A shocking new investigation has found that the Pentagon misled Congress while trying to block a major reform of the way military sexual assault cases are prosecuted.
"Our analysis reveals that the Pentagon exaggerated and distorted the facts in order to undermine fundamental reform of the military justice system," reads a new report released Monday by the victim advocacy group Protect Our Defenders and confirmed by an Associated Press investigation.
It's not clear who exactly at the Pentagon was responsible for this. The inaccurate testimony came from Adm. James Winnefeld, vice chairman of the Joint Chiefs of Staff, but he could have been working from bad information.
Winnefeld told Congress in 2013 — falsely, it turns out — that civilian prosecutors "refused" to prosecute 93 specific sexual assault cases that nonetheless went to court-martial because a military commander "insisted" on it. He used this statistic to bolster his claim that it would be bad for victims if military commanders were stripped of their power to decide whether to prosecute military sexual assault cases.
Whether Winnefeld knew he was wrong at the time or not, one thing is clear: The military released disingenuous data about how it prosecutes sexual assault cases. And that data was used in high-level testimony before Congress to squash a major victims' rights reform — at a time when most military sexual assault victims still refuse to come forward because they don't trust the system, and risk brutal retaliation if they do come forward.
"Whether you agree or disagree with the policy at issue, every Senator should be outraged, and revisit their votes" on the reform bill in question, said Col. Don Christensen, former Air Force prosecutor and president of Protect Our Defenders, in a statement. Christensen and other advocates are demanding that Congress hold a hearing to find out what happened.
What exactly did the military mislead Congress about?
The Pentagon opposes the Military Justice Improvement Act (MJIA), which Sen. Kirsten Gillibrand (D-NY) and victim advocates have been pushing for since 2013. The MJIA would strip military commanders of the authority to decide whether a sexual assault case should move forward, and hand that authority over to independent military prosecutors instead.
The bill's supporters say this is necessary to protect victims whose commanders might be inclined to sweep a case under the rug — because he's friendly with an accused rapist, for instance, or because he has old-fashioned attitudes about sexual assault, or because he doesn't want bad press.
Critics of the MJIA, including the Pentagon and lawmakers like Sen. Claire McCaskill (D-MO), say this reform would undermine the chain of command and interfere with commanders' ability to deal with problems in their units — and that commanders are actually more aggressive than outside prosecutors about moving forward with sexual assault cases.
The latter point is what Winnefeld testified to before Congress in 2013. He said that between 2010 and 2013, there were 93 documented cases of military sexual assault that a local district attorney "refused" to prosecute but that still went to trial because a military commander "insisted" on it. If you strip commanders of that authority, he argued, fewer cases will go forward, and victims will suffer. Several senators who voted against the MJIA cited Winnefeld's testimony to explain their votes.
But Protect Our Defenders decided to file a Freedom of Information Act request on those 93 cases. Three years later, the group finally got data back on 81 of them from the Army and the Marines; the Air Force never responded, and the Navy said it didn't have any such records.
The results were startling. Not one of the 81 cases had any evidence that the case went to trial because a commander "insisted" on it. None of them showed evidence that military prosecutors were less willing than commanders to go forward with a case. The conviction rates for sexual assault in these cases were also significantly lower than the military claimed, and the sentences were arbitrary and unpredictable — including one major who was sentenced to just 30 days in confinement for molesting a child.
Two-thirds of the cases either didn't even involve a sexual assault allegation in the first place or showed that the local DA didn't "refuse" to prosecute at all — rather, the DA handed the case over to the military so that the case could be prosecuted.
The other third of the 81 cases may in fact have been "refused" by local prosecutors or other local authorities — but about a third of those cases never resulted in sexual assault charges at all. And again, there's still no evidence that a military commander pushed any of these cases forward after they were rejected by a civilian prosecutor.
