[Congressional Record (Bound Edition), Volume 159 (2013), Part 12]
[Senate]
[Pages 17244-17247]
[From the U.S. Government Publishing Office, www.gpo.gov]




                            MORNING BUSINESS

  Mr. REID. Mr. President, I ask unanimous consent that we proceed to a 
period of morning business, with Senators permitted to speak for 10 
minutes each until 8 o'clock this evening, and as I thought I said, Mr. 
President, this will be for debate only.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from California.
  Mrs. BOXER. Mr. President, what we have just seen on this floor 
tonight is just more and more of the same obstruction. This is now the 
fourth D.C. Circuit judge the Republicans have filibustered. That means 
they have not allowed us to have an up-or-down vote.
  I am not going to go into the qualifications of these people; they 
are stellar. We will have more time to debate that. But it is 
extraordinary. We never heard that the D.C. court should become a 
smaller court when George Bush was President, or any other President. 
Now, all of a sudden they want to shrink the court when, in fact, this 
is probably--I would say it is the most important circuit in the 
country, and it has a very important caseload.
  First we see that obstructionism, the filibuster of the court 
nominees, and then we see my dear friend the ranking member of the 
Armed Services Committee I think reluctantly object to moving forward 
with two amendments that are essential to the bill. There are two 
amendments; one has to do with Guantanamo, one has to do with sexual 
assault in the military.
  My friend from Oklahoma, representing the Republicans, said: We want 
an open amendment process. Just so people know what that means, when 
someone says: We want an open amendment process, it means they want to 
offer amendments that have nothing to do with the Defense bill, to this 
particular bill. Again, we are stymied.
  I was just home. People are saying: Why don't you guys get along? Why 
don't you get things done?
  We are trying. We did not have one Democrat filibuster the judges. We 
didn't have one Democrat oppose moving forward with two critical 
amendments.
  Mr. President, we see obstructionism here from my Republican friends. 
They are my friends. They are my friends, but I do not get this. This 
is a military bill. This is a dangerous world. We are bringing our 
troops back from hot spots around the world. They are still in great 
danger. We have sexual assault in the military that I am going to talk 
about that is rampant. We have so many issues we want to address. Yet 
we hear objection.
  We can only hope that in the light of day tomorrow, cooler heads will 
prevail and we can begin debating and voting on these critical 
amendments. It is puzzling. It took us days and days to do the 
compounding bill, which is a bill necessary to make sure the 
pharmaceutical outlets that compound drugs are safe. It passed the 
House. It is uncontroversial--days and days because a Senator wants to 
talk about the health care of Members of Congress.
  We better start doing the work of the people because that is why we 
are here. We cannot go down any lower in public opinion. It is 
embarrassing--9 percent of the people think we are doing a good job. At 
first I thought it is our families, but now I am even doubting they 
think we are doing a good job. I don't know who the 9 percent is, but 
thank you, thank you, thank you. It will get better when we start 
working together.
  I am very hopeful. I am going to chair the Water Resources 
Development Act conference. We are going to conference on that bill. It 
is 500,000 jobs. A bill passed the House. We have a good bill here in 
the Senate that passed. We hope to iron out our differences. I know 
Senator Murray and Paul Ryan are trying to bring us agreement on the 
budget. I pray they get that done.
  Meanwhile, we have a bill that should bring us together, the Defense 
Authorization Act. Yet what happens? Stymied. We have supremely 
qualified judges for the circuit court. What happens? They are 
filibustered. We cannot vote on them and they are left out there 
hanging, with all their qualifications. It is ridiculous.
  Something has to give.


                           Amendment No. 2181

  There are a couple of issues I have worked hard on in terms of this 
bill. I have a number of amendments, but I want to talk about two with 
which I have been very involved. One is my own amendment No. 2181, 
which is based on a bill I wrote with Senator Graham, Lindsey Graham. 
The bill is quite bipartisan. We have an amazing list of cosponsors. I 
am going to read them in alphabetical order: Ayotte, Baucus, 
Blumenthal, Blunt, Cardin, Chambliss, Collins, Coons, Donnelly, 
Fischer, Gillibrand, Graham, Hirono, Klobuchar, McCain, McCaskill, 
Murkowski, Shaheen, Tester, and Warner. This is wonderful.
  The amendment I have written is going to reform what we call the 
article 32 proceeding. In the military, when there is a sexual assault 
and the decision is made to move forward with a trial, there is first a 
pretrial investigation. This is called an article 32 proceeding. It is 
the equivalent of a civilian pretrial hearing. Even though there is 
supposed to be a rape shield law in place, it does not work. What is 
happening is these article 32 proceedings have become their own trials, 
an opportunity for the defense counsel to harass and intimidate sexual 
assault victims. In fact, according to the DOD, 30 percent of sexual 
assault victims who originally agree to help prosecute their offenders 
change their minds before the trial because they know and they told us 
they are revictimized by the process. I am going to give a few 
examples.

