Gillibrand’s Questionable Sexual-Assault Proposal

by Betsy Woodruff
Democrats and Republicans are skeptical of the senator’s proposal to change the military justice system.

If you’ve followed the debate on how the military should handle its sexual assault crisis, you’ve probably heard a lot about Democratic senator Kirsten Gillibrand.

There’s a panoply of proposals addressing the issue, but the New York junior senator’s suggestion seems to have gotten the most attention thus far — and engendered the most controversy. That’s because she’s pushing for a substantial divergence from the military’s standard operating procedures for crime.

The military holds that, to maintain good order and discipline, its own commanders should oversee issues of law and order. Thus, the military doesn’t have standing courts. Rather, decision to convene a court is called disposition authority, and that authority rests with commanders. Gillibrand’s proposal would take away commanders’ disposition authority in cases where a member of the military is accused of a crime that isn’t military-related (remember that, I’ll come back to it in a bit). Sexual assault would be included in those cases. So, instead of commanders deciding whether or not to convene courts in these cases, judge advocates (JAGs) in the Pentagon would decide. This is referred to as taking those cases “out of the chain of command,” and it would affect between one-half and two-thirds of all cases handled under the Uniform Code of Military Justice.

Currently, commanders decide whether or not to take a case to court after consulting the recommendations that JAGs write. Gillibrand’s proposal would leave the entire decision process to the Pentagon — again, taking it “out of the chain of command.”

The proposal has supporters and detractors on both sides of the aisle, but the Democratic party’s election apparatus seems to have taken a side. In May, the Democratic Congressional Campaign Committee sent out an e-mail blast soliciting signatures in favor of her provision.

“Democrats in Congress are taking a stand to better protect our service men and women — but they need our support to ensure that independent prosecutors are deciding whether to prosecute sexual assault cases,” read the message.

“Democrats in Congress” is a little strong. The biggest roadblock to Gillibrand’s proposal might, in fact, be one of those heroic congressional Dems: Carl Levin, the senator from Michigan who heads the Armed Services Committee, seems to oppose taking these cases out of the chain of command, as Roll Call’s Megan Scully reports. The DCCC’s messaging notwithstanding, the sexual-assault issue isn’t as simple as “Democrats good, Republicans bad.”

And it’s not just in the Senate that it will face problems: A Republican House Armed Services Committee aide tells me that if Gillibrand’s proposal somehow makes it out of the senate, it won’t be taken seriously in the House committee. The military’s top brass seem to have come to a consensus in opposing the measure.

That’s because the change could backfire. Many blame military culture for the prevalence of sexual assault, and argue that changing military culture requires giving commanders more influence, not less. Aides close to the proceedings in the House and Senate say legislators believe the sexual-assault problem is just that: a sexual-assault problem, not a military-justice-system problem.

Another issue with Gillibrand’s proposal, according to a Senate aide familiar with the proceedings: “The distinction between military-related and non-military-related is silly. Every violation of a law in a military unit is a military matter. If you have soldiers stealing things, they’re not focused on training and getting ready for war.”

So Senator Gillibrand’s proposal for the military may have drawn attention, but it’s earned skeptics, too. That, combined with the military’s opposition to the idea, means it’s unlikely to go far. But one thing to bear in mind: Someday, Gillibrand might want to be commander-in-chief.

— Betsy Woodruff is a William F. Buckley Fellow at the National Review Institute.

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