[Congressional Record Volume 167, Number 127 (Tuesday, July 20, 2021)]
[Senate]
[Pages S4984-S4987]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   UNANIMOUS CONSENT REQUEST--S. 1520

  Mrs. GILLIBRAND. Mr. President, I rise once again to call for every 
Senator to have the chance to vote on the Military Justice Improvement 
and Increasing Prevention Act. It is time for us to move serious 
crimes, like sexual assault and murder, out of the chain of command and 
put them in the hands of the most capable people in the military to do 
this: independent, impartial, highly trained uniformed prosecutors.
  I want to first acknowledge and express my gratitude to my colleagues 
on the Armed Services Subcommittee on Personnel who recognize the 
importance of this legislation and this morning voted to include it as 
an amendment to the Senate Armed Services Personnel Subcommittee markup 
of the NDAA.
  The reason we are calling for this reform is because our current 
system is just not working for our servicemembers. It is not delivering 
justice on the values of justice and equality that they have sacrificed 
so much to defend. We are here to serve them. Any reform that we should 
make should be made with their best interests in mind.
  So while I am glad that so many of our colleagues are now looking for 
ways to help survivors of sexual assault in the military, we must help 
them by starting to listen to them and what they are saying about the 
justice they want delivered.
  If we move just sexual assault and related crimes out of the chain of 
command, we are ignoring the voices of the very people whom we are 
trying to help. Survivors have asked for all serious crimes to be taken 
out of the chain of command. They have told us time and time again that 
they do not want to be further isolated, further diminished, by being 
given special treatment. They do not want to have a separate judicial 
system. The request is clear: Do not create a pink court, a court that 
will be perceived by other servicemembers as only serving women. While 
we know that many sexual assault survivors are men, the perception in 
the military will be reality, and it will be seen as marginalizing and 
minimizing women servicemembers.
  It is our obligation to listen to the men and women we are serving 
and to do our job. Creating a bifurcated system will not only silence 
survivors' voices; it will silence the voices of the enlisted 
servicemembers who have asked us to provide basic fairness.
  Our servicemembers recognize that, intentionally or not, a commander 
who knows both the accuser and the victim cannot remove bias from 
decision making. Our servicemembers have told us that they lack faith 
in the current system, which leaves serious crimes and, potentially, 
serious sentences with commanders who are not trained lawyers.
  We have to listen to the men and women in uniform who have asked us 
to ensure that their cases will be decided by an independent, highly 
trained military prosecutor if they are going to face prosecution that 
can lead to more than a year of confinement
  I ask my colleagues who are in favor of moving just sexual assault 
and related crimes out of the chain of command: Why should some crimes 
be handled by better lawyers than others? Don't we want all serious 
crimes to be given serious consideration by a JAG with criminal justice 
experience? Don't all of our servicemembers deserve a professionalized 
judicial system?
  As Senator Hawley, a former prosecutor, this morning in our 
subcommittee hearing, said:

       [W]hen we have service men and women who have had serious 
     crimes committed against them--felony crimes, as are 
     addressed in this bill--it is absolutely imperative that: 
     justice is done to these men and women, is done for them; 
     that the procedures and standards that they can expect are 
     uniform and predictable; [and] that trained military 
     prosecutors make the final call as to whether or not . . . 
     these cases will go forward for prosecution. And the reason 
     for that is we want the evidence to be weighed by the 
     prosecutor--the individual, the woman or the man--who is 
     going to be presenting this to a jury, to a judge in the 
     system. . . . That's a predictable system. I think it is one 
     that both defendants and victims can support because the 
     rules are uniform--it's across the board, it's is analogous 
     to our civilian system but still, of course, stays within the 
     military system of justice.

  Many of our colleagues brought renewed attention to the need for 
military justice after the tragic murder of SPC Vanessa Guillen. Her 
case shows us that a bifurcated system that leaves some crimes with 
prosecutors and some crimes with commanders will not deliver justice.
  Specialist Guillen was sexually harassed by one soldier and then 
murdered by another. If we remove just sexual assault and related 
crimes from the chain of command, only her harasser's case would be 
handled by a prosecutor. Her murderer's case would not. It would be 
left in the hands of the same command that so deeply mishandled her 
case that her murderer was able to flee the base and end his own life. 
Her family, as a consequence, will never have justice.
  We have heard from voices inside the Pentagon who have resisted this 
change for far too long. We cannot let them continue to drown out the 
voices of the people in the military justice system whom they are 
supposed to serve. We must listen to the voices of the enlisted. They 
have asked us to make this reform and to put all serious crimes in the 
hands of highly trained, impartial, professional military prosecutors.
  That is what the Military Justice Improvement and Increasing 
Prevention Act would do. Every day it is delayed is another day our 
servicemembers' voices are silenced. It is time to listen to them and 
bring this legislation to the floor for a vote.
  Mr. President, I ask unanimous consent that at a time to be 
determined by

