Military Justice Reform Adopted Into Annual Defense Bill

The entirety of Sen. Gillibrand’s bill has landed in the NDAA. But supporters worry that the political hurdles are far from over.

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After nearly a decade of wrestling with the political whims of the military’s version of #MeToo, Sen. Kirsten Gillibrand’s (D-NY) military justice reform bill has secured another potential path to ratification by making its way into the National Defense Authorization Act (NDAA). The NDAA is a must-pass policy measure typically adopted in December. But it’s also a notorious target for political deals, and can be unreliable ground for even popular measures.

Gillibrand has worked diligently on legislation that would bring all non-military felonies out of the traditional chain-of-command process and have them pursued by independent prosecutors. The legislation was triggered by a high-profile epidemic of sexual assault in the military, where victims struggled to bring their assaulters to justice.

Despite securing an impressive 66 co-sponsors for the bill this legislative session, Gillibrand and Sen. Joni Ernst (R-IA), who teamed up to rally support, still faced a block on the Senate floor, ultimately preventing a stand-alone vote. As the Prospect reported last month, that block came in an unexpected form: from Senate Armed Services Committee chair Sen. Jack Reed (D-RI).

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All along, Reed had hoped the bill would find its way into the NDAA. As the chairman of the Armed Services Committee, the annual defense bill falls squarely into his wheelhouse, giving him greater negotiating power, and ultimate control of its fate. In addition, defecting from the vast majority of his colleagues, Reed insisted that only sexual assault should be handled by independent prosecutors, instead of all serious crimes.

Some critics have pointed out that Reed has been historically deferential to top generals and admirals when it comes to military reform. And as a veteran himself, having served in the Army before joining the faculty at West Point, Reed has personal ties to the Department of Defense.

The defense bill’s markup, released Thursday evening, includes contradictions. Although it explicitly includes “all provisions” of Gillibrand’s bill, it also adopts other proposals put forward by Secretary of Defense Lloyd Austin, who has publicly backed changes to the military justice system when it comes to sexual assault. (He has not made a statement supporting independent prosecutors for all serious crimes, as Gillibrand’s bill calls for.)

The high-profile nature of the reform gives it some protection from being nixed in a backroom deal.

Austin and Gillibrand’s proposals have a few minor differences. Austin is seeking a special victim prosecutor for crimes such as sexual assault and child abuse. They both call for independent prosecutors, but those prosecutors report to different authorities.

Col. Don Christensen, who served in the military for 23 years and is now the president of Protect Our Defenders, a nonprofit organization devoted to reforming the military justice system, admits that this is a minor discrepancy. But the discrepancy creates uncertainty, which leaves room for further private negotiations in the fall. “I don’t think it creates uncertainty whether there will be major reform,” says Christensen. “It’s just a matter of how far it will go.”

Christensen called the inclusion of the military justice reforms in the authorization bill “historic without a doubt.” But he remains skeptical of the NDAA process, citing its notoriously closed-door conferences.

Reed did not immediately respond for comment.

By getting the bill into the NDAA instead of as a stand-alone, Reed partially secured his goal. Because it’s a rare perennial bill that passes Congress, the NDAA is often stuffed with extraneous measures and frequently falls prey to horse trading. Reed would have the ability to change language in the bill at the last minute through a “manager’s amendment” on the Senate floor. Or he could trade away some of the military justice provisions when he reconciles the bill with his House counterparts in a conference committee.

Still, the high-profile nature of the reform gives it some protection from being nixed in a backroom deal. Reformers also have President Biden’s endorsement.

For their part, Gillibrand aides’ tone when discussing Reed has evolved from abhorrent to grateful. “Chairman Reed has passed out of committee the strongest reforms to the military justice system in U.S. history and I am grateful for his work and leadership,” said Gillibrand in a statement Thursday evening. Only a month prior, their thoughts on Reed were much more cynical.

For victims of sexual assault in the military, the NDAA’s inclusion of justice reform is a landmark success. But the bill’s inability to reach a floor vote in June frustrated victims. They couldn’t understand why political infighting—especially stemming from within the Democratic Party—should block a bill that had overwhelming bipartisan support. Over the course of Gillibrand’s eight-year battle cry for reform, reports of sexual assault have nearly tripled, while conviction rates have steadily declined.

“There are people being sexually assaulted right now, and that could be prevented,” says Allison Gill, a sexual assault survivor herself who served for two years in the military before working for the Department of Veterans Affairs for 12 years. “It’s almost as if they’re allowing it to happen with all this delay.”

The military has notoriously fallen short when it’s come to preventing sexual assault. In a phone call, Gill described initiatives that routinely placed responsibility on the victim, such as implementing a buddy system among female service members. When a woman would report a sexual assault, the first thing officials would ask was, “Where was your buddy?” Another program involved churning out posters that read: “Ask Her When She’s Sober.”

According to a Gillibrand aide, the senator is still determined for the entirety of the justice reform bill to be implemented, by whatever means necessary. “Of course, there’s still a danger of it being stripped back in conference,” they said. “We still do have the option, if something got really crazy, to take it as a stand-alone bill.”

But as Reed clinched a political win in blocking the last vote, it’s unclear how successful Gillibrand would be a second time around.

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