[Congressional Record (Bound Edition), Volume 159 (2013), Part 12]
[Senate]
[Pages 17642-17683]
[From the U.S. Government Publishing Office, www.gpo.gov]




        NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2014

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of S. 1197.
  The clerk will report the bill by title.
  The legislative clerk read as follows:

       A bill (S. 1197) to authorize appropriations for fiscal 
     year 2014 for military activities of the Department of 
     Defense, for military construction, and for defense 
     activities of the Department of Energy, to prescribe military 
     personnel strengths for such fiscal year, and for other 
     purposes.

  Pending:

       Reid (for Levin/Inhofe) amendment No. 2123, to increase to 
     $5 billion the ceiling on

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     the general transfer authority of the Department of Defense.
       Reid (for Levin/Inhofe) amendment No. 2124 (to amendment 
     No. 2123), of a perfecting nature.
       Reid motion to recommit the bill to the Committee on Armed 
     Services, with instructions, Reid amendment No. 2305, to 
     change the enactment date.
       Reid amendment No. 2306 (to (the instructions) amendment 
     No. 2305), of a perfecting nature.
       Reid amendment No. 2307 (to amendment No. 2306), of a 
     perfecting nature.

  The PRESIDING OFFICER. Under the previous order, there will be up to 
6 hours of debate only.
  The Senator from New York.
  Mrs. GILLIBRAND. Madam President, I rise today to speak about my 
amendment to the National Defense Authorization Act, an amendment known 
as the bipartisan Military Justice Improvement Act. I wish to start by 
thanking my colleagues on both sides of the aisle for their strong and 
unwavering leadership on behalf of our brave men and women in uniform. 
I could not be more proud of the bipartisan work that has been done to 
do the right thing.
  I thank Senator Reid, Senator Booker, and Senator Heller, the three 
most recent supporters of our bill. I thank them for their 
extraordinary leadership and determination to end the scourge of sexual 
violence in the military.
  I also thank my colleague and friend from Missouri for her unwavering 
commitment to helping victims of sexual assault. Although we disagree 
on my amendment, I remind all of our colleagues that the Defense 
Authorization Act has been made stronger in enumerable ways by Senator 
McCaskill's work, advocacy, and dedication. I also will be supporting 
her amendment today because I think the provisions in her amendment 
will add even more positive changes to the command climate and will 
help victims feel like they have a stronger voice.
  However, while the changes in the McCaskill amendment are very good, 
I do not believe they are enough to truly ensure justice for victims of 
sexual assault. For that, we essentially need impartial, unbiased, 
objective consideration of the evidence by trained military 
prosecutors, which is what my amendment will provide.
  Yesterday, I proudly stood with retired generals, leaders of veterans 
organizations, and survivors, who represent a growing chorus of 
military voices, to urge Congress to take its oversight role head-on 
and finally create an independent, unbiased military justice system the 
men and women who serve in our military so deeply deserve.
  Leaders such as retired Maj. Gen. Martha Rainville, the first woman 
in history of the National Guard to serve as an adjutant general, who 
has served in the military for 27 years, including 14 years in command 
positions, wrote to me:

       As a former commander, endorsing a change that removes 
     certain authority from military commanders has been a tough 
     decision. It was driven by my conviction that our men and 
     women in uniform deserve to know, without doubt, that they 
     are valued and will be treated fairly with all due process 
     should they report an offense and seek help or face being 
     accused of an offense.
       When allegations of serious criminal misconduct have been 
     made, the decision whether to prosecute should be made by a 
     trained legal professional. Fairness and justice require 
     sound judgment based on evidence and facts, independent of 
     pre-existing command relationships.

  Leaders such as BG (retired) Lorree Sutton, who served as the top 
psychiatrist in the U.S. Army, wrote, saying:

       Failure to achieve these reforms would be a further tragedy 
     to an already sorrowful history of inattention and ineptitude 
     concerning military sexual assault.
       In my view, achieving these essential reform measures must 
     be considered as a national security imperative, demanding 
     immediate action to prevent further damage to individual 
     health and well-being, vertical and horizontal trust within 
     units, military institutional reputation, operational mission 
     readiness and the civilian military compact.
       Far from ``stripping'' commanders of accountability, as 
     some detractors have suggested, these improvements will 
     remove the inherent conflict of interest that clouds the 
     perception and, all too often, the decision-making process 
     under the current system.
       Implementing these reforms will actually support leaders to 
     build and sustain unit cultures marked by respect, good 
     order, and discipline.

