Congressional Record, Volume 159 Issue 166 (Wednesday, November 20, 2013)

[Congressional Record Volume 159, Number 166 (Wednesday, November 20, 2013)]
[Senate]
[Pages S8299-S8339]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2014

The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of S. 1197.
The clerk will report the bill by title.
The legislative clerk read as follows:

A bill (S. 1197) to authorize appropriations for fiscal
year 2014 for military activities of the Department of
Defense, for military construction, and for defense
activities of the Department of Energy, to prescribe military
personnel strengths for such fiscal year, and for other
purposes.

Pending:

Reid (for Levin/Inhofe) amendment No. 2123, to increase to
$5 billion the ceiling on the general transfer authority of
the Department of Defense.
Reid (for Levin/Inhofe) amendment No. 2124 (to amendment
No. 2123), of a perfecting nature.
Reid motion to recommit the bill to the Committee on Armed
Services, with instructions, Reid amendment No. 2305, to
change the enactment date.

[[Page S8300]]

Reid amendment No. 2306 (to (the instructions) amendment
No. 2305), of a perfecting nature.
Reid amendment No. 2307 (to amendment No. 2306), of a
perfecting nature.

The PRESIDING OFFICER. Under the previous order, there will be up to
6 hours of debate only.
The Senator from New York.
Mrs. GILLIBRAND. Madam President, I rise today to speak about my
amendment to the National Defense Authorization Act, an amendment known
as the bipartisan Military Justice Improvement Act. I wish to start by
thanking my colleagues on both sides of the aisle for their strong and
unwavering leadership on behalf of our brave men and women in uniform.
I could not be more proud of the bipartisan work that has been done to
do the right thing.
I thank Senator Reid, Senator Booker, and Senator Heller, the three
most recent supporters of our bill. I thank them for their
extraordinary leadership and determination to end the scourge of sexual
violence in the military.
I also thank my colleague and friend from Missouri for her unwavering
commitment to helping victims of sexual assault. Although we disagree
on my amendment, I remind all of our colleagues that the Defense
Authorization Act has been made stronger in enumerable ways by Senator
McCaskill's work, advocacy, and dedication. I also will be supporting
her amendment today because I think the provisions in her amendment
will add even more positive changes to the command climate and will
help victims feel like they have a stronger voice.
However, while the changes in the McCaskill amendment are very good,
I do not believe they are enough to truly ensure justice for victims of
sexual assault. For that, we essentially need impartial, unbiased,
objective consideration of the evidence by trained military
prosecutors, which is what my amendment will provide.
Yesterday, I proudly stood with retired generals, leaders of veterans
organizations, and survivors, who represent a growing chorus of
military voices, to urge Congress to take its oversight role head-on
and finally create an independent, unbiased military justice system the
men and women who serve in our military so deeply deserve.
Leaders such as retired Maj. Gen. Martha Rainville, the first woman
in history of the National Guard to serve as an adjutant general, who
has served in the military for 27 years, including 14 years in command
positions, wrote to me:

As a former commander, endorsing a change that removes
certain authority from military commanders has been a tough
decision. It was driven by my conviction that our men and
women in uniform deserve to know, without doubt, that they
are valued and will be treated fairly with all due process
should they report an offense and seek help or face being
accused of an offense.
When allegations of serious criminal misconduct have been
made, the decision whether to prosecute should be made by a
trained legal professional. Fairness and justice require
sound judgment based on evidence and facts, independent of
pre-existing command relationships.

Leaders such as BG (retired) Lorree Sutton, who served as the top
psychiatrist in the U.S. Army, wrote, saying:

Failure to achieve these reforms would be a further tragedy
to an already sorrowful history of inattention and ineptitude
concerning military sexual assault.
In my view, achieving these essential reform measures must
be considered as a national security imperative, demanding
immediate action to prevent further damage to individual
health and well-being, vertical and horizontal trust within
units, military institutional reputation, operational mission
readiness and the civilian military compact.
Far from ``stripping'' commanders of accountability, as
some detractors have suggested, these improvements will
remove the inherent conflict of interest that clouds the
perception and, all too often, the decision-making process
under the current system.
Implementing these reforms will actually support leaders to
build and sustain unit cultures marked by respect, good
order, and discipline.

LTG (retired) Claudia Kennedy, the first three-star female general in
the Army, wrote:

Having served in leadership positions in the U.S. Army, I
have concluded that if military leadership hasn't fixed the
problem in my lifetime, it's not going to be fixed without a
change to the status quo. The imbalance of power and
authority held by commanders in dealing with sexual assault
must be corrected. There has to be independent oversight over
what is happening in these cases.
Simply put, we must remove the conflicts of interest in the
current system. . . . The system in which a commander can
sweep his own crime or the crime of a decorated soldier or
friend under the rug protects the guilty and protects serial
predators. And it harms military readiness . . .
Until leadership is held accountable, this won't be
corrected. To hold leadership accountable means there must be
independence and transparency in the system.
Permitting professionally trained prosecutors rather than
commanding officers to decide whether to take sexual assault
cases to trial is a measured first step toward such
accountability . . . I have no doubt that command climate,
unit cohesion and readiness will be improved by (these)
changes.

BG (retired) David McGinnis, who also served as a Pentagon appointee,
wrote:

I fully support your efforts to stamp out sexual assault in
the United States military and believe that there is nothing
in (the Military Justice Improvement Act) that is
inconsistent with the responsibility or authority of command.
Protecting the victims of these abuses and restoring American
values to our military culture is long overdue.

It is because they love the military that they are making their
voices heard--standing united behind brave survivors. I will share some
of those stories because it is their stories which inform some of this
legislation.
Kate Weber, from Protect Our Defenders, was awarded the 2013 Woman
Veteran Leader of the Year by the California Department of Veteran
Affairs, and Sarah Plummer came to Washington, DC, all the way from
Colorado. Yesterday they came to courageously tell their stories so
that their brothers and sisters in uniform get a military justice
system that is finally worthy of their great service to our Nation.
Sarah's story is extremely disturbing. She was raped as a young
marine in 2003. She said:

I knew the military was notorious for mishandling rape
cases, so I didn't dare think anything good would come of
reporting the rape.
Having someone in your direct chain of command doesn't make
any sense, it's like getting raped by your brother and having
your dad decide the case.

Kimberly Hanks, the brave survivor from the infamous and horribly
unjust Aviano case, who I spoke to months ago about this issue when our
journey began, just wrote an op-ed published this week:

Regardless of all the promises by military leadership and
half measures offered in the name of reform nothing short of
removing the prosecution and adjudication authority away from
the commander and placing it with independent, military
professionals outside the accused's and victim's chain of
command will end this nightmare.

Trina McDonald, who at 17 enlisted in the Navy, was stationed at a
remote base in Alaska. Within 2 months, she was attacked, repeatedly
drugged, and raped by superior officers over the course of 9 months.
She said:

At one point my attackers threw me in the Bering Sea and
left me for dead in the hopes that they would silence me
forever. They made it very clear that they would kill me if I
ever spoke up or reported what they had done.

Listen to Army SGT Rebekah Havrilla, who served in Afghanistan and
was raped in 2007, and said reporting the crime to her commanding
officer to her was ``unthinkable'':

There was no way I was going to my commander. He made it
clear he didn't like women.

A1C Jessica Hinves, who was raped in 2009 by a coworker who broke
into her room at 3:00 in the morning, said:

Two days before the court hearing, his commander called me
on a conference call at the JAG office, and he said that he
didn't believe that [the offender] acted like a gentleman,
but there wasn't reason to prosecute.
I was speechless. Legal had been telling me this is going
to go through court. We had the court date set for several
months. And two days before, this commander stopped it. I
later found out the commander had no legal education or
background, and he had only been in command for four days.

Her rapist was given the award for Airman of the Quarter. She was
transferred to another base.
We also can't forget that more than half of the victims last year
alone were men.
Blake Stephens, now 29, joined the Army in 2001, just 7 months after
graduating high school. The verbal and physical attacks started
quickly, he says, and came from virtually every level of the chain of
command. In one of the worst incidents, a group of men

[[Page S8301]]

tackled him, shoved a soda bottle into his rectum, and threw him
backward off an elevated platform onto the hood of a car.
When he reported the incident, his drill sergeant told him: ``You're
the problem. You're the reason this is happening.'' His commander
refused to take action.
Blake said:

You just feel trapped. They basically tell you you're going
to have to keep working with these people day after day,
night after night. You don't have a choice.

His assailants told him that once they deployed to Iraq, they were
going to shoot him in the head. ``They told me they were going to have
sex with me all the time when we were there.''
This is the problem: There were 26,000 sexual assaults estimated by
the Department of Defense last year alone based on confidential
surveys, but only 3,374 were actually reported. Of those reported, 302
went to trial.
So if you are starting with 26,000 estimated cases and only 302 go to
trial, that is a 1-percent rate of conviction in the U.S. military for
the heinous crime of degradation, aggression, and dominance of rape and
sexual assault. One percent. And we just heard from these victims.
There are too many command climates that are toxic, that do not ensure
good order and discipline, that do not protect against rape and sexual
assault, that do not create a sense that if I come forward and report,
that justice could be done.
In this survey--this a confidential survey--the reason victims didn't
report is they said they didn't believe anything would be done. They
also said they either feared or witnessed retaliation. This is the
problem. About 23,000 cases weren't reported. It means in 23,000
command climates, these assaults are happening and victims feel they
will not get justice.
So I am grateful for every reform we have put in place in this
underlying bill. They are good, strong reforms that will help victims
who report. But every single one of them applies only to these 3,000
cases. They apply to the cases that are reported, where the command
climates are sufficient that a victim feels: I can come forward. I can
at least report these cases. In the 23,000 other cases, those victims
don't have that confidence.
So if we don't create a transparent, accountable system that is
outside the chain of command, the hope of getting more victims to come
forward and report so we can at least weigh the evidence and see if we
can go to trial is not there. The hope isn't there. The confidence in
an objective review by someone who doesn't know the perpetrator and
doesn't know the victim doesn't exist.
So while we have these 3,000 cases which were reported and commanders
did make sure 1 in 10 went to trial--and when they did go to trial,
there was a 95-percent conviction rate. So they are not making the
wrong decisions about what case to try. It is just that only 3,000
command climates were strong enough. We can't train their way out of
this problem. There are 23,000 command climates that weren't strong
enough, that didn't ensure justice, that created fear of retaliation.
That is the problem.
So without an objective system, without creating transparency and
accountability, without saying the decider doesn't know the victim of
the perpetrator, there is no bias, because in too many cases, as we
heard from these stories, the perpetrators may well be more valuable to
the commander, may well have several tours of duty under his belt, may
well have done great acts of bravery, may well have two kids and a wife
at home. So when that commander, looking at the case file, says: You
know, it can't possibly have happened; it didn't happen this way; he
weighs the evidence differently than someone objective, who is trained,
who actually knows the difference in these crimes and knows what a rape
is. They know rape is not a crime of romance. They know rape is a crime
of dominance. They know rape is a crime of violence. It is not about a
date gone badly. It is not about hormones. It is not about a hookup
culture. It is actually a crime that is brutal and violent, committed
by someone who is acting on aggression and dominance and violence.
That is why the training matters. I want somebody who knows that, who
has been trained as a lawyer, who understands prosecutorial discretion
and can weigh evidence objectively.
We have to look at who is advocating for this bill--our veterans
organizations: Iraq and Afghanistan Veterans of America wants this
reform. Vietnam Veterans of America wants this reform. Service Women's
Action Network wants this reform. They are all speaking in one voice,
and they say: ``A vote for an independent and objective military
justice system is a vote for our troops and a vote to strengthen our
military.''
They know. They have served. They are veterans. They are no longer
Active Duty. They can speak their mind.
This week we released a letter of 26 retired generals, admirals,
commanders, colonels, captains, and senior enlisted personnel,
including two generals and two admirals known as flag officers, who are
saying to Congress:

We believe that the decision to prosecute serious crimes
including sexual assault should be made by trained legal
professionals who are outside the chain of command but still
within the military.
This change will allow prosecutorial decisions to be made
by facts and evidence and not be derailed by preexisting
relationships, attitudes, biases, and perceptions.
It is our sincere belief that this change in the military
justice system will provide the opportunity for real progress
toward eliminating the scourge of sexual assault in the
military.

I am hopeful our colleagues will listen to these collective voices
because nobody knows the military and what needs to be done to fix this
broken system better than they do. Listen to the victims who have
clearly told us over and over how a system that only produces 302
prosecutions out of the DOD's estimated 26,000 cases of rape, sexual
assault, and unwanted sexual contact last year must be fundamentally
changed to restore trust and accountability.
These men and women of America's military have put everything on the
line to defend our country. Each time they are called to serve they
answer that call. But too often these brave men and women find
themselves in the fight of their lives, not on some far-off battlefield
against an enemy but right here on their own soil, within their own
ranks, with their commanding officers, as victims of horrible acts of
sexual violence.
Sexual assault is not new, but it has been allowed to fester in the
shadows for far too long because instead of the zero tolerance pledge
we have heard for two full decades now, since Dick Cheney was the
Secretary of Defense, first using those words in 1992, what we truly
have is zero accountability.
There is no accountability because any trust that justice will be
served has been irreparably broken under our current system where
commanders hold all the cards over whether a case moves forward to
prosecution.
There are those who argue that removing these decisions out of the
chain of command into the hands of independent prosecutors in the
military will diminish good order and discipline. This is not a
theoretical question. We actually know the answer to this. Our allies
have already made these reforms and they have not seen a diminishment
in good order and discipline. The UK, Israel, Australia, Canada,
Netherlands, Germany--all of them have taken the decisionmaking whether
to prosecute the cases outside the chain of command for civil liberties
reasons--some in interests of defendants' rights, some in interests of
victims' rights--to make their justice system better. We could use a
better justice system. We could use that transparency and
accountability. We have a unique problem. I think this reform solves
our problem.
Director general of the Australian Defence Force Legal Service Paul
Cronan said that Australia has faced the same set of arguments from
military leaders in the past. Cronan said:

It's a little bit like when we opened up [to] gays in
military in the late '80s. There was a lot of concern at the
time that there'd be issues. But not surprisingly, there
haven't been any.

There are those who argue that our reform would somehow take
commanders off the hook or that they would no longer be accountable.
Let me be clear. There is nothing in this bill that takes commanders
off the hook. They are still the only ones responsible for setting
command climate, for maintaining good order and discipline, for making
sure these rapes

[[Page S8302]]

and assaults do not happen, for making sure there is no retaliation and
the victim comes forward, for making sure the command climate is
sufficient when they do come forward.
This is a legal decision and actually most commanders never get to
make this legal decision. Your platoon sergeant, your drill sergeant,
they are never going to be able to be the convening and disposition
authority. That is not their job. But they still have to maintain good
order and discipline. They are on the hook and the underlying bill is
strong because we make retaliation a crime to give them just one more
tool to help them set their command climate.
There are those who argue that this reform will cost too much. I do
not know how you could possibly say that forwarding cases and
prosecuting rape in the military costs too much. Our men and women in
uniform are worth much more. Not only do these critics ignore the facts
that we already have trained JAGs serving in our military, they
actually ignore the financial cost of sexual assault in the military.
The RAND Corporation has estimated that this scourge cost $3.6 billion
last year alone.
There are those who say commanders move forward on cases that
civilian prosecutors will not. To claim that keeping prosecutions
inside the chain of command will increase the prosecutions is not
supported by the statistics. If you only have 3,000 or so cases being
reported and 23,000 cases not being reported under the current system,
if you change that system and those 23,000 cases start becoming
reported cases, you will have more prosecutions, you will have more
convictions, you will have more justice.
The bottom line is simple. The current system oriented around the
chain of command is producing horrible results and has been producing
horrible results for 25 years. The current structure is producing 1
percent of cases that go to trial. That is not good enough. It is not a
system that is deserving of the sacrifice that the men and women in
uniform give to our country every single day.
It is also contrary to the fundamental values of our American justice
system. Our justice system relies on the fact that a decision about
whether to go to trial is never made on bias, it is always made on
facts and evidence. It is not made on whether it is good for the
commander. It is made on whether there are facts and evidence to prove
a serious crime has been committed.
For all those who say this is a radical idea and should wait until
next year, the DOD has an advisory panel that actually has opined for
the past 50 years on the status of women in the military. That panel,
called the DACOWITS--that panel had a vote on these proposals. They
voted in favor overwhelmingly, with no one against. Of the 10 votes
that we have, 9 are former military, 4 are high-ranking generals and
officers. The nonmilitary voice is the head of a women's law center--
knowledgeable individuals who are actually tasked by the Department of
Defense, handpicked by the Department of Defense, to opine on the
status of women in the military. They have voted to support these
measures.
Secretary Hagel has even said he places ``a great premium'' on the
voices of this panel.
I have not come lightly to the conclusion that we need to
fundamentally reform our military justice system in order to strengthen
it, but this is a commonsense proposal. It is not a Democratic idea. It
is not a Republican idea. It is just doing what is right. If you listen
to these survivors, veterans, retired generals, and commanders, they
believe this change is needed. But even our current military commanders
at the Department of Defense do not dispute the problem or the facts or
the reason for the problem. The Commandant of the Marine Corps Gen.
James F. Amos said earlier this year the victims do not report these
cases because ``they don't trust us, they don't trust the chain of
command, they don't trust the leadership.''
We have to restore that trust. If you have too many commanders and
too many command climates with 23,000 unreported cases where that trust
is broken, you are not going to fix it by keeping it with the
commanders. That is the problem. This is a fundamental problem.
Listen to the Chairman of the Joint Chiefs of Staff, General Dempsey,
who said that the military is sometimes ``too forgiving'' in these
cases, admitting bias in the system toward decorated officers.
I firmly believe it is our obligation to restore that trust. Our
fundamental duty as Senators, as Members of Congress, is to provide the
needed oversight and accountability over the armed services. We should
not do what the generals are telling us to do. This is our job.
Every time I meet with a member of the military I am overwhelmingly
grateful for their service, for their sacrifice, for their courage.
They deserve better. They deserve a military justice system that is
consistent with our core, fundamental American values of objectivity,
of truth, of evidence, of fact, and of justice.
I urge my colleagues to support our amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from Missouri.
Mrs. McCASKILL. Mr. President, I ask unanimous consent that any time
spent on quorum calls during this debate on the sexual assault issue be
equally divided between Senator Gillibrand on one side and Senator
Ayotte and Senator McCaskill on the other side.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. McCASKILL. I yield 5 minutes of the time of Senator Ayotte to
the Senator from Missouri, Mr. Blunt.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. BLUNT. I thank Senator McCaskill, my colleague from Missouri, and
Senator Gillibrand both for the effort, the time, the commitment, the
focus they have made on this issue. They have clearly both been at the
frontlines of changing the underlying bill.
There are two things Senator Gillibrand said that I absolutely agree
with. The underlying bill is strong. It is a step in the right
direction. It is the result of our committee debate, our committee
action. I think I heard the Senator from New York say she was
supporting the McCaskill amendment which adds even additional strength
to that.
I also am supporting that amendment. I think it does make the bill
even stronger. It says the commanders will be evaluated based on this
as one of the factors; that no longer would this just be something if
it happens to come up you talk about it, but the commanders will be
evaluated based on what they did to change the command atmosphere, what
they did to protect people against sexual assault, what they did to
create an atmosphere where these things not only do not happen, but
when they do happen, they are vigorously dealt with and looked to as
something that has to be dealt with, and the commander should be
evaluated in that way.
There is another layer of review in the McCaskill amendment. If the
commander disagrees with something that has happened in this process,
they have to kick that review up another level. The so-called good
soldier defense is no longer a defense. This is about this incident,
this assault, this accusation, and dealt with solely in that way
because of this additional amendment that I think many of us will
support that will be added to what is already a strong underlying bill.
Also, this amendment would allow victims to express a preference,
whether they would have this pursued in a civilian trial or in a
military trial, a court-martial. Those are all good additions. I think
that is why--not only why Senator McCaskill proposed them, but the
Senator from New York and I would be supporting that amendment.
I believe the amendment improves what the committee did. But I think
the committee had a full debate and a long debate and a vigorous debate
on how important it is the commanders be involved. Senator McCaskill,
my colleague from Missouri, has been a leader on this all her time in
the Senate. When she came to the Senate, one of the things in her
background was her work as a county prosecutor and, more specifically,
a prosecutor for sexual assault cases. I have relied on her judgment as
we looked at these issues, and I think her judgment is borne out by so
many things we heard in the committee.

Senator Ayotte will be speaking in support of the McCaskill amendment

[[Page S8303]]

and underlying bill. Senator Fischer, a member of the Armed Services
Committee, will also be part of that debate.
The Armed Services Committee introduced a bill that has the most
comprehensive legislation targeting sexual assault that has ever been
considered by the Congress. We added to that amendment these important
elements of another McCaskill amendment. There are 26 provisions in the
underlying bill which deal with this issue. It was among the most
difficult decisions I think we met, but also one of the most important
decisions we met: the idea that commanders would have responsibility
for the atmosphere they create.
One of the things that was mentioned more than once was the
integration of the Armed Forces. I stand by Senator Truman's desk, one
of our predecessors in this Senate from Missouri. He signed the order
that integrated the Armed Forces. President Eisenhower pursued that
further, but only when the command structure was given absolute
responsibility to deal with what had become a real problem. There were
even race riots on ships, according to Senator McCain, who talked to us
about this issue. It was when the commanders were given the
responsibility to see that this problem was solved that it was solved.
I think this bill, and the additional amendment I will be supporting,
the McCaskill amendment, clarifies in new ways how important it is that
commanders accept this as part of their command responsibility.
The numbers Senator Gillibrand talked about are totally unacceptable.
One of the things commanders will be evaluated on in the future will be
what they did about changing that environment. In my view, taking them
out of the command responsibility in this area makes it less likely,
not more likely, that the atmosphere will change.
I ask unanimous consent for 1 additional minute. Since Senator Ayotte
is not here to object, I will take it from her time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BLUNT. The fact that this is in the bill and further improved, I
believe, by the amendment, clearly says we are going to change the
culture of the military.
Had it not been for the hard work of my colleagues, particularly
Senator McCaskill and Senator Gillibrand, this bill would not be as far
along as it is. Their difference of opinion is not about solving this
problem, because we all believe this problem is going to be solved. I
think we all believe this bill takes a significant and strong step
toward doing that. I feel most Senators will believe the McCaskill
amendment adds another element to the bill.
I am glad the defense committee, the Armed Services Committee, and
now the U.S. Senate, are taking additional steps to solve this problem.
It is a tragedy for every individual in the military, man or woman, who
has been the victim of a sexual assault, reported or not. Whatever we
can do to see that they are reported, minimized, and finally ended is
what ought to happen. I hope this bill does that, and I believe it
does.
I was pleased to be part of bringing this bill to the floor, and I
will be pleased when the McCaskill amendment is added to it today, and
we face a new view of how this issue is dealt with.
I yield the floor.
The PRESIDING OFFICER (Mr. Murphy). The Senator from Missouri.
Mrs. McCASKILL. Mr. President, I thank Senator Blunt for his comments
and appreciate his hard work on the Armed Services Committee as we
tackle an issue that all of us have an emotional commitment to for all
the right reasons.
I thank Senator Gillibrand. We both want fundamental reform. We are
both working as hard as we know how to get it. We have a fundamental
disagreement on how best to obtain that goal, and I would like to go
through some of that disagreement for the next few minutes.
The 26 historic reforms that are in the bill are going to make our
military the most victim-friendly criminal justice system in the world.
In no other system does a victim get their own lawyer. In no other
system will they have the protection, empowerment, and the deference we
are creating for them in this bill.
In my years of experience in handling these cases--hundreds of them
with victims--I would have given anything if that victim had had the
confidence of independent advice. I think it would have made a
tremendous difference in the staggering number of victims who refused
to go forward.
This is the most personally painful moment of anyone's life. Make no
mistake about it, no matter what we do in this Chamber and no matter
what this bill accomplishes, we will never be able to get every victim
to come forward because of the nature of this horrific crime, but we
have to do better.
Like Senator Gillibrand, I have talked to dozens and dozens and
dozens of victims. I have talked to and spent hundreds of hours with
prosecutors--military prosecutors, women and men, veterans, commanders,
active and retired--and just as there is not agreement among all the
women in this Chamber, there is not agreement among all the victims,
there is not agreement among all the veterans, there is not agreement
even among all the commanders, although most women commanders have
acknowledged that even though this sounds seductively simple, it is
much more complicated, and we will be creating more problems than we
will be solving if we make the change as advocated by Senator
Gillibrand.
Let's get at what we are trying to do. We have no disagreement that
there are too many of these crimes and that they are not reported
enough--complete agreement. The goal here is how do we get more
reporting. There is a theory that if we do this--if we take this
decision away from any command at all to go forward, that that will
magically have victims come forward.
Senator Gillibrand talked about our allies. I am grateful we have
their experience because we can look and see what happened. Our allies
have done this, and not in one instance has reporting gone up. We know
this is not the silver bullet because if it were, we would have seen an
increase in reporting in all the countries that have adopted this
system.
The response systems panel was put in place by the Armed Services
Committee to recommend to the Pentagon changes in this area. We know
they have formally acknowledged that our allies--many of whom did this
to protect defendants' rights--have not seen an increase in reporting.
If the theory is that reporting can only go up if we do this, then
why are we seeing a spike in reporting right now? There is a 46-percent
increase of reporting this year over last year. That is because some of
the military are already putting in the reforms we are codifying in the
underlying bill. They are giving victims their own lawyers. They are
ramping up the protection, information, and deference they give
victims. That is the single most important factor, based on all of my
experience, that will dictate whether a victim has the courage to come
out of the shadows, and finally that somehow doing this will stop
retaliation. That unit is still going to know that that crime was
reported.
Keep in mind that currently, and under our reforms, the victim does
not have to report to the chain of command. Right now the victim does
not have to report to the chain of command. Many of my colleagues
didn't realize that a victim has many places they can report this
crime. Under our reforms, they will immediately get a lawyer and have
that level of protection immediately. They will also have the
information that they don't have to report to the chain of command.
I am trying to understand how reporting, investigating, and deciding
half a continent away--a group of lawyers making that decision--stops
retaliation. How does that keep the people in your unit from acting
inappropriately toward you because you have reported a crime? There is
nothing magical about that. In most instances the word will get out.
Let's use our common sense. Say you are back in your unit after
having been assaulted. Which way are you going to have more protection?
Will you have more protection if a group of colonels a half continent
away is looking at the facts of the case or if your commander has
signed off? Of course, if your commander has signed off, because that
sends a message to the unit: We are getting to the bottom of this.

[[Page S8304]]

Probably the most telling fact about this debate is: Is this
happening now? Because at this time outside investigators investigate
these cases, and outside JAGs make recommendations. We have that in our
system now. So the question is: If these outside lawyers are
recommending that we go forward based on their independent
investigation, are commanders shutting them down? Are commanders
saying: We will not go forward? No one can find me a case where that
happened and the prosecutors said: We need to go and the commanders
said no.
On the other hand, over the last 2 years, there have been 93 separate
times the outside lawyer said: You know, this case is too weak, this
case doesn't have enough facts--93 times. You know what happened in
every one of those cases? The commander said: We are going to get to
the bottom of it. So almost 100 victims over the last 2 years would not
have had their day in court under Senator Gillibrand's proposal.
In Senator Gillibrand's proposal, when the lawyer says no, it is
over, whereas, in our proposal, if this were to ever happen, even
though we know this is not a problem now, we have review after review
after review. No one is going to be able to turn a victim away from her
day of justice without accountability, checks and balances, and
oversight. There will be a difference in that unit because now
retaliation is a crime and the commander is going to be evaluated on
how they are handling this issue within their command.
There are also practical problems--and some of my colleagues will
come to the floor today and talk about this. There are a number of
implementation issues that I don't think have been thought through, and
this is the real world here. We are talking about appeals and
challenges. We are talking about not even having enough colonels right
now to staff this. We are talking about risking the ability to get a
speedy trial. We are talking about eliminating the ability to plea
bargain.
Let me tell the Presiding Officer, having handled these cases, I
think people sometimes make the assumption that a plea bargain is about
copping out, it is about not protecting the victim. Talk about stories
of victims, I can tell story after story of real people whom I dealt
with who came forward and said: Yes, I think I can do this.
I will never forget this one woman who came to me and said: My mental
health counselor said that testifying in court will set me back so far
I can't do it, but can you get something on him? In those instances, do
you think that defense lawyer is going to plead to a sexual offense or
even a serious offense? But many times we were able to get something on
him so the next time, if it happened, we at least had a better shot.
Many times plea bargains are dictated by victims. Military prosecutors
are telling me this, that it will really limit their ability and create
serious due process concern.
In her proposal, this outside lawyer picks everybody--picks the
defense lawyer, picks the jury, and picks the prosecutor. How is that
going to stand up to a due process claim? It is not clear who picks the
judge. That is left silent. I don't know who picks the judge. It is not
clear. That is another question: Who is going to decide who is going to
actually pick the judge?