[[Page S4985]]

the majority leader in consultation with the Republican leader, the 
Senate Armed Services Committee be discharged from further 
consideration of S. 1520 and the Senate proceed to its consideration; 
that there be 2 hours for debate, equally divided in the usual form; 
and that upon the use or yielding back of that time, the Senate vote on 
the bill with no intervening action or debate.
  The PRESIDING OFFICER. Is there objection?
  Mr. SULLIVAN. Reserving the right to object.
  The PRESIDING OFFICER. The Senator from Alaska.
  Mr. SULLIVAN. Mr. President, reserving the right to object, I first 
want to begin by complimenting my friend and colleague Senator 
Gillibrand of New York, who has been working diligently--and we all 
know it--for 10 years, a decade, on this issue, particularly the issue 
of sexual assault and the related crimes in our military. There is 
nobody who has been more focused on it, and I applaud her for her 
relentless efforts--relentless. And I have a lot of respect for her.
  She has been coming to the floor every night here for the last 3 or 4 
weeks and trying to move her bill. I am going to talk about her bill a 
little bit more and why I and others, in a bipartisan way--the chairman 
of the Armed Services, the ranking member of the Armed Services, and 
others--have been coming to the floor to object.
  But I also want to say that I care deeply--deeply--about this issue 
for two very important reasons. No. 1, the issue of sexual assault, 
domestic violence, is an enormous problem in America but is a huge 
problem in my State, the great State of Alaska. And since my time as 
attorney general and now my time as a U.S. Senator, I have been very 
focused on these issues. And I think, again, Senator Gillibrand has 
done an outstanding job, not just on the military ones but on a whole 
broad-based number of these kinds of bills that focus on the issues of 
domestic violence and sexual assault. And I have been proud to work 
with her on a number of them--my bills, her bills--some of which have 
become law
  So as Alaska's Senator, I have been 100-percent focused on this issue 
for American society, certainly for Alaska, which is a big, big problem 
that continues to impact millions of Americans and tens of thousands of 
my constituents. So we need to do something about it. I agree, not just 
for the military but for the country. And I am committed to continuing 
the work; for example, my ``Choose Respect'' series of bills that we 
have here in the U.S. Senate that I am working on with Senator 
Gillibrand.
  The other reason I care about this issue--and there is no monopoly, 
by the way, on people who care about the troops--is that I have a 28-
year career in the U.S. Marine Corps and still serving. I have been a 
commander, and I care deeply about every single member in the military, 
the challenges of sexual assault that we have, which are very real, 
which, again, Senator Gillibrand has done such a good job to highlight 
and to have good order and discipline in our military, which is part of 
the UCMJ, which is one of the reasons why this issue has taken so long 
and has been a challenge.
  Now, the issue that Senator Gillibrand is talking about right now, we 
will be debating in the full committee in the Armed Services starting 
tomorrow. Actually, we are starting today, as she mentioned, in the 
Personnel Subcommittee today. This, again, a lot of the credit--most of 
the credit--I give to Senator Gillibrand on this issue.
  We will have a fulsome debate, probably all day, on this issue 
tomorrow. And if her bill, which is often understood as removing these 
issues of sexual assault and violent crimes relating to sexual crimes, 
was the bill that will be passed tomorrow, I will be supportive, 
removing that out of the chain of command. That is what many, many 
Senators--and I have had discussions with them--believe that the 
primary focus of her legislation is and has been. She has convinced now 
the Secretary of Defense and the President of the United States and the 
members of the Joint Chiefs. And if that is what the bill was, she 
would have very, very broad-based support. And I applaud her for that. 
That victory would be hers more than anyone's. In terms of legislation, 
of course, I think it will help our troops. Will it ultimately solve 
this problem, which is a problem in our country and in our military, a 
huge problem? I think it will help.
  My view, as someone who understands the military well, is that it is 
not going to be solved until we have leaders who take this issue very 
seriously. That is what we need more than anything, and I think our 
leadership in the military is starting to do this, but more needs to 
happen.
  So that would be what most of us think has been the focus of her 
legislation for 10 years and what would be the result likely to come 
out of committee as early as tomorrow, carving out these issues, not 
creating pink courts but creating a professional class of prosecutors 
and defense attorneys who know these issues, which are often 
challenging. Senator Gillibrand knows this. ``He said, she said'' kinds 
of accusations often are at the heart of these horrible crimes. And to 
have that for men and women--so there is no pink court there, by the 
way--to have that class of cases removed from the chain of command for 
all of the reasons she and others have been arguing, if that is the 
result tomorrow, I think it is going to get strong bipartisan support 
and support from the administration.
  Unfortunately, that is not where the bill is. As she is now 
indicating, this bill would remove all crimes, all felonies--1 year in 
jail, anything; a bar fight, anything. In terms of the commander's 
ability to have good order and discipline, all of that under this 
legislation would be covered--1-year felony. And in many people's 
view--in my view, certainly--and in the chairman of the committee's 
view, and the ranking member's view, and many others, this is a hugely 
broad reworking of the UCMJ, probably one of the most dramatic 
reworkings of the Uniform Code of Military Justice ever.
  Now, why are Senator Gillibrand and others making the argument? What 
she has been doing--she didn't come down here today, but I have been 
reading her speeches. She has been essentially saying we need this 
broad carve-out for every crime, every felony in the chain of command 
because of racial problems in the military.
  This is a new argument. She and I have talked about it. This is a 
dramatic argument. This is essentially saying what she said in a recent 
speech: It is ``necessary''--1 year more--``because the current 
military justice system is simply not delivering justice, especially 
not to servicemembers of color.'' This is a big claim.
  What Senator Gillibrand has been doing with her previous 
legislation--8 to 10 years of data to back it up on the sexual assault 
issues. Again, I applaud her on that. She has been dogged. She has 
gotten data. She has searched for data herself. But this new argument 
basing this whole broad-based revamping of the whole UCMJ based on the 
fact that she is now claiming the military justice system of the United 
States cannot serve minority members has not been backed up by data--
has not been backed up by data.
  She cites three studies, recent studies. Again, this is a new 
argument. A lot of my colleagues say: Whoa. I didn't sign up for that 
bill thinking it was based on some kind of broad-based systemic racism 
in the military. But that is the new argument. We need to get that 
right before we claim that every member of the military, every 
commander, is somehow a racist. Even the studies that she has now 
focused on are saying that disparity is not proof of racial 
discrimination.
  The U.S. Air Force--one of the studies that she has talked about 
says:

