[Congressional Record Volume 167, Number 106 (Thursday, June 17, 2021)]
[Senate]
[Pages S4608-S4610]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Unanimous Consent Request--S. 1520
Mrs. GILLIBRAND. Mr. President, I rise again to call for this entire
body to vote and consider the Military Justice Improvement and
Increasing Prevention Act. This commonsense reform would ensure that
people in the U.S. military who have been subjected to sexual assault
and other serious crimes get the justice that they deserve.
I began calling for the full floor vote on this bill on May 24. That
was 24 days ago. Since then, an estimated 1,344 servicemembers will
have been raped or sexually assaulted. Two in three of those survivors
will not even report it because they know that they are more likely to
face retaliation than receive justice.
This is a scourge that we have been looking at for over 8 years. We
have passed nearly 250 measures to address sexual assault in the
military, to address retaliation, to address prevention, and none of
them have dented the numbers. In fact, our estimated cases are at about
20,000 cases, and among those, only about 200 have gone to courts-
martial and ended in conviction. It is not enough. We aren't moving the
numbers in the right direction. They are, in fact, going in the wrong
direction.
We also have a reform that we have looked at for 8 years. It creates
a bright line at all serious crimes to handle two issues: one, the bias
we see in sexual assault in the military; that if you are a
servicemember who reports sexual assault, it is unlikely that you will
get justice, and it is likely that you will be retaliated against.
And after we have made retaliation a crime three times in a row, we
have only seen one court-martial for retaliation. That is outrageous.
And so now is the time that we bring this measure to the floor. It
does not cost a lot of money. It is something that uses the existing
infrastructure, the existing lawyers, the existing infrastructure
around the lawyers.
Two, it does not take a long time to implement because, in fact,
after the military police complete their investigation and have their
recommendation, basically, they send that recommendation to the
prosecutor, as opposed to the commander. So after the review by the
prosecutor, it goes right back to the commander if that prosecutor
declines to prosecute.
So, ultimately, it changes the system in a very small but powerful
way, and the reason why this change is recommended by all military
experts is three reasons: One, the bright line creates a justice system
for all plaintiffs and all defendants. And since we have bias with
regard to women in the military and we have bias with regard to Black
and Brown servicemembers, this change will remove bias and
professionalize the system for everyone.
Second, our allies have done this. Our allies have done it--UK,
Israel, Germany, Australia, Netherlands. They have done it over the
last 40 years for defendants' rights, to make sure we have a system
that is fair to everyone. When they put this change in place, they
reported to our panel that, No. 1, they saw no diminution in command
control; and, No. 2, they saw no undermining of good order and
discipline. So for those reasons, that is why we need to pursue this
legislation, a bright line.
And then, last is the question that the chairman always raises, that
this must go through the committee. The committee has been looking at
this for 8 years. We have had multiple hearings on this topic. We have
had the data. We have talked about it with every service Secretary for
the last decade I have been on the committee. We have talked about it
with each of the services for the last decade that I have been on the
committee, and we have tried to get a vote on this measure,
unsuccessfully, for the past 5 years. We have been denied a vote every
time in the last 5 years.
So to say now that only the committee can have jurisdiction is not
true. They have had their chance, and they have passed close to 250
measures. Those measures have not moved the needle. Those measures are
ones that the DOD was comfortable with. They have never wanted this
measure. Now we have agreement by the chairman, by this panel, by many
of the service Secretaries that, OK, fine, we are with you; we will
take sexual assault out of the chain of command.
While that is good, it is not enough because it will create two
systems of justice, and you should not privilege just one set of
plaintiffs to have a positive, professional, unbiased system.
And given all of the data we have about race and bias against Black
servicemembers and Brown servicemembers being punished up to 2.5 times
more than White servicemembers, you need to fix the system for
everybody.
So back to the argument of our allies, that is why they did their
bright line at serious crimes--the equivalent of felonies--so that they
could have a justice system that is worthy of the sacrifices that the
men and women in our armed services make.
So I ask once again that we can have a vote on this floor. We now
have 66 cosponsors of this legislation, widely bipartisan. How many
bills in this Chamber are supported by Liz Warren and Ted Cruz at the
same time? How many pieces of legislation have been voted on by both
Chuck Schumer and Mitch McConnell? Very few. But the reason we have
such bipartisan support is we have two female command veterans in this
body. One is a Republican, Joni Ernst. One is a Democrat, Tammy
Duckworth. They are both on this legislation. They have served as
commanders, and they understand the importance of the commander's
roles. But they also have seen that nothing has gotten better. They saw
the report from Fort Hood that said the command climate was so toxic
that it was permissible for sexual assault and sexual harassment. And
so they have said enough is enough.