It eliminates the option of nonjudicial punishment. Take the case of
the Air Force airman who was just recently tried in civilian courts. He
was initially charged with a sexual offense. It was reduced to a simple
assault. If that had been within the military, they couldn't have done
that because it wasn't a serious offense so it goes back over to the
convening authority within the command and then that soldier knows they
are not going to do a trial--they can't--and all he has to do is turn
down nonjudicial punishment.
Some of these difficulties will be explored in more detail, as I say,
throughout the day.
Here is the one I don't understand. If a person believes deeply in
the policy he or she is advocating, why in the world would that person
then proactively limit the ability to resource it? In the language of
the Gillibrand amendment, it actually says there shall be no funds
authorized for this, no personnel billets authorized for this. The
military has estimated over $100 million a year just in personnel costs
because they have to create a completely different system outside the
system they currently have, which will still be operative for some
offenses that are related to the military and that are low-level
offenses. But we have to have a whole new system for arson, robbery,
theft, murder, and for sexual assault. Yet she proactively in her
amendment says we can't resource it. That is truly one that makes me
scratch my head.
There are a lot of problems surrounding this amendment, but let me
emphasize our goals are the same and our motives are pure. We believe--
and we believe this is borne out by the data--we will have more
prosecutions because it will be very easy for lawyers who are a long
way away--overworked, underresourced--to say: This is a consent case.
It is a little messy. Everybody was drunk. Let that one go, and then it
is over.
Let me briefly talk about what we have in our amendment because it is
also very important, once again empowering victims further. In our
amendment we are going to allow victims to formally weigh in, whether
they would prefer, if there is concurrent jurisdiction, for the
civilian authorities to handle the case in addition or whether they
would rather the military authorities handle the case. It strengthens
the role of the prosecutor because it provides another layer of review
over the prosecutor's decisions. It increases the accountability of
commanders making this evaluation on their forms and adding that other
layer of review. It eliminates the good soldier defense. It is
irrelevant whether someone is a good pilot if they have sodomized or
raped someone in the military, and our amendment will make it
irrelevant and inadmissible.
I thank the Presiding Officer for the time. I know we have others who
want to visit on this, and I will be happy to be back later in the day
to talk specifically about some of the other issues in this bill.
I do not see anyone else here right now, so I suggest the absence of
a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from New York.
Mrs. GILLIBRAND. Mr. President, I ask unanimous consent that the
order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. GILLIBRAND. Mr. President, as we wait for our colleagues to join
the floor so they can have their floor time, I wish to address a few of
my colleague's concerns.
Some of the technical concerns she raised--we actually took some of
those concerns and revised them in the bill that has actually been
presented, so some of those concerns have been actually fully
addressed.
For example, as to her concern about the convening authority, the
disposition authority, our bill is very specific. The disposition
authority is the decisionmaking authority. That goes to the trained
military legal prosecutor, the JAG counsel, so they actually get to
make the decision about whether to proceed to trial on the evidence.
The convening authority, which is a different right, a different
duty, is left intact as it is. So the convening authority still will
decide judges, juries, and all the details of what the court and the
trial will look like. It is two separate authorities in two separate
places. That has been clarified in the bill so there is no concern
there.
One other concern my colleague raised is this issue of nonjudicial
punishment. Our bill is very specific. We exclude 37 specific crimes,
including all article 15 crimes, all of the crimes that one would be
using nonjudicial punishment to enforce. If the disposition authority
decides they do not want to prosecute the case because they don't have
enough evidence to go forward, it goes directly back to the commander
to use the benefit of the nonjudicial punishment to do whatever kind of
punishment he or she thinks is appropriate.
So those are just two technical issues my colleague raised that I
think are very important to clarify.
Then the third issue Senator McCaskill raised that I think is a
misunderstanding of the bill is about this world away problem. Today,
in our bill, compared to the current system, the reporting is the same.
One can report

[[Page S8305]]

anywhere. One can report to a chaplain or to a friend or to a nurse or
to a doctor. One can report anywhere. That is not changing. The
reporting is exactly the same.
What also is exactly the same is the investigation. So once a person
does report, whether to a chaplain or to a commander, investigators
will be sent to investigate the case, whether in Iraq or Afghanistan or
Germany or anywhere. That stays exactly the same. So it doesn't matter,
this world away, because the investigators go to the person. It is not
a different set of investigators; it is the exact same set of
investigators, and the commanders are still responsible to make sure
the investigators do their job. So the commander has to be protecting
the victim and has to be making sure the unit is not retaliating. He
has to make sure the investigator has access to the evidence, and he
has to make sure the command climate stays strong with good order and
discipline. That never changes. Those commanders are always responsible
for good order and discipline and command climate.
The only difference under this bill is after the investigation is
completed and there is a file--a file of evidence--it doesn't go sit on
an 06 commander's desk. An 06 commander is colonel and above, so quite
a senior commander. He may not even be in Afghanistan or Germany or
exactly where that crime has occurred. The 06 commander will look at
the file and decide: Has a crime been committed and is there enough
evidence to go forward?
Instead of that commander making that decision, this bill proposes
that it will be a trained military prosecutor, so it doesn't matter
what desk the file goes on. What does matter is whether the person
whose desk that file goes on is objective. What matters is that person
is actually trained, understands the law, understands the nature of the
crime, can weigh the evidence and make a decision based on the
evidence, not whether he likes the victim or values or doesn't value
the perpetrator. Those biases are what is affecting the system
negatively today.
So that is why the world away is not a concern, because the
investigation proceeds exactly as it always did. The only difference is
on whose desk it goes to make the ultimate legal decision.
Then, lastly, back to this issue of whether commanders are being held
accountable. Commanders are held accountable. We actually have it in
the underlying bill. Not only is retaliation now a crime, but they will
be measured, as Senator Blunt said, on whether their command climate is
strong. Is the command climate strong enough to make sure these rapes
aren't happening? Is your command climate strong enough to make sure
retaliation of a victim doesn't happen? Is the command climate strong
enough to make sure victims believe justice is possible?
So they will be evaluated and commanders will be held accountable.
I don't think it is appropriate to hold a commander accountable based
on whether he weighs the evidence properly. That is a legal judgment.
It is not based on whether a person is tough or not tough on these
rapes. It is based on whether there is enough evidence to show that a
crime has been committed. It should be a technical, legal decision, not
a decision based on how tough one is on crime. That is not the
measurable. It is just not the measurable.
So commanders are going to be held accountable for their command
climate, for good order and discipline. Whether they make a legal
decision up at the colonel level is not determinative as to whether
they have done their job. The commanders who are getting the
opportunity to make those legal decisions today, they are not doing a
bad job. Of those 3,000 cases reported, 1 in 10 went to trial. That is
not a terrible ratio. The ones they do choose to move forward, there is
a 95-percent conviction rate.
Yes, I agree in those 100 cases, where the commander said move
forward, the conviction rates weren't as high. Some of those cases had
convictions and some did not, and those are excellent opportunities for
the victims to be heard. But we don't want just 100 more cases going
forward; we want tens of thousands of cases to be reported so they have
a chance to go forward. It is the difference of thousands, and that is
why I feel this reform is so necessary. Still, in light of all of the
amazing reforms in the underlying bill, I think it is necessary because
that crisis of confidence is so raw, is so real, is so present.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. KAINE. Mr. President, I rise to speak about the NDAA which is
currently on the floor. I wish to address a couple of issues. One I am
passionate about is the veterans unemployment rate and how it is dealt
with in the NDAA, another is shipbuilding, another is the critical
issue of sexual assault and misconduct and, finally, sequester.
Before I begin, let me talk about how important this bill is. This is
a bill the Senate has passed every year for over 50 years. We pass it
every year, even if we can't pass a budget, even if we can't do other
things, because it is so critical to show those who serve in the
military that we are behind them. I have heard some indications, even
within the last 24 hours, that because of so many amendments that might
be possible on this bill, would that call into question whether we
would be able to keep our streak going. If we have to be here Christmas
Day, we need to be on the floor Christmas Day to make sure we pass this
bill before the end of the year. It is that important. It is the most
important bill that comes before this body, and we need to do
everything we can to guarantee the certainty to those who serve.
In Virginia, we are so connected to Active-Duty service and to our
veterans. My wife and I are a Blue Star Family. This is very important
and we have to make sure we pass this bill.
Let me start with a personnel issue that matters a lot to me, which
is the veterans unemployment rate. Right now it is unacceptable that
veterans, especially enlisted, who have served in Iraq and Afghanistan
have an unemployment rate that is higher than the national average.
A report that was issued last week by the Bureau of Labor Statistics
states that the unemployment rate for veterans who have served since 9/
11 remains around 10 percent, which is higher than nonveterans of the
same age. Ten percent represents 246,000 individual veterans of that
era who want to work but don't have it.
That is why I introduced as my first legislation in April the Troop
Talent Act of 2013. A companion bill in the House was introduced by
Representative Tammy Duckworth. The bills have been incorporated into
the NDAAs in both Armed Services Committees. They are now on the floor
and virtually identical.
The bill represents a strategy to deal with our veterans unemployment
rate by making sure Active-Duty military receive civilian credentials
for the skills they obtain in the military at the moment they obtain
them.
The bill has a number of provisions. My colleagues on the Armed
Services Committee were good enough to include them in the underlying
bill. This bill will help us deal with the veterans unemployment rate,
and that is one of the reasons I so much wanted to get to it and am so
strongly supportive.
Second is shipbuilding. The Presiding Officer and I both have a real
interest in this topic, as all Americans do. It is an area of great
importance to the State. In Virginia we manufacture the largest items
on the planet Earth, which is the nuclear aircraft carrier, at the
Huntington Ingalls Shipyard in Newport News.
As the Defense Department reorients, resources its strategy toward
Asia, we have to find the Navy bearing more and more of the operational
burden of our military in that policy shift, and we have to continue to
provide the Navy with adequate resources and funding through this
provision to support that shift and to support shipbuilding.
Unfortunately, sequestration--and I will finish with sequestration in
a minute--poses grave dangers. So we need to do what we can to maintain
this priority for shipbuilding. Right now the sequester has reduced our
normal level of three carrier strikers and three amphibious ready
groups, which weakens our readiness to deal with challenges in a very
challenging world. We have to maintain the priorities mandated and the
NDAA does that and that is one of the reasons I support it.
Regarding the issue of sexual misconduct, 2014 is going to be
remembered as a potentially historic year for

[[Page S8306]]

a good reason in the military. I wish to make sure history is good and
is not clouded by our continued inability to grab onto and reduce the
issue of sexual misconduct.
Earlier this year, I know Members of this body were very happy when
Secretary Hagel and the military leadership embraced the proposition
that women should be able to serve in the military without being barred
by gender from any military specialty, that military specialties could
have rigorous physical or training criteria, but that both men and
women should be able to compete to serve in any military specialty,
even combat-related specialties.

We will be remembered--2014 will be remembered--for that. But that
memory will fade by comparison if what we are really remembered for is
we missed an opportunity, an important opportunity, to tackle the
important issue of sexual assault.
I congratulate Senators Gillibrand and McCaskill for all the great
work they have done to bring this to the attention of the body and to
look the military in the eye and say: This has to stop.
They have said it would stop over and over for 20 years, and it has
not. This has to be the moment when it stops, and these Senators,
working together with us on the Armed Services Committee, have put
together a sizeable package of reforms that I am confident will help
this time be different.
I also thank the brave victims who testified. I went to every hearing
in the Senate on the sexual assault issue. Senator Gillibrand had a
Personnel Subcommittee hearing. I was there for that entire hearing.
Senator Levin had a hearing in Armed Services. I was there for nearly
that entire full-day hearing. Committee markups in the Subcommittee on
Personnel and the full committee--I have been to all the meetings.
I have heard these victims testify. How brave they are as survivors
to come forward and testify. I also thank survivors in Virginia who
have come and shared their stories with me personally so I could
grapple with what is the right mix. These survivors have done a
wonderful job in making sure we address this issue.
I tackled the issue of sexual assault in a way when I was Governor.
We were treating victims of sexual assault in the civil justice system
poorly in Virginia. We were not unique in that, but there was no excuse
for it.
So I impaneled a group of advocates and survivors to look at Virginia
law and tell us what we needed to change if we were going to try to
deal with this scourge. One of the problems with sexual assault is--
together with domestic violence--it is often a very underreported
crime.
If somebody breaks into my apartment, I do not hesitate to call the
police and say: There has been a break-in. If somebody bashes my car
windshield in, I do not hesitate to call in and say: Look, a crime has
been committed.
But crimes of sexual assault and crimes of domestic violence--and
there tends to be on overlap, not completely but there is an overlap--
are crimes where there is underreporting, in both civilian and
military, and on college campuses. So one of the most important aspects
in any reform is to create an environment where people feel they can
come forward with a complaint, when they have one.
The statistics are well known. They have just been cited on the
floor. By a statistical sampling, it has been estimated there have been
26,000 instances of unwanted sexual conduct, of sexual assaults in the
military, and only 3,000 have been reported. We have to make sure these
reforms we are about to embrace help us deal with this reporting issue
so people feel a sense of comfort.
What we realized in tackling these issues in Virginia is that for
people to feel comfortable with reporting sexual assaults, they have to
have time. You cannot make them make the decision about reporting in an
instant. There is often a psychological component about deciding what
to do. There needs to be privacy and discretion and confidence, and
there also needs to be advice and resources. People need to know: what
are the avenues they have. What are the legal procedures, how do they
look, and what are their rights if they decide to pursue a complaint.
I support the ongoing bill that is on the floor, and I will support
some other proposals that are out. The McCaskill-Ayotte proposal I will
support. I support the reform for a number of reasons. It affects the
training and evaluation of military personnel. It affects the way
sexual assault allegations are investigated, the way they are
prosecuted, and the way they are punished. It protects witnesses.
An amendment Senator Warner and I got into the bill--and we will be
adding to it on the floor--protects whistleblowers who blow the whistle
on an unfortunate or sexually harassing climate.
But the most important part of this bill is what the bill does for
anyone who has been victimized by a crime of sexual assault--to create
a climate where they can come forward and lodge a complaint.
In the military right now there are a number of avenues whereby
somebody who has been victimized by a crime of sexual assault can lodge
a complaint. Unique in this form of crime, there is a restricted
report, where someone can come forward and report confidentially. That
is very, very important.
But this bill adds to it what I think is the core of driving up
reporting, which is salutary. It adds to it, also, something that would
be unique in the military. It would exist for no other crime category,
no other offense category. If someone complains of a sexual assault,
they will be assigned a special victims' counsel, whose job it is to
have their back, to hear the painful story, to share the various
reporting mechanisms, counseling resources that are available, how the
crime might be prosecuted. At every step along the way, as that victim
is becoming a survivor and dealing with the challenge, that special
victims' counsel will be there to help them make decisions and give
them the backup and support they need.
This is based on a pilot project in the Air Force, a pilot project in
the Air Force that is working. What we are finding, based on this pilot
project in the Air Force, is even when people file complaints in a
restricted, confidential way--they come in and say: I want to file a
complaint, but I don't want to go against the perpetrator because I
don't want people to know; I just want help--after they get a special
victims' advocate and learn about the proceedings and learn about the
protections, and they build up a bond with somebody who has their back,
they are very likely to say: You know what, now I have the confidence
to actually file my complaint publicly and take on the perpetrator--who
needs to be taken on, who needs to be drummed out of the military if
they committed a sexual assault.
So I believe the core of getting this right is about giving victims
an avenue where they can have the time, they can have the advice, they
can have the privacy and discretion to understand what their options
are and then make a decision and go forward.
I think if we pass this bill with that special victims' counsel this
will be the single best thing we will be able to do to tackle the crime
of sexual assault.
Let me conclude by saying a word about sequestration.
A word that none of us knew before the beginning of 2013 has been
spoken so many times on the floor of this body. No one intended for
sequestration to happen when the votes were cast in the summer of 2011.
Everyone was told across the board: Nonstrategic cuts to health care,
domestic accounts, and to defense would be harmful to us. We have seen
the harm that sequestration is doing to our Nation's military at a time
when our military is getting more and more dangerous.
Indiscriminate across-the-board cuts are not only hurting all kinds
of military priorities, they are also sending the signal to young men
and women who are thinking about military careers or who are in the
military and deciding how long they want their careers to be--they are
sending them a signal that Congress does not value what they do.
We need to show the men and women of the military we value what they
do. We need to show them by getting an NDAA bill done this year. We
need to show them by ending sequestration. Will there be savings we can
find in our defense spending? Of course. We ought to be looking at
every item of government to determine whether we can do

[[Page S8307]]

better and save money. But this across-the-board sequester that is
grounding air combat wings, that is grounding carrier units, that is
making us less able to confront a more challenging world, is not
behavior befitting of the greatness of this Nation.
I am a budget conferee right now, working on a budget deal. We are
under a Senate- and House-imposed deadline to try to find that deal by
December 13 so the appropriators can work on a budget. We will work
diligently on that. I have an optimistic sense about finding a budget
deal that enables us to replace this foolish sequester with a more
strategic approach that will not hurt our military.
Mr. President, I thank you for the time and I now yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. BLUMENTHAL. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BLUMENTHAL. Mr. President, I want to, first of all, thank the
chairman of the Armed Services Committee and the ranking member,
Senator Levin and Senator Inhofe, for the leadership they have provided
to this body and to our Nation in fashioning a bill, the National
Defense Authorization Act for Fiscal Year 2014, that truly serves our
national security and preserves and enhances our national defense.
I want to thank my colleague Senator McCaskill for the leadership she
has provided, along with others, such as Senator Reed and Senator
Gillibrand, all who have focused on the issues that are raised by the
Military Justice Improvement Act--the need to reform and strengthen our
system of prosecuting and providing justice to the survivors of sexual
assault.
I have joined with Senator Gillibrand in supporting the Military
Justice Improvement Act because I think it embodies the kind of major
reform that is necessary to provide enhanced confidence and trust in
this system of military justice--major change that is needed to drive
out the scourge of military sexual assault from our Armed Forces and
provide the men and women of our military--the strongest and best
military in the world now and in the history of the United States--with
a system of military justice that matches their excellence.
The legislation before us, the National Defense Authorization Act for
Fiscal Year 2014, provides much-needed equipment and training needed by
our warfighters. It keeps us dominant across the globe and all of the
domains that are necessary for our national defense. It authorizes two
new attack submarines for the coming fiscal year, and it keeps us on
track for developing the next generation of ballistic missile
submarines. These weapon systems, these weapon platforms, and all that
is contained in this act, are vitally important for the defense of our
Nation. The debate about the Military Justice Improvement Act should in
no way distract us from that mission to maintain and enhance the
defense of the United States.
This bill enables the Air Force to move forward with a new combat
rescue helicopter that will take injured airmen and others to safety.
In June I wrote with five of my colleagues to Gen. Mark Welsh, the Air
Force Chief of Staff, to support the Air Force in its efforts to
replace the current fleet of HH-60G Pave Hawks with helicopters that
can carry more and go further, all the while keeping the fuel
efficiency and value that the H-60 aircraft provides. This legislation
keeps our progress underway in the development and fielding of the
Joint Strike Fighter that will assure that our Air Force, Navy, and
Marines are ready to respond.
This bill has so many critical and valuable elements that should be
at the forefront of this debate and evoke appreciation for Senator
Levin and Senator Inhofe and the work done by my colleagues on the
Armed Services Committee. So I am proud to support this bill. At the
same time, Congress has a responsibility to transform the time-worn
slogan of ``zero tolerance for military sexual assault'' into a real
plan and strategy that will achieve that goal.
For years and years the military has promised zero tolerance toward
sexual assault. Yet the actual achievement has fallen short. That is
why reporting has been so low and why the crime of military sexual
assault is not only underreported but underprosecuted.
The goal of the Military Justice Improvement Act is to improve
reporting because without reporting there cannot be investigating and
there cannot be prosecution, which means there can be no punishment and
no prevention and protection.
Those are the goals of this major reform: better reporting and
enhanced prosecution to deter this horrific crime, and to make sure
that victims are better protected and the crime itself prevented.
This bill requires the Secretary of Defense to afford rights to
victims of crimes prosecuted under the Uniform Code of Military
Justice, such as protections from unreasonable delay and the right to
be heard. This bill gives those protections even without the Military
Justice Improvement Act. It also obligates the Secretary of Defense to
ensure these rights are enforceable and affords every victim a special
victim's counsel--again, measures on which there is consensus provided
in the bill right now.
I am pleased that in response to my request to the defense
appropriations committee, when this provision is authorized in this
legislation, there will be $25 million appropriated to stand up this
program systemwide and defensewide.
So the legislation before us has many good things even without the
Military Justice Improvement Act. I am proud of the reforms that are
accomplished in this bill on which we agree. Where we disagree is on
the proposal to take prosecutorial decisions out of the chain of
command. That is a narrower change that many people appreciate because
the rest of the system, which is required for the present command and
control authority, would be essentially maintained. What is taken out
of the chain of command is simply the prosecutorial decision so that an
experienced, trained, objective professional can make those decisions.
I really believe this measure, if adopted, as I hope it will be, will
lead the military at some point--those commanders who may resist it
now--to actually thank the Senate and the Congress for taking these
decisions out of their hands so that they can focus on the incredible
challenges of military readiness and preparedness, so they can do what
they are trained to do, which is to train their men and women and
maintain and enhance their readiness so that they can do professionally
what is their prime mission, which is to fight wars and defend our
Nation.
These decisions about prosecuting sexual assault cases can be better
made by trained, experienced prosecutors who have the expertise in
their field that our military commanders have in their field. I think
it will serve the entire interests of our military to make sure that
these decisions are made by those military professionals in JAG
offices, just as they are trained in other areas of expertise that
require that kind of training.
I am listening to the voices of the victims as to what will enhance
their reporting and eliminate their fear of reprisal and retaliation.
On Monday I was joined by four survivors of military sexual assault to
discuss the need for reforming military justice. I wish to express my
appreciation for Army SST Sandra Lee, Army SGT Cheryl E. Berg, Air
Force SSgt Pattie Dumin, and Marine Corps Cpl Maureen Friedly. Each
demonstrated that day that their shared experiences of military justice
warrant the reforms contained in the Military Justice Improvement Act.
I would like to share just one--Marine Corps Cpl Maureen Friedly, who
was sexually assaulted by a fellow marine in 2006 while attending the
Navy School of Music. She pressed charges against her attacker and
requested an unrestricted investigation. I will now read her words into
the Record:

I went to an NCIS investigator who questioned me about the
day I was attacked and, after hearing my testimony, told me
that I would have to take a lie detector test to insure I was
not filing falsely. I agreed to it but was never asked
anything by my investigator again. My chain of command made
it very clear that they preferred my attacker,

[[Page S8308]]

who was a platoon leader, over me and supported him through
everything. When I graduated from the school and went to my
duty station in San Diego, CA, my new chain of command tried
to help me find out what had happened to my case as I had not
heard about it for several months. A few weeks passed before
we found that my paperwork had been mishandled, and I was
told that nothing could be done and my attacker would go out
to the fleet.
Eventually it was found that he had sexually assaulted
several other women and he was administratively separated
from the Corps, not charged, and not given a dishonorable
discharge.

Her remarks say more than I ever could about the need for enacting
the Military Justice Improvement Act. The reforms contained in the
measure already are a vitally important step in the right direction.
Taking these decisions out of the chain of command is important to good
order and discipline because eliminating the crime of sexual assault
and providing for greater reporting is vital to good order and
discipline. Our experience shows that it has worked when our allies
implemented it. Whatever the claims about numbers of cases reported in
those allies' armies, clearly they are satisfied with the way it has
worked there.
Finally, let me just say that I appreciate the bipartisan efforts on
this bill on both sides. I think that eventually we will see this kind
of reform. Whether or not it is approved today, history is moving in
this direction, demanded and driven by the brave men and women who have
suffered from this crime, the survivors and victims whose voices we
have heard, and the commanders and veterans who have come forward to
us, all of the major veterans organizations that have made their voice
heard to us and who wholeheartedly have said: This kind of reform is
necessary to vindicate and support the brave men and women who put
their lives on the line for our Nation day in and day out, whose
excellence should be matched by a military justice system that truly
and really looks for zero tolerance and achieves zero tolerance in
sexual assault.
I yield the floor.
The PRESIDING OFFICER (Ms. Baldwin.) The Senator from Oregon.
Mr. WYDEN. Madam President, before he yields the floor, I wish to
commend my colleague from Connecticut in terms particularly--and I am
going to go into some of the history with respect to this so-called
zero tolerance policy because I think when we look back over history,
there is a very big gap between the past pledges of zero tolerance for
sexual assault and the realities of what we have seen. That is one of
the key points the Senator from Connecticut has made, among many
others. I thank him for it. It was a very valuable presentation.
I also commend the Presiding Officer for her extraordinary work.
Again and again, she has outlined what I think is very constructive;
that is, the areas where there is common ground here, common ground to
try to address an issue that I just went through with Senator
Blumenthal. We have heard past pledges about it, and it has not really
come to be. The Presiding Officer has done very fine work. Senator
Gillibrand, Senator McCaskill, Senator Ayotte, I know the best, but a
whole host of Senators have been interested in this issue. I also see
my friend from Rhode Island Senator Reed. He and Senator Levin have
been very interested in this issue over the years. So there has been
plenty of good work. I think the question now really is: How are we
going to make a fundamental break from policies that over the last
couple of decades simply have not worked?
Go back to the Tailhook scandal. That was in 1991. Over the course of
a 4-day conference in Las Vegas, more than 100 Naval and Marine Corps
aviation officers sexually assaulted 90 victims. We watched the
Secretary of the Navy resign after Tailhook. His replacement said that
``sexual harassment will not be tolerated'' and that ``those who do not
get the message will be driven from our ranks.''
Then there was the Aberdeen debacle 5 years later. Five years after
we were told this would not be tolerated, 5 years later, we had the
Aberdeen debacle. Army Secretary Togo West delivered remarks to the
Senate Armed Services Committee titled ``There's a Problem, And We Mean
To Fix It.''
Once again, years go by, and we have another such problem. That was
the 2003 scandal at the Air Force Academy where 19 percent of women
cadets reported having been sexually assaulted and 7 percent reported
having been the victim of a rape or attempted rape. The Air Force
Secretary told Congress, ``We will not tolerate in our Air Force, nor
in our Academy, those who sexually assault others; those who would fail
to act to prevent assaults.''
So, again, we heard--and certainly I am not here to doubt the
sincerity of those who made those comments, but yet the pattern
continues. We have a horrible set of sexual assaults, not just one but
multiple ones. We have these pledges for zero tolerance. Yet we have
one event after another. After the 2003 scandal, there were again the
pledges of zero tolerance. We had the Joint Base San Antonio-Lackland
scandal where some 30 training instructors were accused of offenses
ranging from improper relationships with trainees to sexual assault and
rape. In response, the Secretary of Defense said--as did many of his
predecessors in the military--``the command structure from the chairman
on down have made very clear to the leadership in this department that
this is intolerable and it has to be dealt with. We have absolutely no
tolerance for any form of sexual assault.''
So the pattern through all of these instances is ``zero tolerance. We
will fix this.'' These comments--as I say, I do not question the
sincerity of those who made them. These were officials in the military
who served their country with great distinction and great valor. But
the bottom line is the bottom line: When they said there would be zero
tolerance, somehow those policies did not actually work as it related
to real life for those who wear the uniform of the United States.
Today the military officer in charge of sexual abuse education at
Fort Hood is under investigation for running a prostitution ring. Two
Navy football players await trial in a military court on charges of
sexual assault. Today a West Point sergeant stands accused of secretly
videotaping female cadets in the shower. So it seems to me that because
of the good work of so many here--I cited the Presiding Officer;
Senator Reed, who is managing the bill at this point; Senator
Gillibrand; Senator McCaskill--I believe we are now in a position to
finally make some significant changes and turn these past pledges of
zero tolerance into a new reality that really ensures that those who
wear the uniform of the United States do have a new measure of
protection from sexual assault.
In effect, this is a new zero tolerance policy, a new policy that
says: Zero tolerance for promises that go unfulfilled. Zero tolerance
for a culture in which these assaults are treated as something less
than the violent crimes they are. Zero tolerance for a system that
continues to fail so many victims.

The Pentagon estimates that in 2012 some 26,000 servicemembers
experienced sexual assault. Some, I know, have looked at this issue as
sort of a glorified hazing matter, boys being boys, a discipline issue.
Senator Fischer, one of our colleagues who has come to the Senate
most recently, has been correct to point out this is not a gender
issue, this is a violence issue. It is a violence issue because sexual
assault is called assault for a reason. It is assault. We are talking
about a violent crime that involves control and domination.
I think it is also worth noting that somewhere in the vicinity of
close to half of military assault victims are men. In fact, the
Department of Defense estimates that 14,000 of those 26,000 victims
last year were men.
Colleagues are waiting to speak, and I would simply wrap up by way of
saying that I think the bill, the committee bill, takes some
constructive steps in the right direction. I wish to see it go further.
It is why I joined a bipartisan group of colleagues to support Senator
Gillibrand's legislation that would remove the decision to prosecute
from the chain of command and give it to experienced, impartial
military lawyers.
Suffice it to say we are going to have to come to grips, colleagues,
with this question of assault--and particularly sexual assault--in a
variety of forums.
This is not the place to discuss it, but yesterday Senator Cornyn, I,
and Senator Klobuchar introduced a fresh approach to dealing with sex
trafficking,

[[Page S8309]]

which is also sexual assault. There will be an opportunity to discuss
that bipartisan bill in the future.
This is the time. This is the time to close the gap between all of
those unfulfilled promises about how there will be zero tolerance for
sexual assault and a new reality that affords a new measure of
protection from sexual assault for those who wear the uniform of the
United States. This is the opportunity we have in the Senate today and
the opportunity we have to achieve that goal in a bipartisan manner.
I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. REED. When sexual abuse occurs in a military unit or when a
servicemember is a victim or a perpetrator of sexual abuse, we have
failed.
Certainly the military has failed, but Congress with its
constitutional mandate to ``make rules for the government and
regulation of the land and naval forces'' and to ``provide for . . .
disciplining the militia'' shares in that failure.
This is why the efforts of Senator McCaskill, Senator Gillibrand, and
indeed all of my colleagues are so important and so commendable. They
have elevated this debate and challenged this Congress and our military
to act. They have recognized, through their passionate advocacy, that
sexual abuse not only is a violation of an individual, but it is a
corrosive force that can undermine the trust that is essential for the
functioning of any military unit.
The essence of military service is selfless service in which every
soldier, sailor, marine, and airman must be prepared to give his or her
life for a comrade. Sexual abuse is the antithesis of that ethic. It
represents predatory behavior and exploitation, not selfless sacrifice
and protection of those you serve with. It has no place in the
military, and if not eliminated, it will insidiously destroy our
military. No technology, no amount of military resources can assure
military success if courage and character fail. Sexual abuse is a
cowardly act that betrays the ethic and character of the military.
I believe we are united on this point. This debate is about
preventing sexual abuse, a shared goal of every Member of the Senate,
of Congress, of the military, and of this Nation. The question is how
best to achieve this essential goal.
I believe it requires leadership at every stage: recruitment,
training, evaluation, promotion, retention, and punishment. I believe
commanders must be involved in every step. They must be responsible and
their subordinates must recognize this responsibility and their
authority. To remove the commander from any of these responsibilities
will, in my view, weaken his or her effectiveness in every one of these
dimensions.
I had the privilege of commanding a company of paratroopers in the
82nd Airborne Division. I was responsible directly for nonjudicial
company-grade punishment under the Uniform Code of Military Justice.
But it was clear to me and to my troops that the battalion and brigade
commanders and the division commander had court-martial authority and
would necessarily confer with their subordinate commanders in the
execution of this authority. This reality, this authority, permeated
everything we did and reinforced the policy orders of every commander,
including myself.
I will admit that my experience is decades old, and it preceded the
integration of women into combat units such as an airborne infantry
battalion, but the central role of the commander has not diminished.
Moreover, the experiences of the sixties and the seventies also reveal
a military struggling with serious and corrosive problems, principally
racial integration and drug use. Congress ultimately dealt with these
problems, not by bypassing commanders but by holding them, and through
them every member of the Armed Forces, to a higher standard.
Today the American military is the first institution anyone points to
when noting the progress we have made in racial equality and
opportunity. This was not always the case.

Incidents with racial overtones plagued the Vietnam period
[and the post-Vietnam era.] Among the most widely publicized
were a race riot among prisoners in a stockade in Vietnam in
1968 and several incidents aboard naval vessels in the early
1970s.

In one of these incidents in 1972 on the carrier Kitty Hawk, there
was a 15-hour melee between Black and White sailors. Effectively, that
carrier, that ship--a capital ship of the Navy--was absolutely
ineffectual. They weren't prepared to fight the enemy, they were
fighting each other.

