Liveblogging the Senate Armed Services Hearing on Military Sexual Assault

9:52am: Senator Inhofe gives his statement as the Ranking Member of the opposition. He opposes taking authority from commanders for cases of sexual assault.

9:55: Senator Levin introduces the first panel: Chairman of the Joint Chiefs, the service chiefs, and the service’s lead judge advocates general.

I most irresponsibly failed to bring a necktie to DC with me, so I had to stop at Union Station and buy one before heading to Hart Senate Office Building where the hearing is being held. Alas, I wasn’t there in time to get a seat.

9:58: Chairman of the Joint Chiefs General Martin Dempsey kicks off the first panel. He believes that legal reform is necessary.

9:59: General Dempsey wastes little time with niceties before getting into the meat and potatoes of his testimony.

He states that commanders should continue to have a role in prosecutions. “Ultimately they are responsible for the success of the missions assigned to them.”

10:01: That was quick. On to General Raymond T. Odierno, Chief of Staff of the Army. MSA “simply cannot be tolerated.”

“These crimes cut to the heart of the Army’s readiness.”

10:06: Gen. Odierno details a case in which a unit commander prevented an incident of MSA to support his belief that authority for investigation should continue to reside with commanders.

10:20 On to General James Amos, Commandant of the Marine Corps. He calls MSA “shameful” and a crime.

10:08 Gen. Odierno states that the Army requires that all MST allegations are investigated by CID.

10:10 Gen. Odierno says that “it’s obvious” the current system is not working to prevent MSA. He welcomes constructive discussion about ways to improve the system. He believes that the current failures are those of execution on the part of commanders, not failures of the system itself.

10:11 Odierno drops the truism “we cannot legislate our way out of this problem.”

10: 13 On to the Chief of Naval Ops, Admiral Jonathan W. Greenert. He is “outraged” that a shipmate would assault another shipmate, but he states that his outrage is not enough. The Navy must understand and attack the root causes of MSA.

10:15 Adm. Greenert reports that a Navy pilot program implemented at a few naval stations has received positive feedback from sailors and a reduction in MSA.

10:16 Adm. Greenert notes that the Navy has increased the routes through which MSA victims can report assault. Also, the Navy is hiring more MSA advocates.

10:17 Adm. Greenert joins his colleagues in protecting command authority to deal with MSA. He echoes the common refrain that MSA is a leadership issue.

10:19 The Navy recently raised authority for dealing with MSA allegations to the 0-6 (Navy Captain) level.

10:20 On to General James Amos, Commandant of the Marine Corps. He calls MSA “shameful” and a crime.

10: 22 Gen. Amos states that less than 2% of Marines are responsible for committing MSA and the rest are “keeping their honor clean.”

Amos also believes that legislation is not enough. He’s drawing an analogy to the way that the Marine Corps is attempting to change the culture of alcohol consumption in the Corps.

10:24 Gen. Amos toured the Marine camps to remind his Marines “who they are and who they are not.”

Commanders never delegate their responsibility, so they should “never be forced to delegate their authority” to independent prosecutors. However, Gen. Amos believes there is merit in many of the proposals put before the SASC.

10:26 On to General Mark A. Welsh III, chief of the Air Force.

Gen. Welsh observes that “sexual assault is a crime.”

10:27 Every airman is “either part of the solution or part of the problem, and there is no middle ground.”

10:28 This is the most challenging liveblogging I’ve ever done. It’s really hard to isolate their policy statements from their military rhetoric fast enough to keep up with the hearing. I suppose it builds character.

10:29 Admiral Robert J. Papp, Jr. chief of the Coast Guard, is the first of the chiefs to call MSA a violent crime.

10:31 Adm. Papp says that the USCG efforts to combat MSA are similar to the Army’s.

He notes that the USCG has “enhanced training” for MSA. States that the culture must be changed.

The military justice system is “not perfect” but removing authority from commanders would be done without “consideration of the second- and third-order effects” to unit discipline.

10:33 The initial statements done, we move to a round of questions. Sen. Levin goes first.

10:34 Sen. Levin’s question: What impact would removing authority have on the ability of commanders to control their unit?

Chairman Dempsey simply states that the role of the commander is “essential.”

Gen. Odierno focuses on the rapidity with which commanders can act, especially while forward deployed. He notes that 800 court martials were conducted by the Army in Iraq and Afghanistan. In some cases, Iraqis and Afghans were able to act as witnesses to some crimes.

Gen. Odierno is concerned that commanders would no longer be able to maintain unit cohesion. He implies that they would no longer have the power to do this if the MJIA were passed, but doesn’t explain how.

10:39 Sen. Levin asks for clarification on the various ways that soldiers can report MSA and if they are fully aware of all of these options.

Sen. Levin is pressing the chiefs on whether servicemembers know that they are not required to report MSA to their chain of command but may report through other venues.