And so when you have so many former commanders and sexual assault
survivors from this Chamber supporting this legislation, it is time
that
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it does not need to go through the committee. More than half of our
committee supports this. But when we take issues like this to the
committee, they have been taken out in conference.
Despite winning the vote in the Senate, despite winning the vote in
the House, our bill in 2019 to make sure that a servicemember could
come forward and not be prosecuted for minor related offenses, like
drinking or being off base--that bill passed in the Senate, passed in
the House, and was taken out in conference because the DOD didn't like
it.
So I promise you, if we pass this bill in our committee, in the House
and the Senate--I promise you--it would be narrowed just down to sexual
assault because that is what the DOD will agree to.
I am tired of doing only what the DOD will agree to. It is not our
job to defer to the DOD. It is our job as U.S. Senators to provide
oversight and accountability over the administration and over the
entire Department of Defense.
When we abdicate that responsibility, what we have is what we had for
the last 10 years, failure--failure in the committee because we only
put forward items the DOD was comfortable with.
I just don't know how much longer we want survivors to have to wait.
We have considered this legislation together. We have, every year, sat
down, discussed it--pros, cons. Are other reforms working?
I have done that with every one of the 100 Senators in this Chamber
every year for the last 10 years. It has been intensely considered, and
I spend an extra amount of time with committee members because they are
interested.
So this is not new. It doesn't need to go through the committee. We
have been denied a vote and filibustered a vote for 8 years and denied
a vote for the last 5 years. So I don't know why the committee gets
sole jurisdiction. I don't understand.
And, again, how many measures does this Chamber have that have 66
cosponsors?
It is also a generational shift. And when you have something of such
import, it comes to the floor. We repealed don't ask, don't tell on the
floor. We had two floor votes. The majority leader at the time gave us
those votes, and it passed on the floor. It did not go through the
committee.
It is time to bring a justice system that is worthy of the sacrifice
that the men and women make every day. And you need to have that bright
line so it is a justice system that works for women and servicemembers
of color because right now we have data and evidence that there is bias
against those individuals.
Mr. President, as if in legislative session, I ask unanimous consent
that at a time to be determined by the majority leader in consultation
with the Republican leader, the Senate Committee on Armed Services be
discharged from further consideration of S. 1520 and the Senate proceed
to its consideration; that there be 2 hours of debate, equally divided
in the usual form; and that upon the use or yielding back of time, the
Senate vote on the bill with no intervening action or debate.
The PRESIDING OFFICER (Mr. King). Is there objection?
The Senator from Rhode Island.
Mr. REED. Mr. President, once again, I object to the request from the
Senator from New York for the reasons I previously stated. I will
repeat again: I support removing prosecution of sexual assault and
related crimes from the chain of command, but we must take care that we
do it thoughtfully, in a manner that does not stress the military
justice system or distort it in a way that would affect the efficiency
and operation of the military. The best way to do that, in my view, is
to consider these matters in the context of the annual Defense bill,
which we will be marking up in a month.
Mr. President, I would also point out that this week, Jeh Johnson,
who served under President Obama as the Department of Defense general
counsel, and then Secretary of Homeland Security, wrote an article
addressing the scope of Senator Gillibrand's bill, urging caution that
we focus on legislative solutions tailored to address the problem we
are trying to solve. And to remind my colleagues, as the DOD general
counsel, Secretary Johnson oversaw all legal services performed within
the Department of Defense. He advised the Secretary and all government
officials on military justice matters and oversaw the annual review of
the Manual for Courts-Martial. He is an informed and expert voice on
these matters.
During his tenure as DOD general counsel, he was no stranger to
momentous change, leading the implementation of the repeal of don't
ask, don't tell. As he states in his article, he has long supported
moving charging decisions over sex offenses out of the chain of
command.
Mr. President, I ask unanimous consent to have printed in the Record
this article
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From LAWFARE, June 16, 2021]
The Military Justice Improvement and Increasing Prevention Act: Are the
Solutions Commensurate With the Problem?
(By Jeh Johnson)
The Military Justice Improvement and Increasing Prevention
Act of 2021 is legislation pending in Congress to reshape the
manner in which the U.S. military prosecutes sexual assault
within its ranks. This is reform that is much needed and long
overdue. Notably, however, the bill in its current form
reshapes military justice far beyond the context of sexual
assault. Congress should take care to fashion a solution
commensurate with the problem at hand, and not go too far.