In May of 1971, there were 4 days of rioting at Travis Air Force Base
in California ignited by racial incidents on the base; over 100
individuals were arrested and more than 30 Air Force personnel were
treated for riot-related injuries. The Marine Corps saw serious racial
clashes at Camp Lejeune, NC, and Kaneohe Naval Air Station in Honolulu.
In the Army, especially in Germany, there were frequent racial clashes.
In December of 1970, a special investigating team reported to
President Nixon on the situation in Europe and declared that black
troops were experiencing ``acute frustration'' and ``volatile anger''
because of their treatment.
Interestingly, this report cited as a major cause of this frustration
``the failure in too many instances of command leadership to exercise
the authority and responsibility in monitoring the equal opportunity
provisions that were already a part of military regulations. . . . ''
The military has made significant progress on racial opportunity. I
am sure more can and should be done, but the progress to date has been
driven principally by command leadership at every stage, including the
enforcement of the Uniform Code of Military Justice.
The point was made by Charles Moskos and John Sibley Butler, two of
the utmost authorities on race relations in the military. In 1996 they
wrote:

Perhaps surprisingly, no Army regulation deals solely with
race relations or equal opportunity. Instead, these issues
fall under Army Regulation (AR) 600-20, whose broad concern
is ``Army Command Policy.'' This title is more than symbolic.
The Army treats good race relations as a means to readiness
and combat effectiveness--not as an end in itself. This is
the foundation for the Army's way of overcoming race. Racial
concerns are broadened into a general leadership
responsibility, and commanders are held accountable for race
relations on their watch.

Once again, the emphasis is on commanders, not specialized legal
procedures that bypass commanders. My best judgment is we will make the
most progress addressing the issue of sexual abuse by holding
commanders accountable, not by excluding them from a critical aspect of
military life.
Under the leadership of Senator Levin and Senator Inhofe, the Armed
Services Committee made significant changes to provisions regarding
sexual abuse in the military. Moreover Senators McCaskill, Ayotte, and
Fischer will make additional changes in their proposed amendment that
will further strengthen our commitment and ability to respond to the
crisis of sexual abuse in the military. But it is also important to
describe the ongoing efforts by the Department of Defense to deal with
sexual abuse in the military.
I am drawing on testimony of LTG Flora D. Darpino, the Judge Advocate
General of the Army, and she described policies effective in the Army,
but generally there are equivalent procedures in the other services.
The Army began a major effort to combat sexual abuse beginning in
2004 with the creation of the Sexual Assault Prevention and Response
Program, the SAPR Program, and the implementation of restricted
reporting. This allows victims of sexual assault to confidentially
disclose a crime to specifically identified individuals and receive
medical treatment and counseling without triggering the official
investigative process.
This program has evolved into a comprehensive effort ``fielding a
capability of over 11,000 personnel, deployable and available 24 hours
a day,'' to respond to the victims' needs.
Included in the procedures available under the SAPR Program are new
reporting options for the victim, expedited transfers, access to victim
advocates and, most recently, access to victim counsel.
In addition, this program has a significant educational component
that ``saturates Soldier training from the first days of initial entry
training to senior leader forums.'' The training focuses on bystander
intervention and is

[[Page S8310]]

linked to ``Army values that bond Soldiers as a team.'' It reinforces
the military ethic of selfless service over predation and self-
gratification.
``In 2009, the Army recognized the need for improved training and
resources for the prosecution of these crimes.'' Special Victim
Prosecutors were created in the Judge Advocate General's Corps and
sexual assault investigators were created in the Criminal Investigative
Division, CID. Together, these specially trained and experienced
professionals work only special victim cases. They are able to apply
unprecedented expertise. In addition, all JAG prosecutors and defense
counsels have received enhanced training regarding cases of sexual
abuse.
With all of these changes, Lieutenant General Darpino still
identifies the commander as the ``critical'' element. In her words:
``The most critical element of this institutional effort, however, is
the focus of commanders.''
As such, she points out:

The Army, like the other services, has moved aggressively
to hold commanders accountable for setting a command climate
that encourages reporting, deplores conduct that degrades or
harasses individuals, and provides a safe environment, free
of retaliation, for victims after they come forward. To
support this effort, officers and commanders are receiving
enhanced training at every level. Specifically, ``the
officers entrusted with the disposition of sexual assaults,
withheld to the 0-6 (Colonel) Special Court Martial Convening
Authority, are required to attend Senior Legal Orientation
Courses at the Judge Advocate General's Legal Center and
School with a focus on the proper handling of sexual assault
allegations. General officers, who will serve as convening
authorities, are offered one-on-one instruction in legal
responsibilities, again with a focus on sexual assault.''

Most significantly, in my view, and most recently, the Secretary of
the Army, on September 27, 2013, directed that every officer and
noncommissioned officer will be rated on how well he or she ``fostered
a climate of dignity and respect and adhered to the Sexual Harassment/
Assault Response (SHARP) Program.''
Secretary McHugh and General Odierno have made it clear that
commanders and senior leaders are responsible. Their advancement, their
retention, their standing in the Army will rest with an annual,
explicit, written review of their efforts to combat sexual abuse.
I wish to return for a moment to my discussion of the racial
challenges facing the Army while I served. Let me also return to the
comments of Charlie Moskos, the most respected academic authority and
also an Army veteran. In 1986 he wrote:

More important for blacks than the new race relations
curriculum was the revision of the efficiency report, a
performance evaluation that carries a lot of weight in all
promotions. Starting in the early 1970s, a new category
appeared in the official report for officers and NCOs: race
relation skills. Filling out this section was mandatory and
the requirement was rigorously enforced. More blacks
received promotions. Some officers with a poor record on
race were relieved of command. All of this set a tone. If
for only self-interest, Army officers and NCOs became
highly sensitive to the issue of race. Today--

He is talking about 1986.

one is more likely to hear racial jokes in a faculty club
than in an officers' club. And in an officers' club one will
surely see more blacks.

I think we have made great progress, finally, by focusing on the
evaluation and efficiency reports that every officer and NCO must
receive each year.
Now in the context of what the military is doing to combat sexual
assault and in the context of glaring examples of what it is not doing
and what it is failing to do, the Armed Services Committee adopted
provisions that should rapidly and dramatically combat sexual abuse
within the military. The Secretary of Defense has already taken
administrative steps to implement some of these provisions. Senator
McCaskill will offer additional provisions with her amendment that I
wholeheartedly support.
It is important to recognize the comprehensive and critical nature of
these provisions that are already in the National Defense Authorization
Act--from improving measures to prevent sexual assault, to protecting
victims when it does happen, and strengthening the judicial process to
discipline those who commit such heinous crimes.
The bill makes important changes that will improve the prevention of
sexual assaults. First, the bill prohibits the commissioning or
enlistment of individuals convicted of rape, sexual assault, forcible
sodomy, or incest, or attempting to commit these offenses.
Second, the bill requires the Secretary of Defense to report on
whether legislative action is required to modify the UCMJ to prohibit
sexual acts and contacts between military instructors and their
trainees.
The next step is to ensure that all servicemembers understand how
they can and must prevent and respond to incidents of sexual assault.
Each of the services is conducting a variety of training programs on
sexual assault prevention and response. This bill requires the
Secretary of Defense to conduct a comprehensive review of the adequacy
of this training and to then prescribe in regulations such
modifications to address any inadequacies identified by this review.
The bill also requires the Secretary of Defense to review the adequacy
of the training, qualifications, and experience of individuals assigned
to positions responsible for sexual assault prevention and response, to
retrain or reassign any individual who does not have adequate training
or qualifications, and to improve the requirements for selection and
assignment to sexual assault prevention and response billets.
Servicemembers who have been sexually assaulted or raped should have
every resource available to report the incident, to receive care, and
to see that justice is done. In crafting this bill, the committee
acknowledged that many victims do not report such incidents because of
a fear of retaliation from their peers and leaders. So this legislation
includes a provision that makes retaliation against servicemembers for
reporting criminal offenses a punishable offense under the Uniform Code
of Military Justice. This will ensure that both victims and witnesses
to such crimes are able to report the occurrence without facing
retaliatory action or threat of such action. This bill also requires
the DOD inspector general to review and investigate allegations of
retaliatory personnel actions for reporting a rape, sexual assault, or
sexual misconduct.
Next, the bill expands certain existing protections to victims who
are members of the National Guard and Reserves, and members of the
Coast Guard. First, it requires the service secretaries to ensure that
members of the National Guard and Reserves have access to a sexual
assault response coordinator not later than 2 business days following
the request for such assistance. These coordinators explain the
reporting process, address the victim's safety and security needs, and
offer expertise and available services, including medical care,
counseling, and legal support.
Second, it clarifies that an existing requirement for the expedited
change of station or unit transfer requested by a victim of sexual
assault also applies to members of the Coast Guard.
The bill requires the service secretaries to provide a special
victims' counsel to provide legal advice and assistance to
servicemembers who are victims of a sexual assault committed by a
member of the Armed Forces. This resource was initially created by the
Air Force, in a program that began in January of this year. Since the
committee's markup of this bill, Secretary of Defense Hagel has
directed each of the services to implement such a program. This
provision will codify administrative action that has already been
taken.
The bill also authorizes the service secretaries to provide
guidelines to commanders regarding their authority to temporarily
reassign or remove from an assignment a servicemember on active duty
who is accused of committing or attempting to commit a sexual assault
offense, not as a punitive measure but solely for the purpose of
maintaining good order and discipline within the member's unit. In
addition, the bill directs the Secretary of Defense to provide
information and discussion of this authority as part of the required
training for new and prospective commanders at all levels of command.
The bill also makes several changes to further strengthen the
judicial process. First, the bill eliminates the element of the
character and military service of the accused--the so-called good
soldier defense--from the factors a commander should consider in
deciding how to dispose of an offense.

[[Page S8311]]

I should add that Senator McCaskill's amendment further limits the
defendant's use of good military character as evidence.
Second, the bill requires the defense counsel in courts martial to
make requests to interview complaining witnesses through the trial
counsel, and, if requested by the witness, requires that defense
counsel interviews take place in the presence of the trial counsel,
counsel for the witness, or outside counsel. This is to protect against
the abuse of this process.
Next, the bill changes Article 60 of the UCMJ to limit the ability of
a convening authority to modify the findings of a court-martial to
specified sexual offenses. In other words, this provision eliminates a
commander's ability to overturn a jury's conviction for sexual assault,
rape, and other crimes.
Additionally, the bill requires a mandatory minimum sentence of
dismissal or dishonorable discharge of a servicemember convicted of a
sexual assault offense.
The bill also eliminates the 5-year statute of limitations on trial
by court-martial for certain sexually related offenses, and requires
that substantiated complaints of a sexually related offense resulting
in a court-martial conviction, nonjudicial punishment, or
administrative action be noted in the service record of the
servicemember, regardless of the member's grade.
Importantly, the bill maintains and strengthens the role of
commanders in the judicial process. During the markup of this bill, the
committee adopted an amendment on a bipartisan basis that preserves the
ability of commanders to initiate court-martial proceedings. Removing
this authority, which some of our colleagues advocate, would weaken
accountability and undermine efforts to combat sexual assault.
Commanders have the responsibility to train their subordinates, they
are charged with maintaining good order and discipline within their
units, and they are responsible for the safety of the men and women
they lead. The commander is essential to instilling among the members
of his or her unit that sexual assault and related behaviors will not
be tolerated and will be adjudicated.
The bill includes several provisions that address the role of the
commanding officer. First, it requires commanding officers to
immediately refer to the appropriate military criminal investigation
organization reports of sexually related offenses involving
servicemembers in the commander's chain of command. Next, the bill
requires automatic higher level review of any decision by a commander
not to prosecute a sexual assault allegation, with the review going all
the way to the service secretary in any case in which the commander
disagrees with the military lawyer's recommendation to prosecute.
If a legal counsel advises prosecution, and the commander does not do
it, ultimately it will be resolved by the service secretary. Most
commanders do not want their decisions reviewed by the service
secretary. I think this will add more sense and more purpose to their
efforts to combat sexual abuse.
All of these changes take significant steps forward in addressing
these horrible crimes. However, we must remain committed to further
improving both prevention and response. That is why the bill includes
several provisions related to the review that is currently under way by
the independent panel created by last year's Defense authorization
bill--the Response Systems to Adult Sexual Assault Crimes Panel. This
committee is assessing the systems used to investigate, prosecute, and
adjudicate crimes involving sexual assault. The bill we are considering
today assigns additional issues to be considered by this panel and
requires the panel to produce its report no later than 1 year from its
first meeting, which occurred in July, rather than 18 months, as
originally laid out in last year's law.
As I mentioned before, Senators McCaskill, Ayotte, and Fischer are
proposing an amendment that further strengthens all of these provisions
that are already in the committee's bill. First, their amendment
requires the special victims' counsels to advise victims of the
advantages and disadvantages of their cases being prosecuted in a
civilian court with jurisdiction or through the Uniform Code of
Military Justice. The victim may express his or her preference, and
this preference must be afforded great weight in the determination to
prosecute the offense by court-martial or by a civilian court.
The amendment codifies the decision by the Department of the Army to
evaluate the performance of soldiers in adhering to the standards
regarding sexual assault prevention and response. It extends this
provision to every service in the Department of Defense. As previously
noted in the context of race relations, this provision is likely to
make a profound and lasting contribution to the prevention of sexual
abuse. That is what we are about here--preventing sexual abuse. This
could be one of the key drivers in that effort.
The amendment also improves accountability of commanders by requiring
that a command climate assessment be performed after an incident
involving a covered sexual offense, as defined in the legislation, for
both the command of the victim and the command of the accused, if they
are in separate commands, or a single assessment if they are in the
same command. These assessments will be completed promptly and provided
to the military criminal investigation organization conducting the
investigation of the offense concerned and to the next higher commander
in the chain of command of the affected unit.
You will know, if you are a commander, if there is an incident in
your unit that all the details will be known by your battalion
commander, your brigade commander, your division commander, and all the
way up. That will be another strong incentive to make sure that nothing
happens in your unit. That is part of the amendment proposed by my
colleagues.
This provision, particularly in conjunction with the requirement to
evaluate servicemembers' compliance under the official report, will go
a long way to provide the accountability and the emphasis on commanders
to do their jobs.
GEN Bruce Clarke, a distinguished officer wounded in the Battle of
the Bulge and who was awarded the Silver Star--one of the great heroes
of the U.S. Army--famously instructed his units that, in his words,
``an organization does well only those things the boss checks.'' Well,
we are checking each individual to make sure commander and
noncommissioned officer--they are doing their best. We are checking
each unit, if there is an incident in that unit, and we are living up
to the advice of General Clarke. It will get done because, finally, it
will be checked consistently, thoroughly and appropriately.
The amendment also establishes a confidential process that will
enable a victim of a sexual assault who is subsequently discharged to
challenge the terms or characterization of his or her discharge in
order to correct possible instances of retaliation. This provision will
help ensure that a discharge accurately reflects the service of the
individual, taking into consideration the effects of sexual assault and
also helping to remove the concern that reporting sexual abuse could
influence the character of a military discharge. Reporting such a crime
should never influence the character of a military discharge.
The amendment strengthens the role of the prosecutor in advising
commanders on courts martial. The committee language requires the
civilian service secretary review all cases where a commander does not
choose to prosecute when his or her legal counsel/judge advocate
recommends prosecution. The amendment extends that mandatory review if
the prosecutor recommends prosecution and the commander demurs. In
effect, if either the prosecutor or the legal counsel/judge advocate
recommends prosecution and the commander demurs, the case will
automatically be referred to the civilian service secretary. You will
have the highest ranking civilian in the uniform service making the
final call. Every commander will know that.
The amendment modifies the Military Rules of Evidence to prevent
defendants from introducing evidence of good military character as a
general defense of a charge. Such evidence may only be admitted if that
trait is relevant to an element of the offense for which the accused
has been charged. Too often, the good soldier defense has been seen as
overcoming specific evidence directly related to a crime. This

[[Page S8312]]

appearance undermines the essential perception that a verdict is
determined by direct evidence supporting the elements of the crime, not
the previous reputation of the defendant. This provision builds upon a
section of the underlying bill that eliminates the character and the
military service of the accused from the factors a commander should
consider in deciding how to dispose of an offense.
Finally, the amendment ensures that all of the protections of this
legislation are extended to the cadets and midshipmen of our service
academies. The McCaskill-Ayotte-Fischer amendment strengthens the
committee bill. Through enhanced accountability of commanders and
additional changes to the Uniform Code of Military Justice, we will
strengthen prevention and prosecution of sexual abuse.
Those who argue for the exclusion of the commander from the judicial
process point to the policies of our allies, including Canada, the
United Kingdom, Australia, and Israel. These countries have removed
commanders as convening authorities and use independent military or
civilian prosecutors to make charging decisions. While it can be useful
at times to draw comparisons between our Armed Forces and those we
serve alongside, there are several points to be made with respect to
our military justice system that do not align.
First, none of these countries changed their system in response to a
sexual assault crisis among their ranks or to protect rights of victims
more generally. In most cases the system was changed to protect the
rights of the accused.
Second, none of the allies can draw a correlation between their
system and any change in reporting by victims of sexual abuse. Many
argue that removing the commander as the decisionmaker will remove a
significant hurdle that victims face in deciding whether to report
sexual assaults. There is no statistical or anecdotal evidence that
removing commanders from the charging decision has had any effect on
victims' willingness to report crimes in these judicial systems among
our allies.
In materials provided to the Response Systems Panel, the deputy
military advocate general for the Israeli Defense Force noted an
increase in sexual assault complaints between 2007-2011, attributing no
specific reason for the increase but noting that it could represent an
increase in the number of offenses or it could be a result of campaigns
by service authorities to raise awareness on the issue.
Similarly, the commodore of Naval Legal Services for Britain's Royal
Navy has assessed that recent structural changes to their military
judicial system had no discernible effect on the reporting of sexual
assault offenses.
Third, the scope and scale of our allies' caseloads are vastly
different, primarily because of the much greater size of the U.S. Armed
Forces. For example, the Canadian military only tried 75 to 80 courts-
martial last year, which is roughly comparable to one U.S. Army
division's annual caseload. But several of our allies who have changed
their military justice system have indicated that the changes have
resulted in the process slowing down and taking longer. Frankly, that
is one of the issues victims have raised in terms of why they aren't
reporting and why they are so terribly frustrated--because of the
length and duration of the process.
Furthermore, most allies cannot conduct courts-martial in a deployed
environment. BG Richard Gross, the legal counsel to the Chairman of the
Joint Chiefs of Staffs, stated in a letter:

One critical feature of our justice system is its
expeditionary nature--the ability to administer justice
anywhere in the world our forces deploy.

Notably, the Army alone tried over 950 cases in deployed areas over
the past 10 years. In one case in Iraq, four soldiers committed
multiple crimes in a single night. The commander referred all four
soldiers to court-martial, and they were charged with consuming
alcohol, breaking into local Iraqi homes, and stealing property and
money from the locals. Because the commander in Iraq had authority to
refer these cases to trial, the first trial was underway within 2
months of the incident. All of the co-accused and many defense
witnesses were in the same unit, and local Iraqis were available as
fact witnesses. Because the commander had a fully deployable military
justice system at his disposal, he was able to send a strong message to
the unit that such conduct would be dealt with swiftly and decisively.
Simultaneously, he was able to restore positive relations with the
local community.
The Army has also cited instances of allied soldiers committing
sexual assault crimes against U.S. soldiers, and because of the allied
nation's system removing the authority of the chain of command and
removing the process from the battlefield, our commanders would demand
but not receive timely information on the status of any prosecution. We
had a soldier victim, and they could not find anything about the
process that was going on.
Tragically, sexual assault is a crime that historically is
underreported, and this is not only with respect to the military. The
Rape, Abuse, and Incest National Network cites Department of Justice
crime surveys that show that an average of 60 percent of assaults in
the last 5 years were not reported to police. However, in numbers
released earlier this month, DOD showed that more servicemembers are
coming forward to report sexual assaults. From October 2012 to June
2013, 3,553 sexual assault complaints were reported to DOD. That is a
46-percent increase over the same period a year ago. These cases
include sexual assaults by civilians on servicemembers and by
servicemembers on civilians. A significant number of the reported
incidents occurred before the victim had even entered military service.
Another argument for removing the commander's authority is that
independent JAGs or even civilian authorities will prosecute more
cases. However, statistics show that commanders from all services have
exercised jurisdiction and pursued courts-martial for sexual assault
cases over the determination of civilian authorities. Over the last 2
years, Army commanders have exercised jurisdiction in 49 sexual assault
cases the local civilian authorities declined to pursue, and 32 of
those cases were tried by court-martial, resulting in 26 convictions.
The U.S. Marine Corps exercised jurisdiction in 28 sexual assault
cases, all of which were tried by court-martial, and 16 cases resulted
in conviction. This goes on throughout every service.
Commanders also have an interest in pursuing a court-martial as a way
to demonstrate the seriousness of the crime and its impact on unit
discipline, not merely because of the quantity or quality of evidence
that a crime occurred.
On June 4 the Armed Services Committee held a hearing on the
legislative proposals to address sexual assault in the military. We
heard from four colonels from the Army, Navy, Marine Corps, and Air
Force. They all spoke about the importance of seeking legal advice from
their command judge advocate and having the responsibility to
adjudicate crimes within their command.
COL Donna Martin, commander of the Army's 202nd Military Police Group
Criminal Investigation Division, stated:

It is of paramount importance that commanders are allowed
to continue to be the center of every formation, setting and
enforcing standards, and disciplining those who do not. The
commander is responsible for all that happens or fails to
happen in his or her unit.

She went on to say:

The Uniform Code of Military Justice provides me with all
the tools I need to deal with misconduct in my unit from
low-level offenses to the most serious, including murder
and rape. I cannot and should not relegate my
responsibility to maintain discipline to a staff officer
or someone else outside the chain of command.

When asked about whether a commander might be more likely to pursue a
court-martial than even an outside independent officer because of the
desire to send a message to his or her unit, Marine Colonel King
replied that he considers ``achieving justice for whatever crime was
committed and also the message that I send to the thousands of Marines
that are actively watching what's going on. So I can, even if I fail to
achieve a conviction at whatever level, still send a powerful message
to them that this kind of conduct, even alleged, even not proven, is
completely unacceptable.''
Col. Jeannie Leavitt, commander of the 4th Fighter Wing, stated:

[[Page S8313]]

I could absolutely see the scenario where a prosecutor may
not choose to prosecute a case or recommend prosecuting a
case because of the likelihood of conviction. However, as the
commander, I absolutely want to prosecute the case because of
the message it sends so that my airmen understand that they
will be held accountable. And then we'll let the jury decide
what happened in the case and whether or not it will be
convicted. But that message is so important, whereas an
independent prosecutor may not see the need to take it to
trial if the proof is not necessarily going to lead to
conviction.''

Additionally, our service JAGs have expressed several concerns about
the proposed amendment my colleague from New York is introducing. I
will take a moment and talk about the amendment.
I thank and commend Senator Gillibrand because without her
persistence and passion, we would not be here today. She perhaps has
done more than anyone else to focus our attention on this incredibly
heinous crime done to individuals and the threat to good order,
discipline, and efficiency of the military.
Her objective--the elimination of sexual abuse in the ranks of our
military--must be our objective, and it must be realized. She and her
cosponsors have determined, in their view, that the removal of the
commander from the application of the Uniform Code of Military Justice
for a wide variety of offenses is the best approach to achieve the goal
of ending sexual abuse in the military, but, as my previous comments
clearly indicate, I disagree. Indeed, given the nature of military
service, which is significantly different from civilian life, I believe
that without the active involvement of commanders in every phase of
military life, this goal cannot be effectively and rapidly achieved.
The approach in the amendment proposed by my colleague from New York
poses significant problems in practice that could unwittingly
complicate rather than accelerate efforts to end sexual abuse.
The amendment attempts to divide crimes designated by specific
articles of the UCMJ into two broad categories: traditional military
offenses subject to command adjudication, such as AWOL and
insubordination, and a broad category of serious offenses that would
typically constitute civilian criminal offenses, such as murder,
robbery, and rape and sexual crimes. In fact, here is a chart depicting
the division of the articles of the Uniform Code of Military Justice.
This second category of offenses would be removed from command
adjudication and would be referred to an independent prosecutor. This
independent prosecutor must be at least a full colonel with
``significant experience in trials by general or specific court
martial'' and be ``outside the chain of command of the member subject
to such charges.''
This bifurcated system--especially considering the scope of crimes
excluded from the chain of command--will have profound effects on the
ability of commanders and units to function effectively.
Let's take the case, which is not uncommon, of a soldier who writes
five checks on five separate occasions for $30 each to the PX knowing
he doesn't have the funds to cover his purchases. The Criminal
Investigations Division investigates and informs the commander. Under
the Gillibrand amendment, the CID must refer this case to the
independent prosecutor because it falls under article 123a. These are
referred to special prosecutors if they fall under the category. The
five separate incidents, although they individually have a maximum
punishment of 6 months, would be charged together, leading to 30
months, which exceeds the 1-year threshold for the Gillibrand
amendment. As a result, this would be sent forward to the special
prosecutor.
I hardly think that charging this soldier for writing bad checks is
the intent of the Gillibrand amendment, but it will be the effect. It
also raises the very practical questions of how the independent
prosecutor will deal with an onslaught of cases like this when the
expectation is that he or she will be focused on sexual abuse and other
serious crimes, such as murder. There is a practical issue: Are you
going to take a bad check case when you have 15 pending attempted
murders, assaults, rapes, et cetera? That is a practical issue, and I
think the answer is probably no.
Under the amendment, the independent prosecutor has the choice of
convening a special court-martial or a general court-martial. A special
court-martial consists of a panel of at least three members or, at the
servicemember's election, a military judge sitting alone. There is a
prosecutor, referred to as the trial counsel, and a defense counsel. In
comparison, a general court-martial is the military's highest level
court where servicemembers are tried for the most serious crimes--
roughly analogous to a civilian felony court--and the maximum
punishments are increased.
Before any charge can be sent to a general court-martial, an Article
32 investigation must be conducted, which is a hybrid of a civilian
grand jury proceeding and a preliminary comprehensive discovery
proceeding. The Article 32 investigation is intended to be more than a
mere formality; it is a valuable right for the accused and a source of
information for the commander. The general court-martial may consist of
a military judge and not fewer than five members or a military judge
alone if the defendant chooses. Capital cases require 12 members.
As we can see, these proceedings are intensive in terms of time, in
terms of commitment of military personnel, and in terms of
investigatory efforts. In fact, the average length of special court-
martial proceedings ranges from 3 to 5 months. General courts-martial
can take anywhere from 5 to 8 months. In cases involving sexual
assault, both special and general courts-martial take longer--an
average of 9 months. Again, this is probably going to delay the
process, not accelerate the process.
Given the time and resources involved in a general or special court-
martial, in the case of a young soldier writing bad checks and the
longstanding practice of reserving general and special courts-martial
for the most serious offenses, I seriously doubt that an independent
prosecutor would take this case. At some point, the independent
prosecutor will inform the commander, which raises another issue. If
this notification is delayed extensively, there is a related problem of
what to do with the soldier under suspicion. Do you deploy him or her
subject to recall? Do you leave him behind? So all of these issues are
important.
The independent prosecutor's decision is binding on any applicable
convening authority for a trial by court-martial on such charges. It is
binding on every commander. The amendment, however, does attempt to
preserve authority to punish these types of offenses by declaring that
the independent prosecutor's decision ``shall not operate to terminate
or otherwise alter the authority of commanding officers'' to employ a
summary court-martial or to impose nonjudicial punishment under Article
15 of the UCMJ. But this authority is absolutely an illusion.
Under the UCMJ, every soldier has the right to turn down a summary
court-martial or an Article 15. Once he is informed by counsel that he
will not be subject to a general court-martial or a special court-
martial, and he can turn down a summary court-martial and article 15,
the soldier will invariably refuse the summary court-martial or article
15. Ironically, in doing so he will demand a court-martial. But the
commander cannot comply, as he can now, because he has already been
preempted by the independent prosecutor.

This scenario will play out over and over again. A unit is plagued by
a series of barracks thefts which, if unchecked, erodes good order and
discipline. The commander has information that one soldier is boasting
about ripping off people but he has no other evidence. During a routine
health and welfare inspection, an iPhone valued at over $500 and
reported missing is found in the boasting soldier's room. Under the
Gillibrand amendment, the commander must refer the case to the
independent prosecutor and again you will have the issues of whether
the independent prosecutor takes such a case, and if not, the
likelihood that the accused will refuse a summary court-martial or an
Article 15 and walk free.
Incidents like this--and this is not the intent of the legislation,
but this is what will happen--will erode unit cohesion and raise
questions at least implicitly: Who is really running the

[[Page S8314]]

unit? The commander? An unseen and unknown JAG, hundreds of miles away?
Or individual soldiers who may appear to be violating the rules with
impunity?
This question is important here, but it is critical when a commander
has to order soldiers to do dangerous things, and ultimately, that is
what commanders have to do and soldiers have to have no doubt that the
commander, he or she, is fully in charge.
As I referenced earlier, the bifurcation of the articles of the UCMJ
poses significant challenges. The problem with the drafting of this
amendment complicates not just cases of common theft, not just issues
that you say we could throw out, but the very issue of sexual assault
we are trying to address.
Let's take another example of a married couple, both of whom are
Active Duty servicemembers, who get into a shouting match in their
quarters on post. The husband stabs the wife with a kitchen knife and
knocks her unconscious. She provides a statement to CID but later
retracts it. They have another argument which results in his assaulting
her with an attempt to commit rape. Under the Gillibrand amendment, the
first offense of aggravated assault, Article 128, would have to be
referred to the independent prosecutor to decide whether to send the
case to a court-martial, while the offense of assault with intent to
commit rape, which is specified under Article 134, is exempt from the
Gillibrand proposal and would be referred to the chain of command.
Assuming both the independent prosecutor and the independent commander
seek a general court-martial, this particular victim will now have to
have two separate Article 32 hearings, two subsequent courts-martial,
at least doubling the number of times she must recount her nightmare
and prolonging the administration of justice.
The accused will demand and likely get two separate panels for each
set of offenses, thus doubling the number of officers unavailable for
their duties in the command and more than doubling the administrative,
personnel, and witness costs associated with the general court-martial.
This is a situation where, rather than streamlining, reinforcing, and
clarifying the military's efforts to deal with sexual assault, we have
confused them, we have delayed them, and we have put commanders in the
position of competing with independent prosecutors. This is not going
to add to the solution on a practical basis of how we deal with sexual
assault.
We know so many of the men and women in our Armed Forces serve our
nation selflessly. Every day they are prepared to give their lives.
Sexual assault is the antithesis of this ethic. It has no place in the
Armed Forces, and if not eliminated, it will insidiously destroy our
military. I believe preventing sexual abuse requires leadership at
every stage and that commanders must be involved in every step. I
believe that we will make the most progress in addressing this issue by
involving and holding commanders accountable, not by excluding them
from a critical area of militarily life.
We have worked extensively to include provisions in this bill that
will improve the prevention of sexual assault, the protection of
victims, and the prosecution of perpetrators. We must pledge to do
more, to continue our oversight of these programs and make further
changes if needed. We owe it to all those who bravely and honorably
wear the uniform of our Nation.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Maryland.
Mr. CARDIN. Madam President, first, let me thank Senator Gillibrand
for her leadership on this issue of sexual assault in our military. I
support her amendment. I believe we need to look at a new way to deal
with this issue so there is not only confidence within the military but
within our country that sexual assault will not be tolerated in our
military and that we have an effective way to deal with it. I thank
Senator Gillibrand. It is quite clear, as Senator Reed said, without
her leadership we would not be having these discussions on the floor of
the Senate today. I applaud her for that.

