[Congressional Record Volume 159, Number 162 (Thursday, November 14, 2013)]
[Senate]
[Pages S8033-S8035]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    MILITARY JUSTICE IMPROVEMENT ACT

  Mr. BLUMENTHAL. Mr. President, my purpose in being here today is to 
support the Military Justice Improvement Act and the very urgent need 
to include its worthwhile and comprehensive provisions in the National 
Defense Authorization Act for Fiscal Year 2014, either by way of 
amendment or whatever measure may be appropriate, and to support the 
very eloquent remarks made by the Senator from New York. She has been a 
steadfast and strong advocate of necessary changes in the Military Code 
of Justice and has acted as chairman of the Subcommittee on Personnel 
of the Senate Armed Services Committee to approach this issue--a very 
difficult issue--in strengthening the system of justice for our men and 
women in uniform with care and caution as well as vigor and bravery.
  I know how different the views may be in this body among our 
colleagues, and I have listened to people on both sides of this 
argument very carefully before reaching my own conclusion.
  One statistic that strikes me as perhaps paramount in importance is 
the gap between the number of victims, which is estimated to be close 
to 30,000, or perhaps more. We don't have a precise number, but the 
estimates from the military indicate that there are tens of thousands, 
and very likely more than 30,000. The number of reported cases is 
around 3,000, or perhaps 2,500, who have sought justice for sexual 
assault in the military. By the way, only about 300 go to trial every 
year. At least that was the number for last year.
  My view is that we must remove any concerns about undue command 
influence on the process so that more victims will seek justice. The 
only way to deter this heinous, horrific crime is to encourage more 
reporting so there can be more prosecution and enable more deterrents 
through strong and swift justice. The goal is justice. The goal is not 
necessarily punishment for its own sake but justice.
  I have listened to my colleagues who feel that the act as written or 
as amended should keep prosecuting authority with the commander. I have 
listened carefully to them, and I believe their sincerity and respect 
for victims is unquestionable. This is not about who respects victims 
or cares for them the most, it is about what system will best seek 
justice and deter the epidemic--the spreading numbers of these horrific 
crimes.
  I have also listened to military professionals who have come before 
Senator Gillibrand's subcommittee, as well as the committee as a whole. 
I have questioned them repeatedly in public and in private, and I am 
convinced beyond any doubt that they are as outraged and find this 
crime as abhorrent and antithetical to their profession as anyone in 
this body. Yet, for years and years, we have heard that the military 
has zero tolerance. Their renewed vigor is welcomed but in my view has 
to be matched by reforms in the process which will make sure that that 
commitment is real and realized in real life.
  Most importantly, I have listened to the victims who have come, both 
publicly and privately, to the Armed Services Committee, where I serve, 
and have told their stories. They have told their stories also in 
writing and in documentaries, such as ``The Invisible War''--a very 
powerful and compelling argument for reform.
  I have listened to them as they have expressed to me that what 
matters to them is the fear of retaliation and adverse effect on their 
careers from the present structure of prosecuting authority. I believe 
that prosecuting authority should be made the responsibility of an 
independent, experienced, objective, and trained professional.
  I recognize and I understand that there is immense power in the 
present system given to any commander who sends men and women under his 
power potentially to give their lives for their country. Their argument 
and feeling is that they should hold the same power over punishment for 
crimes that those men and women may commit under their command.
  Good order and discipline, I recognize, is a profoundly important 
goal, and a paramount, irreplaceable, and

[[Page S8034]]

undeniable goal. Good order and discipline is hardly well served by 
acts of sexual assault in the military, which is why those 
professionals say they have zero tolerance for this heinous crime. I 
have listened to them about why they feel the present system should be 
continued.
  We need a military justice system that works as well in Camp 
Leatherneck as it does in Camp Pendleton or Camp Lejeune, and we need a 
justice system that works well not just in one season or another, 
politically, but in all seasons at all times for all men and women. I 
think the approach best suited to reach that goal is the one that 
embodies legislation that has been introduced by the Senator from New 
York, Mrs. Gillibrand. Of course, in listening to all of those sources 
of insight and perspective on this issue, I have also utilized my own 
experience as a prosecutor. I would say the most difficult decisions I 
made as a U.S. Attorney prosecuting under Federal law, and as State 
attorney general, largely with civil authority, was whether to charge 
and what violations of law to charge, because, as a practical matter, 
the charge can ruin a life, and often does. It can ruin a career, ruin 
a family, and ruin an individual's standing in society. Even if that 
individual is eventually found not guilty at trial, the charge stands 
forever. I found that the decision of whether to charge was often the 
most difficult decision I had to make not only because of the 
consequences to the individual, but the difficulty of making a decision 
about whether a fact finder--whether a court or a jury--would conclude 
that every element of the crime as charged was proved beyond a 
reasonable doubt. That is the responsibility of the jury or the judge, 
depending on who is trying the case and who the fact finder is. There 
are instances where these decisions are air tight and easy, but in many 
cases, and most particularly in cases involving sexual assault, they 
are sometimes difficult to make. There is forensic evidence, there are 
metrics, there are precise scientific measures, but there is also a 
judgment to be made about whom to believe when there are conflicting 
versions of an incident.

