[Congressional Record (Bound Edition), Volume 159 (2013), Part 12]
[Senate]
[Pages 17109-17112]
[From the U.S. Government Publishing Office, www.gpo.gov]




                    MILITARY JUSTICE IMPROVEMENT ACT

  Mrs. GILLIBRAND. Mr. President, I rise today to talk about an 
amendment I plan to introduce to the National Defense Authorization Act 
next week. This is an amendment known as the bipartisan Military 
Justice Improvement Act.
  I thank my colleagues on both sides of the aisle for their leadership 
in this effort. As we have said from the beginning, this is not a 
Democrat nor a Republican idea. It is good, plain old common sense. It 
is the right idea necessary to protect the men and women who fight for 
our country and our values in uniform every single day. So I thank the 
broad coalition of supporters for their leadership--former generals and 
commanders, veterans, advocates--who are making their voices heard so 
that they know these horrible crimes aren't going to happen to someone 
else; that the justice system we build is one of which they are 
deserving. They are urging Congress to use its responsibility of 
oversight and accountability, to use their role head-on, by finally 
creating an independent military justice system which gives survivors 
of these horrific acts of violence a fair shot at justice--a system 
free of inherent bias and conflicts of interest that currently exists 
within the chain of command, that will enable survivors to come forward 
and to hold their perpetrators accountable.
  The strong and growing bipartisan coalition of Senators, survivors, 
veterans, retired generals, commanding officers, and advocates is 
showing this is not only free from partisan politics and ideology, but 
it is a promilitary piece of legislation which actually strengthens our 
military readiness, strengthens unit cohesion, and strengthens good 
order and discipline.
  This week began with all Americans saluting our veterans, honoring 
our solemn commitment to the brave men and women who join the Armed 
Services for all the right reasons: To serve our country, defend all 
that we hold sacred, and make America's military the best the world has 
ever known.
  These men and women put everything on the line to defend our country. 
Each time they are called to serve, they answer that call. But too 
often these brave men and women find themselves in the fight of their 
lives--not on some foreign battlefield in another place against an 
unknown enemy but within their own ranks, on this soil, among men and 
women with whom they serve. They are victims of horrific acts of sexual 
violence.
  Sexual assault in the military is not new, but it has been allowed to 
fester. It has been festering in the shadows for far too long, and when 
our commanders for the past 25 years have said there is zero tolerance 
for sexual assault in the military, what they really meant was there is 
zero accountability--and that is the problem we are facing--going back 
to the Secretary of Defense under Dick Cheney in 1992. He uttered those 
words: ``Zero accountability.'' Every Secretary of Defense has since 
that time said ``zero accountability.'' But our system of justice in 
the military is broken, and our commanders are the ones who hold all 
the cards about whether these cases can go forward.
  There are those who argue that moving these decisions to independent 
military prosecutors will somehow undermine good order and discipline. 
If you had 26,000 cases of unwanted sexual

[[Page 17110]]

contact, rape, and assault in the military last year alone, you do not 
have good order and discipline.
  Our allies with whom we fight side by side in every conflict--Israel, 
the UK, Canada, Australia, the Netherlands, Germany--have all already 
made this decision to say serious crimes deserve the objective review 
of trained military prosecutors. They should not rest in the chain of 
command. They should not rest where bias is possible, where conflicts 
of interest are rampant. It should not be there because the scales of 
justice are blind. That is the whole point of the American justice 
system: Blind justice. Not tipped for the defendant, not tipped for the 
victim. Blind, objective.
  We have a Defense Department panel that is actually taking up 
evidence on this issue. They had a hearing. They asked members from our 
allies to come and testify about when they made this change. When you 
took this decisionmaking out of the chain of command, what happened? 
Did you have a falling off of good order and discipline? They testified 
no. The director-general of the Australian Defense Force Legal Service, 
Paul Cronin, said that Australia had faced the same set of arguments 
from their military leaders in the past.

       It's a bit like when we opened up to gays in the military 
     in the late 1980s. There was a lot of concern at the time 
     that there would be issues, but not surprisingly there 
     haven't been any.