[[Page 17245]]

  In April 2012, a 20-year-old female midshipman at the U.S. Naval 
Academy was raped by three football players at an off-campus party. The 
young woman testified during the article 32 proceeding, where she was 
forced to endure roughly 30 hours of relentless questioning by 
attorneys for her attackers. The questioning included graphic questions 
about her sexual history and even what she was wearing under her 
clothes. Anyone who knows anything about the civilian legal system 
knows this would never, ever be allowed--never.
  In October 2008, while stationed at Marine Corps Air Station Miramar 
in San Diego, Elizabeth Lyman was raped in her barracks by another 
marine. She was 11 weeks pregnant at the time. She was forced to 
testify at two article 32 proceedings before her case was sent to a 
court-martial. This is what she said:

       My rapist hired a civilian attorney who asked me outrageous 
     questions . . . . These questions were extremely upsetting to 
     me. I had just been discharged from the hospital when I was 
     told I had to take the stand for a second time and I was told 
     I had no choice if I wanted the charges to go forward. This 
     is what has become of the procedure for article 32.

  I went to Senator Lindsey Graham because he is an expert and indeed 
an attorney. He has served in the position of counsel, and right away 
he said it was revictimization. It is wrong, it is a runaway train, and 
we have to fix it. I am so grateful to him for helping us.
  In July 2012, a 23-year-old marine named Karalen Morthole was raped 
by a master sergeant in a bar on the grounds of the Marine Barracks in 
Washington, DC. Earlier this year she testified in an article 32 
proceeding against her alleged attacker. According to her, ``The 
overall experience was painful. It was the first time since the night 
of the rape that I saw the man who hurt me. It was a terrifying and 
uncomfortable experience. I felt dehumanized being made out as a liar, 
and blamed for everything that happened to me . . . The intimidation 
tactics, the blaming, all in front of the man who raped me were 
completely overwhelming.''
  She supports this bipartisan amendment to reform article 32. She said 
people don't come forward because they know they are going to be 
revictimized, and so they walk away.
  I am very pleased we have strong bipartisan support for this 
amendment. I know we have a very big debate going on and everybody is 
torn asunder on the other issue of whether to keep the prosecution 
decisions in the chain of command for serious offenses. But on this 
one--limiting the scope of article 32--we have broad support. I am 
proud to say that I even have support of Chairman Levin and Senator 
Inhofe. We have a tremendous group of people who have helped us.
  We will have these proceedings presided over by a military lawyer 
when possible. The proceedings are going to be recorded. We will 
prevent victims from being forced to testify in these proceedings. They 
can have alternative forms of testimony instead. So these are the basic 
commonsense reforms.
  I am very happy to say that with the strong support we have from so 
many of my colleagues on both sides of the aisle, as well as the 
support of Chairman Levin, I feel very positive. But to get this done 
and stop this revictimization of people who are distraught after having 
been attacked and brutally raped and hurt, we need a bill to come up, 
and we don't need objections so we can move forward. We need to move 
forward with this bill, and I truly hope we can.
  This article 32 reform brings us all together. It brings Claire 
McCaskill and Kirsten Gillibrand together. It brings Senator Blunt and 
myself together. It is a very bipartisan reform. There are already 
several reforms in this bill we are proud of. Senator Mikulski is 
organizing us tomorrow to talk about those reforms, and this is one 
more we can add.
  In closing my remarks tonight, I wish to take on the issue of the 
Gillibrand amendment No. 2099. I am so very proud to stand with a very 
bipartisan group of colleagues in support of Kirsten Gillibrand's 
amendment. These colleagues perhaps don't agree on much. When I am on 
the same side as Ted Cruz, that is something; right? When Kirsten 
Gillibrand is on the same side as Rand Paul, that is something. It goes 
on and on down the line. We also have Senator Grassley's support.
  By the way, 17 of 20 women Senators support the Gillibrand amendment. 
I hope that is a message--that this is the right way to go, and I am 
going to explain it.
  My involvement in this is deep and long. Twenty years ago we were all 
outraged to learn that nearly 100 women and men had been sexually 
harassed and assaulted by a group of naval aviators during a convention 
of the Tailhook Association. I think a lot of us who were around then 
remember that. I was a new Senator at the time, and I was completely 
shocked at what happened. They had a gauntlet that people walked 
through. They were harassed, hurt, and distraught when it was over.
  In the wake of the Tailhook scandal, senior military leaders promised 
to crack down on the crime of sexual assault with then-Secretary of 
Defense Dick Cheney declaring a zero tolerance policy.
  I will show how many times different Secretaries of Defense--Democrat 
and Republican--have promised they were going to take care of this. 
When the military comes to lobby us against this, I say to them: When 
are you going to embrace true reform? Because for 20 years we have been 
hearing this baloney, and I will read now.
  Secretary Rumsfeld, who served from January 2001 to December 2006, 
said: ``Sexual assault will not be tolerated in the Department of 
Defense.''
  Secretary William Cohen, who served from January 1997 to January 
2001, said: ``I intend to enforce a strict policy of zero tolerance of 
hazing, of sexual harassment, and of racism.'' He said that on January 
31, 1997.
  Secretary William Perry, who served from February 1994 until January 
1997, said: ``For all of these reasons, therefore, we have zero 
tolerance for sexual harassment.''
  Secretary Cheney, who served from 1989 until 1993, said: ``Well, 
we've got a major effort underway to try to educate everybody, to let 
them know that we've got a zero-tolerance policy where sexual 
harassment's involved.''
  I wish to correct the Record.
  When Tailhook happened, I was in the House. I got to the Senate right 
after that because it was 1991, and I was elected in 1992. I continued 
my work on this when I got to the Senate. I have to be honest and say I 
believed the military when they said it would never happen again. I 
said: Well, that is it. This thing is out and it will never happen 
again. I was wrong. By the way, that is the worst thing a politician 
ever wants to say: I was wrong. Those are three words you never want to 
say: I was wrong.
  I believed the Pentagon. I thought they would take care of it. They 
have never taken care of it. Now we have Chuck Hagel, who, to my 
knowledge, is now lobbying against the Kirsten Gillibrand approach.
  Secretary Hagel said:

