The Pentagon’s top uniformed leaders expressed concerns over plans to shift prosecution of serious crimes — particularly sexual assault — out of the traditional chain of command, according to letters released Tuesday by a chief Republican critic of the proposal.
Responding to written questions on the issue from Senate Armed Services ranking member Jim Inhofe, R-Okla., seven of the eight-member Joint Chiefs of Staff suggested the changes could be detrimental, but said they are prepared to follow the law if directed to do so.
“It is my professional opinion that removing commanders from prosecution decisions, process and accountability 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,” Joint Chiefs Chairman Gen. Mark Milley stated in a letter to Inhofe.
“This is a complex and difficult issue. I urge caution to ensure any changes to commander authority to enforce discipline be rigorously analyzed, evidence-based and narrow in scope, limited only to sexual assault and related offenses.”
Earlier this spring, an independent Pentagon review commission recommended to Defense Secretary Lloyd Austin that prosecution of sexual misconduct crimes be taken out of commanders’ authority and replaced by a specialized, independent legal division within the military.
Numerous lawmakers — led by Sen. Kirsten Gillibrand, D-N.Y. — have been pushing for the change for years, arguing that the current system too often lets serial sex offenders go unpunished for the sake of unit readiness.
Earlier this month, Austin signaled that he is leaning towards the change, and expects to make a recommendation to President Joe Biden on the issue soon.
But the release of the senior uniformed leaders’ continued concerns over the idea potentially complicates that plan. Inhofe, a vocal critic of the idea, called the negative responses “not reassuring” and said it shows lawmakers should continue studying the process before making any decisions.
[This plan] would not reduce sexual assault or other crime in the slightest and would complicate the military justice system unnecessarily,” he said in a statement. “What we need are effective prevention measures, not legislation that has the potential to do more harm than good.”
Along with Milley, each of the five service chiefs and Chief of the National Guard Bureau Gen. Daniel Hokanson responded to Inhofe with a series of concerns about the proposal. The only member of the Joint Chiefs not to respond in the same way was Vice Chairman Gen. John Hyten, who was not asked for a response on the issue.
“It is unclear to me whether or not the bill would promote the interests of justice by increasing accountability for perpetrators of sexual assault,” wrote Gen. David Berger, commandant of the Marine Corps.
“It appears to create a more complex system that could potentially slow the military justice process and cause confusion among commanders about their roles.”
Gillibrand’s proposal would not only take sexual misconduct crimes out of command oversight but also separate out other serious criminal offenses. Several senior leaders said that extra step further complicates the issue. She has argued the opposite.
“To provide our service members with real justice, we must move all serious crimes out of the chain of command,” she said during a floor speech Friday following the latest of her two-weeks of attempts to force a full chamber vote on the issue.
“This bill will do that by making a simple but critical change to the way the military justice system handles serious crime. It streamlines how cases move forward. Instead of commanders, who have zero formal legal training, making the decision to prefer or refer cases to trial, this bill gives those legal decisions to highly trained, impartial, professional military justice lawyers.”
Gillibrand has backing from more than 60 colleagues on the issue, enough to advance the legislation through the chamber even with filibuster attempts from opponents such as Inhofe.
However, Senate Armed Services Committee Chairman Jack Reed, D-R.I., has blocked her effort for a quick vote, saying he prefers to work the issue in his committee’s draft of the annual defense authorization bill to incorporate some of the concerns raised by senior military leaders.
In a statement Tuesday, Gillibrand called the letters from senior officials “disappointing, but not surprising.”
“From racially integrating the armed forces to enabling women to serve in combat to allowing LGBTQ service members to serve openly, the chain of command has always fought to protect the status quo, just as they are doing here,” she said. “Their arguments are recycled talking points from the battles for progress in the past and are void of any coherent argument beyond the disingenuous ‘good order and discipline.’”
All of the uniformed officers who responded to Inhofe on the issue said they are open to new approaches to the issue of prosecuting and preventing sexual misconduct crimes, despite their opposition to the specific proposal.
More than 20,000 service members — nearly 70 percent of them women — reported experiencing sexual assault during their time in the military in a 2019 Defense Department survey. Outside advocates said many of those cases were never prosecuted because of a lack of focus by military commanders or a lack of evidence caused by victims’ mistrust in the system.
Leo covers Congress, Veterans Affairs and the White House for Military Times. He has covered Washington, D.C. since 2004, focusing on military personnel and veterans policies. His work has earned numerous honors, including a 2009 Polk award, a 2010 National Headliner Award, the IAVA Leadership in Journalism award and the VFW News Media award.