(CNN)Democratic Sen. Kirsten Gillibrand of New York, who has been fighting for years to change the way the military prosecutes sexual assault cases, is poised to finally remove those cases from the military’s chain of command after the Pentagon’s civilian leader endorsed the change last week.
But a major showdown is looming between lawmakers and military leaders over how the US armed forces overhaul their justice system to try to curb sexual assault within the military.
The lawmakers pushing for one of the most sweeping changes to the military’s judicial code in recent memory say they still are concerned that the military — and its allies in Congress — will try to water down changes they argue are necessary after Pentagon leaders have repeatedly failed to address the problem of sexual assault.
As Defense Secretary Lloyd Austin endorsed the removal of sexual assault and other related cases from the military’s chain of command last week, a key Senate opponent to changing the military’s judicial code released letters from all of the Joint Chiefs of Staff written in May that raised concerns about making broad changes to the military justice system.
At issue now is how the military handles other major crimes beyond sexual assault. While Joint Chiefs Chairman Gen. Mark Milley expressed openness to changing the way sex crimes are prosecuted in the military, Gillibrand and GOP Sen. Joni Ernst of Iowa have written legislation that would move the decision to prosecute sexual assault, as well as most felony cases in the military, to independent prosecutors, away from military commanders.
Gillibrand argued that professional prosecutors, not commanders, should handle the prosecution decision for nearly all major felony cases, to address both the problem of sexual assault cases as well as a disparity in prosecutions affecting minority service members.
“I believe that the only reform that can address the two issues that are problematic — one, the prosecution of sexual assault in the military, and two, the racial disparities against black and brown service members — is to have a bright line at all felonies and take them out as chain of command against trained military prosecutors,” Gillibrand said.
But the Joint Chiefs raised concerns that taking the decisions over prosecuting most major crimes from commanders would harm their ability to maintain order and discipline in their ranks — a similar argument military leaders have previously made about sexual assault cases. Instead, they wrote that any change should be limited to sexual assault and other related crimes.
“Diverting nearly all serious offense to judge advocates could be counterproductive to our prevention efforts, which emphasize the critical responsibility of senior leaders,” Chief of Naval Operations Adm. Michael Gilday wrote in his letter.
The chiefs’ letters, which were written in May but released last week by Sen. Jim Inhofe of Oklahoma, the top Republican on the Senate Armed Services Committee, caught Gillibrand and Ernst by surprise. They underscored the tension between the lawmakers and military leaders as the changes are being debated by Congress.
Ernst told CNN it was a “problem” that she hadn’t been informed about the letters.
“I am disappointed in our military leadership. What they are trying to do is create what we see or what we call a ‘pink court,’ ” Ernst told CNN. “By separating certain crimes out, rather than all serious crimes, I think they have made a huge mistake.”
Despite the consternation about Gillibrand’s legislation, Austin’s endorsement of having independent prosecutors handle sexual assault causes is a significant victory for Gillibrand, who has repeatedly pushed for the change and has forced Senate votes on the matter since the Obama administration.
“I think it’s extremely powerful that we have a secretary of defense that is in favor of eliminating sexual assault and related crimes out of the chain of command,” Gillibrand said. “It shows he no longer believes convening authority is necessary for commanders to instill good order and discipline and for commanders to
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