Senator Kirsten Gillibrand (D-NY), the principal sponsor of
the bill, S. 1520, deserves credit for her heroic and
persistent campaign over the years to highlight the problem
of sexual assault in the military. Few others in Congress
today could have assembled such a broad bipartisan coalition
of 64 co-sponsors behind such an important, substantive piece
of legislation, while moving (or, to put it more
appropriately, dragging) the top brass at the Pentagon to the
same place. From my experience 10 years ago preparing the
military for the repeal of Don't Ask, Don't Tell, I know how
resistant to change that community can be.
I support Senator Gillibrand's effort to move charging
decisions for sex offenses in the military to an independent,
trained group of military lawyers. I said as much publicly in
2013. Likewise, almost all retired general and flag officers
I speak with today agree that the male-dominated chain of
command has failed the victims of sexual assault in the
military. They accept the need for change.
But, in its current form, the changes contemplated by S.
1520 are not limited to sex-related offenses. The bill would
create an independent body of lawyers, outside the chain of
command, to make charging decisions for a broad range of
offenses punishable by more than a year's confinement. These
include murder, manslaughter, child endangerment, larceny,
robbery, fraudulent use of a credit card, kidnapping, arson,
housebreaking, extortion, bribery, perjury, subornation of
perjury and obstruction of justice. (Notably, other offenses
such as receipt of stolen property, forgery and conduct
unbecoming an officer are excluded from the bill's reach, but
the logic for the distinction is unclear.) In all, if
enacted, the legislation would constitute the largest change
to military justice since the enactment of the Uniform Code
of Military Justice in 1950.
Why are offenses ranging from murder, arson to perjury
included in the bill's reach? What is the justification for
so large an overhaul? Where is the congressional finding
that, when it comes to the broader range of offenses, the
chain of command in the U.S. military has failed in its duty
to carry out military justice?
Supporters of the bill argue that, once Congress goes down
the road of creating an independent body to make charging
decisions for sex crimes, it cannot stop; that to limit the
creation of an independent body for sex crimes would also
create the stigma of ``pink courts'' that appear to exist for
the benefit of women. In my view, the exception is warranted,
perceptions can be addressed, and the exception should not
swallow the rule. In both civilian and military life, the
reality is the sex offenses are different, in the manner in
which they are reported, investigated, and prosecuted. It
should also be noted that victims of sexual assault are both
men and women.
Here are several other considerations:
First, as written the bill appears to require a whole new
bureaucracy to implement and execute the changes
contemplated. No one should be under the illusion that the
broad mission contemplated by the bill can be carried by a
small band of elite JAGs in a suite someplace in northern
Virginia. The bill would require that an independent group of
lawyers make charging decisions for a vast range
Mr. REED. I think given the wise comments of not only Mr. Johnson but
also the pending recommendations by the Department of Defense
concerning this issue, again, the best place to have a thorough, lively
debate and amendments, by the way, which are precluded in this
unanimous consent, would be in the Armed Services Committee in the
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context of the annual defense authorization bill. That is where we have
confronted and decided these issues historically.
And with that, I would reiterate my objection to the Senator from New
York's request.
The PRESIDING OFFICER. Objection is heard.
Mrs. GILLIBRAND. Mr. President, two issues: First, the op-ed by Jeh
Johnson was not in reference to my legislation. In fact, he conflated
my legislation with recommendations from the IRC. He mentioned lawyers
in Virginia having to make the decisions. That is not what my bill
says. It has never said that, and it is not how it is organized. In
fact, my bill is organized by services to adjudicate these cases, as
they are doing today.
Right now, prosecutors prosecute these cases, and the decision making
of whether to proceed to trial would be given to them in the first
instance. If they decline to prosecute, it goes right back to the
commander. So, for example, if there wasn't enough evidence to
prosecute the case, it would go back to the commander, who could then
use a special court-martial or he could use nonjudicial punishment for
related or lesser offenses. That is typically what the commanders do in
these cases.
So very little changes. But what does change is the perception of the
victim who is asking for unbiased review by someone who is highly
trained to do that review. It also gives assurance to defendants'
rights that the person making the decision is unbiased and is highly
and professionally trained.
Those changes change everything. It changes the perception that our
military justice is blind, fair, and professional. And that is not the
impression of servicemembers today. Both women and men and survivors of
sexual assault do not believe that justice is possible for them, and
Black and Brown servicemembers do not believe the justice system is
fair to them either.
This solution makes sense, and I do not think that we should defer
again our responsibility to one op-ed by one former SecDef. That is not
our job, and that is not how we should be responding.
____________________