But the change is expected to meet stiff resistance within the Pentagon. Though Austin, who retired from the military as a four-star general only five years ago, has made clear he is open to such a shift, military leaders across the force, as well as prominent former senior officers, have consistently argued that the move would undermine discipline in the ranks and erode the chain of command.
This puts Austin in an awkward position, pitting long-standing resistance from the military brass against Biden’s public support for the change and renewed political pressure from Congress.
While a nod from Austin would further boost the effort and help prod the brass to implement the shift, Congress may soon force the Pentagon’s hand by changing the law. There is new, bipartisan momentum on Capitol Hill for the shift among lawmakers who formerly did not support the legislation.
“I’ve worked diligently in my first term to make sure that we are putting in place additional support for survivors [as well as] prevention efforts, but we haven’t seen a drop in the numbers.” said Sen. Joni Ernst, a retired National Guard lieutenant colonel who has spoken about her own experience with sexual assault, in an interview. “So it is time now to professionalize the prosecutors and move that decision making to them.”
Ernst recently signed on to a revised bill championed by New York Democratic Sen. Kirsten Gillibrand that would go further than the Pentagon panel recommendation by removing military commanders from their role in prosecuting all serious crimes, not just sexual assault cases. Gillibrand first introduced a version of the bill in 2013; since that time, unrestricted reports — those involving a full investigation — of sexual assaults in the military have doubled, yet the rate of prosecution and conviction has been halved, her office said in a press release.
“Sexual assault in the military is an epidemic, it has been for a very long time,” Gillibrand told reporters Thursday, noting the new momentum to pass the legislation. “It’s clear that this system is not working. We cannot have good order and discipline when crimes like these are occurring within our ranks and when the culture on base is one not of justice but retaliation.”
The new legislation, called the Military Justice Improvement and Increasing Prevention Act, would also require the military to take steps to help prevent the occurrence of serious crimes like sexual assault, improve physical security on bases, increase training and education for both commanders and service members, and help train military specialists to properly handle the cases, Gillibrand said.
It also includes new language to ensure that commanders stay informed of any investigation within their ranks, Ernst said. Besides Ernst, the bill is being backed by Republican Sens. Ted Cruz and Chuck Grassley, and Democratic Sens. Richard Blumenthal, Mark Kelly and Tim Kaine.
“This legislation is not partisan and not political, it is simply doing the right thing for our service members who do so much for us,” Gillibrand said.
Other lawmakers are signaling they may get on board with the effort. House Armed Services Committee Chair Rep. Adam Smith, a Democrat, has previously opposed removing commanders from such decisions, but told POLITICO last month that he is now “open” to the change.
“If you’ve got a commander who you don’t trust to properly prosecute sexual assaults, then there’s a whole lot of other things that that commander is doing that are undermining our ability to get sexual assault under control. And we need to look at those as well,” Smith said.
In making the shift, America would join the ranks of the United Kingdom, Canada, Australia, New Zealand, South Africa and Israel, experts said. Currently, U.S. commanders make the decision to refer or not refer sexual assault and harassment charges to court-martial in consultation with military lawyers, called judge advocates general.
“This would be possibly the most fundamental change in the American military justice system since 1775,” said Eugene Fidell, a senior research scholar at Yale Law School, referring to the Constitutional Congress’s adoption of the 1774 British Articles of War, the predecessor of today’s Uniform Code of Military Justice.
Despite longstanding resistance, there are signs that momentum may be shifting in military circles, too. Mullen, who has previously argued against taking prosecution authority away from military commanders, said he changed his mind because the Pentagon has repeatedly failed to effectively address the issue.
“I’m at a point now where I am ready to support removal, which is a huge step for me because I recognize how serious that issue is,” Mullen told POLITICO. “We just can’t keep doing what we’re doing because it hasn’t worked.”
Mullen’s opinion could influence Austin’s thinking. Mullen hired Austin to be his director of the Joint Staff, the first Black man to hold that job, and was an advocate for promoting women and minorities throughout his career. He also became the first sitting chair of the Joint Chiefs to support a repeal of “don’t ask, don’t tell” in 2010, which helped prod lawmakers to ultimately move forward on the issue.