[Congressional Record Volume 167, Number 214 (Monday, December 13, 2021)]
[Senate]
[Pages S9104-S9107]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                               EAGLES Act

  Madam President, today, I come to the floor to once again talk about 
the tragic shooting that occurred at Marjory Stoneman Douglas High 
School in Parkland, FL, now a long time back--February 14, 2018--and 
the Justice Department's response to it.
  Part of my oversight work is to see that the laws are faithfully 
executed. Before I get to that, I want to express, as we all have done, 
I am sure, many

[[Page S9105]]

times, our condolences to those victims and families of the school 
shooting in Michigan last month. The shooting was an act of evil, and 
we ought to pray for the affected victims.
  Recently, the Justice Department reached a settlement with the 
families involved in the Parkland shooting for a reported $130 million. 
The school shooting was another evil act. It took the lives of 17 
innocent students and teachers. Based on reports, the Justice 
Department settled because the FBI failed to properly investigate tips 
warning Federal law enforcement personnel about the coming attack that 
happened on February 14.
  This was a concern of mine from the beginning. Even though the 
Justice Department has settled the matter, the Department hasn't been 
fully transparent with the Congress on this issue, and they ought to be 
because this taxpayers' money--however it is used, the public ought to 
know it. The public's business ought to be public.
  I am going to highlight some of the oversight steps that I have taken 
and how the FBI still hasn't done what they said they need to do.
  Two days after the shooting, while I was chairman of the Judiciary 
Committee, I wrote to the FBI asking about its failure to act on tips 
that they had received about the dangers that this shooter might cause 
against the public at large. I also wrote to Google about the threats 
made in a YouTube comment that the shooter apparently made.
  After that, I brought the FBI in to brief the full Judiciary 
Committee on February 23, 2018. That was just 9 days after the accident 
happened--the shooting happened. It was not an accident; it was 
intended. I am sorry I used the word ``accident.'' I did the same thing 
with Google and Facebook staff to discuss their cooperation with law 
enforcement.
  On March 14, 2018, I led a full committee oversight hearing to hold 
the Justice Department and the FBI accountable for their failures. In 
the FBI briefing and at the committee's March 14, 2018, hearing, then-
FBI Deputy Director David Bowdich said that the FBI had begun a review 
of the internal process failures. Those failures related to the intake 
procedure for call-in tips and what transpired in the Parkland case in 
regard to those call-in tipoffs.
  For months after the hearing, my staff asked for updates regarding 
the FBI's investigation report. In May 2018, they were told--my staff 
was told it would be final by approximately mid-June 2018.
  On August 27, 2018, I wrote to FBI Director Wray noting that up to 
this point, ``Committee staff have requested a copy of the report seven 
times from the FBI.'' Here we are now, 3 years later, 2021, and the FBI 
still hasn't produced the report to Congress.
  Time and again, the Justice Department and the FBI have failed to 
live up to the standards of transparency required of them. The Parkland 
shooting and the Department's response to it is another example from a 
growing list of shortcomings.
  Simply put, there is no basis for the Department and the FBI to 
withhold the Parkland report from Congress, and by withholding it from 
Congress, they are withholding it from the American people. That is 
especially true for those families who suffered the tragic loss. 
Transparency brings accountability, and the more the Department fights 
that principle, the brighter light will be shined on them.
  Going forward, while we can't take back the terrible events of that 
day, we can and we must take steps to make sure such horrific acts 
don't ever happen again. That is why earlier this year, along with a 
bipartisan group of Senators, I introduced a bill that I call the 
EAGLES Act. It is the EAGLES Act because that is the mascot of the 
Parkland High School.
  The EAGLES Act will help fund and reauthorize the U.S. Secret 
Service's National Threat Assessment Center. That is where the U.S. 
Secret Service studies targeted violence and proactively identifies and 
manages threats before they result in more tragedies. It would also 
establish a Safe School Initiative to look at school violence 
prevention and expand research on school violence.
  The EAGLES Act is a commonsense bill supported by over 40 State 
attorneys general and representatives from both sides. In other words, 
for decades, the Secret Service has been instructing people how to 
recognize people who may be a threat to the public at large or a threat 
to themselves so that there can be intervention. So if we do the same 
thing for people in education--the school teachers, the administrators, 
other support staff--they could have the same training that the Secret 
Service gives to other people but not to school people. Then maybe we 
can have interventions on future school shootings so that they don't 
happen again.
  I ask and encourage all of my Senate colleagues to help pass this 
bill.
  Then, on a shorter version of another subject, I would like to say to 
my colleagues, last week, all Republican members of the Senate 
Judiciary Committee sent Attorney General Garland a letter. We said he 
should withdraw his memo from October 4 that made parents feel like 
domestic terrorists for going to local school board meetings to express 
their views on anything that they have a constitutional right to have 
their express views on, and there is no limit in the Constitution. 
Also, the members of this Senate Republican minority agreed that true 
criminal acts should be prosecuted.
  Now, unfortunately, the Attorney General is going in the wrong 
direction. A whistleblower revealed that FBI's Counterterrorism 
Division is involved in the Department of Justice's effort of 
intimidation and is keeping track of what goes on at local school board 
levels, whether it is criminal or not.
  This flies in the face of what Attorney General Garland testified to 
the Judiciary Committee. The Attorney General has insisted to the 
committee that his instructions to law enforcement have nothing to do 
with stopping parents from criticizing school boards and that he 
doesn't think parents are domestic terrorists, but his own FBI doesn't 
see it that way.
  Last week, one of my colleagues on the Judiciary Committee defended 
the Attorney General and his memo. That member talked about school 
board members getting angry emails and being threatened. If the facts 
discussed by my colleague rise to being crimes, they should--they sound 
like the sort of things local law enforcement can handle just fine on 
their own. There is no need for FBI involvement or National Security 
Division involvement, which ought to be involved with strictly 
terrorism.
  But we should all agree that the FBI's Counterterrorism Division 
should have nothing to do with it. If you are a parent who is upset 
with how your child's school is being run, you should be able to say so 
to the very school board making decisions on how that school should be 
run. But will the FBI's Counterterrorism Division keep a record of what 
you say at the school board meetings? If so, that ought to concern all 
of us. I have gotten many letters from constituents worried about this 
sort of thing.
  Mr. Attorney General, parents are not terrorists, not domestic 
terrorists. You said so yourself; now prove that you mean it. So the 
simple way to prove it is, call off the FBI's Counterterrorism 
Division. Withdraw your October 4 memo.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.