       While the presence of disparity alone is not evidence of 
     racism, discrimination, or disparate treatment, it presents a 
     concern that requires more in-depth analysis.

  I fully agree with that.
  Last year, when we were debating the NDAA, there was an issue that 
came to my attention about how we had very senior military members, 
four-star generals, who were not making the rank. We have a Service 
Chief right now, General Brown, who is the first African-American 
Service Secretary, Indian Services. When I talked to him, that was 
disturbing to me. I put forward legislation saying: Why is that? What 
is going on with our military? Let's figure that out.

[[Page S4986]]

  What I am saying to Senator Gillibrand is and what the Air Force is 
saying is, if this is a problem, let's figure that out.
  The GAO study that she cites says this:

       These findings show an association for disparities at 
     particular stages of the military justice process, but are 
     inconclusive regarding other stages. However, GAO's findings 
     of racial disparities, taken alone, do not establish whether 
     unlawful discrimination has occurred, as that is a legal 
     determination that would involve other corroborating 
     information and supporting statistics.

  Again, is there a challenging disparity right now that Senator 
Gillibrand has been highlighting? I believe so. Is it proof that the 
UCMJ is somehow systemically racist and needs this broad-based change? 
That is what she has been arguing on the Senate floor.
  Unlike her other argument on sexual assault and the crimes that we 
have seen over the years where there is 8 to 10 years of data that we 
have all been looking at--again, a lot to her credit--this is something 
that needs much, much more data before we make broad-based claims. For 
example, some of those who are supporting her bill sent out this 
supporting blog post that they said was supporting the legislation, the 
broad-based legislation. This was from the Harvard Civil Rights-Civil 
Liberties Law Review. This has been put out by staff to support her 
broad-based legislation. It says:

       Almost all military disciplinary action occurs at the 
     discretion of military officers, and with over 75% of the 
     officer corps [being] white, systemic bias is not just a 
     function of military justice, it's a foregone conclusion.

