Obama should back Gillibrand

By Lanny Davis – 07/24/13

Some things that happen in Washington, D.C., have come to be expected, such as hyperpartisanship in the Congress along sharp “red” vs. “blue” lines.

New York Sen. Kirsten Gillibrand (D) has assembled a remarkable bipartisan coalition of senators to support her modest proposal, the Military Justice Improvement Act, which would guarantee that decisions whether to investigate and prosecute allegations of unwelcome sexual contact within the military would be made outside of the chain of command where the alleged assault occurred.

Currently, such decisions are made by the superior officers in the chain of command directly above the alleged victim.

The senator’s proposal has received notable bipartisan and diverse ideological support. When is the last time you saw a list of supporters that included conservative Republican Sens. Ted Cruz (Texas), Rand Paul (Ky.), and David Vitter (La.) on the same side of an issue as well-known progressive Sens. Bernie Sanders (I-Vt.), Al Franken (D-Minn.), Barbara Boxer (D-Calif.) and Elizabeth Warren (D-Mass.)?

One reason for this breadth of support is Gillibrand’s skillfully crafted, moderate and modest approach to the proposed reform.

For example, the proposal does not assign to a civilian authority such decisions to investigate or prosecute. Rather it would retain these decisions within the Judge Advocate General (JAG) office to be made by an experienced attorney not in the immediate chain of command above the complainant.

Note also, the definition of the “unwanted sexual contact” complaints to be affected by the senator’s proposal is limited to intentional unwelcome conduct. That means intent must be proved; force against the individual’s will must be proved; and contact must be proved, i.e., obnoxious, harassing, or even abusive words or gestures are not subject to this proposal.

Note also that the proposal also takes into account the needs of commanding officers by excluding 37 serious crimes unique to the military, such as going AWOL, as well as all misdemeanor type crimes, so it is not an all-or-nothing approach.

There is more than enough data to support the common-sense assumption that those who are victims of military sexual assault may be discouraged to report an incident, knowing that only those immediately above them in their chain of command will decide whether to investigate or prosecute.

For example, according to the Pentagon’s own data, of the active duty women who indicated experiencing unwelcome sexual conduct, 66 percent said they felt uncomfortable making a report within their chain of command and 47 percent indicated fear of retaliation or reprisal. Even the top military leadership doesn’t attempt to deny the obvious. The Commandant of the Marine Corps, Gen. James Amos, stated this year that victims do not come forward because “they don’t trust the chain of command.”

So how is it possible that President Obama allowed his Defense Secretary, Chuck Hagel, to oppose the legislation in testimony before the Senate Armed Services Committee?

This is one of those instances where, try as I might, I just can’t understand the opposition’s reasoning. Six-term Michigan Democratic Sen. Carl Levin, whom I have known and admired for more than three decades (he was first elected in 1978), believes his alternative proposal approved by the committee — which requires automatic reviews of a commander’s decision not to prosecute — was a reasonable compromise.

But, with all due respect, that to me doesn’t address the reality of the perception by potential sexual assault victims of a conflict of interest or possible retaliation. The Joint Chiefs’ reason for opposition, that the proposal “undermines good order and discipline,” is conclusory and, respectfully, as far as I can tell, not based on facts.

So I hope Obama decides to support this amendment when it comes to the Senate floor. There are already 42 senators ready to support it, with another nine votes very possible, given the moderation of the proposal.

After all, this purple moment when Paul and Sanders agree on something doesn’t happen very often. Obama should be ready to lead and support Gillibrand’s proposal, especially when the need for a perceived independent process for protecting victims of sexual assault seems so obvious and the downside so unclear.

Maybe, just maybe, Obama can make this moment a precedent for more purple moments in congress in the remainder of his term. Goodness knows “this town” needs them.

Davis served as special counsel to former President Clinton and is principal in the Washington D.C. law firm of Lanny J. Davis & Associates, in which he specializes in crisis management. He is special counsel to Dilworth Paxson of Philadelphia and the author of a recently published book, Crisis Tales: Five Rules for Coping with Crises in Business, Politics, and Life (Threshold Editions/Simon and Schuster).

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