Biden approves removing military commanders from deciding sex-assault cases

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President Biden has approved a seismic shift to the military justice system that would strip away legal authority over sexual assault and harassment cases from a unit’s chain-of-command and give the proceedings to special prosecutors.

“We need concrete actions that fundamentally change the way we handle military sexual assault and that make it clear that these crimes will not be minimized or dismissed,” Mr. Biden said.

Advocates say the action is needed because the Pentagon hasn’t come to terms with an epidemic of attacks aimed at women in uniform.

On Thursday, senior administration officials confirmed that Mr. Biden was following the recommendations from Secretary of Defense Lloyd Austin based on a recently completed report from an independent commission set up in the early days of the administration to address sexual assault in the ranks.

While military commanders routinely claim there is no tolerance for sexual assault in the armed forces, the investigation indicates that in the case of sexual assault and harassment, rhetoric and reality are sometimes not the same.

“There is a troubling gap between what senior leaders say about the problem and how junior leaders experience the problem,” said a senior administration official who was involved in the report. “The key finding from junior enlisted members is that they experience daily acts of demeaning language and sexual harassment.”

In a statement released Friday, Mr. Biden said concrete changes to the military judicial system, such as those recommended by the independent commission, are necessary to fully protect women in uniform from sexual violence.

“Ending violence against women and eliminating sexual assault against any person in our country has been a priority for me throughout my career in public service,” Mr. Biden said. “Sexual assault is an abuse of power and an affront to our shared humanity. Sexual assault in the military is doubly damaging because it also shreds the unit and cohesion that is essential to the functioning of the U.S. military and to our national defense.”

Gen. Mark Milley, chairman of the Joint Chiefs of Staff, has said top military leaders lost the faith of the troops on the matter because they haven’t done enough in recent years to eliminate sexual assault.

“In the specific and limited circumstance of sexual assault, I remain open-minded to all solutions,” he wrote in a letter to Oklahoma Sen. Jim Inhofe, the top Republican on the Senate Armed Services Committee. “I urge caution to ensure any changes to commander authority … be rigorously analyzed, evidence-based and narrow in scope, limited only to sexual assault and related offense.”

Amending the Uniformed Code of Military Justice would require working with Congress, even as lawmakers in Washington are considering the Military Justice Improvement and Increasing Prevention Act of 2021 proposed by Democratic Sen. Kirsten Gillibrand of New York, and a similar measure being offered in the House.

“It’s really clear that Sen. Gillibrand deserves an enormous amount of credit. The president really shares her strong passion to take on this issue,” a senior Biden administration official said. “He is really pleased to see that there is a growing consensus to see these crimes taken out of the chain of command.”

The legislation in the House is named in honor of Army Spec. Vanessa Guillen, a soldier at Fort Hood, Texas, who was killed last year by a fellow soldier and earlier had been sexually harassed in an unrelated incident by a superior. She didn’t report the incident for fear of retaliation.

If passed, Ms. Gillibrand’s measure would not only remove military commanders from authority over sexual assault cases but most other serious crimes as well. Adm. Michael Gilday, chief of Naval Operations, said her plan “erodes the ability of commanders to create and maintain the environment necessary to effectively exercise mission command.”

In his message to Mr. Inhofe, Adm. Gilday said he also has concerns about the timeline.

“If [Ms. Gillibrand’s measure] goes into effect without careful implementation, there is a significant risk that cases may be delayed during the trial or overturned on appeal,” he wrote. “This, in turn, would erode confidence in the system and ‘re-victimize’ victims.”

Officials who worked on the report said there will be an important role for commanders even if they are removed from decision-making authority on sexual assault cases.

“We believe instead that it enhances their role and places them in the lead of taking care of their people — the number one job of commanders,” a Biden administration official said. “They are key to protecting victims from negative consequences related to sexual assault.”

How a military commander addresses sexual harassment and sexual assault issues should be factored in for promotions and other leadership opportunities, officials said.

“When you take as good care of your people as you do your vehicles, that’s when you’ll start to see some change,” an administration official said.

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