[Congressional Record Volume 160, Number 38 (Thursday, March 6, 2014)]
[Senate]
[Pages S1334-S1349]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    MILITARY JUSTICE IMPROVEMENT ACT

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to the consideration of S. 1752, which the clerk will report.
  The bill clerk read as follows:

       A bill (S. 1752) to reform procedures for determinations to 
     proceed to trial by court-martial for certain offenses of the 
     Uniform Code of Military Justice, and for other purposes.

  The PRESIDING OFFICER. The majority leader.

[[Page S1336]]

  Mr. REID. I ask unanimous consent that the order with respect to the 
consideration of S. 1752 and S. 1917 be modified so the debate time is 
equally divided between Senators McCaskill and Gillibrand or their 
designees, with all other provisions of the previous order remaining in 
effect.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.


                             Cloture Motion

  Mr. REID. I have a cloture motion at the desk.
  The PRESIDING OFFICER. The cloture motion having been presented under 
rule XXII, the Chair directs the clerk to read the motion.
  The bill clerk read as follows:


                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on S. 1752, a bill to 
     reform procedures for determinations to proceed to trial by 
     court-martial for certain offenses under the Uniform Code of 
     Military Justice, and for other purposes.
         Harry Reid, Kirsten E. Gillibrand, Barbara Boxer, John D. 
           Rockefeller IV, Tammy Baldwin, Benjamin L. Cardin, 
           Patrick J. Leahy, Debbie Stabenow, Richard Blumenthal, 
           Christopher A. Coons, Claire McCaskill, Jon Tester, 
           Mark Begich, Barbara Mikulski, Maria Cantwell, Charles 
           E. Schumer, Dianne Feinstein.

  Mr. REID. Mr. President, when American men and women decide to defend 
our freedoms as members of the U.S. Armed Forces, they do so with full 
knowledge that they could make the ultimate sacrifice--the ultimate 
sacrifice--on behalf of our county. These are very courageous men and 
women. While we can't protect every member of our military from harm at 
the hands of America's enemies, we should at least guarantee them 
protection from harm at the hands of their fellow servicemembers.
  The need to address the problem of sexual assault is not lost on the 
military officers and officials with whom I have met. They acknowledge 
there is a problem. I believe they are working in good faith to fix it.
  The vast majority of U.S. military personnel are appalled by sexual 
assault in their ranks, as are their commanders. I applaud their 
dedication to this Nation and their fellow servicemembers. I applaud 
the action of those who have zero tolerance for these crimes, but I am 
convinced that Congress must act aggressively to eliminate a military 
culture that not only allows sexual assault to happen but too often 
punishes the victims when it does.
  We have already taken some action to combat the sexual assault in the 
Defense authorization bill. I am pleased today we will vote on two 
proposals for further action.
  Congress cannot stand idly by while the blight of sexual assault 
continues. Every military leader has the responsibility to take a stand 
with us for a zero tolerance approach to military sexual assault, to 
stand by the victims of sexual assault, and to stand with the good men 
and women they command.
  The PRESIDING OFFICER (Ms. Baldwin). The majority leader.
  Mr. REID. We are going to have two votes at 2 o'clock. I ask 
unanimous consent that the additional time until 2 p.m. be equally 
divided and controlled.
  The PRESIDING OFFICER. Without objection.
  The Senator from New York.
  Mrs. GILLIBRAND. I rise today to speak about the need to strengthen 
our military and stand by our brave men and women in uniform by passing 
the bipartisan Military Justice Improvement Act.
  I start by thanking all of my colleagues on both sides of the aisle 
for the seriousness with which they have approached this issue and the 
effort they have put into looking at the solution survivors of sexual 
assault in the military are asking for. I specifically thank my friends 
from Missouri and New Hampshire for their determination and leadership 
in fighting for victims of sexual assaults in our military. I look 
forward to voting for their bill on the floor today.
  I defer the colloquy to Senator Inhofe.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. INHOFE. Madam President, when the majority leader said 1 minute 
ago that Congress cannot idly stand by and not do anything, I have to 
remind him that we have been doing so for quite some time. We have been 
working on the problem of sexual assault, and the reality is that 
Congress has been aggressive in instituting reforms to tackle sexual 
assault in the military since the fiscal year 2009 Defense 
Authorization Act. We have enacted 47 provisions, either directly 
addressing sexual assault or instituting reforms to the Uniform Code of 
Military Justice that will improve efforts to address allegations of 
misconduct.
  These reforms have strengthened the protections and the care of the 
victims while preserving the rights of the accused. These historic 
reforms are vital to ensuring a sound, effective, and fair military 
justice system.
  I look at the bill we are considering that will be coming up in a 
short while. The bill would modify the court-martial convening 
authority in a way that I believe creates very serious procedural 
problems.
  In a January 28, 2014, letter to the Department, it cited--and I am 
going to cite some very technical problems:

       Potentially irreconcilable and could result in long delays 
     from bringing some cases to trial and, if a conviction 
     ultimately results, could produce still more years of 
     appellant litigation, perhaps ultimately culminating in the 
     conviction's reversal.

  To make matters even worse, the bill includes a requirement that the 
new military judge advocate billets required to perform these duties 
must be taken from existing billets. This is what we have been fighting 
and arguing about, the problems that we are having now in the overall 
military. No billet growth is authorized in this, so it will have to 
come from existing billets.
  I received a personal letter from the Judge Advocate General of the 
Army, General Darpino.
  He said:

       The bill would not be cost neutral. According to initial 
     estimates, the Army would require an additional 50 judge 
     advocate colonels along with the increase of about 200 judge 
     advocates of other ranks and about 150 legal support staff.

  That is a quote. She went on to say:

       . . . this is happening at a time when the services are 
     attempting to reduce their personnel costs to accommodate 
     shrinking budgets. And that is just the impact in the Army. 
     On November 18, 2013, the Department of Defense provided an 
     assessment of the devastating impact of the Gillibrand bill. 
     The Defense office of Cost Assessment and Program Evaluation 
     estimate a total cost of over $113 million per year--

  That is every year--

     to implement her bill in the Army, Navy, Air Force and 
     Marines. Not only is her bill not executable in a cost-
     neutral basis, it is not possible to grow the total inventory 
     of nearly 600 judge advocate officers and legal assistants 
     required by the bill within the 180 days of enactment. The 
     decision we make today will have significant consequences for 
     the future of our military. More specifically, the bill we 
     are debating this week threatens to tear apart what I 
     strongly believe is the fabric of our Armed Forces: the chain 
     of command.

  I can't find people I can confide in and talk to personally, who have 
been in the military, who don't agree with this. I was in the Uniform 
Code of Military Justice when I was in the U.S. Army--not at the level 
of some of the Senators who have been there more recently, such as 
Senator Graham, for example, and at a higher level. I was an enlisted 
man. But I was a reporter, and a lot of times the reporters, the 
enlisted personnel, really know more about the situation than some of 
the bosses. I was firmly convinced that--granted, this was years ago--
you can't mess with the chain of command.
  When you stop and think about what a commander has to do--he is 
required to take care of the physical and medical condition of our 
troops. He is required to oversee their training. He is required to 
have medical care if they are wounded, and he has to make the decision 
of sending our troops into combat. It is inconceivable to me, with all 
of these responsibilities, that he be taken out of this chain.
  It is not just me. Others agree with this. I had conversation with 
Col. Ana Smythe of the Marine Corps. She said at a press conference:

       What you don't understand if you're not in the military is 
     that the fabric and the essence of the military is built 
     around the chain of command. . . . If we dismantle or weaken 
     the chain of command, we are lost.

  The CMSgt Barbara Taylor said about the Gillibrand bill:


[[Page S1337]]


       It would be devastating to the United States military. . . 
     . A commander cannot be held responsible if he does not have 
     the authority to act.

  So I think those of us who have had military experience and who have 
been involved in the military understand the serious problems that 
would come from the adoption of this bill. I strongly recommend we 
defeat the Gillibrand bill.
  With that, I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  The Senator from New York.
  Mrs. GILLIBRAND. I yield 10 minutes to Senator Collins.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Madam President, I am relieved that legislation 
addressing the crisis of military assault has finally been brought to 
the Senate Floor, and I commend the Senator from New York, Mrs. 
Gillibrand, and the Senator from Missouri, Mrs. McCaskill, for their 
leadership in bringing this important issue to the forefront.
  I also acknowledge the courage and conviction of Jennifer Norris and 
Ruth Moore--two Mainers who were sexually assaulted while serving our 
country. They have made it their mission to change the broken system 
that has not put victims first. Through their advocacy they have helped 
to shine a light on this crisis, and they deserve our gratitude.
  In fact, as Senator Gillibrand and I were coming on to the floor, we 
were stopped by a reporter who asked us: What has made the difference? 
I said it had been the leadership of the Senator from New York and the 
Senator from Missouri, but I also pointed to the survivors of military 
sexual assault who have come forward and been willing to tell their 
stories, painful though those stories are.
  Since 2004, I have been sounding the alarm over the military's 
ineffective response to the growing crisis of sexual assault in the 
military, including the need to ensure appropriate punishment for the 
perpetrators of these crimes, to provide adequate care for the 
survivor, and to change the culture across the military so that sexual 
assault is unthinkable.
  It was 10 years ago, during an Armed Services Committee hearing, that 
I first brought up the alarming increase in the number of sexual 
assaults in the military. Back then the attitude of the witness, GEN 
George Casey, Jr., then Vice Chief of Staff of the Army, testifying at 
that hearing was completely dismissive, even though these are serious 
crimes that traumatize survivors and erode the trust and discipline 
fundamental to every military unit. I was appalled at the reaction.
  While the attitude today among the most senior military leaders is 
markedly different than the one that I encountered a decade ago, the 
work of translating the military's stated policy of zero tolerance into 
reality remains unfinished business. Fostering a culture of zero 
tolerance so that the number of assaults is greatly diminished remains 
a goal, not reality. Ensuring that survivors do not think twice about 
reporting an assault for fear of retaliation or damage to their careers 
is still not part of the military culture.
  In 2011 I joined our former colleague, John Kerry, in introducing the 
Defense STRONG Act as an initial step to address this crisis. The 
provisions of that bill, which were signed into law as part of the 
fiscal year 2012 National Defense Authorization Act, provide survivors 
of sexual assault the assistance of advocates with genuine 
confidentiality, guaranteed access to an attorney, and expedited 
consideration for the victim to be transferred far away from the 
assailant.
  These were helpful first steps. But more than anything, the victims 
of sexual assaults, the survivors, need to have the confidence the 
legal system in which they report a crime will produce a just and fair 
result. We need to encourage more reporting, and that is what Senator 
Gillibrand's bill will accomplish. This is a goal that I believe is 
shared by all Members of the Senate, despite our differing opinions on 
the best path forward for achieving these goals.
  In the 113th Congress, a number of proposals have been introduced 
aimed at reducing the barriers to justice that many survivors of sexual 
assault face in our military. I have been pleased to work with both 
Senators Gillibrand and McCaskill toward this end. As a result of our 
efforts, as well as those of many others, including Chairman Levin and 
Ranking Member Inhofe, important provisions that all of us agree on 
have been signed into law as part of this past year's National Defense 
Authorization Act.
  Among those provisions is legislation that I coauthored to extend the 
STRONG Act to the Coast Guard. In addition, Senator McCaskill and I 
wrote provisions mandating a dishonorable discharge or dismissal for 
any servicemember convicted of sexual assault. We also allowed a 
commander to relocate an alleged perpetrator of a sexual assault crime 
rather than the survivor. Why should it be the survivor who has to 
move?
  Senator Gillibrand and I authored a provision that eliminates the 
elements of the character of the accused from the factors a commander 
could consider, making it more like what would occur in the civilian 
system. Senator Gillibrand, Senator McCaskill, and I authored a 
provision that eliminates a commander's ability to overturn a 
conviction by a jury post trial for major offenses.
  I mention these reforms because I am encouraged that we have taken 
these steps to address this vitally important issue. But more remains 
to be done. I remain cognizant of the fact there are strong views at 
the Pentagon and within this body about how we should best move forward 
from here and what that may mean for the military's unique legal 
system. But one of the criticisms which I totally reject is that we 
should just wait a few more months for the result of a few more studies 
or wait a few more years to see if the recently enacted provisions have 
made a difference. I strongly disagree.
  How many more victims are required to suffer before we act further? 
How many more lives must be ruined before we take additional steps that 
we know are required to solve this problem? Rather than waiting for the 
results of yet more studies, we must continue to enact real reforms to 
increase the confidence of survivors to come forward and report the 
crimes, to ensure that perpetrators will be dealt with appropriately, 
and to strengthen prevention efforts right now.
  Senator Gillibrand's bill is a reasonable proposal designed to 
communicate to survivors and potential perpetrators alike that when 
survivors are subjected to these unacceptable, horrific crimes, they 
will have access to a legal system that fully protects their interests. 
Providing our troops with that basic confidence is the least we can do.
  I believe there is no question of Congress' commitment to reducing 
the instances of sexual assault in the military and providing 
appropriate redress and care for survivors. While we debate various 
proposals, we are united by the need for serious reforms that will 
strengthen the military's response to sexual assaults. But for the 
leadership of Senator Gillibrand and Senator McCaskill, and the courage 
of those survivors who were finally willing to come forward and tell 
their stories and know that we would listen to them, believe them, and 
act, we would not be here today. I am certain that our work will reduce 
the unnecessary suffering and injustice felt by those who have survived 
these horrific crimes.
  I thank the Chair.
  The PRESIDING OFFICER. The Senator from New York.
  Mrs. GILLIBRAND. I yield time to the Senator from Iowa.
  Mr. GRASSLEY. I thank the Senator from New York.
  The Defense Department has been promising Congress and the American 
people for a long period of time that they are working on this problem 
of sexual assault, and we are still looking for results, and the 
statistics get worse. So I believe what Senator Gillibrand is saying 
with her legislation is enough is enough.
  I am proud to be a partner in this effort. It fits into an overall 
principle of government that I have: Greater transparency brings 
accountability. And I believe this legislation will make this whole 
problem much more transparent and, with it, accountability to hopefully 
get the issue solved.
  I appreciate the fact that a large number of commonsense reforms were 
included in the national defense authorization. These changes were long