                   Unanimous Consent Request--S. 1520

  Mrs. GILLIBRAND. Madam President, I rise today to once again call for 
every Senator to have the opportunity to cast their vote on the 
Military Justice Improvement and Increasing Prevention Act, which was 
unceremoniously and undemocratically removed from the NDAA behind 
closed doors.
  I started calling for an up-or-down vote on this bill on May 24 
because I feared that this would happen and that the NDAA would not do 
enough to address the epidemic of sexual violence and serious crimes in 
the U.S. military. Now that we have seen the text, it is clear that 
those fears were well-founded.
  Committee leadership has overridden the will of a filibuster-proof 
majority in the Senate and a majority of the House, who called for real 
reform that would have moved serious crimes to independent military 
prosecutors. Instead, committee leadership has codified the status quo, 
leaving commanders as the convening authority--

[[Page S9106]]

even in sex crimes cases. That is the same system that everyone 
supposedly agreed is failing our servicemembers. Unfortunately, this 
does not fix the issue of convening authority, which was the singular 
ask from the survivor community.
  The NDAA does not make the necessary changes to the military justice 
system. The change we must make--the change that survivors and veterans 
have asked for--is to remove all serious nonmilitary crimes from the 
chain of command. Commanders are not lawyers or judges, and they don't 
have training or expertise necessary to make those complex legal 
decisions.
  Our servicemembers have told us that they do not trust commanders to 
be unbiased or to deliver real justice in cases where they know the 
survivor or the accused.
  Although I have heard from my colleagues saying otherwise, the NDAA 
does not remove sex crimes or any other serious crimes from the chain 
of command. And I want to be clear about this because the American 
people and our servicemembers deserve to know the truth. The NDAA keeps 
the commander as the convening authority. Every single court-martial 
will still begin with the words: ``This court-martial was convened by 
order of the commander.''
  It tells you everything you need to know.
  The NDAA also continues to offer commanders the ability to choose the 
members of the jury panel. I want to address this point specifically 
because I have heard a few misleading statements about jury selection.
  The NDAA allows a commander who is creating the court-martial to 
handpick other members of his command to be the jury pool from which 
the jury will be formed. Our bill, on the other hand, would put this 
responsibility in the hands of an independent attorney without a stake 
in the outcome.
  Unlike what some who lack an understanding of the UCMJ have said, 
under our bill, the independent prosecutor is not the same person as 
the independent convening authority. Those are two separate military 
attorneys.
  Don Christensen, president of Protect Our Defenders, said about the 
NDAA that ``because commanders retain convening authority and 
associated powers such as selecting jury court members, commanders will 
still wield significant influence over the court-martial proceeding. 
Such influence erodes the independence of the special victims' 
prosecutor and fails to address the concerns of the survivor community 
that conflicted commanders still have too much influence over the 
military justice process.''
  The command influence does not stop with jury selection. The NDAA 
also allows commanders to oversee the preliminary inquiry. It retains 
commanders' ability to order depositions and to order warrants of 
attachment. It continues to allow commanders to grant immunity and to 
approve delays. It retains commanders' power to determine the 
incapacity of the accused and to select witnesses. It allows commanders 
to approve of findings and sentences and to order the reconsideration 
of ambiguous sentences. It also allows the commanders to grant clemency 
and to allow the accused to separate from the service instead of facing 
a court-martial--fully eluding the justice system.
  Anyone who looks at the system sees a system where the commander is 
still in charge, where their influence cannot be overlooked. There is 
no way for the prosecutors to be or to be seen to be independent under 
that system. There will be no improvement in trust or, necessarily, in 
the results.
  Today, just one-third of survivors of sexual assault in the military 
are willing to come out of the shadows to report their crime, showing a 
clear lack of trust in the current system, but 44 percent of survivors 
indicate that they would have been more likely to come forward if the 
prosecutor were in charge of the decision over whether to move forward 
with their case.
  The Military Justice Improvement and Increasing Prevention Act is the 
only provision that would empower impartial, independent prosecutors to 
make the vital decisions necessary for a criminal justice system 
shielded from systemic command influence, while allowing commanders to 
