Overnight Defense: Top general drops objection to major change in prosecuting military sexual assault | Supreme Court declines to take up case from former West Point cadet | Pentagon says ‘small’ attacks not affecting Afghanistan withdrawal

Happy Monday and welcome to Overnight Defense. I’m Rebecca Kheel, and here’s your nightly guide to the latest developments at the Pentagon, on Capitol Hill and beyond. CLICK HERE to subscribe to the newsletter.

THE TOPLINE: More momentum is building toward a major change in how the military justice system handles sexual assault cases.

Monday’s development was a big one: Chairman of the Joint Chiefs Staff Gen. Mark Milley is no longer objecting to taking the decision to prosecute sexual assault out of the chain of command.

In an interview with the Associated Press and CNN published Monday, Milley stopped short of endorsing a recommendation made by an independent review panel to take such decisions away from commanders. But he said he is open to considering it.

“I was adamantly opposed to that for years,” Milley said. “But I haven’t seen the needle move.”

“We’ve been at it for years, and we haven’t effectively moved the needle,” he added. “We have to. We must.”

Loss of confidence: Milley also said he has changed his mind in part to concerns that junior enlisted service members had lost confidence in the fairness of sexual assault case outcomes and thus lost confidence in the chain of command.

“That’s really bad for our military if that’s true, and survey and the evidence indicate it is true,” he said. “That’s a really bad situation if the enlisted force — the junior enlisted force — lacks confidence in their chain of command to be able to effectively deal with the issue of sexual assault.”

What it matters: The stance marks a major shift for Milley, who is the senior-most uniformed official to comment on the proposed move and is the top military adviser to Defense Secretary Lloyd Austin and President Biden, who have both pledged to quell the persistent problem of sexual assault in the ranks.

Milley for years opposed taking the decision out of the commanders’ hands, arguing it would create a breakdown in unit cohesion.

But after years of little change in the military coupled with a renewed pressure from the administration and from Congress to tackle the issue, perspectives have begun to shift.

What’s next: Austin is in the midst of reviewing the review panel’s recommendation, which specifically called for designating independent judge advocates to decide whether to charge someone in certain cases of special victims crimes including sexual assault and sexual harassment.

Austin has not publicly commented on the review commission’s proposals, but is expected to make a decision on them in roughly a month as service leaders are taking that time to review and respond to the suggestions.

Congress may yet force the Pentagon’s hand. As noted in this newsletter last week, Sen. Kirsten Gillibrand’s (D-N.Y.) bill on the issue got its own burst of momentum last week when some senators who previously opposed the bill signed on as co-sponsors.

SUPREME COURT DECLINE TO HEAR WEST POINT RAPE CASE

In other news related to military sexual assault, the Supreme Court on Monday declined to hear a lawsuit from a former West Point cadet who alleges she was raped on campus and that the academy failed to address its “pervasive and well-known culture of sexual violence.”

The case was the latest attempt to revisit the so-called Feres doctrine that restricts service members’ ability to file lawsuits against the government.

Notable dissent: Justice Clarence Thomas dissented from the decision not to take up the case, writing in a brief opinion that the high court should reconsider the Feres doctrine, which stems from a 1950 ruling that held that service members cannot bring lawsuits against the government under the Federal Tort Claims Act (FTCA).

“Under our precedent, if two Pentagon employees—one civilian and one a servicemember—are hit by a bus in the Pentagon parking lot and sue, it may be that only the civilian would have a chance to litigate his claim on the merits,” Thomas wrote. “Nothing in the text of the Act requires this disparate treatment. Nor is there any background rule that federal bus drivers owe a greater duty of care toward workers who are civilian than those who are military.”

About the case: The petitioner who was seeking Supreme Court review is identified only as Jane Doe. According to her court filings, she entered the academy in 2008 and alleged that she was raped by a fellow cadet in 2010 as a second-year student.