  There are those who argue that somehow our commanders would no longer 
be accountable. Let me be clear about this. There is nothing in this 
bill that takes commanders off the hook. They are still responsible, 
solely responsible, for maintaining good order and discipline, for 
setting the command climate, for saying these rapes are not going to 
happen on my watch and, if they do, victims can come forward and know 
they will be protected. They are responsible for making sure there is 
no retaliation.
  But you know what. Last year alone, of those 3,000 brave survivors 
who did come forward and report what happened to them, 62 percent were 
retaliated against--62 percent. That means those command climates 
failed to protect victims telling their commanders I have been raped; I 
have been sexually assaulted; I have been brutalized, and justice has 
to be done.
  What does retaliation look like? Commanders saying things such as: It 
is your own fault; you are to blame; you are the problem. If you report 
this crime, I am going to write you up on drinking or adultery. Do you 
really want your military career to end?
  For so many victims, that is what happened; they are forced out of 
the military. All they want to do is serve our country, some of our 
best and brightest. We are losing them because justice is impossible 
for them.
  Some opponents say this reform will cost too much money. One estimate 
is that if you had enough lawyers to do all this legal work, it might 
cost you $113 million, $4,000 a victim. That is an absurd argument. Are 
you really telling me it costs too much to prosecute rapists in the 
military? Are you really telling me it costs too much to have enough 
lawyers to take these cases to trial? Are you really telling me it 
costs too much to have a criminal justice system that honors the men 
and women who serve in this military? You cannot possibly be saying 
that. You cannot possibly be saying that.
  It is also an argument that makes no sense. Do you know how much it 
costs our military to have 26,000 sexual assaults, rapes, and unwanted 
sexual contacts every year in our military? Do you know what that 
costs? The RAND Corporation actually did an estimate. They said having 
this kind of rampant sexual assault, rape in our military, cost the 
military--because they lose so many of these good men and women there 
have to be new people retrained--$3.6 billion last year alone. That is 
the cost. That is a cost we should not be willing to pay.
  Last argument. Our opponents say that commanders will actually move 
more cases forward that prosecutors wouldn't. That is not true because, 
again, if you have 23,000 cases that are not being reported and you 
create an objective criminal justice system, you are going to have more 
reporting. With more reporting, you are going to have more cases going 
to trial, many more cases than any argument that there might be an 
aggressive commander here or there. Many more cases will go to trial 
and end in conviction if you create an objective system.
  Every single year the DOD does estimates; they estimate what is 
actually the incident rate of sexual assault in the military. Last year 
they had confidential surveys men and women filled out. Based on that 
confidential survey, they estimated there were 26,000 cases last year 
alone, sexual assault, rape, unwanted sexual contact. Of that number, 
only 2,558--that is the 1 in 10--sought justice by filing unrestricted 
reports. Of those 2,500 cases, 300 went to trial. So you are really 
talking about 1 in 100 cases end in justice. That is an abysmal record. 
We owe so much more to the men and women who serve in our military, so 
much more to those who will even die for this country. A chain of 
command oriented system that produces only 302 convictions of 2,558 
actionable reports is simply not holding enough alleged assailants 
accountable under any standard. One in one hundred cases ending in 
conviction is not good enough under any standard.
  Further, an independent system will protect not just the rights of 
the victim but an accused who may well be innocent, because when a 
commander is the only decisionmaker and they may know the victim and 
they may know the perpetrator or the accused and they have a reason to 
deal with this case in a way that is reflective of his or her bias, 
what you are creating is an unjust system. Justice must be blind.
  I have not come to this conclusion for this fundamentally needed 
reform lightly. But if you listen to the survivors, if you listen to 
what happened to them, where the breach in the system is, where the 
failure of trust occurred, there is no possible reform that does not 
include taking it out of the chain of command.
  What I would like to do, as my colleague Senator Grassley has just 
joined me on the floor--Senator Grassley is one of our greatest 
champions on this bill. He has looked at this problem from the 
perspective of common sense. He has looked at this problem and said you 
cannot possibly have a system rife with bias and conflicts of interest 
and expect justice will be done. I am going to yield to my colleague 
when he is ready. He wants to address another issue.
  I yield to my colleague.
  The PRESIDING OFFICER. The Senator from Iowa.


