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Late Tuesday night, the U.S. House of Representative passed its version of the National Defense Authorization Act. The bill, which still needs Senate approval, includes a number of changes to how the military deals with its long-standing problem of sexual assault. But some members of Congress say the reforms don't go far enough and could even exacerbate the problem. Amna Nawaz reports.
Late last night, the U.S. House of Representatives passed its version of the annual National Defense Authorization Act. The bill, which still needs Senate approval, contains a number of changes to how the military deals with its longstanding problem of sexual assault.
But some members of Congress say the reforms don't go far enough and could even exacerbate the problem.
Amna Nawaz more.
Judy, for decades, there's been a debate among military experts and on Capitol Hill about how to improve the way the military investigates and prosecutes allegations of sexual assault in its ranks.
One major issue is the role and influence of military commanders in deciding how cases are adjudicated.
With me now is New York Democratic Senator Kirsten Gillibrand.
Senator Gillibrand, welcome back to the "NewsHour." Always good to have you.
A lot of folks have been hailing this new legislation, this agreement, as a sea change, a giant leap forward for sexual assault survivors. You have said, yes, it does have some major reforms, but it doesn't go far enough, and you plan to vote against it.
Sen. Kirsten Gillibrand (D-NY):
Well, it's a missed opportunity.
We had such a groundswell of support to creating an independent prosecutor that functioned outside the chain of command, one who was highly trained and independent, with no bias. And, unfortunately, the House and the conference committee chose to retain enormous amount of authority within the chain of command. The commander is still the convening authority.
So, at the beginning of every trial, it will say, this court martial has been convened by XYZ commander. The commander continues to retain authority to choose some of the witnesses, to give permission for certain expert testimony, to entirely dismiss someone from the military.
So, there's a lot of authority that is still in the commander's hands. And so, from the perception of a survivor or a plaintiff, I don't think they will believe that this process is independent of their commander, who may well be in their own chain of command or the chain of command of their perpetrator and the person they're accusing of sexual assault.
The commanders did lose some power in this, right? They no longer have the authority to decide if the accused should be prosecuted in the first place. They restricted that authority.
And now the lead trial counsel, if the cases move forward, reports straight up to the secretary of each military branch, which is a change. There's also a provision for tracking instances of retaliation.
Do you think all of those will have any kind of impact?
Sen. Kirsten Gillibrand:
So, all of those changes would seem to be positive.
But about a third of service members who are assaulted in the military don't report because they don't believe the chain of command will have their back. In fact, 44 percent, when surveyed, said that they would be more likely to report if the decision-making was not within the chain of command.
So, yes, they made some changes. I just don't know if those changes will work, because they didn't meet the need of an independent military justice system.
So, Senator Gillibrand, what happened?
I recall, in the summer, you were confident that this bill would move forward. You just cited all the support it had. We should note the final text was done by the chairman and ranking members of both the House and Senate Armed Services Committee. So you were not in that room.
But what happened? How did it get removed?
Senators — Senator Jack Reed and his ranking member, as well as Congressman Adam Smith and his ranking member, chose in conference to take it out.
It did pass in the Senate Armed Services Committee, the entire provision, and we thought it did have sufficient support. But these four men have enormous power. And, behind closed doors, they chose to put their will in front of the will of all those members of Congress.
The other reform they chose not to take is a bright line at all serious crimes that are non-military. Our bill, for example, had 38 crimes removed from the chain of command. This bill chose to remove 11. It didn't remove assault, and it didn't remove child abuse, things that clearly should have been removed from the chain of command, because a lot of crimes can be shoved right under those two crimes.
When you have just a small number of crimes being removed and given to a special prosecutor, you run the risk that service members will see this as special treatment, particularly for crimes that disproportionately affect women. Women are marginalized enough in the armed services. We don't want them to be seen as getting special treatment and further marginalized. We call that a pink court.
And that's why we had recommended a bright line at the serious crimes, the one that held more than a year or more of punishment, excluding the military crimes.
Senator, I need to ask you about these reports that there were top military lawyers and even Secretary of Defense Austin himself lobbying members of Congress against your expensive legislation.
Is that true? And why do you think they would do that?
Well, I'm well aware that Secretary of Defense Austin was calling around, including calling the majority leader and others, to be heard. And that's obviously his right.
But everyone who serves in the military knows that convening authority is determinant for the projection of power in these cases. And so service members know that, if the convening authority is still the commander, that the commander holds enormous weight in the outcome of these cases.
That is Democratic Senator from New York Kirsten Gillibrand joining us tonight.
Senator, thank you so much for your time.
And for a different perspective now, we turn to Rhode Island Democrat Jack Reed. He is chairman of the Senate Armed Services Committee.
