Joint Chiefs Chairman Gen. Martin Dempsey testifies before the Senate Armed Services Committee on June 4, 2013, on pending legislation regarding sexual assaults in the military. (AP Photo/Susan Walsh)
In June, a panel of square-shouldered military chiefs sat before Congress to account for the epidemic of sexual assault. Top brass promised “zero tolerance,” and Congress began crafting reforms tied to the defense spending bill it will send to the White House this year.
Everyone says they are committed to reform—the Pentagon has been promising change for decades—but since the June hearing most lawmakers have backed away from one check that victims’ advocates argue is crucial and the military says is out of the question: authorizing military lawyers, rather than commanding officers, to decide which cases go to trial.
That policy has been adopted by peer militaries including Germany and the United Kingdom, but in Congress it has opened a fault between Senate Democrats. Toeing the Pentagon line, Armed Services Committee heavyweights Carl Levin and Claire McCaskill are fighting to put down Kirstin Gillibrand’s measure granting military prosecutors authority in serious criminal cases, thus taking the chain of command out of the legal process.
As it stands now victims must report crimes against them to their commanding officer, who then decides whether the complaint warrants a trial. Victims’ advocates argue that lawyers, not officers, should determine a case’s legality, and that preserving the command structure leaves victims vulnerable to retaliation and conflicts of interest, discouraging them from reporting crimes.
The Armed Services Committee, led by Levin, killed Gillibrand’s corrective after she introduced it as an amendment to the Defense Authorization Act and instead passed a softer measure that upholds commanding officers’ convening authority. Since then Gillibrand has been trying to drum up a bipartisan coalition strong enough to reintroduce her amendment when the defense spending bill comes to the Senate floor as soon as next week. She needs fifty-one co-sponsors to open discussion, and so far has thirty-four, including Republicans Charles Grassley, Lisa Murkowski, Susan Collins and Mike Johanns.
Tea Party darlings Ted Cruz and Rand Paul gave Gillibrand an unlikely boost on Tuesday when they announced they were signing onto her amendment. “There can be no prosecution and no deterrent if we don’t have reporting of the crimes,” said Cruz at a news conference. Their support hinged on the clarification that commanding officers would retain jurisdiction over crimes of a uniquely military nature, such as disobeying orders or going absent without leave. “I see no reason why conservatives shouldn’t support this,” Paul added. “The only thing I think is standing in the way is just sort of the status quo.”
Pentagon policy is a hard-shell status quo, and where the chain of command is concerned, Levin and McCaskill are keen to preserve it. They argue that Congress is enforcing other measures to overhaul the system, and that removing the chain of command would in fact lower the rate of prosecution. That point emerged Thursday during a re-confirmation hearing for Joint Chiefs of Staff chairman general Martin Dempsey and vice chairman staff admiral James Winnefeld, who testified that commanders have pursued cases that civilian prosecutors declined, and won convictions.