[[Page S1338]]

overdue. However, we are past the point of tinkering with the current 
system and hoping that does the trick. We have had promises about 
tackling the problem of sexual assault within the current system for 
years and years, but the problem is still not any better and, 
statistics show, is getting worse. We don't have the luxury of time to 
try some new reforms of the current system and hope they have an 
impact. We have had those promises before.
  What is more, the current system appears to be part of the problem. I 
will elaborate on that.
  We know from the recent Defense Department report that 50 percent of 
female victims stated they did not report the crime because they 
believed nothing would be done as a result of their reporting; 74 
percent of the females and 60 percent of the males perceived one or 
more barriers to reporting sexual assault; and 62 percent of the 
victims who reported sexual assault indicated they perceived some form 
of professional, social, and/or administrative retaliation.
  We can talk about protecting victims, and we can enact more 
protections, as we did in the national defense authorization, but the 
fact remains that the current structure of the military justice system 
is having a deterrent effect on the reporting of these assaults. If 
sexual assault cases aren't reported, they can't be prosecuted. If 
sexual assault isn't prosecuted, predators will remain in the military, 
which results in the perception that sexual assault is tolerated in 
this culture. That destroys morale and it destroys lives. If an enemy 
tried to sow that kind of discord among our military, we wouldn't 
tolerate it, but we are doing it to ourselves.
  The men and women who have volunteered to place their lives on the 
line deserve better, and our military readiness obviously demands it.
  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 of our forces.
  I know some Senators will be nervous about the fact that the military 
is lobbying against this legislation. I have the greatest respect for 
our military leaders, but Congress has given the military leadership 
more than enough time to fix this current system. We can't wait any 
longer. We should not be intimidated by people coming to the Hill 
because of their stars and ribbons. They deserve our respect but not 
deference to their opinion.
  We also hear that this measure will affect the ability of commanders 
to retain ``good order and discipline.'' Our legislation in no way 
takes away the ability of commanders to punish troops under their 
command for military infractions. Commanders also can and should be 
held accountable for the climate under their command. But the point 
here is that 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 supports these reforms. There is an 
organization appointed by the Secretary of Defense which goes by the 
acronym DACOWITS--the Defense Advisory Committee on Women in the 
Services--which voted overwhelmingly in support of each and every one 
of the components of the Gillibrand bill.
  DACOWITS was created back in 1951 under Defense Secretary Marshall. 
The committee is composed of civilian and retired military women and 
men appointed by the Secretary to provide advice and recommendations on 
matters and policies relating to the recruitment and retention, 
treatment, and well-being of our highly qualified professional women in 
the Armed Forces. Historically, the recommendations by DACOWITS have 
been instrumental in effecting changes to laws and policies pertaining 
to women in the military. This isn't an outside advocacy group or ad 
hoc panel; it is a longstanding advisory committee handpicked by the 
Secretary of Defense, and it supports the substance of this 
legislation.
  It is easier to support incremental reform. In fact, it is also 
prudent to try small reforms before making bigger changes. I understand 
why some Senators are nervous about a total overhaul of the military 
justice system. It isn't something I approach lightly. However, we have 
waited for years as various initiatives to tackle this problem have 
been tried.
  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. The time has come to act decisively to change the military 
culture. We need a clean break from the system where sexual assault 
isn't reported because of a perception that justice won't be done. Our 
men and women serving this country deserve nothing less, and they 
deserve it now. They shouldn't have to wait any longer for justice.
  For those reluctant to take this step, I would say that if the more 
modest reforms proposed by others prove insufficient and we have to 
come back and enact our reforms at a later time, how will you justify 
your vote today?
  Now is the time for bold action, and I urge my colleagues to join in 
the effort.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mrs. GILLIBRAND. I yield to the Senator from Montana, followed by the 
Senator from Kentucky.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. WALSH. Madam President, I thank Senators Gillibrand and McCaskill 
for their dedication and commitment to dealing with sexual assault in 
the military and for bringing a serious problem to the forefront of 
Congress. Their work on the 2014 National Defense Authorization Act 
helped reform the Uniform Code of Military Justice. But I believe we 
must do more.
  My perspective on prosecuting military sexual assault comes from my 
33 years in the Montana National Guard. My view on this is simple: The 
current system is failing the men and women in uniform. And failure is 
unacceptable.
  While no legislation is perfect, I believe we must fundamentally 
change how we deal with sexual assault in our military. While I support 
the reforms that passed last year, we have moved too slowly. Today's 
debate is about where we go from here.
  In the Armed Forces today, a military commander is ultimately 
responsible for the prosecution of these crimes. In the Montana 
National Guard, except when federalized, we did things differently. If 
the unimaginable happened, the prosecution of sexual assault would 
occur outside the purview of a military commander. Senator Gillibrand's 
Military Justice Improvement Act removes prosecutions from the purview 
of military commanders--much like the Montana National Guard system.
  One of the arguments I have heard against this bill is that if we 
shift the prosecution of sexual assault outside the chain of command, 
military leaders will somehow lose their authority on other matters. As 
a retired military commander, I am confident this is not the case. I 
have never found myself in a situation with the units I commanded where 
discipline and devotion to a mission was jeopardized by compliance with 
the civilian justice system. I am not talking hypotheticals. The chain 
of command's function is not a mystery to me. I lived it. And it is 
hard to convey how angry you feel when the system fails your fellow 
soldiers.
  Today's debate is part of a broader effort to improve our military 
and the lives of those who have served--from the justice system, to the 
VA claims backlog, to ensuring that veterans find jobs when they 
complete their service. We have the opportunity to guarantee justice 
for the men and women within our military and to correct its failures. 
Now it is time to get it done.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. PAUL. William Wilberforce wrote:

       Having heard all this you can choose to look the other way, 
     but you can never again say, ``I did not know.''

  Having heard the stories of sexual assault in the military, we can 
look away, but we can never say that we have not heard of this problem, 
that we are going to ignore this problem. I don't think anybody in this 
body wants to, but the definition of ``insanity'' is doing the same 
thing over and over and

[[Page S1339]]

expecting a different result. We have known that sexual assault in the 
military has been a problem decade after decade. I think it is time we 
tried something new.
  When I heard of a young military recruit from my State--a young woman 
who was raped, attacked, beaten to a pulp, three nerves pinched in her 
back, her legs and hips bruised such that she couldn't walk, and she 
considered suicide--when I heard her rape kit was lost and the case was 
dismissed, I was disheartened. Her assailant is still in the Navy. We 
have to do something different. We cannot ignore this problem.
  To me it is as simple as this: Should you have to report your assault 
to your boss? This is what we are talking about. What if your boss goes 
drinking with the person who assaulted you, who is friends with them? 
Wouldn't we want the person you complained to completely outside the 
chain of command? Wouldn't we want to have lawyers involved whose 
specialty is this type of situation?
  I am not saying it is easy. Guilt and justice are sometimes hard to 
find. But we have evidence that people don't trust the system. They say 
there are 26,000 episodes of unwanted sexual contact. They say 50 
percent of the victims, though, go unreported. There are a lot of 
reasons for this. Even in the private world, people are afraid or 
ashamed or don't feel they can talk about this publicly. But we should 
do everything possible to make sure it is easy to report this because 
we don't want this to occur.
  This doesn't mean, for our men and women who serve, it is a problem 
that overwhelms the military. It is still a small percentage. But for 
the 26,000 people having this happen to them, we need to come up with a 
solution.
  What Senator Gillibrand has done is an idea whose time has come. It 
is about justice for victims, but it also is about finding due process. 
Getting this out of the arbitrary nature of a commander making a 
decision and into a court with judges where there will be arguments on 
both sides I think protects the innocent as well as finds justice for 
the accused.
  I overwhelmingly support this bill and this crusade Senator 
Gillibrand has led. I suggest to the Senate that we understand the 
problem goes on, and tweaking this problem or nibbling around the edges 
and saying: Oh, we are just going to wait and see if what we are doing 
is better--we have been doing this for 20 years. I think the time is 
now to make the change.
  I stand with Senator Gillibrand, and I wholeheartedly support her 
bill.
  The PRESIDING OFFICER (Ms. Hirono). The Senator from Missouri.
  Mrs. McCASKILL. I yield 8 minutes to the Senator from Rhode Island, 
Mr. Reed.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. Madam President, there is no doubt that when a sexual 
assault occurs in a military unit, when a servicemember is a victim or 
a perpetrator of sexual assault, then we all fail. It is not just the 
military chain of command; it is all of us. That is why the efforts of 
Senator McCaskill and Senator Gillibrand have been so critical and 
important. They have galvanized this debate. They have forced action 
where action needs to be taken. Now the question is, What is the 
pathway forward that will achieve what we all want--the reduction of 
sexual assault in the military forces?
  I have expressed before concerns with the approach Senator Gillibrand 
has taken because I firmly believe, based on experience in the Active 
military, leadership has to be involved at every stage--recruitment, 
training, evaluation, promotion, and retention. When we take the 
commanders out of any of these steps, we diminish their effectiveness 
in every one of these steps. Removing the commander from these 
responsibilities, in my view, will weaken his or her effectiveness, and 
the test of that effectiveness is not in the courtroom, it is on the 
battlefield, and the consequences of such weakness could be significant 
to the forces of the United States. So we have to continue to maintain 
a system that recognizes the need for constant attention to this issue, 
constant leadership and command focus, on this issue.