  LTG (retired) Claudia Kennedy, the first three-star female general in 
the Army, wrote:

       Having served in leadership positions in the U.S. Army, I 
     have concluded that if military leadership hasn't fixed the 
     problem in my lifetime, it's not going to be fixed without a 
     change to the status quo. The imbalance of power and 
     authority held by commanders in dealing with sexual assault 
     must be corrected. There has to be independent oversight over 
     what is happening in these cases.
       Simply put, we must remove the conflicts of interest in the 
     current system. . . . The system in which a commander can 
     sweep his own crime or the crime of a decorated soldier or 
     friend under the rug protects the guilty and protects serial 
     predators. And it harms military readiness . . .
       Until leadership is held accountable, this won't be 
     corrected. To hold leadership accountable means there must be 
     independence and transparency in the system.
       Permitting professionally trained prosecutors rather than 
     commanding officers to decide whether to take sexual assault 
     cases to trial is a measured first step toward such 
     accountability . . . I have no doubt that command climate, 
     unit cohesion and readiness will be improved by (these) 
     changes.

  BG (retired) David McGinnis, who also served as a Pentagon appointee, 
wrote:

       I fully support your efforts to stamp out sexual assault in 
     the United States military and believe that there is nothing 
     in (the Military Justice Improvement Act) that is 
     inconsistent with the responsibility or authority of command. 
     Protecting the victims of these abuses and restoring American 
     values to our military culture is long overdue.

  It is because they love the military that they are making their 
voices heard--standing united behind brave survivors. I will share some 
of those stories because it is their stories which inform some of this 
legislation.
  Kate Weber, from Protect Our Defenders, was awarded the 2013 Woman 
Veteran Leader of the Year by the California Department of Veteran 
Affairs, and Sarah Plummer came to Washington, DC, all the way from 
Colorado. Yesterday they came to courageously tell their stories so 
that their brothers and sisters in uniform get a military justice 
system that is finally worthy of their great service to our Nation.
  Sarah's story is extremely disturbing. She was raped as a young 
marine in 2003. She said:

       I knew the military was notorious for mishandling rape 
     cases, so I didn't dare think anything good would come of 
     reporting the rape.
       Having someone in your direct chain of command doesn't make 
     any sense, it's like getting raped by your brother and having 
     your dad decide the case.

  Kimberly Hanks, the brave survivor from the infamous and horribly 
unjust Aviano case, who I spoke to months ago about this issue when our 
journey began, just wrote an op-ed published this week:

       Regardless of all the promises by military leadership and 
     half measures offered in the name of reform nothing short of 
     removing the prosecution and adjudication authority away from 
     the commander and placing it with independent, military 
     professionals outside the accused's and victim's chain of 
     command will end this nightmare.

  Trina McDonald, who at 17 enlisted in the Navy, was stationed at a 
remote base in Alaska. Within 2 months, she was attacked, repeatedly 
drugged, and raped by superior officers over the course of 9 months. 
She said:

       At one point my attackers threw me in the Bering Sea and 
     left me for dead in the hopes that they would silence me 
     forever. They made it very clear that they would kill me if I 
     ever spoke up or reported what they had done.

  Listen to Army SGT Rebekah Havrilla, who served in Afghanistan and 
was raped in 2007, and said reporting the crime to her commanding 
officer to her was ``unthinkable'':

       There was no way I was going to my commander. He made it 
     clear he didn't like women.

  A1C Jessica Hinves, who was raped in 2009 by a coworker who broke 
into her room at 3:00 in the morning, said:

       Two days before the court hearing, his commander called me 
     on a conference call at the JAG office, and he said that he 
     didn't believe that [the offender] acted like a gentleman, 
     but there wasn't reason to prosecute.
       I was speechless. Legal had been telling me this is going 
     to go through court. We had the

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     court date set for several months. And two days before, this 
     commander stopped it. I later found out the commander had no 
     legal education or background, and he had only been in 
     command for four days.