Tribute to Major Nate Somers

Mr. CARDIN. Madam President, we are now dealing with the NDAA bill,
the National Defense Authorization Act, and it is our opportunity as a
Senate to weigh in on one of the primary roles of government and that
is the security of our country, how we can support our men and women in
our military service to make sure they have the best equipment and the
best support and live up to our commitments to our veterans when they
return to civilian life. It is an awesome responsibility. I know each
of us in our own capacities need to rely on outside help in order to be
able to carry out this responsibility.
We have staff. In my case I have been blessed to have a detailee from
the Department of Defense from the Air Force. That person is Maj. Nate
Somers. I mention that because he will be leaving my assignment very
shortly, within the next week or so. I wanted to take this time to let
my colleagues know, but also to let all the people know, that these
detailees who are assigned to our office play a critical role. He has
helped me in developing provisions that are in the National Defense
Authorization Act and amendments that we are offering that deal with
military health issues, that deal with regional security concerns, that
deal with the impact of sequestration and how we can deal with the
impact of sequestration and that deal with human rights issues with
U.S. leadership globally as well as within the military.
To say the least, I could not have done this as effectively as I
needed to on behalf of the people of Maryland if it were not for Maj.
Nate Somers. He comes to this assignment with an incredible background.
His military record is unbelievable. Major Nate Somers has dedicated
his life to serving our Nation. Nate started his career with the U.S.
Air Force in 2001 when he graduated and received his commission through
the Officer Training Program at Mississippi State University. He also,
I might add, has two master's degrees. Nate then went on to serve in
Arkansas, Florida, and Virginia, and was deployed in support of both
Operation Iraqi Freedom and Operation Enduring Freedom. Prior to
joining my office, Major Somers served as liaison between the Air
Combat Command and the Air Force Legislative Liaison Director on issues
ranging from constituent inquiries to weapons systems.
Over the course of his incredible career, Major Somers has earned 17
different major awards and decorations, including the Meritorious
Service Medal and the Air Force Commendation Medal. His receiving these
awards comes as no surprise to those who know him. Nate demonstrates
his extraordinary service to our Nation and to our Armed Forces each
and every day.
There is hardly a day that goes by that I am not better informed
because of his assignment to my Senate office. To say that Major Somers
will be missed is an understatement. Nate has truly been a integral
part of my staff. Whether ensuring our Maryland veterans get the
services they need or advising me on complex defense issues, there was
no task Nate would not do or could not do in order to help our office.
The Air Force should be proud of the extraordinary talent they have in
Maj. Nate Somers. I thank him for his service to this Nation.
I also want to take this opportunity to thank Nate's wife and sons
for sharing Nate with the Senate and for his service to the country.
I yield the floor.
The PRESIDING OFFICER. The Senator from Alaska
Ms. MURKOWSKI. Madam President, yesterday morning I was pleased to be
able to come to the floor of the Senate and join with a good, strong,
group of women from both sides of the aisle to express our joint
commitment--really the commitment of every Member of this body--to
address the scourge of sexual assault, sexual misconduct within the
military.
I thought it was a good way to start off the debate yesterday on the
issue of sexual assault within the military, recognizing that some are
in different places in terms of how we deal with these very important
issues. But ultimately the goal of each of us is the same. The goal is
that we make things right for those who are serving our Nation, and
that when it comes to instances of sexual assault, military sexual
trauma, sexual harassment, that really there is no place in our
military for this.

[[Page S8315]]

We use different terminology when we are discussing the issue of
sexual misconduct in the military. How we define what we are seeking to
eradicate is important. We have used the more generic term sexual
assault probably more often to describe the problem that we need to
address, but I suggest that definition is probably a bit too narrow. I
prefer to use the term military sexual trauma, which is the term that
the VA, the Veterans Administration, uses to describe a spectrum of
harms. Their term, the VA's term, military sexual trauma, means ``the
trauma resulting from a physical assault of a sexual nature, battery of
a sexual nature, or sexual harassment which occurred while the veteran
was serving.''
I prefer this term because it emphasizes the various traumas that can
occur, both with and without physical assaults and batteries. This
definition also calls to our attention the fact that whatever the
instrument of trauma there are psychological scars that need to be
addressed. These are psychological scars that can last a lifetime. I
think it is fair to say that this spectrum of scars is broad and it is
deep.
I have looked very carefully at the work that came out of the Senate
Armed Services Committee. I have looked at Senator Gillibrand's
amendment very carefully. I have considered all that is being
incorporated in the Defense Authorization Act. Again, as I mentioned
yesterday, I am pleased with how in so many different areas we have
been working together to address these issues of military sexual
trauma.
I am a supporter of Senator Gillibrand's approach to ensure justice
for victims of military sexual trauma. Today, I would like to explain
some of the reasons why I have chosen to support that approach.
The current system of military justice relies upon the individual
decisions of commanders for a decision on whether or not an offense is
to be punished, and which charges are to be brought. In our complex
military there are many commanders. We all know that. While our code of
military justice may be uniform, I think we are seeing strong evidence
that its implementation is anything but uniform.

Senator Gillibrand's approach ensures that charges will be
investigated and that the charging decision will be made by
disinterested military prosecutors. Decisions will be made by
disinterested prosecutors whose only interest is that the perpetrators
account for their actions, that victims' interests are protected, and
that the integrity of the process is paramount. I think that this is
very important. I think this is a breath of fresh air.
The recent experiences I have had, as a Senator from Alaska, with the
transparency of decisions made within the chain of command leaves much
to be desired. Unfortunately, we have learned about these situations
from what we read in the headlines, and it makes you say: Oh my gosh. I
cannot believe this is happening in our military.
It makes your stomach turn. We are not hearing this from the chain of
command. We are reading this in our newspapers. We are seeing this
reported in the media, and that is the first time we hear of them.
Case in point: The 49th Missile Defense Battalion, which operates our
Nation's missile defense at Fort Greely. The missile defense
establishment at Fort Greely is a very important facility for us in
Alaska--as well as for the Nation. Last spring it was widely reported
that unlawful fraternization among certain members of the battalion--
rising up into the chain of command--was creating an uncomfortable
situation for those who were not part of what I would describe as the
in-crowd at Fort Greely.
Just when I thought I understood what was going on at Fort Greely--
after I was told not to worry and that everything was all fixed--there
was a bizarre series of events which showed up on my doorstep. The
complainant, who was a member of the Alaska National Guard, was
involved in a child custody dispute with another member of the Alaska
National Guard. For reasons I don't understand, the complainant's chain
of command decided to inject himself into this custody dispute by
causing the complainant to be detained in an electrical closet on a
secure U.S. military base for a period of days in order to deny him
lawful visitation with his children. It is also alleged that DOD
civilian police and Fort Greely military police were complicit in these
actions.
All of this is detailed in a sworn affidavit, which the complainant
submitted to my office.
You just have to shake your head. Are we supposed to call this
military justice? Maybe it is frontier justice. Maybe it is military
justice in the last frontier. I don't like it, and I don't think we
should ever accept it.
I asked the Army CID to look into this incident because it was my
impression then that an unlawful denial of one's freedom is a criminal
offense. I understand that the complaint my office forwarded was not
pursued by the Army CID, but was referred to the Space and Missile
Defense Command.
I am most appreciative that an investigation was pursued, but one
might legitimately ask the question: How did it end? What was the
outcome of this story? I don't know. Alaskans don't know. We don't
know. Neither I nor the individual who sought the investigation has
been informed of the outcome, just that the chain of command had looked
into it. Where is the transparency?
The complainant has been told he needs to file a Freedom of
Information Act request in order to get an answer. None of this sits
right with me as an example of how the chain of command is an
impartial, unbiased, and vigorous protector of victims. I am not able
to see that in this instance. In this case it is alleged that the chain
of command were either the perpetrators or complicit with the
perpetrators.
Think of the message that sends. Fort Greely is a very small
installation. Folks pretty much know what is going on at smaller
installations. We know of this incident. It has been reported in the
papers. We were told the chain of command has looked into it, but then
nothing happened after that.
I would like to suggest that this is the only incident that has come
to my attention, but that is not the case. Literally, less than a month
ago, on October 27, the Anchorage Daily News reported on allegations
that were made by senior Alaska National Guard chaplains of pervasive
and longstanding sexual assault and sexual misconduct within Guard
ranks.
There were allegations of some 26 different sexual assault and sexual
misconduct incidents that were reported in the news. The chaplains
become aware of these incidents through their own observations and
through complaints that were brought to them by Guard members.
I had an opportunity to ask senior leaders of the National Guard
Bureau what they knew about this situation. I asked them when they
found out about this situation. You know what the answer was? They read
about it in the news clippings. Really? I mean, it just stuns me to
hear this after we heard about how we have this system--throughout the
chain of command--that has been addressing this issue. Somewhere there
is a broken link in this chain.
When the media finds out first and reports about it, and the senior
leaders here are unaware of 26 different allegations, it just causes
one to wonder.
It is a truism of management that if you want a problem managed, you
have to know about it. You have to measure it and let your subordinates
know that their performance is being evaluated on that measure.
So answer this question: How can the Secretary of Defense and our
senior military leaders ever hope to manage the critical problem before
us when the deplorable facts--and I am not talking about the number of
complaints--are buried within a decentralized and far flung chain of
command? How can I develop any sense of comfort that those who were
responsible for these hideous activities have been brought to justice
and not just simply moved around the military? It does cause one to
wonder.
It is a horrible truth that we are still dealing with in Alaska, but
we have all heard--and are very aware--of the widespread allegations of
child sexual abuse within the Catholic Church. We have come to learn
that the Church, in fact, was aware of many of these allegations.
Unfortunately, for a period of time, the way they handled the problem
was to move the offending clergy to other places. Some of them were

[[Page S8316]]

moved to the State of Alaska. If they acted inappropriately in an urban
community, they were shipped out to a bush community--a very remote
place.
Out of sight, out of mind, and free to offend again. That is not
responsibility. That is not accountability. That is not how it should
be done within the church, and it certainly should not happen within
our military.
We have all shared many different victim stories here on the Senate
floor. I want to add that the more this issue of military sexual trauma
and sexual assault has been discussed on the Senate floor, more victims
have come to speak to me.
I was in my home State 2 weeks ago for a big outdoor community event.
It was a pretty cold Saturday afternoon. I was approached by a woman
who had seen me from across the street. She was attending a conference
at the time. She came across the street and into the town square. She
was not wearing a coat. She wanted to make sure that I knew she too had
been a victim but had not had the strength to report the crime. She
just left the service.
She said to me: Don't give up on this because I had to step down from
my military career and the perpetrator stayed on, and as he stayed on,
he continued to be promoted. Her plea to me was: Please don't let that
continue.
I want to share another story that is very personal to me. I think
all of us as Members of the Senate know what a privilege and honor it
is to nominate qualified constituents to attend our Nation's service
academies. The military stands very tall in the eyes of Alaskans, so in
my State these nominations are highly competitive.
Last spring I became aware that one of my nominees who was accepted
into one of the service academies and did phenomenally well was
sexually assaulted at the academy. I was following this young woman
because I knew her family.
She graduated and was commissioned, but now the burden of dealing
with the fact that she was not protected from the crime has caused her
to resign her commission. She put 4 years of very hard work toward a
military career, and now that career is in the garbage.
I contacted her recently. She is a strong woman, but her dreams have
been completely dashed by what she experienced.
Many of my colleagues know I have taken a keen interest in the work
of our service academies. I served for a short time on the Board of
Visitors of one of the academies, but I was not aware of the trauma my
constituent had suffered until she contacted me long after graduation.
I don't recall any substantial discussions about issues like this
during my tenure on the Board of Visitors. It needs to be discussed. It
not only needs to be discussed but action needs be taken to eliminate
instances like that from ever happening.
These issues are all current issues, but not all of these issues are
new. Earlier this year I came to know a woman by the name of Trina
McDonald. At one point in time she had the opportunity to live in the
State of Alaska as a servicemember. So many of our servicemembers who
have been stationed in Alaska want to stay for life. They want to
retire there because they love it. Unlike many of her colleagues, Trina
chose to try to forget everything that had been attached to her service
in Alaska. She prefers to forget that experience. That is because she
was sexually assaulted while serving in my home state.
Many of you may have seen ``The Invisible War.'' Ms. McDonald speaks
of the experiences she had when she was assigned to the Navy and
stationed at Adak, which is now a closed naval base on the Aleutian
Chain. This happened about 20 years ago. Trina asserts she was
repeatedly drugged, raped, and ultimately dumped in the Bering Sea by
superior officers.
What did the chain of command do? Trina states that she had no place
to turn because both the police and her superiors were the
perpetrators. What do you do? Where do you go? Where is the redress? It
pains me to think that the issues, which today are very high in the
attention of this body, have been out here for 20-plus years. I have
listened to my colleagues on the floor talk about the Tailhook scandal,
and we have talked about so many of the other high profile instances
where we have heard our military leaders say, Never again; never again;
zero tolerance. They are using all the right words.

It really does cause us to ask the question: Are we to attribute this
cycle of violence we are seeing to attention deficit on the part of us
here in Congress or attention deficit on the part of our military
leaders? This is not what zero tolerance looks like. Whatever the case,
I think it is going to take some very strong medicine to break through
this powerful attention deficit we have seen historically.
Incremental steps, in my view, don't cut it anymore. For the young
woman, again, whose military career is no longer; the woman I met out
in the cold 2 weeks ago who gave up her dream and has just had to stand
by and watch her perpetrator ascend his career ladder, incremental
measures don't cut it.
I think it is time for profound change. I think the amendment offered
by the Senator from New York, while it is strong medicine, and I
acknowledge that, I think it is the right tool for what we are dealing
with at this time.
With that, I thank the Presiding Officer and I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Madam President, I wish to reiterate my strong support
for Senator Gillibrand's reforms to the military justice system. I am
proud to be an original cosponsor of this act, and I should add it has
been a pleasure working with Senator Gillibrand on the issue. Her
passion and commitment to rooting out sexual assault in the military
ought to be inspiring to all of us, and watching how she negotiates and
how she lobbies for her ideas can teach all of us a good lesson.
I should also add that I appreciate the work of the Armed Services
Committee, which added a large number of commonsense reforms to the
underlying bill. In fact, some of them are so commonsense that one has
to wonder why the military hasn't adopted them already or, if need be,
asked for legislation to do so before now.
For instance, the bill before us provides that people convicted of
certain sexual assault offenses may not join the Armed Forces--common
sense. It requires mandatory discharge from the Armed Forces of any
member convicted of certain sexual assault offenses--common sense. It
directs a comprehensive review of the adequacy of training pertaining
to sexual assault prevention and response--common sense.
The underlying bill also has a number of provisions to address
certain concerns about commanding officers not handling sexual assault
charges properly but still keeps this judicial process in the chain of
command. That is inappropriate; hence, this amendment.
We have tried working within the current system. This isn't a new
issue. Military leaders have been making emphatic promises about
tackling the problem of sexual assault for years and years, but the
problem only seems to be getting worse. What is more, the current
system appears to be part of the problem. There is a culture that has
to change, and it won't change by itself.
According to a recent Defense Department report, 50 percent of female
victims stated they did not report the crime. Why? Because they
believed that nothing would be done with their report.
Seventy-four percent of females and 60 percent of males perceive one
or more barriers to reporting sexual assault. Sixty-two percent of the
victims who reported a sexual assault indicated they received some form
of professional, social, or administrative retaliation. This should not
happen in a military where everybody ought to be looking out for
everybody else.
A very cohesive unit is essential for everybody's protection but also
for the success of the mission. So it is a terrible deterrent when
sexual assaults ought to be reported 100 percent but aren't. If sexual
assault cases are not reported, it is quite obvious, common sense tells
us they can't be prosecuted. If sexual assault isn't prosecuted, common
sense ought to tell us it leads to predators remaining in the military
and a perception that that sort of activity will be tolerated or a
person can get away with it. Common sense tells us that people get away
with it.

[[Page S8317]]

By allowing this situation to continue, we are putting at risk the
men and women who have volunteered to place their lives on the line. We
are also seriously damaging military morale and military readiness.
Taking prosecutions out of the hands of commanders and giving them to
professional prosecutors who are independent of the chain of command
will help ensure impartial justice for the men and women in uniform.
I know some Senators will be nervous about the fact that the military
is lobbying against this legislation. There is a certain awe that
permeates among Senators when people with stars on their shoulders
appear among us. We are being asked, once again--that environment is
here--to wait and see if the latest attempt to reform the current
system will do the trick. I respond that the time for trying tweaks to
the current system and waiting for another report or study has long
since passed.
We also hear that this measure will affect the ability of commanders
to retain good order and discipline. I would like to be clear that we
in no way take away the ability of commanders to punish troops under
their command for their military infractions. Commanders also can and
should be held accountable for the climate under their command. But the
point here is sexual assault is a law enforcement matter, not a
military one.
If anyone wants official assurances that we are on the right track,
we can take confidence in the fact that an advisory committee appointed
by the Secretary of Defense himself supports our reforms. On September
27 of this year, the Defense Advisory Committee on Women in the
Services--and I believe that acronym is DACOWITS--voted overwhelmingly
in support of each of the components of the Military Justice
Improvement Act amendment.

This advisory committee isn't something new. These various advisory
committees under different Secretaries of Defense have been around
since 1951 when they were created by then-Secretary of Defense George
C. Marshall. The committee is composed of civilian and retired military
men and women who are appointed by the Secretary of Defense to provide
advice and recommendations on matters and policies relating to the
recruitment and retention, treatment, employment, integration, and
well-being of highly qualified professional women in the Armed Forces.
Historically, this advisory committee's recommendations have been very
instrumental in affecting changes to laws and policies pertaining to
military women.
The bottom line is--and, again, this is common sense--this isn't some
advocacy group or fly-by-night panel. It is a longstanding advisory
committee handpicked by the Secretary of Defense, and it supports the
substance of our amendment to a tee.
I know it is easier to support incremental reforms. That is even
prudent in some cases. However, when we are talking about something as
serious and life-altering as sexual assault, we cannot afford to wait
any longer than we already have. Our men and women serving in this
military deserve bold action to solve this problem--not in a few years
or a little bit at a time but right now. So I urge my colleagues to be
bold and join us in this effort. It is the right thing to do.
It seems to me as though a lot of debates in this body get
complicated, and this one seems to be complicated too by some people.
But it is really a very simple issue. It doesn't need to be this
complicated, because it talks about changing the culture. I know there
are cultures in every bureaucracy that need to be changed that affect
their operations, but none of them are as damaging as the No. 1
responsibility of the Federal Government. So a culture in the Defense
Department has to be taken seriously. We have to change the culture.
When one joins the military--and I haven't been in the military so I
don't speak with authority, but it seems to me as I understand the
military--I have a grandson in the Marines and I had sons in the
military. But when a person joins, they join because they feel that
everybody in that unit will have each other's back. There should be no
fear of anyone--anyone--in the unit. There should be nothing but
respect for each other. Members of the military should have confidence
in each other and loyalty toward each other. They are all on the same
mission. None of them should be considered an enemy. None of them
should have any particular power over another. That is what this sexual
assault thing is all about--power over weak individuals--not weak
because of who they are, but weak because of the power of the people
above.
This is badly needed legislation.
I yield the floor.
The PRESIDING OFFICER. The Senator from North Dakota.
Ms. HEITKAMP. Madam President, this is a tough issue. It is a tough
issue because good people don't agree. Good people don't see the issue
the same way. But we cannot lose sight of the fact that so many of the
reforms we will be voting on to guarantee a safe haven, to guarantee a
safe experience, a common camaraderie, are all parts of a big plan for
change. What we are debating today is one small portion of that--not
small in the sense of impact. We need to make sure we reward all of the
great work the committee has done, the great work that has been done
with the leadership of Senator McCaskill from the great State of
Missouri, and the commitment that this body is making today, in a very
unified way, to change the outcome.
I will spend a moment with that in mind to talk about how I came to
my decision to support the Gillibrand amendment. I wish to first talk
about my experience. I am probably one of the few people in this body
who has actually sat across a table as somebody who had the power to
make the decision on whether we were going to, in fact, pursue a
prosecution and have that discussion. I know that is a shared
experience I have with Senator McCaskill, and those are experiences we
will never forget--the damage that is done so often when people are
victims of sexual assault, beyond other kinds and other forms of
physical assault, the power and the responsibility. So I recognize the
great need we have to deal with this issue. I recognize the great need
we have to have professionals make the decision.
The bottom line for me is, if someone came forward and appendicitis
was suspected, he or she wouldn't ask the commanding officer to make
the decision for the doctor. What I am suggesting today is that these
are very difficult decisions on whether one is going to pursue or
decline a prosecution and they should be made by people who are
trained. There should be a whole system--as we have seen in the civil
side--a whole system of support.

Frequently we talked about, back in the 1980s and the 1990s--as we
were moving through these same questions in the civil courts--not
revictimizing the victim. I think what you are hearing today is story
upon story where victims of sexual assault in the military feel not
only let down but they feel revictimized.
So I want to very quickly go through a couple of the points we have
heard over and over, which is that this change in the Gillibrand
amendment would affect good order and discipline in the military. I
have heard this from many of the military, the good military leaders
who have come to my office to talk about this problem: that they need
this authority, this specific convening authority, because their orders
will fall on deaf ears or their leadership will be questioned.
I am not an expert in leadership, but I have to ask you: Do we really
believe that sort of authority is truly essential to being someone whom
the troops will follow, someone who demands respect, who inspires
devotion or truly will stand and fight side by side no matter what the
cost?
The conclusion I make is that I do not think so. Because when I talk
to our brave veterans in North Dakota or our noncommissioned officers
who lead our servicemembers every single day, that is not what I hear.
I hear: I knew he would do the same for me. Not: Well, he has convening
authority.
That is what I believe inspires and maintains good order and
discipline: the shared values of a mission, of trust, of concern, and
respect.
I also have heard great reforms, especially in the Air Force--and we
have a special relationship in North Dakota to the Air Force, having
two air bases. The Air Force JAG came in and told me about the new
process and the new procedures and impressed upon me this

[[Page S8318]]

great opportunity they had taken now for change. I said one thing. I
said: It is too late. It is too late to expect that we are going to
believe it this time. It's the old adage: ``Fool me once, shame on you;
fool me twice, shame on me.'' We are at that point now where something
very dramatic needs to happen in order to send the very important
message that you matter and this behavior does not reflect behavior
that is becoming of our troops, of our country, and the people who step
up to serve our country.
Progress that has been made does not go far enough. I think it is
time to boldly act and step up for people who serve, who have stepped
up bravely and said: What can I do, no matter the cost or the
sacrifice--knowing the hardship they will endure and the distance from
home and family who love and care for them; that when they go, our
military personnel say: I am yours. I will go and do whatever I need to
do, whatever you tell me, to protect our values and to protect our way
of life.
It seems a small thing to do everything we can to protect those who
protect us. The time has come to address this, to send a strong and
important message to our volunteer service that we will not tolerate
this and that we will put this decision in the hands of the people who
are best equipped to make this important decision. And that is the
prosecutors.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. ALEXANDER. Madam President, I ask unanimous consent that the
order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ALEXANDER. Madam President, I ask unanimous consent that I be
allowed to speak as in morning business for 10 minutes, without taking
the time from either side.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ALEXANDER. Madam President, I thank the Senator from Texas and
the Senator from Missouri for their courtesy, and I will endeavor to do
it a little quicker than in 10 minutes.

Changing Senate Rules

Madam President, this weekend, Vanderbilt plays Tennessee in a
football game in Knoxville. Let's say Vanderbilt gets on the 1-yard
line of Tennessee and Tennessee then says: Well, we are the home team.
Let's add 20 yards or whatever it takes to win the game. Or let's say
in the World Series recently the Red Sox were behind St. Louis in the
ninth inning and the Red Sox said: Well, we are the home team. Let's
add a couple of innings or whatever it takes to win the game. Everyone,
I think, would say that is cheating. Everyone would say: You are
destroying the game of football or baseball.
If a home team could change the rules at any time during the game or
whatever it takes to win the game, what kind of game is it? That is
what Senator Vandenberg said after World War II and Senator Levin
repeated to all of us--that a Senate in which a majority can change the
rules any time the majority wants to change the rules is a Senate
without any rules.
Yet we hear that is what the Democratic majority may be seeking to do
this week. They are unhappy, they say, that Republicans have said it is
premature to vote up or down on three circuit judges nominated by
President Obama--even though that was exactly the position of the
Democratic Senators in 2006 and 2007 when they argued that the DC
Circuit Court is underworked and that we should transfer judges from
where they are needed the least to where they are needed the most. So
they are going to change the rules of the game during the game or
whatever it takes to get the results they want.
We have a lot of new Senators on both sides of the aisle. Nearly half
the Senate, 44 members, are in their first term. It is important for
them to remember that in Senator Reid's book he said that to do this
would be the end of the U.S. Senate, that Senator Robert Byrd--probably
the most distinguished Senate historian in its history--said in his
last speech to us that the filibuster is the necessary fence against
the excesses of the majority and of the Executive. It is the fence
against what de Tocqueville called in the early 1830s the greatest
danger to our country that he saw, which was the tyranny of the
majority.
You may ask, how could this possibly happen? Here is how I am afraid
it is happening. Sometimes we get off in our rooms by ourselves--and
Republicans do it as well as Democrats--and we give ourselves our own
version of the facts. The last time this came up, we tried to address
this in the Old Senate Chamber. I think all of us thought it was a
pretty good session. But this is my third opportunity to respond to
these nuclear threats, and I am not going to do it again.
The President said during the government shutdown that he was not
going to negotiate with a gun to his head. Neither am I. Democrats have
had their finger on the nuclear button for 2 years. I hope they will
reconsider.
No. 1, I hope they will read Senator Leahy's letter, which I ask
unanimous consent to have printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

U.S. Senate,

Washington, DC, July 27, 2006.
Hon. Arlen Specter,
Chairman, Committee on the Judiciary, Washington, DC.
Dear Chairman Specter: We write to request that you
postpone next week's proposed confirmation hearing for Peter
Keisler, only recently nominated to the DC Circuit Court of
Appeals. For the reasons set forth below, we believe that Mr.
Keisler should under no circumstances be considered--much
less confirmed--by this Committee before we first address the
very need for that judgeship, receive and review necessary
information about the nominee, and deal with the genuine
judicial emergencies identified by the Judicial Conference.
First, the Committee should, before turning to the
nomination itself, hold a hearing on the necessity of filling
the 11th seat on the DC Circuit, to which Mr. Keisler has
been nominated. There has long been concern--much of it
expressed by Republican Members--that the DC Circuit's
workload does not warrant more than 10 active judges. As you
may recall, in years past, a number of Senators, including
several who still sit on this Committee, have vehemently
opposed the filling of the 11th and 12th seats on that court:
Senator Sessions: ``[The eleventh] judgeship, more than any
other judgeship in America, is not needed.'' (1997)
Senator Grassley: ``I can confidently conclude that the DC
Circuit does not need 12 judges or even 11 judges.'' (1997)
Senator Kyl: ``If . . . another vacancy occurs, thereby
opening up the 11th seat again, I plan to vote against
filling the seat--and, of course, the 12th seat--unless there
is a significant increase in the caseload or some other
extraordinary circumstance.'' (1997)
More recently, at a hearing on the DC Circuit, Senator
Sessions, citing the Chief Judge of the DC Circuit,
reaffirmed his view that there was no need to fill the 11th
seat: ``I thought ten was too many . . . I will oppose going
above ten unless the caseload is up.'' (2002)
In addition, these and other Senators expressed great
reluctance to spend the estimated $1 million per year in
taxpayer funds to finance a judgeship that could not be
justified based on the workload. Indeed, Senator Sessions
even suggested that filling the 11th seat would be ``an
unjust burden on the taxpayers of America.''
Since these emphatic objections were raised in 1997, by
every relevant benchmark, the caseload for that circuit has
only dropped further. According to the Administrative Office
of the United States Courts, the Circuit's caseload, as
measured by written decisions per active judge, has declined
17 percent since 1997; as measured by number of appeals
resolved on the merits per active judge, it declined by 21
percent; and as measured by total number of appeals filed, it
declined by 10 percent. Accordingly, before we rush to
consider Mr. Keisler's nomination, we should look closely--as
we did in 2002--at whether there is even a need for this seat
to be filled and at what expense to the taxpayer.
Second, given how quickly the Keisler hearing was scheduled
(he was nominated only 28 days ago), the American Bar
Association has not yet even completed its evaluation of this
nominee. We should not be scheduling hearings for nominees
before the Committee has received their ABA ratings.
Moreover, in connection with the most recent judicial
nominees who, like Mr. Keisler, served in past
administrations, Senators appropriately sought and received
publicly available documents relevant to their government
service. Everyone, we believe, benefited from the review of
that material, which assisted Senators in fulfilling their
responsibilities of advice and consent. Similarly, the
Committee should have the benefit of publicly available
information relevant to Mr. Keisler's tenure in the Reagan
Administration, some of which may take some time to procure
from, among other places, the Reagan Library. As Senator
Frist said in an interview on Tuesday, ``[T]the DC Circuit

[[Page S8319]]

. . . after the Supreme Court is the next court in terms of
hierarchy, in terms of responsibility, interpretation, and in
terms of prioritization.'' We should therefore perform our
due diligence before awarding a lifetime appointment to this
uniquely important court.
Finally, given the questionable need to fill the 11th seat,
we believe that Mr. Keisler should not jump ahead of those
who have been nominated for vacant seats identified as
judicial emergencies by the non-partisan Judicial Conference.
Indeed, every other Circuit Court nominee awaiting a hearing
in the Committee, save one, has been selected for a vacancy
that has been deemed a ``judicial emergency.'' We should turn
to those nominees first; emergency vacancies should clearly
take priority over a possibly superfluous one.
Given the singular importance of the DC Circuit, we should
not proceed hastily and without full information. Only after
we reassess the need to fill this seat, perform reasonable
due diligence on the nominee, and tend to actual judicial
emergencies, should we hold a hearing on Mr. Keisler's
nomination.
We thank you for your consideration of this unanimous
request of Democratic Senators.
Sincerely,
Patrick Leahy.
Chuck Schumer.
Russ Feingold.
Ted Kennedy.
Dianne Feinstein.
Dick Durbin.
Herb Kohl.
Joe Biden.

