June 06, 2016

Following Insufficient Response From Secretary Carter, Bipartisan Coalition Of Senators Request President Obama Open An Independent Investigation Into Alleged Efforts By Department Of Defense To Mislead Congress On Military Sexual Assault Cases

Washington, D.C. – In a letter to President Obama today, U.S. Senators Kirsten Gillibrand (D-NY), Chuck Grassley (R-IA), Jeanne Shaheen (D-NH), Barbara Boxer (D-CA), Richard Blumenthal (D-CT), Rand Paul (R-KY), Dean Heller (R-NV), Mazie K. Hirono (D-HI), and Martin Heinrich (D-NM) requested an independent investigation into alleged efforts by the Department of Defense to mislead Congress about the facts surrounding 93 cases of sexual assault in the military.

The Senators recently requested an explanation from Secretary of Defense Ashton Carter after a report compiled by the advocacy organization Protect Our Defenders (POD), and follow-up reporting by the Associated Press, found that Department of Defense officials provided misleading information in order to affect the policy debate in Congress over sexual assault in the military. Secretary Carter’s response to the Senators suggested that POD and the Associated Press simply do not understand the military justice system (despite the original reports author being an Air Force Judge Advocate for 23 years), that they lack the full case files, and that this is simply an issue of a difference in definitions. The DoD’s response letter also said it could not determine certain files used originally to develop the testimony despite having previously shared the files with Senator Gillibrand’s office and asking her not to share them.

“We are disappointed by Secretary Carter’s letter, which demonstrates to us that the Department does not seem to be taking the investigation of these allegations seriously enough,” the Senators wrote in the letter. “We are deeply troubled by the Defense Department’s lack of action to properly address these very concerning allegations and request that you immediately appoint someone to independently investigate what continues to appear to be a case of the Department misleading Congress in order to stop legislation it does not like.”

 

The full text of the letter is included below:

 

June 6, 2016

 

The Honorable Barack Obama

President of the United States

The White House

1600 Pennsylvania Avenue

Washington, D.C. 20500

 

Dear Mr. President,

We are writing to request that you, as commander in chief of our Armed Forces, open an independent investigation into alleged efforts by the Department of Defense to mislead Congress about the facts surrounding 93 cases of sexual assault and about the broader context in which these efforts occurred.

 

Last week, we received a response from Secretary of Defense Ashton Carter, writing on your behalf, to a request that we made to meet with him and for a full investigation of these allegations. We are disappointed by Secretary Carter’s letter, which demonstrates to us that the Department does not seem to be taking the investigation of these allegations seriously enough.

 

The letter and the white paper enclosed with it suggest that Protect Our Defenders (POD) and the Associated Press simply do not understand the military justice system, that they lack the full case files and that this is simply an issue of a difference in definitions.

 

Given that POD is led by a recently retired former top prosecutor from the Air Force who prosecuted dozens of his own cases and advised junior military trial counsel on countless others, DoD’s claim that his organization “does not understand the military justice system,” is unfair. Suggesting that these two organizations simply do not have all the information when that information was specifically not provided is an unacceptable response. This is all the more true of the ten “missing” Air Force files, which Senator Gillibrand has but is not allowed to share at the request of DoD. And suggesting that this is a difference of interpretation elides over the specific statements made by Admiral Winnefeld himself, both in his testimony and in letters to then-Chairman of the Armed Services Committee Carl Levin and then-Chair of the Personnel Subcommittee, Senator Gillibrand.

 

The transcript of the hearing speaks for itself. On July 18, 2013, Admiral Winnefeld, then Vice Chairman of the Joint Chiefs of Staff, testified that a “civilian district attorney (DA) refused to take a sexual assault case” and “the chain of command in the military insisted that the case be taken inside the military chain of command” [italics added for emphasis]. But for the chain of command, he suggested, “[the perpetrators] would be walking the street right now. The victims would not have had the resolution that they deserved in this case.” Justice depended on “the chain of command insisting that a prosecution be pursued, and it was pursued successfully,” he reiterated.

 

Admiral Winnefeld also claimed, in a letter to Senator Gillibrand, that “even in cases where civilian authorities are unwilling or unlikely to act, our commanders consistently insist on going forward in order to achieve accountability, both for the victim and in the interest of military discipline.” He continued, “I fear, however, that the number of prosecutions in these types of cases may well decline if the very commanders who have a vested interest in accountability are stripped of their power to deal with allegations regarding personnel in their units, in favor of detached prosecutors.”

 

These statements cannot be ignored. Either Admiral Winnefeld and those who prepared his materials were incorrect in saying that civilians simply decline cases or whomever drafted the memo enclosed with Secretary Carter’s letter is wrong in trying to explain that these cases are often handled through a process of negotiation with local authorities – as the AP also found.

 

Either Admiral Winnefeld and those who staffed him incorrectly implied that commanders insist on going forward whereas civilians do not and “detached prosecutors” might not or the response from Secretary Carter is mistaken in saying that a staff judge advocate must conclude “that (1) the specification alleges an offense, (2) the specification is warranted by the evidence, and (3) a court-martial would have jurisdiction over the offense” and that a commander cannot override these findings in deciding whether to refer charges.

 

These are but two examples of the contradictions in Secretary Carter’s letter that suggest the Department was more interested in obfuscating than in investigating the matters at hand.

 

We are deeply troubled by the Defense Department’s lack of action to properly address these very concerning allegations and request that you immediately appoint someone to independently investigate what continues to appear to be a case of the Department misleading Congress in order to stop legislation it does not like.

 

Thank you in advance for your consideration of our request.

 

Sincerely,

 

Kirsten Gillibrand                               Chuck Grassley

United States Senator                         United States Senator

 

Rand Paul                                           Jeanne Shaheen

United States Senator                         United States Senator

 

Barbara Boxer                                     Dean Heller

United States Senator                         United States Senator                                                                 

 

Richard Blumenthal                            Mazie Hirono        

United States Senator                         United States Senator

 

Martin Heinrich

United States Senator

 

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