Sen. Kirsten Gillibrand Kirsten GillibrandSuburban moms are going to decide the 2020 election Jon Stewart urges Congress to help veterans exposed to burn pits The Hill's Campaign Report: 19 years since 9/11 | Dem rival to Marjorie Taylor Greene drops out | Collin Peterson faces fight of his career | Court delivers blow to ex-felon voting rights in Florida MORE (D-N.Y.) said Thursday she was “extremely disturbed” at a Navy nominee’s testimony suggesting sexual assault cases should not be based solely on evidence.

Gillibrand criticized Jo Ann Rooney, who has been nominated to be undersecretary of the Navy, during Rooney’s confirmation hearing in the Senate Armed Services Committee on Thursday.

Gillibrand read Rooney’s written testimony aloud at the hearing, in which the Navy nominee explained why she was opposed to Gillibrand’s proposal to take sexual assault and other criminal cases outside the chain of command.

“A judge advocate outside the chain of command will be looking at a case through a different lens than a military commander,” Gillibrand read from Rooney’s statement.

ADVERTISEMENT

“I believe the impact would be decisions based on evidence, rather than the interest in preserving good order and discipline. I believe this will result in fewer prosecutions and therefore defeat the problem that I understand it seeks to address,” Rooney wrote.

“You are an attorney, correct?” Gillibrand asked Rooney. “Under what world would you recommend the decision about whether a serious crime, meaning a conviction could mean more than a year or more, should not be based on the evidence?”

Rooney, who is currently principal deputy undersecretary for Personnel and Readiness, said that did not mean a commander would ignore evidence, but that the commander has additional issues to consider within his or her command.

“The implication was not that the commander wouldn't [look at evidence], but a commander also has some additional tools that they could use that are nonjudicial punishment in order to be able to address that command climate and change the attitudes towards it,” Rooney said.

Her answer did not satisfy Gillibrand.

The New York senator is pushing Congress to adopt her legislation and remove the decision to prosecute major criminal cases away from commanders. Her office says she has the support of 46 senators.

Gillibrand and her supporters argue that victims are afraid to come forward because they fear retribution.

Gillibrand’s proposal is opposed by Pentagon leaders, however, as well as Senate Armed Services Chairman Carl Levin Carl Milton LevinMichigan to pay 0M to victims of Flint water crisis Unintended consequences of killing the filibuster Inspector general independence must be a bipartisan priority in 2020 MORE (D-Mich.) and other senior committee members.

They say that commanders must retain the decision to prosecute cases so they can be held responsible for changing the climate when it comes to sexual assault.

Gillibrand jumped on Rooney’s comments about prosecutors and evidence to push back against her opponents’ command climate contentions.

“I do not believe that the chain of command should be using the threat of prosecution as a cudgel or a tool to manipulate or determine how their troops will behave,” Gillibrand said.

“They are the ones solely responsible for command climate, solely responsible for good order and discipline. But that decision point, that legal decision point, should be made solely on the basis of evidence.”

Gillibrand released a statement after the hearing contending that “shocking statements” like Rooney’s further erode the trust of victims.

Victims advocates groups also criticized the Navy undersecretary nominee’s remarks.

"Rooney implies that basing legal decisions on evidence is counter to good order and discipline. We disagree: facts matter,” Service Women’s Action Network executive director Anu Bhagwati said in a statement.

"What is counter to good order and discipline is victims’ inability to access justice because legal decisions are based on commander bias rather than evidence. Diminishing the importance of evidence in criminal cases is, frankly, un-American."

Rooney said at the hearing that she was open to reforms to the military's Article 32 process of bringing a case to court martial. The process has been criticized recently over a case involving sexual assault allegations against three ex-football players at the Naval Academy, where lengthy interviews of the victim were conducted during the pre-trial process.

Two of the suspects were referred to court martial by the Navy on Thursday.