All of the chiefs are rogering in the affirmative. Gen. Amos points to the commander’s “forty hours of training” to emphasize that “it’s a lot easier” to go to commanders.

10:42 Sen. Inhofe serves up a softball to Gen. Odierno, asking him to give an example of how the MJIA would destroy commanders’ ability to maintain discipline. I should clarify that “MJIA” stands for Military Justice Improvement Act, which states that, “that trained military prosecutors, not commanding officers, would decide whether sexual assault cases should go to trial…It also would mean commanders cannot set aside the conviction of anyone who has been found guilty of sexual assault or downgrade a conviction to a lesser offense.”

Gen. Amos gives an example of how a battalion commander in Afghanistan was able to punish Marines who were falling asleep on post. He doesn’t make the connection to MSA.

10:49 Sen. Jack Reed (D) wants to know if the Army has ever relieved a commander for his or her failure to deal with MSA.

General Odierno says that commanders are relieved for creating a “toxic climate.” He doesn’t have an answer about MSA specifically.

Senator Reed continues to ask the other chiefs if they’ve relieved a commander specifically for a climate of sexual assault. Navy – No; Air Force – No; Marine Corps – No; Coast Guard – One commander was relieved four years ago for failure to report a case of MSA.

10:55 Sen. McCain is registering in fairly strong terms his disgust with ongoing MSA. He calls MSA an issue of “basic human rights.”

10:57 Gen. Dempsey concedes that there are inadequate protections preventing a sex offender from joining the armed forces. McCain and Dempsey agree that this must be fixed.

11am – The Navy Judge Advocate General (JAG) says that the military’s MSA situation is “improving.” She cites improved training for JAGs as well as improved response efforts.

11:02 – Senator McCaskill is laying into the chiefs on the distinction between crime and a culture of respect. She informs Gen. Dempsey that MSA is a crime of domination, not lust.

Sen. McCaskill wants the service’s MSA surveys to delineate between “somebody lookin’ at you sideways” and somebody being pushed up against the wall and brutally raped. The chiefs are not making enough of a distinction in their testimony to satisfy her.

11:05 – Sen. McCaskill also wants more of an emphasis on identifying perpetrators in unrestricted reports so that repeat offenders can be identified.

She is also decidedly upset that the chiefs implied that a servicemember’s aptitude in their occupational specialty should be considered in an MSA hearing. “It is not relevant how good a pilot somebody is to whether or not he raped someone.” She asks the chiefs if they disagree. None say that they do.

11:10 – Sen. Saxby Chambliss is up. Prepared to cringe.

11:11 Sen. Chambliss wants to know if the Navy’s investigated a pregnancy that occurred on deployment to ascertain whether the conception was consensual. He wants “some kind of fear” instilled in recruits that “these types of sexual assaults” do not occur. It’s not clear whether the type of assault in question is all MSA or MSA resulting in pregnancy.

11:16 – Sen. Chambliss cites hormones and “nature” as reasons why addressing MSA is imperative. He is conflating consensual sex with rape, which is totally unnacceptable. Rape is not simply a manifestation of lust between consenting adults; it’s an act of violent crime.

11:19 – Sen. Mark Udall wants to know why the number of reported MSA is rising, not falling.

11:25 – Sen. Roger Wicker (R) sets up Gen. Odierno to explain that independent prosecutors lack information to which commanders are privy. Gen. Odierno and Lieutenant General Dana Chipman, US Army JAG, fail to acknowledge that prosecutors could be given all of the authority of commanders to pull prior cases from a soldier’s past to see if he has a record of MSA.

11:28 – Gen. Amos (USMC) is explaining that the increased awareness of MSA is causing a larger proportion of assaults to be reported, causing the number of reports to rise. Common problem in social science: Taken out of context, reporting can create a false impression of events.

11:32 Sen. Joe Manchin (D) wants to know what is different now than in the past with regard to MSA. He’s challenging the chiefs’ statements that things are improving.

Gen. Dempsey cites a difference between a focus on responding to MSA reports in the 90s and a focus on command climate and culture today.

Sen. Manchin was setting the stage for his follow-up question of why the chiefs believe MSA can be stopped without passing MJIA. He calls the current path of relying on commanders “almost” intolerable given the fact that only some 3,000 of an estimated 26,000 military rapes are reported.

Adm. Greenert states that he doesn’t understand how MJIA could be implemented without preventing commanders from maintaining unit discipline. In a discussion on a level playing field, this could be publicly explained to him.

11:39 – Sen. Deb Fischer (R) is the second female senator to speak. She insists that MSA is a violence issue, not a gender issue. Key distinction that has yet to sink in with the chiefs.

I should clarify that while I agree with Sen. Fischer, I noted her gender because women tend to be the people fighting to stop MSA.

11:42 – Gen. Amos notes that he approved a full command climate survey in which leaders report on the attitudes of their superiors to MSA all the way up the chain of command. The problem with such a survey is that servicemembers are likely to perceive it their responsibility to show loyalty to their immediate superiors by giving them glowing marks.