                              HEALTH CARE

  Mr. GRASSLEY. Mr. President, Webster's dictionary defines the word 
success as ``the correct or desired result of an attempt.'' I want to 
discuss the definition of the word success as we consider the 
Affordable Care Act.
  On the day the bill was signed into law, President Obama said the 
following:

       Today we are affirming that essential truth, a truth every 
     generation is called to discover for itself, that we are not 
     a nation that scales back its aspirations.

  Such grand words for where we are today on that piece of legislation. 
Today the success of the law that now bears his name, ObamaCare, is 
defined in much more meager terms. Today success is when the folks at 
Health and Human Services got up this morning, ObamaCare had not shut 
down, and when the folks at HHS go to sleep tonight, their day will 
have been a success if ObamaCare did not have to shut down.
  Think of all that, think of all that we have been through to this 
point after 4 years, the fight over the bill and the extreme 
legislative means used to pass it through Congress. Then think about 
the 2010 and 2012 elections. Think about the Supreme Court decision 
that effectively repealed half of the law's coverage. Think of all the 
changes made to the law through regulation to make sure ObamaCare 
launched. Think of the postponing of the employer mandate. Think of the 
postponing of lifetime limits. Think of the impact this law has had on 
our economy. It has had quite an impact on the economy--people losing 
jobs, people losing health insurance they currently have, because if

[[Page 17111]]

you like what you have you may not be able to keep it. Let's talk about 
that issue for a minute.
  ``If you like what you have, you can keep it'' was the promise the 
President made to the American people on at least 36 separate 
occasions. It is a great sound bite. It is easy to say. It rolls easily 
off the tongue.
  It is also not true. It was never true. It was obviously not true 
when the law was written. It was obviously not true when the first 
proposed regulation came out. This is what I said on the Senate floor 
September 2010. Quoting myself:

       Only in the District of Columbia could you get away with 
     telling the people if you like what you have you can keep it, 
     and then pass regulations 6 months later that do just the 
     opposite and figure that people are going to ignore it.

  It is not that I have some magic crystal ball. Simple--we all knew 
it. The administration certainly knew the day would come when millions 
of people would receive cancellation notices of their insurance policy. 
Now my constituents clearly know it. I have heard from many Iowans who 
found out the hard way that the President made a bunch of pie-in-the-
sky promises that he knew he couldn't keep, constituents such as this 
one from Perry, IA, saying:

       My husband and I are farmers. For 9 years now we have 
     bought our own policy. To keep the costs affordable our plan 
     is a major medical plan with a very high deductible. We 
     recently received our letters that the plan was going away.
       Effective January 1, 2014, it will be updated to comply 
     with the mandates of ObamaCare. To manage the risk of much 
     higher premiums, our insurance company is asking us to cancel 
     our current policy and sign on to a higher rate effective 
     December 1, 2013 or we could go to the government exchange.
       We did not keep our current policy. We did not get to keep 
     our lower rates. I now have to pay for coverage that I do not 
     want or will never use. We are not low-income people that 
     might qualify for assistance. We are the small business owner 
     that is trying to live the American dream. I do not believe 
     in large government that wants to run my life.

  Or a constituent living in Mason City, IA:

       My wife and I are both 60 years old and I have been covered 
     by an excellent Wellmark Blue Cross/Blue Shield policy for 
     several years. It is not through my employer. We selected the 
     plan because it had the features we wanted and needed . . . 
     our choice. And because we are healthy we have a preferred 
     premium rate. Yesterday we got a call from our agent 
     explaining that since our plan is not grandfathered, it will 
     need to be replaced at the end of 2014. The current plan has 
     a $5,000 deductible and the premium is $511 per month. The 
     best option going forward for us from Wellmark would cost 
     $955 per month--a modest 87 percent increase--and have a 
     $10,000 deductible.
       And because we have been diligent and responsible in saving 
     for our upcoming retirement, we do not qualify for any 
     taxpayer-funded subsidies.