  We also have to recognize that the proposal we are putting forward 
today--and I think this is critical--is not just about sexual assault; 
it covers a wide range of offenses, offenses like larceny of personal 
equipment in the barracks. It covers a whole host of crimes that are 
not directly related to sexual assault.
  As a result of this bifurcated system that would be created, some 
traditional charges, such as AWOL, have been reserved for the 
commander, but a significant amount of charges has been referred to 
this new process. This bifurcated system will cause practical problems 
that will undercut the effectiveness of units to perform their mission 
and to do what is necessary to protect their soldiers, sailors, airmen, 
and marines.
  The service JAGs--very experienced legal officers who have served in 
the uniformed military justice system in the United States--have 
pointed out several defects.
  First, the proposal fails to address the complexity of these cases. 
Some cases will be referred to the special prosecutor, while others 
will remain with the commander, creating a multiplicity of venues, 
multiplicity of investigations, and perhaps conflicting decisions; all 
of which not only impose significant costs, but I think interferes with 
the sense the soldiers should have that they know what the system is.
  Second, this proposal takes away one of the most significant aspects 
of the military justice system; that is, nonjudicial punishment. For 
example, as I illustrated before in my remarks, you could have a 
barracks thief who steals an iPhone and an iPad that accumulates to a 
certain amount to trigger a charge that has to be referred to a special 
prosecutor. If that special prosecutor declines to prosecute, then it 
goes back to the company commander. But the company or the battalion 
commander, given the level of jurisdiction, cannot now impose 
nonjudicial punishment for the simple fact that the accused has to 
accept the punishment, but if there is no way he or she can be court-
martialed, that punishment will not be accepted.
  For offenses that are properly tried or adjudicated through the 
Article 15 process, those offenses will literally not only go 
unpunished, but the whole climate of command could be significantly 
changed.
  Third, there is a constitutional issue, which is that under this 
proposal, you have the creation of a single office--and again I will 
refer to it generically as special prosecutors--with the authority to 
appoint counsel--defense counsel--and members of courts-martial panels, 
and that raises constitutional problems.
  Let me conclude by saying that we have had a vigorous debate, and it 
has been an important debate, but we have had the opportunity since 
that debate to get the results of the Role of the Commander 
Subcommittee from the Response Systems Panel. These are objective 
members--in fact, many of them have for years been in the forefront of 
urging sensible reforms in the military, of being the vanguard in 
protecting victims in many different forms. They have concluded that 
the commander should remain within the loop, should remain as Senator 
McCaskill, Senator Ayotte, and Senator Fischer proposed, with 
corrections and with improvements that I think are very appropriate.
  I would urge that we support strongly the provisions Senators Ayotte, 
McCaskill, and Fischer have proposed. They strengthen the system. But I 
must say that to remove the commander as proposed would in the long run 
be detrimental not only to the effectiveness of the military forces but 
detrimental to our common goal, which is to reduce sexual assault in 
the military of the United States. If we do not, if we allow it to 
continue--it is a corrosive force that will undermine our forces more 
than anything else.
  Committed to that goal, I think we should support Senator McCaskill, 
and I am pleased to do so.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mrs. GILLIBRAND. I yield time to the Senator from California.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Thank you very much, Madam President.
  I thank Senator Gillibrand for her extraordinary leadership.
  Today you will hear two things: One is to support both bills, which I 
believe

[[Page S1340]]

we should do, and one is an attack on the Gillibrand bill, which for 
the life of me I do not understand. I am not going to filibuster 
Senator McCaskill's bill because I think it is important. I am not 
going to filibuster Senator Gillibrand's bill because it is the one 
opportunity to bring about the change that the survivors of rape and 
the survivors of sexual assault are pushing for.
  I ask unanimous consent to have printed in the Record the names of 45 
organizations that are supporting the Gillibrand bill.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 Veteran & Women's Groups Supporting the Military Justice Improvement 
                                  Act

       Numerous organizations support the Military Justice 
     Improvement Act, including:
       Iraq and Afghanistan Veterans of America (IAVA), Vietnam 
     Veterans of America, Service Womens Action Network, Protect 
     Our Defenders, National Women's Law Center, National Task 
     Force to End Sexual and Domestic Violence Against Women, 
     National Alliance to End Sexual Violence, National Research 
     Center for Women & Families, Jacobs Institute of Women's 
     Health, Our Bodies Ourselves, International Federation of 
     Professional and Technical Engineers, Members of the National 
     Alliance to End Sexual Violence, 9to5, Baha'is of the United 
     States, Equal Rights Advocates, Evangelical Lutheran Church 
     in America, Federally Employed Women, Feminist Majority, 
     Futures Without Violence, General Federation of Women's 
     Clubs, GetEqual, Girls, Inc.
       Hindu American Seva Communities, Institute for Science and 
     Human Values, Inc., Jewish Women International, Joyful Heart 
     Foundation, National Capital Union Retirees, National Center 
     on Domestic and Sexual Violence, National Coalition Against 
     Domestic Violence, National Congress of Black Women, Inc, 
     National Council of Churches, National Council of Jewish 
     Women, National Council of Women's Organizations, National 
     Organization for Women, National Women's Health Network, OWL-
     The Voice of Midlife and Older Women, Peaceful Families 
     Project, Presbyterian Women in the Presbyterian Church 
     (U.S.A.), Inc., Religious Coalition for Reproductive Choice, 
     SPART*A, an LGBT Military Organization, The National Congress 
     of American Indians, United Church of Christ, Justice and 
     Witness Ministries, V-Day, Woman's National Democratic Club, 
     Women's Research & Education Institute, YWCA USA.

  Mrs. BOXER. So when people stand here and start attacking that bill 
and saying how awful it is, I want them to remember just a few of the 
organizations that stand with Senator Gillibrand: the Iraq and 
Afghanistan Veterans of America--do you want to listen to the 
bureaucrats or do you want to listen to the people who know what is 
going on--the Vietnam Veterans of America; the Service Women's Action 
Network; the Evangelical Lutheran Church in America; the National 
Congress of Black Women, Inc.; the YWCA. There are 45 organizations.
  I have a very strong message for colleagues: Do not filibuster 
justice. Do not filibuster the Gillibrand bill. Do not filibuster the 
McCaskill bill. My goodness, these women deserve an up-or-down vote on 
their bills. And the only reason I think some are forcing a filibuster 
on the Gillibrand bill is they know we have a majority. Just how strong 
it is we will find out. But what a sad day, when 17 women in the Senate 
support both approaches--17 of the 20 women--that we are facing a 
filibuster on the Gillibrand bill. Do not filibuster justice. It is 
pretty simple. You are going to hear a lot of words from politicians 
like me. Fine. But I think it is important to listen to the words of 
the victims and find a little humility--stories of victims such as 
Amando Javier, who served in the Marine Corps in 1993. He was brutally 
raped and physically assaulted by a group of fellow marines. Ashamed 
and fearing for his life, he kept his rape a secret for 15 years. Do 
you know what it is like to keep a secret such as that, to suffer the 
pain and humiliation for 15 years.
  When he finally found the courage to share his story with a friend, 
he decided to write it down. I want you to listen to his words:

       My experience left me torn apart physically, mentally and 
     spiritually. I was dehumanized and treated with ultimate 
     cruelty by my perpetrators. I was embarrassed. I was ashamed. 
     I didn't know what to do. I was young at the time, and being 
     part of an elite organization that valued brotherhood, 
     integrity and faithfulness made it hard to come forward and 
     reveal what happened.

  Well, here we are two decades later and no one has been held 
accountable for that heinous crime. And it goes on. I appreciate 
Senator Paul reading what happened to one of his constituents. But you 
will hear the voices of the status quo in this body, and let me tell 
you, they are in great company, the voices of the status quo, the ones 
who are filibustering the Gillibrand bill. Let me tell you some of the 
voices of the status quo--and notice this: They are Republicans and 
Democrats.
  Dick Cheney said in 1992: ``We've got a major effort underway to try 
and educate everybody . . . let them know that we've got a zero-
tolerance policy.''
  Secretary Bill Perry: ``For all these reasons, we have zero tolerance 
for sexual harassment.''
  This has been going on for 20 years, and that spirit is being 
continued right here today from those who want to filibuster the 
Gillibrand proposal.
  Secretary Cohen: ``I intend to enforce a strict policy of zero 
tolerance.''
  Secretary Rumsfeld: ``Sexual assault will not be tolerated.''
  Secretary Gates: ``I have zero tolerance.''
  Secretary Leon Panetta: ``We have no tolerance for this.''
  Secretary Hagel: ``These crimes have no place in the greatest 
military on earth.''
  Words are swell. Who can argue with these words? But let's look at 
where we are today in terms of what is actually happening on the 
ground. I say to the voices who are standing in the way of an up-or-
down vote on Kirsten Gillibrand's bill: Look at these facts. There were 
26,000 cases of sexual assault in the military in 2012, and 1.2 percent 
of them have been prosecuted. This white circle represents the 26,000 
cases. This thin sliver in green that you can barely see represents the 
amount that was prosecuted. Do you know what happens to these folks who 
get out? They continue their activities either in the military or on 
the streets of our cities, our counties, and our States. Yet these 
voices of the status quo in this Senate will tell you ``oh my goodness, 
we cannot make this change'' even though 45 organizations, including 
the Iraq and Afghanistan fighters, are telling us to do so.
  Here is the deal. This is another way to look at it. There were 
26,000 estimated sexual assaults in 2012. We have a 90-percent 
problem--90 percent of these cases go unreported. Guess what, folks. 
Are you surprised they are afraid to go to their commander, those of 
you who are supporting this status quo? Just ask them. Do not listen to 
Senator Gillibrand or to me. We are not in the military. The people who 
are in the military are telling us, begging us, along with every 
organization that stands for the survivors: Please change it.
  Now I ask you, if there was a rape in your office in the Senate and 
somebody upstairs yelled and screamed and you went up there as a 
Senator, what would you do? Would you decide whether the case ought to 
be prosecuted or would you call the police? Would you call the experts?
  I do not think CEOs ought to determine whether a case of rape should 
be prosecuted. Do you? I don't think so. Yet that is what you are 
supporting here with the commander who knows all the players. Suppose 
he goes out to drink with the perp, knows him well, thinks he is a 
great fighter. I know Senator McCaskill is trying to fix these problems 
around the edges--fine--but let's get to the heart of the matter.
  In summation, we can continue the 20 years of baloney and not make 
the change that needs to be made under the important Gillibrand bill. 
What we do is we say we are keeping this in the military, but we are 
allowing the experts to make the decision. That is fair to the accuser, 
and that is fair to the accused. As a matter of fact, we have people 
supporting us because they believe it is fair to both sides, not just 
the accuser.
  So let's not filibuster justice. Do not stand here and say how you 
care about this and then filibuster the Gillibrand bill because you 
will be judged on that vote. If you have problems with the details of 
the bill, vote against the bill but do not filibuster justice.
  This is a chance we have, an opportunity we have. Yes, it will be 
revisited over and over because these problems, if we do not make these 
changes, are going to continue. Today is an amazing moment in time that 
we could come together and allow an up-or-down vote on

