[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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