The Senate rejected a controversial proposal Thursday to remove military commanders from decisions on whether to prosecute major crimes in the ranks as the concerns of Pentagon leaders trumped calls from veterans groups to dramatically overhaul how the Defense Department handles assault and rape cases.
Congress has already voted to revamp the military’s legal system by ending the statute of limitations on assault and rape cases, making it a crime to retaliate against victims who report assaults and requiring the dishonorable discharge or dismissal of anyone convicted of sexual assault or rape.
But on Thursday senators rejected a plan by Sen. Kirsten Gillibrand (D-N.Y.) that would go further by taking away from military commanders the power to refer serious crimes to courts-martial. The decision would shift instead to professional military trial lawyers operating outside the chain of command.
The proposal fell five votes short of the 60 votes necessary to clear a procedural hurdle and proceed to a final vote. In a reflection of the complexity of the issue, 10 Democrats voted against Gillibrand's plan, while 11 Republicans -- including Senate Minority Leader Mitch McConnell (Ky.), Ted Cruz (R-Tex.) and Rand Paul (R-Ky.) -- joined her in voting to proceed.
A separate, more modest proposal by Sen. Claire McCaskill (D-Mo.), cleared a procedural vote and is expected to be approved Monday night. Her plan would eliminate the “good soldier” defense from military evidence rules unless a defendant’s character is directly tied to the alleged crime.
Gillibrand chairs a Senate Armed Services subcommittee on military personnel and has spent most of the past year lobbying colleagues while butting heads with Pentagon officials who strongly oppose her proposal. Gen. Ray Odierno, the Army chief of staff, has publicly expressed concerns with the cost of setting up a new independent office, a move they estimate could cost about $113 million annually to employ 600 attorneys and staff.
Gillibrand has dismissed those concerns.
"If they need to staff up and lawyer up I'm sure they can do it," she said in a recent interview. "You can never tell me that the Department of Defense can't marshal the resources they need to complete a mission. And if the mission is prosecute more rapists, I'm certain they can accomplish that mission."
Aides had said for weeks that 54 colleagues supported her bill and suggested that a handful more planned to vote with her Thursday. But Gillibrand had declined to predict victory in the days before the vote.
McCaskill has been a lead critic of Gillibrand’s bill, saying it would go too far and adversely affect a commander’s ability the military command structure. And she has doubted for months that Gillibrand's proposal will ever pass.
"If you want more prosecutions, and if you want to hold the commanders accountable, I think it's a dramatic mistake to allow the commanders to walk away and I think it's a dramatic mistake to say a lawyer half a continent away is going to make the call and that somehow is going to protect this victim more from retaliation and result in more cases going to court," McCaskill said in a recent interview.
Even if Gillibrand's proposal had passed the Senate, the issue of more aggressively combating rape and assault in the military has a less certain future in the GOP-controlled House.