Mr. ALEXANDER. It was signed in 2006 by all the Democratic members of
the Judiciary Committee: Senator Leahy, Senator Feinstein, Senator
Kennedy, Senator Biden, Senator Schumer, Senator Durbin, Senator
Feingold, and Senator Kohl. These Senate Democrats said under no
circumstances should we consider confirming a judge to the DC Circuit
when it is so underworked. So the Republican President and the
Democratic Senate agreed with that and reduced the Court's size by one
judge--just the same argument being made today.
No. 2, any suggestion that the President's nominations are being held
up is completely wrong. I invited the Congressional Research Service
into my office. I asked that question. They have said: No. President
Obama's cabinet nominations in his second term are being considered at
about the rate as those of President Clinton and President George W.
Bush.
On every Senator's desk is an Executive Calendar. Every person who
could be confirmed by the Senate is on this calendar. There are about
11 pages. The one who has been on there the longest goes back to
February and six were reported in the Summer. But all the rest of them
go back just to September 12--just a few weeks. Most of them have been
there just 3 or 4 weeks.
So people are not being held up. The only way a nominee can be
reported to the Senate floor is by a Democratic committee. The only
person who can bring them from the calendar to be confirmed is the
Democratic leader. Why doesn't he bring them to the floor and let them
be confirmed?
In the history of the Senate--and this is from the Congressional
Research Service--there have only been 17 executive nominees in its
history who have failed to be seated because of a filibuster vote, a
failed cloture vote. There have been two under the Clinton
administration, three in the Bush administration, two in the Obama
administration. There have been five Bush circuit judges and five Obama
circuit judges. Never a Supreme Court Justice--there was a little
exception with Abe Fortas, which was different--never a district court
judge, and never a Cabinet member denied a seat by a filibuster--a
failed cloture vote. So where is the crisis?
In conclusion, I would make this suggestion: I think what makes
Americans angry about ObamaCare is it is taking us in the wrong
direction, it is the 3,000-page bill, but as much as anything else it
is the raw exercise of political power in the middle of the night
during a snowstorm to pass a bill by a partisan vote, without any
bipartisan support.
If the Democrats proceed to use the nuclear option in this way, it
will be ObamaCare II, it will be the raw exercise of political power to
say: We can do whatever we want to do.
Grantland Rice, a famous sportswriter, once said: ``It's not whether
you win or lose, it's how you play the game.'' In this case, it is not
so much what the rule is, it is how you change the rule. There have
always been a few Senators on either side of the aisle who care enough
about our institution and enough about our Constitution of checks and
balances to stop a stampede that we will later regret. I hope that will
be true again. I hope we will resist turning the Senate into an
institution where the home team can cheat to win the game, to get
whatever result it wants at any time it wants. Because as Senator
Vandenberg said, and Senator Levin has repeated: A Senate where a
majority can change the rules any time it wants is a Senate without any
rules at all.
I ask unanimous consent to have printed in the Record a 1-page
summary of the 17 nominations that have not been confirmed after a
failed cloture vote, which, according to the Congressional Research
Service, is the entire number in the history of the U.S. Senate that
have ever been denied their seat by a filibuster.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Nominations Not Confirmed After a Failed Cloture Vote

Executive Branch

Clinton Nominees

Sam Brown--to be Ambassador to the Conference on Security
and Cooperation in Europe
Henry Foster--to be U.S. Surgeon General

G. W. Bush Nominees

Thomas Dorr--to be Undersecretary of Agriculture for Rural
Development and Board Member, Commodity Credit Corporation
John R. Bolton--to be U.S. Representative to the United
Nations
Peter Flory--to be Assistant Secretary of Defense

Obama Nominees

Craig Becker--to be member of the National Labor Relations
Board
Mel Watt--to be director of the Federal Housing Finance
Agency

Circuit Court Judges

Bush Nominees

Miguel Estrada
Charles Pickering
William Myers
Carolyn Kuhl
Henry Saad

Obama Nominees

Goodwin Liu
Caitlin Halligan
Patricia Millet
Cornelia Pillard
Robert Wilkins
Source: Congressional Research Service.

The PRESIDING OFFICER (Mr. Heinrich). The assistant majority leader.
Mr. DURBIN. Mr. President, I will take a few minutes to respond to
the statement just made by my colleague from Tennessee, my friend,
Lamar Alexander.
We have a circumstance here in the U.S. Senate which is----
The PRESIDING OFFICER. On whose time does the Senator speak?
Mr. DURBIN. Mr. President, I am sorry. I did not know we were in
controlled time, so I yield the floor.
The PRESIDING OFFICER. The Senator from Texas.
Mr. CRUZ. Mr. President, I rise in support of the Gillibrand
amendment. I am proud to support Senator Gillibrand's concerted effort
to deal with the problem of sexual assault in our military.
I want to begin by commending her persistent leadership in forging a
bipartisan coalition to tackle this serious problem. I supported the
Gillibrand amendment in committee, and I am proud to be a cosponsor of
the amendment here on the floor of the Senate. I rise today to share my
reasons for supporting it and to encourage my colleagues to continue to
come together in support of this amendment.
Everyone in this body wants to support the men and women of our
military. In the course of the Senate Armed Services Committee hearings
on sexual assault, we heard testimony after testimony after testimony
about the persistent problem of sexual assault in the military. I found
myself persuaded by the arguments that Senator Gillibrand raised in
defense of her amendments.
Indeed, when I said at the hearing that I had been persuaded by the
arguments, I have to tell you, afterwards a reporter from a newspaper
came up to me astonished, and asked, in wonderment: Were you really
persuaded by arguments at a hearing? I thought everyone came in with
their views already set in stone, and nothing that was said here made a
difference.
I chuckled and said: Well, the arguments Senator Gillibrand put forth
I

[[Page S8320]]

found powerful in terms of how do we deal with a serious problem.
There were two arguments in particular that I found persuasive. The
first is that sexual assault has proven to be a persistent problem in
the military. According to the Defense Department, 3,374 cases of
unwanted sexual contact were reported last year.
More than 23,000 additional cases of unwanted sexual contact went
unreported. This has been a problem that has been present in the
military for decades. Our commanders, our generals, our admirals, have
worked in good faith, have worked diligently to correct this problem.
It has proven a persistent problem. Yet, unfortunately, their efforts
to correct the problem have not proven successful.
In the civilian side, one of the great challenges when it comes to
sexual assault is the relatively low rate of reporting. Sadly, on the
military side, that problem is even greater. The most significant
barrier we see to deterring and preventing sexual assault is that many
of the victims are unwilling, are not comfortable coming forward and
reporting the assaults they are experiencing. Despite the repeated
good-faith efforts of our military commanders, we have been unable to
fix that problem.
The second argument Senator Gillibrand raised that I find quite
persuasive is that a number of our allies, including Great Britain,
including Israel, including Canada, including Germany, have implemented
reforms quite similar to the reforms she is proposing, which is namely
that the decision whether to bring a prosecution for a crime like
sexual assault should be made by an impartial military prosecutor and
not by the commanding officer who may well be the commanding officer
both of the victim of the crime and the perpetrator of the crime. Those
reforms have been implemented by our allies. Our allies have not seen
good order and discipline undermined. Indeed, the data suggests they
have seen an increase in reporting rates. Those are the arguments that
persuaded me that we need to solve this problem, we need to stop this
problem.
Let me point out that the coalition supporting the Gillibrand
amendment is a bipartisan coalition. This cuts across party lines.
In my view, there are two strong conservative principles, both of
which the Gillibrand amendment furthers. No. 1, all of us want to
strengthen our military, ensure that good order and discipline are
protected; that our commanders are effective; that we maintain the
strongest fighting force on the face of the planet. But, No. 2, all of
us want to prevent and deter violent crime and to ensure that anyone
who commits violent crime, and in particular a crime of a sexual
nature, meets swift and sure punishment.
Prior to being elected in the Senate I spent many years in law
enforcement working to ensure that those guilty of violent crimes, and
in particular crimes of sexual violence against children, against
women, received the swiftest and surest punishment.
In my view, the Gillibrand amendment furthers both of these
conservative objectives. I have tried to think about this issue not
just from the perspective of a Senator but also from the perspective of
a father. My wife and I have two little girls, Caroline and Catherine,
who are 5 and 3. I have tried to think if some years hence Caroline or
Catherine made a decision to step forward and volunteer to serve in our
Armed Forces, what are the rules I would want to be in place to ensure
that my daughters were protected against any risk of sexual assault.
Given the two-decade-plus history that we have seen in the military
of not being able to effectively prevent these crimes and not having
victims willing to come forward and report, in my view, shifting not to
a civilian authority but to an impartial military prosecutor is going
to significantly increase the reporting rates, which, in turn, is going
to deter these crimes from being committed.
All of us owe a duty to our soldiers, our sailors, airmen, and
marines, the young men and women who voluntarily step forward to risk
everything to defend our Nation. For one of those young soldiers to
find himself or herself the victim of sexual assault is an absolute
violation of that trust.
The Supreme Court has referred to rape as ``short of murder, the
ultimate violation of self.'' All of us have an obligation to make sure
we are protecting our soldiers. An environment where young men and
women in the military fear the risk of sexual assault or are not able
to come forward and report those crimes is not an environment that
furthers good order and discipline. So I would encourage all of my
friends in this body, both Democrats and Republicans, to come together
in support of this commonsense proposal to strengthen our military, and
at the same time to deter and punish the unacceptable, unspeakable
crimes of sexual assault so we can together honor the commitment we owe
to all men and women in the military.
I yield the floor and I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Ms. AYOTTE. I ask unanimous consent that the order for the quorum
call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. AYOTTE. Mr. President, I rise today to talk about a very
important issue I spoke about on the floor yesterday; that is,
eliminating sexual assaults in our military, making sure victims are
supported, that they get the support they need.
Yesterday on the floor I talked about important reforms we are doing
together on a bipartisan basis to make sure victims receive special
victims' counsel, so each victim is now going to receive an attorney
who represents him or her in the system, and stands up for their
rights.
We make retaliation a crime under the Uniform Code of Military
Justice so that victims of sexual assault understand if they are
retaliated against, there will be a crime for that. In fact, those who
retaliate will be brought to justice.
There are many other dozens of reforms that are in the Defense
authorization, but today I want to talk about a very important issue. I
see on the floor Senator McCaskill. I want to commend her for her
leadership on this issue. She has been a tremendous leader. Senator
McCaskill, Senator Fischer from Nebraska, and I have offered an
amendment that will further strengthen historic reforms that we
discussed yesterday on the Defense authorization, including allowing a
victim to formally express their wish about how their case will be
handled, in addition to their being, of course, provided special
victims' counsel, to provide the prosecuting attorney the ability to
disagree with a commander's decision, which I will talk about more, and
to have a review of that decision by the civilian head of each force.
Then we eliminate things such as the good soldier defense. Then those
who feel like they have been discharged from the military or how their
discharge has been described will now get an opportunity to have their
case reviewed. So we are not only looking forward, but we are going to
look backward to make sure that victims of crimes know they will be
treated with dignity and respect.
I have come to this issue as someone who was a prosecutor. Most of
the cases I prosecuted were murder cases, but I also had the chance to
serve as attorney general of our State, where I worked with not only
murder victims but also victims of sexual and domestic violence. This
is a set of crimes that is unacceptable in society, but particularly
unacceptable in our military, where we expect the very best from our
military.
I looked at this issue very carefully, the issue that has been
discussed so much on the floor today, that is, in handling sexual
assault cases and other types of cases, should the military justice
system be changed fundamentally to take the commander out of the
decision on whether a charge will be brought after an independent
investigation. I came down on the side of we need to hold commanders
more accountable, not less accountable, because everything within our
military, of course, is deployable. We have the finest men and women
who serve our country in the world. We have to have a military justice
system structured in a way that it can bring justice in Afghanistan as
easily as it can bring justice in the United States of America,
wherever our men and women are situated. If we take commanders out of
the

[[Page S8321]]

decisionmaking process, then fundamentally we are holding them less
accountable for the results of how these cases are handled. So I would
like to talk about the proposal Senators McCaskill, Fischer, and I have
that I think will hold commanders much more accountable.
Right now, as we look at cases of sexual assault in our military, we
want victims to understand they can come forward. When they come
forward, and we want them to come forward, they will get the support
they need and deserve; that their perpetrators will be held accountable
for the crimes they have committed.
We want commanders to establish a climate within their unit to say no
tolerance when it comes to sexual assault. If you do not handle a
sexual assault case properly, you will be relieved of your command.
That is what this is about.
So in our proposal, rather than remove commanders from the
decisionmaking--let me say how this works so people understand. Right
now, a victim of a sexual assault or another serious crime comes
forward. They do not have to come forward through their chain of
command. They can come forward through a health care professional, they
can come forward through a 911 call, they can come forward through
their pastor to report a sexual assault. Then it is independently
investigated.
From there, that investigation is presented to a JAG lawyer in the
chain of command who then makes a recommendation to the commander of
whether a charge should be brought and whether they should be going to
a military trial at that point. So to take out of that the decision of
the commander is now to leave the victim in a situation where--let's
put this victim in Afghanistan. They are in a situation where the case
has been investigated. It comes back. The commander now does not take
responsibility for whether a charge is brought. The commander is now
put in a situation where: I am sorry, that decision is being made by
another set of JAG lawyers who are outside of the chain of command, so
go talk to the lawyers over here, not me. It puts the commander in a
bystander responsibility rather than taking responsibility for these
decisions.
So what we have done is made commanders more accountable. When the
JAG lawyer comes to the commander for a recommendation, saying this
case should be brought on a sexual assault case, if the commander says:
No, it should not, that will go all the way up to the civilian
secretary of whatever force is involved, whether it is the Secretary of
the Army, the Secretary of the Air Force, each branch, and will be
reviewed separately. That will hold commanders more accountable than
turfing it over to a lawyer over here where the victim has to hear
that: I am sorry, I cannot tell you what the decision is on your case
because there is a lawyer over here making this decision.
Even in a case where the commander and the JAG lawyer both agree that
a charge should not be brought, under our proposal there will be
another review of those cases up the chain of command to say someone
else should look at it. There should be accountability. There should be
accountability at every level of our military to ensure that victims of
sexual assault will be supported and that these cases will be handled
and the perpetrators will be brought to justice.
There has been a lot of discussion on the floor today. All of us want
more victims to come forward and feel that they can report their case,
because not enough of them have come forward.
Yet the evidence shows that if we take commanders out of it, we are
not necessarily going to get any more reporting. In fact, we have cases
that may not be brought to justice. The evidence shows that commanders
are being more aggressive than the actual JAG lawyers in terms of cases
that are being brought. If we look over the last 2 years, there are 26
Army victims where the JAG lawyer said: Don't bring the case.
The commander overruled the JAG, went to trial, and the perpetrator
was convicted. There was justice for this victim.
Under this proposal those cases would not have gone forward because
the JAG lawyer said: No, don't bring it. There were 16 cases in our
Marine Corps over the last 2 years where that would have happened as
well, where 16 victims wouldn't have received justice.
There was one Navy victim, and nine Air Force victims would not have
seen a conviction for their perpetrators--the rapists, who deserve to
go to trial, to be convicted, and to be judged. Those cases would not
have gone forward.
When I hear Senator Gillibrand's proposal--and I respect her so much,
and there is so much we agree on, and I respect the work that she has
done and the work that we have done together on many of the provisions
that I have talked about--the discussion that taking it out of the
chain of command will cause more reports to come forward, then if less
cases will go to conviction, if I am the victim, how does that make me
feel more as if I want to come forward and report my case? Maybe my
case won't be brought or there is a set of cases that would not ever be
brought if a commander--who has responsibility within his or her unit
for this--hadn't recommended this case go forward.
The other argument we have heard a lot about is many of our allies
have taken it out of the chain of command, including Canada, Great
Britain, Israel, Germany, and Australia. There has been a
misunderstanding, because as we researched this issue as to why our
allies took it out of the chain of command, we discovered the truth is
they took the decision out--of whether a commander would make the
decision to go to a trial on a sexual assault case or other serious
felony--to protect defendants, not victims.
I can assure people--with all due respect to defendants, and I have
defended cases as well because they certainly have rights under our
laws and I respect that--this is about protecting victims. Our allies
changed their system to protect defendants. What we are trying to do is
to have a victim-friendly environment where people will come forward
and where perpetrators will be held accountable.
If we look at those countries such as Canada, Great Britain, Israel,
and Australia, that have changed their system, they have not seen any
greater reporting. In other words, it is one thing if we looked at it
and said when they changed their systems the victims came forward. That
is not the case. That is not what the evidence shows. Facts are
stubborn things.
As a former prosecutor, I want to make decisions on how to address
this very real and important problem based on facts. The facts are that
there are cases that wouldn't have been prosecuted if we took it out of
the chain of command--perpetrators that should have been held
accountable. Our allies did it, but they haven't seen any greater
reporting, and they did it to protect defendants.
What do we want to do? Let's hold our commanders more accountable.
This is what some former peers of our military have said, such as COL
Lisa Schenck, U.S. Army retired former Judge Advocate General, who
spent 25 years in the military. We asked her about these two proposals.
She said: If you take out the convening authority--meaning the
decisionmaking process from the commander--you are essentially gutting
the military justice process. If you take the court-martial process
away from the convening authorities for sexual assaults or for major
offenses, that allows them to say: Hey, the JAGs are dealing with it.
They need to be held accountable, and they need to be part of a
process.
We don't want to create a situation where we say: I have turfed it to
my lawyer over here, and the lawyers over here are going to make the
decision.
Commanders should be held accountable for those decisions.
In fact, we had a woman who is currently in the Marine Corps come to
the Republican Conference, a woman commander. She is very impressive to
have reached the level she has in the Marine Corps. She works training
our marines. I was very impressed with her experience. She has
commanded at every level. She said: If you want to get this done for
victims, don't make the commanders bystanders.
This is what makes me very worried. If I thought that taking the
commanders out of the decisionmaking process would help victims
further, I would do it. As she describes: If you make a commander a
bystander--which is what the proposal on the table of Senator
Gillibrand is, who I very

[[Page S8322]]

much respect, and I know her passion is very real for this and I share
it. I don't want commanders to be bystanders. If they are bystanders,
then how do we relieve them from command when they don't do their job
on this because we have taken the decisionmaker standard from it.
This is another issue that concerns me. We have spent a great deal of
time, rightly so, trying to address the issue of sexual assault in the
military. The Gillibrand amendment that is on the floor doesn't only
take sexual assault out of the chain of command, it takes out murder,
manslaughter, death or injury of an unborn child, stalking, rape--we
talked about rape--larceny and wrongful appropriation, robbery,
forgery; making, drawing, or uttering a check, draft or order without
sufficient funds; maiming, arson, extortion, assault, burglary,
housebreaking, perjury, and frauds against the United States.
We need to understand that the reason we have the military justice
system structured this way is because we deploy to places such as
Afghanistan. Not only in sexual assault cases will the decision of the
commander--whether or not to refer the charge for a trial--be changed
under the Gillibrand proposal, but in all of these crimes in which we
have not received any testimony about. We have not received evidence
that the commanders are mishandling murder cases, manslaughter cases,
arson cases, extortion, assault, burglaries, fraud.
This is very much a fundamental change, not only in an area we all
care passionately about getting right, to make sure that victims of
sexual assault are supported, but all of these crimes will now be
removed from the chain of command.

How will that work in Afghanistan and Iraq? I am trying to figure
this out. There have been over 900 cases in Iraq and Afghanistan, as I
understand it, where some type of trial has had to be held because of
offenses that were committed in Afghanistan, all different types. I am
not only talking about sexual assault, I am talking about all different
types of crime.
How is that going to work? Are we going to say we will wait to see
whether we should bring this to trial? The lawyers are located
somewhere else. We don't know where; it could be in the Pentagon. So we
will wait for the lawyers from the Pentagon, or wherever this separate
set of lawyers are located, until we have justice in places such as
Afghanistan.
This is for all of these cases on all of these crimes about which we
haven't even had any testimony before the Armed Services Committee to
address an issue that we all care very much about.
There were 900 cases from Iraq and Afghanistan. As we know, Iraq
could have been as much of an issue in terms of having a deployable,
military justice system to ensure that victims of all types of violent
crimes, no matter where they are, will get justice and that
perpetrators, no matter where they are, will be held accountable for
their actions. This is what this is about.
I thank the Chamber for all of the work that is being done, for all
of this work done on this important issue. I know that after we vote on
all of these proposals--Senator Gillibrand's proposal, as well as the
proposal that Senator McCaskill, Senator Fischer and I have--that we
will be working together to make sure that there is accountability on
this issue. Reforms have already been passed that are in the Defense
authorization. They are very important items such as the special
victims' counsel that I mentioned earlier.
I see Senator McCaskill, and I know that she and I, as members of the
Armed Services Committee, are not going to let this issue go. There
will be follow-up to make sure that the military is held accountable.
We have the best military in the world.
This does go to the core of our readiness of good order and
discipline. We can't have good order and discipline if we put
commanders on the sidelines. We will hold them more accountable under
our amendment, amendment No. 2170.
I thank the Chair for the opportunity to speak on this important
issue.
I yield the floor.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. I understand Senator Lee is on his way to the floor. I
will yield to him when he arrives.
I came to the floor today to say what a good debate we are having.
Let us be clear, there is only one amendment that puts in place a
fundamental change; that is the Gillibrand amendment.
We have had 20 years of promises that this problem would be fixed. I
have a chart I will bring out later to show that every Secretary of
Defense for 20 years, Republican and Democratic, has said exactly what
Senator Ayotte has said: Oh, we are going to fix this, and it is going
to be fine.
We are picking up steam in our support. I wish to state the reason we
are picking up steam. It is because, with all due respect, every single
victims' organization that I know of supports the Gillibrand amendment.
When victims say to me the reason I don't report is because I don't
want to take it to my commander, I think we ought to listen.
With all due respect, I love the Senators on the other side and I
have great respect for the people in the military, but they are not the
victims. The victims are standing behind the Gillibrand amendment.
The committee that advises the Pentagon on the treatment of women in
the military is called DACOWITS. This committee came out overwhelmingly
in favor of the Gillibrand amendment.
My colleagues are saying don't make this fundamental change. But the
one committee that advises the military--made up of retired military
members and civilians--had a chance to say go with the status quo or go
with the Gillibrand amendment. They voted without a single dissent in
favor of the Gillibrand amendment.
When one stands here and defends the status quo in terms of the way
this is decided, we have to understand they are in essence saying a 10-
percent reporting of these incidents is OK with them. Otherwise they
would vote to change it.
They can think they know why more people aren't reporting and fix it
around the edges. I am so pleased we have some reforms in the bill. But
the main, major reform and the reason the victims' rights groups are so
behind the Gillibrand amendment is because it is the only fundamental
change that is in the bill.
I compliment my colleagues for what they have done. It is wonderful,
but they don't get to the heart of it, which is why we have a 90-
percent problem. Of 26,000 cases, only 10 percent are reported. I
thought it was bad in the civilian world where 50 percent are reported.
I say to my colleagues, we all have staffs and we run a workplace. I
don't know how many people each of us has in their offices. I say to my
colleagues, suppose there was a horrible sexual assault that took place
in our workplace. We knew the alleged perpetrator, and we knew the
alleged victim. We would call the police. We wouldn't become the
decider. We wouldn't become the jury, the judge, as these commanders
do.

What is really interesting is Senator Gillibrand called a press
conference, and we had a commander who commanded troops in Iraq, and he
said: Honestly, the last thing I wanted as I was getting my troops
ready to fight and win battles was to deal with some horrible incident
that occurred among those I was commanding. I wanted to get a
professional in there.
The Gillibrand amendment is important not only for the victims but,
yes, for good order and discipline. How can people stand here and say
there is good order and discipline when there are 26,000 incidents of
sexual assault and only 10 percent are reported? There are thousands of
people walking around the military not being charged, and sometimes the
deal they get is to get kicked out.
I will tell a story of one of my constituents because I think it is
instructive. She joined the Marines. She was out with friends, and she
was drugged. She was brutally raped. She was tossed on the street in
the early morning hours. She woke up dazed. She reported it to her
commander. Let me tell you what happened. The perpetrator got

[[Page S8323]]

out of the military--probably to continue his rampage on the streets of
some city we represent--and my constituent was investigated by the
military for drug use because she was drugged that night and abandoned
on the street.
So I hope the people who support the status quo will hear that story
and hear the other stories. We have a 90-percent problem; 90 percent do
not report. We have DACOWITS advising the military it is made up of
former military members and civilians saying support Gillibrand. We
have every victims' rights group I know supporting Gillibrand. I will
just say that if a minority of this Senate stops us today, we are going
nowhere. We had a press conference yesterday where we revealed the new
Republican on our team; today, a new Democrat. We want to have the best
servicemembers in the world. We want our commanders concentrating on
what they have to concentrate on. We have men and women being
assaulted, and we have a plan in front of the Senate, and that plan is
the Gillibrand amendment. It is smart, and it has strong bipartisan
support.
Believe me, I was at a press conference with Senator Grassley,
Senator Cruz, Senator Paul, Senator Shaheen, of course, Senator
Gillibrand, Senator Hirono, and our group is growing. So if a minority
of the Senate stops this, I will hearken back to the many reforms that
have been made--whether it is don't ask, don't tell, gays in the
military--you can just name them. Yes, it may take us a time or two. I
remember having an amendment that lost that said you can't take
convicted felons into the military if they have been convicted of a sex
crime. I lost. I lost. But years later I won, and now you cannot take
these felons into the military. So these reforms are hard. This one is
20 years in the making. History will record who stood on the side of
positive change, who stood with the victims, and who obstructed.
I know everybody is doing it for reasons, and I respect that, OK.
Let's be clear. But I am passionate about this because I have been here
before. I was in the Congress during the Tailhook scandal, and I said
to myself after that was publicized: This will never happen again. We
won't see harassment. We will see a reduction in rapes.
Remember, half of the victims are men. This is a crime of violence.
This is a crime of terror. We have to make sure there is justice, and
that means trained people making the decision of whether to go forward,
trained people running the trial and not putting this on the
commanders. At the end of the day, when you talk to them--and I haven't
talked to all of them, but I have talked to many of them--they say the
last thing they want is this power.
No one can tell me there is good discipline when we have a 10-percent
reporting record here--10 percent of the crimes are reported. It just
can't be. That isn't good discipline. That isn't good order when you
have rapists walking around because people are too scared to go to
their commander.
I know my colleagues are trying to do the best for this country, but
listen to the victims. We don't know better than the victims. We don't
know better. We should be humble. We should listen to the victims.
Our allies have gone this way, and they have been pummeled here
today, saying they have bad records and the rest of it. I think the
reputation of the Israeli military is second to none. They have taken
this outside the chain of command. Many of our other allies and
friends--Australia. I visited there and talked about this. Frankly,
this is the way to go.
Sixty percent of the American people support the Gillibrand
amendment--60 percent in a poll that just came out. So the people are
for the Gillibrand amendment, the victims are for the Gillibrand
amendment, and the one committee that advises the Pentagon on women's
rights in the military is for the Gillibrand amendment.
I praise everyone who has worked on so many other reforms in this
bill. I am so proud. This is a reform bill. But I beg my colleagues to
make that fundamental change we need to make and have the professionals
decide whether there is a case from beginning to end. That is what
justice really is.
I will close with this. There is a woman who has been put up for
Under Secretary of the Navy. I have a hold on her nomination. I don't
believe in secret holds. This is from the Obama administration. She was
asked about the Gillibrand proposal, and do you know what she said, Mr.
President? Here is what she said: If you take this outside the chain of
command, decisions on this crime will be made based on the evidence,
not on good order and discipline.
Can you believe that? This is the truth. We don't have decisions
being made based on the evidence. This woman was honest, I give her
that. She said that if we took this outside the chain of command,
decisions on these crimes would be made based on the evidence. Well,
she made our case, and I am proud to stand with a very strong
bipartisan coalition in favor of the Gillibrand amendment.
I yield the floor.
The PRESIDING OFFICER. The Republican whip.
Mr. CORNYN. Mr. President, I ask unanimous consent to engage in a
colloquy with my colleagues for 30 minutes and that those 30 minutes
not count against the current 6-hour commitment to debate the
amendments on military sexual assault.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. CORNYN. Mr. President, I have been a member of this Chamber for a
while now, and during my time here few of our colleagues have done more
to expose waste and duplication and overspending than our colleague
from Oklahoma Senator Coburn. I am, of course, cognizant of the fact
that Senator McCain, the senior Senator from Arizona, has quite a
reputation himself in this area. I am pleased to join both of my
colleagues, along with, I anticipate, the junior Senator from Arizona,
to talk about some very important work Senator Coburn and his staff
have done to help highlight the savings we can find within the Defense
Department budget due to duplication and waste and failure to exercise
reasonable management practices, such as audits. We can save money and
reallocate that money to help our fighting men and women in uniform,
help keep them safe and help maintain America's role as a preeminent
military leader in the world.
Senator Coburn has pointed out in a new report I am sure he will talk
about that we can save more than $60 billion by consolidating half the
Federal Government's duplicative programs. Each of these programs has
its own overhead, and through consolidation we can eliminate that
overhead and still make sure the same amount of money is used to
deliver the particular service. For that matter, if we were to
consolidate just a third of the renewable energy programs, we could
save $5 billion alone. If we stop sending unemployment checks to
millionaires, we could save another $30 billion.
I am a proud defense hawk. We call it the Yellow Pages test in Texas.
If you can look in the yellow pages and see a service being provided by
the private sector, you have to ask, why is the government providing
that service? But there is no ability of anyone to provide national
security except for the Federal Government. It is the No. 1 reason for
the Federal Government's existence, and it is a tragedy to see so much
money wasted when it is needed so desperately by our military during
these very dangerous times. It is, indeed, embarrassing that the
Pentagon cannot even conduct an audit. They do not know where the money
is. They do not know how it is being spent, how it is being misspent.
So I am a proud cosponsor of my colleague's Audit the Pentagon Act. The
Pentagon isn't scheduled to actually perform an audit until 2017, and I
doubt they will be able to meet that deadline. I am sure we will hear
more about that from the Senator from Oklahoma.
There is no good reason why the Pentagon shouldn't be able to tell
the American people exactly how it is spending hundreds of billions of
dollars in taxpayer money. Don't get me wrong. If our military needed
the money in order to protect the American people and to keep us safe,
I would vote for that expenditure 10 times out of 10. But when I am
told there is money that should be spent helping keep us safe and
protecting our national security that is wasted through duplicative
programs, through inefficiencies, through the inability to simply
manage the hundreds of billions of