[[Page S1341]]

the Gillibrand proposal. We wouldn't be filibustering justice, and I 
think we would bring some needed change--needed change, Madam 
President, that all the leading named organizations I have put in the 
Record endorse. I hope we will stand with those victims, stand with 
those providers, and stand with those advocacy groups and be humble and 
not say we know better than they.
  Thank you very much, and I thank Senator Gillibrand.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mrs. McCASKILL. I yield 10 minutes to the Senator from Michigan, the 
chairman of the Senate Armed Services Committee, Mr. Levin.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Madam President, first let me thank Senator McCaskill for 
her terrific leadership on this matter and Senator Ayotte and others on 
our committee who worked so hard to strengthen our laws against sexual 
assault and strengthen the ability of our commanders to act, as we did 
in our defense authorization bill and in the second bill we will be 
voting on today.
  We will be voting today on two bills regarding sexual assault in our 
military, and I believe the strongest, most effective approach we can 
take to reduce sexual assault is to hold commanders accountable for 
establishing and maintaining a command climate that does not tolerate 
sexual assault. In order to do that, we must maintain the important 
authority to prosecute sexual assaults that our military commanders now 
have, and we must add greater accountability for those commanders.
  The evidence shows that removing this authority from our commanders 
would weaken, not strengthen, our response to this urgent problem. That 
is why I believe the bill offered by Senator Gillibrand and others, 
though offered in the hope that it would strengthen our efforts against 
sexual assault, will in fact have the opposite effect.
  In the last year we have learned that in scores of cases during the 
period study, commanders prosecuted sexual assault cases that civilian 
attorneys had declined to prosecute. We have learned our military 
allies, whose policies have been cited in support of removing 
commanders' authority, generally made their changes to protect the 
rights of the accused, not the victim. We have learned there is no 
evidence that their changes resulted in any increase in reporting of 
assaults. So when the allies made the change--not to protect victims 
but to increase the rights of the accused--it did not lead to any 
increase in the reporting of assaults.
  On January 29, we received the conclusions of a report from the 
Response Systems to Adult Sexual Assault Crimes Panel--an independent 
panel of legal and military experts of diverse backgrounds that was 
established by Congress to advise us on how to respond to this issue. A 
subcommittee of the panel addressed the role of commanders in 
prosecuting sexual assaults, the very issue we will be voting on today.
  Here is what that subcommittee concluded:

       There is no evidentiary basis at this time supporting a 
     conclusion that removing senior commanders as convening 
     authority will reduce the incidence of sexual assault or 
     increase sexual assault reporting.

  The subcommittee reached that conclusion, despite the fact that many 
members began the process sympathetic--if not outright supportive--of 
the notion that we should remove the commanders' authority.
  Here is what one member of the subcommittee, former Congresswoman 
Elizabeth Holtzman, said:

       I've changed my mind, because I was just listening to what 
     we heard. I started out . . . thinking, why not change it and 
     now I am saying, why change it. . . . Just turning it over to 
     prosecutors doesn't mean you are going to get the results you 
     are looking for. . . .

  Congresswoman Holtzman authored the Federal rape shield law when she 
was a Member of Congress.
  Another member of the subcommittee, former Federal Judge Barbara 
Jones, said that if you remove this authority from commanders ``there 
is no empirical evidence that reporting is going to increase. . . . If 
I were persuaded that removing the convening authority would encourage 
victims to report then this would be a different story. But I am not 
persuaded of that.''
  Listen to Mai Fernandez, the executive director of the National 
Center for Victims of Crime. She was a member of the panel, and this is 
what she said about the proposal to remove commanders' authority to 
prosecute:

       When you hear it at first blush, you go, ``Yeah, I want to 
     go with that.'' But when you hear the facts, like you would 
     in a case, it just doesn't hold up.

  The women making those statements had no stars on their shoulders; 
they are not Pentagon insiders. They are members of the independent 
panel that we in Congress tasked with reporting to us on these issues.
  Underlying the crisis of sexual assault in our military is a problem 
of culture, a culture that has been too permissive of sexual 
misconduct, too unaware that a person who is successful in his 
professional life may also be a sexual predator. It is a culture too 
prone to ostracize or even act against those who report sexual 
assaults.
  The military has unique tools to address those problems. Foremost 
among those tools is the authority of the commander to establish a 
command climate by giving orders and enforcing discipline. At every 
time in our history when our military has faced such cultural 
challenges--such as the challenge of ending racial discrimination in 
the 1940s and 1950s or the challenge of ending don't ask, don't tell in 
our time--commanders with the authority to initiate courts-martial have 
been essential in achieving change.
  But we are not going to achieve change if--at the same time we demand 
of our commanders that they change the military culture to take on the 
sexual assault problem--we remove their most powerful tool to achieve 
that change.
  Senator Gillibrand's bill creates a new, separate disposition 
authority to deal with the sexual assault and other serious crimes. Our 
focus throughout this debate has been, rightly, on how to improve our 
approach to sexual assault. As a matter of fact, sexual assault would 
make up just a fraction of the cases this new disposition authority 
would deal with.
  In a letter to me, Under Secretary of Defense for Personnel and 
Readiness Jessica Wright recently reported in fiscal year 2012, the 
Department of Defense estimates it handled more than 5,600 cases that 
would be referred to this new disposition authority if it were created, 
but two-thirds of those cases did not involve sexual assault. The 
Gillibrand bill would shift dozens of our top military lawyers to a new 
authority that would spend only one-third of its time dealing with the 
problem we are trying to solve, the problem of sexual assault.
  The National Defense Authorization Act, which we enacted just a few 
months ago, provides our commanders with additional tools to meet this 
challenge and important new protections for victims. It provides 
victims of sexual assault with their own legal counsel specially 
trained to assist them. It makes retaliation a crime when that 
retaliation is against victims who report a sexual assault. It requires 
that the inspector general investigate all complaints of retaliation. 
It requires that any decision by a commander not to prosecute a sexual 
assault complaint will have an automatic review by a higher command 
authority--in nearly all cases by a general or flag officer and in 
certain cases by the service Secretary, the highest civilian authority 
in each service.
  The second bill we are going to vote on today--offered by Senators 
McCaskill, Ayotte, and others--provides additional protections to those 
we just added in the National Defense Authorization Act. The McCaskill-
Ayotte bill ensures victims have a voice in deciding whether their 
cases will be prosecuted in the military or civilian justice system. 
Indeed, it requires that special victims' counsel established by the 
National Defense Authorization Act advise victims on the pros and cons 
of those two approaches. It requires that commanding officers be graded 
on their success or failure in creating a climate in which there is no 
tolerance for sexual misconduct and in which victims can come forward 
without fear.
  These additional protections in the McCaskill-Ayotte bill help us 
answer

[[Page S1342]]

the key question of how can we best strengthen our protections against 
military sexual assault. I believe we do so by empowering victims and 
by holding our commanders accountable, but we threaten to weaken those 
protections if we undermine the authority of the very commanders who 
must be at the heart of the solution. Powerful evidence should lead us 
to the conclusion that we should not remove the authority of commanders 
to prosecute these cases.
  I thank the Presiding Officer and yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mrs. GILLIBRAND. I yield my time to the Senator from New Hampshire.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mrs. SHAHEEN. Madam President, I rise in strong support of Senator 
Gillibrand's Military Justice Improvement Act. I wish to recognize her 
and all of the Senators who have worked so hard on this legislation and 
all of the groups who have been involved.
  I was very proud to be an original cosponsor of the legislation, and 
after more than 1 year of meeting with military sexual assault 
survivors and bringing attention to this ongoing crisis, I am 
encouraged by the historic opportunity we have today.
  As Senator Levin said, this is an important debate for us to be 
having. I certainly applaud Senators McCaskill and Ayotte and everyone 
who has been involved in this effort because I think it sends a very 
important message to our leaders in the military and to those who would 
perpetrate crimes of sexual violence.
  Today we not only have the opportunity to make meaningful, 
commonsense reforms to our military criminal justice system but we also 
have a chance to send a very powerful message to the tens of thousands 
of victims--many of whom have been suffering quietly for decades--that 
what happened to them is not acceptable; it is criminal, and it will no 
longer be tolerated.
  Let's be clear: Sexual assault is a crime. It is not an accident. It 
is not a mistake. It is a violent criminal act often perpetrated by 
serial offenders. We can't allow sexual assault perpetrators to escape 
justice in any setting but particularly when these assaults occur 
within our Nation's military.
  Unfortunately, it has been 23 years since the Tailhook scandal, and 
despite the repeated assurances that the chain of command is committed 
to addressing this issue, we are no closer to a solution. How long will 
we wait? How many tens of thousands of our sons and daughters will be 
victims? How many will be victims without reliable access to justice?
  Today we have a rare opportunity to end one of the fundamental 
structural biases that persists in our military criminal justice 
system. This is not about undermining battlefield command or good order 
and discipline. No one wants to do that. This is about access to 
justice.
  Survivors overwhelmingly tell us that the reason they don't come 
forward is because they don't trust that chain of command. They don't 
trust that the chain of command will handle their case objectively, a 
fact that has been repeatedly acknowledged by military leaders during 
Armed Services Committee hearings. Placing the decision on whether to 
go to trial in the hands of experienced military prosecutors is a 
commonsense reform that will go a long way toward promoting 
transparency and accountability within our system.
  Our military's tradition of honor and respect is too important to 
continue to be plagued by the status quo. We strengthen our military 
when victims of sexual assault have the confidence to come forward and 
report crimes and we remove fear and stigma from the process. We 
strengthen our military when we are able to deliver fair and impartial 
justice on behalf of victims.
  Victims' eyes are on us today. There is strong bipartisan support 
behind the Gillibrand bill. It is on full display. I certainly urge all 
of my colleagues to support this measure, and let's make meaningful 
reform to what has happened for too long to victims of sexual assault 
in the military.
  I thank the Presiding Officer and yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mrs. McCASKILL. Madam President, I rise, together with my colleagues 
Senator Graham and Senator Ayotte, and ask that the Chair advise when 
we have used 20 minutes of time. We are going to engage in a colloquy 
about this important decision that is in front of the Senate.
  It is, in fact, with great humility that I come to this policy 
debate. I don't think anyone in the Senate has spent more time in a 
courtroom putting perpetrators in prison who have committed sexual 
crimes. I don't think anybody has spent more time with victims of 
sexual assault. There is an incredible amount of pressure that you feel 
when you walk into a courtroom knowing that victim has placed trust in 
you to bring the evidence forward, and I am forever marked by that 
experience. It is with that experience that I have become convinced 
that the policy changes that are being advocated will not work for 
victims.
  In fact, it is clear that when these changes have been enacted other 
places, reporting has not increased. It is clear that right now we have 
more cases going to court-martial over the objections of prosecutors 
than the objections of commanders. Today there is a court-martial 
ongoing where a prosecutor walked away from the serious charges and the 
commander said go forward. There have been almost 100 cases over the 
last 2 years where prosecutors said this case is too tough and the 
commanders have said, no, we have to get to the bottom of it. We can't 
let the commanders walk away. We cannot let the commanders walk away.
  There is nothing in the Gillibrand proposal that provides additional 
protection from retaliation.
  I ask Senator Graham: If someone walks back into their unit after 
being victimized and the unit knows the commander has said this case is 
going forward, how would that contrast to walking back into his or her 
unit when the unit knows some lawyer in Fort Belvoir--hundreds of miles 
away--has said whether this case should go forward? I am trying to 
figure out how removing the commander provides any additional 
protection from retaliation to that victim.

