Kirsten Gillibrand’s Sexual Assault Bill SNAFU

The New York Senator may have lost the vote to move prosecution of sexual assaults outside the military, but she’s still a champion in certain circles who will continue to maintain a watchful eye on reform.

Legislation that would have transferred the decision to prosecute sexual assault in the military from commanders to lawyers outside the chain of command failed to get the 60 votes needed to overcome a filibuster in the senate Thursday. The 55 senators that supported New York Senator Kirsten Gillibrand’s Military Justice Improvement Act included all but three of the 20 women currently serving in the senate. Those three, Missouri Democrat Claire McCaskill and Republicans Kelly Ayotte of New Hampshire and Deb Fischer of Nebraska backed legislation crafted by McCaskill, which cruised to an easy victory after two hours of emotional debate.

Except for the glaring difference in how women in the still male-dominated senate voted, pigeon-holing supporters for either bill along ideological or partisan lines proved difficult. The pro-Gillibrand vote had a more progressive caste overall with Democratic newcomers Elizabeth Warren, Ed Markey and Cory Booker in her camp. But she also won over iconoclastic Republicans Rand Paul, Ted Cruz and Chuck Grassley, a coalition that is rare for a Democrat in Washington today.

Invoking the definition of insanity, Paul said the problem of sexual assault has plagued the military for decade after decade. “It’s time to try something new.” But institutions rooted in past tradition, like the U.S. military and the U.S. senate, resist change that is perceived as radical, and opponents of Gillibrand’s bill pulled out all the stops, saying that undermining commanders by stripping them of their authority over these crimes would undermine their ability to lead the troops.

(Exclusive: Spies, Lies and Rape in the Military)

Republican Lindsey Graham called the Gillibrand bill “social engineering run amuck,” and congratulated McCaskill, Ayotte and Fischer for persevering in their opposition “because people have been on your butt,” he said. Removing the ability of commanders to decide prosecutions is like telling those commanders they are “morally bankrupt,” and would create “confusion in the ranks… We just fired your boss but you should still respect him… Do not change the structure of the military at a time we need it more not less,” Graham implored his colleagues.

The opposition’s strongest argument for retaining the command structure came from a task force with a majority of civilians and women appointed by the senate subcommittee on military personnel. Some on the task force initially favored Gillibrand but said they changed their minds upon closer examination. Democrat Carl Levin, who chairs the Armed Services committee, stressed these are not “Pentagon insiders” and that one member, former Congresswoman Elizabeth Holtzman had introduced the federal rape shield law in 1976.

Touting the judgment of Holtzman and others from the task force, McCaskill said, “This is not a bumper sticker, this is not as simple as it sounds.” She pointed out that the panel interviewed 150 witnesses over months, and found no evidence that taking the decision-making away from the commanders would lead to more reporting of sexual assault. In her closing argument, McCaskill expressed regret that her disagreement with Gillibrand had overshadowed the reforms that have been accomplished. “When the sun sets today, this body will have passed 35 major reforms in less than a year making the military the most victim-friendly organization in the world.”

Perhaps feeling the sting of rejection from her fellow female Democrats, McCaskill invoked her past career as a prosecutor who specialized in sex crimes. “I stand here with years of experience holding hands and crying with victims… knowing this is the right thing.” She and Gillibrand have “walked lock step on these forms…we disagreed on one, and I know we will work together on more.”

When Gillibrand took the floor for a final statement she wasn’t feeling quite so charitable towards her colleagues. “This is not an opportunity to congratulate ourselves on the reforms we passed,” she said. “Under the best scenario, two out of 10 victims report.” Where her opponents relied on expert data and testimony, Gillibrand’s strength and passion on this issue comes from the people who have been walking the halls of the Capitol for the last year looking for justice they didn’t receive. She cited some of their stories. They’re gut-wrenching and they’re not going away. A powerful advocacy group has been created, and they will be watching to see whether the reforms enacted so far make a difference. A champion has also been created, and in the odd way that Washington works it’s not the senator who won the vote Thursday, it’s the one who lost.