focus on what they do best: warfighting, training troops.
  I want to share the words of Retired Navy LT Paula Coughlin, a 
survivor who brought the Tailhook Symposium scandal to light 30 years 
ago. She said:
  ``The efforts to gut reform are unacceptable to the survivor 
community and must be rejected. If this effort succeeds, it will be a 
slap in the face to those who have put it all on the line this past 
decade.''
  Those survivors and the majority of my colleagues here in the Senate 
who support real reform deserve to have their voices heard.
  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 Armed Services Committee 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 such time, the 
Senate vote on the bill with no intervening action or debate.
  The PRESIDING OFFICER. Is there objection?
  Mr. REED. Madam President, reserving my right to object.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. Madam President, on military justice reform, I am pleased 
that the NDAA that we will consider this week will enact sweeping and 
historic reform that changes how sexual assault and other offenses are 
investigated and prosecuted in the Armed Forces. This bipartisan, 
bicameral compromise was achieved after tough negotiations with the 
House and also with the administration. The House voted last week 363 
to 70 to pass this bill with these reforms--an overwhelming endorsement 
of the work that we do. I look forward to a similar, strong vote in the 
Senate this week, sending these reforms to the President of the United 
States.
  As you know, there have been many proposals for improving how the 
military prosecutes sexual assault and other crimes, from Senators, 
Representatives, from the administration, and from other organizations, 
all of them with their unique merits. Bringing all this together was 
difficult and complicated, but I believe we have done so effectively.
  Our bill removes all meaningful prosecutorial authority from the 
military chain of command for the series of sexual assault offenses 
under the UCMJ, as well as for other offenses, including the wrongful 
distribution of intimate visual images, domestic violence, stalking, 
retaliation, murder, manslaughter, kidnapping, and child pornography.
  Our bill creates special trial counsel, who are highly specialized, 
independent prosecutors outside the chain of command of the victims and 
the accused. They will have exclusive, binding, and final decision-
making authority over whether to prosecute these crimes.
  Under our bill, no commander will be able to overrule the binding 
decision of a special trial counsel to prosecute or not prosecute a 
case. Similarly, our bill ensures that the special trial counsel have 
the exclusive authority to withdraw or dismiss charges or 
specifications, removing that power from commanders.
  Finally, our bill will make a large number of necessary and 
conforming amendments to the UCMJ to effectuate this reform, and I am 
sure there will be need for more of this during the 2-year 
implementation period.
  The bottom line is that the reforms contained in this bill represent 
a sea change in military justice. At the end of the day, this NDAA will 
enact the most sweeping reform to the UCMJ in decades, and that is why 
Protect Our Defenders--probably one of the most effective and vocal 
organizations founded on the premise of defending the rights of victims 
of sexual assault--said: ``The provisions included in this year's NDAA 
are the most transformative military justice reforms in our Nation's 
history.''
  Madam President, having made that statement, I will object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from New York.
  Mrs. GILLIBRAND. I would like to thank the chairman for his steadfast 
work on trying to find common ground

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here, but I disagree that ``all meaningful prosecutorial'' actions have 
been taken away from the commander. These are the actions that still 
rest with the commander, and these are meaningful: granting clemency, 
highly meaningful; grant sentencing witnesses, highly meaningful; 
granting immunity, highly meaningful; ordering depositions, highly 
meaningful; preliminary inquiries, highly meaningful; separation 
authority, highly meaningful. These are things that are essential to 
the prosecution of any case, and so if the prosecutor doesn't have the 
right to do these things, it means the prosecutor has to go ask the 
commander: May I do these things? May I call this witness? May I have 
approval for a witness at sentencing? May I have approval for this 
preliminary inquiry?
  That request alone sends the signal to survivors and to 
servicemembers that the chain of command is still in charge; that that 
independent prosecutor, while the language of the bill sounds really 
good--they are independent and their decision is binding, 
wonderful. The perception of servicemembers who understand the weight 
of convening authority, they know what the words ``convening 
authority'' mean; they know what the command ability and importance is.

