WASHINGTON (thehill): Democrats are in the midst of a high-profile fight over how to reform the military justice system.
Though there’s growing support — both within the Pentagon and on Capitol Hill — for changing how sexual assault allegations are prosecuted, the question of how broad a reform bill should go is putting an increasingly public spotlight on divisions among top Senate Democrats.
On one side is Sen. Kirsten Gillibrand (D-N.Y.), who has been a leading advocate in the Senate for years on the issue. On the other is Sen. Jack Reed (D-R.I.), the chairman of the Armed Services Committee, who has broad sway over military policy.
Gillibrand is publicly pushing for Majority Leader Charles Schumer (D-N.Y.) to pick a side by giving her a vote on her bill, which, among other things, shifts the decision for prosecuting “serious crimes” including sexual assault, murder and manslaughter from the chain of command to independent military prosecutors.
“It is a hallmark bill, a generational bill of shifting how we address military justice, how we build the military justice system that’s worthy of the sacrifice our men and women in the military make,” Gillibrand said during an interview with CNN.
Schumer has said he supports the bill, but hasn’t weighed in on the feud between his fellow New York Democrat and one of his committee chairs.
But Sen. Joni Ernst (R-Iowa), who has teamed up with Gillibrand, said that a snag to getting a quick vote is that the bill would likely eat up days, if not weeks, of Senate floor time because they don’t currently have a deal with Schumer and Senate GOP Leader Mitch McConnell (R-Ky.) to speed things up.
“The leaders have to have agreement,” Ernst said. “We want a time agreement to do it, but we haven’t been able to get that yet.”
The effort to pressure Schumer comes after Gillibrand, following behind-the-scenes battles with Reed, went public with the divisions last week by going to the Senate floor to publicly try to set up a vote.
But that effort ran into a roadblock in the form of Reed, a typically soft-spoken Army veteran, who rejected Gillibrand’s request four times on the Senate floor.
Reed is instead planning to put a proposal into an initial draft of a mammoth defense policy, which will move through his committee. His version would focus more narrowly on how sexual assault cases are prosecuted.
“I believe that the committee must start from a base that reflected the broadest consensus possible among our members on how best to move forward on this matter and on the recommendations of Secretary Austin’s 90-day Independent Review Commission,” Reed said, on why he’s blocking Gillibrand’s bill.
His support for taking the prosecution decision for sexual assault cases out of the chain of command is an evolution for Reed, a longtime opponent of the change.
It’s a move in line with recommendations from the Pentagon’s Independent Review Commission. Independent judge advocates, who would report to a civilian-led Office of the Chief Special Victim Prosecutor, would decide whether to charge someone in certain cases of special victims crimes including sexual assault and sexual harassment.
And Joint Chiefs of Staff Chairman Gen. Mark Milley — who estimated that roughly 20,000 men and women were sexually assaulted in the U.S. military last year — has dropped his objection to the proposed change.
“Frankly, you ask me what has caused me to have a change and I’ve given it a hard thought: We haven’t moved the needle, we haven’t resolved this issue,” Milley said last month.
But those changes are far short of the reforms being pushed by Gillibrand, whose bill has enough support to defeat a filibuster. She said Tuesday that with the support of Sen. Ben Sasse (R-Neb.), who signed on over the weekend, her bill now has the backing of 66 senators.
“We have a bipartisan, filibuster-proof majority backing this bill. It’s time to give it a full floor vote and secure justice for survivors,” Gillibrand tweeted.
Sen. Richard Blumenthal (D-Conn.) argued for making changes to the prosecution of felony cases more broadly, as Gillibrand’s bill does, suggesting crimes can be linked.
“It is not just taking sexual assault out of the chain of command of decision but also felonies, serious crimes that may be intertwined and interrelated with sexual assault, as they so often are in the civilian world, whether it is obstruction, intimidation of witnesses, assault, other crimes that may be related to it,” Blumenthal said.
But Schumer didn’t mention the bill in a letter he sent to the caucus outlining what’s on the agenda for June. Unless the bill’s backers can convince him to carve out floor time, Gillibrand will need to try to make changes to Reed’s initial offer in the National Defense Authorization Act (NDAA).
Reed argued that sticking closely to the IRC’s recommendation is a compromise between opponents who oppose any changes and those like Gillibrand who want to go further.
“This is the nature of compromise and why I intend to include the IRC recommendations on accountability in the base markup of the fiscal year 2022 Defense bill, subject to amendment. I believe we will have a robust debate, and I commit to ensuring that every idea and amendment brought by our committee members is given due consideration and receives a vote if that is what the member wants,” Reed said.
Gillibrand has pledged to try to amend the defense policy bill in committee later this summer. Of the panel’s 26 members, 16 are co-sponsors of her legislation giving her good odds as long as they hang together.
“Jack Reed has said that he would run it, he’s told Kirsten that,” Ernst said about her expectations for the committee markup. “But there is no guarantee.”
Sen. Tim Kaine (D-Va.) defended the committee’s process, noting changes to the initial bill put forward by Reed will only need a simple majority to get included into the legislation.
“I’m always open to amendment discussions. …But I think we have a good, normal, order process that really works,” Kaine said, while adding that “I strongly support Gillibrand’s bill.”
But Gillibrand has raised concerns that Reed or others could try to strip out her language, even if it survives the Senate, during a conference committee where the House and Senate will work out their competing versions of the bill.
She could also try to get a vote as an amendment once the mammoth defense bill gets to the Senate floor. But typically while hundreds of amendments are filed senators get bogged down in a stalemate over what changes could get a vote, with only a few actually getting votes as a result.
“I do not want to expose this massive reform that is a generational reform to the whims of those who decide what gets taken out in conference,” Gillibrand said. “It is not acceptable to me to be watered down or reduced or minimized by those in conference.”