This afternoon, the Senate will vote on an amendment offered by Democratic senator Kirsten Gillibrand of New York that would take the prosecution of certain serious crimes in the military, including sexual assault, outside the chain of command. Although all-star Republican senators Ted Cruz of Texas and Rand Paul of Kentucky have signed on to Gillibrand's amendment, Heritage Action is urging conservatives to vote "no" on the measure.
The political arm of the Heritage Foundation sent the following memo to Senate offices today:
Heritage Action Recommends Senators Vote "NO" on Gillibrand
Taking that power away from commanding officers eliminates an indispensable authority that cannot be delegated or transferred to another if we are to demand accountability from commanders for prosecuting and preventing sexual assaults and other serious crimes. This notion of accountability to one’s commanding officer may seem mysterious to civilians who have never served in the armed forces. But chain of command, and accountability up and down the chain of command, is essential to carrying out the missions as ordered by the President, whose authority as Commander in Chief owes accountability to the people via elections and assures a military that will not threaten a constitutional democracy—whether our country is engaged in an armed conflict or not.” As Senator Claire McCaskill (D–MO) said, “the best way to protect victims and realize more aggressive and successful prosecutions is by keeping the … chain of command in the process at the beginning of a criminal proceeding … there’s no substitute for a commander who does it right.”
The last time Congress attempted a legislative “fix” to the issue of sexual assault in the military, the legislation made matters worse. Against the advice of subject matter experts, Congress rewrote the military rape statute in order to make it easier for the government to get convictions and harder for those accused of rape to mount a proper defense. These efforts resulted in years of unnecessary litigation and ultimately in a fedkriseral appeals court declaring the scheme unconstitutional. This time, Senator Gillibrand is pushing an even more radical idea: stripping commanders of the ability to enforce good order and discipline in their units by removing their authority to refer cases to a court-martial. As with last time, subject matter experts the military and Heritage Action strongly advise against this scheme.
The Gillibrand amendment is strongly opposed by military leaders. “Conveyance of a message that commanders cannot be trusted will only serve to undermine good order and discipline,” Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, wrote to the Senate Armed Services Committee in 2013. Military leaders have rallied support behind an alternative amendment sponsored by Democratic senator Claire McCaskill of Missouri.