11:44 – In case I haven’t been making this clear, the chiefs do seem to be genuinely interested in resolving this issue, including through revision of the Uniform Code of Military Justice. They are almost singularly opposed to relinquishing command authority to investigate MSA under the Military Justice Improvement Act.

11:50 – Sen. Jeanne Shaheen (D) is the third female senator to speak. She joins her Democratic colleagues in questioning whether the military truly has the tools to deal with MSA given its failure to do so in twenty or so years of publicity around this issue.

She asks if the services have asked their foreign military counterparts on how those countries’ militaries have dealt with MSA, particularly with regard to relinquishing command authority. The chiefs have not done so but seem receptive.

11:52 – Gen. Welsh makes an important correction to an earlier statement he made: Two Air Force commanders have in fact been relieved for allowing a culture of MSA.

11:55 – Sen. Lindsey Graham (R and former USAF JAG) takes the mic and begins by asserting that the term “command climate” being repeated by the chiefs doesn’t do justice to the severity of the issue. “A crime is a crime.”

He is asking the chiefs to justify why commanders should have the authority to investigate a crime that, in the civilian world, is handled by specially trained prosecutors. He seems to be on the side of Sen. McCaskill on this one, but I’m not sure if he’s setting himself up for a twist.

11:58 – It’s tough to see where Graham is going at this point. He is noting that court-martials feature a jury of one’s higher ranking superiors, not one’s peers.

He also notes that “commanders do listen very closely to their JAGs,” as if that’s what’s at issue here.

12:01: Sen. McCaskill interrupts Sen. Levin to again explain that sexual harassment and unhealthy work environments are conflated with rape in the military surveys. Gen. Dempsey says “we’ll go to work on it.”

12:04 – Sen. Gillibrand, co-author and champion of the MJIA, takes the mic. She’s no-nonsense from the get go.

She notes that fear of retaliation for reporting MSA is one of the key problems exacerbating the MSA rate. She’s repeating the chiefs’ statements, one by one down the line, on the importance of trust to military leadership.

12:07 – Sen. Gillibrand goes there, stating that the chiefs and their service branches have lost the trust of their subordinates. MSA victims are afraid to report.

She notes that Israel, UK, Australia, and Germany have relinquished command authority for rape investigations. She asserts that, in Israel, reporting has increased 85% in the last five years as a result.

12:10 – Sen. Gillibrand continues: The chiefs are stating that MJIA would undermine discipline, but as it stands, the military does NOT have a state of good discipline. It has 26,000 estimated rapes a year. Why is this okay but passing the MJIA is not?

12:12 – Sen. Gillibrand just corrected Marine Corps Commandant Gen. Amos on a key tenet of the MJIA.

She asks for the record how the chiefs intend to regain the trust of their subordinates and how they intend to hold commanders accountable if the latter don’t get reporting percentages up?

Gen. Amos states that two commanders have been relieved for sexual harassment and assault (not for allowing a climate of MSA).

12:14 – Sen. Roy Blunt (R): The answer given to the question of consulting with foreign militaries that have relinquished command authority was “stunningly bad.” Admiral Greenert’s response to that question was “thanks for the tip.”

12:17 – BGen Richard Gross, legal counsel to the JCS, is elaborating on his experience with foreign military approaches to MSA in Afghanistan.

He says that he’s looking at the British system. He vaguely notes that other officers have “looked at” Australia and other countries.

12:19 – Sen. Blunt asks the chiefs directly, for the record, if servicemembers are less fearful of retaliation for reporting MSA than they were eighteen months ago. Sen. Levin directs the chiefs to submit their answers on questions for the record to him in writing no later than Thursday.

12:22 – Sen. Richard Blumenthal (D) plays the better man card, telling the chiefs that they have an opportunity to teach the civilian world something about dealing with sexual assault.

Senator Blumenthal lays it down: Sexual assault prosecution is as specialized and demanding as the chiefs’ respective combat specialties. The military would be well served by putting it in the hands of specialists.

He’s also suggesting that restitution be given to victims. He’s asking the chiefs if they think it appropriate.

12:26 – Gen. Dempsey supports the discharge of convicted felons from the military.

12:27 – Sen. Blumenthal is now pressing the chiefs on a bill of rights for MSA victims, calling it essential to the basis of trust.

12:28 – Sen. Blumenthal is lauding the passion of chiefs in going forward with prosecution when they are not sure they have enough evidence. I’m not sure I agree.

12:30 – Sen. Kelly Ayotte (R), next woman to speak. She wants to know why the chiefs support a change to Article 60 of the UCMJ (I’m not sure what that article says) but not relinquishing of commanders’ dispositional authority to refer MSA allegations to court-martial.

Senator Levin noted that there will be no lunch break between panels one and two.

