[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]


                           EXECUTIVE CALENDAR

  The PRESIDING OFFICER. The clerk will report the nomination.
  The senior assistant legislative clerk read the nomination of John K. 
Tien, of Georgia, to be Deputy Secretary of Homeland Security.
  The PRESIDING OFFICER. The Senator from New York.
  Mrs. GILLIBRAND. Mr. President, I ask unanimous consent that I be 
allowed to complete my remarks prior to the recess.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                   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

[[Page S4609]]

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

[[Page S4610]]

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.

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