  Mr. GRAHAM. That is a very good question. The commander in the 
military is just not somebody. The man or woman in charge of that unit 
is the person to whom we give the ultimate authority to decide life-
and-death decisions for that unit. So if we deal the commander out, we 
have a rape in the barracks. The worst thing that could happen in a 
unit is for the commander to say, This is no longer my problem. It is 
the commander's problem. Every commander I have met wants it to 
continue to be their problem, because when we have one member of a unit 
assaulting the other, it affects everybody in that unit. And the person 
we as a nation choose to run the finest military in the world--the 
commander--has the absolute authority to maintain that unit for 
readiness. If we don't give that commander the tools and hold them 
accountable, that unit will fall apart right in front of our eyes, 
because some lawyer somewhere is no substitute for the commander who is 
there every day.
  Mrs. McCASKILL. I would say to Senator Ayotte, I am also struggling 
with some of the practical problems in this policy, and one of the 
things I can't figure out is why the amendment limits the ability to 
add any additional resources. It strictly prohibits the military from 
bringing additional resources to bear on this problem, which is 
counterintuitive to me. If the goal here is to do our very best job to 
protect victims, and the practical problem is we do not have enough of 
the level of JAG officers right now to set up these offices on a global 
basis, which means things are going to slow down because we don't have 
enough--I know the Senator from New Hampshire has been a prosecutor. 
Certainly there is nothing harder for a victim than justice delayed.
  So in addition to it not increasing reporting, in addition to it not 
protecting from retaliation, in addition to removing commanders from 
their accountability, we also have some real practical implications.
  Ms. AYOTTE. I thank the Senator from Missouri for her leadership. She 
is correct. She has prosecuted more of these cases than I think anyone 
in this body, so I appreciate her leadership.

[[Page S1343]]

  Under the system that is put forward under the Gillibrand proposal--
let me thank her for her passion about this issue as well--we know it 
prohibits funding and personnel. How does that work when we are going 
to set up a whole new system? I worry about the deployability of this 
system. When someone is in Iraq or Afghanistan and they are a victim, 
where are these JAG lawyers going to be? Will they be in Washington 
making these decisions? But we won't be able to put any additional 
resources toward it. So is this system still deployable?
  There are other problems with implementation. There are big concerns 
about the right to a speedy trial. If that happens, as we know, then 
the defendant can't be prosecuted.
  Eliminating the ability to plea bargain--we heard Senator Reid speak 
about that, because this proposal eliminates two-thirds of the crimes 
from the UCMJ out of the authority of the commander, well beyond this 
issue of sexual assault, which we are committed to addressing. It also 
creates serious due process concerns. So there are serious 
implementation questions about this.
  I wish to raise a question that keeps coming up: We need to hold the 
commanders more accountable. I agree with the Senator from Missouri. We 
cannot allow them off the hook. If we take them out of this equation, 
then there will be less accountability. Our proposal actually has it as 
part of how a commander is going to be judged, how the commanders 
handle these cases. That is not the status quo, because we want the 
chain of command to be more accountable. But we keep hearing we want 
victims to come forward, and the Senator from Missouri knows that from 
her experience as a prosecutor.
  I would say this: Does the evidence support that more victims will 
come forward if we actually pass the Gillibrand proposal? Because why 
are we here. We want more victims to come forward. Will more victims 
see justice if this proposal is passed? Because this is ultimately what 
we are trying to get at.
  Mrs. McCASKILL. We have hard data on that. In fact, I think that is 
one of the reasons, if we look at this quote:

       I went into this thinking Senator Gillibrand's legislation 
     made sense, but when you hear the facts, it doesn't hold up.

  That is an important quote, but even more important when we realize 
who said it. This is the woman who runs the National Center for Victims 
of Crime for our entire Nation. She heard 150 witnesses, representing 
many of the groups that have been referenced in this debate. She 
realized that when they looked at the data, our allies have done this, 
and not in one nation, after years of experience with changing the 
system, has the reporting increased.
  The way we increase reporting is to give the victim a safe harbor, 
which we have done, to report outside the chain of command, and to have 
their own lawyer, and to make sure they have power and deference in the 
process, which we have done, along with the reforms, on which I am very 
proud to have worked with Senator Gillibrand.
  Mr. GRAHAM. Madam President, if we wanted to find the definition of 
leadership in 2014: McCaskill, Ayotte, and the great Senator from 
Nebraska, three women taking on an issue head on. To those of my 
Democratic colleagues who are going to stick with making reforms 
without destroying a commander's role in the military: You deserve a 
lot of credit because people have been on your butt in the donor 
community to vote the other way.
  To these ladies--and there have been plenty of people helping--they 
don't know how much it will be appreciated in the military. This is not 
a legal debate here. How many of my colleagues have done courts-
martial? How many of my colleagues have court-martialed anybody in the 
military? I have done hundreds, as a prosecutor and as a defense 
attorney. This is not some casual event to me.
  What Senator Gillibrand is doing is way off base. It will not get us 
to the promised land of having a more victim-friendly system to report 
sexual assaults. That is being accomplished because of the people I 
have just named: Senators Fischer, Ayotte, McCaskill, and Senator 
Levin. They have brought about reforms in terms of how a case is 
reported in the military, allowing a lawyer to be assigned to every 
victim. I cannot tell my colleagues how proud I am of what they have 
been able to accomplish. The U.S. military is going to have the most 
victim-friendly system of every jurisdiction in the land, including New 
York and South Carolina.

  But this is about the commander. How many of my colleagues believe we 
have the finest military in the entire world? Every Member of this body 
would raise their hand. The question is why. Because we have the best 
lawyers in the world? No. Because we have the best commanders--men and 
women who are given the responsibility to defend this Nation and have 
power and responsibility that most of my colleagues could never 
envision. And if this is about sexual assault, why the hell are we 
taking barracks theft out of the commander's purview?
  This is about liberal people wanting to gut the military justice 
system--social engineering run amok. I want to help victims, but I also 
want a fair trial. But the one thing I will not say to our commanders 
who exist in 2014: You are fired, because you are morally bankrupt. You 
don't have the ability to render justice in your unit because there is 
something wrong with you; your sense of justice is askew, so we are 
going to fire you and take away an authority you have had traditionally 
to make sure that your unit is ready to go to war, because we feel as 
though you are morally bankrupt. What other conclusion can we come to?
  The next time we see somebody in the military who is a senior member 
of the 3 percent that Senator Gillibrand speaks about--it is only 3 
percent who make these decisions. Who are these 3 percent? They are our 
wing commanders, our squadron commanders, our fleet commanders, our 
brigade commanders--the people we entrust and hold accountable for 
fighting and winning the war.
  I say to my colleagues, if we care about what military lawyers think, 
every judge advocate general is begging us not to do this. The people 
we are going to give the power to don't want it because they understand 
that the commander is different than the lawyer. The first female judge 
advocate general of the Army has made an impassioned plea: Do not do 
this.
  This is not a legal issue alone; this is about how to maintain the 
best military in the world.
  I would conclude that if we want to create confusion in the ranks and 
if we want to tell every enlisted person who has to--should be--looking 
up to the commander, the Senate just fired your boss when it comes to 
these kinds of matters, but you should still respect him, that is a 
very confusing message.
  I wish to end my speech with this: We have had some bad commanders. 
However, to those who command the military, I have confidence in you. 
You will take this system to a new level. You have to up your game, but 
I am not going to fire you. Thank you for commanding the finest 
military in the world. I will do nothing to say you are morally 
bankrupt, because I don't believe that.
  Mrs. McCASKILL. I have great respect for the Senator's time and for 
working in the trenches as a military prosecutor in the JAG corps. I 
will tell my colleagues honestly, I am less concerned about the 
commanders than I am the victims. The Senator and I maybe don't see it 
exactly the same way in that regard. I believe there are commanders who 
deserve to be held accountable for their failure to act, for their want 
to sweep this crime under the rug throughout history, but I think we 
are handing the broom to the prosecutors at this point based on the 
data we have.
  One of the things I wanted to go over and mention to Senator Ayotte 
is the systems response panel. I think it is important to understand--
the DACOWITS panel was mentioned. I want everybody to understand the 
difference between the DACOWITS panel and the systems response panel. 
The DACOWITS panel has been in place for years, and they took up this 
matter and heard no witnesses from the JAG corps. In fact, I think they 
heard two witnesses or three witnesses and two of them were me and 
Kirsten Gillibrand. They took no time to really go deeply into this 
very complex subject.
  The systems response panel was created by Congress, and it was for 
the purpose of giving us their clear eye of

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advice on the best way to deal with this problem in the military.
  This is a majority of civilians and a majority of women who made up 
this panel. They heard 150 witnesses over months. They heard from all 
of the people who are advocating for the Gillibrand proposal. They 
heard from the JAGs. They heard from victim organizations. They came 
out overwhelmingly rejecting this proposal.
  One of the most interesting members--and I will be honest; when I 
went to testify in front of this response panel, I was very worried 
that Elizabeth Holtzman maybe would not agree with me. She has a long 
history in Congress. She wrote the Federal rape shield statute. I 
assumed she would begin this process assuming that in the simple 
equation of victims versus commanders, I take victims. If only it were 
that simple. What the response panel figured out is that it is not that 
simple.
  Judge Holtzman, the judge who wrote the decision overturning DOMA, 
said:

       Just turning it over to prosecutors doesn't mean you are 
     going to get the results you are looking for.