12:34 – Sen. Kelly Ayotte (R) brings up the Lackland AFB scandal to ask where Gen. Dempsey stands on special protections to prevent sexual contact between military instructors and trainees. The power asymmetry in basic training situations is ripe for coercion. Dempsey seems to support such protections.

12:38 – Sen. Joe Donnelly (D) says that he doesn’t understand how it makes a commander less capable to turn sexual assault allegations to a military prosecutor given the fact that commanders have so much on their plate, especially in war.

Gen. Odierno appears slightly irritated by the question. He states that commanders need to “set the tone” for every issue. He says that he wants “punishment to include the UCMJ” and that commanders deal with MSA in cooperation with their Staff JAGs. Weak.

12:43 – Adm. Papp (USCG) states that the Coast Guard tried to follow up on the allegations made (I think by Kori Cioca) in The Invisible War but got no response from her.

12:46 – Sen. Tim Kaine (D) says that every society needs heroes and “y’all are as good as we have right now.” I think he meant it in a positive way, but it could be interpreted otherwise.

12:47 – Sen. Kaine notes that 90% of MSA victims don’t report either because they fear retaliation or because they have seen from the experiences of others that reporting made no positive difference.

12:50 – Gen. Welsh asserts that 50% more MSA victims are making unrestricted reports as opposed to anonymous restricted reports. I’m not sure what time period he’s using as a referent.

12:51 – Sen. Angus King (I) asks if retaliation for reporting is a chargeable offense. He suggests making a specific law against retaliation rather than the broad law against tampering with an investigation.

He asks BGen Gross if it ever happens that a retaliator is charged under the tampering law. BGen Gross is not familiar with any examples.

12:54 – LTG Chipman makes another key distinction: Most of the retaliation is social ostracization by members of the unit, not necessarily retaliation by the command.

12:56 – Sen. King asks about the possibility of requiring a JAG’s written concurrence for a commander’s decision not to prosecute an allegation.

Gen. Odierno states that a JAG is required to “give his opinion in writing” and the decision to prosecute “could be” sent up to the next level in the chain in such a case. When pressed, he has LTG Chipman give the unwanted news: No, the decision is not automatically sent up the chain in these cases. Sen. King states his belief that such a mandatory process might be a useful compromise between MJIA supporters and the chiefs.

12:59 – Sen. Bill Nelson (D) returns to the “good soldier defense”: Do any of the chiefs believe that a servicemember with a valorous record should have an MSA allegation against him or her thrown out on this basis? None of the chiefs state any disagreement, though Gen. Amos states that he has never, in his 43 years of service, been advised that a case against a Marine should be thrown out on this basis.

1:01 – Sen. Nelson shifts to the authority of commanders to reverse MSA convictions. He asks Gen. Welsh to explain why General Helms should have had the authority to overturn a conviction at Vandenburg AFB.

1:04pm – Sen. Mazie Hirono (D) is the next female senator to speak. She asks what happens when an MSA victim makes a report to a non-military entity. She’s trying to ensure that such reports are captured in the military’s MSA reporting numbers. The chiefs say there’s not much they can do to compel civilian authorities to share information.

She goes back to the foreign militaries question to ask when specifically the chiefs intend to consult with foreign militaries on MSA. Gen. Welsh gives a sort of “it’s already happening” answer by citing ad hoc efforts of individuals. Sen. Levin requests the specifics for the record.

1:11 – Sen. Kay Hagan (D), next female senator. She goes back to the trust issue: Volunteers “shouldn’t have to worry that today’s the day they’ll be sexually assaulted.”

She cites an environment where commanders are hesitant to report MSA up the chain because it will reflect poorly on the commander. She specifically cites a fear that such commanders fear they’ll be passed up for promotion unless they sweep MSA under the rug. One of the toughest, most important, and potentially easily dodged questions yet.

Gen. Odierno shifts the frame of discussion by asserting that it’s the job of the chiefs to make sure that commanders understand that MSA is everybody’s problem. I suspect he’s trying to avoid the actual question of whether such hesitation occurs.

Gen. Amos is a bit more to the point: “It could happen,” and he suspects that, over the years, “it probably has.” He then asserts that the command climate surveys will “probably” let one know if there’s a problem in a unit. He says it’s his sense that this environment is changing.

Adm. Greenert notes that, for the last six months, Navy commanders are required to report an MSA allegation to the first general in that commander’s chain, which means “there’s no hiding it” when MSA happens. His argument doesn’t logically follow since a commander could decide not to report the MSA at all.

1:18 – Sen. Hagan asks the chiefs how they are verifying the military’s requirement to notify civilian authorities when a servicemember convicted of MSA leaves the service. LTG Chipman replies that the Army notifies the state in which the servicemember is released.

MGen Vaughn A. Ary (USMC JAG) states that “it’s required,” as if that means it’s happening. He notes that there may be a problem in ensuring that the reporting actually happens.

