President Obama is under pressure to support legislation that would move the prosecution of sexual assault cases in the military outside the chain of command.
Obama has stayed quiet on legislation sponsored by Sen. Kirsten Gillibrand (D-N.Y.), which would grant military prosecutors the power to decide whether to prosecute sexual assault and other major criminal cases — not commanders. It makes an exception for military-specific crimes.
The fight forces Obama to choose between military leaders and some of his keenest supporters.
Advocates counter that the military’s culture won’t change — and victims of assault won’t be protected — unless the power to prosecute is stripped from commanders.
Obama held a meeting with the Joint Chiefs and service secretaries last month, telling them “to leave no stone unturned” in rooting out the problem after a survey of the military found reports of sexual assaults spiking to 26,000 last year.
“I want us to explore every good idea that’s out there in order to fix this problem,” Obama said after the meeting.
Asked last month about Gillibrand’s bill, Obama senior adviser Dan Pfeiffer would only say there were an “array of legislative solutions that are out there.”
“We don’t take a position on pending legislation, but we are open to consideration of any ideas to improve prosecution, prevention, and victim support,” National Security Council spokeswoman Caitlin Hayden said in a statement to The Hill on Tuesday. “We are working closely with DOD on these issues, and I’d refer you to them for more details.”
Nineteen senators are backing Gillibrand, who has taken her case straight to the White House as well as to Defense Secretary Chuck Hagel, according to aides.
Allowing commanders to made decisions on prosecutions discourages victims from coming forward because their superiors can overturn guilty verdicts handed down by military juries, Gillibrand said at the Tuesday hearing.
“You have lost the trust of the men and women who rely on you that you will actually bring justice in these cases,” she said at an Armed Services Committee hearing. “They’re afraid to report, they think their careers will be over, they fear retaliation, they fear being blamed.”
She questioned the ability of military commanders to judge sexual assaults, saying that “not every single commander can distinguish between a slap on the ass and a rape.”
Groups backing Gillibrand’s bill are urging the White House to offer its support.
“We think it’s critically important to have the White House put its support behind the bill that addresses the core issue, which is the chain of command,” said Brian Purchia, the communications director for Protect Our Defenders, an advocacy group that testified at Tuesday’s hearing.
“We would love to see the president come out for the fundamental reform that we need,” he said.
The bill faces a challenging path forward, and has virtually no chance without White House backing.
“If the president isn’t going to strongly back the bill, I doubt if it’s going to go anywhere,” Maine Sen. Susan Collins, one of four Republican co-sponsors on Gillibrand’s bill, told The Hill.
Joint Chiefs Chairman Gen. Martin Dempsey and the service chiefs at Tuesday’s hearing all said that keeping commanders in the central role of administering justice was essential.
Army Chief of Staff Gen. Ray Odierno compared sexual assault to “a cancer that left untreated will destroy the fabric of our force,” but said that changing the chain of command structure won’t fix the issue.
“Making commanders less responsible and less accountable will not work,” Odierno said. “It will inhibit our commander’s ability to shape the climate and discipline of our units, and most importantly it will hamper the timely delivery of justice to the very people we wish to help.”
Gillibrand’s bill also has not won over Senate Armed Services Committee Chairman Carl Levin (D-Mich.).
Levin said the problem of sexual assault has become a “stain on the military,” but he also stressed the importance of having the chain of command involved to fix the problem.
Other Democrats who have been active on the issue, such as Sen. Claire McCaskill (Mo.), have also expressed hesitation about removing cases from the chain of command.
Gillibrand’s bill is one of several measures addressing sexual assault that the committee will take up next week when it marks up the annual defense authorization bill.
The committee is expected to adopt some changes to the military’s judicial code that are endorsed by Hagel and the military brass, including stripping commanders’ ability to overturn guilty verdicts in a post-trial review.
Gillibrand, who has been discussed as a potential Democratic presidential candidate in 2016, said she wasn’t discouraged Tuesday by the military officials’ opposition to her legislation.
“Early on in the fight to repeal ‘Don’t ask, don’t tell,’ the military did not support repealing ‘Don’t ask, don’t tell’ either,” she said. “The military is often reticent to change the status quo.”