  And Elizabeth--this is what Elizabeth Holtzman said: ``Just turning 
it over to prosecutors doesn't mean you are going to get the results 
you are looking for.'' That is what Holtzman said.
  Judge Jones: ``There is no evidence that removing the convening 
authority is going to improve any of the parts of the system.''
  That is startling, this response, from a panel that looked at it over 
months, 150 witnesses, majority civilians, majority women. This is not 
a bumper sticker. It is not as simple as it sounds. I would never 
oppose anything that I thought was going to help victims or put more 
perpetrators in prison--ever. This will have the opposite impact that 
many of the advocates are indicating that it will.

  Ms. AYOTTE. Let me just say, this panel took on the key question. 
That is why we are doing this. I am doing this because I believe 
victims will get justice and there will be more accountability. I want 
to hold commanders more accountable for not only how they handle these 
crimes but also for that zero tolerance policy within their unit. That 
is why we want them judged on this basis.
  That panel has looked at this issue of reporting and found that there 
is no evidentiary basis at this time to support a conclusion that 
removing senior commanders as the convening authority will reduce the 
incidence of sexual assault--which we want them to establish that 
climate within their unit to do so--or increase reporting of sexual 
assaults.
  I would also say, if we want justice for victims, what about those 93 
victims where the commander said: Bring the case forward, even though 
the JAG lawyer said no? They would not have gotten justice. So the 
evidence is the opposite. What would we say to those victims? The 
evidence shows that actually commanders are bringing cases more 
frequently than their JAG's lawyers and over their objections.
  The panel also found that none of the military justice systems of our 
allies was changed or set up to deal with the problem of sexual 
assault. So for those allies who have taken it out of the chain of 
command, this panel said that none of them can attribute any changes in 
the reporting of sexual assault to changing the role of the commander.
  We were told from the beginning of this argument that our allies 
changed this so that more people would come forward. Well, they have 
not. In fact, what we learned is many of our allies changed it to 
protect defendants.
  Mrs. McCASKILL. Isn't it true that, in fact, our reporting is up?
  Ms. AYOTTE. Our reporting has actually--since 2013, in the Marine 
Corps it is up 80 percent and in the Army it is up 50 percent. That is 
even before the legislation that we have all worked on to have special 
victims counsels for every single victim that we have already passed in 
this body.
  Mr. GRAHAM. Will the Senator yield for just a second?
  Ms. AYOTTE. Yes, I will.
  Mr. GRAHAM. Why is it nobody seems to think taking the commander out 
of the loop is going to help the problem? Because you cannot solve the 
problem in the military unless the commander buys in. I cannot think of 
any change in the military that is major and substantial that can 
happen without the chain of command being held accountable and buying 
in.
  I would like to say this. To those who believe our military is set up 
where a victim's case is never heard because you have some distant 
figure called the commander and they just put this stuff under the rug, 
O-6 commanders--the O-6 level are special court-martial convening 
authorities. General court-martial convening authorities are flag 
officers.
  It is not rampant in the military, folks, where a JAG will go in to 
the commander and say: This is a case that needs to be prosecuted, sir, 
madam; and the commander says: I don't want to fool with this.
  The opposite is true, where the JAG will say: Tough; and the 
commander says: Move forward.
  Well, what have we done here. We have said to the command that if 
your judge advocate recommends prosecution in the four areas in 
question--sexual assault--and the commander refuses to prosecute, that 
decision is appealed to the Secretary of the service.
  So if you are wondering about rogue commanders--and there are bad 
commanders--you are indicting the whole chain of command here, folks. 
That is why I am so emotional about this. You are indicting a class of 
Americans who deserve praise and a chance to get their act together 
where they failed.
  But the bottom line is, if a commander refuses to--I ask unanimous 
consent for 1 minute--2 minutes.
  Mrs. McCASKILL. One minute.
  Mr. GRAHAM. OK.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRAHAM. If the commander refuses the JAG's recommendation, it 
goes to the Secretary of the service. If the JAG and the commander both 
say this is not a case we want to prosecute, when it is in the area of 
sexual assault, it goes to the commander's commander. So there are 
built-in checks and balances.
  The key to fixing this problem is the commander. The key to 
maintaining a well-run military is the commander. The key to fighting 
and winning wars is the commander. The key to bringing justice to 
victims is the court-martial panel, the lawyers, the judge and the 
juries, and the commander. But the key to American military success 
over time has been the commander.
  Madam President, 800 trials in Iraq and Afghanistan since 9/11. This 
is a nondeployable military justice system that Senator Gillibrand is 
trying to create. Please do not change the structure of the military 
because of this issue. Fix this issue. Preserve the structure of the 
military that has served us so well, and keep reforming.
  To the Senators I have named, you have done those in the military--
victims--a great service. For God's sake, Members of the Senate, do not 
change the structure of the military at a time we need it the most. 
Hold it more accountable, not less.
  Mrs. McCASKILL. Thank you, Madam President.
  The PRESIDING OFFICER. The Senator from New York.
  Mrs. GILLIBRAND. Madam President, I yield my time to the Senator from 
Nevada.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. HELLER. Madam President, I first would like to thank Senators 
Gillibrand, McCaskill, Ayotte, and Fischer for their hard work on this 
issue, and my friend from South Carolina, who has worked passionately 
hard on this issue also.
  As someone who strongly believes in bipartisanship, I am glad to see 
the Senate moving forward today on debating and voting on this 
particular issue.
  While we may not all agree on how to best solve this particular 
issue, we can all agree that it is too important not to debate and 
ultimately vote on ways to address it.
  Our military is the greatest fighting force the world has ever known. 
The freedoms we enjoy as Americans are because men and women continue 
to volunteer to serve and to protect our Nation.
  The vast majority of these men and women serve with honor and 
integrity. However, there are a few bad actors in our military who 
commit crimes against their fellow servicemembers.

[[Page S1345]]

The question the Senate faces is whether or not the military justice 
system is equipped to properly handle sexual assault within the ranks.
  After careful consideration, weighing all the facts, I feel the 
military today is not equipped, and that is why I support Senator 
Gillibrand's approach.
  Like everyone else in this Chamber, I am disappointed we ever got to 
this point. No soldier should have their service degraded due to 
dishonorable conduct in the ranks. But there have been ample 
opportunities for the military to address this issue within its own 
ranks, and too much time has passed without this problem being 
resolved.
  It is Congress's responsibility now to step in to protect the best 
America has to offer. Congress needs to address what is currently 
lacking for victims. Victims need to feel confident in reporting crimes 
of sexual assault. Victims must be protected from retaliation, and 
victims must be confident that justice will be served.
  Senator Gillibrand's legislation will accomplish these goals.
  If the Senate passes this bill today, loopholes in the military 
structure will no longer be an option to protect sexual assailants. 
These changes are long overdue and will hold the military to the 
highest standards that they strive towards.
  I encourage the rest of my colleagues to join me in supporting her 
efforts and keeping our commitment to protect the men and women who are 
honorably serving our Nation.
  Thank you, Madam President.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Ms. AYOTTE. Madam President, I yield Senator McCaskill's time to the 
Senator from Nebraska.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mrs. FISCHER. Madam President, I rise to speak in full support of the 
McCaskill-Ayotte-Fischer proposal that is before us today. It will only 
strengthen the historic reforms that have already been passed by this 
body to combat sexual assault in the military.
  I also rise to express concerns with the Gillibrand proposal to 
remove commanders from this process because I believe that is going to 
undermine credibility and accountability.
  I am glad we are having this debate on the floor because every Member 
of this Senate agrees that this is a problem that needs to be 
addressed.
  Over the past year the members of the Armed Services Committee have 
focused on this issue. It cuts across ideology, across gender, and 
across regions. It also cuts across party lines.
  I was happy to work across the aisle with Senator Shaheen on 
improving the standards for personnel responsible for sexual assault 
prevention. I was pleased to join with Senator Blumenthal to ensure 
that victims' rights are protected under the Uniform Code of Military 
Justice.
  I would argue that our efforts to fight sexual assault show Congress 
at its best. It is how we are supposed to work. So although we may 
disagree, we do share the same goals.
  Senator McCaskill and Senator Gillibrand have both been real leaders 
in the Senate Armed Services Committee, which held that landmark 
hearing with our top commanders to explore the problem of sexual 
violence in the ranks last June.
  The committee received input from all sides, and we, along with our 
House colleagues, passed a series of very meaningful reforms when we 
passed the National Defense Authorization Act. Those are reforms of 
which we can all be proud.
  We stripped commanders of the ability to overturn jury convictions. 
We made retaliation against victims a crime. We required dishonorable 
discharge or dismissal for those convicted of sexual assault.
  Now we are trying to strengthen that. We are trying to strengthen 
those great reforms with the McCaskill-Ayotte-Fischer legislation. I 
believe our proposal will do more to strengthen the rights of victims, 
and it will enhance the tools to prosecute the criminals.
  Specifically, our bill extends the current protections to service 
academies. That is so important. That is in our bill. It boosts the 
evaluation standards for commanders--also important. It allows the 
victims increased input--extremely important. So rather than revamping 
the entire military justice system, which I believe carries massive 
risk, our proposal improves and updates the current system.
  Unfortunately, the Gillibrand proposal, I believe, takes radical 
steps, and it undermines the commander's responsibility for his or her 
troops. Under that proposal, almost all crimes--from forgery to sexual 
violence--are removed from a commander's purview. It does not bring 
that focus to the challenge we are facing. Our proposal does.
  The other proposal detaches the commander from his or her unit, and 
it removes all responsibility. I do not want to remove the 
responsibility from a commander. We trust these people to watch our 
best and our brightest, our children and our grandchildren, as they go 
into battle. We need to trust them in this as well.
  Senator McCaskill brings a wealth of experience to bear on this topic 
from her days as a prosecutor, and I believe we should all be listening 
to her. She mentioned in November that the other proposal was 
``seductively simple.'' I agree. I agree that its simplicity cloaks a 
host of very complex policy problems. She has invested a lot of time on 
this issue. She has explained the technical problems, and I echo her 
concerns.
  But I would like to underline one critical point to my colleagues. 
Many of our problems with the other proposal might appear to be minor 
procedural details. However, experience tells us that it is exactly 
these sorts of problems that can grind a justice system to a halt, and 
they can damage a legal system.
  That was the case in 2007, when Congress, armed with the best of 
intentions, modified the rape statute. Those hasty changes disrupted 
the judicial process and compelled Congress to rewrite the language. Do 
you know what happened? It delayed justice.
  So I urge my colleagues and anyone interested in completely revamping 
that military justice system, you need to be certain that all the 
questions are resolved and you need to be certain that the 
implementation will be bulletproof because anything less means delayed 
justice or no justice at all for the victims.
  I can go on and talk about the commission that brought forth their 
recommendations that the justice remain with the commanders. They did 
not say take it away from the commanders. And the makeup of that 
commission? Mostly civilian and mostly female.
  I hope my colleagues will remember these things, look at the facts, 
look at how we truly can address the needs of the victims, truly find 
them justice. Support the McCaskill-Ayotte-Fischer proposal, and I 
would ask that you not support the Gillibrand proposal.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mrs. McCASKILL. Madam President, I yield 5 minutes to my friend from 
Arizona, Senator McCain.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. I thank the Senator from Missouri. I want to profusely 
thank her and Senator Ayotte and Senator Fischer for their leadership 
on this very difficult and emotional issue which obviously is very 
unpleasant and very controversial and understandably so. We are talking 
about the livelihood, the right to function as members of the military, 
of women in the military.
  It is a vital issue because there should be no organization that is 
at the level of the United States military for providing an equal 
opportunity and equal protection under the law than the United States 
military. When these young men and women join the military, they do 
something very unique; that is, they are willing to put their lives on 
the line for the defense of this country.
  Therefore, because of this unique aspect of their lives, that they 
are willing to serve for the benefit of the rest of us, there is also 
the responsibility of those who command them. That is unique as well. 
Those who command in the military may have to make the toughest 
decision of all and to send these young people into harm's way. No 
other--no other--person in American society, outside of the President 
of the United States, has that responsibility.
  So what we are really talking about today here is, will we hold those 
commanders responsible for anything that