Mr. Chairman, welcome back to the "NewsHour." Always good to have you here.
You just heard Senator Gillibrand there talk about the broad support her more expansive reforms had, 66 senators, 220 members of Congress, veterans organizations, attorneys general around the country. They wanted those more broad reforms. So why did you cut them out of the bill?
Sen. Jack Reed (D-RI):
Well, we actually expanded the reforms that the House had proposed. And, indeed, the House did not consider Senator Gillibrand's legislation either in the committee or on the floor.
So, what we managed to accomplish in the conference was to expand and include crimes that are not specifically related to sexual behavior. So, it's no longer a pink court. And, indeed, it offers the possibility of further changes to expanding that list.
So, we have, I think, gone a long way to recognize the problem. And this is a problem that has been undercutting our military for years. The expectation, the hope was that there could be a military solution. But I think we needed — and I would commend Congresswoman Speier and Senator Gillibrand, Senator Ernst for what they have done.
And, also, I have had the opportunity to go down to Fort Hood, talk to individual soldiers, female soldiers especially, get a sense of what they need, and to restore trust. And this legislation will do that, and do it in a way it will provide fair justice.
Well, Mr. Chairman, if I may, let me just ask you about some of the specifics in here, because many will argue that it does not go far enough, that you may have created a separate system for some crimes, but that this military commander still has enormous authority and influence over how sexual assault cases are prosecuted.
I just want to tick through some of the details real quick, because military commanders in this system still retain the authority to convene trials, to choose jury members, to grant immunity to witnesses…
Sen. Jack Reed:
That's not correct.
… to approve witnesses and defense experts.
So why should military commanders retain that kind of power?
The military commanders have the authority, as the convening authority, to select a jury pool, just, as in civilian courts, the selection of individual jurors is the choice of the defense lawyer, the special trial lawyer, the prosecutor, and the judge.
In fact, under Senator Gillibrand's proposal, it would be solely the authority of the prosecutor to pick the jury. And that, I think, would raise serious constitutional questions and due process questions about fairness.
Well, I think, if I may, her case that she makes is that would be an independent prosecutor, rather than a commander, who has a connection to both, usually, the accused and the accuser.
Well, I don't know if there's any civilian court in the world in which the district attorney or the federal attorney gets to pick the jury, because they have an incentive to pick people who will be on their side.
I think what we want is fairness. And what we have achieved by allowing the convening authority to establish the pool, not to select the jurors, but to establish the pool, we give the opportunity for the judge, the prosecutor and the defense lawyer to exercise jury selection through a series of challenges for cause or preemptory challenges.
That's the way it's done in every court in America. And to turn it over to the prosecutor, I don't think it'd be accepted by any civil authority.
Well, let me ask you about how this is being received, because there have been some former military lawyers who have said there's really no way a prosecutor can be independent in this system, that the military commanders would still exert enormous influence.
And survivors groups have a real problem with this. They say it does not go far enough, and it feeds the mistrust that everyone agrees exists in the system, that service members do not feel comfortable that offenders will be held accountable in this system.
So I guess my question to you is what your message to those survivors would be, especially the military members who don't believe that this goes far enough.
Well, all I can say is, the most prominent group who supports reforms, Protect Our Defenders, has called this the most transformative legislation in the history of the military justice system.
So we have made extraordinary strides. We have signaled to all of the men and women of the armed forces that we have heard them, that we are creating a system in which the special prosecutor will have the sole right, not the commander, to refer these charges. They can't be overruled by a commander.
We have, though, maintained the ability, we believe, to have a fair and impartial jury. Ultimately, this is going to be coupled with also significant preventive initiatives that we have put in the legislation.
I think one of the perceptions is that this is the only remedy. The best remedy is prevention, not simply adjudication. And we have also done that. And that's in this legislation.
So, we are trying — and I hope we will succeed — we're going to do all we can to succeed — to create an environment in which — you're exactly right — troops trust their commanders and commanders know their troops and care for those troops.
And that's not only a basic tenet of human behavior, but it's also the glue which holds combat units together, individual responsibility and an individual sense of protecting your subordinates, protecting your comrades. That's what we're striving for, and I think we will achieve it.
That is Senator Jack Reed, Democrat from Rhode Island, chairman of the Senate Armed Services Committee, joining us tonight.
Mr. Chairman, thank you for your time.
Thank you very much.
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Amna Nawaz joined PBS NewsHour in April 2018 and serves as the program's chief correspondent and primary substitute anchor.
As the deputy senior producer for foreign affairs and defense at the PBS NewsHour, Dan plays a key role in helping oversee and produce the program’s foreign affairs and defense stories. His pieces have broken new ground on an array of military issues, exposing debates simmering outside the public eye.
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