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Senate effort to reform military justice system, now under threat, faces final hurdle

U.S. Sen. Kirsten Gillibrand (D-NY) (R), speaks to U.S. Sen. Richard Blumenthal (D-CT) and U.S. Sen. Joni Ernst (R-IA) following an April 29, 2021, news conference on the Military Justice Improvement and Increasing Prevention Act.
Stefani Reynolds
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U.S. Sen. Kirsten Gillibrand (D-NY) (R), speaks to U.S. Sen. Richard Blumenthal (D-CT) and U.S. Sen. Joni Ernst (R-IA) following an April 29, 2021, news conference on the Military Justice Improvement and Increasing Prevention Act.

Sen. Kirsten Gillibrand, D-N.Y., is leading a bipartisan coalition of more than 60 senators and House members in urging congressional leaders to keep significant reforms to the way the military prosecutes serious crimes, such as sexual assault, in this year's defense bill.

In a letter on Tuesday, Gillibrand and others said it would be "outrageous" to remove the sweeping legislation, known as the Military Justice Improvement and Increasing Prevention Act, from the defense bill.

"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," Gillibrand, chair of the Senate Armed Services Committee's personnel subpanel, said in a statement.

The proposal would keep serious crimes under military oversight but allow those cases to be handled by criminal justice attorneys with relevant expertise rather than commanders who often lack legal training.

The military justice reform effort has 66 cosponsors in the Senate, 220 in the House and significant support from major veterans groups.

And while much of the focus has been on sex-related crimes, Gillibrand and supporters have said it should apply to all major crimes, such as murder, manslaughter and child pornography.

"It is the only reform that will provide true independence for prosecutors in the military justice system and is essential to ensure that victims, accused, and the public all have full faith and confidence in the military justice process," Gillibrand said on Tuesday.

Defense policy bill stalls in the Senate

Gillibrand's military justice reform legislation is part of the National Defense Authorization Act, or NDAA, passed by a Senate committee earlier this year. However, the House-passed version of the NDAA does not include the overall sweeping provisions that were part of the Gillibrand proposal, although several key House members, including Speaker Nancy Pelosi, D-Calif., and Rep. Jackie Speier, D-Calif., support the reform.

Ultimately, if the defense bill passes the Senate, the final version will be hammered out in conference committee, setting up a fight for the justice reforms in this year's annual legislation.

"Putting serious criminal cases in the hands of independent military prosecutors is a commonsense reform that will professionalize our military justice system," the members wrote in their letter Tuesday. "The consensus among experts is that this reform will improve the system."

On Monday evening, the Senate tried to move the annual defense bill forward after hitting a stumbling block before the Thanksgiving recess, with Republicans opposing an agreement on amendments that would be taken up for the legislation.

However, the plan failed to reach the 60 votes needed in the evenly divided chamber to move forward. That's left Senate leaders with new challenges on reaching an overall deal to ultimately vote on the defense bill, which has passed annually for the last six decades.

An efforts months in the making

Earlier this year, the Senate Armed Services Committee approved the military justice provision, handing Gillibrand a major victory.

For weeks this summer, Gillibrand openly sparred on the Senate floor with her Democratic colleague, Senate Armed Services Committee Chair Jack Reed of Rhode Island, to gain approval for her measure. In July, the two had issued a joint statement hailing a new agreement.

In the past week, a coalition of veterans groups, including the Iraq and Afghanistan Veterans of America, AMVETS, the Service Women Action Network and the American Legion, also wrote congressional leaders pushing them to keep the justice plan provisions intact. In addition, 29 state attorneys general urged the same in another letter earlier this month.

The proposal has had the backing of key Republicans, such as Iowa Sens. Joni Ernst and Chuck Grassley, two key figures in the effort.

Traditionally, the defense authorization bill draws wide bipartisan support, but revamping how the military handles felonies previously met steadfast objections from Pentagon leaders and key congressional members since it was introduced eight years ago.

However, much of those dynamics shifted after Gillibrand joined forces with Ernst, a sexual assault survivor before she became a veteran combat company commander. Ernst and others pointed to the need for dramatic change as statistics showed sexual assault crimes rising in the ranks despite other legislative fixes.

"We are bound and determined," Ernst told NPR in May.

It marked a game changer as a new wave of former holdouts joined forces with the duo to become cosponsors, giving the bill the 60 votes needed to gain passage on the Senate floor.

Supporters have said the military would continue to see the services plagued with prosecutorial troubles without the plan. They also noted that only one-third of victims of sexual assault in the military are willing to report their crimes, another indicator of the troubles facing the prosecution of such crimes.

"That shows a clear lack of trust in the current system's ability to be unbiased and deliver justice without retribution," they said. "The only way we will be able to reassure victims that they will get an impartial review of their case is to make experienced judge advocates the convening authority in their cases."

Copyright 2021 NPR. To see more, visit https://www.npr.org.