By Jeremy Herb
Sen. Kirsten Gillibrand (D-N.Y.) is considering narrowing her bill on military sexual assault in order to reach 60 votes and overcome a potential filibuster.
Gillibrand said Wednesday that she and her supporters are weighing changing her bill to take the decision to prosecute cases away from commanders so it would only apply to sexual assault and rape cases, not all major crimes.
“We’re considering focusing the amendment on sexual assault and rape in response to some suggestions by undecided senators,” Gillibrand told reporters.
Gillibrand is weighing the changes ahead of Senate debate on the Defense authorization bill, where she plans to offer her measure as an amendment. The amendment is expected to need 60 votes to pass.
Her proposal has attracted 47 supporters from both sides of the aisle, but has generated opposition from Senate Armed Services Committee Chairman Carl Levin (D-Mich.) and ranking member Jim Inhofe (R-Okla.), as well as Sen. Claire McCaskill (D-Mo.).
Pentagon leaders have also expressed staunch opposition.
Gillibrand said a majority of senators now supported her bill — though her office would not say what additional senators had signed on beyond 47 — but she said undecided senators had expressed support toward a narrower bill.
“We figure that we do have to get up to 60,” Sen. Barbara Boxer (D-Calif.), one of Gillibrand’s closest supporters, told reporters. “We’re listening to colleagues, and they’re telling us, we may pick up some more votes with this approach.”
Opponents of Gillibrand’s measure, however, say that narrowing the bill makes its problems worse. They argue that taking just sexual assault cases outside the chain of command would create two separate systems in the military justice system and cause major logistical headaches.
“I think this is another moving of the goalposts,” McCaskill said. “But the fundamental problem with her approach remains. And in fact, in some ways they’re worse if you narrow it just to one certain type of crime. There’s constitutional issues, there’s practical issues, and I think a number of my colleagues realize that.”
Sen. John McCain (R-Ariz.), who is also opposed to Gillibrand’s bill, said that separating sexual assault would cause problems if someone was charged with multiple crimes.
“Suppose someone is charged with two different crimes, one of them sexual assault and one of them robbery. So what do you do: have one trial for this, another trial for that?” McCain said. “It doesn’t work.”
Sen. Richard Blumenthal (D-Conn.), a supporter of Gillibrand’s measure, said there was precedent for separating crimes in the civilian system.
“Carving out different offenses, whether as felonies or misdemeanors for different forms of prosecutions, is perfectly acceptable in the civilian system,” Blumenthal said. “It’s done routinely. There is a precedent of going step by step to take different levels of offenses and prosecute them differently.”
Gillibrand said she still prefers her bill in its original form, but said that the problem is so egregious that Congress needs “to take first step to begin to see real reform and transparency in the military justice system.”
“This is an excellent first step,” she said.