  Her rapist was given the award for Airman of the Quarter. She was 
transferred to another base.
  We also can't forget that more than half of the victims last year 
alone were men.
  Blake Stephens, now 29, joined the Army in 2001, just 7 months after 
graduating high school. The verbal and physical attacks started 
quickly, he says, and came from virtually every level of the chain of 
command. In one of the worst incidents, a group of men tackled him, 
shoved a soda bottle into his rectum, and threw him backward off an 
elevated platform onto the hood of a car.
  When he reported the incident, his drill sergeant told him: ``You're 
the problem. You're the reason this is happening.'' His commander 
refused to take action.
  Blake said:

       You just feel trapped. They basically tell you you're going 
     to have to keep working with these people day after day, 
     night after night. You don't have a choice.

  His assailants told him that once they deployed to Iraq, they were 
going to shoot him in the head. ``They told me they were going to have 
sex with me all the time when we were there.''
  This is the problem: There were 26,000 sexual assaults estimated by 
the Department of Defense last year alone based on confidential 
surveys, but only 3,374 were actually reported. Of those reported, 302 
went to trial.
  So if you are starting with 26,000 estimated cases and only 302 go to 
trial, that is a 1-percent rate of conviction in the U.S. military for 
the heinous crime of degradation, aggression, and dominance of rape and 
sexual assault. One percent. And we just heard from these victims. 
There are too many command climates that are toxic, that do not ensure 
good order and discipline, that do not protect against rape and sexual 
assault, that do not create a sense that if I come forward and report, 
that justice could be done.
  In this survey--this a confidential survey--the reason victims didn't 
report is they said they didn't believe anything would be done. They 
also said they either feared or witnessed retaliation. This is the 
problem. About 23,000 cases weren't reported. It means in 23,000 
command climates, these assaults are happening and victims feel they 
will not get justice.
  So I am grateful for every reform we have put in place in this 
underlying bill. They are good, strong reforms that will help victims 
who report. But every single one of them applies only to these 3,000 
cases. They apply to the cases that are reported, where the command 
climates are sufficient that a victim feels: I can come forward. I can 
at least report these cases. In the 23,000 other cases, those victims 
don't have that confidence.
  So if we don't create a transparent, accountable system that is 
outside the chain of command, the hope of getting more victims to come 
forward and report so we can at least weigh the evidence and see if we 
can go to trial is not there. The hope isn't there. The confidence in 
an objective review by someone who doesn't know the perpetrator and 
doesn't know the victim doesn't exist.
  So while we have these 3,000 cases which were reported and commanders 
did make sure 1 in 10 went to trial--and when they did go to trial, 
there was a 95-percent conviction rate. So they are not making the 
wrong decisions about what case to try. It is just that only 3,000 
command climates were strong enough. We can't train their way out of 
this problem. There are 23,000 command climates that weren't strong 
enough, that didn't ensure justice, that created fear of retaliation. 
That is the problem.
  So without an objective system, without creating transparency and 
accountability, without saying the decider doesn't know the victim of 
the perpetrator, there is no bias, because in too many cases, as we 
heard from these stories, the perpetrators may well be more valuable to 
the commander, may well have several tours of duty under his belt, may 
well have done great acts of bravery, may well have two kids and a wife 
at home. So when that commander, looking at the case file, says: You 
know, it can't possibly have happened; it didn't happen this way; he 
weighs the evidence differently than someone objective, who is trained, 
who actually knows the difference in these crimes and knows what a rape 
is. They know rape is not a crime of romance. They know rape is a crime 
of dominance. They know rape is a crime of violence. It is not about a 
date gone badly. It is not about hormones. It is not about a hookup 
culture. It is actually a crime that is brutal and violent, committed 
by someone who is acting on aggression and dominance and violence.
  That is why the training matters. I want somebody who knows that, who 
has been trained as a lawyer, who understands prosecutorial discretion 
and can weigh evidence objectively.
  We have to look at who is advocating for this bill--our veterans 
organizations: Iraq and Afghanistan Veterans of America wants this 
reform. Vietnam Veterans of America wants this reform. Service Women's 
Action Network wants this reform. They are all speaking in one voice, 
and they say: ``A vote for an independent and objective military 
justice system is a vote for our troops and a vote to strengthen our 
military.''
  They know. They have served. They are veterans. They are no longer 
Active Duty. They can speak their mind.
  This week we released a letter of 26 retired generals, admirals, 
commanders, colonels, captains, and senior enlisted personnel, 
including two generals and two admirals known as flag officers, who are 
saying to Congress:

