The nation’s top military officers are warning against a sweeping military justice overhaul that has broad bipartisan backing in the Senate.
In letters released Tuesday by Senate Armed Services Committee ranking member Sen. Jim Inhofe (R-Okla.), the chairman of the Joint Chiefs of Staff and the chiefs of the Army, Navy, Marines, Air Force, Space Force and National Guard Bureau argued that removing military prosecutions of all serious crimes from the chain of command could undermine commanders’ ability to lead.
“It is my professional opinion that removing commanders from the 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 wrote in his letter, elaborating on recent testimony before the committee.
Still, Milley reiterated that “in the specific and limited circumstance of sexual assault, I remain open-minded to all solutions.”
“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,” Milley added.
At issue is a dispute over how broadly to reform the military justice system in an effort to tackle the pervasive issue of sexual assault in the military.
The Independent Review Commission empaneled by Defense Secretary Lloyd Austin to study how to better tackle sexual assault has recommended taking the decision to prosecute sexual assault and sexual harassment away from commanders and giving it to independent prosecutors.
But a bill from Sen. Kirsten Gillibrand (D-N.Y.) would remove the decision to prosecute all serious crimes — including sexual assault, but also other crimes such as murder — from the chain of command.
Gillibrand’s bill has 66 co-sponsors, more than enough to overcome a Senate filibuster. But a dozen efforts by Gillibrand to get the bill a floor vote have been blocked by Senate Armed Services Committee Chairman Jack Reed (D-R.I.) or Inhofe.
Reed has said he favors tackling the issue in the annual defense policy bill, rather than a stand-alone vote on Gillibrand’s bill, something supporters of her bill say is an effort to water down reforms. Reed supports the recommendation of the Independent Review Commission on sexual assault prosecutions over the broader reforms being proposed by Gillibrand.
Inhofe, meanwhile, has said he remains opposed to the change even for sexual assault cases.
In a statement, Gillibrand called the letters “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.'”
Gillibrand and supporters have argued that only reforming the military justice system for sex crimes could create a so-called “pink court,” segregating crimes that mostly involve women and further stigmatizing victims.
Gillibrand has also been arguing that her broader reforms could help address the known racial disparities in the military justice system.
In their letters, the Joint Chiefs acknowledged sexual assault victims have lost faith in the ability of commanders to handle their cases and several expressed an openness to military justice reform for sex crimes.
But they all argued Gillibrand’s bill could create new problems, echoing Milley’s concerns about negatively affecting commanders’ ability to maintain good order and discipline.
“Large scale removal of commanders’ authority could cause sailors to doubt the capabilities of their commanders or to believe that their commanders operate without the full trust of their superiors,” Chief of Naval Operations Adm. Michael Gilday wrote in his letter. “I have seen no evidence that there is a lack of trust among victims for all crimes for which the punishment exceeds one year of confinement.”
Several also expressed concern about the bill’s 180-day implementation period, with Marines Commandant Gen. David Berger writing that is “not nearly enough time to reconfigure a military justice system that has been in place for over seven decades.”
Updated at 4:42 p.m.