  These are just two of many letters, emails, and phone calls I have 
received from Iowans. Thousands have contacted me asking what can be 
done now that we clearly see that what the President sold the American 
people was a bag of Washington's best gift-wrapped hot air.
  I ask the President, I ask my colleagues here in the Senate, to look 
at all we have been through as a country, all the grandiose talk about 
the importance of this statute, and what we ultimately have is an 
optional Medicaid expansion with a glorified high-risk pool and a 
government portal that makes the DMV look efficient.
  Americans deserve better. They voted for better. But this 
administration will somehow trudge ahead; keep the doors open; 
thousands of people enrolled instead of millions. They just released a 
number this week for the 36 States using the malfunctioning Federal 
exchange: fewer than 27,000 people. Including people who have not 
actually committed to purchase the plans--those who have put it in 
their shopping cart--less than 27,000 people. That is about 19 people 
per day per State. So the administration will limp along with this 
pitiful signup process hoping to get people properly assigned to health 
plans.
  If the assignment of individuals to plans fails miserably on January 
1, the administration will dig in and sort it out. If the risk pools 
are a disaster, the administration will use extraregulatory--by any 
means necessary--tools to keep this program afloat. Because for all the 
talk of this bill being--as we saw and heard the Vice President on TV--
a big expletive deal, success is not defined in the desires of 2010 but 
in making sure ObamaCare exists in some form or fashion on January 20, 
2017.
  We saw more of this digging in and sorting out on this very day when 
the President spoke. Insurance companies sent 4 million cancellation 
notices to comply with the President's law. They did it to comply with 
the law. Let's be clear about it. In other words, these insurers read 
the law, and then do you know what they did. They did what every 
company ought to do: Follow the law. Unfortunately for them, the 
President did what he has been doing for 3 years: He has taken out his 
pencil and eraser and rewritten or delayed his law on the fly when it 
is not working.
  So what does it now mean for insurers who were simply trying to 
follow the law as written, as you would expect them to follow the law? 
Let me tell you what one insurance company had to say:

       This means that the insurance companies have 32 days to 
     reprogram their computer system for policies, rates, and 
     eligibility, send notices to policyholders via US Mail, send 
     a very complex letter that describes just what the 
     differences are between specific policies and ObamaCare 
     compliant plans, ask the consumer for their decision--and 
     give them a reasonable time to make that decision--and then 
     enter those decisions back into their system without creating 
     massive billing, claim payments, and provider eligibility 
     list mistakes.

  That was a quote from the consultant who was commenting on what the 
President did today by delaying or by making sure you could keep your 
program.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent for 4 more 
minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRASSLEY. So the only thing the President has accomplished with 
his announcement today is that he is delaying his broken promise for 
another year. I have to wonder: What will it take for him to admit his 
law is not working and at least call for a full delay?
  Remember how all these big health insurance companies back in 2009 
got behind the President's program for nationalizing our health 
insurance program. They put up a lot of money to sell it. Their 
lobbyists lobbied for it. What they ought to do is tell the American 
people what a big mistake they made because they are getting stuck with 
it right now--as I just quoted from this consultant from an insurance 
company.
  It is time for us to admit that ObamaCare has not achieved the 
correct or desired results of an attempt--in other words, the 
definition of success as I stated earlier in my remarks. It has not 
been a success by any measure, unless, of course, you lower your 
standard to the point that the mere act of keeping the doors open is a 
success. How sad is it that after all we have been through--and we have 
been through a lot. Maybe, just maybe, it is time to admit that the 
massive restructuring has failed. It may be that partisanship has 
failed. Perhaps it is time to sit down and consider commonsense, 
bipartisan steps we could take to lower costs and improve quality. 
Perhaps we could enact alternative reforms aimed at solving America's 
biggest health care problems, such as revising the Tax Code to help 
individuals who buy their own health insurance; allowing people to 
purchase health coverage across State lines and form risk pools in the 
individual markets; expanding tax-free health savings accounts; making 
health care price and quality information more transparent; cracking 
down on frivolous medical malpractice lawsuits; using high-risk pools 
to insure people with preexisting conditions; giving States more 
freedom to improve Medicaid, such as Rhode Island got a few years ago 
and which seems to be a success; and using provider competition, 
consumer choice to bring down costs in Medicare, throughout the health 
care delivery system. The American people need to know this failed 
program is not the only answer.

[[Page 17112]]

  I yield the floor.
  I thank the Senator from New York for yielding to me. I forgot to say 
that earlier.
  The PRESIDING OFFICER. The Senator from Connecticut.

                          ____________________