[[Page S1346]]

happens within their command or will we take that responsibility and 
shift it over to a lawyer? That is what this is really all about. Right 
now we have units operating in Afghanistan.
  Frankly, according to the Gillibrand proposal, if there was a charge, 
we may have to try to find some way to fly a lawyer in. I do not think 
that is either likely or agreeable. But the major point here is that we 
hold commanders responsible for what happens under their command. If 
they do not carry out those duties, then we relieve them of that 
command. If they are responsible for egregious conduct, we prosecute 
them.
  I have had the great honor of command. I have had the great honor of 
commanding, at that time, the largest squadron in the U.S. Navy, some 
1,000 people. There were a large number of women in that organization, 
even then, because it was a shore-based squadron. Now we have women 
throughout--I am happy to say--throughout the military, including 
combat roles.
  I can tell you that in those days we had severe racial problems in 
the United States military. We had race riots on aircraft carriers. We 
held commanders responsible. We punished those who practiced 
discrimination. We had people in our chain of command that alerted and 
were responsible for the indoctrination and the good conduct of people 
who in any way showed a taint of discrimination. I am happy to say that 
I believe that the greatest equal opportunity organization in America 
today is the United States military.
  We can do that with this severe and difficult and emotional issue of 
sexual assaults in the military. The exact wrong way to do that is to 
make the commanding officer less responsible because if you take the 
responsibility from that commanding officer, then you are eroding his 
ability to lead and, I would argue, their ability to fight.
  We have the finest commanders in our military. We have the finest men 
and women who are serving in the military. We are the best military in 
the world. There is a reason for it. As we bring people up the ladder 
of promotion to positions of command, they are tested time after time. 
I trust these commanders. I trust them.
  With the provisions in the McCaskill bill as we have today, we will 
preserve that command authority, but we will also have significant 
increases in oversight and accountability. But to take away that 
responsibility from the men and women who command these people, these 
outstanding men and women, and give to it a lawyer is not the way to 
go.
  I hope my colleagues understand it. I also would ask one other thing 
before this vote. If any of my colleagues knows a member of the 
military whom they respect, call them. Call them and ask them whether 
they would think this proposal of the Senator from New York is in any 
way helpful to the good functioning of the military and the elimination 
of sexual assaults. We share the same goal. There are vastly different 
ways to achieve that goal.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mrs. GILLIBRAND. I yield 5 minutes to the Senator from Hawaii.
  (Mrs. GILLIBRAND assumed the Chair.)
  Ms. HIRONO. Madam President, I rise today in support of the Military 
Justice Improvement Act. I commend Senator Gillibrand for her 
outstanding work on this effort and all the survivors of sexual assault 
in the military who have courageously worked with us on this bill.
  I also appreciate the bipartisan effort to stop military sexual 
assaults from happening. While we all do not agree on how to get there, 
I know that all of us want to stop this terrible scourge in our 
military.
  Every few years, when interest in this topic picks up, it stays 
relevant for a while, the military leadership promises to stamp out 
sexual assault in the military, and says that zero tolerance is the 
policy in place. Unfortunately, despite all of the good faith actions 
taken by the department as well as Congress, we are still at 26,000 
incidents of rape, sexual assault, and unwanted sexual contact in the 
military.
  This bill has nothing to do with telling commanders they are fired or 
that they are morally bankrupt. They should continue to be held 
accountable for creating a command climate where sexual assaults do not 
occur or certainly not occur by the tens of thousands.
  This bill is focused on the victims, the survivors of these crimes. 
When we listen to them, they are in support of the Gillibrand bill. We 
all agree that commanders are responsible for maintaining good order 
and discipline in their units. This includes creating an atmosphere of 
dignity and respect for everyone under their command.
  Again, commanders must create an environment where sexual crimes do 
not occur. Our proposed changes to the military justice system do not 
absolve a commander of these responsibilities. It is still their job to 
prevent these crimes. It is still their job to maintain good order and 
discipline.
  I have heard opponents of this legislation say that good order and 
discipline would be lost if the commander no longer has the court 
martial disposition authority. I disagree. This is similar to saying, a 
corporal, a sergeant or a junior officer in a unit would not act in a 
professional and orderly manner with respect to their O-6 commander, 
because the commander could no longer decide whether to proceed to 
trial for a rape or other felony-level offense. That does not make 
sense. The commander is still responsible for dolling out punishment 
for insubordination or other negative behavior. The commander is still 
responsible for maintaining the kind of good order and discipline and a 
command climate where these crimes not occur in the first place. 
Historically, when changes to the status quo are proposed--these 
include the integration of military units, opening military specialties 
to women, and allowing gays and lesbians to serve openly--a familiar 
refrain from senior military leadership to block such changes was to 
claim that the proposed changes would destroy good order and 
discipline.
  By all accounts, I would say that these successful changes to 
military policies do not destroy good order and discipline. When these 
crimes do occur, survivors deserve the ability to seek justice. They 
deserve a chain of command that will take their claims seriously and 
take appropriate action. We have data that show that many victims do 
not come forward because they do not trust that the chain of command 
within the current system will act impartially.
  They feel that they might suffer retaliatory actions and ultimately 
do not report the crime. This allows the perpetrator to go free and 
commit additional crimes. The Gillibrand bill will increase trust and 
confidence in the system and help the survivors seek justice. It is 
time to make fundamental changes to how sexual assault cases are 
handled in the military.
  Senator Gillibrand's bill would be a big step in the right direction. 
Her amendment would take the decision to go forward with a trial out of 
the chain of command and place it in the hands of an experienced 
military lawyer. This change would improve the traditional process by 
increasing transparency, by increasing trust. It would also eliminate 
potential bias and conflicts of interest because unlike the commanding 
officer, the military lawyer would be unconnected to either the 
survivor or the accused.
  I commend our colleagues once again, Senator Gillibrand and Senator 
McCaskill, for their tireless efforts to help survivors of sexual 
assault in the military. I would also commend Senator Levin, my Armed 
Services Committee colleagues, and many other Senators for working so 
hard on this difficult, painful issue.
  We have instituted many positive changes in this area, but I urge my 
colleagues to take the next step and support the Gillibrand Military 
Justice Improvement Act.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alaska.
  Ms. MURKOWSKI. Madam President, I join my colleagues today in a 
discussion about an issue that I think we all would agree is an issue 
that really tears at the heart, causes great anguish, as we think that 
those who have volunteered to serve our great Nation, who have agreed 
to put themselves on the front lines, would be in a situation where 
they would be made a victim--made a victim of military sexual assault 
and be put into a situation where

[[Page S1347]]

they do not know where to turn, they do not know if it is safe to speak 
up, and they do not know how to respond.
  Our military men and women, we are proud to say, are the most 
professional, the most highly trained and skilled and qualified. We 
will match them against any. Yet, when we face these very troubling and 
difficult issues of military sexual assault, it is an underside of the 
military culture that we have not been able to sufficiently address and 
eradicate.
  The most recent report of the Defense Department Sexual Assault 
Prevention and Response Office, which covers 2012, speaks to the 
statistics. These statistics have been reported so frequently on the 
floor of the Senate. We know them. We share them. We really agonize 
over them. An estimated 26,000 cases of unwanted sexual contact and 
sexual assault occurred in fiscal year 2012, a 37 percent increase from 
fiscal year 2011.
  Some 25 percent of women and 27 percent of men who received unwanted 
sexual contact indicated that the offender was someone within their 
military chain of command. Then, the statistics that really just go to 
the heart of what we are talking about here today: Across the services, 
74 percent of females and 60 percent of males perceived one or more 
barriers to reporting the sexual assault; 50 percent of male victims 
stated that they did not report the crime because they believed nothing 
would be done.
  They have been victimized once, and now they do not believe that 
anything will happen if they speak. They do not believe that anything 
will be done with their report. Some 62 percent of victims who reported 
a sexual assault indicated that they perceived some form of 
professional, social or administrative retaliation, retaliation from 
the system that they have been trained to trust, to be there for one 
another, and yet now fear retaliation.
  This report was such an eye-opener for many of us. It certainly has 
galvanized the issue to address where we are today, to truly put on the 
front burner of this body, the issue of what has happened with military 
sexual assaults and what we can do to address it. It has remained on 
the front burner, thanks to the persistent efforts of the Senator from 
New York to keep it there. She has relentlessly pursued the vote that 
we will take today.
  Regardless of the outcome, I think that she should take pride, I 
think we should all take pride in what we have collectively 
accomplished.
  I also note the very fine work of my colleague from Missouri, Senator 
McCaskill, and her efforts, along with Senator Ayotte, Senator Fischer, 
and the Presiding Officer, to bring this issue to a level where we have 
seen changes made already, but the question that remains is, is there 
more that can be done.
  This Congress has significantly improved the system through 
amendments to the military justice system that were included in the 
National Defense Authorization Act. The services have also done their 
part to improve ways to improve their sexual assault and prevention 
programs, such as making sure that a Naval Academy midshipman need not 
be driven across the State of Maryland searching for a hospital that 
has a sexual assault nurse examiner on duty.
  In my State of Alaska, the headlines over the past year, as they 
related to military sexual assault within the ranks of our National 
Guard units, stunned us all. I recently received a further briefing 
from our adjutant general and folks within the Alaska National Guard in 
terms of what they too are doing to address, within their own system, 
the changes that are absolutely necessary.
  But the question is whether these changes will move the needle on 
these statistics we have just recited. In my view, it remains to be 
seen. Will they give the victims more confidence in the system? Will 
they deter offenders by increasing the certainty that there is going to 
be accountability if these acts are taken?
  Today the Senate considers the Military Justice Improvement Act, a 
measure that provides victims with the certainty they need to have 
confidence in the system. If they don't believe the system is going to 
be there for them, if they don't believe it is going to work for them, 
they are not going to report it. They will not expose themselves again.
  As I said on the Senate floor before, this is strong medicine. It is 
very strong medicine to any offender who believes that the ``good old 
boys'' system will permit him to escape the consequence of his actions. 
In my judgment, enactment of the Military Justice Improvement Act will 
lead to greater consistency in charging decisions. This, again, is a 
very important aspect. It will ensure that those decisions are based on 
the facts, the law, and not any external factor. That too offers an 
increment of protection to victims as well as to the offenders.
  The current system of military judgment relies upon the individual 
decisions of commanders as to whether an offense is to be punished and 
which charges are to be brought. We recognize we have a complex 
military and there are many commanders. While our code of military 
justice may be uniform, recent history suggests that its implementation 
is, unfortunately, anything but uniform.
  Some have called the Gillibrand proposal a radical solution and one 
that will make it impossible to maintain good order and discipline in 
the military. I don't buy that. These were some of the statements that 
were made several years back when we were considering don't ask, don't 
tell about 3 years ago.
  The military is proving it is resilient enough to implement culture 
change--and that is what this will take, is culture change. I believe 
they are resilient enough to implement a change of this magnitude, and 
it will be resilient enough to implement the Military Justice 
Improvement Act.
  It is not a radical and novel solution to a difficult problem. In 
fact, many of our allied modern militaries have moved the decision on 
whether to prosecute sexual assault outside of the chain of command. 
They have done it. I believe it is high time we do as well.
  Again, I commend those who have led so nobly on this effort to make 
sure that when those fine men and women stand to serve our country, 
there is ensured a level of justice, a level of uniformity of justice, 
and that we no longer see the devastating statistics we have, 
unfortunately, been faced with for far too long.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Hirono). The Senator from New York.
  Mrs. GILLIBRAND. I ask that I be notified when 7 minutes remains.
  The PRESIDING OFFICER. The Senator will be notified. The Senator has 
4\1/2\ minutes remaining.
  Mrs. GILLIBRAND. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mrs. GILLIBRAND. I ask unanimous consent that the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. GILLIBRAND. I ask to be notified when there is 2 minutes 
remaining.
  All of the arguments we have heard today are technical arguments, 
arguments about why we can't possibly do this. But the victims and the 
survivors of sexual assault have been walking this Congress for more 
than 1 year, asking that we do something to protect them, to give them 
a hope for justice.
  It is not whether anyone in this Chamber trusts the chain of command. 
The people who do not trust the chain of command are the victims. Even 
General Amos has admitted that. He said the reason why a female marine 
does not come forward is because she does not trust the chain of 
command, that breach of trust. That fundamental breach of trust has 
been broken for victims of sexual assault.
  Listen to the victims. Retired Marine LCpl Jeremiah Arbogast was 
drugged. He was raped. He got his perpetrator to tell what happened on 
tape and went through trial. His perpetrator got no jail time. He saw 
no justice.
  He said: ``I joined the Marines in order to serve my country as an 
honorable man, instead I was thrown away like a piece of garbage.''
  He attempted suicide, severed his spine, and now advocates for this 
measure from a wheelchair.
  Those are the stories we are hearing from victims over and over.
  Sarah Plummer, U.S. Marine Corps, said having someone within your 
direct

