Sweeping Military Justice Reforms Get New Life in Annual Defense Bill

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Sen. Kirsten Gillibrand speaks during a news conference.
Sen. Kirsten Gillibrand, D-N.Y., speaks during a news conference, Thursday, May 5, 2022, on Capitol Hill in Washington. (AP Photo/Jacquelyn Martin)

Changes to the military justice system that got cut from last year's defense policy bill have been revived in the version of this year's bill making its way through the Senate now.

Last year's National Defense Authorization Act, or NDAA, overhauled the military justice system, creating the role of special trial counsel to make prosecutorial decisions on sex crimes and some other serious offenses instead of commanders.

While historic, the reforms were pared down from what advocates and some lawmakers had been pushing, including not moving as many crimes outside of the chain of command and leaving commanders with some roles in the court-martial process.

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In a closed-door session this week, the Senate Armed Services Committee agreed to push more crimes to the special trial counsel and take away more court-martial decisions from commanders in its initial version of this year's NDAA.

"We are so excited about the progress we've made," Sen. Kirsten Gillibrand, D-N.Y., who has led the charge on military justice reform in Congress, told Military.com on Thursday. "It was a bipartisan, overwhelmingly positive vote, and a lot of previous adversaries were supportive. So it was a real consensus and coming together and finding common ground on how we can eradicate sexual violence in the military."

Amid years of the Pentagon struggling to combat sexual assault in the ranks, the pared-down reforms passed last year by Congress involved rewriting parts of the Uniform Code of Military Justice.

When the changes take effect in late 2023, cases of sexual assault, revenge porn, murder, manslaughter, sexual assault of a child, kidnapping, domestic violence, stalking, retaliation and child pornography will be largely under the purview of the special trial counsel. The counsel will be able to issue recommendations on whether to go to court-martial that are supposed to be binding on commanders.

Last year's NDAA left commanders with the authority to select the jury, choose witnesses, grant or deny witness immunity requests, order depositions, approve hiring expert witnesses and allow an accused service member to separate from service rather than face court-martial.

Gillibrand and her supporters had pushed for all felony-level crimes to be handled by fully independent prosecutors, and she vowed to continue pushing for broader reforms even as the ink was drying on last year's NDAA.

The provision advanced by the Senate Armed Services Committee this week would add six more crimes to the responsibilities of the special trial counsel, including indecent conduct, indecent language to a child, pandering and prostitution, committee staffers told reporters on condition of anonymity under terms set by the committee.

It would also move "residual prosecutorial and judicial duties" from commanders to an "appropriate entity," according to a bipartisan summary of the bill. Those duties include granting immunity to witnesses and determining whether the accused is fit to stand trial, staffers said. The appropriate entity is not specified in the bill, leaving it up to the Pentagon to decide as it revises the Manual for Courts-Martial.

"It got to a very positive place where we're getting nearly almost everything that we wanted, certainly a much more independent trial counsel and making sure additional crimes were added," Gillibrand said.

One of the top opponents of the broader military justice reforms last year was Senate Armed Services Committee Chairman Jack Reed, D-R.I. Asked whether he supports what's in the bill this year, committee staffers would say only that the provision passed with bipartisan support.

Gillibrand also would not specify how Reed voted, but said he "worked with me on this amendment, and we helped build it." She added she's "very optimistic" it won't get taken out of the bill during closed-door negotiations between leaders of the Senate and House Armed Services Committees on the final measure that gets signed into law, as happened last year.

The NDAA still must pass the Senate and then be reconciled with a version now being drafted by the House Armed Services Committee before becoming law.

Separately, Gillibrand had been expected to offer an amendment during the committee's consideration of this year's NDAA to allow the Pentagon to pay for and perform abortions.

Democrats have been pushing measures to protect abortion rights for service members amid the expectation that the Supreme Court will soon overturn the landmark Roe v. Wade decision that has ensured abortions are available throughout the country.

But Gillibrand said she ended up withdrawing her amendment without having it voted on because she "did not believe it would be successful." The committee is split evenly between Democrats and Republicans, and tie votes fail, meaning even if every Democrat supported the amendment, it likely would not have passed.

-- Rebecca Kheel can be reached at rebecca.kheel@military.com. Follow her on Twitter @reporterkheel.

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