Guest: Tuberville backs military justice reform bill — Will it pass?

In late April, U.S. Senator Tommy Tuberville (R-AL) announced he would cosponsor the Military Justice Improvement and Increasing Prevention Act. The bill would reform how sexual assault crimes are prosecuted within the military. At a press conference at Dannelly Field in Montgomery on June 3, Tuberville said the bill would make positive changes to how the military prosecutes sexual assault cases but also said the bill maintained the authority of commanders to maintain law and order.

As he has been well known to do, Tuberville related the changes to football, saying it paralleled the needs of a head coach to discipline players. Football references aside, the bill is a historic opportunity for Congress to assert its authority over rampant sexual assault cases in the military. While a popular measure, it faces grounded opposition from key Senate leaders that could stall its momentum in the red zone (OK, that was the last one).

As background, the effort to reform the military justice system began long before Tuberville took office this year. For eight years, U.S. Senator Kirsten Gillibrand (D-NY) has fought to remove prosecutorial decisions on sexual assault cases from the military chain of command and place those decisions with civilian attorneys. However, many of her colleagues, military commanders and Department of Defense leaders have opposed such moves as they believe doing so would weaken commanders’ ability to maintain good order and discipline among their forces.
The debate came to a head this year when U.S. Senator Joni Ernst (R-IA), who had fiercely opposed the legislation, reached a compromise with Gillibrand to keep major prosecutorial decisions within the military but outside the immediate chain of command. Ernst is the first female combat veteran to serve in the U.S. Senate and is a survivor of sexual assault. She is seen as highly influential on military issues in Congress, and her support for the bill has propelled it to a filibuster-proof 64 Senate cosponsors.

Under the new bill, court martial decisions involving major crimes within the military — including sexual assault, manslaughter, murder and other serious offenses — would be made by independent professional military prosecutors. Misdemeanor-level decisions would still be decided by the commanding officer.

Ernst and other supporters of the bill, including Tuberville, say that the legislation balances good order and discipline concerns with necessary action to curb the devastating level of sexual assault cases in the military. A 2020 Department of Defense study found that around 20,000 sexual assaults occur in the military each year.

Following the announcement of the bipartisan compromise, General Mark Milley, the chairman of the Joint Chiefs of Staff, announced he no longer opposed reforms to the military justice system. Milley is the most senior U.S. military commander and previously opposed legislation that would have moved sexual assault prosecutorial decisions out of the armed forces entirely.

Secretary of Defense Lloyd Austin, an Alabama native, is yet to announce his position on the bill. However, a panel he commissioned to study the issue recently endorsed the legislation. Austin is expected to announce his final position on the issue in the coming days or weeks.

Despite the momentum and 64 cosponsors, the bill still faces major hurdles to become law. U.S. Senator Jack Reed (D-RI), the chairman of the powerful Senate Armed Services Committee, believes the bill should be vetted by his committee prior to receiving a vote on the floor. Reed is not opposed to removing sexual assault cases from the immediate chain of command, but he has questioned removing other serious crimes, such as murder, from commanders’ purview.

In the Senate, expedited approval of legislation requires unanimous consent of the entire legislative body. To date, Reed and others have objected to Gillibrand’s efforts to obtain the expedition. And, with Washington bitterly divided and many critical funding and authorization bills taking up committee business and floor time, the military justice reform bill faces an uncertain future.

One possible way forward is for Gillibrand, Ernst, Tuberville and other members, all of whom serve on the Senate Armed Services Committee, to push for the legislation to be considered as part of this year’s National Defense Authorization Act, known as NDAA. The NDAA is considered a must-pass measure and serves as the vehicle for most major Congressionally mandated military policy measures. It authorizes, but does not appropriate, funding for the Department of Defense and the nuclear weapons programs of the Department of Energy. The NDAA has been approved by Congress and signed into law for 60 consecutive years.

Members of the Senate Armed Services Committee can amend and strike measures for the NDAA during a closed-door process known as “mark-up.” While the NDAA process is delayed due to the late rollout of President Biden’s proposed budget, mark-up is expected to occur in the fall with floor consideration coming closer to the end of the year.

The bill could also be added as a policy rider to any of the approaching appropriations or infrastructure packages that will likely consume Congress in the coming months. However, doing so would likely require the Senate to approve an amendment on the floor, which Reed and others would attempt to disqualify as out of the jurisdiction of non-defense legislation.

Regardless of the legislative vehicle, the bill’s eventual consideration will be a defining moment in a nearly 10-year effort to reform the military justice system. If passed and signed into law, it will mark the culmination of a truly bipartisan compromise by Ernst and Gillibrand, enabled by those newer to the debate such Tuberville and many others. If it fails, proponents and detractors can be expected to pick up the fight again next year, and the years to follow, given the momentous problem at stake.

Jake Proctor is a former intelligence officer at the Defense Intelligence Agency and previously held staff and defense policy positions for U.S. Senators Jeff Sessions (R-AL), Luther Strange (R-AL), and Joni Ernst (R-IA). He currently works in business development at software company in Washington, D.C., focusing on the company’s intelligence community and defense work. He is a Birmingham native and graduate of the University of Alabama and the U.S. Air Command and Staff College.

The views expressed in this article are those of the author and do not reflect the official policy or position of the Department of Defense or the U.S. Government.