House Armed Services chair accuses Gillibrand of mischaracterizing military justice reforms in defense policy bill

House Armed Services Committee Chairman Rep. Adam Smith (D-Wash.) accused Sen. Kirsten Gillibrand (D-N.Y.) of mischaracterizing the military justice reform provisions in the annual defense policy bill.

In a statement on Friday, Smith said it was “very disappointing” to see the reforms included in the fiscal year 2022 National Defense Authorization Act (NDAA) “misrepresented and maligned.” 

“I have spoken with Senator Gillibrand many times this year as we crafted this legislation, and I understand that she prefers a different approach,” Smith said. “But her recent claims in the press that the language in the NDAA does nothing to take the commander’s authority away … simply mischaracterizes what are, in fact, bold reforms that deliver independence and justice for survivors of sexual assault in the military.”

Gillibrand, responding to Smith’s comments, said in a statement to The Hill that service members “do not trust a system in which their future is decided by a commander who is not a legal expert and who often knows and oversees both the accuser and the accused.”

“As long as the system is perceived as biased, we are failing our service members,” she said.

Smith’s statement comes two days after Gillibrand criticized House and Senate Armed Services committee leadership after her effort to overhaul the way the military handles sexual assault cases was watered down in the NDAA, which the House passed Tuesday night.

The biggest difference between Gillibrand’s effort and the provisions in the House-passed bill is how much authority commanders have in prosecuting major crimes, like military sexual assault.

Gillibrand’s proposal would entirely remove military commanders from the chain of command, replacing them with independent military prosecutors. 

The House bill strips commanders of most of their authority to prosecute serious crimes, but still allows them to conduct trials, pick jury members, approve witnesses and grant immunity.

The bill also cuts the number of crimes handled by outside prosecutors from 38 to 11 and allows commanders to keep their power to allow service members accused of crimes the option of separation from service instead of facing court martial.

Gillibrand said the commander’s authority in the bill “goes against the wishes of survivors and the advice we’ve received from military experts for nearly 10 years.”

The New York Democrat also took issue with sexual harassment prosecutions still being in the military chain of command, even though  both Armed Services panels voted to remove prosecuting that crime out. 

“Ultimately, it is unnecessary to delve into the minutiae of military criminal procedure: experts all agree that the system as it is currently designed must be changed,” she continued. 

In his statement, Smith said Gillibrand “clearly believes” that more crimes should be prosecuted outside of the military chain of command.

However, he said Gillibrand “personally assured me that she was okay with an amendment to her measure on scope of crimes … that would have created a special victims prosecutor for sex crimes while keeping her approach intact. That just doesn’t add up.”

Smith said Congress cannot make survivors of sexual assault wait any longer because “the initial House and Senate versions of the NDAA differ on how many additional crimes should be removed from the military chain of command.” 

“The FY22 NDAA just passed the House with an overwhelming majority, and it will deliver justice for survivors by bringing accountability, independence, and transparency to the prosecution of sexual assault and other sex crimes in the military — anyone who pretends otherwise is doing survivors a great disservice,” he continued. 

Still, Gillibrand said, “Anyone who looks at the system the NDAA will create should understand that the commander is still in charge.”

“The reality is, as victims who have had to go through the process have said, the role of the convening authority is central to the process,” she continued. “We owe it to survivors to make the changes they have asked for, and the NDAA does not do that.” 

Updated 7:15 p.m.