       It's not good enough to say we have a zero tolerance 
     policy. We do, but what does that mean? How does that 
     translate into changing anything? I want to know.

  He wants to know. I will tell him. Support the Kirsten Gillibrand 
amendment. Change and reform this. Take these serious offenses outside 
of the chain of command. It is not working.
  Leon Panetta, who served from July 2011 until February 2013, said: 
``We have absolutely no tolerance for any form of sexual assault.'' He 
didn't take anything outside the chain of command either.
  Secretary Robert Gates, who served from 2006 until 2011, said: ``This 
is a matter of grave concern. I have zero tolerance for sexual 
assault.''
  Really? Every one of these men had zero tolerance for sexual assault. 
Yet not one of them ever lived up to the promise. Sexual assault is 
running rampant. We have 26,000 cases a year, and do you know what 
percent get reported? Ten percent get reported. Do you know what 
percent of cases don't get reported? Ninety percent. We have a 90-
percent problem. There are 26,000

[[Page 17246]]

cases and only 10 percent get reported. Ninety percent don't get 
reported.
  So then you say: Why? Why is it? The answer comes back from the 
victims: Nothing will happen. We will be revictimized. We will get 
blamed. They will blame us. We will get kicked out. We have to go to 
our commander. He is not trained in this. Please change it.
  If a whole group of people who have been victimized tell you the 
reason why they will not report the crime, you ought to listen. They 
know better than any Senator. They know better than any Defense 
Department blue ribbon panel.
  Speaking of panels, there is a panel that has a funny name called 
DACOWITS, which stands for Defense Advisory Committee on Women in the 
Services. They have one job; that is to provide recommendations on 
policies relating to women in the military. Guess what. They endorsed 
the Gillibrand amendment. There was not one vote against it.
  How can Senators--and I have friends on both sides of the aisle--
stand with a straight face and say we can keep the status quo, when all 
the victims are saying no, and the one committee that has advised the 
military on women for over 60 years says no. I say listen to the 
victims, listen to the military's advisory committee. Don't listen to 
the top brass who are running around, going to everybody's offices 
trying to undermine us. Just for the record, they have not come to my 
office because they know where I stand.
  If they came to my office, the first thing I would do is look at them 
and say: What would you do if this happened to your daughter? What 
would you do? Would you tell her to report it to a commander who may be 
very friendly with the guy who did this?
  Let me tell you, there is a moment in time when you see an issue 
clearly, and it happens in funny ways. The woman who has been nominated 
to be Under Secretary of the Navy made a statement about this issue. 
When I read this statement, you will understand why the victims are so 
right.
  I know the Presiding Officer has worked hard on this issue as well. 
Dr. Jo Ann Rooney, the nominee to be Under Secretary of the Navy was 
asked the following question: In your view, what would be the impact of 
requiring a judge advocate outside the chain of command to determine 
whether allegations of sexual assault should be prosecuted?
  In other words, she was asked about the Gillibrand amendment. Should 
we take the prosecution of military sexual assault and other serious 
crimes outside the chain of command? Listen to her answer. This is the 
advertisement for the Gillibrand amendment.
  She said:

       A judge advocate outside the chain of command will be 
     looking at a case through a different lens than a military 
     commander. I believe the impact would be decisions based on 
     evidence . . .

