The New York senator worked for a decade and assembled two-thirds of the Senate to support her reform, only to see it wither in a closed-door conference.
BY DAVID DAYEN
DECEMBER 8, 2021
MICHAEL BROCHSTEIN/SIPA USA VIA AP IMAGES
Sen. Kirsten Gillibrand (D-NY) speaking at a press conference to introduce the Military Justice Improvement and Increasing Prevention Act, June 23, 2021
In a blistering statement, Sen. Kirsten Gillibrand (D-NY) excoriated leadership on the House and Senate Armed Services Committees for “doing a disservice to our service members and our democracy” by severely weakening a bipartisan military justice reform she spent nearly a decade cultivating.
The reform, which was folded into the annual defense policy bill, fails to take the prosecution of felonies out of the military chain of command, as two-thirds of the Senate and President Biden favor. Some press reports and activists have characterized the reform that made it into the bill as broader and more significant than expected, but there’s one critical sticking point. While it empowers an independent “Special Victim Prosecutor” for certain crimes—including sexual assault, rape, murder, and domestic violence—military commanders would still retain court martial convening authority on these cases. Commanders would also select jury members in court martial cases resulting from these crimes, approve witnesses, and manage the trials.
House Armed Services Committee leaders maintain that the special prosecutor’s charging decisions would still be “binding” and that commanders would face discipline if they didn’t follow those decisions. But Gillibrand and reform supporters doubt that special prosecutors would maintain that level of authority.
“Such influence erodes the independence of the Special Victims Prosecutor and fails to address the concerns of the survivor community that conflicted commanders still have too much influence over the military justice process,” said Col. Don Christensen, former chief prosecutor of the Air Force and president of the pro-reform group Protect Our Defenders, in an otherwise fairly positive statement.
Gillibrand characterized convening authority as critical to the process. Even the Defense Department’s Independent Review Commission (IRC) on Sexual Assault in the Military stated explicitly that any reform “that retained commanders as disposition authorities in sexual harassment, sexual assault, and related cases would fail to offer the change required to restore confidence in the system.”
The retention of convening authority by military commanders in the reform provision reflects a resistance to change, said Sen. Gillibrand.
The reform otherwise does enable victims to know what actions have been taken against their offenders, makes sexual harassment a crime under the Uniform Code of Military Justice (while excluding it from the special prosecutor framework), establishes independent investigations of sexual harassment complaints, and requires tracking of any retaliation against victims for coming forward. But it narrows the crimes eligible for special prosecution, something reformers anticipated.
The fate of the military justice reform has been uncertain for months. Gillibrand and her Republican co-sponsor, Sen. Joni Ernst (R-IA), were able to assemble 66 Senate votes for their version, a rare filibuster-proof majority in a divided Congress. But Sen. Jack Reed (D-RI), chair of the Senate Armed Services Committee and a close confidant of the Pentagon, fought to fold the bill into the National Defense Authorization Act (NDAA), to keep any changes within his committee and under his control.
In July, Reed placed the entire Gillibrand-Ernst Military Justice Improvement Act into the Senate version of the NDAA. But in an eerily prescient statement, a Gillibrand aide told the Prospect’s Amelia Pollard in June, “Our preference would be a stand-alone vote on the floor because that way it can’t get killed in conference, which seems apparent is their plan,” noting that “[i]t won’t come out of conference until … December, and then it’s bumping up against the holidays.”
That’s precisely what happened. The conference report reconciling the House and Senate versions of the NDAA, released on Tuesday, was the product of Reed, his Republican counterpart Sen. James Inhofe (R-OK), House Armed Services Committee chair Adam Smith (D-WA), and ranking member Mike Rogers (R-AL). These four men, as Gillibrand described them, overrode the desires of a supermajority in the Senate and at least a majority in the House.
In doing so, they ceded to a long tradition of delay from the Pentagon on these issues. As the Prospect reported last month, the Defense Department blocked a 2016 staff report that recommended fixes to the military’s sexual assault database, which was inaccurate and unable to track trends in real time. Five years later, there have been no improvements to the database. A Government Accountability Office report from February highlighted the failure to track cases.
The IRC report identified a number of failings in the military’s approach to sexual assault and harassment, and Defense Secretary Lloyd Austin laid out an implementation timeline in September. But some of the key elements are not scheduled to be completed until 2030, a fact that drew an angry letter from Gillibrand and her colleagues condemning the military’s “vague approach and lax timeline.” The New York Times reported that Austin called members of Congress to lobby against stronger reforms.
The retention of convening authority by military commanders in the reform provision reflects this resistance to change, Gillibrand says in her statement on the NDAA. “Committee leadership has 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,” Gillibrand wrote.
While campaigning for president in April 2020, Joe Biden said he would “order the Defense Department to take urgent and aggressive action to make sure survivors are in fact supported and abusers are held accountable for their crimes.” The White House Statement of Administration Policy on the Senate version of the NDAA said that it “welcomes efforts by Congress to enact legislation that supports core aspects of the IRC’s recommendations for accountability.” There has been no statement from the White House on military commanders retaining convening authority.
Gillibrand said she would continue to seek an up-or-down vote on her version of the reform. The only amendment scheduled in the House concerned whether to include a bipartisan bill that would allow marijuana-based businesses access to banking services.
DAVID DAYEN is the Prospect’s executive editor. His work has appeared in The Intercept, The New Republic, HuffPost, The Washington Post, the Los Angeles Times, and more. His most recent book is ‘Monopolized: Life in the Age of Corporate Power.’
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