[[Page S1348]]

chain of command handling this case doesn't make sense and is like 
``getting raped by your brother and having your father decide the 
case.''
  That is the view and the perception of the survivors.
  The PRESIDING OFFICER. The Senator has 2 minutes remaining.
  Mrs. GILLIBRAND. I defer my remaining 2 minutes until after the 
Senator from Missouri.
  Mrs. McCASKILL. I yield 3 minutes to the Senator from New Hampshire, 
Senator Ayotte.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Ms. AYOTTE. I thank the Senator from Missouri, and I thank the 
Senator from New York for her passionate and important debate. Let's 
not forget the work we have already done in the Defense authorization, 
ensuring that every victim will have his or her own attorney to 
represent their interests, taking commanders out of overturning 
verdicts, and making retaliation a crime. So we have done very 
important work.
  But why are we here today? The issue is will more cases be prosecuted 
if we take it out of the chain of command?
  Actually, no. There would be 93 cases under the current situation 
that wouldn't have been brought where commanders actually made a 
different decision than their military lawyer. What about those victims 
and those victims having their day in court? I want more victims to 
have their day in court.
  As we think about it, why are we doing this? Some of our allies did 
it. We looked at that issue. Our allies haven't seen any greater 
reporting, so there is no evidence that we are going to have reporting. 
Many of them did it to protect defendants. We are here to protect 
victims today. We certainly want a system with due process, but this is 
about having more victims coming forward.
  I also want to make sure people understand that under the system now 
they do not have to report to their commander. We had people come to 
the floor and say they shouldn't have to go to their boss. They can go 
to a sexual assault response coordinator, clergy, minister, civilian 
medical personnel. Already they can come forward if they don't feel 
comfortable coming forward to the commander.
  No evidence has been presented that we are going to help victims more 
or that more cases will be prosecuted or more will come forward if we 
take it out of the chain of command. That is why I want to hold 
commanders more accountable, not less. That is what Senator McCaskill, 
Senator Fischer, and I do in our proposal. We want to make sure they 
are not let off the hook. We want to make sure the victims can get not 
only justice but make sure they get swift justice. This proposal risks 
delaying that justice in the system.
  I ask my colleagues to vote against Senator Gillibrand's proposal. I 
ask my colleagues to say what will hold commanders more accountable. 
That is our proposal. I ask them to say where is the evidence that more 
evidence will be pursued or more cases will come forward. There is no 
evidence. Our proposal is based on the evidence.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mrs. McCASKILL. Madam President, I will take a couple of moments at 
the close of this very difficult debate to express my deep respect to 
the Senator from New York, Mrs. Gillibrand.
  While many aspects of this debate have been hard, perhaps the hardest 
part of this debate has been that this disagreement on policy has 
overshadowed the amazing work so many have done this year to enact a 
different day in the U.S. military when it comes to sexual assault and 
victims of sexual assault.
  When the Sun sets today, this body will have passed 35 major reforms 
in less than 1 year, making the military the most friendly victims 
organization in the world, giving victims more power, more leverage, 
holding commanders accountable, and holding perpetrators accountable. 
It will eliminate the ridiculous notion that how well one flies a plane 
should have anything to do with whether they committed a crime, 
professionalizing the process so that victims no longer endure a 
ridiculous amount of inappropriate questioning at what should be 
something like a preliminary hearing to establish probable cause, as 
opposed to some kind of rendering of questioning, torture to a victim 
who has come out of the shadows and is willing to go forward.
  I know I can speak with confidence for Senator Gillibrand that she 
and I have walked lockstep on those 35 reforms. We have disagreed on 
one. I know in the future she and I will work very hard together to 
make sure our military does the right thing by victims and puts 
perpetrators where they belong--in prison--and out of the ranks of the 
military where they stain the good name of the bravest men and women in 
the world.
  I thank all of my colleagues for their patience during this debate. I 
know this has been tough for everyone. But I stand with years of 
experience, holding the hands and crying with victims, with many 
victims, who have spoken to me and other organizations, knowing that 
what we have done is right for victims and right to hold perpetrators 
accountable.
  I respectfully request that people support our amendment today and 
reject the one area of policy on which the great Senator from New York 
and I disagree.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mrs. GILLIBRAND. I want the focus where it needs to be. This is not 
an opportunity to congratulate ourselves on the great reforms we have 
done. All of the reforms we have passed today are meaningful and 
useful, but this problem isn't even close to being solved. Under the 
best-case scenario, 2 out of 10 case are being reported today.
  Let's refocus on what is actually happening in our military today. 
Let's focus on what U.S. Air Force veteran Amn Jessica Hinves said:

       Two days before the court hearing, his commander called me 
     on a conference at the JAG office, and he said he didn't 
     believe that he acted like a gentleman, but there wasn't a 
     reason to prosecute.

  She was speechless. She had been promised a court hearing, and she 
was told 2 days before the commander had stopped it.
  Trina McDonald, U.S. Navy veteran, said:

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

  She did not report these attacks.
  Continuing:

       The people that were involved in my assaults were police 
     personnel, security personnel, higher-ranking officers, the 
     people that I would have to go and report.

  Last but not least is Lt. Ariana Klay, U.S. Marine Corps. Her home 
was broken into by two colleagues and she was raped brutally. She 
ultimately reported the crime and attempted suicide. Her perpetrator 
was convicted--and convicted of what? Not breaking and entering, not 
rape--calling her a slut.
  The thing that makes me most angry is not even the rape itself; it's 
the commanders that were complicit in covering up everything that 
happened.


                             Cloture Motion

  The PRESIDING OFFICER. All time for debate has expired.
  Under the previous order and pursuant to rule XXII, the Chair lays 
before the Senate the pending cloture motion, which the clerk will 
state.
  The bill clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on S. 1752, a bill to 
     reform procedures for determinations to proceed to trial by 
     court-martial for certain offenses under the Uniform Code of 
     Military Justice, and for other purposes.
         Harry Reid, Kirsten E. Gillibrand, Barbara Boxer, John D. 
           Rockefeller IV, Tammy Baldwin, Benjamin L. Cardin, 
           Patrick J. Leahy, Debbie Stabenow, Richard Blumenthal, 
           Christopher A. Coons, Claire McCaskill, Jon Tester, 
           Mark Begich, Barbara Mikulski, Maria Cantwell, Charles 
           E. Schumer, Dianne Feinstein.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on S. 
1752, a bill to reform procedures for determinations to proceed to 
trial by court-martial for certain offenses under the Uniform

[[Page S1349]]

Code of Military Justice, and for other purposes, shall be brought to a 
close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The bill clerk called the roll.
  The yeas and nays resulted--yeas 55, nays 45, as follows:

                      [Rollcall Vote No. 59 Leg.]

                                YEAS--55

     Baldwin
     Begich
     Bennet
     Blumenthal
     Booker
     Boxer
     Brown
     Cantwell
     Cardin
     Casey
     Collins
     Coons
     Cruz
     Donnelly
     Durbin
     Enzi
     Feinstein
     Franken
     Gillibrand
     Grassley
     Hagan
     Harkin
     Heinrich
     Heitkamp
     Heller
     Hirono
     Johanns
     Johnson (SD)
     Klobuchar
     Landrieu
     Leahy
     Markey
     McConnell
     Menendez
     Merkley
     Mikulski
     Moran
     Murkowski
     Murphy
     Murray
     Paul
     Pryor
     Reid
     Rockefeller
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Udall (CO)
     Udall (NM)
     Vitter
     Walsh
     Warren
     Wyden

                                NAYS--45

     Alexander
     Ayotte
     Barrasso
     Blunt
     Boozman
     Burr
     Carper
     Chambliss
     Coats
     Coburn
     Cochran
     Corker
     Cornyn
     Crapo
     Fischer
     Flake
     Graham
     Hatch
     Hoeven
     Inhofe
     Isakson
     Johnson (WI)
     Kaine
     King
     Kirk
     Lee
     Levin
     Manchin
     McCain
     McCaskill
     Nelson
     Portman
     Reed
     Risch
     Roberts
     Rubio
     Scott
     Sessions
     Shelby
     Tester
     Thune
     Toomey
     Warner
     Whitehouse
     Wicker
  The PRESIDING OFFICER. On this vote the ayes are 55, the nays are 45. 
Three-fifths of the Senators duly chosen and sworn not having voted in 
the affirmative, the motion is rejected. The bill is returned to the 
calendar.

                          ____________________