By Jeremy Herb - 03/14/13 12:26 AM EDT
Lawmakers are considering stripping military commanders of judicial powers that they say are abetting rampant sexual violence against women in the armed forces.
Senators from both parties are incensed about a case at Aviano Air Base in Italy, where a lieutenant general tossed out a one-year prison sentence for an airman convicted of sexual assault. They cited the case on Wednesday in arguing for radical changes to the Uniform Code of Military Justice.
However, lawmakers pushing for changes to the military’s judicial code are facing stiff resistance from an Air Force prosecutor they know well: Sen. Lindsey Graham (R-S.C.).
Graham told The Hill that the changes being suggested were “very problematic” because they would alter the convening authority process that’s a key part of the military’s legal system.
“We’re talking about a universal concept in our military that the commander who has the power to order you in battle also has the power to discipline and make individual decisions for what’s best in the unit,” Graham said. “And the convening authority in the general court martial is several steps removed from the unit itself.”
The convening authority establishes a court martial and has the ability to review and overturn sentences at the conclusion of a case.
Graham asked the military services’ judge advocate generals at the hearing whether they thought the military’s system of a convening authority was still viable in 2013. All said yes.
That drew a fiery response from Sen. Kirsten Gillibrand (D-N.Y.), who chaired the hearing and said she was “extremely disturbed” by the military’s responses.
“If you think you are achieving discipline with the current convening authority, I’m sorry to say you’re wrong,” she said. “Every victim who has come before this committee shows we have not even begun to address the problem.”
Gillibrand pressed Air Force Lt. Gen. Richard Harding over the Aviano case, asking whether he thought justice was served when Lt. Gen. Craig Franklin tossed out the guilty verdict against Lt. Col. James Wilkerson.
“I’m not going to conclude that justice was or was not done,” Harding responded. “What I will conclude is all parties did their job. From my review, all parties did what they were asked to do by the law.”
“Well one of the parties was wrong,” Gillibrand shot back. “If you’re the victim of that case, to have gone through eight months of testimony, of providing evidence. I can assure you she does not believe justice was done.”
The Aviano case is the latest in a string of sexual assault issues for the military. The Air Force is already reeling from a scandal at Lackland Air Base in Texas, where nearly three-dozen basic training instructors were investigated for sexual misconduct toward female trainees.
Wednesday’s Senate hearing featured testimony from several victims who testified about being ignored, and in some cases persecuted, after reporting a sexual assault. One victim said a military chaplain told her that the rape she suffered “was God’s will.”
Defense Secretary Chuck Hagel said in a letter this week that he was ordering a review of both the Aviano case and the underlying rules for a convening authority.
And Pentagon acting General Counsel Robert Taylor said at Wednesday’s hearing that he was “very concerned” about the message sent by the case.
“There is something that seems odd about the power to reject findings that came out of a jury in the absence of some major obvious problem,” Taylor said. “I believe that we have to look very carefully about whether there is a continuing value to the authority provided to the convening authority to throw out the findings, to reject findings of a court martial.”
Sexual assault in the ranks has long plagued the military. The Pentagon has estimated that 19,000 sexual assaults occurred in the military in 2011, while only 3,200 were reported.
Advocates say it is difficult to determine how the rates of sexual assault in the military compare to that of civilians because of underreporting and other differences.
Former Defense Secretary Leon Panetta launched several initiatives to curb sexual assault during his tenure, and Hagel has pledged to make the issue a top priority.
Lawmakers said they were encouraged by Hagel’s call for a review of the Aviano case but said the incident underscores how far the military has yet to go.
Sen. Claire McCaskill (D-Mo.) and Rep. Jackie Speier (D-Calif.), in response to the Aviano case, introduced legislation this week to strip the ability of commanders to nullify guilty verdicts.
A handful of lawmakers have also called for creating an independent authority to prosecute rape charges, removing the cases from the military chain of command.
“The [Invisible War] documentary [on military sexual assault] that was powerful, the Aviano case, a number of women in the Senate — I think all of those things are combining to create a real push this time to see if we can’t make some real changes that matter,” McCaskill told The Hill.
While changing the military’s judicial code with legislation might be an uphill battle, at least one Republican is on board with tweaking the convening authority.
Rep. Mike Turner (R-Ohio), a top subcommittee chairman on the House Armed Services panel, said the Aviano case shows that one commander should not be able to toss out verdicts.
Turner and Rep. Niki Tsongas (D-Mass.), who lead the Military Sexual Assault Prevention Caucus, wrote a letter to Air Force Secretary Michael Donley saying they would address the matter in this year’s Defense authorization bill.
“As issues come up, we learn the full effects of some of the rules and laws and even culture that need change, and this is one of them,” Turner said.
Senate Armed Services Committee Chairman Carl Levin (D-Mich.) appeared briefly at Wednesday’s subpanel hearing to ask Taylor his thoughts on the ability to dismiss verdicts when there’s now a robust appellate process, something that did not exist when the system was set up in the 18th century.
“We are going to look into that very thoroughly, with a very much open mind,” Taylor said.