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Defense bill signals changes to military justice system, shift of focus to Pacific threats

Changes in how the military will handle sexual assault claims mark a watershed moment for this issue.

WASHINGTON (CN) — Sending the $768 billion defense authorization bill to the Senate for a vote later this week, House lawmakers have voted in a budget that is notable both for its long-awaited changes to sexual assault investigations in the military and for formally shifting the security threat focus away from the Middle East to placing an emphasis on China.

The legislation is renewed every year to keep the Department of Defense funded and signal U.S. military priorities. After months of political fights and dropped amendments, this year's version of the defense authorization act focuses on reforming military personnel policies and cementing U.S. goals to focus on perceived military threats in the Indo-Pacific region. Though it has drawn criticism from lawmakers who wanted a larger overhaul of the military justice system, it passed the lower chamber Tuesday with broad bipartisan support.

Among other changes, the legislation establishes a special prosecutor who will decide whether to pursue charges of sexual assault, murder, kidnapping and child pornography — authority that was previously given to military commanders.

The bill also makes sexual harassment a crime in the military justice system and requires all claims to be handled by an independent investigator.

Survivors of sexual assault would also be notified of any actions the military takes against their attackers.

"It's so much more than anything that's happened before," Malia Du Mont, a former strategist for the secretary of defense, said of the reforms. "There's been a lot of bureaucratic inertia and opposition to any major change — especially because this affects how commanders manage their troops, which is kind of a sacred thing in the military, so the fact that this has passed through is really tremendous."

Senator Kirsten Gillibrand, a Democrat from New York, spearheaded the push for reforms to how the military handles sexual assault cases, but her proposal to give a special prosecutor authority over a larger swath of crimes and sole authority to convene court hearings did not make it into the final bill, raising concerns about the influence military commanders still hold over if and when service members are charged with crimes.

"This disregards the calls of service members, veterans and survivors who have fought for an impartial and independent military justice system," Gillibrand said in a statement about the nixed provisions.

Du Mont echoed the senator's disappointment but tempered it with hope for the future. "It's unfortunate that more didn't happen with what Gillibrand was advocating for, but it's already such a success to get this new special prosecutor in that I think it's going to create some momentum, and I don't think this is the end of the story in terms of military justice reform," she said.

Other substantial reforms also ended up on the cutting-room floor as House and Senate leaders hashed out a bipartisan deal.

The Congressional Black Caucus had pushed for the legislation to address disparities in how Black service members and service members of color are treated in the military justice system, but no specific policies were included in the bill.

“There’s a disproportionate, not just number of cases brought against minorities, but also there is concern that there’s a variation in the level of punishment received based on minority status," said Katherine Kuzminski, senior fellow and director of the Military, Veterans, and Society Program at the Center for a New American Security.

Representative Anthony Brown, a Democrat from Maryland, had also proposed an amendment to track and deter extremism within the military that did not make it into the final bill.

Brown voted against the bill in protest of the scrapped provisions.


“If we do not take this moment, in the face of the rising threat of extremism, and persistent racial inequities in both our civilian and military justice systems, we fail the communities who elected us, the Constitution on which we swore an oath, and the servicemembers who sacrifice so much to defend our nation,” Brown wrote in a letter to his colleagues.

A line item that would have required women to register with the Selective Service for military drafts was also cut from the final legislation.

"It's, in general, kind of an incremental bill, not anything that would be a really massive change in any funding that would affect policy," Tung Yin, a professor of law and researcher on national security and terrorism law at Lewis & Clark College, said of the final bill.

But the bill that now awaits a Senate vote does include specific political reforms.

It lengthens the cooling-off period before former military officers can serve in politically appointed positions, increasing the time frame from seven years to 10 years for a secretary of defense and from five years to seven years for a service secretary.

There is still a waiver process, however, that can get appointees to skirt these rules.

“This is more of a political statement about the need to have true civilian leadership within the Department of Defense, but in actuality, there was already a cooling off period that neither Secretary of Defense Austin or his predecessor James Mattis [finished], they both received a waiver," Kuzminski said. "So, I think it’s more sending a message that we want to develop the civilian national security talent necessary to lead and not simply rely on the military."

Kuzminski said the change may also be a response criticisms of the United States' withdrawal from Afghanistan earlier this year.

“There’s a critique that the national security apparatus writ large was too militarized so this is a way to kind of counterbalance that," Kuzminski said of the reform.

The legislation creates a 16-member commission to review and investigate U.S. involvement in Afghanistan, a provision that has drawn bipartisan support after the American military's messy withdrawal earlier this year.

The personal lives of service members are also a facet of the bill, which provides 12 weeks of parental leave to military members as well as a 2.7% pay raise for all personnel.

In addition to the legislation's personnel-focused reforms, Kuzminski said he bill also signals a formal shift in the U.S. military priorities.

For more than 20 years, annual versions of the defense authorization act focused heavily on funding fights against terrorism and wars in the Middle East. Kuzminski said that the United States began to focus on defense strategies in the Pacific in 2014, but remaining involvements in Afghanistan and the Middle East meant funds were scattered.

"I think this is the first time we are really seeing a concerted effort and agreement across the executive branch and legislature that the real pacing threat we are looking at is in the Indo-Pacific region," Kuzminski said.

"A lot of our friends and allies in the region are increasingly concerned about what they see as China's increasingly belligerent attitude. So, I think there's a real growing concerned that's based on actions China has taken that are more aggressive than we've seen in the past, more frequent," Du Mont said.

The bill allocates $7.1 billion to the Pacific Deterrance Initiative to deter Chinese aggression and $4 billion for the European Deterrence Initiative focussed on combatting Russian aggression in Europe.

The Department of Energy is also budgeted $27.8 for nuclear weapons research.

Yin said the pressing question is how much Chinese dominance and Russian militarization will affect spending in future defense bills.

While the bill is expected to pass the Senate on a bipartisan basis, Yin said Chinese militarization and Russia's encroachment onto Ukraine's border's earlier this week may be heavy on the minds of senators.

"You maybe would wonder if that's on the minds of some congresspeople, particularly now in the Senate as they are voting, are they going to think, 'Well, wait a minute, we need to put more money into this?'" Yin said.

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