gillibrand is pushing them to keep their word. She compared the situation to the repeal of "Don't Ask, Don't Tell." The law banning gay, lesbian and bisexual troops from serving openly was repealed in a stand-alone bill after efforts to repeal it through the NDAA failed.

"There is a path forward, and we will keep taking it," Gillibrand said.

Editor's note: This story was updated after a senator changed their vote after it closed, making the final tally 88-11.

-- Rebecca Kheel can be reached at rebecca.kheel@military.com. Follow her on Twitter @reporterkheel.

Related: Narrower Military Justice Reform Among Changes that Survive Defense Bill Compromise

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