Sen. Lindsey Graham, R-S.C., opposes a proposal to have military prosecutors rather than commanders decide which cases of alleged sexual assault in the armed forces should be pursued. (Brendan Smialowski / AFP)
WASHINGTON — Sen. Lindsey Graham opposes a proposal to have military prosecutors rather than commanders decide which cases of alleged sexual assault in the armed forces should be pursued.
The proposal, by Democratic Sen. Kirsten Gillibrand of New York, has left the Senate deeply divided. Graham, R-S.C., is on the side that believes commanders should be trusted to handle sexual assault investigations in their units.
"I cannot stress to my colleagues enough how ill-conceived that system would be from a military justice point of view, and the damage that will be done to the command and to the fighting force if we go down this road," Graham, an Air Force reservist, said on the Senate floor last week.
The issue has become a priority on Capitol Hill this year as lawmakers try to help sexual assault victims and provide assurances that military leaders won't look the other way.
A Pentagon report estimates there were 26,000 incidents of sexual assault or unwanted sexual contact in fiscal 2012, a 37-percent increase over 2011. The report also said only a fraction of victims reported alleged attacks from fear of retaliation.
In on case, a lieutenant colonel convicted by a military jury of sexual assault had his conviction overturned by his commander. The incident highlighted the power commanders have to reverse military convictions and allow offenders to return to their units.
Graham, a military lawyer for more than 30 years, backs a proposal from Sen. Claire McCaskill, a Missouri Democrat and fellow member of the Senate Armed Services Committee, that would preserve commanders' authority while adding checks and balances.
Currently, military lawyers recommend whether to bring charges in cases of alleged sexual assault. Commanders make the final decision on whether a case moves forward.
McCaskill's proposal would allow commanders to keep their authority to approve courts-martial, but would provide for a civilian review when a commander went against a military prosecutor's recommendation to move forward.
McCaskill's proposal also would strip commanders of their authority to dismiss court-martial convictions in cases of rape, sexual assault, and other crimes. And it would make it a crime to retaliate against a victim for reporting an attack.
"The goal... is to make sure that when it comes to our military, we turn a corner and create a legal system where people feel that if they file a complaint, they are going to be fairly treated, and also a legal system where if one is accused of something, they will be fairly treated," Graham said.
Gillibrand's competing proposal, supported by more than 50 senators, would remove commanders from decisions about whether cases of alleged sexual assault are prosecuted. Gillibrand says military leaders are susceptible to bias about the men and women they command, and military prosecutors are more independent.
Graham warned that the Gillibrand proposal would undermine the chain of command.
"You need to render justice quickly and effectively so the troops can see what you are doing. If you are the commander, they have to respect you and they have to understand your role," Graham said.
Graham said cutting commanders out of the decision-making process suggests Congress doesn't trust military leaders.
"You will throw the military justice system in chaos and basically take the commander's authority away in an irrational way," Graham said.
Sen. Tim Scott, R-S.C., also backs McCaskill's version.
Two weeks ago, he invited Brig. Gen. Lori Reynolds, the first female commander at the Marine Corps Recruit Depot Parris Island, to meet with Senate Republicans over lunch. Reynolds told the group the number of sexual assault cases has increased over the last year, an indication people are more willing to report them.
"Sen. Scott believes supporting the chain of command is the best step to help protect military victims of sexual assault and ensure those who commit these crimes are punished accordingly," said Sean Smith, a spokesman for Scott.
McCaskill's proposal is part of a defense policy bill debated last week in the Senate. Gillibrand is trying to round up the 60 votes she would need to replace McCaskill's version.
Gillibrand, on the Senate floor, disputed the argument that her proposal would undercut commanders.
"They are still responsible, solely responsible, for maintaining good order and discipline, for setting the command climate, for saying these rapes are not going to happen on my watch and, if they do, victims can come forward and know they will be protected," she said.
Contributing: Deirdre Shesgreen and Brian Tumulty, Gannett Washington Bureau