1:20 – That concludes the first panel. CSPAN is replaying Sen. McCaskill’s fiery refutation of the conflation of sex and rape, of lust and violence.

Senate panels are harder to liveblog than I anticipated. Much harder than most other events I’ve covered. By the time I ingest a senator’s question, the chiefs have already given their answers. Moreover, the answers often delve into arcane policy details with which I’m unfamiliar. The lesson I’m taking away is that it’s difficult to cover these hearings unless you’ve done exhaustive homework on the ins and outs of the policy at hand.

1:28 –  Panel Two begins. This panel is comprised of colonels from each military branch. As far as I can tell, they have no apparent MSA status. I think they’re here to offer a “boots on the ground” perspective. If they’re active duty, their testimony won’t deviate far from the chiefs’ line.

Colonel Donna Martin (Army) commands an investigative division (CID). She notes that she “relied” on her JAG during MSA investigations. She’s playing up CID’s Special Victims Unit.

1:33 – Col. Martin summarizes by reiterating the chiefs’ point that commanders are responsible for all that happens in their units. She says that the UCMJ provides her with “all the tools” she needs to prosecute rape and that she should not be given a commander’s authority. I’m pretty sure some coordination between panels one and two has happened here.

1:35 – The UCMJ allowed Captain Stephen Coughlin (Navy)  to “set the tone” in his unit. Another phrase used heavily by the chiefs.

1:37 – Capt. Coughlin asserts utterly without justification or evidence that MJIA would lead to “adverse effects” including “warfighting inefficiencies” and refusal to obey orders.

1:38 – Col. Tracy King (USMC) “received legal training” on MSA. His job is to maintain a fighting force. MJIA would somehow erode the bonds that hold a unit together. He feels no need to elaborate to the Senate Armed Services Committee how this erosion would occur.

1:39 – Panel Two is starting to piss me off a bit.

1:41 – Col. Jeannie Leavitt (USAF) says that the UCMJ gives commanders the tools to enforce discipline.

She states “absolutely no tolerance” for sexual assault. She describes MSA as a “vile crime,” which is perhaps the strongest descriptive language used by any of the military panelists so far.

She won’t set a goal of anything less than 100% bombs on target in her fighter wing, same goes for MSA, etc. Perfection is an unwise standard, and the Air Force does not have a record of achieving 100% bombs on target as far as I am aware.

1:44 – Sen. Levin asks the panelists whether Article 15 non-judicial punishment (NJP, administered by a military commander outside the formal military justice system) is effective. They predictably answer in the affirmative.

Col. Leavitt elaborates that she can’t back up her statement of “zero tolerance” unless she has convening authority.

Col. King asserts that he believes Marines would refuse NJP and “take their chances” with court-martial if his convening authority were relinquished. As if it’s a bad thing that servicemembers seek a regularized, impartial, formal justice system. I am not happy to hear this.

1:50 – The panelists are relying entirely on fallacy now, saying that they can’t “send a message” about MSA unless they personally can decline to refer an MSA case to court-martial.

1:52 – Sen. Inhofe is “impressed” at the precision of the testimony of panel two. I would use another term to describe their obvious coordination in promoting the interests of the service chiefs.

Sen. Inhofe wants to know how MJIA would impede commanders’ ability to mete justice swiftly.

Col. Martin uses a non-MSA case to speak about how NJP allowed her to “send a message” to the complainant.

Captain Coughlin reaches to the logistical capacity of highly dispersed naval forces.

Col. King says that commanders give their Marines a standard and that the same person holds those Marines to a standard. He asserts without evidence that there is a deterrence value that would be threatened by MJIA.

Col. Leavitt reads her non-answer from a piece of paper.

1:58 – Col. Martin thinks the responsibility for sending an MSA victim to another base and punishing a perpetrator must rely with the commander. Again, there’s no evidence for the claim, you just need to believe it. This tendency is an enormous weakness of military argumentation. Servicemembers indoctrinated in this style tend not to even see how ludicrous their claims appear to rest of world.

2:03 – Sen. Reed reiterates that MSA victims report not trusting the military to handle an MSA claim at all. Col. King “never met a commander” in his admittedly limited MSA experience who wouldn’t “stop time” to address an MSA claim if they heard it. The Invisible War be damned, I guess.

2:05 – Sen. Reed makes an analogy to DUI – a servicemember in a leadership position would be relieved immediately if that happened. Should the chain of command not respond to MSA the same way?

Col. King says that, if a “proven sexual assault” occurs in his command and he doesn’t report it, then he is gone. The problem, once again, is the “proven” part. The commander’s behavior influences whether a reported crime is proven to begin with. By emphasizing that MSA must be proven, these panelists are giving credence to the myth that false reporting is a significant proportion of MSA reporting.

2:08 – Col. Martin asserts that a shift in the NJP process away from expecting victims to prove their allegations is improving the reporting record.

