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For three consecutive nights, New York Senator Kirsten Gillibrand traveled to the Senate to seek swift approval of her bill to reform the military criminal justice system.
After eight years of trying, the Democrat and longtime member of the Senate Armed Services Committee finally has the votes to pass transformative legislation in the upper house. The bill has over 60 cosponsors.
But night after night, his fellow Democrat who chairs the powerful committee, Senator Jack Reed of Rhode Island, said no. “I reserve the right to object,” he said on their last night of fighting openly on the bedroom floor.
This is the final chapter in a battle that has been going on for years.
Reed is one of a group of influential lawmakers who still disagree with every facet of the proposal, even as his support grows elsewhere.
In the military, commanders who are not lawyers can choose the serious criminal cases to be tried. This means that leaders who are pilots, infantry officers and in other positions may be tasked with making important legal decisions with little or no experience.
Gillibrand and the supporters of his measure say the system no longer works. They want these cases removed from the chain of command and into the hands of experienced military prosecutors.
They point to Pentagon reports showing sexual assault cases remain at record highs, while prosecution and conviction rates decline.
For example, reports of these crimes were 37% higher in 2019, compared to two years earlier. It was then that prosecution and conviction rates for related cases were down 7% since Gillibrand’s first legislation.
Reed recently announced that after long opposing the measure, he agreed to remove sex crimes from commanders. But he did not sign a broader plan to make this also apply to other serious crimes such as murder, manslaughter and child pornography.
Reed says the bill should follow the normal order of the committee process, which may gain support from other holdouts. The plan could return to committee later this summer, when the committee considers the annual defense bill.
“I think the committee needs to start from a base that reflects the broadest possible consensus among our members,” Reed said.
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Among others who are still not on board, Reed has the backing of the senior Republican on the Armed Services Committee, Oklahoma Senator Jim Inhofe.
“When it comes to important issues like this, we should not rush,” Inhofe said in response to Gillibrand’s attempts to get legislation passed on the ground.
There is recent momentum behind Gillibrand’s measure.
Earlier this month, General Mark Milley, chairman of the Joint Chiefs of Staff, said he was abandoning his opposition to the plan. And a panel created by Secretary of Defense Lloyd Austin also recently agreed that at least sexual assault cases should be taken off the chain of command.
Gillibrand, who has served on the Armed Services Committee for the past decade, has sponsored the bill since 2013.
“I asked for a vote in 2016, 2017, 2018, 2019, 2020, and I was refused every time,” Gillibrand recently told the Senate.
But this year, Gillibrand teamed up with Republican Iowa Senator Joni Ernst, herself a survivor of sexual assault before becoming commander of a combat company.
“It is time that we take further steps to stop these attacks in order to do justice to the victims and to prevent these actions from continuing,” Ernst said in defending Gillibrand’s recent attempts to push through the plan quickly.
A former recalcitrant of the bill, Ernst is fed up with the increase in the number of criminal cases in the military. “I was torn,” she says. “But we haven’t seen any improvement.”
Some skeptics have said other serious crimes such as murder and manslaughter should be kept in the chain of command, but supporters of the bill say it would be a move to water it down.
“Whether it’s in the military or outside of the military, a felony is a felony, and it should be punished,” said Senator Chuck Grassley of the Iowa GOP, who co-sponsored the bill with Gillibrand since its introduction in 2013.
Supporters also argue that the legislation protects the rights of both victims and defendants. This includes, for example, a serviceman facing a serious crime worried about his rights as a defendant when he already has an acrimonious relationship with his current commander.
Plan supporters like Grassley say the time has come for reforms.
“We have been waiting for almost a decade, there is no need to wait any longer,” he said.
The bill created some bizarre bedfellows, drawing cosponsors from Vermont Independent Bernie Sanders and Massachusetts Democrat Elizabeth Warren to Republicans Ted Cruz of Texas and Rand Paul of Kentucky.
Despite the new hurdles, Gillibrand has signaled that she is far from giving up and will try again in the Senate.
“How long must our military wait for real reform? How long must they wait for a criminal justice system worthy of their sacrifice?” Asked Gillibrand. “There is no convincing argument for the need to give more time to review this legislation in committee. The committee has had nearly a decade to review it.”