The Pentagon and Congress are finally on the same page, after nearly a decade of back and forth: professional prosecutors should make the decisions when it comes to filing charges in sexual assault cases and sending them to trial. But many members of Congress want to go further, taking all major crimes out of the chain of command, an effort some say will tackle the services’ suspected bias against people of color when it comes to military justice.
The Defense Department isn’t quite sold on that idea. Deputy Defense Secretary Kathleen Hicks told lawmakers on Tuesday that more research is needed to draw the link between bias in judicial decisions and commanders’ authority over those decisions.
“So the answer is, I think we would have to do that work. We should do that work,” Hicks told members of the House Armed Services Committee. “We owe it to those members in uniform, especially if they’re if there’s in fact, proven out through the data, racial disparity in the military justice system.”
DoD is moving ahead with a number of recommendations to come out of an independent review commission on sexual assault, including asking Congress for permission to also remove sexual harassment, domestic violence, child abuse and other interpersonal crimes ― primarily because so many assault cases also include these dimensions, and splitting them up would unnecessarily complicate investigations.
Senior military leaders have expressed concern that taking all major crimes out of the chain of command ― including simple assaults, homicides and more ― would degrade commanders’ ability to enforce good order and discipline in their units.
“This is a complex and difficult issue,” Army Gen. Mark Milley, chairman of the Joint Chiefs of Staff, told Senated Armed Services Commitee Chairman Jim Ihofe, R-Okla., in a June letter. “I urge caution to ensure any changes to commander authority to enforce discipline be rigorously analyzed, evidence-based and narrow in scope, limited only to sexual assault and related offenses.”
On Tuesday, the Senate Armed Services Committee’s personnel panel approved language in their draft of the annual defense authorization bill to go even further than the DoD recommendations in overhauling the UCMJ, taking all serious crimes out of the traditional chain of command.
The proposal has been championed by Sen. Kirsten Gillibrand, D-N.Y., who argues that separating out only sexual misconduct crimes from the rest of the military justice system is an unworkable solution.
“The current system asks commanders who are not trained lawyers to make prosecutorial decisions on complex cases in which they often know both an accused and the victim,” she said. “It can see them unfairly place their thumbs on the scale of justice, which carries serious, life-altering consequences.”
She has also said that putting all major crimes under the responsibility of trained prosecutors would reduce noted racial biases in who gets charged and sent to trial.
Top Pentagon officials and key lawmakers are open to the sexual assault shift, but they say applying it more broadly requires far more study and debate.
Gillibrand’s plan, which passed out of the subcommittee on a 5-1 vote, has bipartisan support on the committee but also opposition from several key members, including Chairman Jack Reed, D-R.I.
The full committee is expected to debate more than a dozen amendments on the issue behind closed doors over the next two days, with a final compromise expected to be publicly unveiled by the end of the week.
That’s unlikely to end the issue. Gillibrand has pushed for a stand-alone vote on it before the end of the year.
Regardless, both the House and Senate appear poised in coming months to pass significant reforms on how sexual assault cases are handled by military officials.
That legislation would supersede the efforts the Pentagon has just come around to, though it would still leave out the issue of lesser crimes. For example, if someone is investigated for a misdemeanor sexual harassment claim, who would handle the prosecutorial decisions under Gillibrand’s framework?
The House Armed Services Committee is working on its own version of an expanded military justice bill. Its chairman, Rep. Adam Smith, D-Wash., has raised concerns about where lesser crimes might fall, though his panel has an opportunity to come at the issue from another direction.
“...I intend to give this issue the attention it deserves — that means marking up pertinent legislation like the Vanessa Guillén Military Justice Improvement and Increasing Prevention Act,” he said in a June 23 statement. “This issue is far too important to risk failure, which is why I will aggressively pursue every legislative option available.”