WASHINGTON — A showdown is brewing in the U.S. Senate, but this one isn’t another partisan battle — it’s a struggle between two Democrats, New York Sen. Kirsten Gillibrand and Rhode Island Sen. Jack Reed, over the future of the military justice system.
Gillibrand wants to shift the decision to prosecute all serious crimes, including murder and sexual assault, from the chain of command to military prosecutors. With her bill’s 66 Senate co-sponsors, including 19 Republicans, she has the votes to overcome a filibuster.
But standing in the way is Reed, chairman of the Senate Armed Services Committee, where Gillibrand is a senior member. He opposes the sweep of her bill, and recently blocked her motions for a Senate floor vote as he insisted that the legislation go through his committee.
On Thursday, Gillibrand and Reed will get a chance to air their differences when they question Defense Secretary Lloyd Austin and Chairman of the Joint Chiefs of Staff Mark Milley at an Armed Services Committee hearing.
Since March, Gillibrand has worked to thrust the issue into the public eye to help her bill break into the complex Senate calendar already crowded with major Democratic priorities such as infrastructure, voting rights, police reform, climate change and immigration.
In the last week of May, she staged a clash with Reed by offering a motion for an immediate floor vote for her bill for four days in a row to draw attention to the Pentagon’s failure to deliver its many promises to reduce sexual assault and harassment in the armed forces.
But Reed said his committee needs to debate and amend her bill and make it part of the annual National Defense Authorization Act.
"What we have to do is look at this bill," he said in a phone interview with Newsday. "This is a major change to the Uniform Code of Military Justice, and we have to look at not just the top line, but all the details."
But Gillibrand said she does not trust Reed with her bill.
"I'm going to fight that as long and hard as I possibly can, because I do not have faith that he will protect the legislation if it does in fact get passed in the House and in the Senate," she told Newsday in a telephone interview last week.
Gillibrand has been pushing a restructuring of the military justice system for serious crimes with punishments of more than a year in jail since 2013, when she put a spotlight on sexual assault in the military and demanded that the Pentagon do something about it.
After eight years of trying, Gillibrand finally has won over many senators who opposed her legislation, including Sen. Joni Ernst (R-Iowa), a former military combat commander and sexual assault victim who added measures to prevent sexual crimes to the bill.
Many of those who now back the bill cite the failures of the military to get sexual assault and harassment under control despite Congress giving them $1 billion, including $500 million in 2019 alone, and hundreds of provisions, special panels, commissions and advisory committees.
Gillibrand said her bill has the votes of about 70 senators, including Senate Majority Leader Chuck Schumer (D-N.Y.). "Senator Schumer supports the bill, has for years, and is discussing the best path forward to get it done," spokesman Angelo Roefaro said.
Yet Gillibrand also still has much work to do. She must not only pass it in the Senate but also the House, where Rep. Mike Turner (R-Ohio) said he will sponsor a version of her bill.
And a source close to the bill’s drafting said, "Gillibrand still has work to do on whip support side, particularly with the committee."
That means she must work out an arrangement with Reed and other key members of the Armed Services Committee, including the top Republican, Sen. James Inhofe of Oklahoma, who strongly opposes changes to the authority of the chain of command.
Reed has changed his mind and now supports shifting the decision making on sexual assault cases — but only sexual assault and related cases — to military prosecutors.
"Basically I think it's the sum of the years that we've not only urged but directed the Department of Defense to take effective action, and the sense that the actions have not been sufficient to date, and that this option of a special prosecutor system for sexual assault has to be not only explored but implemented," Reed said.
"And I think that's a consensus that has changed the opinions of many people in the Senate and the House," he said.
But Gillibrand rejects a special court for solely sexual assault crimes.
"Every military justice expert has recommended strongly to create a bright line at all serious crimes," she said. It’s for defendants’ rights and more generally criminal justice, civil liberties and civil rights, she said.
She cited a report by the advocacy group Protect Our Defenders, which backs her bill, about racial bias in the commander-driven disciplinary system.
The report found Black service members were as much as 2.61 times more likely to face disciplinary action in an average year across all branches from 2006 to 2015, and the disparities largely did not improve, and in some case worsened, in the more recent years, she said.
It’s also because a military sexual assault court, she said, "will marginalize and diminish female service members who come forward just to use this court for sexual assault issues."
Reed, a graduate of West Point and an Army veteran, has long been a staunch supporter of the Armed Forces. And a recent report said the military service chiefs all have reservations about a sweeping change such as the one that Gillibrand is proposing.
Still, he’s also one of only about three or four Democrats who don’t support her bill.
"I don't think this is a question of Democrats or Republicans, I think there's a question of trying to do the right thing for the men and women in services," he said.
"And I think as chairman my position should be to ensure that we go through all the appropriate steps, that we have a vigorous debate in the committee, and that we ensure that we've done our best to try to get legislation that will serve the needs of the men and woman in the armed forces."
Gillibrand balks at that idea because of what the chairmen and top ranking members of the Armed Services committees in the Senate and House can do when they reconcile the differences in the versions passed in each chamber in what’s called a conference committee.
"My experience over the last several years working on this issue has been that if the chairman opposes any measure, or if the Department of Defense opposes any measure, it is often taken out in conference," she said. "And so even if I was able to pass it in the Senate, and in the House, it could still be taken out in conference."
Reed conceded that sometimes happens as the conference committee settles on the final version to makes sure the NDAA will get 60 votes on the Senate floor.
Gillibrand has called on Schumer to bring her bill to the floor, but also concedes that Schumer’s agenda doesn’t have time for a weeklong battle to overcome a filibuster.
She said it might come down to President Joe Biden, who backed her bill on the campaign trail. Gillibrand said she has reached out to the White House.
"I guess the only thing that could change, in my mind, is if President Biden decides to call Senator Reed," Gillibrand said.
In the meantime, Gillibrand intends to keep asking for a floor vote. And Reed said he’ll block it again.
"It’s her right," Reed said about Gillibrand’s tactics. "That's why I'm exerting my right. It's more important to have a full and open discussion about this. Let the facts and the policy that's best prevail."