FOR IMMEDIATE RELEASE
November 19, 2013 Contact: Brian Purchia, Brian@protectourdefenders.com
*** PRESS RELEASE ***
PROTECT OUR DEFENDERS RESPONDS TO INACCURATE, UNFOUNDED CRITICISMS OF MILITARY JUSTICE IMPROVEMENT ACT BEING CIRCULATED BY THE OPPOSITION
Washington, DC — Today, a majority of U.S. Senators have come out in support of the Military Justice Improvement Act (MJIA) — the only proposed legislation in the Senate that offers fundamental reform to a broken military justice system. However, in recent days those opposed to the legislation have circulated inaccurate, even unfounded criticisms of Senator Kirsten Gillibrand’s proposed amendment to the 2014 NDAA.
Military brass has had decades to deal with the fundamental issue fueling this national disgrace — they have not. In Sept. 1992, according to a LA Times story, then Acting Navy Secretary Sean O’Keefe said:,“several lawmakers” responding to the then recent Tailhook scandal “proposed stripping the armed services of their role in probing sexual molestation cases.” To counter this initiative, military leaders offered their own set of alternative reforms and declared they were serious about addressing this issue. O’Keefe said, “We get it. Our senior leadership is totally committed to confronting this problem and demonstrating that sexual harassment will not be tolerated. Those who don’t get the message will be driven from our ranks.” More than twenty years later Air Force Chief of Staff General Mark Welsh said, “[Sexual assault] just has the potential to rip the fabric of your force apart. I think it is doing that to a certain extent now.”
Protect Our Defenders President Nancy Parrish released the following statement in response to the opposition’s inaccurate, even unfounded criticisms of the MJIA.
“Today, we have a bipartisan majority in the Senate supporting fundamental reform. The American public is on their side, and support is growing. Those who persist in denying justice to our troops will find themselves on the wrong side of history.
It is unconscionable that in the eleventh hour of the debate, in an obvious attempt to confuse the issues and blunt the rising support for fundamental reform, inaccurate, even unfounded criticisms of Senator Gillibrand’s proposed amendment to the 2014 NDAA have suddenly been exposed.
Below are point-by-point responses based in fact to unfounded criticisms of the Military Justice Improvement Act being circulated by the opposition:
1. Every change to existing law requires time to ensure conforming changes to regulations and instructions have time to be implemented. That has been true at every major and minor change to the UCMJ. Senator Gillibrand’s amendment is not any more burdensome on the Pentagon, in terms of the changes they will have to make, no matter which proposals end up as part of the 2014 NDAA. Senator Gillibrand’s amendment allows the Pentagon 180 days to implement the changes required by the 2014 NDAA. The current version of the 2014 NDAA already requires substantial revision to military regulations and instructions to comply with changes adopted in Committee.
2. The issues which arose during the past changes to the UCMJ (e.g. Article 120) were related to trial-level, constitutional criminal law procedural issues. Senator Gillibrand’s amendment does not change, nor address, such trial level constitutional criminal law procedure issues. Rather, Senator Gillibrand’s amendment simply changes the structure of Convening Authority power, which on its face raises no such constitutional issues. The opposition raises no specific concerns in this area. Despite the fact that every change in legislation related to the UCMJ hypothetically could raise ‘constitutional’ issues, the limited scope of Senator Gillibrand’s amendment minimizes such potential issues.
3. Rather than creating two parallel systems of justice, Senator Gillibrand’s amendment utilizes the current Convening Authority system. The only change is that the Convening Authority loses discretion in referring a particular class of cases, but once such disposition decision is made, the referral process continues as under the current system.
4. Contrary to the allegation, Senator Gillibrand’s amendment does not require parallel prosecutions, which allegedly would double the prosecution caseload due to one individual committing both covered and excluded offenses. Section (4)(C) of Senator Gillibrand’s amendment anticipates such a situation and ensures jurisdictional authority without the need for separate courts-martial.
5. Contrary to the allegation that, under Senator Gillibrand’s proposed amendment, a division commander could not refer charges against a subordinate who refused an order to engage the enemy, the fact is that the division commander would retain such power under those offenses specific excluded under Senator Gillibrand’s amendment. Under such a factual scenario, the division commander would retain referral power as the appropriate charge would fall under Article 92, 94, 99, and potentially others.
6. Clarifying language makes it clear that commanding officers may refer cases involving covered offenses to special and general courts-martial, after a member declines punishment under Article 15 and demands trial by courts-martial (or objects to proceeding by summary court-martial under Article 24). Furthermore, regulation Article 15s are reserved for ‘minor’ misconduct and should not be used for offenses for which the punishment exceeds one year of confinement.
7. Nothing in the legislation prevents a Convening Authority from authorizing plea negotiations or entering into a pre-trial agreement. The criticisms offered fail to explain how Senator Gillibrand’s amendment obstructs or limits this ability.
8. Senator Gillibrand’s proposed amendment does not change current procedures under Article 32. Important Article 32 reforms are being addressed through another amendment.
After twenty-five years of failure by military leadership, it’s time for Congress to step up, do their job and protect our troops. The patience and deference that Congress has shown the Defense Department, in giving it the opportunity to fix this problem has come at great cost to our service members, veterans and ultimately to our society.
This crisis cannot be effectively addressed incrementally. Regardless of the reason, the chain of command is not making the right calls with these cases. And therein lies the rub. Congress must not persist in protecting a conflicted and often biased judicial system that is controlled by the accused’s commander. A system, which protects the often higher-ranking and more valued perpetrator over the younger and less experienced service member who is raped while serving their country. This is why according to the Pentagon, over 90 percent of victims do not report the crime and of those few that do, sixty-two percent report they were retaliated against.
The American people are paying attention. There is no longer any doubt that change will come. The question is how long will it take, and meanwhile, at what cost to our service men and women, our military service, and our prestige around the world.”
Associated Press: Senate showdown over military sexual assault bill
Stars and Stripes: After 2 decades of sexual assault in military, no real change in message
Washington Post: Time to try something new to stop sexual assault in the military
USA Today: Take commanders off sexual assault cases
Democrat and Chronicle: Vote near on Gillibrand plan to address military assaults
Huffington Post: Who Will Stand With Military Sexual Assault Survivors When It Counts This Week?
Politico: Kirsten Gillibrand to push original sexual assault measure
About Protect Our Defenders: Protect Our Defenders is a human rights organization. We seek to honor, support and give voice to the brave women and men in uniform who have been sexually assaulted while serving their country, and re-victimized by the military adjudication system – a system that often blames the victim and fails to prosecute the perpetrator. Learn more about Protect Our Defenders at www.protectourdefenders.com or on Facebook at http://facebook.com/ProtectOurDefenders or follow us on Twitter at https://twitter.com/ProtectRDfnders.
Protect Our Defenders partners with Attorney Susan Burke, Burke PLLC to advance lawsuits filed against the DoD and service academies for repeatedly ignoring rape, sexual assault and harassment, failing to prosecute perpetrators and retaliating against the victim.