       We believe that the decision to prosecute serious crimes 
     including sexual assault should be made by trained legal 
     professionals who are outside the chain of command but still 
     within the military.
       This change will allow prosecutorial decisions to be made 
     by facts and evidence and not be derailed by preexisting 
     relationships, attitudes, biases, and perceptions.
       It is our sincere belief that this change in the military 
     justice system will provide the opportunity for real progress 
     toward eliminating the scourge of sexual assault in the 
     military.

  I am hopeful our colleagues will listen to these collective voices 
because nobody knows the military and what needs to be done to fix this 
broken system better than they do. Listen to the victims who have 
clearly told us over and over how a system that only produces 302 
prosecutions out of the DOD's estimated 26,000 cases of rape, sexual 
assault, and unwanted sexual contact last year must be fundamentally 
changed to restore trust and accountability.
  These men and women of America's military have 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 far-off battlefield 
against an enemy but right here on their own soil, within their own 
ranks, with their commanding officers, as victims of horrible acts of 
sexual violence.
  Sexual assault is not new, but it has been allowed to fester in the 
shadows for far too long because instead of the zero tolerance pledge 
we have heard for two full decades now, since Dick Cheney was the 
Secretary of Defense, first using those words in 1992, what we truly 
have is zero accountability.
  There is no accountability because any trust that justice will be 
served has been irreparably broken under our current system where 
commanders hold all the cards over whether a case moves forward to 
prosecution.
  There are those who argue that removing these decisions out of the 
chain of command into the hands of independent prosecutors in the 
military will diminish good order and discipline. This is not a 
theoretical question. We actually know the answer to this. Our allies 
have already made these reforms and they have not seen a diminishment 
in good order and discipline. The UK, Israel, Australia, Canada, 
Netherlands, Germany--all of them have taken the decisionmaking whether 
to prosecute the cases outside the chain of command for civil liberties 
reasons--some

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in interests of defendants' rights, some in interests of victims' 
rights--to make their justice system better. We could use a better 
justice system. We could use that transparency and accountability. We 
have a unique problem. I think this reform solves our problem.
  Director general of the Australian Defence Force Legal Service Paul 
Cronan said that Australia has faced the same set of arguments from 
military leaders in the past. Cronan said:

       It's a little bit like when we opened up [to] gays in 
     military in the late '80s. There was a lot of concern at the 
     time that there'd be issues. But not surprisingly, there 
     haven't been any.

