Paul, Cruz Back Bill Changing Military Sexual Assault System

Democratic Sen. Kirsten Gillibrand is winning more support for her effort to put serious military criminal cases in the hands of prosecutors. Commanders currently decide whether to try a case. On Tuesday, two Republican senators, and possible 2016 presidential hopefuls, added their names: Ted Cruz and Rand Paul.

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And support is growing in Congress for a bill that to allow military prosecutors to decide whether or not to try serious military crimes, including sexual assault. That would take the decision out of the hands of commanders, commanders who are in a position of overseeing the careers of both the victims and the accused. NPR's Ailsa Chang reports that two Republican senators and possible presidential hopefuls in 2016 are joining forces with Democratic Senator Kirsten Gillibrand.

AILSA CHANG, BYLINE: As Senate Democrats spend this week bickering with Republicans about filibuster reform, an unusual allegiance was coalescing around another proposal getting lots of attention, stripping military commanders of the power to decide which sexual assault crimes should go to trial. It was a rare spectacle. Conservative favorites like Rand Paul of Kentucky and Ted Cruz of Texas nestled among a cluster of Democrats at a press conference. Here's Cruz.

SENATOR TED CRUZ: Look. I think all of us, Republicans, Democrats, and I think also the commanders in the military, want to solve this problem. And the question is what's the right solution that will fix it, that will prevent sexual assault, but also maintain good order and discipline, maintain the integrity of the chain of command.

CHANG: Good order and discipline. It's this idea that for the military to operate, there must always be cohesion, especially when lives are at risk. And for that to happen, a commanding officer's authority must be all encompassing. Gillibrand's bill would take away a commanders discretion to prosecute, not only sexual assault, but many serious crimes like homicide.

And to a lot of military brass and lawmakers, that would severely debilitate commanders. Here's Senate Armed Services chair Carl Levin of Michigan.

SENATOR CARL LEVIN: The problem is, that if you remove the chain of command, you're taking away from the command or chain of command the club that they need to change the culture, which is the club of being able to prosecute somebody.

CHANG: And commanding officers can change culture. Remember, Levin says, that's why the military was in some ways ahead of the rest of the country when it came to fighting discrimination against African Americans.

LEVIN: 'Cause they had commanders which finally said it's going to end. It's going to end here and we're going to enforce it. And if anybody opens their yap and makes comments about people of other races or ethnic groups, we're going to deal with it as commanders.

CHANG: So Levin instead offers a different bill. When an officer decides not to prosecute a sexual assault allegation, the next higher level in the chain of command would review that decision and Levin would make retaliation against an accuser a crime. Military lawyers say it's good to leave prosecutorial decisions in the hands of commanders because they're not making those determinations in a vacuum anyway.

Victor Hansen is a former Army lawyer, or Judge Advocate General as they're known, and now teaches at New England School of Law.

VICTOR HANSEN: My experience, I'm sure, is similar to virtually every JAG who's ever advised commanders, is that commanders routinely seek out and aggressively seek the advice of their lawyers and don't make these decisions without fully consulting their lawyers to get the best legal advice that they can get.

CHANG: But Gillibrand says the real problem comes up way before that. Surveys suggest close to 90 percent of victims in the military don't report sexual assaults in the first place.

SENATOR KIRSTEN GILLIBRAND: If they've witnessed other people reporting being retaliated against, if they've witnessed other people being shoved out of the military because they've reported these crimes, they will not trust the system that the chain of command has put into place.

CHANG: Gillibrand hopes to get a majority of the 100 senators for her bill as soon as next week. Ailsa Chang, NPR News, the Capitol.

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