Letter to Adam Smith, Chairman of the House Armed Services Committee, Jack Reed, Chairman of the Senate Armed Services Committee, Mike Rogers, Ranking Member of the House Armed Services Committee, and Jim Inhofe, Ranking Member of the Senate Armed Services Committee - Warner joins Gillibrand and Colleagues in Letter Pushing Committee Leadership to Keep Senate-Passed Military Justice Bill in Final NDAA Language

Letter

Dear Chairman Smith, Chairman Reed, Ranking Member Rogers, and Ranking Member Inhofe,

We are writing to ensure that Section 561-570 of Senate Bill 2792, the Military Justice
Improvement and Increasing Prevention Act, as passed by the Senate, remains in the conference
reported version of the Fiscal Year 2022 National Defense Authorization Act (NDAA). The bill
is bipartisan and bicameral legislation with 220 co-sponsors in the House and 66 co-sponsors in
the Senate. It is outrageous that the Senate and House Armed Services Committees would even
consider stripping out a provision that is backed by a bipartisan majority in both chambers and
has been included in the Senate version of the bill. Sexual assault in the military is a serious
concern and demands a real solution, not a watered-down provision slipped in the final bill
behind closed doors. Retaining the full provision will ensure that the will of this strong majority
of members is respected. This provision is the only reform that will provide true independence
for prosecutors in the military justice system and is essential to ensure that victims, accused, and
the public all have full faith and confidence in the military justice process.

A Congressional Research Service report from October 18 comparing the three different
approaches in the House and Senate version of the NDAA identifies MJIIPA as the only
legislation in which the designated judge advocate is "serving outside the chain of command of
the accused and victim" and in which the court-martial convening authority is "outside the chain
of command."

Putting serious criminal cases in the hands of independent military prosecutors is a
commonsense reform that will professionalize our military justice system. The consensus among
experts is that this reform will improve the system.
All of our major allies have made a similar,
or more drastic, change to their military justice systems.
Twenty-nine Republican and
Democratic state attorneys general have called on Congress to make this change.
And the Independent Review Commission established by the Department of Defense (DoD)
recommended independence in all crimes in the limited set of crimes they reviewed; in response,
Secretary Austin asked "Congress to amend the Uniform Code of Military Justice (UCMJ),
removing the prosecution of sexual assaults and related crimes from the military chain of
command."

Currently, only one-third of victims of sexual assault in the military are willing to come
out of the shadows to report their crime. That shows a clear lack of trust in the current system's
ability to be unbiased and deliver justice without retribution. The only way we will be able to
reassure victims that they will get an impartial review of their case is to make experienced judge
advocates the convening authority in their cases. Without the duties inherent to convening
authorities, the perception and reality of commanders influencing the outcome will be
unavoidable.

Moreover, we've recently seen that despite a congressional mandate for the use of
Special Victim Prosecutors ("SVP"), DoD relegates their involvement in many cases. The
Special Victim Prosecutors provisions in this year's NDAA alone will be insufficient to address
the magnitude of the problem. A November 10, 2021 DoD IG report outlined several disturbing
findings, including that, in violation of federal statute and regulation, the military: (1) Did not
"consistently assign certified lead investigators for investigations of covered offenses,"(2) Did
not "consistently document communications with Special Victim Investigation and Prosecution
members about covered offenses" and, in Finding D, (3) did not "consistently assign specially
trained prosecutors to cases involving covered offenses." The report found that across the
Armed Services, 58% of cases did not have properly trained prosecutors--and in the Air Force,
the number was 94%.

The MJIIPA provisions are as important for defendants as they are for survivors. Our
service members deserve the equal protection under the law that is afforded to every other
member of society. Accusations of serious crimes carry serious consequences. When we
empower military officers to take a year or more of liberty from our service members, the service
member has a right to a professional and impartial process. Infantry officers, who joined the
military to battle our enemies, cannot provide that process. Judge advocates, who joined the
military to excel at military justice, who have studied the law, and receive specific training, can.
It is unrealistic and untenable to leave these complex legal decisions to commanders whose
expertise relates to warfighting, not the minutiae of the law. We have seen the military justice
system is not immune to biases.
This is unavoidable when we leave the system up to untrained
commanders instead of professional prosecutors.

These issues have been plaguing the military for decades, despite countless congressional
mandates, $1 billion of funding, and promises from leadership that they would address it. Our
service members do not have years or decades more to wait for the DoD to solve this problem.
The Report of the Fort Hood Independent Review Committee is undeniable proof that the
funding we have provided and the trust that we have given to the Department have not resulted
in the changes necessary for our service members to feel safe.

We must act with an urgency that meets this moment and urge you to ensure the NDAA
provides true independence for prosecutors in the military justice system and covers all major
offenses in the UCMJ.
We thank you for your consideration of this request and your commitment to ensuring
that our armed forces represent the values on which our country was founded and to which we
continue to aspire to meet.

Sincerely,