  There are those who argue that our reform would somehow take 
commanders off the hook or that they would no longer be accountable. 
Let me be clear. There is nothing in this bill that takes commanders 
off the hook. They are still the only ones responsible for setting 
command climate, for maintaining good order and discipline, for making 
sure these rapes and assaults do not happen, for making sure there is 
no retaliation and the victim comes forward, for making sure the 
command climate is sufficient when they do come forward.
  This is a legal decision and actually most commanders never get to 
make this legal decision. Your platoon sergeant, your drill sergeant, 
they are never going to be able to be the convening and disposition 
authority. That is not their job. But they still have to maintain good 
order and discipline. They are on the hook and the underlying bill is 
strong because we make retaliation a crime to give them just one more 
tool to help them set their command climate.
  There are those who argue that this reform will cost too much. I do 
not know how you could possibly say that forwarding cases and 
prosecuting rape in the military costs too much. Our men and women in 
uniform are worth much more. Not only do these critics ignore the facts 
that we already have trained JAGs serving in our military, they 
actually ignore the financial cost of sexual assault in the military. 
The RAND Corporation has estimated that this scourge cost $3.6 billion 
last year alone.
  There are those who say commanders move forward on cases that 
civilian prosecutors will not. To claim that keeping prosecutions 
inside the chain of command will increase the prosecutions is not 
supported by the statistics. If you only have 3,000 or so cases being 
reported and 23,000 cases not being reported under the current system, 
if you change that system and those 23,000 cases start becoming 
reported cases, you will have more prosecutions, you will have more 
convictions, you will have more justice.
  The bottom line is simple. The current system oriented around the 
chain of command is producing horrible results and has been producing 
horrible results for 25 years. The current structure is producing 1 
percent of cases that go to trial. That is not good enough. It is not a 
system that is deserving of the sacrifice that the men and women in 
uniform give to our country every single day.
  It is also contrary to the fundamental values of our American justice 
system. Our justice system relies on the fact that a decision about 
whether to go to trial is never made on bias, it is always made on 
facts and evidence. It is not made on whether it is good for the 
commander. It is made on whether there are facts and evidence to prove 
a serious crime has been committed.
  For all those who say this is a radical idea and should wait until 
next year, the DOD has an advisory panel that actually has opined for 
the past 50 years on the status of women in the military. That panel, 
called the DACOWITS--that panel had a vote on these proposals. They 
voted in favor overwhelmingly, with no one against. Of the 10 votes 
that we have, 9 are former military, 4 are high-ranking generals and 
officers. The nonmilitary voice is the head of a women's law center--
knowledgeable individuals who are actually tasked by the Department of 
Defense, handpicked by the Department of Defense, to opine on the 
status of women in the military. They have voted to support these 
measures.
  Secretary Hagel has even said he places ``a great premium'' on the 
voices of this panel.
  I have not come lightly to the conclusion that we need to 
fundamentally reform our military justice system in order to strengthen 
it, but this is a commonsense proposal. It is not a Democratic idea. It 
is not a Republican idea. It is just doing what is right. If you listen 
to these survivors, veterans, retired generals, and commanders, they 
believe this change is needed. But even our current military commanders 
at the Department of Defense do not dispute the problem or the facts or 
the reason for the problem. The Commandant of the Marine Corps Gen. 
James F. Amos said earlier this year the victims do not report these 
cases because ``they don't trust us, they don't trust the chain of 
command, they don't trust the leadership.''
  We have to restore that trust. If you have too many commanders and 
too many command climates with 23,000 unreported cases where that trust 
is broken, you are not going to fix it by keeping it with the 
commanders. That is the problem. This is a fundamental problem.
  Listen to the Chairman of the Joint Chiefs of Staff, General Dempsey, 
who said that the military is sometimes ``too forgiving'' in these 
cases, admitting bias in the system toward decorated officers.
  I firmly believe it is our obligation to restore that trust. Our 
fundamental duty as Senators, as Members of Congress, is to provide the 
needed oversight and accountability over the armed services. We should 
not do what the generals are telling us to do. This is our job.
  Every time I meet with a member of the military I am overwhelmingly 
grateful for their service, for their sacrifice, for their courage. 
They deserve better. They deserve a military justice system that is 
consistent with our core, fundamental American values of objectivity, 
of truth, of evidence, of fact, and of justice.
  I urge my colleagues to support our amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mrs. McCASKILL. Mr. President, I ask unanimous consent that any time 
spent on quorum calls during this debate on the sexual assault issue be 
equally divided between Senator Gillibrand on one side and Senator 
Ayotte and Senator McCaskill on the other side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. McCASKILL. I yield 5 minutes of the time of Senator Ayotte to 
the Senator from Missouri, Mr. Blunt.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BLUNT. I thank Senator McCaskill, my colleague from Missouri, and 
Senator Gillibrand both for the effort, the time, the commitment, the 
focus they have made on this issue. They have clearly both been at the 
frontlines of changing the underlying bill.
  There are two things Senator Gillibrand said that I absolutely agree 
with. The underlying bill is strong. It is a step in the right 
direction. It is the result of our committee debate, our committee 
action. I think I heard the Senator from New York say she was 
supporting the McCaskill amendment which adds even additional strength 
to that.
  I also am supporting that amendment. I think it does make the bill 
even stronger. It says the commanders will be evaluated based on this 
as one of the factors; that no longer would this just be something if 
it happens to come up you talk about it, but the commanders will be 
evaluated based on what they did to change the command atmosphere, what 
they did to protect people against sexual assault, what they did to 
create an atmosphere where these things not only do not happen, but 
when they do happen, they are vigorously dealt with and looked to as 
something that has to be dealt with, and the commander should be 
evaluated in that way.
  There is another layer of review in the McCaskill amendment. If the 
commander disagrees with something that

