The Pentagon on Thursday unveiled new efforts to combat sexual assaults in the military, but it left the most controversial question unanswered.
Its action doesn’t change how much control military commanders hold over the prosecution of major crimes. Whether to keep that power in the chain of command remains a contentious issue, one that’s split lawmakers who otherwise agree that dramatic changes are long overdue.
The new measures announced Thursday include providing victims with legal representation, enabling commanders to reassign or transfer service members who are accused of sexual assault and ordering the Defense Department’s inspector general to review sexual assault investigations that have been closed.
“Sexual assault is a stain on the honor of our men and women who honorably serve our country, as well as a threat to the discipline and the cohesion of our force,” Defense Secretary Chuck Hagel said. “It must be stamped out.”
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Meanwhile, political tension mounts over competing ideas championed by Democratic Sens. Claire McCaskill of Missouri and Kirsten Gillibrand of New York. Though they often count themselves as allies, the Armed Services Committee colleagues now clash over the key chain-of-command question.
Gillibrand and 45 other senators want to strip commanders of the power to decide whether to prosecute sexual-assault and other serious criminal cases. Instead, independent military prosecutors would decide whether a case should go to trial. The offices of the military chiefs of staff would be responsible for empaneling juries and choosing judges, seizing a power that commanders traditionally have wielded.
Military leaders oppose the change, calling it inimical to “good order and discipline.”
Commanders have long held godlike powers to punish troops under their control – or to decide to let an incident pass. Think of an 18th-century ship’s captain, alone on a distant sea, needing to keep in place a strict hierarchy that binds a force together and leaves no doubt about who’s in charge.
McCaskill wants keep the decision-making process within that chain of command, while adding a layer of civilian review. Doing so, she argues, keeps commanders accountable.
“I just refuse,” McCaskill said, “to let these commanders off the hook.”
In taking a stance the Pentagon favors, however, the former prosecutor finds herself playing defense against people who might otherwise be on her side.
Last month, an advocacy group called Protect Our Defenders targeted McCaskill with an ad in the St. Louis Post-Dispatch that featured an open letter by Terri Odom, who wrote that she was raped 26 years ago when she was in the Navy.
“How can you possibly be against the creation of a professional, independent, impartial military justice system?” the letter reads. “Your opposition to date has been incredibly difficult for me and other survivors to comprehend.”
McCaskill bristles at the suggestion that she’s sided with the military brass against sexual assault victims. She said she’d spent hours “holding hands and crying” with such victims.
“I can see these women’s faces, and I would never shirk my responsibility to them to throw a bone to the military,” McCaskill said. “It’s just not in my DNA.”
Taryn Meeks, a former Navy lawyer who’s the executive director of Protect Our Defenders, countered that “the ad was not meant as an attack.” Rather, she said, it was designed to convey a victim’s message. She said more such ads are possible. This month, Protect Our Defenders is organizing an “Educate Your State” initiative, in which military sexual-assault survivors urge their home-state senators to support Gillibrand’s bill.
“I’m trying to create a system where there’s more transparency and more hope that justice can be done,” Gillibrand said in an interview. “Too many commanders either know the victim or know the perpetrator – or are the perpetrator – and have a reason to brush it under the rug.”
Whatever happens with the chain-of-command question, lawmakers appear determined to shake up military justice. They’ve been prompted by a succession of high-profile cases, notably a commanding officer in February overturning the sexual assault conviction of an Air Force F-16 pilot.
Far-reaching changes that both McCaskill and Gillibrand support include removing commanders’ ability to reverse convictions, making retaliation against accusers a crime and imposing mandatory dishonorable discharges on those convicted of sexual assault. Few doubt that the final version of this year’s defense authorization bill will include significant changes to military law. Thursday’s announcement by Hagel suggests that the Pentagon is pre-emptively adopting many of lawmakers’ proposals.
Still at issue, however, is what kinds of cases commanders may decide to pursue, and who chooses the judges and juries.
“There’s an honest disagreement,” McCaskill said, “as to which version will do a better job of protecting victims and which one will result in more prosecutions.”
Under Gillibrand’s proposal, commanders no longer would have the power to convene courts-martial for any serious crimes punishable by a year or more in prison.
“Commanders are not trained as lawyers,” Gillibrand said. “They’re not trained in prosecutorial discretion. They’re not trained to weigh evidence.”
Under her proposal, however, they’d retain jurisdiction over 37 violations unique to the military, such as dereliction of duty and insubordination, and misdemeanor-level crimes, including minor drug and alcohol offenses.
Gillibrand said she wanted an objective system that would encourage more victims to come forward and would increase the number of successful prosecutions.
She’s confident she can corral 51 votes, or even a filibuster-proof 60, to pass her plan in the Senate. Among its supporters are Democrats Barbara Boxer and Dianne Feinstein of California and Republicans Ted Cruz of Texas and Rand Paul of Kentucky.
The competing option advocated by McCaskill and Armed Services Committee Chair Carl Levin, D-Mich., would preserve commanders’ authority to convene courts-martial, including for major offenses such as sexual assault and murder. If a commander declined to prosecute against a lawyer’s advice, the case would go to a civilian secretary of that service branch for review.
“This notion of just turning this over to military lawyers who are maybe half a continent away was not going to protect the victims adequately,” McCaskill said. “And it wasn’t going to result in more prosecutions.”
Her supporters include Sen. Lindsey Graham, R-S.C., a reserve Air Force legal officer.
McCaskill’s solution may offer more oversight, but it doesn’t go far enough, said Greg Jacob, policy director at Service Women’s Action Network. That nonprofit group helped craft the language in Gillibrand’s amendment.
“We are not fighting with blunderbusses,” he said, “and we’re not sawing off people’s legs like we did in the Civil War, but we’ve essentially retained an 18th-century legal system, and that legal system has hobbled the military.”
It made sense for the 18th-century ship’s captain to wield broad powers over the court-martial process because he and his crew were cut off from the rest of civilization, Jacob said. But a modern commander in Afghanistan is just a helicopter ride or satellite phone call away from an experienced military lawyer or judge.
“The technology has changed. The way we fight has changed,” he said. “The military sees this as a challenge to the authority of the command. They don’t want their authority diminished at all, and I think they’re afraid that’s going to happen.”
Hanging over all of this is the memory of past revisions that haven’t always turned out well.
As part of a 2006 defense authorization bill, for instance, Congress changed Article 120, the provision of the Uniform Code of Military Justice that deals with sexual assault. The intent was to shift the focus of trials to the defendants rather than the alleged victims, but military judges and lawyers quickly found themselves entangled.
Before 2006, Article 120 was a tidy 196 words. The rewrite expanded it to 2,830 sometimes-confounding words.
One military judge, Marine Corps Lt. Col. Raymond Beal II, called the bloated rewrite “horribly flawed.” Another, J.A. Maksym of the Navy-Marine Corps Court of Criminal Appeals, called the congressional revision “poorly written, confusing and arguably absurd.” A third, Air Force Col. Don Christensen, called what Congress did “almost incomprehensible.”
“If you had 100 monkeys with a typewriter, they’d probably come up with something like this,” Christensen declared during a 2009 aggravated sexual assault case.
In 2011, lawmakers quietly went back and further revised some of the changes, without publicly acknowledging any flaws in the earlier attempt.
CORRECTION: An earlier version of this story misstated the likelihood that Protect Our Defenders would run more ads challenging McCaskill’s bill. The organization did not promise to run more ads, but says more are possible.