  Can you believe that? She said: ``I believe the impact would be 
decisions based on evidence . . . ''
  I ask rhetorically: Isn't that what justice is about, decisions based 
on the evidence? She goes on to say, ``. . . rather than the interest 
in preserving good order and discipline.'' I would argue, A, you base 
these decisions on the evidence; and, B, there is no good order and 
discipline when there are 26,000 cases of sexual assault and only 10 
percent are reported.
  What kind of order is that? We have thousands of perpetrators running 
around the military, and there are thousands of victims scared to 
death. They are brokenhearted, broken down, and their spirit is broken. 
How do Senators actually stand here and say: We are going to just keep 
it the way it is. We are going to turn our backs on these victims.
  Listen to this story from a young woman in my State. I stood next to 
her and held her hand when she told this story. Stacey Thompson was 
drugged and brutally raped by a male sergeant while stationed in 
Okinawa, Japan. She reported the rape to her superiors, but her 
allegations were swept under the rug. While her attacker was allowed to 
leave the Marine Corps without ever facing trial, Stacey became the 
target of a drug investigation, and this is why. Her perpetrator 
drugged her and he dumped her on the street. He left her on the street 
after being raped and drugged. He gets out of the military scot-free 
and they start an investigation on her drug use, even though she never 
used drugs, except the drugs her perpetrator gave her.
  I stood next to this young woman. She had never told her story 
until--and it happened in 1999--until Kirsten Gillibrand put her bill 
forward.
  I want to make this point: Half of the victims are men. When I talk 
about 26,000 victims, half of them are men. These are violent crimes.
  So here is the story of Amando Javier. He was serving in the Marine 
Corps in 1993. He was brutally raped and physically assaulted by a 
group of fellow marines. Ashamed and fearing for his life, he kept his 
rape a secret for 15 years. When he finally found the courage to share 
the story with a friend, he wrote it down, and I will read some of his 
words:

       My experience left me torn apart physically, mentally, and 
     spiritually. I was dehumanized and treated with ultimate 
     cruelty, by my perpetrators . . . I was embarrassed and 
     ashamed and didn't know what to do. I was young at that time. 
     And being part of an elite organization that values 
     brotherhood, integrity and faithfulness made it hard to come 
     forward and reveal what happened.

  So it is two decades later, and not one person--not one--has been 
held accountable for this heinous crime. The perpetrators are still out 
there and they are able to recommit these horrific crimes again.
  Ariana Klay. Here is the last story. She graduated from the U.S. 
Naval Academy. She joined the Marines. She deployed to Iraq in 2008. 
Following her return from Iraq, she was selected to serve at the Marine 
Barracks in Washington, a very prestigious post. It is right down the 
street from here. At the Marine Barracks, Ariana was subjected to 
constant sexual harassment. When she tried to report it, do my 
colleagues know what her chain of command told her? ``Deal with it.'' 
That is akin to telling a little child who is being abused somewhere to 
deal with it.
  That is the culture my colleagues want to keep--``deal with it''? No. 
It is a crime. Help the person. Go after the perpetrator. Get a trained 
prosecutor in there to find out if it is true and if it is true, 
prosecute to the hilt.
  In August 2010, she was gang-raped by a senior Marine officer and his 
friend who broke into her home. Ariana, despite all the warning signs, 
reported her assault. But a Marine Corps investigation determined she 
had welcomed the harassment. Do my colleagues know why? This is what 
they said: She wore makeup and she exercised in shorts and tank tops. 
What?
  The Marine Corps did court-martial one of Ariana's rapists, but they 
never convicted him of rape. Do my colleagues know what he was 
convicted of? Adultery and indecent language. Please. How could anyone 
who listens to the victims say they are not going to vote for the 
Gillibrand amendment?
  I stood with Ariana along with a large group of colleagues, 
Republicans and Democrats, right here the other day. Her husband is a 
former Marine Corps officer and he spoke at the press conference. This 
is what he said. It is so important to listen to what he said:

       The first step to addressing sexual assault in the military 
     is to remove its prosecution from the chain of command. It is 
     unfair to expect commanders to be able to maintain good order 
     and discipline as long as their justice system incentivizes 
     and empowers them to deny their units' worst disciplinary 
     failures ever happened.

