Levin pushes back against Gillibrand sex assault bill

Gillibrand and Levin are now battling for the remaining senators on the fence about the issue, as Gillibrand has 43 senators who have publicly backed her legislation.

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Levin told reporters on a conference call Wednesday that the letters he received from the Pentagon “directly contradict” two of Gillibrand’s key arguments for removing cases from commanders: that foreign militaries have successfully done so and that commanders aren’t prosecuting cases.

“The letters demonstrate the arguments they’ve used many times, over and over again, that our allies do it — as a matter of fact our allies do it for the opposite reason,” Levin said.

Brig. Gen. Richard Gross, legal counsel to Joint Chiefs Chairman Gen. Martin Dempsey, wrote to Levin that foreign militaries who have moved sex assault cases outside the chain of command did so to protect defendants’ rights, not help prosecutors.

“No allied country changed its system in response to sexual assault crimes specifically or the rights of victims generally,” Gross wrote.

The letter from Joint Chiefs Vice Chairman Adm. James Winnefeld cites dozens of cases where civilian prosecutors did not prosecute a sexual assault case, but military commanders did so.

“The power to initiate a court martial is perhaps the strongest weapon commanders have to back up efforts to change climate in their units,” Levin said. “The letters give some significant evidence here as to why the committee got this thing right.”

Gillibrand spokesman Glen Caplin said that it was "not surprising the military leadership is shifting the goal posts and fighting hard to protect the status quo."

"The military has failed to note any statistical or anecdotal evidence that good order and discipline has eroded due to our allies' independent military justice systems, which is the stated opposition to our proposal," Caplin said in an email. "They can slice the data any way they choose, but the fact is this, 50 percent of female victims have told the Defense Department they did not report because they thought nothing would come of it, and victim after victim has spoken out about the bias and conflicts of interest in the current broken chain of command system that has re-victimized them when they do come forward."

There has been broad bipartisan outrage over military sexual assault this year amid numerous high-profile incidents and a report that estimated there were 26,000 assaults last year, up from 19,000 in 2010.

Gillibrand’s measure would make the biggest structural change to the military’s judicial code, as it would remove the decision to prosecute most felony cases from commanders. She argues that cases should be removed from commanders because victims don't report cases out of fear of retaliation.

But Gillibrand's proposal was uniformly opposed by Pentagon officials, and Levin offered an alternative in his committee that established a higher civilian review process for cases but kept them with commanders.

His amendment passed 19-7, with Democrats split 7-7 and all but two Republicans supporting it.

Gillibrand has a half-dozen Republicans on board with her proposal, including Sens. Rand PaulRandal (Rand) Howard PaulGOP senator asks to be taken off Moore fundraising appeals Red state lawmakers find blue state piggy bank Prosecutors tell Paul to expect federal charges against attacker: report MORE (Ky.) and Ted CruzRafael (Ted) Edward CruzOvernight Finance: GOP criticism of tax bill grows, but few no votes | Highlights from day two of markup | House votes to overturn joint-employer rule | Senate panel approves North Korean banking sanctions GOP criticism of tax bill grows, but few ready to vote against it Anti-gay marriage county clerk Kim Davis to seek reelection in Kentucky MORE (Texas).

Levin said that he did not have a vote count on the issue, and that he hadn’t spoken yet with Senate Majority Leader Harry ReidHarry ReidTop Lobbyists 2017: Grass roots Boehner confronted Reid after criticism from Senate floor GOP in uncharted territory rolling back rules through resolutions MORE (D-N.Y.) or the White House about Gillibrand’s measure.

Neither Reid nor the White House have weighed in specifically on Levin or Gillibrand’s proposals.

— This story was updated at 3:05 p.m.