From left, Sen. Kirsten Gillibrand, Tom Porter of Iraq and Afghanistan Veterans of America, Sen. Chuck Grassley, Col. Don Christensen, former chief prosecutor for the USAF, Sens. Joni Ernst, R-Iowa, and Mark Kelly conduct a news conference outside the Capitol to discuss the Military Justice Improvement and Increasing Prevention Act, on April 29, 2021. Credit - Tom Williams—CQ-Roll Call/Getty Images
Amid partisan standoffs in which Democrats and Republicans are at odds over how to execute the most basic functions of Congress, an unlikely coalition of lawmakers has secured broad bipartisan support to overhaul how the military responds to allegations of serious criminal offenses.
Four men behind closed doors could stop them.
A provision in the National Defense Authorization Act (NDAA), an annual defense bill that is expected to come up for a vote in the Senate the coming days, would move the investigation process for serious offenses not related to military functions outside of the chain of command to be investigated by independent prosecutors. It would mark a major shift in how the investigations are handled that advocates argue will better serve victims.
Historically, members of the military would report fellow armed services members for committing crimes like sexual assault, aggravated assault, murder or financial exploitation to their commanding officer, who would then decide whether to charge the accused. For close to a decade, veterans’ rights groups and select lawmakers such as Sen. Kirsten Gillibrand, a Democrat from New York, and Sen. Chuck Grassley, a Republican from Iowa, have argued the system is broken. Commanding officers—disproportionately men—managing investigations on behalf of victims of abuse—disproportionately women—is not working, they argue, and these military officers don’t have the legal knowledge to make informed decisions about how to proceed on accusations of serious crimes.
The new measure, shepherded by Gillibrand, has the support of a filibuster-proof majority of 66 Senators, from progressive Sen. Bernie Sanders of Vermont to rising GOP star Sen. Josh Hawley of Missouri. (More than half of the House also supported reforming the military justice system, though its version of the NDAA only removes decisions on sexual assault or related crimes from the chain of command.)
“I am proud to work with her,” Hawley says of Gillibrand in a statement to TIME. “It is imperative this measure be included in this year’s NDAA.”
Despite the bipartisan support, however, the measure—called the The Military Justice Improvement and Increasing Prevention Act—might not clear the final hurdles of the lawmaking process. While reconciling the differences between the House and Senate versions of the legislation, the chairmen and ranking members of both chambers’ Armed Services Committees—some of which have expressed opposition to changing the military’s justice processes—could nix or change the provision without input from other members while compiling their final version of the bill.
“I have significant concerns that they will strip it out entirely,” Gillibrand tells TIME.
Monica Matoush, a Democratic House Armed Services Committee spokesperson, says House Democrats “agree with Senator Gillibrand on more than 95 percent of the underlying policy changes currently under consideration.” But, Matoush adds, “Each year the NDAA can change—sometimes dramatically—as it makes its way through the legislative process, just like any bill that moves through regular order.” Because the Senate hasn’t yet passed its own version of the bill, she says, “final negotiations [are] markedly more complicated.”
The offices of Senate Armed Services Chairman Sen. Jack Reed of Rhode Island and Ranking Member Jim Inhofe of Oklahoma did not respond to requests for comment about their plans regarding this measure. House Armed Services Committee Ranking Member Mike Rogers also did not respond to a request for comment.
“It is outrageous that the Senate and House Armed Services Committees would even consider stripping out a provision that is backed by a bipartisan majority in both chambers and has been included in the Senate version of the bill,” a bipartisan group of 44 Senators and 22 Representatives wrote in a Tuesday letter to the chairmen and ranking members. “Sexual assault in the military is a serious concern and demands a real solution, not a watered-down provision slipped in the final bill behind closed doors.”
Four things have changed recently, multiple Senate staffers and issue experts tell TIME, that elevated this issue to spur bipartisan dealmaking in an era of bitter partisanship.
First, the 2020 murder of 20-year-old U.S. Army soldier Vanessa Guillén by another enlisted soldier inside a Texas armory sounded alarm bells over the flawed system. Guillén had told her family she was being harassed by a superior, but didn’t report him out of fear of retaliation.
Second, there has been a steady uptick in the number of service members reporting sexual harassment and assault, renewing concerns that military cannot manage the issue on its own. In Fiscal Year 2018, 6,053 military members formally reported sexual assault, compared to fewer than 5,000 in 2014 and fewer than 3,000 in 2012.
Third, Defense Secretary Lloyd Austin recommended this summer that sexual assault be dealt with outside the chain of command, bucking the years-long position of generals and admirals who have maintained that they can respond to such crimes internally.
But most influential in getting a majority of lawmakers to support the effort, some lawmakers and Congressional aides from both sides of the aisle argue, was the support of one Republican: Sen. Joni Ernst of Iowa.
Ernst, a former military officer and a sexual assault survivor, has voted against legislation that would remove sexual assault investigations from the chain of command in previous years. In 2019, she even introduced her own bill that would maintain the chain of command’s authority but allow independent legal advisers to review some cases of sexual misconduct. Her decision to change her stance and co-sponsor Gillibrand’s bill “was actually the key to this entire thing,” says a Gillibrand aide “because she represents a unique position as the only female combat veteran on the Republican side of the aisle, as well as being a survivor, as well as having a daughter at West Point.”
Ernst’s office did not respond to a request for comment.
Sen. Richard Blumenthal of Connecticut, another Democrat who has supported amending the military justice process for multiple years, agrees Ernst’s support was crucial. “There has been a real game change in Republican views on this issue,” Blumenthal tells TIME, “largely as a result of Senator Ernst demonstrating real leadership.”
Concerns about conference
Despite the momentum and broad support behind the push, concerns remain that the provision could be stripped or weakened in the conference process.
It wouldn’t be the first time a measure pertaining to reporting sexual assault in the military was supported by both chambers but didn’t end up in the final conference version of the bill. Both the Senate and House versions of the NDAA bill for Fiscal Year 2020 included provisions to protect survivors who report their sexual assault from being penalized for minor crimes like underage drinking that occurred at the same time as their assault, but it didn’t end up in the final version of the NDAA legislation that year.
Retired Air Force Colonel Don Christensen, the president of veterans’ rights group Protect Our Defenders, is worried the committee leaders might weaken the provision by making the independent review process only apply to sexual assault crimes. “Senator Reed, who I think views himself as a friend of the generals and admirals and an advocate for their position, is basically trying to split the baby and say, ‘Okay, we’ll take away a limited number of offenses, but we’ll leave with them these other offenses,’” says Christensen. “That’s one concern.”
Advocates of the measure say creating one reporting process for some serious crimes like sexual assault, and a different process for others like aggravated assault, doesn’t make sense. “Sexual assault should not be singled out as inherently different than other crimes,” Blumenthal says.
If the committee leaders decide to slash the provision, they will be in defiance of the majority of their peers. “It just seems absurd to me,” Gillibrand says, “that four members of Congress—four men, in a back room with the door closed—can subvert the will of so many other members.”