[[Page S8324]]

dollars the Pentagon manages, it makes me livid, as I think it should
all of the American people.
We know DOD continues to experience serious cost overruns with major
acquisition programs. I know Senator McCain, in his capacity on the
Armed Services Committee, has been an eloquent critic of these cost
overruns of various acquisition systems. A 10-percent reduction in DOD
waste could yield an annual savings of $60 billion--$60 billion. That
is real money, and that is money that could either be reallocated to
pay down the debt or could be reallocated to help fund very important
overseas operations by our military in dangerous parts of the world or
here at home.
The bottom line is that even those of us who are proud national
security hawks should be pushing first and foremost to eliminate
wasteful defense spending and to audit the Pentagon. In my view, those
are no-brainers. We should not continue down the path of wasteful
Washington spending and say: Well, we don't have enough money, so we
are just going to bust the budget caps in the Budget Control Act. We
shouldn't say: Well, we are not going to address the hard issues of
wasteful spending at the Pentagon; we are just going to raise taxes.
Those are cop-outs, and we shouldn't go there.
With that, I yield the floor for my good friend from Oklahoma.
Mr. COBURN. I thank the Senator from Texas. I have worked on these
areas for a long time. I too am a defense hawk. I am not often accused
of that because I am critical of wasteful spending in the Pentagon.
Let me outline for my colleagues that the Pentagon's budget is near
$600 billion, counting the extra money for overseas efforts today. Just
by auditing the Pentagon, the GAO estimates the Pentagon itself would
save $25 billion. The only branch of the Pentagon that has come close
to an audit so far is the Marine Corps. For every dollar they are
spending now on managing, they are saving $3 in the Marine Corps.
So we have repeated attempts through the year to address the symptoms
of the problems rather than the real problem. Let me outline that.
The Pentagon has a broken procurement system. If we think about the
programs which have been canceled and the penalties paid because of the
programs which have been canceled--and Senator McCain can talk about
those better than I ever could--we have never fixed the real problem,
and the real problem is what Eisenhower warned against. It is the
defense industrial complex. The only way we will ever solve the
procurement problem of major weapons systems is to force the defense
industry to have capital at risk on new weapons systems. In other
words, they have to have money in the game.
What routinely happens are two things: One is they don't have money
in the game and we start out at cost-plus programming. Then the second
problem--which Senator McCain identified with me today and I have long
known--is there is never a grownup in the room when it comes to adding
on the bells and whistles in terms of the costs. As a matter of fact,
half of the major weapons systems the Pentagon is buying today are on
the high-risk list by GAO. So what we have to do is fix the real
problems, not continue to treat the symptoms.
Let me run through a list in terms of savings in the Pentagon. These
are not 1-year but 10-year numbers. So if we instituted this, we would
save one-tenth of what I mention.
Just consolidation of the defense IT structure could save $160
billion over the next 10 years. There are 80,000 employees working in
IT for the Pentagon. That is twice the population of my hometown. They
have more data centers in the Pentagon than we have in all the rest of
the government combined. As a matter of fact, Senator Bennet and I have
coauthored a bill to reduce those data centers. They are not highly
utilized. They are very expensive to run. They also put us at risk for
cyber security.
The other thing not mentioned about IT is in weapons system
procurement we have other ITs that aren't even counted in this,
managing those procurement programs.
If we took the V-22 Osprey we have on order and replaced it with MH-
60 helicopters--which can accomplish almost exactly the same thing--we
can save $600 million a year, every year, over the next 10 years.
Boeing doesn't like that--Boeing and their partner in contracting don't
like that. But there hasn't been a weapons systems we have deployed
that has had as many problems as the V-22 Osprey. Yet we are going to
buy more, rather than a proven vehicle transport system which can
accomplish almost everything the Osprey can. It is not the latest, it
is not the newest, but it actually accomplishes the goal.
If we reduce the spending for other procurement programs--and let me
say why this is important. The Defense Logistics Agency has no idea
what they have in inventory. There is a public law which says they will
have an inventory. They have ignored it for years. So they have never
taken an inventory. It is ``too big'' to take an inventory. There are
hundreds of billions of dollars of equipment and parts and supplies at
the DLAs, at the depots around the country, that are in excess and we
continue to buy new parts for because we don't know we have them. Fix
the real problem. That is $52 billion over the next 10 years.
If, in fact, we took nonmilitary jobs at the Pentagon being filled by
uniformed personnel today and replace them with civilian Federal
employees, we would save $53 billion over the next 10 years. These do
not require a trained soldier to do these jobs. That is $5 billion a
year. That is 10 percent of the sequester on the Pentagon. All we have
to do is to decide to do it. Do it. But we will not do it.
If we reduced contractor support and did more stuff internally by the
military--and I will give a great story. Offutt Air Force Base in
southwest Oklahoma, C-17 training. The most recent commander down there
saved $136 million the first year he tried in running that base. He got
the heck kicked out of him for doing it by the higher-ups because they
wanted him spending all the money. But what he did is demonstrate there
was $136 million we could save on that one base. The question is, Where
is the leadership to do that? So we could save that $53 billion--$37
billion in terms of decreasing contract support.
If we just consolidated the three military health care services, we
would save $380 million a year. At the same facilities, at the same
locations we have duplicative military health care services. So we can
consolidate that, give more consistent care, give better care, and yet
save a significant amount of money.
The Department of Defense has over 104 science, technology,
engineering, and math programs. Governmentwide we have 207. Over half
of them are at the Department of Defense. Why 104 from the Department
of Defense? Why not one that incentivizes science, technology,
engineering, and math? If we consolidated them, we could save $1.7
billion over the next 10 years. That is $170 million a year.
What will that do for the operations and maintenance budget? What
will that do for flying time for our pilots? What will it do for
training that is not happening now for people deploying to Afghanistan?
Those should all happen.
Domestic schools. We have 16 bases that still have domestic schools
on them, where we run schools by the Pentagon. The cost per student in
the United States is $50,000 per student, five times what we spend
everywhere else in this country on elementary and high school
education. If we just ran those in the local school district and paid
them $1,000 or $2,000 more than their average cost, we would save over
the next 10 years $9.8 billion. We would save $1 billion a year.
If we consolidated the DOD-administered grocery and retail stores--
and, by the way, Walmart has offered to do that, to offer the same
prices--we lose money every year on those, and that doesn't include the
cost of running them. When we have gone out to price things against the
grocery store or Costco or Walmart or everywhere else, we can actually
buy it as cheaply in the private sector as we can at a base PX. The
point is here is a perceived benefit which is costing us a lot of money
but isn't truly there.
Mr. McCAIN. Will the Senator yield for a question?
Mr. COBURN. I would be happy to yield.
Mr. McCAIN. As my friend from Oklahoma knows well--and, by the

[[Page S8325]]

way, I wish every American could have a chance to read this list of
waste, fraud, and incredible misuse of Americans' tax dollars. But one
of the areas not in this document that the Senator from Oklahoma and I
have talked about is the issue of cost overruns in our weapons systems.
For example, the latest aircraft carrier which was just christened
with great fanfare, the Gerald R. Ford, is now at a $2 billion cost
overrun of what the original cost estimate was. That is for one ship.
When I think about what the $2 billion cost overrun could do in my home
State of Arizona, it is even more staggering. Yet somehow we let this
cost overrun accumulate over a long period of time, and the ship still,
by the way, was recently christened, which does not mean finished,
commissioned.
At a hearing we had in the Armed Services Committee the other day
where the effects of sequestration--which I think are devastating--were
described by each of the service chiefs, the Chief of Naval Operations,
my old service, said: We need $500 million more for the Gerald R. Ford.
I was stunned. I said to him: Admiral, there is a $2 billion cost
overrun on that ship. I asked him if anyone had been fired. His answer,
I tell my friend from Oklahoma, was he didn't know if anyone had been
fired over the cost overrun of over $2 billion, with a request for $500
million more.
The Senator from Oklahoma mentioned the military industrial complex
that President Eisenhower so wisely spoke about. I would disagree. I
think it is a military industrial congressional complex because never
has Congress canceled a program once it has been in full production.
I ask my friend from Oklahoma, what do we do about what I think is
the No. 1 cost right now in the Pentagon; that is, cost overruns. I
could mention the $1 trillion F-35 and many other programs. What is to
be done about that?
Mr. COBURN. There are a lot of ideas. No. 1, our biggest problem is
when we buy, we don't know what we want. So don't even start a proposal
until we truly know what we want. That is No. 1.
No. 2 is there has to be capital at risk by the person building the
ship or building the airplane. The only way to incentivize the private
industry to control cost is to make sure half the cost is coming out of
their hide. If we do that, what will happen is we will see real cost
control because they don't do it on the commercial side. They only do
it on the military side.
The third thing is having a grownup in the room when we decide to
make modifications. The fact is, when we think we have an unlimited
budget, nobody is there to say: You don't have an unlimited budget. You
can't add this. It may be nice.
There is a great story on that. It was an Army backpack helicopter
developed by Honeywell--on time, on price. Here is Honeywell delivering
what the Army wanted on time and on price, and the military buyers
added bells and whistles. It ended up weighing 12 pounds more, tripling
the cost, and delaying the onset, to where they finally cancelled it--
not because the supplier didn't supply it on time and on price, but the
military was out of control in terms of what they were asking for. So
they didn't get it. So we didn't have the availability to our troops in
Iraq and Afghanistan to look behind walls, which was available and on
time. But it was our purchasing system.
So we can't worry about the symptoms. We have to change the
structure. We have to change the leadership.
I will make one final point. Right now we have more admirals than we
have ships. At the end of World War II, we had 10,500,000 people under
arms, we had over 2,200 general staff officers. Today, we have half
that many and 1,500,000 in arms. There is one of the big problems. One
of the biggest problems is that we have way too many staff officers--
general staff officers who each have a cadre of people and then protect
their turf. They don't protect the country, they protect their turf,
and that is not to take anything away from their service. It is human
nature. What we need is a marked reduction in general officers.
Mr. FLAKE. Would the Senator yield?
Mr. COBURN. I would be happy to yield.
Mr. FLAKE. The Senator mentioned the problem we have of the Defense
Department running schools which ought to be run by local school
districts. It goes even beyond that.
Just in the past couple of years we have absorbed into the defense
budget a capital maintenance--new capital building and replacement of
schools that are managed by the local district. Several hundred million
dollars just in the past couple of years, and obligated for the next
several years, will be used to rebuild or refurbish or to maintain
schools which are the responsibility of local districts.
What has happened is people say the local districts may not be able
to afford it or the Department of Education doesn't have jurisdiction.
There is a defense budget we can put it in. We have seen that in other
areas as well. So the Department of Defense is assuming
responsibilities it just shouldn't have. When it does, typically the
costs are much greater as well.
So I take the Senator's point and just say it is worse than we know
because we have added new responsibilities and new budget items just in
the past couple of years.
Mr. COBURN. I would add one thing and then yield back to my
colleagues.
Inside the Defense Department, over the next 10 years, we are going
to spend approximately $60 billion on things that have nothing to do
with defense. Ten percent of that is health care research conducted by
the military which doesn't have anything to do with the military. We
have the NIH, the world's premier leading research organization, and we
ought to transfer that out of the military.
As a matter of fact, the guy who started that was a friend of mine,
Ted Stevens. One of the last things he told me is one of the biggest
mistakes he ever made is putting medical research into the Pentagon,
because now it gets funded, and we are duplicating things at the
Pentagon which we are doing at NIH on diseases such as breast cancer,
prostate cancer. I happen to have a little experience with that one.
The fact is we are not spending the money wisely. We are spending money
we do not have duplicating what we are already spending money on.

I yield to my senior colleague.
Mr. CORNYN. I ask the Senator from Oklahoma, isn't it true he has the
materials Senator McCain referred to posted on his Web site?
Mr. COBURN. If people are interested, coburn.senate.gov, and they can
get that information. Everything we have, every study we have
published, all the waste, all the duplication.
I have one other item.
There is at least $200 billion a year that the GAO--not Tom Coburn--
has identified in waste and duplication in the Federal Government. We
have not acted. Only one committee of Congress, Education and The
Workforce, in the House, has acted on one of the recommendations as far
as duplication. So the problem is us.
Mr. CORNYN. I ask the senior Senator from Arizona, as we discussed,
he has been a critic and pointed out waste in the procurement process.
I know the military, in designing state-of-the-art weapons systems, the
F-35, for example, built in the notion of concurrency, where they are
actually designing it while they are building it which creates cost
overrun challenges. But I know the Senator was also instrumental in
finally getting the Pentagon to negotiate a fixed-price contract. Could
the Senator talk a little bit about some of the challenges?
Mr. McCAIN. For years, I say to my colleague from Texas, the cost
overruns went unchecked. When someone has a roof that leaks and they
hire someone to fix the roof on a cost-plus contract, I guarantee that
the cost to have your roof fixed will probably exceed the initial
estimate the roof fixer provides you. When we go into cost-plus
contracting, which is justified by many of the contractors saying,
well, we are not sure what the additional costs will be, they do not
seem to have difficulty once those contracts are fixed cost.
The best example--best or worst example--I can tell my friend from
Texas is the original effort to replace Marine One, the Presidential
helicopter. This helicopter, over a period of a couple of years, went
from requirement to requirement to requirement, to the point where it
was even a requirement that

[[Page S8326]]

the helicopter could withstand a nuclear blast. It ended up, before it
was even off the drawing board, at a greater cost than Air Force One.
At a greater cost than Air Force One. So finally they had the good
sense to scrap it and we are still using the old reliable helicopter
which seems to fairly suit the purpose of transporting the President.
Another interesting story was the Air Force now believes that one of
their primary acquisitions has to be a long-range bomber. We are
starting in this process again. At one point there was a proposal to
put a kitchenette--I am not making this up--a kitchenette into the
long-range advanced Air Force bomber. Finally someone decided maybe
that doesn't look too good, to have a kitchenette on this airplane. But
that is the case of what happens in the system we have today.
God knows the chairman Senator Levin and I and other members of the
Armed Services Committee have gone time after time to try to bring
these costs under control. I guess one of the favorite stories is of
the famous Kelly Johnson of ``Skunk Works'' of the old Lockheed team.
They went out in the desert of Nevada and came back 7 weeks later with
the SR-71. Now it takes literally decades to come forward with a
weapons system, and never once in recent years that I can recall has
there been a weapons system on time and on cost.
Then you understand, I say to my friend from Texas, where the defense
industry is so important and vital to the economy of his State, as it
is with mine. The Apache helicopter, which I am very proud of, is built
out in the east valley of Phoenix, AZ. But the American people then
become cynical about defense spending. That really does erode our
ability to sponsor and support those requirements that are so badly
needed.
I thank the Senator from Oklahoma for all he has done to continue to
bring this to the attention of the American people.
I want to make one additional comment about this medical research.
There is not a person I know in America who does not support medical
research. Particularly cancer is one of the big projects we appropriate
money for. But it is the classic Willie Sutton syndrome. What in the
world does the Defense Department have to do with cancer research? It
is the Willie Sutton syndrome. They asked Willie why he robbed banks
and he said: That is where the money is. So we are robbing Defense
appropriations for programs and projects that have nothing to do with
defense, but because the money is there we are spending it.
Meanwhile, we do not have, particularly as a result of sequestration,
adequate funding, in my opinion, that will enable us to continue to
defend this Nation.
All of us are for medical research. I do not know anybody in the
world who is not. But for us to take money out of Defense
appropriations and put it into medical research is something that is
not any way justified except for the fact that the money is there.
Mr. CORNYN. Mr. President, how much time remains?
The PRESIDING OFFICER. There is 1 minute 40 seconds remaining.
Mr. CORNYN. I yield the remaining time to the junior Senator from
Arizona.
Mr. FLAKE. Mr. President, it is interesting in terms of the money
being used where it should not be. I gave the example last week, and I
am coming down every week and speaking at least 5 minutes on waste and
duplication in government. I talked a couple of weeks ago about the
Department of Agriculture. The Department of Agriculture--this is the
Department of Agriculture, but you would not know it when you look at
some of the programs run by the Department of Agriculture. No. 1, they
have a Single-Family Housing Direct and Guaranteed Loan Program in the
Department of Agriculture. It provides zero downpayment mortgage loans.
It has cost the taxpayer about $10 billion since 2006. That is the
Department of Agriculture, running a housing program.
We see this all over government. It is wrong. Eliminating the
duplication that Senator Coburn, the Senator from Oklahoma, has spoken
of many times can save our government and the taxpayers billions of
dollars a year.
I appreciate, my colleagues, this colloquy we have had, and I look
forward to more.
Mr. CORNYN. Mr. President, we yield the remainder of our time.
The PRESIDING OFFICER. The Senator from Maine.
Mr. KING. Mr. President, I rise to address one of the most difficult
issues we have faced in this bill, an issue on which the Armed Services
Committee spent a great deal of time, in fact more time than on any
other issue this year. It is the issue of sexual assault in the
military.
At our very first hearing where we were discussing this with a group
of people, I made the observation that the only sure, long-term way to
confront and defeat this tragic problem is through a change in the
culture. It has to become unacceptable in the culture of our armed
services that sexual assault is in any way tolerated or ignored. We
have to solve this. It is a problem that has been festering for years.
I understand the impatience of those who say we have been waiting for
too long, we have to take strong steps. I think it is very important to
realize that in the bill that is already before us are strong steps,
the most comprehensive package of sexual assault provisions that has
ever been in any Defense bill, to my knowledge, in the history of this
institution. It has been taken seriously. It has been dealt with in a
comprehensive way, some of the strongest changes ever.
I think one of the most important I want to highlight is the
criminalization of retaliation. A great deal of the discussion has been
about reporting and the reluctance of victims to report, in part
because of retaliation. One of the provisions in this bill is to make
it a crime to retaliate against a victim for reporting one of these
horrendous crimes. The debate today is about one particular provision,
one particular provision dealing with sexual assault that is not in the
bill, and the question boils down to who makes the decision to refer a
sexual assault case to prosecution.
I have heard the debate. I should have said at the outset, I so
admire Senator Gillibrand for her intellect, for her passion, for her
dedication, for her perseverance on this issue. Everybody involved in
this debate has exactly the same goal, which is to get rid of this
problem, to diminish it, to reduce it to zero, to not tolerate it. That
is the goal of everyone involved. The question is whether removing the
decision to refer to court-martial from the commander will further that
goal or in fact will undermine it.
After listening to the arguments, discussing it at length with
Senator Gillibrand and others, I have concluded that to take this
decision out of the chain of command would in fact do harm to the cause
of victims' rights.
The reason is simple. I want the commander to be fully responsible
for this problem. I don't want a commander saying: It is not my problem
anymore; the Congress of the United States has said I don't have to
worry about this; I will check that box.
I believe, going back to my original point, that the way you change
the culture is in a multifaceted approach, but certainly one of the
ways you do it is through the decisions that come from the commander.
That is what sets the tone in the unit. Leadership always infects an
entire unit in good or bad ways, and I believe it would be a mistake on
the side of the victims if we change the system and allow the
commanders to say this is not my problem, this is not my
responsibility.
As Senator Reed mentioned on the floor earlier today, the Senator
from Rhode Island, one of the most important changes is a change the
Pentagon has itself made which is to hold commanders responsible for
the sexual assault record in their unit as part of their evaluation for
promotion. That is part of the way you change the culture.
This is a very difficult decision, but I think it is important to
realize that the decision on this amendment is not: Are you in favor of
victims' rights or are you in favor of the brass? I reject that
dichotomy because already within the bill are these very strong
provisions which are directed at this serious problem. What we are
talking about is a fairly narrow discussion of who makes that decision.
As a former practicing attorney who has had experience in criminal
cases, prosecutors I think may be more conservative and less likely, in
some cases, to bring cases to

[[Page S8327]]

trial than the commanding officer who wants to ensure that justice is
done for that victim. What we want is no victims. We want this problem
to end. We want this era to change because the culture changes within
the military, and that which was acceptable at one time is no longer
acceptable.

The best example I can cite for that in my life is drunken driving--
OUI. When I was a young man, there was an epidemic of drunken driving
in this country, and it was considered as kind of a joke. It was
considered as a sort of a rite of passage. Suddenly, through law
changes and societal changes over a generation, it is no longer
acceptable or funny, and it is no longer tolerated, and as a result we
have seen a decline because the culture has changed. That is what has
to happen in the military, and I think it begins with the commanding
officer.
In my opinion, to take this responsibility away from the commanding
officer is not siding with the brass, it is siding with the victims,
because I want those commanding officers fully engaged in this
decision. I want them fully responsible for their decision. I want them
to be what, in fact, they are, leaders--leaders who can make change,
and leaders who can make change in this critical area. If it doesn't
work, as my father used to say, Congress is always in session. We can
come back and correct it.
I believe we are at a moment where the military is being given a last
chance to deal with this within the chain of command. I think we have
given them the tools to do so in this bill, and I urge my colleagues to
support Senator McCaskill's amendment and to move forward with this
bill which we can be very proud of in terms of its recognition of this
horrendous issue, but also in terms of the solutions and tools it
provides to our military to solve this problem once and for all.
I yield the floor.
The PRESIDING OFFICER (Mr. Coons). The Senator from Arizona.
Mr. McCAIN. Mr. President, I thank my friend and colleague from Maine
for his very thoughtful statement. After having several conversations
with him, I know he did not come to this decision easily, but I
certainly think he made a very strong argument for the decision he
arrived at.
He and I--and all of us--share a deep and abiding concern about the
issue that is before the Senate in the form of the amendment to the
National Defense Authorization Act that is being debated on the floor.
This is a very difficult situation. It is an unacceptable situation
where men and women in the military may be exposed to sexual assault
but, more importantly than that, the individuals who are responsible
for those assaults need to be held accountable.
What we are asking today is: Are we going to hold the people who are
in charge accountable for bringing offenders to justice or are we going
to farm that responsibility out to some other entity, individual, or
some other part of the bureaucracy? That is the question before us.
I trust these commanders. I have known thousands of them. I trust
them, and I believe in them. Has there been an insufficient effort
devoted to preventing these horrible crimes from taking place? Yes. I
trust these commanders--these men and women in command--to take the
proper action necessary because it is their responsibility.
The changes that are in this legislation include removing the ability
of commanders to overturn jury convictions, require review of decisions
not to reverse charges, criminalize retaliation against victims,
provide a special victims' counsel to victims of sexual assault, and
support and assist them through all their proceedings. That is why I
supported Senator Boxer's amendment which reforms article 32 of the
Uniform Code of Military Justice. Her amendment will help prevent the
abuse of victims of military sexual assault in a pretrial setting.
We are taking action in this legislation. Maybe we can be found
guilty of not acting soon enough. Basically this deals with a
fundamental question: Do we not trust the commanders--whose
responsibility is the very lives of the men and women under their
command--to do the right thing? That is the difference between the
Gillibrand amendment and what has already been done in this
legislation.
We have had extensive hearings, debate, and discussions on this piece
of legislation. The question is: Do we trust the commanders to do the
right thing within the proper parameters, such as removing the ability
of commanders to overturn jury convictions, require review of decisions
not to prefer charges, and criminalizing retaliation against victims?
As far as I can tell, we have taken significant and important steps
that will protect our men and women not only from assault but the
abuses and recriminations that may be visited upon them in cases where
they are victims.
I am not saying the legislation before us will eliminate sexual
assault, but I am saying that what we are doing is exactly what we did
at other times when there were crises in our Armed Forces. I am
referring back to the post-Vietnam war era. I was a commanding officer
in 1975, 1976, and 1977, and we had racial, drug, and discipline
problems. We had the post-Vietnam war syndrome where our military was
in total disarray. We were dealing with drug abuse and racial
discrimination. There were race riots on aircraft carriers.
What did we do? We placed the responsibility directly on the
commanding officer, and if they didn't take action and failed, they
were relieved. That is the way the military should function, and that
is the way the military has functioned successfully. We had programs,
advisers, indoctrination, and punishment--punishment for those who
refused to adhere to the standards of conduct we expect every man and
woman in the military to adhere to.
What does the Gillibrand amendment do? It removes the commander. It
removes the person--the man or woman in command--who has the ultimate
responsibility, unfortunately, from time to time of taking these young
people into battle and risking their very lives. That is what makes
them different from any other part of America and any other part of our
society.
The Gillibrand amendment says we don't trust these commanders. Well,
we trust those commanders with the lives of these young people. We ask
them to have the ultimate responsibility, which is that of defending
this Nation, but we don't trust them to prosecute and do their job and
their duties? Well, that flies in the face of every encounter I have
ever had with the men and women who were in command, and the senior
petty officers, master chief petty officers, and master sergeants who
are responsible for the good order and discipline of the men and women
in our Armed Forces.
I won't go into the fact that this Gillibrand amendment includes
matters such as burglary, perjury, robbery, and forgery. It has been
expanded beyond belief in its areas that have to be referred out of the
chain of command. I will not even bother with that.
I say to my colleagues as passionately as I can that if we do not
trust the commanding officers who take our most precious assets--the
young men and women of the military--into battle, then we obviously
need to reevaluate our entire structure of the military. But I do trust
them. The finest people I have ever known in my life are those who have
worked their way up to positions of authority in command through a very
severe screening process. Have they made mistakes? Can we find an
example or a case where the right thing was not done? Of course we can.
There is nowhere in our society where we can't find examples of people
who have not done the right thing.
Today I am embarrassed that it seems naval officers were involved in
some kind of bribery scheme about overseas ships. Sometimes we are
embarrassed by leaders of our military, but they are the exception and
not the rule.
If the Gillibrand amendment is passed, the message we will send to
the men and women in command in the military is that we don't trust you
and we don't believe in you. That is what this is all about. If we
follow through with the 26 changes that have been made in the Defense
authorization bill and ensure that if there is a wrong decision made in
some cases, that decision will be sent all the way up the chain of
command to the service secretary.
This is a terrific and horrific problem in our Armed Forces today. We
have

[[Page S8328]]

done what we believe and what our military and military leaders believe
is right--leaving the commanding officer in the decisionmaking process
concerning the lives and welfare of men and women under their command.
I hope we will realize that if we pass the Gillibrand amendment, our
signal to the men and women in leadership--whether they are our senior
enlisted personnel or our officers--is we don't have any confidence in
you, and we don't trust you. That is the message we will send if we
pass this amendment today.
Are they perfect? No. Have they made mistakes? Yes. That is why we
put provisions in this bill which would circumscribe much of the
decisionmaking process but still leaves final decisions in the chain of
command.
I urge my colleagues to reject the Gillibrand amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from Nebraska.
Mrs. FISCHER. Mr. President, I rise today to speak on the series of
historic reforms adopted by the Armed Services Committee to combat
sexual assault in the military. The women have taken the lead on this
matter. Sexual assault is not a gender issue, it is a violence issue.
I rise to voice support for a bipartisan amendment that I have
offered with Senator McCaskill and Senator Ayotte to directly confront
this violence, and I urge my colleagues to oppose any radical changes
that would undermine justice for the victims and take away
responsibility from commanders.
I am proud to have supported several measures to strengthen the
rights of victims, hold perpetrators accountable, and strengthen
oversight of military commanders to ensure that justice is delivered.
As a result of a truly bipartisan effort, the committee has put forth
a bill that takes an unprecedented step of providing victims with a
special victims' counsel to make certain they are receiving unbiased,
independent legal advice. It strips commanders of the ability to
overturn jury convictions, makes retaliation against victims a crime,
requires dishonorable discharge or dismissal for those convicted of
sexual assault, and provides critical civilian oversight.
Despite achieving these unprecedented reforms in committee, my
colleagues and I continue to explore ways to enhance the current bill
after the committee's work had concluded.
Senators McCaskill, Ayotte, and I introduced an amendment last week
to expand upon the committee's progress. Our proposal extends current
protections to service academies, boosts evaluation standards for
commanders, and allows victims increased input. It also eliminates the
good soldier defense in most cases.
These changes, both in our amendment and in the whole NDAA, are
significant but, importantly, they are also serious and thoughtful.
They are based on sound policy, not on political sound bites.
Rather than radically remaking the entire military justice system,
which would carry significant risks, our proposals improve and update
the current system. To do so, we applied lessons from history.
In 2006, Congress hastily changed portions of the Uniform Code of
Military Justice to address instances of rape. These changes disrupted
victims' paths to justice, and Congress was forced to rewrite its own
changes a few years later.

Congress can't afford to get something this important wrong. We
cannot let our deep desire to solve this problem lead to imprecise
solutions because victims suffer when we do. Any changes to the UCMJ
should come after a deliberate and transparent process, with feedback
from all sides. The McCaskill-Ayotte-Fischer amendment is the result of
such a process, and I encourage my colleagues to support it.
Finally, I urge my colleagues to oppose any amendment that undermines
a commander's responsibility for his or her troops. Senator McCaskill
put it so well when she spoke on the floor earlier today: The amendment
offered by my friend and colleague, the junior Senator from New York,
offers a solution that is ``seductively simple,'' but its simplicity
creates a host of complex policy problems.
In addition to technical concerns, I do not agree with the underlying
goal of removing commanders from the military justice system. As
Senator McCaskill noted, we know commanders pursue courts-martial when
their legal advisers recommend against doing so. We know, based on the
experiences of our allies, that removing commanders from that judicial
process does not achieve the desired results. And we know that
commanders have risen to the challenge in the past to confront
contentious issues within their units, including integration. These
facts lead me to conclude that the changes in this bill, combined with
the reforms included within our amendment, will best serve the
interests of victims and punish those responsible.
I commend the Senator from Missouri for her leadership on this issue,
and I am grateful for the opportunity to work closely with her, Senator
Ayotte, and many other colleagues to help our men and women in uniform.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. INHOFE. Mr. President, first of all, I agree with the comments of
the Senator from Nebraska.
I have to say I was a little disturbed because I have heard a couple
of reports--one was in a news conference on November 6 and one on
November 19--yesterday, I guess--that Senator Gillibrand was saying
that I was objecting to her amendment. Yes, I oppose her amendment but
not to the extent that I would hold back the bill. My gosh, there is no
one on the floor of this Senate who has been working harder to get this
bill through--no two people more than the chairman and me. So I want to
make sure people understand that.
In terms of the alternative, I have been watching it very closely,
and my strongest possible support is for that amendment, No. 2170,
offered by Senators Ayotte and McCaskill, which provides additional
enhancements to the historic enhancements for sexual assault prevention
and response activities in our military. I commend my two colleagues on
the Armed Services Committee for their tireless efforts and their
leadership, and I urge all Senators to join me in supporting this
amendment.
It doesn't mean that if someone is opposed to the Gillibrand
amendment, that someone is not wanting change. Yes, we do. This is
major change.
It adds the senior trial counsel to the officers who make
recommendations on whether to proceed to trial and, if the convening
authority decides not to proceed, results in the case being referred to
the service Secretary.
It adds duties for the special victims' counsel to inform victims of
options for military and civilian prosecution of sexual offenses. It
gives them a voice. They can express a preference. It requires
commanders to give weight to that preference and to notify the victims
if the civilians decline prosecution.
These are changes. These are changes in the current system that are
coming with the amendment offered by Senators Ayotte and McCaskill,
amendment No. 2170.
It requires including written performance appraisals of every member
of the Armed Forces--officers and enlisted people--an assessment of
that member's support for sexual assault prevention and response
programs.
It requires every commander to be evaluated in their performance
appraisals on whether they have or have not established a command
climate where allegations of sexual assault are properly managed and
fairly evaluated and ensures that a victim can report sexual assaults
without fear of retaliation, ostracism, or any kind of group pressure
from members of the command.
It also requires command climate assessments to be performed after a
sexual assault incident, with copies of that assessment to be provided
to superiors in the chain of command and the military criminal
investigation organization.
It creates, finally, a process through the boards for correction of
military records for confidential review of discharges of individuals
who were victims of sexual offenses, to require consideration of
psychological and physical aspects of the victim's experience that may
have had a bearing on the separation.