2:13 – Sen. Ayotte is going back to the earlier idea that sexual contact of any kind between instructors and trainees is likely to lead to coercion on account of the power asymmetry.

Col. King responds vaguely that the increased control over recruits tends to increase their safety. He doesn’t carve out an explicit exception for sexual contact.

2:17 – Sen. McCaskill underscores that “there is a difference between discipline and punishment.” Her point is that commanders can revert to Article 15 NJP to resolve cases swiftly, thereby maintaining unit “discipline” without severely punishing the perpetrator.

She asks if any of the panelists have consulted with a victim before resorting to Article 15 NJP in lieu of a formal court-martial. Crickets.

This might seem arcane to a layman, but there’s an enormous difference between NJP and court-martial. NJPs tend to result in punishments like demotion and temporary loss of pay. Courts-martial can administer much stronger punishments and through a formal justice system that results in a conviction.

Sen McCaskill then lays into the LtGen Franklin letter, which relied heavily on the good soldier defense in waiving an MSA conviction. “You can have a good marriage and still be a predator.”

2:26 – Sen Gillibrand is up again and taking no prisoners (if you will). She questions how the panelists are planning on rebuilding the military’s trust when 52% of MSA victims who report feel they have been retaliated against. Col. Leavitt gets floundered, reverting to the “set the tone” buzzphrase.

2:29 – Sen Gillibrand now relating a case from Marine Barracks Washington (“less than a mile from here”) in which a female Marine who reported MSA was told to “suck it up” because her commander couldn’t babysit her. Col. King gives a mixed reply about “collateral misconduct” on the part of the commander in that case.

2:35 – Capt. Coughlin inexplicably falls back to his centrality to the adjudication process when asked by Sen Blumenthal whether victims deserve restitution if an MSA is found to have occurred.

2:38 – Capt Coughlin responds that “there are many ways for the victim to report” when asked by Sen Donnelly whether a victim might feel more embarrassed to report to him personally rather than through an impartial reporting system. This sets up a key contradiction from his “commander sets the tone” line that I hope is exposed by one of the senators.

2:43 – Col. Martin is giving props to The Invisible War as “one of the most effective training tools we’ve used.” “Very powerful.” Sen. Donnelly is trying to discern how well her soldiers understand the gravity of what they’re watching. Col. Martin gives a pretty good answer that the discussion of the film is often more useful than the viewing itself.

2:47 – Sen. Kaine encourages the panelists to take off their defending the status quo hat and address this from a problem solving perspective, which is a strength of the military.

2:51 – Col Leavitt asserts that some victims are switching from secret restricted reports to more actionable unrestricted reports after interaction with the Coast Guard’s Special Victims Counsel. Interesting.

The current testimony is exposing one of the key difficulties with this issue. The panelists discussed a policy whereby alleged victims are expeditiously transferred out of a unit upon reporting MSA. This might appear to make the victims safer from retaliation, but the reality is that transfer between units is itself viewed with suspicion in the military. The reporter will be treated by his or her peers as if they have abandoned their comrades for reporting and getting transferred to another unit. Very vexing problem.

2:58 – Sen Angus King (I) repeats one of the questions that he asked panel one: Should retaliation against MSA reporters be a specific offense under the UCMJ? The panelists give noncommittal answers.

He also asks the question about requiring commanders to obtain a JAG’s signature before declining to send an MSA claim to court-martial.

Col. Martin replies that JAGs can refer a case to the next higher level of command. Sen King asks if that should be changed to shall. Col King supports it. Col Martin gives a weird answer that makes her loyalty unclear.

3:03 – Sen. Jeff Sessions (R) appearing a bit antsy as he uses his question time to talk about how great JAGs were when he served in the military.

Sen Sessions now explaining that “sexually explicit magazines” are sold on military bases, which he thinks is a sign that we are “awashed” in sexual messaging. Relation to violent crime unclear.

Sen Sessions isn’t sure “how many millions” we’ve got in our armed services. He guesses three.

3:09 – Sen Hagan congratulates Col Leavitt as the first female wing commander in the Air Force.

3:17 – Panel Two wraps up their testimony with some more buzzword rhetoric. Moving on to Panel Three, which is comprised of civil sector panelists including Anu Baghwati of SWAN.

3:22 – Nancy Parrish of Protect Our Defenders opens Panel Three by relating anecdotes from MSA victims who have been retaliated against by their perpetrators, commanders, and peers. Two cases of victims being NJP’d for reporting MSA.

3:25 – Nancy gives a long list of holes in the military justice system and necessary changes, though she agrees that culture must be changed.

3:28 – Anu is up. She served five years as a Marine officer.

She asserts that the MSA failures of the military have affected retention and caused troops to “completely lose faith” with military justice.

MSA victims fear retaliation and they are convinced nothing will be done to their perpetrator.

