- The Washington Times - Tuesday, June 22, 2021

Defense Secretary Lloyd Austin said Tuesday he supports a major overhaul to the military’s criminal justice system, laying the groundwork for sexual assault, domestic violence and other related cases to be handled by independent prosecutors rather than in the traditional chain-of-command system.

The announcement could put Mr. Austin at odds with uniformed leaders who have cautioned that policymakers must tread lightly when stripping commanders of their entrenched authority to decide which crimes are prosecuted.

In a statement Tuesday, Mr. Austin said he backs the changes proposed by the Pentagon’s Independent Review Commission (IRC), which was given the task earlier this year of reviewing how the military handles rape, assault, harassment and other offenses.

Mr. Austin endorsed the central set of recommendations put forward by that panel.

“It provides us real opportunities to finally end the scourge of sexual assault and sexual harassment in the military,” he said. “First, we will work with Congress to amend the Uniform Code of Military Justice, removing the prosecution of sexual assaults and related crimes from the military chain of command.”

“The IRC recommended the inclusion of other special victims’ crimes inside this independent prosecution system, to include domestic violence,” the secretary said. “I support this as well, given the strong correlation between these sorts of crimes and the prevalence of sexual assault.”

Sexual misconduct, stalking, and wrongful distribution of photos also will reportedly be among the changes Mr. Austin formally presents to President Biden in the coming weeks.

Supporters argue that there must be fundamental change to how such cases are handled because military commanders have proven unable to get a handle on the growing problem in the ranks.

But the details surely will prove controversial.

Mr. Austin acknowledged that the Pentagon must work with Congress to remove sexual assault and related crimes from the chain of command, but there are deep divides among military leaders about exactly how the new system should work.

A key Senate bill, the Military Justice Improvement and Increasing Prevention Act, appears to be the most likely vehicle for enacting change.

Mr. Austin did not explicitly endorse that bill in his statement, and a defense official told the Associated Press late Tuesday that the secretary has “reservations” about the specific proposal, which enjoys strong bipartisan support from both liberals and conservatives,
It would go beyond sexual assault and related offenses by removing from the chain-of-command system all major felonies, from murder to anything that could carry at least a year in prison. Such a move has met with stiff resistance from top military officials and powerful lawmakers on Capitol Hill.

Earlier Tuesday, the nation’s seven top military officials expressed deep uneasiness with the measure.

Sen. James Inhofe of Oklahoma, the ranking Republican on the Senate Armed Services Committee, had asked Joint Chiefs of Staff Chairman Gen. Mark A. Milley, Army Chief of Staff Gen. James McConville, Chief of Naval Operations Adm. Michael Gilday and other top officials to provide letters stating their position on the Senate bill.

The officials expressed openness to treating sexual assault and rape cases in a fundamentally different way but expressed resistance to going further.

“It is my professional opinion that removing commanders from prosecution decisions … may have an adverse effect on readiness, mission accomplishment, good order and discipline, justice, unit cohesion, trust, and loyalty between commanders and those they lead,” Gen. Milley said in his letter to Mr. Inhofe. “However, in the specific and limited circumstance of sexual assault, I remain open minded to all solutions.”

Gen. McConville said the law should only apply to rape and sexual assault cases, while Adm. Gilday cautioned that removing an entire list of crimes from the chain of command could carry serious unintended consequences.

“My first concern is with the broad scope of offenses that would be covered by an alternate judge-advocate run process,” he said. “By removing commanders’ authority to effectively respond to many of the most serious threats to good order and discipline … [the legislation] erodes the ability of commanders to create and maintain the environment necessary to effectively exercise mission command.”

Those comments underscore a deep divide over the bill, which enjoys strong backing across the ideological spectrum, from outspoken liberals such as Democratic Sen. Kirsten Gillibrand of New York to staunch conservatives such as Republican Sen. Ted Cruz of Texas.

But lawmakers such as Mr. Inhofe and Sen. Jack Reed, Rhode Island Democrat and chairman of the Armed Services Committee, oppose the bill as written.

Mr. Reed, a West Point grad and Army veteran, argues that the Senate should single out sexual assault cases with their reform efforts — not other major crimes such as murder.

A bitter fight likely awaits in the Senate, with Mr. Reed and Mr. Inhofe seeking to stop the broader changes.

“I don’t believe this well-intentioned bill will change anything,” Mr. Inhofe said in a statement, referring to the Senate legislation. “In fact, I remain concerned that, as written, it would not reduce sexual assault or other crime in the slightest and would complicate the military justice system unnecessarily.”

Ms. Gillibrand and other supporters argue that it’s foolish to separate sexual assault from other offenses, arguing that doing so would essentially create two different justice systems in the military.

“You’re going to basically break apart the criminal justice system in the military,” Ms. Gillibrand told CNN’s “State of the Union” program last month. “It’s not fair.”

“It will destabilize and make, unfortunately, a mockery of the criminal justice system,” she said.

In addition to Gen. Milley, Gen. McConville and Adm. Gilday, the other officials who expressed caution in their letters to Mr. Inhofe are: Marine Corps Commandant Gen. David H. Berger; Air Force Chief of Staff Gen. Charles Q. Brown; Chief of Space Operations Gen. John Raymond; and Chief of the National Guard Bureau Gen. Daniel R. Hokanson.

• Ben Wolfgang can be reached at bwolfgang@washingtontimes.com.

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