  That is why I believe these decisions should be made by professionals 
who have experience, who know how to prove cases, how to try them and 
how to bring them to court, and who are capable of making decisions 
that will not only be fair and objective but will be seen as fair and 
objective, because in the criminal justice process often perception is 
as important as reality when it comes to a victim coming forward to put 
his or her life on the line and complain, particularly in a system such 
as the military, but often in society in general. Sexual assault as a 
crime in society is often underreported and underprosecuted because of 
the fears, correctly and understandably, on the part of victims.
  We have made progress in encouraging victims to come forward in 
civilian life and in the military, but there is much more to be done. I 
believe the reforms offered by the Military Justice Improvement Act are 
important and essential to that goal.
  The National Defense Authorization Act in title V has 14 specific 
revisions to our military justice system that will help ensure a more 
just process and a more just outcome for cases involving sexual 
assault. These changes to our current system were drafted in a 
bipartisan manner that defines so often--in fact, almost uniformly--the 
work of the Armed Services Committee under the leadership of Chairman 
Levin and Ranking Member Inhofe, and I wish to express my appreciation 
for their leadership. Those reforms are important to ensure a crime 
victim's rights are acknowledged under the Uniform Code of Military 
Justice and that victims receive a special victims advocate, and that 
those found guilty of sexual assault will receive a mandatory 
discharge. These reforms, which were initially proposed by myself and 
others, will help improve this system. They are a telling refutation of 
anyone who says, in testimony before our committee or otherwise, that 
the UCMJ is serving its intended purpose of justice when it previously 
dealt with cases of military assault.
  These reforms are necessary and necessary now, and I support them. 
Yet, as I look at the totality of what is now contained in this bill, 
it seems insufficient. I am left with the conclusion--it is an uneasy 
conclusion but a very strong one--that we have not yet achieved what we 
need to accomplish, namely, a system of justice that has the full 
confidence and trust of victims and all parties, that has the 
confidence and trust of survivors. They are indeed survivors. It is 
vital to encourage reporting of this crime and building the evidence 
that is necessary for those trained and experienced prosecutors to 
decide whether to pursue charges, against whom, and what kind of 
charges.
  I believe we can strike a balance and achieve justice and not only 
maintain good order and discipline but, in fact, enhance them. I think, 
if this reform is adopted, future military commanders will thank the 
Senate and the Congress for enabling them to pursue what they know best 
professionally--what is their calling and their mission--which is to 
make this Nation's national security and defense the best in the world, 
as it has always been. They are to be thanked, and we all thank them 
for their commitment and their professionalism in the service of that 
goal.
  I am joined in supporting these reforms in the Military Justice 
Improvement Act by the Defense Advisory Committee on Women in the 
Service, which last month recommended that ``decisions to prosecute, to 
determine the kind of court martial to convene, to detail the judges 
and members of the court martial, and to decide the extent of the 
punishment, should be placed in the hands of military personnel with 
legal expertise and experience and who are outside the chain of command 
of the victim and the accused.''

  That is also the view of Jeh Johnson, the President's nominee to head 
the Department of Homeland Security and former Pentagon general counsel 
who was asked whether there are shortcomings in the military justice 
system, and he replied, ``I have recently come to the conclusion that 
the answer to that question is yes.''
  He went on to say:

       Last year Secretary Panetta raised the initial disposition 
     authority for how these cases should be handled to the 06 
     colonel captain level, and the problem, I believe, has become 
     so pervasive, the bad behavior is so pervasive, we need to 
     look at fundamental change in the military justice system 
     itself.

  We are joined in this view also by the Vietnam Veterans of America, 
an organization that stands in favor of the Military Justice 
Improvement Act because ``far too many victims fail to report or choose 
restricted reporting primarily for two reasons: Retaliation and total 
lack of faith in fair just treatment within the chain of command.''
  So despite my deference to our military leaders and my respect for 
them and my feeling that they are entitled to deference in issues that 
affect good order and discipline, I believe we have a responsibility in 
this Congress to fix this system, to repair it and reform it, and do it 
in ways that vindicate the rights of victims, survivors, as well as the 
accused, to make sure we do justice. Our responsibility under article 
I, section 4, clause 14 of the Constitution is ``[t]o make Rules for 
the Government and Regulation of the land and naval Forces.'' That is 
why the Uniform Code of Military Justice was adopted by Congress, and 
we will be held rightfully responsible and accountable if we fail to 
act and make effective reforms and if we fail to put an end to sexual 
assault in the military.
  Our military system has some of the most dedicated, our best and our 
bravest, of this generation, just as has been true in past generations. 
I am proud to say two of my sons currently serve in the military. We 
need a system of justice that matches their excellence, that keeps 
faith with their dedication and sense of duty, that is as fair and just 
as they are strong and capable in protecting this country. We owe our 
freedom, we owe our own justice system in this country, and all of our 
rights and liberties to the defense they have provided decade after 
decade, war after war, to this Nation.
  So I urge my colleagues to come together--and I know they are working 
on a bipartisan basis--to finish the work of reforming our system of 
military justice. I look forward to the day of realizing a very simple 
ideal--that every servicemember who is a survivor, a victim of sexual 
assault, is entitled to an independent arbiter and an objective 
prosecutor with the knowledge that the victim will be embraced and

[[Page S8035]]

supported by the system, and welcomed back into the ranks, even as they 
face the grueling and painful task of being involved in a prosecution. 
I look forward to the day also when any perpetrator knows, without 
question, that they will be separated from service and punished if they 
are found guilty. These ideals are as much engrained in our military as 
the ideals of valor, honor, and tradition. These changes will help our 
bravest and finest members who contribute and put their lives on the 
line to reach those ideals. These changes are necessary and I look 
forward to accomplishing them, working with my colleagues.
  Mr. President, I thank the Chair, and I yield the floor. I note the 
absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Heinrich.) Without objection, it is so 
ordered.
  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent to speak as in 
morning business for such time as I may consume.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________