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Joint Chiefs oppose Gillibrand reforms in sex-assault cases

WASHINGTON – The nation’s military leaders Tuesday voiced strong opposition to Sen. Kirsten E. Gillibrand’s proposal to give prosecutors rather than commanders the power to deal with sex crimes in the services, prompting Gillibrand to voice equally strong disgust with a status quo that she said leaves victims afraid to report when they’ve been attacked.

At an unprecedented hearing where all seven members of the Joint Chiefs of Staff testified, one top-ranking officer after another argued that Gillibrand’s legislation would undermine the chain of command that’s essential to an effective military.

“The commander’s ability to preserve good order and discipline remains essential to accomplishing any change with our profession,” Army Gen. Martin E. Dempsey, chairman of the Joint Chiefs of Staff, told the Senate Armed Services Committee. “Reducing command responsibility could adversely affect the ability of the commander to enforce professional standards and, ultimately, to accomplish the mission.”

But Gillibrand, a New York Democrat whose bill to give prosecutors prosecutorial power is at the center of the congressional debate on the issue of sexual assault in the military, said the services’ troubled handling of a wave of assault cases warranted the major change in military law that she’s suggesting.

“You have lost the trust of the men and women who rely on you that you will actually bring justice in these cases,” Gillibrand told the generals and admirals in front of her. “They’re afraid to report. They think their careers will be over. They fear retaliation. They fear being blamed. That is our biggest challenge, right there.”

The Joint Chiefs – including the leaders of the Army, Navy, Air Force and Marine Corps – suffered through a morning of such comments, as Democrats and Republicans alike rebuked them for failing to deal with what they said appears to be an epidemic of sexual assaults in the military.

A recent Pentagon report estimated that 26,000 sexual assaults occurred in the military last year but that only 1,714 service members were charged.

“I cannot overstate my disgust and disappointment over the continued reports of sexual misconduct in the military,” said Sen. John McCain, R-Ariz., a Navy veteran. “We’ve been talking about the issue for years, and talk is insufficient.”

While there was bipartisan agreement on the scope of the problem, Gillibrand’s proposal – which has the support of 20 senators from both parties – prompted no such unity. Most notably, the Joint Chiefs said they were unanimously opposed.

“As we all know, the Army has a serious problem,” said Gen. Raymond T. Odierno, the Army chief of staff. “It is imperative that the chain of command is fully engaged and part of the solution. Removing commanders, making commanders less responsible, less accountable, will not work. It will hamper the delivery of justice to the people we most want to help.”

Gen. James F. Amos, commandant of the Marine Corps, agreed.

“Commanding officers never delegate their responsibility,” Amos said. “They should never be forced to delegate their authority.”

The military leaders said they were making steps to crack down on sexual assault, such as encouraging the reporting of such crimes. As a result, the number of reported sexual assaults in the Marine Corps has risen by 31 percent, Amos said.

The Joint Chiefs said they are also willing to take additional steps – including removing the authority that commanders now have to reverse jury verdicts.

But Gillibrand and her allies argued that more fundamental changes are necessary.

“All the scandals that have surfaced make me wonder if the measures that have been taken are going to be able to fundamentally address this issue, and whether it’s not going to take a more significant look at how we operate in the military to really address this scandal at all levels,” said Sen. Jeanne Shaheen, D-N.H., co-sponsor of Gillibrand’s legislation.

Gillibrand indicated that it’s common sense to put prosecutions in the hands of trained prosecutors. “Not every commanding officer can distinguish between a slap on the ass and a rape,” she said.

Both Gillibrand and Shaheen noted that several U.S. allies have relieved commanders of the authority to rule on prosecutions of sex crimes. But when Shaheen asked the Joint Chiefs whether they had discussed the results of that action with their colleagues overseas, they said they had not – a response that Sen. Roy D. Blunt, R-Mo., termed “stunningly bad.”

That was by no means the only time during the hearing when senators seemed to knock the military brass back on their heels.

Sen. Jack Reed, D-R.I., asked the military leaders if commanders had ever been relieved of duty for failing to address sexual-assault cases, and the Air Force, Navy and Marine Corps leaders at the witness table said they could not identify any such cases.

Sen. Claire C. McCaskill, D-Mo., criticized a current military policy that lets commanders take into account a service member’s previous good character in determining whether that person should be prosecuted for a sex crime.

“The facts of a felony are the facts of a felony,” said McCaskill, a former federal prosecutor. “I don’t care how good a pilot it is, I don’t care how good a Special Ops person it is. Their ability to perform as a soldier or an airman or a member of the Coast Guard is irrelevant to whether or not they committed a crime.”

McCain questioned Dempsey on whether the military had a system in place to root out recruits who have been sex offenders.

“There are inadequate protections for precluding that from happening, so a sex offender could, in fact, find their way into the armed forces of the United States,” Dempsey acknowledged in reply.

Despite such concerns, several members of the committee appeared to side with the Joint Chiefs in opposition to Gillibrand’s bill.

Commanders must retain all authority “to preserve good order and discipline” or else their ability to lead their troops will be undermined, said Sen. Jim Inhofe, R-Okla. “Fundamentally, we cannot abolish sexual assault by legislation alone,” Inhofe said. “Eliminating sexual assault requires commanders to drive cultural change and achieve accountability.”

Sen. Lindsey O. Graham, R-S.C., a former Air Force prosecutor, said he was opposed even to removing the commander’s power to overturn verdicts, saying that, too, would weaken the chain of command.

McCain, one of the most prominent veterans in Congress, has also voiced concerns over Gillibrand’s proposal, but Tuesday he seemed more focused on the depths of the problem the military faces. He said that a woman recently told him her daughter wanted to join the military, and she asked the senator if he could give his “unqualified support” for the young woman to do so.

Because of the sexual-assault scandal, McCain said, “I could not.”