  In his statement--and it is on YouTube and I hope people will listen 
to it. In his statement, he talks about the fact that he was a 
commander and he was in the middle of war. He said, as a commander, I 
have one job to do; that is, to have a fighting machine that is second 
to none. I want you to know, when I am told to deal with sexual 
harassment or a crime of any sort, I am not trained to do it. It is a 
distraction.
  I will read the exact quote so my colleagues don't think I am 
exaggerating. He said:

       I used to feel a commander's disinterest in the law, too. 
     During my training and deployments to Iraq, I focused on 
     fighting. My life and those of my Marines depended on it.

[[Page 17247]]

     Legal issues were divisive, distracting, and confusing; they 
     made me resent those who brought them to my attention, and 
     feel bias as strong as my relationships with those involved. 
     Commanders can be forgiven for thinking war is their most 
     important job, and it should be expected that they'll manage 
     the judicial process as a side-show and an annoyance.

  This is someone who served as a commander and is telling us it is not 
right to keep loading these commanders up with all of these different 
responsibilities when their main responsibility is to fight and win 
wars.
  So our amendment, the Kirsten Gillibrand amendment, would take the 
decision about whether to prosecute serious crimes such as sexual 
assault out of the hands of commanders and give it to professionally 
trained military prosecutors outside the chain of command. If 
something, God forbid, were to happen in the Presiding Officer's office 
or my office--something very bad, some crime, upstairs in a room 
somewhere in our office--we are not trained to deal with that. We would 
immediately call law enforcement to deal with it, wouldn't we? We are 
not going to decide who is right and wrong. One person is saying he did 
it. The other one is saying she did it. People are crying and yelling 
in our office. We are not going to. It is not right. It has to be taken 
outside our office to the trained prosecutors to determine who was at 
fault. The chips will fall where they may. Maybe a Senator has a 
favorite of the two people involved in the altercation. We are not 
objective, and we are not trained for that--at least I am not. It would 
be similar to saying a CEO of a corporation should make a decision 
about whether one or more of her employees should be prosecuted for 
rape. That is not right. We don't have the decision made within the 
organization. It has to be outside.
  Under our amendment, complex legal decisions would be made by 
experienced and impartial legal experts because the decision to 
prosecute serious crimes should be based on evidence. Nothing else 
should enter into it except evidence. Jo Ann Rooney made the point for 
us. She said, essentially, watch out if you take it outside the chain 
of command, it will be based on evidence, not on discipline. Some 
discipline. Some discipline: 26,000 cases and 90 percent go unreported. 
What kind of discipline is that? It is not discipline. People are 
getting away with it. They are getting away with it.
  The men and women who risk their lives every day deserve a better 
system. I can't tell my colleagues how many victims I have met. They 
were destroyed by the system. They were destroyed by that culture. Men 
and women are begging us to act.
  Tonight we had a chance to agree we would begin debate and voting on 
this important amendment. It was objected to by the Republicans. We 
need to get to the vote. I hope when we do that we will have the votes 
necessary.
  I wish to make another point: There is a filibuster going on here. We 
are going to need 60 votes. We have over 50. Let's be clear. We have 
over 50. I am very sorry we have to get to 60, but there are those on 
both sides who are demanding that we get to 60. It is 20 years after 
Tailhook. This is our moment to make the change we should have made 
back then. It is time to stand up to all the people who say status quo, 
status quo, status quo. If the status quo was working, I would support 
it. If the status quo was working, the victims would come forward. They 
wouldn't run away and say: I can't deal with this.
  Think about the thousands of perpetrators who are running around the 
military doing this over and over. Think about when they get out and 
now they are on the street in civilian life doing it over and over 
again. If they think they can get away with this behavior--this abuse 
of power, this violence, this hurt--they are going to continue.
  I hope colleagues will make the decision to stand with us, with our 
terrific bipartisan group we have lined up behind this amendment, this 
Gillibrand amendment. I am very proud to have been working on this for 
a long time, and I think we are moving in the right direction. We are 
very close to 60 votes. I urge any colleague who might be within the 
sound of my voice, if they haven't decided, meet with a victim, meet 
with a victims' group, listen to their pleas. Listen to how smart they 
are. They understand what happened to them and they are begging us to 
stand up to the status quo, to the powerful Pentagon. We are taking on 
the most powerful organization in the world. But on this, they are 
wrong. They are right on a lot of other things, but on this they are 
wrong.
  I look forward to proudly casting my vote for the Gillibrand 
amendment.

                          ____________________