She says West Point officials failed to adhere to Pentagon regulations around sexual assault and did not provide her with “appropriate medical and emotional support.” Doe dropped out of the school three months after her assault.

Plaintiff’s reaction: “No servicemember should ever be told that their rape is ‘incident to service,'” Kathryn Pogin, a member of Jane Doe’s legal team, said in a statement. “Justice Thomas is right: For seventy years, the Feres doctrine has unjustly slammed shut the courthouse doors to servicemembers — even when their injuries occur, like Ms. Doe’s, on an academic campus, thousands of miles from any battlefield, and in blatant violation of the Department of Defense’s own policies and regulations. Feres was wrongly decided in 1950, and the injustice it inflicts on servicemembers is wrong today.”

‘SMALL’ ATTACKS IN AFGHANISTAN AMID WITHDRAWAL

U.S. forces saw some “small harassing attacks” in Afghanistan over the weekend, but the attacks had no effect on the U.S. withdrawal from the country, the Pentagon said Monday.

“What we’ve seen are some small harassing attacks over the course of the weekend that have not had any significant impact, certainly not on our people or our resources there, and bases,” Pentagon press secretary John Kirby told reporters Monday.

Earlier: On Saturday, U.S. Forces in Afghanistan reported “ineffective indirect fire” at Kandahar Airfield in which no injuries or damage to equipment was reported. The U.S. responded with an airstrike that “destroy[ed] additional rockets aimed at the airfield,” U.S. Forces Afghanistan spokesperson Col. Sonny Leggett tweeted.

“A return to violence would be one, senseless and tragic,” Gen. Scott Miller, the top U.S. general in Afghanistan, said in a video tweeted by Leggett in a thread on the Kandahar incident. “But make no mistake, we have the military means to respond forcefully to any type of attacks against the coalition, and the military means to support the Afghan security forces. That would be a mistake to move in that direction.”

Context: May 1 marked the day the Taliban had threatened to resume attacks on U.S. and coalition troops since, even though they are withdrawing, they are not meeting the withdrawal deadline in the agreement signed by the Trump administration last year.

U.S. officials have warned they will respond to any threat against U.S. forces. The military has deployed four B-52 bombers to the region and extended the deployment of the USS Dwight D. Eisenhower aircraft carrier to provide force protection during the withdrawal. Elements of an Army Ranger task force are also deploying to Afghanistan to help protect withdrawing troops.

ON TAP FOR TOMORROW

A House Armed Services Committee subpanel will hold a hearing on programs to counter weapons of mass destruction with testimony from defense officials at 11 a.m. https://bit.ly/3ecgGBQ

National Guard Bureau Chief Gen. Daniel Hokanson, Army Reserve Chief Lt. Gen. Jody Daniels, Navy Reserve Chief Vice Adm. John Mustin, Marine Forces Reserve Commander Lt. Gen. David Bellon and Air Force Reserve Chief Lt. Gen. Richard W. Scobee will testify before the House Appropriations Committee’s defense subcommittee at noon. https://bit.ly/3h0g5Vp

The House Foreign Affairs Committee will hold a hearing on the crisis in Myanmar with testimony from the country’s permanent representative to the United Nations and outside experts at 1 p.m. https://bit.ly/33cCUNS

ICYMI

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— The Hill: Pentagon sending four cargo planes to deliver ‘critical supplies’ to India

— The Hill: Biden cites Afghan troop drawdown on 10-year anniversary of bin Laden killing

— The Hill: Biden administration discloses Trump rules for strikes outside war zones

— The Hill: Opinion: Afghanistan withdrawal: Trump fumbles, Biden scores

— The Hill: Opinion: Get real: The F-35 is the combat power America needs

— New York Times: Day 1 of the end of the U.S. war in Afghanistan

— Washington Post: Marine Corps suspends general cited in fatal vehicle disaster at sea

— Associated Press: Iraq military: 4 rockets hit Iraqi air base, no casualties

— Military Times: 25th service member dies of COVID-19 as White House considers mandatory vaccines