Sen. Kristen Gillibrand, a Democrat from New York, criticized the removal of provisions in the final version of the NDAA that passed the Senate version earlier this year.
The Senate could pick up the House-passed measure as soon as this week, though given the chamber’s crowded year-end to-do list, that timing could slip to next week.
The provisions that were cut included shifting many responsibilities in the military justice system from the commander to the special prosecutor in sexual assault and other serious crime cases, Gillibrand said.
Military commanders are to forward complaints of sexual harassment to an independent investigator, a shift from how things are handled now, the bill states. Commanders are also removed from “decisions related to the prosecution of covered crimes,” which include rape, sexual assault, murder and manslaughter, according to the bill. Those decisions will instead be moved to an Office of the Special Trial Counsel. The bill creates an Office of the Special Trial Counsel in each service.
Gillibrand believes those measures are not strong enough to fully reform the military justice system. In her proposal, commanders would be removed from the chain of command and military judicial procedures around prosecuting those crimes entirely when someone is accused of sexual assault and harassment.
The way it is written in the current bill, if the special trial counsel determines the crime does not fit within their authority or “elects not to prefer charges,” they can refer the charges back to a commander or convening authority.
Without Gillibrand’s changes, commanders are still able to pick the jury, select witnesses and grant or deny witness immunity requests, she said. They can also continue to allow service members accused of crimes “the option of separation from service instead of facing court martial, a total denial of justice,” Gillibrand said.
Critics of Gillibrand’s proposal argue that moving all of the powers in the judicial process, including selection of jury and witnesses, to a special prosecutor would create an “inherent conflict of interest,” a congressional aide said.
Gillibrand acknowledged the reforms included in the bill were still improvements to how the system operates now. One of the key reforms included in the bill makes sexual harassment a crime in the Uniform Code of Military Justice for the first time in the military’s history.
“While there’s no doubt that those are important advances, this bill does not reform the military justice system in a way that will truly help survivors get justice,” Gillibrand said.
All of Gillibrand’s proposed reforms are also incorporated into a standalone bill that has wide bipartisan support with 66 co-sponsors in the Senate, the Military Justice Improvement and Increasing Prevention Act, Republican Sen. Chuck Grassley of Iowa said. Gillibrand, Grassley and Republican Sen. Joni Ernst, also from Iowa, called for a separate floor vote on their bill to make sure these reforms are made to the military justice system, all three said at the news conference on Wednesday.
“Majority Leader (Chuck) Schumer and Speaker (Nancy) Pelosi support not just this bill but having a standalone vote on it, so there is a path forward, and we will be taking it,” Gillibrand said.
Ernst criticized the process surrounding the NDAA, an annual piece of legislation that both Senate and House Armed Services Committee members and staff have been working on for months.
The NDAA was stalled in the Senate last week after Republican Sen. Marco Rubio of Florida put a hold on the bill when his amendment regarding Uyghurs was not included in an amendment package agreement. In an agreement made by party leaders in both chambers, there will be no debate or added amendments in the Senate.
“We should have been on this bill much, much earlier so we could have a robust debate about the extremely important issues, especially the one of sexual assault and military justice reform,” Ernst said.