Congressional Record, Volume 160 Issue 38 (Thursday, March 6, 2014)

[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

[[Page S1344]]

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

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.

____________________