A fight is brewing between the armed services, a bipartisan cadre of lawmakers and the defense secretary over details in legislation that would change how sex crimes, murder and other nonmilitary crimes are prosecuted within the military.
Leaders of all of the military services expressed concerns over a popular bill in both the House and Senate that would create a civilian post to handle nonmilitary crimes in the armed services. The bill would effectively take the responsibility out of the chain of command.
The concerns came in the form of letters to Senate Armed Services Committee Ranking Member Jim Inhofe (R-Okla.), who solicited the military chiefs for their opinions on the Military Justice Improvement and Increasing Prevention Act. The bill currently has the support of 43 Democrats, 2 Independents and 21 Republicans in the Senate, making it filibuster-proof. However, leaders of the Senate Armed Services Committee have yet to bring the legislation to a vote.
Meanwhile, on Tuesday, Defense Secretary Lloyd Austin said for the first time that he will support significant changes to the military justice system, including by removing prosecutorial decisions involving sexual assault and “related crimes” from military commanders.
Austin’s decision came after he received recommendations from an independent review commission earlier this week. That panel recommended a new prosecution system, outside the chain of command, for crimes such as sexual misconduct, domestic violence, stalking, retaliation, child sexual assault and the wrongful distribution of photos.
According to a defense official, Austin has reservations about the more expansive change outlined in Military Justice Improvement and Increasing Prevention bill, similar to those expressed by his senior leaders. The official spoke on condition of anonymity to discuss private conversations.
In his letter to Inhofe, Chairman of the Joint Chiefs of Staff Gen. Mark Milley said, “It is my professional opinion that removing commanders from prosecution decisions, process and accountability may have an adverse effect on readiness, mission accomplishment, good order and discipline, justice, unit cohesion, trust, and loyalty between commanders and those they lead.”
Milley said that he remains open to taking sexual assault crimes out of the chain of command, however.
Army Chief of Staff Gen. James McConville had similar sentiments about good order and discipline. He recommended that the law, if passed, only apply to sex crimes and that any changes to the Uniform Code of Military Justice be on a three-year trial basis.
Chief of Naval Operations Adm. Michael Gilday wrote that the bill “erodes the ability of commanders to create and maintain the environment necessary to effectively exercise mission command.” He wrote that “we will not prosecute our way to fewer cases. Rather, our efforts must begin far to the left of the crime and involve cultural transformation, education, and leadership, and accountability.”
Marine Corps Commandant Gen. David Berger said his concern was with readiness.
“A new military justice structure and process without a corresponding increase in resources, I would be forced to reduce funding and structure elsewhere in our military legal system,” he wrote. “I consider this bill a significant risk to readiness and mission accomplishment if not appropriately resourced. This bill would seem to lengthen the process, limit flexibility, and potentially reduce confidence among victims.”
Air Force Chief of Staff Gen. C.Q. Brown seemed most open to the bill, stating that, “Removing elements of authority will likely create some risk, particularly if poorly scoped, communicated or implemented. That does not mean we should not try new measures if we believe they will increase accountability and reduce sexual assaults.”
Kirsten Gillibrand (D-N.Y.), the bill’s lead sponsor and chairwoman of the Senate Armed Services Personnel Subcommittee, said the responses were disappointing.
“From racially integrating the armed forces to enabling women to serve in combat to allowing LGBTQ service members to serve openly, the chain of command has always fought to protect the status quo, just as they are doing here,” she wrote. “Their arguments are recycled talking points from the battles for progress in the past and are void of any coherent argument beyond the disingenuous ‘good order and discipline.’”
Gillibrand argued against limiting the change to sexual assault, saying it would be discriminatory and set up what some call a “pink” court to deal with crimes usually involving female victims.
“I’m deeply concerned that if they limit it to just sexual assault, it will really harm female service members. It will further marginalize them, further undermine them, and they’ll be seen as getting special treatment,” she told AP.
Inhofe wrote that he is worried by the military leaders’ responses.
“The input from our top brass is just one piece of the puzzle,” he wrote. “I remain concerned that, as written, it would not reduce sexual assault or other crime in the slightest and would complicate the military justice system unnecessarily.”
All of the military leaders agreed that sexual assault and harassment in the military have gotten out of hand and are continuing to rise, and prosecutions and conviction rates are low compared to the number of reported and unreported assaults.
Other experts have said the military would be better off with independent prosecutors.
“Nearly all commanders are not attorneys, and are ill equipped to make the kind of increasingly complex legal decisions that the military justice system requires,” said Eugene Fidell, senior research scholar and adjunct professor at Yale Law School.