[[Page S8329]]

So this is a major change. It is one I strongly support. I give the
Senator from New York the benefit of the doubt that she did not mean
what some people would interpret it to mean--that I would hold up a
bill in opposing her amendment. I certainly would not do that. I am for
reform, and we have an opportunity to do that which is bipartisan and
accomplishes the very thing we should have accomplished many years ago.
I thought there were others waiting here, but let me make one
comment. I agree with my colleague, the junior Senator from Oklahoma. I
know he has worked tirelessly in trying to do something to stop waste
in the Pentagon, and, quite frankly, I think there is some there.
This chart shows the devastation of sequestration. What it shows is
the bottom line--these are deficiencies. This is what he is talking
about. I want my colleagues to see this because this goes from fiscal
year 2014 all the way to 2023. If we take the sequestration as it is
right now, without any adjustments--now, Senator Sessions, Senator
McCain, and I have tried to make adjustments so that there are greater
cutbacks here and not so many in the first 2 years.
The orange--and that is where almost everything comes out--represents
readiness. That is readiness. Readiness is what we need to support our
fighters in the field to save lives.
The green is modernization. That is not affected by these
inefficiencies we are talking about.
The force structure is a major cost item, and it is demonstrated by
the yellow on the chart.
So what I am saying is I know there is room for improvement, and I
want Senator Coburn and others to work on areas within the Pentagon
where money can be saved. But if that happens, it is still going to all
be found down here--everything. TRICARE and all of it is down in this
blue line. So we can see that the devastation that comes from
sequestration to our military is still going to take place.
I think if we look at the level there of the sequestration cuts that
take place, it is almost entirely in the readiness. ``Readiness'' is a
term we have used for a long time. That is our ability to save lives.
That is our ability to train and equip our men and women in harm's way.
We have testimony right now that I wish to share with my good friend
and the Chair, who was there and heard it, from all four services
talking about how much more risk is involved if we have to go through
sequestration. Risk equals lives. I agree with those who want to do all
they can through efficiencies. I am for them. I will do all I can to
help them. That doesn't solve the problem. The problem is immediate. It
is today. I still believe there should be something we can do to stop
draconian cuts in our readiness and our force structure accounts that
would come with sequestration.
It wouldn't do me any good to read all of the quotes we have from
various individuals, but I can assure my colleagues that the Chair and
anyone who sat through the Armed Services Committee hearings has heard
all four of the chiefs talk about how devastating this will be if we
are not able to correct this.
With that, I yield the floor, and I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant bill clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from Hawaii.
Ms. HIRONO. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. HIRONO. Mr. President, there is not a single Senator here who
does not acknowledge the seriousness of sexual assault in the military
and that we must do something to prevent and prosecute these crimes.
Yes, there are differences of opinion as to what we need to do, but
make no mistake, we share the common goal of preventing and prosecuting
these crimes.
I thank two strong women on the Armed Services Committee, Senator
McCaskill and Senator Gillibrand, for their leadership in pushing for
solutions that will make a difference. I also thank Chairman Levin for
his commitment and leadership in bringing forth a bill that includes a
number of important improvements to the current system. We all support
these changes. However, I believe there is a fundamental structural
problem with how sexual assault cases are prosecuted in the military.
We need to make the changes proposed by the Gillibrand amendment.
I am a cosponsor of the Gillibrand amendment. I spoke on the floor
last week and explained why I think we need to remove disposition
authority from the chain of command. I don't want to repeat everything
I said last week, so let me make a few points.
First, for two decades or longer the Department of Defense has had a
zero tolerance policy for sexual assault and sexual harassment. Yet the
problem persists. Servicemembers continue to be assaulted and raped,
and in too many cases the perpetrators continue to go unpunished. Year
after year, Secretary after Secretary and commander after commander has
told us about all the efforts to correct this problem, but those
efforts have not worked. There are probably many reasons why these
incremental changes have not worked, but every year that these changes
do not work, many more of our brave men and women in the military
endure the trauma of sexual assault. It is time to make a major change
to the military justice system.
Second, too often these attacks are not reported, which allows the
attacker to prey on more victims. The survivors tell us the biggest
reason they do not report these crimes is because they do not believe
their chain of command will ensure that justice is done. Even the
Commandant of the Marine Corps, General Amos, has acknowledged that
many victims do not come forward because ``they do not trust the
command.''
The concerns of survivors in coming forward makes sense because there
are inherent biases and conflicts of interest in the chain of command.
These concerns are echoed in a letter from GEN Claudia Kennedy that was
signed by more than two dozen former officers from all branches of the
military. The letter states:

We know that, in too many cases, servicemembers have not
reported incidents of sexual assault because they lack
confidence in the current system. The inherent conflicts that
exist in the military justice system have led servicemembers
to believe that their allegations of sexual assault will not
receive a fair and impartial hearing and that perpetrators
will not be held accountable.

We should give weight to these concerns and act today to remove the
chain of command from prosecutorial decisions in sexual assault cases
and instead put these decisions in the hands of an impartial,
experienced military lawyer.
Third, removing prosecutorial decisions from the chain of command
will not harm good order and discipline. I have heard this concern from
many military leaders, as well as from others who oppose this
amendment. They say eliminating a commander's ability to decide whether
a case should go to trial would undermine the commander's ability to
maintain good order and discipline within the unit, and yet--and yet--
we have heard from many others who have command experience who support
the Gillibrand amendment.
Good order and discipline should not depend upon a commander's
ability to decide whether to prosecute a sexual crime. A commander's
authority and leadership must certainly be based on more than that.
Furthermore, the Gillibrand amendment preserves a commander's
disposition authority over crimes that are uniquely military--crimes
such as desertion, AWOL, contempt, and noncompliance with procedural
rules. This ensures that commanders will have the authority they need
to maintain good order.
In closing, it is undeniable that the current system does not work.
We know it does not work because, according to the Department of
Defense, in 2012 there were an estimated 26,000 cases--26,000 cases--of
unwanted sexual contact.
We know that not all survivors report these crimes because, in the
words of General Amos, ``They do not trust the command.'' We know we
can eliminate bias and conflicts of interest by entrusting
prosecutorial decisions to

[[Page S8330]]

an impartial, experienced military lawyer. We know that removing
disposition authority from the chain of command will not undermine good
order and discipline.
We know what needs to be done. We ought to do it and do it today. We
owe it to the men and women who serve our country in uniform. We owe it
to the families and loved ones of those who serve because the trauma of
sexual assault often extends beyond the trauma experienced by the
survivor. I urge my colleagues to support the Gillibrand amendment.
I yield the floor.
Mr. LEAHY. Mr. President, earlier this year, as many others were, I
was shocked when the Department of Defense released a stunning report
about the increase in sexual assault among the branches of the Armed
Forces. Sexual assault in the military is neither a new issue, nor an
uncommon one. It has been a problem for decades. Its occurrence is a
stain on the honor of our military and Nation that we must all work to
eliminate. Military bases are where our troops are supposed to be safe,
and to know that they risk being in harm's way not only when deployed
but among their fellow servicemembers as well is horrible.
I have worked hard to bring greater attention to the ongoing problem
of sexual violence in our communities and am proud of the significant
improvements we made in the recent reauthorization of the Violence
Against Women Act earlier this year. It is time we bring the same level
of attention to the crisis on our military bases.
While this epidemic is not representative of the vast majority of our
service men and women, who serve honorably and conduct themselves
commensurate with our expectations of those in uniform, it is also not
isolated to just a handful of bad actors. We can no longer ignore that
the time is long overdue for meaningful changes to help end sexual
assault and harassment in the ranks of our Armed Forces. We must work
together to protect victims and provide appropriate help and support
and to ensure that those responsible for such crimes are held
accountable.
Just as our civilian justice system is the envy of the world, our
military justice system must also meet that standard. That is why I am
a cosponsor of Senator Gillibrand's Military Justice Improvement Act,
and why I support her amendment to the National Defense Authorization
Act, NDAA.
In last year's Defense authorization bill, Congress included
provisions meant to address sexual assault in the military. That
legislation required the Secretary of Defense to prescribe standards
for victim support and mandated an independent review and assessment of
the systems used to adjudicate crimes involving sexual assault and
related offenses.
When the Department of Defense released its fiscal year 2012 report
on sexual assault in the military earlier this year, its findings were
jarring, and for many myself included they were infuriating. To make
matters worse, the problem seems only to be growing.
The status quo for how we deal with sexual assault and unwanted
sexual contact in the military is untenable. If we are serious about
curing this problem, we need to get serious about making fundamental
changes to how it is addressed. We cannot expect that by doing the same
thing over and over again we will achieve different results.
I supported Secretary of Defense Chuck Hagel's proposals this summer
to limit a commander's authority to overturn major court martial
verdicts, among other reforms to the system. I am pleased that the
members of the Senate Armed Services Committee included this key
provision, as well as other measures to address the so-called ``good
soldier'' defense and to require commanders to immediately report
alleged sexual assaults to the investigative office, in this year's
Defense authorization bill.
Senator Gillibrand's proposal is another move in the right direction,
taking these reforms a step further by removing the determination to
bring sexual assault cases from the chain of command and giving that
discretion to an experienced military prosecutor. This is a commonsense
solution, and I commend her for her clear-eyed and energetic leadership
on this issue.
Senator McCaskill's proposal also includes strong protections for
victims so that the process of getting justice for these crimes does
not revictimize those who come forward to report them. I believe
Senator McCaskill's proposal also is a step in the right direction to
encourage victims to come forward and report these crimes. Our Nation's
troops should not have to fear sexual assault, and if they are victims,
they certainly should not fear any stigma after bringing to light
unwanted sexual contact.
Surely we can all agree that we have an obligation to ensure that our
men and women in uniform are protected from the threats we can control.
Holding perpetrators of sexual assault and unwanted sexual contact
accountable and caring for, supporting, and protecting those victims is
within our control. I hope Senators on both sides of the aisle will
join me in supporting reforms that will fundamentally change the way we
approach this issue in order to achieve better results.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, I yield myself 6 of my 10 minutes.
One of the issues we address in this bill is the problem of sexual
assault in the military. Too many of the men and women who volunteer
for our military to serve and protect us are victims of sexual assault
and other misconduct. That is deeply offensive to our conscience and a
stain on an honorable institution.
The bill that was reported by the committee includes groundbreaking
new measures to reduce sexual assault and misconduct. On a bipartisan
basis, members debated and approved more than two dozen measures
related to preventing sexual assault and to delivering justice for the
victims of these crimes.
The bill that we approved, and which is now before us, would provide
sexual assault victims a counsel, a lawyer, who works not for
commanders, prosecutors, defense attorneys or a court but for the
victim. It includes strong new protections for victims that are
designed to combat the No. 1 problem we have in preventing assaults and
dealing with perpetrators: the fact that many assaults remain
unreported to authorities. Of great importance, the committee-reported
bill for the first time makes it a crime under the Uniform Code of
Military Justice to retaliate against a servicemember who reports a
sexual assault.
It also requires that the Department of Defense inspector general
review and investigate any allegation of retaliation against those who
make communications regarding sexual assault or sexual misconduct.
Our bill includes important criminal justice system reforms,
including reforms on how commanders respond to sexual assaults. Our
bill includes a requirement that commanders who become aware of a
reported sexual assault immediately forward that information to
criminal investigators. It eliminates the consideration of the
accused's character from the factors a commander should weigh in
deciding whether to prosecute a sexual assault allegation. It restricts
the authority of commanders under Article 60 of the UCMJ to set aside
court-martial verdicts in cases involving sexual assault and other
crimes. It requires that a decision by a commander not to prosecute a
sexual assault complaint undergoes an automatic review by a higher
command authority, in nearly all cases a general or flag officer. In
the case where a commander's decision not to prosecute contradicts the
recommendation of his or her legal advisor, that automatic review is
conducted by the service Secretary. The committee-reported bill also
makes clear that we expect and demand that commanders will use their
authority to rein in this problem by fostering a climate of zero
tolerance toward sexual misconduct and one in which servicemembers
believe they can come forward to report cases of sexual assault.
These important reforms were the product of the work of almost every
member of the Armed Services Committee. The desire to remove this stain
from our military is bipartisan and it is strong.
Despite widespread bipartisan agreement on significant reforms, one
significant issue of dispute remains. This is the question of whether
military commanders should retain their authority to prosecute sexual
assaults.

[[Page S8331]]

Senator Gillibrand proposed in committee, and proposes again here on
the floor, to remove our commanders' authority to prosecute. Along with
a strong majority of the Armed Services Committee, I opposed Senator
Gillibrand's proposal, which was defeated on a bipartisan 17-9 vote. I
oppose it for a simple reason: I do not believe its passage would
strengthen efforts to end military sexual assault and other misconduct,
and in fact I believe it could weaken those efforts.
The Gillibrand amendment would uproot major portions of the military
justice system and require the establishment of a parallel justice
system within the military. Our top military lawyers have told us that
the amendment leaves large gaps and unexplained issues that could make
the new system unadministrable and bog it down in litigation.
Despite those problems, if I believed that the proposed amendment
would remove more sexual predators from the ranks and put more of them
behind bars, or lead more victims to report sexual assaults, I could
support it. But the evidence we received in our committee shows the
opposite.
First, we learned that military commanders are more likely, not less
likely, more likely, to prosecute sexual assaults than military or
civilian lawyers. The committee heard from many commanders, at all
levels, that they see important value in sending cases to court-martial
even if a conviction is not a slam-dunk. But we have more than the
assurances of commanders. We have hard data. Over the last two years,
in nearly 100 sexual assault cases which civilian prosecutors declined
to prosecute, military commanders stepped in and took the case to
court. Trials are complete in 63 of those cases, resulting in 52
convictions an 83 percent conviction rate. Those victims would not have
seen justice if a military commander had not stepped in where
professional prosecutors declined to act. The evidence before us
indicates that commanders are ready to prosecute these cases, and that
removing their judgment and replacing it with career attorneys will
result in fewer prosecutions of these cases.
The evidence is that when victims do come forward, their reports are
properly investigated, and when commanders are presented with the
facts, our commanders do their job. They often send cases to trial even
when professional prosecutors hesitate to do so. So why would we want
to take that authority away?
Second, the supporters of this proposal have argued that it will
increase victims' willingness to come forward. They do not provide any
data to support the assertion that victims will be more willing to come
forward in a system that is less likely to bring them justice. Why
would victims feel more confident in a system that is less likely to
aggressively prosecute these crimes?
The Response Systems to Adult Sexual Assault Crimes Panel, which was
established in the National Defense Authorization Act for Fiscal Year
2013 and has looked in depth at the experience of our allies on this
issue, reported last week: ``We have seen no indication that the
removal of the commander from the decision making process has resulted
in an increase in reporting and there is nothing in the experiences of
our foreign Allies that suggests adopting their systems as a model will
have any impact on the reporting of sexual assaults.''
I believe the contention that this amendment would increase reporting
stems in many cases from a fundamental misunderstanding of how sexual
assaults are reported. One member of the Senate, in announcing his
support for taking away commanders' authority to prosecute, said: ``To
me, it's as simple as this: Should you have to report to your boss when
you've been abused or when you've been a victim of a crime?''
Well, of course you shouldn't have to. And in the military, you
don't. There are many different avenues by which a member of the
military may report a sexual assault. Reporting it to your commanding
officer is only one. Victims can report an assault to civilian police,
to military criminal investigators, to a health care professional or to
a sexual assault response coordinator. The Gillibrand amendment does
not affect any of those reporting channels. Its only effect is to
change what happens once an assault is reported and investigated.
Supporters of this proposal have argued that our allies have adopted
changes to their military justice systems along the lines they propose,
and that these changes have better served sexual assault victims. What
this argument ignores is the fact that our allies' decisions have not
been aimed at protecting sexual assault victims. In fact, with allies
such as Canada and Great Britain, commanders' authority to prosecute
was removed not out of concern for crime victims, but out of concern
for the rights of the accused. I have yet to hear anyone argue that the
problem with our handling of military sexual assault is that it is too
tough on perpetrators. Yet that has been why allied militaries removed
the decision to prosecute from their commanders.
Perhaps the most basic reason to oppose the amendment of the Senator
from New York is that it removes a powerful tool from those who are
indispensable to turning around the problem we have. Our military
commanders are the indispensable tool to turn around this problem. I
have met at length with several groups of retired military women.
I specifically chose to meet with retired military personnel to
ensure that they would be free to speak their minds. These women--all
of whom have seen cases of sexual assault and sexual harassment in the
course of their military careers--told me the problem is not
commanders. The problem is a military culture, they told us, that
tolerates excessive drinking and barracks banter that borders on sexual
harassment or crosses that line. The problem is there is a failure to
recognize the existence of servicemembers who appear to be good
soldiers but in fact are sexual predators, and a culture that values
unit cohesion to such an extent that those who report misconduct are
more likely to be ostracized than respected. None of these problems are
unique to the military, but they are exacerbated in the military by the
frequent rotation of military assignments, which can make it easier for
predators to hide.
The military has a unique tool for addressing this problem:
commanders who can bring about changes in command climate through
mandatory training and by issuing and enforcing orders that are not
possible in a civilian environment. That is what they did in addressing
racial discrimination and in ending don't ask, don't tell. That is what
they can and should do here. Weeding out sexual predators and the
climate that makes it possible for them to hide is an essential
ingredient in any solution to the sexual assault problem. The military
women whom I met with over the summer told me that our commanders are
in the best position to make that change.
Weakening the authority of commanders will do serious damage to their
ability to accomplish this change. All of us seek the strongest, most
effective response to the plague of military sexual assault. The
amendment Senator Gillibrand proposes will not strengthen our response.
The evidence before us shows it will, in fact, weaken our response by
removing the decision from the hands of commanders.
We have two dozen historic reforms in our bill, but a number of
Senators, led by Senators McCaskill and Ayotte and Fischer, have
continued to work on policies to strengthen our response to the
military assault problem. This has resulted in the amendment they have
proposed.
Their amendment would ensure that the duties of special victims'
counsels include advising victims on the advantages and disadvantages
of prosecuting a case in the civilian or military justice systems,
giving victims a greater voice in where a case is heard. It would
require that performance evaluations of commanding officers consider
their success or failure in creating a command climate in which victims
can report sexual assaults without fear. It would require command
climate assessments of any unit in which a servicemember is the victim
of a sexual assault or is accused of committing one. It would give the
victims of sexual assault who leave the military the ability to
challenge the terms or characterization of their separation or
discharge. It would prohibit introduction as evidence during judicial
proceedings a sexual assault defendant's general military character--
the so-called

[[Page S8332]]

``good soldier defense.'' In other words, the fact that a defendant
happens to be a good troop would no longer be allowed as evidence that
he or she did not commit a sexual assault. These reforms are aimed at
the problems we do have that is, at rooting out retaliation against
victims, and providing victims better support--and not at a problem we
don't have--that is, the decisions our commanders make relative to
prosecution of these crimes.
I will conclude by saying that these additional reforms in the
McCaskill-Ayotte-Fischer amendment are significant additions to what is
in the committee bill, and I support them. What I cannot support--and
what I hope the Senate will not support--is legislation that will
remove from our commanders the authority to combat this problem. The
real, strongest tool to combat this problem is the ability to send a
matter to a court-martial.
We cannot strengthen our efforts to prevent sexual assault by
reducing the likelihood of prosecutions. We know from history and from
the facts that is the result of taking this decision away from the
hands of the commanders. We know of the 100 cases where other
authorities, civilian authorities, have decided not to prosecute but
where the commanders then decided to pursue it anyway. That is just
within the last 2 years, and we do not know of any cases that go in the
other direction.
We cannot strengthen our efforts to prevent sexual assaults by
reducing the likelihood of prosecutions. We cannot strengthen our
efforts by weakening the authority of our commanders to act against
sexual assault. Commanders were tasked, again, with making those
monumental changes in military culture, from combating racial
discrimination in the 1950s to ending don't ask, don't tell in 2011. If
we are to accomplish the change in military culture that we all agree
is central to combating sexual misconduct and sexual assault,
commanders are essential. We cannot fight sexual predators if we make
it more difficult to try and convict them. We cannot hold our
commanders accountable for accomplishing that needed change in culture
if we remove their most powerful weapon in the fight.
I yield the floor.
The PRESIDING OFFICER. The Senator from New York.
Mrs. GILLIBRAND. Mr. President, I wish to thank Chairman Levin for
his extraordinary leadership on combating sexual assault in the
military. He has led a process over the last year to ensure that our
base bill has a set of historic reforms that make a huge difference in
how cases that are actually reported are handled. In fact, the reforms
that Chairman Levin has put forward and that our colleagues are
continuing to perfect do make the handling of the cases that are
reported better.
They make sure every victim who reports has a victim's advocate to
help him or her steer through the process. They also make sure that if
that victim is so lucky enough to get that conviction, that it cannot
be overturned by a commander on a second-level review.
They also make sure we have better recordkeeping. They make sure the
rules of evidence are better. They make sure victims are protected
throughout the process. Most important, we as a committee have put
forward in the bill a law that makes sure retaliation is now a crime.
Those reforms help the victims who are strong enough and able enough
and have a command climate that is strong enough to report their cases.
But one thing the chairman said that is not true: Commanders do not
need this legal right to be able to set the command climate. In fact,
most commanders will never have this legal right. Just look at the Army
rankings. Second lieutenants, they will command 16 to 44 soldiers. They
do not have convening authority. First lieutenant commanders--110 to
140 personnel--do not have this authority. Captains--62 to 190
soldiers--do not have this authority. Majors, lieutenant colonels,
lieutenant colonels, who typically command battalion-sized units--300
to 1,000 soldiers--do not have this legal right.
Most commanders will never get to look at a case file and say: Are we
going to trial? So I disagree that the ability to decide if something
goes to court-martial is necessary to set good order and discipline
because almost every commander--all of them here--these commanders,
they all have to set good order and discipline as part of their job.
They have to set a command climate where the rape does not happen. They
have to set a command climate where that victim feels comfortable
enough to come forward. They must, by law, now ensure that victim is
not retaliated against. It is their job--whether they ever have this
right. Commanders can do this and must do this without this legal
right. It does not weaken their ability.
To have one guy way up here in the Army who wears the bird--the man
who is the colonel, O6 level and above--he will make a legal decision,
and he is not a lawyer. He is not trained. He does not know the ins and
outs of prosecutorial discretion.
He may be biased. He may value the perpetrator more than the victim.
He does not need to make this legal decision. He should not be judged
on how tough he is on crime. He should not even be judged after he
weighs the evidence if he does his job properly. He should weigh the
evidence fairly. You can only do that if you are objective. That is why
we want it to go to trained military prosecutors outside the chain of
command.
Those commanders, every single one of them, should be judged on what
the command climate is. Most of them will never get to weigh legal
evidence as part of that. Chairman Levin, my colleague, has said: They
have never heard of examples where commanders did not go forward but a
lawyer did.
I talked about one this morning. We heard from many victims. In fact,
one victim said she was on her way to trial, and the commander was
changed. The new commander had been in command for 4 days. He decides
that the trial is not going forward. He actually discontinued the
trial.
You know what he said to her? Your rape was not a crime. He may not
have been a gentleman. So I do not believe this legal right undermines
our military system. I believe it strengthens our military system. I
believe it gives commanders the chance to do their jobs, fighting and
winning wars, training men and women. Commanders are entirely on the
hook by our base legislation. They will be judged on the command
climate. They will be judged on whether there is retaliation. They will
be able to prosecute retaliation as a crime.
I believe that if you create transparency and accountability in the
system, we will be able to have many more cases be reported, first of
all. More of those 23,000 cases will be reported. When you have more of
the 23,000 cases being reported, you will have more investigations. You
will, therefore, have more trials. You will, therefore, have more
convictions.
If you are ever going to change the culture, you need to do it by
showing there is accountability. You need to do it by showing there is
justice. You need to show it by showing that justice can be done. We
need the active involvement of commanders. This is never going to
happen if we do not. So they need to start focusing on retaliation.
They need to start focusing on command climate. They need to make sure
these rapes are not happening.
They will do that whether or not they ever have this legal right.
When our allies changed their laws to elevate all serious crimes out of
the chain of command, they did not see a falling apart of their
military. They did not see good order and discipline going out the
window. They did not see any change at all, in fact. So I know our
military can do the same. I know our military can build a transparent,
accountable system that responds to what victims have asked. They want
to be able to have the decisionmaker be outside of their chain of
command.
If we do that, we have a chance of building a criminal justice system
within our military that is good, and it is just, as our men and women
deserve.
I am heartened by the conversation we are having on the floor today
and I am grateful to all of my colleagues for their engagement and
involvement on this critical issue. I have heard some questions about
the technical implementation of the Military Justice Improvement Act
mentioned on the floor today and during the past few months and I would
like to address those concerns.

[[Page S8333]]

First of all, thanks to feedback that we received about the MJIA, we
made some technical changes to the amendment that I would like to note.
One such concern was the omission of the Coast Guard, we have now
included the Coast Guard in the amendment.
Another concern we heard about was how to handle attempts of crimes,
both in the new system and those that are excluded. In the amendment,
conspiracies, solicitations and attempts have all been included.
We were also asked about crimes that happen simultaneously. For
example, what if during a sexual assault, crimes are also committed
that fall under the old system? In order to clarify any confusion about
this question, the amendment says that all known crimes will be charged
under the new system.
There were also questions about whether the convening authority will
be able to pick the judge, prosecutor and defense counsel. The newly
filed amendment has been clarified to ensure that it is clear that the
new, independent, convening authority has the same power as the
previous convening authority--the commander--in overseeing the process
of convening a trial. The processes for detailing judges, prosecutors
and defense counsels remains as they are today.
Other concerns we have heard seem to take as a negative the fact that
the MJIA leaves some issues up to the military to implement.
We see this as one of the strengths of the MJIA.
We wanted to ensure that the military had the ability to best
interpret and implement the legislation in a way that was effective for
the whole military, and for each service, each of which have slightly
different systems.
Let me give you an example. Some have argued that that plea
bargaining will not work under our system. That is not true. The
amendment transfers the commander's responsibilities for convening
authority to the office of the Chiefs of Staff of each service;
therefore, the offices of Chiefs of Staff will now have the authority
to oversee pre-trial agreements.
We specifically leave interpretation and implementation of the plea
bargain up to the military to ensure that it is most expeditious--
therefore the military can choose to include the commander's
perspective in the pre-trial agreement conversation and send the case
back to him or her for non-judicial punishment or summary court
martial.
Let me give you another example. Article 32 is not explicitly
mentioned in the amendment. This is intentional. Most if not all of the
members of this body agree that the article 32 hearing needs to be
fixed, but equally that it must be maintained. Because under the MJIA a
trained, independent prosecutor will now be making the decision about
whether to go to court martial, this may change the way that article 32
may best be implemented. We want to leave the military, and these
trained prosecutors, with the ability to best implement the UCMJ.
I have also heard a lot of questions about non-judicial punishment.
As I have said all along, the amendment leaves all crimes with
punishment under 1 year of confinement, and 37 military-specific crimes
with the commander, thereby leaving the vast majority of crimes
punishable by courts martial in the hands of commanders.
However, to suggest that crimes as serious as rape and murder be
handled with anything but a clear look at the evidence is at the heart
of the importance of this amendment. If evidence exists to send a case
to court martial, there is absolutely no reason anyone should consider
non-judicial punishment as an option. This is exactly why this decision
should be in the hands of an impartial attorney.
Further, the amendment even allows for a failsafe if the independent
JAG decides that there is not enough evidence to proceed to trial that
the charges would not be appropriately addressed at a court-martial,
then the commander would still be able to exercise non-judicial
punishment. In the event that the military member demanded a trial by
court martial, the decision authority would at that point still be able
to send the charge to the convening authority for referral to trial.
There is nothing unique about this situation.
I want to assure all of my colleagues that I have spoken to military
justice experts and to retired JAGs about how to ensure that the
Military Justice Improvement Act addresses potential issues and to
ensure that the military has the ability to implement it in the best
manner possible.
I yield the floor and I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Brown.) The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. COONS. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COONS. Mr. President, I come to the floor today to speak on the
tragedy, on the ongoing crisis of sexual assault in our Armed Forces
and what I believe we must do. There are several options before us,
each of which has been the subject of lengthy and passionate debate, a
debate that I think is healthy, and needed, and welcome here in this
Chamber.
I commend my many colleagues--Chairman Levin and Senator Inhofe,
Senator McCaskill and Senator Ayotte--for the very real progress, the
very significant steps taken both in the base bill, the NDAA, and in
the amendments to be offered by Senators McCaskill and Ayotte, serious
and important steps forward to protect victims, to ensure that
commanders are held accountable and to criminalize retaliation. A wide
range of important and significant reforms that will make real progress
towards addressing the ongoing decades-old scourge of sexual assault in
the United States military.
As was said recently on the floor by another of my colleagues, this
disagreement today is over one of more than a dozen important and
needed reforms. But in the end, we have to decide. I believe the
measure offered by Senator Gillibrand of New York, of which I am a
cosponsor, is the right additional path forward. Because at the end,
here is the bottom line: Sexual assault has been a disease, a corrosive
and widespread and horribly negative influence on our military that has
simply not been effectively treated.
I think this significant, dramatic step is the needed driver for
extensive reform. I understand that the chain of command is essential,
that it is central to the proper functioning and order of the military,
especially during war time. In fact, the chain of command is nearly
sacred.
But ensuring that our spouses and our siblings and our children can
serve with honor and not have to face another enemy within our ranks is
sacred. This is, in the end, a debate about justice--justice within our
own Armed Forces, justice so we can fulfill that sacred duty of
protecting men and women in uniform as well as they protect us.
Despite many years of good-faith efforts by leaders in our Armed
Forces to work within the parameters of our current system, literally
tens of thousands of sexual assaults are still occurring annually
within our Armed Forces.
That is, frankly, unacceptable and it reflects a fundamental
breakdown in order and discipline that in my view we cannot tolerate
anymore. The current system, in this important and vital way, is
failing. I understand the intense desire our leaders feel to fix what
was broken and for our military leaders to atone for taking their eyes
off the ball, to paraphrase the testimony of the Chairman of the Joint
Chiefs.
But, once again, this debate is not about them, about their
commitment or about their strategy or about their determination. It is
about justice. In America, justice must be blind. Whether someone
receives it or not should not depend on the fact of whether or not he
or she serves in the military rather than in other workplaces. We know
the chilling facts, that according to the Department of Defense's own
Sexual Assault Prevention and Response Office, 50 percent of female
victims state they did not report the crime in the first place because
they believed nothing would be done, and one-quarter or 25 percent who
received unwanted sexual contact indicated the offender was in their
chain of command.
In my view, we strengthen our military when victims of sexual assault
have the confidence to come forward and to report crimes and when we
remove fear and stigma from the process.