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has happened in this process, they have to kick that review up another 
level. The so-called good soldier defense is no longer a defense. This 
is about this incident, this assault, this accusation, and dealt with 
solely in that way because of this additional amendment that I think 
many of us will support that will be added to what is already a strong 
underlying bill.
  Also, this amendment would allow victims to express a preference, 
whether they would have this pursued in a civilian trial or in a 
military trial, a court-martial. Those are all good additions. I think 
that is why--not only why Senator McCaskill proposed them, but the 
Senator from New York and I would be supporting that amendment.
  I believe the amendment improves what the committee did. But I think 
the committee had a full debate and a long debate and a vigorous debate 
on how important it is the commanders be involved. Senator McCaskill, 
my colleague from Missouri, has been a leader on this all her time in 
the Senate. When she came to the Senate, one of the things in her 
background was her work as a county prosecutor and, more specifically, 
a prosecutor for sexual assault cases. I have relied on her judgment as 
we looked at these issues, and I think her judgment is borne out by so 
many things we heard in the committee.
  Senator Ayotte will be speaking in support of the McCaskill amendment 
and underlying bill. Senator Fischer, a member of the Armed Services 
Committee, will also be part of that debate.
  The Armed Services Committee introduced a bill that has the most 
comprehensive legislation targeting sexual assault that has ever been 
considered by the Congress. We added to that amendment these important 
elements of another McCaskill amendment. There are 26 provisions in the 
underlying bill which deal with this issue. It was among the most 
difficult decisions I think we met, but also one of the most important 
decisions we met: the idea that commanders would have responsibility 
for the atmosphere they create.
  One of the things that was mentioned more than once was the 
integration of the Armed Forces. I stand by Senator Truman's desk, one 
of our predecessors in this Senate from Missouri. He signed the order 
that integrated the Armed Forces. President Eisenhower pursued that 
further, but only when the command structure was given absolute 
responsibility to deal with what had become a real problem. There were 
even race riots on ships, according to Senator McCain, who talked to us 
about this issue. It was when the commanders were given the 
responsibility to see that this problem was solved that it was solved.
  I think this bill, and the additional amendment I will be supporting, 
the McCaskill amendment, clarifies in new ways how important it is that 
commanders accept this as part of their command responsibility.
  The numbers Senator Gillibrand talked about are totally unacceptable. 
One of the things commanders will be evaluated on in the future will be 
what they did about changing that environment. In my view, taking them 
out of the command responsibility in this area makes it less likely, 
not more likely, that the atmosphere will change.
  I ask unanimous consent for 1 additional minute. Since Senator Ayotte 
is not here to object, I will take it from her time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BLUNT. The fact that this is in the bill and further improved, I 
believe, by the amendment, clearly says we are going to change the 
culture of the military.
  Had it not been for the hard work of my colleagues, particularly 
Senator McCaskill and Senator Gillibrand, this bill would not be as far 
along as it is. Their difference of opinion is not about solving this 
problem, because we all believe this problem is going to be solved. I 
think we all believe this bill takes a significant and strong step 
toward doing that. I feel most Senators will believe the McCaskill 
amendment adds another element to the bill.
  I am glad the defense committee, the Armed Services Committee, and 
now the U.S. Senate, are taking additional steps to solve this problem. 
It is a tragedy for every individual in the military, man or woman, who 
has been the victim of a sexual assault, reported or not. Whatever we 
can do to see that they are reported, minimized, and finally ended is 
what ought to happen. I hope this bill does that, and I believe it 
does.
  I was pleased to be part of bringing this bill to the floor, and I 
will be pleased when the McCaskill amendment is added to it today, and 
we face a new view of how this issue is dealt with.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Murphy). The Senator from Missouri.
  Mrs. McCASKILL. Mr. President, I thank Senator Blunt for his comments 
and appreciate his hard work on the Armed Services Committee as we 
tackle an issue that all of us have an emotional commitment to for all 
the right reasons.
  I thank Senator Gillibrand. We both want fundamental reform. We are 
both working as hard as we know how to get it. We have a fundamental 
disagreement on how best to obtain that goal, and I would like to go 
through some of that disagreement for the next few minutes.
  The 26 historic reforms that are in the bill are going to make our 
military the most victim-friendly criminal justice system in the world. 
In no other system does a victim get their own lawyer. In no other 
system will they have the protection, empowerment, and the deference we 
are creating for them in this bill.
  In my years of experience in handling these cases--hundreds of them 
with victims--I would have given anything if that victim had had the 
confidence of independent advice. I think it would have made a 
tremendous difference in the staggering number of victims who refused 
to go forward.
  This is the most personally painful moment of anyone's life. Make no 
mistake about it, no matter what we do in this Chamber and no matter 
what this bill accomplishes, we will never be able to get every victim 
to come forward because of the nature of this horrific crime, but we 
have to do better.
  Like Senator Gillibrand, I have talked to dozens and dozens and 
dozens of victims. I have talked to and spent hundreds of hours with 
prosecutors--military prosecutors, women and men, veterans, commanders, 
active and retired--and just as there is not agreement among all the 
women in this Chamber, there is not agreement among all the victims, 
there is not agreement among all the veterans, there is not agreement 
even among all the commanders, although most women commanders have 
acknowledged that even though this sounds seductively simple, it is 
much more complicated, and we will be creating more problems than we 
will be solving if we make the change as advocated by Senator 
Gillibrand.
  Let's get at what we are trying to do. We have no disagreement that 
there are too many of these crimes and that they are not reported 
enough--complete agreement. The goal here is how do we get more 
reporting. There is a theory that if we do this--if we take this 
decision away from any command at all to go forward, that that will 
magically have victims come forward.
  Senator Gillibrand talked about our allies. I am grateful we have 
their experience because we can look and see what happened. Our allies 
have done this, and not in one instance has reporting gone up. We know 
this is not the silver bullet because if it were, we would have seen an 
increase in reporting in all the countries that have adopted this 
system.
  The response systems panel was put in place by the Armed Services 
Committee to recommend to the Pentagon changes in this area. We know 
they have formally acknowledged that our allies--many of whom did this 
to protect defendants' rights--have not seen an increase in reporting.
  If the theory is that reporting can only go up if we do this, then 
why are we seeing a spike in reporting right now? There is a 46-percent 
increase of

