Defense Secretary Ash Carter is pushing back on reports that the Pentagon misled Congress on its handling of sexual assault cases, blaming misunderstandings and a lack of access to some information.
“The review that was conducted pursuant to your concerns, which I have enclosed, shows that the central issues raised in the report and article on based on certain misunderstandings of how the military justice system works, lack of access to information contained in the full case files or a disagreement on what ‘counts’ as a sexual assault,” Carter wrote in a letter to Sen. Kirsten Gillibrand (D-N.Y.).
{mosads}Gillibrand’s office on Tuesday released the letter, which was dated May 26.
Gillibrand, who is hoping the reports will buttress her proposal to change the military justice system, remains unsatisfied with the Pentagon’s response and is renewing her call for President Obama to open an independent investigation into the issue.
“The secretary’s letter is an eight-page list of excuses when all he should be doing now is giving a simple apology and making a plan to hold whomever prepared the misleading testimony accountable,” Gillibrand said in a written statement.
“I am deeply concerned that the [Department of Defense] DoD does not appear to take misleading statements to the Senate Armed Services Committee as the serious problem it is, and I am requesting that President Obama, the commander-in-chief, open a formal independent investigation to get to the bottom of how this happened.”
At issue are April reports by The Associated Press and advocacy group Protect Our Defenders that say Pentagon testimony to the Senate Armed Services Committee in 2013 about sexual assault cases was misleading.
Then-Vice Chairman of the Joint Chiefs of Staff Navy Adm. James Winnefeld cited 93 cases of sexual assault that civilian prosecutors refused to take up that were later pursued by military commanders.
But the report from Protect Our Defenders asserts that in two-thirds of cases the military identified, the defendant was not accused of sexual assault, civilian prosecutors did not decline the case, or the military failed to prosecute the offender for sexual assault.
In an analysis attached to Carter’s letter, the Pentagon outlined five issues it found with the reports and said the reports had an “incomplete picture” of the cases.
In the Protect Our Defenders report, the group tried to make a distinction between cases that civilian authorities declined to take up versus ones where they deferred to the authority of the military system. But that’s not a distinction the military justice system tracks, the Pentagon said.
“The military has not historically kept records attempting to distinguish cases that are ‘declined’ or ‘deferred’ in this manner, and based on the data available, it would be difficult to make those assessments retroactively,” the Pentagon analysis reads.
The AP report, meanwhile, quotes civilian prosecutors saying they would have taken up the cases, while the Pentagon’s case files indicate the same offices declined to take up cases, according to the analysis.
Protect Our Defenders also defines sexual assault cases differently than the military services, according to the Pentagon. The group’s report only counts cases where the prosecution was for sexual assault. The Pentagon’s data includes any case that includes a sexual assault allegation, even if the prosecution was ultimately for a different crime.
“In both the military and civilian systems, it is sometimes difficult to obtain a conviction for sexual assault,” the Pentagon wrote. “It is a common practice for prosecutors to attempt to obtain convictions for collateral charges as well, which provide additional methods of holding an individual responsible for his or her acts in the event of an acquittal for the charge of sexual assault.”
The Pentagon review also said the Protect Our Defenders report used different definitions to determine conviction rates and misunderstood the role of commanders, who can only refer a charge for trial if the staff judge advocate makes certain findings.
Finally, the Pentagon said, the group’s report faults the Pentagon for arbitrary sentencing even though that’s an issue in civilian courts as well.
The Pentagon acknowledged difficulty in re-examining the Air Force cases cited in the testimony and reports, saying it was because the attorney who chose those cases for citation has since died.
“Because the attorney who selected the 10 Air Force cases has died, the Air Force has been unable to determine with certainty to which cases the letter refers and cannot provide an assessment of them,” the analysis says.
Don Christensen, president of Protect Our Defenders and a retired Air Force colonel, took issue with the characterization that he doesn’t understand the military justice system. Christensen was a trial counsel, defense counsel or military judge for his entire 23-year Air Force career, including four years as the chief prosecutor for the Air Force.
“If I don’t understand military justice, something’s wrong,” he said Wednesday.
Christensen rebutted the Pentagon’s analysis, saying the “decline” vs. “deferral” language was in the case files cited to Congress and that convictions of crimes other than sexual assault should not count in sexual assault conviction rates.
Moreover, Christensen added, the Pentagon’s argument that military commanders can only refer a charge for trial if the staff judge advocate makes certain findings proves his group’s point.
“What Winnefeld was clearly trying to imply was commanders were tougher than prosecutors,” Christensen said. “It’s nonsensical to say cases went to trial because of intervention from military commanders.”
The 2013 testimony derailed a bill, introduced by Gillibrand, that would have taken the decision to move forward on sexual assault cases and other serious crimes away from military commanders and given it independent military prosecutors.
Gillibrand has again introduced the bill this year as an amendment to the annual defense policy bill.
In her statement, Gillibrand said it’s clear the testimony was wrong.
“The transcripts of the hearing speak for themselves,” she said. “Adm. Winnefeld made claims that were not true. Period. I am left to conclude that because DoD doesn’t have a good reason to let commanders make legal decisions, they had to invent one, or at a minimum, embellish one.”
— Updated at 3:52 p.m.