The defense reauthorization bill is drawing more interest than usual, because this year it comes with a catfight — or so the press and the male cats in the Senate would have it.
The debate over amendments that would change how military sexual assaults are handled pits two allies on the Senate Armed Services Committee, Sen. Kirsten Gillibrand, D-N.Y., and Sen. Claire McCaskill, D-Mo., against each other.
At issue is how to improve the abominably low rate of reporting and prosecution of sexual assaults in the military. The Pentagon found that last year out of an estimated 26,000 sexual assaults, 3,300 were reported and 302 prosecuted. In June, Army Secretary John McHugh testified that “we have failed” to deal properly with would-be victims of sexual assault. At the same hearing, the chairman of the Joint Chiefs of Staff, Gen. Martin Dempsey, said, “If a perpetrator shows up at a court martial with a rack of ribbons and has four deployments and a Purple Heart, there is certainly the risk that we might be a little too forgiving of that particular crime.”
The defense reauthorization bill contains a lot of improvements to an awful situation, but Sens. Gillibrand and McCaskill have offered competing solutions to a central problem. The proposals have divided the two powerhouses on the committee, so much so that the president is staying out of the fray, despite a plea from Sen. Gillibrand to show some leadership.
Sen. Gillibrand’s amendment has the advantage of simplicity. She would remove the reporting and prosecution from the chain of command entirely, and transfer it to a kind of super-judge advocate general independent of the command. Testimony of victims has shown that the commanders have blown it: Just listen to those who have been ignored, retaliated against, had verdicts overturned and been otherwise abused twice — first by the assault itself and then by friendly fire.
Commanders, who often aren’t unbiased, have absolute authority to accept or reject a recommendation to prosecute. There’s no appeal. What’s more, a commander can overturn a guilty verdict without so much as a written explanation of why he’s doing so.
Sen. McCaskill, a former prosecutor, agrees with Sen. Gillibrand on the nature of the problem but has proposed a more nuanced solution. Sen. McCaskill would put in place civilian review at the highest level — the secretary of the Navy, for example — over a decision NOT to prosecute. Now, commanders have final authority. If the JAG and a commander agree to prosecute, there’s no review needed. The matter simply goes to court martial.
Sen. McCaskill would also eliminate the pernicious “good soldier defense,” which mitigates punishment for those who otherwise carry out their duties at a high level — something like granting parole to convicts who perform well in the prison laundry. She would create the recourse to remove commanders from the process altogether if automatic review doesn’t work.
What Sen. McCaskill doesn’t want is to create an entity that bypasses commanders entirely because she believes they should have some skin in the game. The atmosphere won’t change if commanders, who oversee every other element of life in the military, don’t buy in to a process with vast new safeguards. A unilateral decision to deep-six a complaint could no longer happen.
In a huge get for Sen. Gillibrand, Majority Leader Harry Reid announced his backing for her version yesterday. That brought to 50 the number of publicly declared supporters, not enough to carry the day as the measure will probably need 60 votes to pass. Among the 50 is an unlikely vote, Sen. Ted Cruz of Texas. But there also is one unusual holdout, Sen. Reid’s ally, Sen. Carl Levin, chairman of the Armed Services Committee.
Sen. McCaskill is in a lonely spot: Her usual buddies are united on the other side and she has just two Republicans, Sens. Kelly Ayotte and Debra Fischer, standing with her. I almost had a Green Room conversion last week as I listened to her explaining her rationale for going her own way.
Sens. McCaskill and Gillibrand are at pains not to question each other’s motives. It’s not because they are being “nice,” or belong to the gentler, kinder sex, but because they look at the men and see their ways don’t work. It took a couple of the women working behind the scenes to get the government opened last month.
Whatever happens with the dueling amendments, the seven women on the committee have already pushed huge reforms to the underlying bill that are no longer up for debate: stripping commanders of their ability to overturn jury convictions, providing an independent counsel to each victim and requiring a dishonorable discharge or dismissal for anyone who is convicted of sexual assault. The bill also criminalizes retaliation against victims who have reported a sexual assault, creates a civilian review of cases that aren’t prosecuted and eliminates the statute of limitations in these cases.
Reporting, given the abysmal record of treatment, has been a terrible problem. Victims are afraid that their complaint will go nowhere, that they’ll be exposed and that there will be retaliation. But in the first three quarters of this year, reports are up 46 percent. That’s a real-world improvement, no matter whose amendment wins.
Margaret Carlson is a columnist for Bloomberg View.