  That is a pretty broad statement. That is a pretty broad statement. 
Where is the data to back that up? In essence, because you are a White 
commander, you are not going to give justice to minorities? I find that 
offensive as a commander who has commanded all kinds of Alaska Natives, 
African Americans, Hispanics, Whites.
  So we can't base this broad-based legislation--all felonies--on this 
relatively new claim that does not have data supporting it that somehow 
we need to revamp the entire UCMJ because White commanders are racist. 
I don't think we should do it.
  I want to work with Senator Gillibrand on these and other issues 
tomorrow. It will be an important debate. I am hopeful that the years 
of her hard work and data on this issue are going to result in a carve-
out for sexual assault and related crimes of violence that will be 
bipartisan. It will be supported by the Secretary of Defense, the 
Service Secretaries. Again, I think Senator Gillibrand will deserve an 
enormous amount of credit for her determination over a decade to make 
that happen. But with regard to the broader legislation that she has 
asked for unanimous consent on, for the reasons I just discussed, I 
object.
  The PRESIDING OFFICER. Objection is heard
  Mrs. GILLIBRAND. Mr. President, my colleague has made some serious 
misstatements and allegations in his remarks.
  I never said White commanders are racist, nor would I ever. In fact, 
all I have done is cite 3 years of evidence published by the Department 
of Defense about disparities in sentencing and punishment, with the 
Marines, for example, having 2.61 times more likely to be punished for 
Black servicemembers versus White servicemembers. It is DOD data. It is 
DOD information.
  As the Senator knows, this bill was written 8 years ago, and the 
reason it was written with a bright line was for three reasons.
  The first is that our allies already have done this. They created a 
bright line of felonies for both plaintiffs' and defendants' rights--
the UK, Israel, Canada, Germany, Netherlands, and Australia. They did 
this because they believed servicemembers deserve basic civil 
liberties. The commander is not a trained lawyer. They thought a 
trained military prosecutor should make those decisions for serious 
crimes.
  We were told by every military justice expert available that to do 
anything less than a bright line would be a terrible disservice to the 
UCMJ, that bright lines work, that bright lines are necessary, and that 
having the bright line be a punishment of more than a year would serve 
the servicemembers better.
  Second, we heard from servicemembers, particularly female 
servicemembers. And I know there is a lot of mansplaining in this body, 
but Joni Ernst is the only female combat commander Republican in this 
body. Tammy Duckworth is the only female combat veteran Democrat in 
this body. They helped to write this legislation, and when they wrote 
it, they said this: They said women in the military are often 
marginalized, and the perception, dear colleague, is that although men 
are sexually assaulted, more often than not, it is the women who come 
forward. More often than not, they will associate a sexual assault 
procedure and process that is unique to be specialized treatment.
  Joni Ernst is not only a combat veteran, she is also a sexual assault 
survivor. So I don't think you can put yourself in her shoes, nor 
should you try to. This is legislation that she worked hard over the 
last 6 years with me on to tailor it, to narrow it.
  Bar fights are excluded specifically because Joni Ernst knows as a 
commander that bar fights are prevalent, and we don't want to have to 
deal with bar fights when we are talking about serious felonies. They 
are carved out. They are carved out as to all military crimes.
  The reason why this bright line of felonies protects servicemembers 
is because--you know this, dear colleague. You know that in domestic 
violence cases, often other serious crimes are at play. We have a case 
where a boyfriend and girlfriend--the girlfriend breaks up with the 
boyfriend, and he shoots her dead. Her case would not be taken to a 
special commander--excuse me--a special prosecutor because she was 
murdered.
  Vanessa Guillen. Her case would not have the benefit of a special 
prosecutor because she was murdered.
  We have another case just published last week, a domestic violence 
case where a servicemember is beating his wife. A neighbor hears the 
screams and intervenes to try to protect her. The servicemember shoots 
the neighbor, who is killed. The commander decides that that is a 
stand-your-ground case, and he decides not to prosecute, and all that 
happens is that servicemember is moved. He is moved. So the next time 
he is beating his wife and she finally reports, that evidence of the 
murder isn't even in his case file. It is nowhere to be found. So they 
don't protect her. She doesn't get special review.
  You need other serious crimes to be part of this; otherwise, they 
won't necessarily get the proper review. I know that you don't want to 
include serious crimes like check fraud or stealing or arson because 
you are like, what does this have to do with sexual assault? The truth 
is, in many cases of domestic violence, arson is used to cover up the 
crime. In many cases, when you have a domestic violence victim, 99 
percent of them, their spouse or their partner used money as a way to 
isolate them. They use it to create dominance. They will steal her 
money. They will steal her credit card. If you don't have a specialized 
prosecutor look at the case, the commander might say: You took her 
checkbook; stop doing that. That is ridiculous. He won't even know this 
is something that happens in domestic violence cases all the time.
  There are a lot of reasons. We wrote it this way because the military 
experts told us.
  The issue of race has come up recently because the DOD started taking 
data. But the Air Force, you must know, started taking data about 20 
years ago. In 1972, the Nixon administration had a task force 
specifically about this issue and found disparities. All we have done 
is cited the disparities as confirmation that if you fix the whole 
system, maybe you can fix other problems too.
  But make no mistake, it was written this way initially specifically 
to end sexual violence. This Commission that President Biden asked for 
and Secretary Austin supports, every crime they looked at, every single 
one, they took and said it had to be taken out of the chain of command, 
not just sexual assault but sexual harassment, domestic violence, child 
abuse, trafficking of children, all of these related things. They 
looked at these and said these kinds of cases all need to be taken out. 
They didn't look at murder. They didn't look at the other serious 
crimes because it wasn't their mission.
  I stand ready to work with you, Senator Sullivan, on a bipartisan, 
commonsense solution, but to say that just

