Military brass oppose removing sexual assault cases from chain of command

Military leaders on Tuesday expressed unified opposition to stripping commanders of the power to decide where sexual assault cases are prosecuted.

One by one in testimony to the Senate Armed Services Committee, the service chiefs said keeping a central role for commanders in prosecuting sexual assault cases was essential.

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“The commander’s ability to preserve good order and discipline remains essential to accomplishing any change within our profession,” said Joint Chiefs Chairman Gen. Martin Dempsey. “Reducing command responsibility could adversely affect the ability of the commander to enforce professional standards and ultimately, to accomplish the mission.”

A rash of incidents has shined the spotlight on the problem of sexual assaults in the military. A recent Pentagon report estimated 26,000 assaults occurred last year, an increase of more than a third.

Sen. Kirsten Gillibrand (D-N.Y.) has offered legislation to grant military prosecutors the power to decide whether to prosecute sexual assault and other major criminal cases. Her bill has 19 co-sponsors, including four Republicans, but has not gained the endorsement of Senate Armed Services Committee Chairman Carl Levin (D-Mich.).

Gillibrand and her supporters have argued that the current structure has discouraged sexual assault victims from coming forward given the fact that commanders can overturn guilty verdicts handed down by military juries.

“You have lost the trust of the men and women who rely on you that you will actually bring justice in these cases,” Gillibrand said Tuesday. “They’re afraid to report, they think their careers will be over, they fear retaliation, they fear being blamed.”

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. It will undermine the readiness of the force,” Odierno said. “Most importantly, it will hamper the timely delivery of justice to the very people we wish to help.”

Marine Corps Commandant Gen. James Amos said in written testimony that commanding officers should “never be forced to delegate their authority.”

“We cannot ask our Marines to follow their commanding officer into combat if we create a system that tells Marines to not trust their commanding officer on an issue as important as sexual assault,” Amos said. “It is inconceivable to me that a commanding officer could not immediately and personally — within applicable regulations ­— hold Marines accountable for their criminal behavior.”

Air Force Chief of Staff Gen. Mark Welsh said that the military must avoid creating an environment where commanders have less accountability, and Chief of Naval Operations Adm. Jonathan Greenert said the fundamental structure of the military judicial code “is sound.”

When the entire panel of witnesses — including the services’ top lawyers — were asked if they supported keeping the legal process in the chain of command, all nodded affirmatively.

The opposition of the military brass presents Gillibrand with an uphill battle as she attempts to get her legislation included in this year’s Defense authorization bill, which the Armed Services panel is marking up next week. The panel is considering seven different bills.

In his opening statement Tuesday, Levin said the problem of sexual assault has become a “stain on the military.”

But he also stressed the importance of having commanders deal with the problem and did not specifically talk about removing cases from commanders’ control.

“Only the chain of command can establish a zero tolerance policy for sexual offenses,” Levin said. “Only the chain of command can protect victims of sexual assault, by ensuring that they are appropriately separated from the alleged perpetrators during the investigation and prosecution of a case.”

Sen. James Inhofe (Okla.), the top Republican on the Senate Armed Services panel, said Monday on the Senate floor that removing cases from the chain of command was a “terrible idea.”

“I’m opposed to any provision that would remove commanders from their indispensable role in the military justice system,” Inhofe said at Tuesday’s hearing.

Gillibrand’s bill is one of seven that the Senate Armed Services Committee is examining at a hearing Tuesday, where the Joint Chiefs are making a rare joint appearance.

President Obama has called on the military to do more to fix the problem of sexual assault, and he held a meeting with the Joint Chiefs and Defense Secretary Chuck Hagel last month.

This story was posted at 9:57 a.m. and updated at 12:48 p.m.