Bill Clark/CQ Roll Call via AP Images
Sen. Jack Reed (D-RI) arrives for a vote in the U.S. Capitol, May 26, 2021.
“Consensus” is not a word you hear much in the United States Senate these days. But a bill aimed at reforming the military justice system and preventing sexual assault has 66 co-sponsors, chief among them Sen. Kirsten Gillibrand (D-NY). After nearly a decade of political legwork, the bill finds itself in the increasingly rare position of having a glide path to becoming law.
But even measures with surefire support can still be doomed to political infighting. Officially known as the Military Justice Improvement and Increasing Prevention Act, the bill faces a challenge from within the Democratic Party. Sen. Jack Reed (D-RI), the chairman of the Armed Services Committee, has resisted quick passage of something that falls under his jurisdiction. Reed prefers that the bill go through hearings in his committee and get attached to the National Defense Authorization Act (NDAA), a must-pass policy measure typically handled at the end of the year. That adds months of delay to something with the votes to pass now, which has been through years of vetting and study.
The intraparty conflict has put the filibuster-proof measure at a standstill. As of now, Reed’s powerful voice alone has prevented a floor vote, with the Senate Democratic leadership unwilling to push him out of the way.
Reed wants to make alterations to the popular bill as well. If passed, the bill would bring non-military felonies out of the traditional line-of-command process, and instead have them handled by independent prosecutors. Reed insists that the scope be narrowed exclusively to sexual assault, as opposed to all felony crimes. According to Reed, soldier Vanessa Guillén’s murder in April 2020 at the country’s largest Army base in Fort Hood, Texas, should still be handled by the military judicial system. Last December, an independent review found that Fort Hood’s environment was permissive to sexual harassment and assault, which has led to severe underreporting.
“No one benefits from keeping Vanessa Guillén’s murder in the chain of command,” a Gillibrand aide told the Prospect. “I can’t think of a more egregious example of a reform falling short if it doesn’t help the woman who ignited the national firestorm.”
The New York Times reported on Thursday that Sen. James Inhofe (R-OK), the ranking Republican on the committee, is working with Reed to block the changes.
The bill would bring non-military felonies out of the traditional line-of-command process, and instead have them handled by independent prosecutors.
Sen. Reed’s office says that he believes in substantially reforming the military’s judicial process when it comes to sexual assault. But to him, going through the traditional legislative process—and taking it slow—is more important than forgoing a committee hearing. According to his staff, Reed is also waiting for a report from the 90-day independent review commission (IRC) on sexual assault in the military, which President Biden launched in March. The review is expected to publish its findings by the end of the month.
“While there is broad consensus about the issue of sexual assault, proposals to remove from commanders’ disposition authority over common felonies has not received the same attention and vetting,” said Chip Unruh, the communications director for Sen. Reed. “Their input will be essential to the successful implementation of any such reform.”
Yet perhaps in a preview of the IRC’s findings, Defense Secretary Lloyd Austin has suggested that it’s time the military rethink its process of handling sexual assault. “We must not be afraid to try new approaches—to change our minds—so that we can truly and fully address the scourge of sexual assault in our force,” he said to the House Appropriations defense subcommittee last Thursday. “Clearly what we’ve been doing hasn’t been working.”
Sen. Gillibrand, a senior member of the Armed Services Committee, has been the locomotive behind preventing military sexual assault for the last eight years. In that time, she has persuaded a remarkably large group of senators to back her, including Republicans Josh Hawley (R-MO) and Chuck Grassley (R-IA). She’s even found a legislative partner in Sen. Joni Ernst (R-IA), a sexual assault survivor and military veteran.
By all accounts, sexual harassment and assault are rampant in the military’s ranks. According to the Department of Defense, reports of sexual assault have nearly tripled since 2012—one year before Gillibrand began her legislative crusade. Meanwhile, conviction rates have steadily declined.
As the bill lags, Gillibrand’s senior colleague from New York, Chuck Schumer, has become a point of interest. As Senate majority leader, Schumer could bring the bill to the Senate floor, bypassing Reed’s insistence to have it move through the Armed Services Committee. To do so, Schumer would need to invoke Rule 14, which allows bills to skip a committee hearing. Gillibrand has publicly called for this.
Some critics say that, as chairman of the Armed Services Committee, Reed has been too deferential to top generals and admirals.
For the bill’s sponsors, the issue is urgent, with each passing day leading to more reports of sexual assault. “Our preference would be a stand-alone vote on the floor because that way it can’t get killed in conference, which seems apparent is their plan,” said a Gillibrand aide. “It won’t come out of conference until late in December, and then it’s bumping up against the holidays.”
Indeed, as a must-pass bill, the NDAA typically has a profusion of measures attached to it, some related to the military and some not. The bill is a prime target for horse trading, and can be an unreliable landing place for even popular measures.
Schumer and Reed are two of five Senate Democrats who haven’t sponsored the bill. Their time together on Capitol Hill runs deep, serving shoulder to shoulder as senators for 22 years. This may be one reason animating Schumer’s unwillingness to invoke Rule 14. But perhaps more important, Reed is also one of the Senate’s most senior members, someone whose support Schumer will need time and again in an evenly divided chamber.
Schumer supports the bill. He voted for two previous versions of the Military Justice Act when it was brought to the floor. But in a surprising show of Republican support, senators like Ted Cruz (R-TX) and Tommy Tuberville (R-AL) have thrown their weight behind the bill, while the Democratic leader has remained mostly mum. In a press conference a few weeks ago, Schumer did say that “I would hope to put [the bill] on the floor again.” But so far, he hasn’t done so.
Some critics say that, as chairman of the Armed Services Committee, Reed has been too deferential to top generals and admirals, instead of listening to the litany of victims. 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.
“I respectfully think Reed’s wrong on a lot of his remembering of how the judicial process worked,” said 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. “The Senate Armed Services Committee works hand and glove with leadership in the Pentagon. I think Reed’s giving them more deference than they deserve on the issue.”
Schumer’s reluctance to invoke Rule 14 could also be a timing issue. Republicans have used Senate processes to drag out even noncontroversial bills like the legislation targeting anti-Asian hate crimes. Even with passage assured, the bill would likely take up a lot of Senate floor time, while several nominations still await Senate approval and the monolithic infrastructure bill hangs in the balance.
Advocates close to the bill insist that besides Schumer, there’s another untapped weapon to clinching a vote: President Biden. Christensen believes that a call from the White House would sway Reed. “You don’t want to be the guy that’s holding up the legislation that has such massive bipartisan support,” he said. “If Josh Hawley and Elizabeth Warren can agree on something, then maybe you should step back.”