3:30 – Anu relates watching her commanders sweep MSA cases under the rug.

3:32 Anu directly addresses MSA victims who are watching: “You are not alone. I believe you.”

3:33 – Now she’s getting into the larger culture of glorification of violence, including sexual violence. She notes that sexual assault of men is more common in the military than assault of women.

3:34 – I don’t know how the commanders from Panel Two could not feel embarrassed listening to Anu’s testimony. She’s railing against the culture of “toeing the line” and “sucking it up” that leaves victims in the cold.

She cites Senate bills S871, S1032, and S967 as bills that the Senate should pass to address MSA.

3:38 – Major General (RET) John Altenburg asserts that critics of the military justice system “don’t understand that lawyers are already engaged” in dealing with MSA. This assertion is, of course, a strawman since the criticism is that prosecutors don’t have convening authority. Nobody said that lawyers weren’t engaged, they said that commander’s JAGs are engaged in a hopelessly biased fashion in favor of the reputation of their commander and his unit.

3:42 – Col Lawrence Morris (RET) of Catholic University observes:

The military justice system essentially works. Commanders rarely “make a move” without consulting JAGs.

The military justice system is essential for good order and discipline.

The military justice system is generally more willing than civil society to try a close case (in which the evidence against the perp is wanting).

We must be mindful of soldier rights and unlawful command influence.

Military justice is a reactive instrument. We must candidly address the attitudes toward sexuality that our servicemembers bring into the force. He cites consumption of alcohol and “unsupervised living arrangements” as cultural issues worth exploring.

3:47 – Sen Levin asks Anu how relinquishing command authority will help reporting. She answers that it will first restore faith in the system.

Anu goes into retaliation: Callers to the SWAN hotline face “comprehensive retaliation:” They’re punished by roommates and their chain of command at all levels, given false mental health diagnoses which force them to be discharged and denied VA benefits, etc.

3:50 – MGen Altenburg agrees with Anu that retaliation is happening and that it may be as subtle as servicemembers attending an MSA hearing and glowering at the victim as he or she testifies.

3:54 – Sen. Inhofe asks the retired officer panelists how MJIA might impede the ability of commanders to mete swift justice.

Col Morris asserts that there would be no adverse effect on prosecution of MSA but you would give up the unitary influence of a commander over what happens in his unit.

3:58 – Sen Inhofe inquires about a provision of one of the bills in question that would require questioning of the complainant to occur before a protective third party. The retired officers insist that the defense must be able to confront the complainant in a US justice system. Of course, they don’t mention that the military justice system diverges from US civilian justice in plenty of other ways that leave victims more vulnerable…

4:01 – Sen Reed notes that it’s hard to identify when commanders are indifferent to MSA. It’s the sort of thing that’s tough to prove. That said, this sort of attitude must be weeded out if commanders wish to retain convening authority.

4:04 – Sen Reed addresses military culture as a culture dominated by masculinity. Is it likely that we’ll find people who function highly as warriors but who are in fact sexual predators who are difficult to single out as such?

MGen Alterman thinks that commanders will be able to go after predators as they learn how predators operate.

Anu reiterates that the military condones sexual violence in day to day affairs, which she distinguishes from creating rapists. Serial predators thrive in this environment.

Anu asserts that civil suits should be opened to servicemembers who have been retaliated against. Panels One and Two won’t like that one…

4:08 – Nancy Parrish asserts that fundamental reform is a necessary prerequisite to a change in culture. She notes that military culture toward integration of blacks didn’t change until after the passage of the Civil Rights Act.

4:10 – Sen. Ted Cruz has shown up for the first time today. His opening remarks (though they technically shouldn’t exist because this is a question period) are, yes, thoughtful. He’s relating his experience as a parent who wouldn’t want his children to face an environment of MSA if they decided to serve in the military.

4:12 – Sen. Cruz asks the panel how prevalent they think MSA is in the military.

Altenburg refers to the command climate survey, which he notes conflates all unwanted contact with rape. He suspects that the number of actual sexual assaults is itself “too high.”

Nancy Parrish asserts that the problem is getting worse, not improving.

4:16 – Sen. Cruz follows up by asking what are the major impediments to MSA reporting today and what can be done to change that?

Anu replies by supporting S967, which she notes will allow commanders to continue to resolve lesser crimes with NJP. She asserts that civil remedies are what protects victims from retaliation in the civil sector.

4:19 – Sen McCaskill is back up.

Much to my relief, Panel Three is moving at a slower pace that’s easier to liveblog.

4:21 – Sen McCaskill asks for clarification on how the reporting process works. Nancy Parrish notes that the reporting process is very confusing for victims themselves.

Sen McCaskill returns this assertion by asking if the panelists have made recommendations for requiring that victims sign off in writing that they understand the entirety of their options when they institute a report.

Anu notes that the AF Special Victims Counsel Program has been a “remarkably positive development.”

