Senate panel votes to keep assault cases in military chain of command

The Senate Armed Services Committee on Wednesday rejected removing sexual assault cases from the military’s chain of command.

The panel voted 17-9 for an amendment from Chairman Carl Levin (D-Mich.) that would require a formal review when a commander decides not to prosecute a sexual assault case.

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The change to the defense authorization bill gutted a provision from Sen. Kirsten Gillibrand (D-N.Y.) that would have given military prosecutors — and not commanders — the decision to prosecute major criminal cases, including sexual assault.

The vote was a major blow to Gillibrand’s efforts to overhaul the military’s judicial system, a cause that has pitted her against Levin, the long-time Democratic chairman, and Sen. Claire McCaskill (D-Mo.), one of the committee’s loudest voices for reform.

Gillibrand vowed to fight on, telling reporters she would attempt to secure enough votes to pass it as an amendment to the defense authorization bill on the Senate floor.

“I think it has a chance of passing, and I think if we keep working hard to get the votes we need, we could get to 51,” she said.

Levin’s amendment divided Democrats 7-7, but had the support of most Republicans on the committee, with the exceptions of Sen. Ted Cruz (Texas) and Sen. David Vitter (La.), who supported Gillibrand’s proposal.

The panel voted against Gillibrand’s measure in a rare open markup that the committee held to debate the sexual assault measures.

Gillibrand argued that the commanders have failed to properly address assaults despite promises of zero tolerance. She said removing cases from the chain of command would make it more likely for victims to come forward because many now fear retaliation.

“The chain of command has told us for decades that they will solve this problem, and they have failed,” Gillibrand said.

But Levin warned Gillibrand’s plan would have unintended consequences, and said he was proposing a more effective way to curb sexual assaults.

“I do not support removing the authority of commanders to prosecute sexual assault cases and putting that decision in the hands of military lawyers outside the chain of command,” Levin said. “I believe that doing so would weaken our response to sexual assault and actually make it less likely that sexual assaults would be prosecuted.”

Levin argued that commanders would not be able to change the military’s culture if they lost the authority to prosecute the cases.

“It is harder to hold someone accountable for failure to act if you reduce their power to act,” Levin said.

Wednesday’s vote occurred in response to wide, bipartisan outrage in Congress about sexual assault cases in the military.

President Obama called on the military to do more to tackle the problem, and military leaders have vowed to change the culture to curb the number of assaults within the ranks.

But the military brass opposed the proposal from Gillibrand, the most far-reaching of the dozens of bills lawmakers put forward to address military sexual assault. 

Chairman of the Joint Chiefs of Staff Gen. Martin Dempsey and the service chiefs were unified in their opposition to removing cases from the chain of command.

Under Levin’s proposal, the military service secretaries will review cases where a commander disagrees with a military lawyer over prosecuting a sexual assault case. When both the lawyer and commander decide not to prosecute, the commander’s commander will review the case.

The amendment also makes it a crime to retaliate against victims of sexual assault.

McCaskill, who has long been a voice on the committee for addressing sexual assault, on Wednesday said she and Gillibrand share the same goal but have an “honest disagreement” about the solution. 

“I believe these reforms will hold the chain of command accountable and force them to be part of the solution, and it will prevent the unintended consequences of dismantling a system of military justice that has long been a centerpiece of discipline in the our military,” McCaskill said on the Senate floor.

“Make no mistake about it, the changes we are making are aggressive, historic, victim-oriented and unforgiving to the predators.”

In addition to Levin’s new proposal, the committee made several other sexual assault reforms, including stripping commanders’ ability to overturn guilty verdicts in a post-trial review and establishing new whistle-blower protections.

Gillibrand said Levin’s proposal was a step in the right direction, but argued it did not get at the heart of the problem.

“It’s not that the commander is disagreeing with his lawyer. It’s that the victim is fearing retaliation,” Gillibrand said.

Sexual assault victims’ advocates who had aligned themselves with Gillibrand’s measure said they were disappointed by the committee’s vote.

“Senator Levin’s proposed amendment is a tweak to a fundamentally broken military justice system,” Protect Our Defenders President Nancy Parrish said in a statement. “It is yet another half-measure that kicks the can down the road and will not fix the ongoing epidemic of sexual assault in our military.”

Sen. Barbara Boxer (D-Calif.), a co-sponsor of Gillibrand’s bill, told The Hill on Tuesday that she was also gearing up for a floor fight.

“If he’s going to keep everything inside the chain of command, I think he’s missing the whole point of why we have a problem,” Boxer said of the Levin amendment.

— This story was first posted at 3:42 p.m. and has been updated.