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because you have the chairman and the ranking member, that somehow you 
have the moral authority here--I disagree. I disagree because we have 
66 Members on this bill and another 5 or 6 who would vote for this. So 
that is about 70 Members who have stated they want to do this bright 
line.
  I have been very forthright with every Senator whom I have spoken to 
about why this bill is written the way it is. We don't want to 
marginalize women. We don't want them to be perceived as getting 
special treatment. We just want to professionalize the whole system.
  I can tell you, when we talk to commanders who are fighting wars in 
Iraq and Afghanistan and they have to do the analysis of a highly 
complex crime, it distracts them from the work of training troops and 
winning wars. So why not give these hard issues, just the felonies, to 
the smartest military prosecutor we can find?
  Why not fix the system for all plaintiffs and all defendants? Why 
just draw out just one set of plaintiffs and one set of defendants?
  I know this will not undermine good order and discipline because 
Secretary Austin said, taking out sexual assault-related crimes does 
not undermine good order and discipline; it does not undermine command 
and control. When asking the Chairwoman of this Commission whether 
taking out serious crimes would undermine command and control, she said 
absolutely not. So I believe this is the right answer. I have believed 
it was the right answer for 8 years.
  Every year, I have asked my colleagues to look at the bill, study the 
bill, give me questions on the bill. When colleagues have wanted to 
shave off crimes because they thought they didn't rise to the level of 
a serious crime, like a bar fight, we have taken it out. We took out 
all military crimes because the commander has a unique understanding of 
those crimes. We have worked so hard for 8 years to do this one 
solution, and to imply that it is all new or it is only about this one 
set of data is so inappropriate and wrong.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Hassan). The Senator from Alaska.
  Mr. SULLIVAN. Madam President, I just want to again compliment my 
colleague from New York, who has worked this issue hard. It is an 
emotional issue. I think we all have good intentions on this issue. We 
all want to get to the right answer for men and women in the military 
as it relates to these crimes and still have a force. As she said, it 
is the best military fighting force in the world.
  I think we are going to have a good debate on this tomorrow, and I am 
certainly committed to continuing to work with Senator Gillibrand on 
these issues as they relate to the military and as they relate to the 
civilian world. They are enormously important, and I take them very 
seriously.
  Again, I want to applaud her for her passion, her focus, her 
commitment. We wouldn't be this far in this debate at all if it weren't 
for her, and I have a lot of respect for that.
  I yield the floor.
  Mrs. GILLIBRAND. Madam President, I just want to thank the Senator 
and my colleague for his tireless work on this issue, and I do stand 
ready to work with him because I know how much he cares about the 
issue. He has led great reforms in his State of Alaska, and I believe, 
if his voice were lent to this issue, it would be unanimous.
  So I thank the Presiding Officer, and I thank my colleague from 
Alaska.

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