Nancy Parrish relates anecdotes about victims being questioned on the basis of their mental health.

4:25 – The panel is unable to tell Sen McCaskill if military medical facilities have a protocol for making emergency contraception available to rape victims.

4:30  – In response to a question from Sen Shaheen, Anu asserts that sexual assault/harassment representatives in military units should be assigned to servicemembers who have shown “moral courage” in sticking up for people, not to people who have merely proven themselves on the battlefield.

This assertion cuts right to the heart of military values and priorities. It’s a bit more controversial than it might appear to a civilian.

4:38 – Sen Gillibrand came up just as my browser freezed.

She bounced a few ideas back and forth with Anu. Anu asserted that the military must have more women in its ranks if it’s to create a culture that’s “welcoming of all people.” Let me just take this moment to agree with her implication that the military is not, in fact, welcoming of all people.

4:40 – Nancy Parrish relates an anecdote in which an MSA victim who must face her rapist daily wishes to be hit by an IED so that she won’t have to continue to face him. Brutal.

4:42 – Nancy relates another part of the same anecdote to Sen Blumenthal: The victim tried to report the rape to her chain of command and was ordered not to speak ill of the individual. She was also told that she would be charged with adultery if she reported the crime.

4:46 – Sen Blumenthal asks Anu to comment on the viability of a victim’s bill of rights since Panels One and Two didn’t see the need for one.

Anu responds that the military justice system is designed to provide a fair and impartial trial to the accused but she’d really like more time to think about the question. She also supports restitution for victims.

4:48 – Anu looks close to tears right now. Perhaps she could use a reminder that she is not alone…

I can relate because I almost broke down at the beginning of my remarks to the Congressional Progressive Caucus. I had to stop myself from thinking about the fact that the scumbags perpetuating the Iraq War were making us go to such a length just to get the truth heard. If you’ll do the right thing, you’ll do it against the grain.

4:53 – Nancy Parrish reiterates to Sen. Angus King that military culture attaches credibility to rank, which frequently causes lower ranking victims to be disbelieved in favor of their higher ranking attacker.

5:03 – Sen King again asks about making retaliation an offense under the UCMJ. Nancy agrees with the idea, though she notes that retaliation can be so hard to prove that the law might prove unenforceable.

Col. Morris (RET) asserts that there are provisions that make retaliation broadly illegal under the UCMJ. Interestingly, he suggests auditing individual military installations to check their track record on prosecution of MSA.

Sen King is pretty methodical. He again asks his question about the “middle ground” compromise. Anu answers that this compromise would not remove the bias from the system. She reiterates that the MJIA does not relinquish command authority to prosecute crimes that have a punishment of under one year, so the notion that the MJIA removes commanders’ ability to positively influence their unit is false.

5:08 – Sen Levin offers closing remarks. Three statements will be made part of the record, along with several questions asked of panelists. With that, the hearing is adjourned.

5:11 – Well, that was much more difficult to liveblog than I thought it would be. Some closing thoughts:

The military panelists were unanimously opposed to the Military Justice Improvement Act but most of them seemed genuinely concerned about MSA and were open to reform to solve the problem. The commanders in Panel Two had no real authority to offer to discuss the issue at length with the Senate Armed Services Committee, but the service chiefs seemed genuine in their offer to discuss reform of the UCMJ.

The chiefs and commanders in Panel Two were adamant that relinquishing the authority of unit commanders to refer (and, by implication, to deign to do so) MSA to court-martial would strip commanders of their ability to create a climate in which MSA is unacceptable and of their ability to follow through on their word. However, they were without exception unable to explain how this process would happen. They used the sort of generalized, “because I said so” assertion that unfortunately passes for gospel in the military.

Nancy and Anu related anecdotes about intimidation that were extremely troubling. It’s impossible to say what percentage of MSA reports are retaliated against, but to me it seems beyond question that this sort of behavior is very easy to get away with and that it destroys the ability of reasonable victims to trust the military justice system.

I’m a bit blown away to be saying this, but Senator Ted Cruz took one of the most apparently serious and thoughtful approaches to the issue. I say “apparently” because he’s a keen politician but at the same time, a few* of his Republican peers didn’t even try to look like they cared.

The female senators, particularly Senators Gillibrand and McCaskill, were by far the most tenacious and driven in dealing with MSA at the Congressional level. It is increasingly clear to me that no movement could be expected on this issue were it not for women in leadership – both within Congress and within the military – even though the majority of MSA is inflicted upon men.

*Later Tuesday night I replaced the word “many” with “a few” because the former was unfair. The Republicans were generally concerned even though they disagreed with MJIA as a matter of law. John McCain and Lindsey Graham in particular showed genuine outrage at the ongoing MSA problem.

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  1. […] military officers in front of the Armed Services Committee and listen to them repeat the same six buzzwords that were obviously coordinated beforehand, but it’s quite another to take those statements […]

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