AP's interviews with civilian prosecutors also give us reason to doubt the military's account of how those cases went:
Kristyna Mills, the district attorney in New York's Jefferson County, where Fort Drum is located, disputed the Army's conclusion that her office turned the case down. She said the decision to allow the Army to take it was a "collaborative effort" made with the legal staff at Fort Drum.
"It is extremely rare that my office 'declines to prosecute' a case unless there are serious evidentiary issues that we feel cannot be overcome," Mills said.
In another case, the sheriff's office in Macomb County, Michigan, launched an investigation of Marine Corps Staff Sgt. D.C. Hagler, who was suspected of child pornography and indecent exposure, according to the records. But Hagler was stationed in Iraq. So the sheriff asked the Naval Criminal Investigative Service to take over what had become an international probe. Yet this is among the cases cited by Winnefeld as an instance where the military had to step in after civilian authorities wouldn't act.
But even if all 93 cases were exactly what the military said they were, Protect Our Defenders' Christensen told reporters Monday, it would still be a lousy, cherry-picked argument for the Pentagon's side of things. There were about 12,000 total allegations of sexual assault reported to the military in that time frame (2010-2013), Christensen said, and the military ultimately refused to prosecute about 10,000 of them.
Why does the Pentagon want to block this reform?
The short answer appears to be that the Pentagon doesn't like giving up authority unless it absolutely must. But while it has blocked similar reforms to commanders' authority in the past, it tends to immediately relent once the commander in chief says those reforms are a good idea. President Obama hasn't endorsed the MJIA yet, though, to Gillibrand's frustration.
The Pentagon's arguments against the MJIA rest not just on bad data but also on fundamental misunderstandings about how military justice works, Christensen explained to Vox in an interview.
South Carolina Republican Sen. "Lindsey Graham, who should know better because he was a JAG [judge advocate general], constantly says Gillibrand wants to 'fire every commander,'" Christensen said. But Gillibrand's proposal only affects about 150 commanders at the very top, and it would change neither the power nor the responsibility that the military's 15,000 other commanders have to manage the well-being of people in their unit after an assault is reported.
These 150 military commanders — think two- or three-star generals here, not lower-level unit commanders — aren't actually involved in the investigation or prosecution of sexual assault cases, Christensen said. They are simply the "convening authority" that decides whether a case will be prosecuted, after they've reviewed the results of an investigation from separate military agencies who have looked at the case in consultation with a JAG.
The most significant thing these 150 commanders can, and often do, use their convening authority for is to block a case from going forward, Christensen said. "That's the fight I had as a prosecutor, is getting them to not stop cases," Christensen said. "They can also slow down the process or discourage victims from going forward, retaliation, hostile work environments — that's one of the things we see over and over."
Sixty percent of victims who report their attack say they were retaliated against by peers or by their commander, according to the Department of Defense. Top-level commanders with convening authority may not know either the alleged victim or the perpetrator. But they might, and they might also be influenced by reports from lower-level commanders who do.
But even the good commanders who don't retaliate and want to see victims get justice aren't really helped by having convening authority. "Commanders can't willy-nilly say, 'I'm going to prosecute this case to show McCaskill how tough I am,'" Christensen said. To go forward, they have to have legal advice from their JAG saying there is enough evidence to prosecute.
In other words, the idea that those 93 cases might have gone forward because a commander "insisted" on it over the head of a local prosecutor is completely incoherent to anybody who understands how military justice works.
And unfortunately, Christensen said, most two- and three-star generals — Winnefeld included — don't understand how military justice works. They're just used to taking whatever advice their JAG gives them. "If you gave them a quiz about military justice, every one of them would fail," Christensen said.
That's not a knock against the generals, he said. It's just literally not their job to know this stuff in detail, which is why it makes no sense to make them decide on prosecutions along with all the other umpteen duties they have on their plates.
So, yes, taking these prosecutions out of the chain of command is about keeping bad commanders from doing bad things to victims — but it's also about relieving good commanders of the burden of making decisions they're not really trained for. And maybe these latest revelations will convince members of the Senate to change their minds on reform.