[[Page S8334]]

We strengthen our military when we are able to deliver fair and
impartial justice on behalf of victims.
When we know the military chain of command in this one area is
failing, we should not continue to tolerate an exception we would not
make in other settings. I came to this decision with great reluctance,
recognizing as many in my family have, that the importance of the chain
of command, the importance of respecting the unique and different
traditions and structures of the military is something that we should
only come to with great hesitation.
One of the responsibilities of serving in the Senate that I take
seriously is my annual responsibility to review and approve candidates
for the military academies who are selected by my independent military
academy advisory board, and personally calling the top candidates to
inform them that they will be the ones--of the dozens and dozens of
highly qualified competitors, they will be the ones selected to go to
the Merchant Marine Academy, the Air Force Academy; to Annapolis, the
United States Naval Academy, or to the U.S. Military Academy, to West
Point.
This is a moving experience each of the 3 years I have had the chance
to do this. But this past year, the three top candidates for West
Point, for Annapolis or for the Air Force Academy were all women--
impressive, compelling, determined to serve our Nation.
Meeting with them and their families, the nervous and proud parents
of these confident cadet candidates is also a great annual experience.
It reminds me always of my responsibility to them. I promised their
parents that we will support and respect them and their service. When
we speak to the cadets and thank them for their willingness to serve, I
am reminded we have a responsibility to not send them into an
institution where they will face threats that we can and should
address.
I believe I have a responsibility to send them into an institution I
know is well equipped to respond strongly and swiftly to threats to
their safety. Yet, today, I am not able to uphold that responsibility
because we have not protected our men and women in uniform from sexual
assault.
I thought of my picks for the service academies when I heard another
Senator say to General Dempsey that the Senator would not advise a
parent to encourage his or her daughter to join the military. What made
this decision difficult for me to join Senator Gillibrand on this
particular amendment was an unfortunate, tragic case.
Last spring while I was trying to decide which path to follow on this
bill, my office received a gut-wrenching call from the father of a
young woman serving honorably in our military. He was calling against
his daughter's wishes, and only as a desperate last resort.
She had been the victim of sexual assault and, as so many others,
reported it to her commanding officer up the chain of command. As so
many others, her case went nowhere. Her by-the-book reporting and
patient waiting for results was met with delays, excuses, and
nonresponse. Ultimately, during these repeated delays, she was
physically assaulted after she had warned leadership she feared for her
safety.
We took action and, ultimately in this instance, justice was done. A
chain of command such as that isn't strengthening unit cohesion and
morale, it is harming it.
After this particularly troubling case, I made a decision to join
Senator Gillibrand as a cosponsor, to say to all of us, how can we
accept this? How can this situation that has gone on for years be
tolerated? How can we justify the status quo?
I am grateful for the leadership of the many Senators on the Armed
Services Committee and throughout this body who have taken real steps
to add significant improvements to the UCMJ and to the code that
underlies our military and the requirements for leadership in the
service to take on and tackle these very real problems of sexual
assault in the military.
In my view, taking decisions out of the chain of command should only
be done under the most serious of circumstances, but that is exactly
what we have. We wouldn't find justice if this was the way that any
other workplace in America operated. How can we argue that we have
justice today for these thousands of victims in our military? The men
and women who dedicate themselves to keeping us safe and protecting our
rights deserve equal dedication on our part to their safety and to
those same rights.
I wish to speak about three bills I am offering as amendments to the
NDAA that all relate to a topic I have spoken to many times on the
floor, to manufacturing and manufacturing jobs.
The first is the American Manufacturing Competitiveness Act, a bill I
introduced last week with Illinois Senator Mark Kirk. It enjoys the
support of the Presiding Officer, as well as Senator Blunt and Senator
Stabenow. It is a simple but important objective, to require the
creation of a national manufacturing strategy.
We need to know our country's direction as we try to support the
growth in manufacturing. We have grown more than half a million
manufacturing jobs in the last 3 years, an encouraging sign, but one we
need to strengthen and support with a coordinated strategy between the
Federal Government, State governments, and private sector to align all
our investments in research and development, new skills, and new
infrastructure, to make sure they are all heading in the right
direction. Our leading competitors all have successful and well-
deployed national manufacturing strategies. Whether Germany, China,
India, South Africa, or Russia, they have all thoroughly developed,
deeply researched, and prominently successful strategies, which we
lack.
Our amendment would require that every 4 years the Secretary of
Commerce, advised by a board of 15 different folks, pull together and
think through, research, and then deliver a national manufacturing
strategy.
This amendment is bipartisan, simple, does not cost the Federal
Government a dime and doesn't create a new program, Like the next two
amendments I will speak about, it is a commonsense measure that I hope
we will adopt.
Secondly, I wish to speak to an amendment I am cosponsoring with
Congressman Blunt to ensure small businesses are not subject to
conflicting guidance from Federal agencies.
In the 1970s Congress passed a measure for the Small Business
Administration to ensure that small businesses that get contracts from
the government aren't actually fronts for much larger companies.
Last year we passed similar but distinctly different rules for the
Department of Defense. Most of the time these two sets of rules can
peaceably coexist, but in a few cases they come into conflict, creating
significant compliance difficulties for very small business. This
amendment would say that when both sets of rules apply to a small
business contract, the SBA rules would apply, while DOD rules would
not.
This amendment is bipartisan, has no cost, and will help small
businesses focus on effectively delivering products and services
without worrying about compliance.
Last, I wish to speak about an amendment I am cosponsoring with
Senator Booker of New Jersey to ensure that our defense and
intelligence communities maintain their vital technological edge. This
is an important measure that would create more opportunities to train
America's best talent and pave the way to new innovations.
Recently, the commission on R&D in the U.S. Intelligence Committee
reviewed our current and future R&D capacity to support our
intelligence community's vital work. Their unclassified report shows,
in fact, that we have insufficient funding and a critical deficiency of
human capital, of skilled workers, and the cutting-edge thinkers we
need in this area. Specifically, for one example it said we may not
have the kind and number of people we need to build the next generation
of satellites to gather and process the intelligence upon which our
national security relies.
There is currently a program run by the Department of Defense
designed to address one element of this problem. It is called the
Science, Mathematics & Research for Transformation Scholarship Program,
or the SMART Scholarship Program. This amendment calls on the Secretary
of Defense to report back to Congress on two things: Whether the SMART
Scholarship Program, or similar fellowship and scholarship programs,
are, in fact, providing

[[Page S8335]]

the necessary number of undergraduate and graduate students in the
fields of science, technology, engineering, and math to meet the
recommendations of the commission's report, and to recommend how those
programs can be concretely improved. Those amendments have already
passed the House of Representatives by a voice vote and would be an
important if small step toward paving the way toward job creation and
ensuring our national security now and into the future.
I urge my colleagues to support these amendments.
I am grateful for the opportunity to contribute to the debate on
these important issues.
I yield the floor.
The PRESIDING OFFICER. The senior Senator from South Carolina is
recognized.
Mr. GRAHAM. I wish to speak in support of the McCaskill, Ayotte,
Fischer, and Levin amendment.
Before we begin, I wish to thank Senators Levin, Reed, McCaskill,
Ayotte, Fischer, and others who have been trying to carry the burden
here to make sure that we reform the military justice system and the
way the military operates vis-a-vis sexual assault and misconduct but
at the same time make sure we still have a military that can continue
to be the most effective fighting force on the planet at a time when we
absolutely need it.
If one believes, as I do, that our military is the best in the world,
we have to ask ourselves why. Is it because of the equipment? We have
great equipment. I would argue that the reason our military has become
the most effective fighting force in the world is the way we are
structured.
If one is looking for a democracy, don't look to the military. The
military is a hierarchical and paternalistic organization that is
focused on meeting the challenges of the Nation, being able to project
force at a moment's notice to deter war and, if war ever comes, to
decisively end it on our terms.
I have been a military lawyer for over 30 years. I have been assigned
as a military defense counsel for 2\1/2\ years and a senior military
prosecutor in the Air Force for 4\1/2\ years. I have been a military
judge, and I have served in the Guard and Reserve, and on Active Duty
for 6\1/2\ years. I have learned a lot, as a military lawyer, about the
military.
To my colleagues who are trying to decide what to do and what is
appropriate, the goal should be to make sure that America remains the
most effective fighting force on the planet. This is the proposition:
They can't be an effective fighting force if they have rampant sexual
assault or misconduct within the ranks. This idea that sexual assaults
in the military are unacceptable, too large in number and scope--sign
me up for that proposition. However, the problems of society don't stop
at the gate; they continue inside the fence. I would daresay that if we
did surveys in South Carolina, Missouri, New Hampshire, and New York
about sexual assault and their frequency, we would all be disturbed.
The goal of our time in the Senate is to make sure that when it comes
to our military, we turn a corner and create a legal system where
people feel that if they file a complaint, they are going to be fairly
treated and also a legal system where if one is accused of something,
they will be fairly treated.
I say to my colleagues, there is a reason that every judge advocate
general of all the services has urged us not to adopt Senator
Gillibrand's solution to this problem.
In the military, it is possible, in my view, to correct a problem
without commander buy-in and holding commanders responsible. Military
commanders have awesome responsibility and almost absolute liability
for the job we give them. It is their job to make sure that all under
their command are ready to go into combat, perform their assignment in
the most difficult task, make sure that medical records are up to date,
and to make sure they are squared away when our Nation needs them.
This concept of the authority of the commander goes back to the very
beginning of this Nation. Military justice is an essential part of good
order and discipline.
After 30 years of experience in this area, the number of cases where
a judge advocate recommends to a commander to proceed to trial in a
sexual assault or, for that matter, almost any other alleged crime is a
rounding error. Please don't suggest that under our current system
someone can't get a case to trial because our commanders routinely blow
off legal advice. That is not the case. Commanders decide as to whether
to proceed to a court-martial, and what level of court-martial, based
upon advice of the judge advocate community, whose job it is to provide
professional advice. The commander's job is to make sure that unit is
ready to go to war. The lawyer's job is not to pick and choose who goes
into the battle. The lawyer's job is to give that commander the best
legal advice possible, including who to court-martial and who not.
One thing I hope people understand in this debate is that no lawyer,
no judge advocate, is ever going to have to deal with the situation of
picking and choosing in that unit who takes the most risk. We have for
200 years allowed commanders the authority, under the Uniform Code of
Military Justice since 1952 and before, and the ability to maintain
good order and discipline, the absolute responsibility to make sure
force is effective when it comes to the fight, and giving them the
tools to make sure that happens.
What would bother me greatly is if this conversation occurred: Sir or
ma'am--depending on who the commander is, as there are more and more
female commanders in the military--there was an alleged rape last
night, a sexual assault in the barracks last night, and the commander
would say: That is no longer my problem. Send that to Washington.
Ladies and gentlemen of the Senate, that is the commander's problem.
To those commanders who have failed to make sure we have the right
climate in the military when it comes to sexual assault, your job is at
stake.
The military justice system, when it comes to rendering justice, I
will put up against any system in your State. The reforms in this bill
are going to become the gold standard, I hope, over time, and very few
jurisdictions will be able to do what we have been able to do. With
thanks to Senators McCaskill, Ayotte, Levin, and others, we have taken
a problem in the military and brought a good solution. Every victim
will now be assigned a judge advocate to help them through the legal
process. I wish that were true in South Carolina, but it is not. Every
commander who is advised to go to trial in a sexual assault case and
who declines to accept the JAG's, the judge advocate, recommendation,
that case is automatically sent up to the Secretary of the service in
question.
In the future, as commanders have to decide how to deal with sexual
assault allegations, when the lawyer tells them: Sir, ma'am, this is a
good case, and if for some reason the commander decided: I disagree,
that case goes up to the highest member of that civilian service, the
Secretary of the Air Force, in the case of my service. This, to me, is
a reform that will emphasize from the chain of command how important it
is that we take these cases seriously.
If we take the chain of command out, this is what we are saying to
every commander in the military: You are fired. We, the Senate, have
come to conclude that you, the commander--all commanders of the group--
are either intellectually insufficient to do this job or you don't have
the temperament or are morally bankrupt. We are going to take away from
you this part of being a commander. You are fired.

I will never, ever say that unless and until I am convinced that
there is no hope for our commanders, that our commanders are hopelessly
lost when it comes to these types of issues. I don't believe we are
remotely there.
In the 1970s we had upheaval throughout the country, particularly in
the military. We had race riots on aircraft carriers and tension ran
high. How did we fix it? We made sure every commander was held
responsible for the atmosphere in their unit when it came to race
relations. And now I would daresay the most equal opportunity employer
in the whole country is the U.S. military because commanders changed
the climate.
Under the approach of Senator Gillibrand, we take out a group of
military offenses. To the commander: You are fired; you can't do this
anymore. And we send these decisions to an 06 judge

[[Page S8336]]

advocate--which I happen to be one of, by the way--in Washington. I
cannot stress to my colleagues enough how ill-conceived that system
would be from a military justice point of view and the damage that will
be done to the command and to the fighting force if we go down this
road. Let me tell you why.
A troop is in Afghanistan. There is a larceny. Senator Coons
mentioned the workplace. A barracks thief is one of the worst things
you can be in the military. A soldier doesn't pick and choose whom they
room with; we pick whom they room with. No one gets to decide where
they are going to stay; we pick for them. We throw them into the most
incredible of conditions, we don't give them the comforts of home, and
they have to trust their fellow soldiers in the barracks and in
deployment. Soldiers, like everybody else, most are great, some are
bad. In the military the bad apples, thank God, are few.
Under this construct we are coming up with, if there was a barracks
theft case--a tent theft case--in a deployed environment, that really
does hurt morale because if you have to worry about somebody stealing
your stuff, that is really tough given the conditions under which you
are living. So if the commander could not deal with this, it would go
all the way to Washington, DC, to be disposed of rather than being
disposed of onsite. And why does it need to be disposed of onsite? You
need to render justice quickly and effectively so the troops can see
what you are doing. If you are the commander, they have to respect you
and they have to understand your role.
So I cannot understand why the Senate, when we have been at war for
11 or 12 years, would come up with a solution to a problem that is real
that does harm to the very concept of what makes our military special--
the ability to go to war, the ability to be effective and to have the
commander make decisions that only a commander should be making.
I am a military lawyer. I am telling you right now, don't give me
this decision, because I am not required to decide who goes to battle.
Don't take away from our commanders in a theater of operation the
ability to render justice in a way the troops can see.
Mrs. McCASKILL. Would the Senator yield for a question?
Mr. GRAHAM. Yes.
Mrs. McCASKILL. I want to make sure I understand something about
nontraditional punishment. Since the Senator is discussing the barracks
thief in Afghanistan and the notion that everything is going to stop
and this case is going to be sent off to a lawyer half a continent away
to make a decision, let's assume the lawyer--the colonel in
Washington--decides there is insufficient evidence for that barracks
thief. That might be 4 months later. Meanwhile, the barracks thief is
still there. And let's assume it then comes back. It is my
understanding--and I think there is some confusion about this by the
people who are advocating this amendment--that you cannot exercise
nonjudicial punishment on a soldier if he chooses a court-martial
proceeding. Is that correct?
Mr. GRAHAM. That is exactly right. A nonjudicial punishment is an
authority the commander has to put people in confinement for up to 30
days, reduce in rank one or two levels, depending on the rank of the
commander, and to withhold pay. It is nonjudicial punishment. You don't
have a trial. The person is represented by a lawyer, but there is no
jury. The commander is the jury.
The Presiding Officer. The Senator has spoken for 15 minutes.
Mr. GRAHAM. I thank the Chair.
Mrs. McCASKILL. So that commander who has to now send----
Mr. GRAHAM. He loses that authority.
Mrs. McCASKILL. That case to Washington--that soldier is not going to
agree to nonjudicial punishment. He is going to say: I will take my
chances with the lawyers in Washington. And if the lawyers in
Washington say no, then that commander's hands are completely tied to
even putting him in the brig for 30 days.
Mr. GRAHAM. Exactly right.
Every military lawyer who has looked at this is very worried about
what we are about to do in terms of practical military justice.
Imagine being 18 years of age. You have too much to drink and you
write a bad check. Part of being a commander and a first sergeant is
the paternalistic aspect of the job. How many of us have made mistakes
at 18? Instead of going to college, you are going into a military unit.
You bounce four or five checks. Has that ever happened? Under this
proposed system, the military commander no longer has the ability to
deal with it in the unit. He sends that case off to Washington. The
ability to give an article 15--a lesser punishment--is taken off the
table. So we are taking an 18-year-old's mistake and potentially
turning it into a felony. Does that help sexual assaults?
Our commanders can send you to your death, but we don't trust them to
deal with manslaughter cases? All I can tell you is that for 30 years I
have been a practicing military lawyer. From my point of view, our
commanders take the responsibility to impose discipline incredibly
seriously. They are skilled men and women.
We have let the soldiers, sailors, airmen, and marines down when it
comes to sexual assault. All of us are to blame in the military. We are
going to fix that. But the problem, my colleagues, is not the military
justice system. We don't have a military justice system where
commanders say to the lawyers: Go to hell; we are not going to deal
with that. That is not the way it works.
This new proposed system takes a portion of offenses out of the
purview of the commander and sends them to somebody in Washington whom
nobody in that unit will ever get to see. That will delay justice, and
it will take tools off the table to make sure that is an effective
fighting force in terms of dealing with the barracks thief, in terms of
dealing with the bounced check, but it will also take young people who
make mistakes and put them in an arena where the only avenue is to
potentially charge them with a felony.
Ms. AYOTTE. Would the Senator from South Carolina yield for another
question?
Mr. GRAHAM. Yes.
Ms. AYOTTE. So under the situation where the Senator says we have
commanders who aren't going to ignore what is brought before them in an
investigation from their JAG lawyers, particularly on a sexual assault,
let's assume they did do that. Even though the evidence isn't there,
they do it. Under our proposal--the proposal of myself and Senators
McCaskill and Fischer--if the commander makes the decision not to bring
the sexual assault case and it then goes up for review before the
civilian secretary of whatever force is at issue--the Army, the Air
Force, the Navy--what does the Senator think that will do in terms of
accountability?
Mr. GRAHAM. If you want to improve the system, and we all do--I am
not questioning anybody's motives--if a commander knows that when they
turn down the JAGS's advice in one of the four situations we have
identified--sexual assault, the nature of the discussion here--that
decision will be reviewed by the Secretary of the service, I can assure
you that will do more good to make sure commanders understand how
important this situation is to the country than taking their authority
away.
We will be doing absolutely the worst possible thing to solve the
problem with the approach of Senator Gillibrand, in my view, although
every judge advocate agrees with what I am saying. You will throw the
military justice system in chaos and basically take the commander's
authority away in an irrational way.
What we should do is hold the commander more accountable by having
what is the commander's worst nightmare--I guess anybody in the
military--and that is having the boss look at your homework. How do you
get promoted in the military? People over you judge your work product.
Let me just say this. It is not a military justice problem here. The
reforms we are going to engage in are historic, and they will be the
model for systems in the future. Very few people can afford what we are
about to impose upon the military because we are going to make this a
priority and we are going to assign judge advocates to victims. There
is no other State in the Nation that will be able to do that. We will
have something of which we can all be proud. We are going to hold
commanders more accountable.

[[Page S8337]]

Here is the essence of the argument: We have to take this out of the
chain of command because there is something defective about the
commander; because the commander doesn't have the ability or they have
a bias against victims, we no longer can trust them to do the right
thing.
That, to me, is an indictment of every commander in the military.
That, quite frankly, is not what we should be doing or saying given the
track record of how our military has performed.
In the area of sexual assault, the problems we see in the military
are all over the country; they are just talked about more in the
military. The people in the military should be held to the highest
standard, but we will fix no problem in the U.S. military if we deal
that commander out.
Ms. AYOTTE. Would the Senator yield for a comment? Looking at the
facts, the evidence we have reflects that commanders are bringing more
cases, are pursuing more cases than those recommended by their JAGs in
sexual assault cases.
We received a letter from ADM Winnefeld, Deputy Chairman of the Joint
Chiefs of Staff, basically pointing out that there were over 90 cases
where commanders had a different view than their JAGs that a case
should go forward. Guess what. Convictions were had and people were
held accountable.
Mr. GRAHAM. There are situations where joint jurisdiction lies--the
military has jurisdiction, the civilian community has jurisdiction.
There have been cases where the civilian community went first. There
were 49 cases in the Army where the civilian community decided not to
prosecute on a sexual assault and the Army took it up and they got an
81-percent conviction rate. In the Marine Corps, 28 cases were turned
down by the civilian community where the Marine base was and they went
to court with a 57-percent conviction rate. In the Navy and in the Air
Force, it is the same. We see a civilian jurisdiction saying no to the
case and the military saying yes, we are going to go to court. And that
is because there is a difference between what the civilian community is
trying to accomplish and what the military community must be trying to
accomplish; that is, to let the troops know there is certain conduct
that is out of bounds, and if it is even close, you are going to pay a
potential price.
Having said that, please do not blame sexual assault problems in the
military on a broken military justice system because it is not broken.
The commanders are not telling the lawyers to take a hike. The cases
the lawyers recommend to go to trial actually do go to trial.
Juries in the military are not juries of one's peers. This is not a
civilian system. Everybody who goes to trial as an enlisted man is
judged by officers. You can request one-third of the military jury to
be enlisted members, but they will be the most senior people on the
base.
Please understand that military juries are not constructed the way
civilian juries are. They are told to be fair, and they do their best
to be fair. But it goes into the concept of how the military works. The
only person in the military entitled to a trial of the equivalent rank
is an officer. An officer cannot be tried by people of lesser rank.
That may sound unfair, but in the military it makes perfect sense,
doesn't it? Officers eat in one corner of the base and enlisted people
eat in the other corner of the base not because they hate each other.
They admire and respect each other. This chain of command, these lines
of authority make us--Mr. President, I ask unanimous consent for 1
additional minute.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRAHAM. This unusual situation for most Americans works in the
military. It may not sound right to most, but it works because the
military is about when you are ordered to do something, you answer the
order; you don't debate.
So if we don't elevate the commander to have the tools available to
make the right decisions, and if we don't instill those below the
commander to follow, it all breaks down. When a commander lets the
troops down--and they do sometimes--fire the commander. Don't take away
the authority of the commander to win wars that we will inevitably
fight. This is not a civic organization. This is not a democracy. This
is a situation where one person can choose to send another person to
their death. That person is the commander, and there are plenty of
checks and balances.
Ladies and gentlemen, sexual assault is a problem. But for God's
sake, let's not tell every commander in the military: You are fired.
You are morally bankrupt. You are incapable of carrying out the duties
of making sure that justice is done in these cases.
The PRESIDING OFFICER. The Senator's time has expired.
The majority leader is recognized.
Mr. REID. Mr. President, I ask unanimous consent that the motion to
recommit be withdrawn; the pending Levin amendment No. 2123 be set
aside for Senator Gillibrand, or designee, to offer amendment No. 2099
relevant to sexual assault; that the amendment be subject to a relevant
side-by-side amendment from Senators McCaskill and Ayotte, amendment
No. 2170; that no second-degree amendments be in order to either of the
sexual assault amendments; that each of these amendments be subject to
a 60-affirmative-vote threshold.
I am told each side would like 10 minutes; that is, the McCaskill
side and the Gillibrand side would receive 10 minutes to close. If
there are other people who wish to speak, now is the time to say
something.
The PRESIDING OFFICER. The assistant majority leader is recognized.
Mr. DURBIN. I understood there were 30 minutes left on the Gillibrand
time.
Mr. REID. How much time does the Senator need if I get a consent
agreement?
Mr. DURBIN. Ten minutes.
Mr. REID. So we need 10 minutes for McCaskill also. That would be 20
minutes on each side.
That the time then until 5:30 be equally divided between the
proponents and the opponents of the Gillibrand amendment and the
McCaskill amendment; that the Senate proceed to vote in relation to
Gillibrand first; that upon disposition of the Gillibrand amendment,
the Senate proceed to vote in relation to the McCaskill-Ayotte
amendment; that there be 2 minutes equally divided between the votes;
finally, that no motions to recommit during the consideration of these
amendments be in order.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. Reserving the right to object.
The PRESIDING OFFICER. The senior Senator from Oklahoma.
Mr. INHOFE. Mr. President, I would ask the leader if he would amend
his request to add the following language: Following the disposition of
the McCaskill-Ayotte amendment, all pending amendments be withdrawn and
the Republican manager, or his designee, be recognized to offer the
next amendment in order, followed by an amendment offered by the
majority side, and that the two sides continue offering amendments in
alternating fashion until all amendments are disposed of.
The PRESIDING OFFICER. Will the majority leader modify his UC?
Mr. REID. Mr. President, we went through this yesterday. I
reluctantly object.
The PRESIDING OFFICER. Objection is heard. Is there objection to the
majority leader's request?
Mr. COBURN. Reserving the right to object.
The PRESIDING OFFICER. The junior Senator from Oklahoma is
recognized.
Mr. COBURN. This is a very important bill for our country in terms of
authorizing the defense of this country. Many of us have relevant
amendments--not amendments outside the scope of this bill, but relevant
amendments--which will actually markedly improve the way we conduct
policy in the Defense Department. Without the assurance that those
amendments are going to be able to be offered--they can be tabled, but
without that assurance, it makes it difficult to agree to a consent not
knowing whether or not we will have the opportunity to represent the
people we represent in offering amendments which will make positive
improvements to this bill.
So I put forward that we are really not conducting the business of
the country if we are limiting the ability

[[Page S8338]]

of Members of the Senate to offer amendments. Absent that guarantee, I
will object.
The PRESIDING OFFICER. Objection is heard.
Mr. REID. Mr. President, we have 350 amendments which have been filed
on this bill. I know every person who has filed an amendment feels
entitled to offer that amendment. I just think we are not in a position
to deal with this for all the reasons we have talked about here for
several months. We are not seriously legislating anymore.
We can pass the blame to anyone we want, but we have tried all kinds
of things. How about so many amendments on each side? We have done that
before. It is not anything unique. We have done that lots of times in
the past. It doesn't work. How about 13 amendments? No. It won't work
because we want more amendments after that.
So I understand, and I am not denigrating anyone's intent. I know the
intentions are good. The record reflects how I feel about this bill. I
am sorry we are at the point we are. Couldn't we at least have
everybody vote on this amendment which people have spent days of their
lives working on? It doesn't matter how we feel about what has been
done, but there has been tremendously important work done on the sexual
assault issue, and we should at least have the opportunity, with the
work that has been put into this, to have a vote. No one is
disenfranchised by doing that--or move to try to figure something else
out after that. But, gee whiz, couldn't we do that? Otherwise, we will
walk away not having done anything on this. I think that is just so
unfair to the people who worked on this.
I know other people have worked hard on their amendments. But I have
to say, in the last year or two, no one has worked harder on amendments
than the proponents and opponents of this amendment.
So having said that, I ask unanimous consent that we move to a period
of morning business for debate only until 7:30 p.m. tonight.
The PRESIDING OFFICER. Is there objection? The Senator from Michigan.
Mr. LEVIN. Is that a unanimous consent request?
Mr. REID. Yes, it was.
Mr. LEVIN. Of course, while reserving the right to object--I will
not, but I will say this. I can't tell everybody in this body how
disappointing it would be if we do not finish this bill tomorrow or
Friday, because the issue is this, and we all ought to face it: There
is only 1 week left where both the House and the Senate are going to be
in session. If we don't finish this bill this week, there cannot be a
conference report; and then, for the first time in 52 years, there will
not be a Defense authorization bill in the absence of some miracle.
I would plead with our colleagues, let us vote on this amendment. The
alternative was a list of 13 amendments which we were willing to then
move to. That wasn't satisfactory. We have got to do this a step at a
time, and we have done it that way before. We can't even get cleared
amendments agreed to where both sides have cleared them into a
manager's package.
If Senators want to vote tomorrow or Friday against the cloture
motion because their amendments haven't been reached, they are free to
do so. That is plenty of ``leverage,'' which I guess is the currency
around here, tragically. But I plead--and Senator Inhofe and I have
worked so hard on this bill and I think he feels this same way--we need
to get this bill finished this week or else we are not going to get a
conference report.
Mr. COBURN. I would like to object.
The PRESIDING OFFICER. The majority leader is recognized.
Mr. REID. I am sorry.
Mr. INHOFE. I reserve the right to object.
Mr. REID. I would say, while they are reserving the right to object,
there is still time left. With the tentative agreement we had, which
was just kind of a handshake, there would be 6 hours, and there is
still time left on that. So that time for debate only, that time could
still be used.
The PRESIDING OFFICER. Is there objection to the request?
Mr. COBURN. Reserving the right to object.
Mr. INHOFE. Reserving the right to object.
The PRESIDING OFFICER. The junior Senator from Oklahoma is
recognized.
Mr. COBURN. First of all, the amendment we are talking about isn't
pending because the tree has been filled. So we don't even have an
amendment pending. Seventy-six times the majority leader has filled the
tree, more than two times all the rest of the Senate majority leaders
in history.
Last year, under Senators Levin and McCain's leadership, we
considered 125 amendments or thereabouts, some in a manager's package
with others. There were over 300 amendments offered. The average length
of time to consider this bill is about 2\1/2\ weeks. We have had it up
less than 1 week, and the fact is this is the consideration for an
authorization bill in excess of $500 billion, and we are not going to
have amendments on it.
So there is not a unanimous consent that I will agree to, until we
agree to open the Senate to allow Members to offer their ideas. Table
them. The fact is, if we run this just like we did last year, we will
be through with this in 5 to 7 days. If we continue to do what we are
doing now, we won't finish it, and it won't be because we don't want to
finish it. It will be because we won't have the opportunity to have
input into a bill that is over 50 percent of our discretionary spending
in this country.
The PRESIDING OFFICER. Is there objection?
Mr. INHOFE. Reserving the right to object.
The PRESIDING OFFICER. The senior Senator from Oklahoma.
Mr. INHOFE. I think when we are going through an exercise like this
there are some people who want to have their program placed on a must-
pass bill in order to get something through. The junior Senator from
Oklahoma made it very clear that he is talking about something he feels
is relevant to the defense of this country, and I think that sounds
reasonable.
What I would like to suggest to the majority leader and to my very
good friend with whom I have worked for many years, the chairman of the
committee Senator Levin, is that we can qualify and work on a UC which
would either use the words germane, relevant or related, in some way so
that those amendments--which have nothing to do with defending
America--might be able to be considered in some form, maybe a limited
form. I would like to be able to sit down and see if something like
that can be worked out before giving up.
The PRESIDING OFFICER. Is there objection? The majority leader.
Mr. REID. I know there is a unanimous consent pending. I have no
problem in the world with continuing to work to see if we can come up
with something. We have tried. It is not as if we have not tried. But
my disappointment is that we are just not doing any legislating here,
and people can bring the blame to me all they want. We can get into all
kinds of statistics that we want about what has happened in years past
and why it has been necessary to fill the tree, but that doesn't
accomplish anything. Everyone knows what is going on around here. So I
am not going to get into a he said, they said situation.
I know the two managers of this bill want to get something done.
Let's give them the time it takes to get that done.
So my consent is pending, and I would like the Chair to rule on that.
The PRESIDING OFFICER. Is there objection to the request?
Mr. COBURN. I object.
Mr. REID. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, I renew my request that was just denied.
The PRESIDING OFFICER. Is there objection?
Mr. REID. I also add to that that I be recognized at 7:30.
The PRESIDING OFFICER (Mr. Blumenthal). Is there objection?
Without objection, it is so ordered.

[[Page S8339]]

____________________