DoD and Gillibrand At Odds Over Commander’s Role in Military Justice System

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Washington, DC

The Pentagon believes that commanders need to be more involved, not less in dealing with sexual assaults in the military.

Sen. Kirsten Gillibrand (D-N.Y.) could not disagree more.

“Sexual assault is a crime and it has no place in today’s military. We expect everyone in the department to work together to establish an environment of dignity and respect, and we need commanders to be more involved – not less involved – in solving the problem of sexual assault,” Laura Seal, a Department of Defense (DoD) spokeswoman for personnel and readiness, told Breitbart News.

Seal was asked to comment on Gillibrand’s legislation to remove prosecutorial authority from military commanders in most serious crimes including sexual assaults.

Sen. Kirsten Gillibrand (D-N.Y.) will reintroduce her “Military Justice Improvement Act” during the new session of Congress, a move that Stars and Stripes describes as an “uphill battle.” The bill was rejected in March 2014.

Nevertheless, the legislation still enjoys bi-partisan support from Sens. Ted Cruz (R-TX) and Rand Paul (R-KY), among other Republicans. Senate Majority Leader Mitch McConnell (R-KY) supported her bill in March 2014 as Senate minority leader.

Former Navy Commander Rep. Ryan Zinke (R-MT), Congress’ only SEAL veteran, told Breitbart News last week that Gillibrand’s bill is “ill-advised and only serves to weaken the military.”

“I’m confident in the [Uniform Code of Military Justice] UCMJ,” he added. “It’s about leadership and not stripping the military of its authority to exercise good order and discipline.”

Rep. Zinke did note that sexual assaults in the military are a serious issue that need to be handled appropriately.

The Pentagon spokeswoman noted that reforms made to the UCMJ since 2012 have formalized the military commander’s role in dealing with sexual assaults.

“DoD policy prohibits commanders from investigating or evaluating the validity of a sexual assault report themselves – all reports of sexual assault must be referred to the [Military Criminal Investigation Organization] MCIOs for investigation,” she said.

The Pentagon spokeswoman said that the debate of the commander’s role in the military justice system has already been settled by the independent, congressionally directed Response Systems Panel on Adult Sexual Assaults.

In June 2014, the panel rejected taking prosecutorial authority away from commanders, saying there was no evidence that such an action would improve victim confidence in the system or increase reporting of the crime.

“There is nothing surprising about a Pentagon sub-panel working mostly behind closed doors supporting stated Pentagon policy and encouraging more time to wait and see if the problem gets better. We have waited for too long, because under any metric, the system is broken and our service members deserve better,” a Gillibrand spokesperson said in January 2014 when a panel subcommittee recommended that commanders keep their authority in cases involving sexual assaults.

The Role of the Commander subcommittee was created as part of the Response Systems Panel (RSP), which was established by the 2013 National Defense Authorization Act (NDAA). RSP provided a review of alternative measures to enhance the DoD response to sexual assaults.

Seal told Breitbart News that the Pentagon is currently identifying an appropriate action for each of the 132 recommendations the panel made in its June 2014 report, adding that DoD has already implemented some.

Numerous initiatives have been enacted already to further improve victim confidence in the military justice system, according to the Pentagon.

The 2014 NDAA alone includes at least 16 separate military justice provisions.


  • Adding sexual assault to the list of offenses with no statute of limitations;
  • Eliminating the accused’s character and military service as factors to be considered by the commander when making a case disposition decision under the UCMJ;
  • Requiring that Service secretaries review sex offense cases in which Staff Judge Advocates recommend referral to court martial, but the convening authority elected not to do so; and
  • Mandatory dishonorable discharge or dismissal if convicted of certain sex offenses.

Moreover, the 2015 NDAA includes another 17 provisions addressing military justice reform and sexual assault prevention and response.


  • Restrictions on the use of “general military character” evidence by the defense to argue for innocence in sexual assault cases;
  • Greater protection for statements that victims make to psychotherapists;
  • Enhancing the qualifications and training of Sexual Assault Forensic Examiners; and
  • More widespread availability of special victims’ counsel for members of the Reserve Component.

Last month, Gillibrand failed to force a vote on her bill.

“For a year now we have heard how the reforms in the previous Defense bill were going to protect victims, and make retaliation a crime,” said the New York senator in December 2014. “It should be a red flag to everyone when 62 percent of those who say they reported a crime were retaliated against – nearly two-thirds – the exact same number as last year.”

“There is no other mission in the world for our military where this much failure would be allowed,” she later added. “Enough is enough, last December the President said he would give the military and previous reforms a year to work and it is clear they have failed in their mission.”

President Obama ordered the Pentagon to deliver a report detailing progress in the prevention of and response to sexual assaults in the military.

According to the report, which was released last month, the number of sexual assaults dropped by about 25 percent from 26,000 in 2012 to nearly 19,000 in 2014. Meanwhile the number of reports increased by more than half to 5,983 in 2014, from 3,604.

“It is no wonder that still less than 3 out of 10 victims feel they can report their assaults, and the percentage of those brave men and women who had enough faith in the system to put their name on that report actually dropped this year,” said Sen. Gillibrand. “And let me be clear, an estimate of 20,000 cases of sexual assault and unwanted sexual contact a year in our military, or 55 cases a day, is appalling, and remains at 2010 levels.”