Gillibrand-Grassley letter to President Obama

Sen. Kirsten Gillibrand

Sen. Chuck Grassley

The joint letter Sens. Chuck Grassley (R-IA) and Kirsten Gillibrand (D-NY) sent to Pres. Barack Obama on April 19, 2016 about information that was provided at a July 13, 2013 Senate Armed Services Committee hearing on sexual assault and in subsequent correspondence to Sen. Gillibrand (who has proposed shifting charging power away from commanders) can be found here. Here is the full text of the letter (from Sen. Grassley's website):

Dear Mr. President: 

We are writing to express our continued concern about the U.S. military’s commitment to ending sexual violence against our nation’s service members. We question whether the Pentagon has accorded this issue the importance it deserves, and our concerns are reinforced by a newly released report by the victims’ advocacy organization Protect Our Defenders, which maintains that the U.S. Department of Defense misled members of Congress during a recent congressional debate over sexual assault in the military, and in a follow-up report by the Associated Press. 

Specifically at issue is the testimony of Admiral James Winnefeld, Jr., which claimed that removing the Pentagon’s chain of command from decisions about whether to prosecute military sexual assault cases would make it more—not less—likely that perpetrators would evade accountability for their crimes.

During a hearing before the U.S. Senate Armed Services Committee on July 18, 2013, the Admiral testified that a “civilian district attorney (DA) refused to take a sexual assault case” and “the chain of command in the military insisted that the case be taken inside the military chain of command.” But for the chain of command, he suggested, “[the perpetrators] would be walking the street right now. The victims would not have had the resolution that they deserved in this case.” Justice depended on “the chain of command insisting that a prosecution be pursued, and it was pursued successfully,” he reiterated. 

Admiral Winnefeld later claimed, in a letter to Senator Gillibrand, that “even in cases where civilian authorities are unwilling or unlikely to act, our commanders consistently insist on going forward in order to achieve accountability, both for the victim and in the interest of military discipline.” He continued, “I fear, however, that the number of prosecutions in these types of cases may well decline if the very commanders who have a vested interest in accountability are stripped of their power to deal with allegations regarding personnel in their units, in favor of detached prosecutors.” The Admiral’s letter accompanied 93 case files that represented the cases commanders decided to pursue upon the declination by district attorneys, although the reasons for declination were not always included. 

Shortly thereafter, Protect Our Defenders sought access to the above-mentioned files through a Freedom of Information Request. Eventually, the organization received some of the files from the Army and Marine Corps, but not the Navy, Air Force or Coast Guard. Having examined the files it received, Protect Our Defenders has stated that they do not support the arguments made by Admiral Winnefeld. They maintain that civilian jurisdictions did not uniformly decline cases. 

The Associated Press (AP) investigation found that the cases cited by defense officials were inaccurately characterized, and that relevant information was even omitted. The report was unable to corroborate the Pentagon’s assertion that military commanders are tougher on sexual assault than civilian legal authorities. Requests made by the AP to the military services for increased access to records and statements were met with silence. 

The AP article revealed a collaborative effort between the military’s legal professionals and local authorities rather than an adversarial relationship portrayed by the military. The AP also found that the Pentagon’s narrative, which has suggested that local jurisdictions are less inclined to pursue sexual assault cases, and that these specific cases might otherwise have gone unprosecuted were it not for commanders’ intervention, to be erroneous. For example, the AP spoke to Kristyna Mills, the district attorney in New York's Jefferson County, which houses Fort Drum. While the Army claimed that the district declined to prosecute a sexual assault case, Ms. Mills said that the decision was made in collaboration with the Army’s legal team. She continued, "It is extremely rare that my office 'declines to prosecute' a case unless there are serious evidentiary issues that we feel cannot be overcome." 

Further, of the 93 cases cited by Pentagon officials, the AP could not identify a single one in which commanders directly intervened to initiate prosecution. According to the report, “Each appears to have followed the steps mandated by the military's legal code: Senior officers cannot refer cases to a general court-martial unless uniformed attorneys known as staff judge advocates have first advised them that the evidence warrants the charges.” In most cases, the AP revealed, local law enforcement referred cases to base prosecutors after mutually agreeing that military lawyers were in a better position to carry out justice.   

In case after case, the AP revealed facts that challenge the Pentagon’s assertion that civilian prosecuting authorities are either electing not to pursue justice, or are incompetently pursuing justice, in cases of military sexual assault. 

The allegations in the Protect Our Defenders report and the AP article include providing inaccurate information to a congressional committee, misleading the Congress, and undermining efforts to make critical reforms to a broken system. Due to the very serious nature of these allegations, we request that you direct an independent investigation into this matter. 

Thank you in advance for your consideration of our request. 

Sincerely,

Kirsten Gillibrand
United States Senator 

Chuck Grassley
United States Senator

Admiral Winnefeld was vice chair of the Joint Chiefs of Staff until July 31, 2015.

Presumably the administration's response will be made public.