  They may not receive these changes and these reforms in the way the 
chairman believes them to be seen. They may not see them as the ``most 
transformative reforms'' that have ever happened because if they still 
perceive the chain of command in charge, it may not dent their 
willingness to report these crimes. They may not have now the ability 
to report and to have a belief that they can have faith in this system.
  And so my question to the chairman is, Why didn't we take the extra 
step to do the one thing that we have been trying to do for 8 years, 
which was to make these prosecutors, these independent, specialized 
prosecutors--which is what we have been fighting for, for 8 years--
truly independent and give them all the authority the convening 
authority had?
  The only change they would have had to make is the designation of 
``convening authority'' would go from the commander to these new, 
independent, trained prosecutors. It is a simple change. It is a change 
we have begged for from the survivor community, from the veterans 
organizations, from Protect Our Defenders, the best and most effective 
vocal organization, per the chairman. We have asked for that one 
change--to be denied by this conference committee of four men in a 
closed room making the decision themselves.
  And for the chairman to get up and say that having such an 
overwhelming vote by the House of Representatives just shows how right 
they are, well, then why does 220 cosponsors in the House mean nothing? 
Why does 66 sponsors in the Senate mean nothing? Why does the 
endorsement of every veterans group in America mean nothing? Why does 
the support of 29 attorneys general mean nothing? That is my question.
  And it is such a small thing.
  So, yes, having an independent, trained military prosecutor outside 
the chain of command whose decision is binding sounds amazing. That is 
what we have been fighting for. Why not make it really independent? Why 
not take the convening authority and give it to the independent, 
trained military prosecutor?
  And, sadly, the answer is the DOD does not want to change the status 
quo. They don't want to make these changes, and so what they are 
willing to do is they are willing to put a great label on it. They are 
willing to pretend that they are doing the thing that we have asked 
them to do. They are willing to create the impression that they are 
doing the thing we asked them to do. But they know what ``convening 
authority'' means, and they retained it.
  And when asked: Please, take the convening authority, give it to the 
trained military prosecutor; please make a truly independent system, 
like all these people are asking you to do, they said no. They said no 
over and over and over again.
  And, unfortunately, our chairman did not want to disregard the views 
of the Department of Defense. And, unfortunately, that is my job, to 
oversee, to provide oversight and accountability over the Department of 
Defense, over the executive branch. That is what the Constitution 
requires this Chamber, this body, this Senate to do. We are not 
supposed to take our marching orders from the Department of Defense. We 
are not supposed to do what the generals ask us to do.
  We are supposed to look hard and fast at a problem that has plagued 
our servicemembers who give their lives for this country. We are asked 
to solve the problem, and we have put forward legislation that has the 
blessing of 66 Senators and 220 House Members and every veterans 
organizations that we know of and every single of the 29 attorneys 
general who have written a letter. We have this breadth of support, but 
it doesn't matter because it is not what the DOD wants to do.
  So, yes, having independent, trained military prosecutors who make 
decisions outside the chain of command that cannot be changed is 
definitely a step in the right direction, but it is not the independent 
review that we asked for because without convening authority, the 
perception of servicemembers, of survivors, of the men and women this 
justice system is designed to protect will be that all these rights and 
privileges sit with the commander and that these are rights and 
privileges that have value, that have ``meaningful prosecutorial 
value.''
  They are not meaningless, and if they were so meaningless, then you 
would have given it to independent prosecutors.
  That is why I will keep fighting on behalf of survivors. It is why we 
do not just say we are excited, and we go home. It is why we have not 
decided this is the moment to celebrate because, for us, it is not 
because I worry that that percentage of sexual assaults, rapes, and 
unwanted sexual contact--the 20,000 that are estimated every year--that 
the percentage of those that will be willing to come forward will not 
go up and the rate of cases will not go down and the rate of cases that 
end in conviction will not go up.
  So that is my concern. It is why I stand here gravely concerned and 
very dismayed and very disappointed that we did not take this moment in 
time to do the right thing on behalf of our servicemembers to have a 
military justice system that is worthy of their sacrifice.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alaska.