[[Page 17647]]

reporting this year over last year. That is because some of the 
military are already putting in the reforms we are codifying in the 
underlying bill. They are giving victims their own lawyers. They are 
ramping up the protection, information, and deference they give 
victims. That is the single most important factor, based on all of my 
experience, that will dictate whether a victim has the courage to come 
out of the shadows, and finally that somehow doing this will stop 
retaliation. That unit is still going to know that that crime was 
reported.
  Keep in mind that currently, and under our reforms, the victim does 
not have to report to the chain of command. Right now the victim does 
not have to report to the chain of command. Many of my colleagues 
didn't realize that a victim has many places they can report this 
crime. Under our reforms, they will immediately get a lawyer and have 
that level of protection immediately. They will also have the 
information that they don't have to report to the chain of command.
  I am trying to understand how reporting, investigating, and deciding 
half a continent away--a group of lawyers making that decision--stops 
retaliation. How does that keep the people in your unit from acting 
inappropriately toward you because you have reported a crime? There is 
nothing magical about that. In most instances the word will get out.
  Let's use our common sense. Say you are back in your unit after 
having been assaulted. Which way are you going to have more protection? 
Will you have more protection if a group of colonels a half continent 
away is looking at the facts of the case or if your commander has 
signed off? Of course, if your commander has signed off, because that 
sends a message to the unit: We are getting to the bottom of this.
  Probably the most telling fact about this debate is: Is this 
happening now? Because at this time outside investigators investigate 
these cases, and outside JAGs make recommendations. We have that in our 
system now. So the question is: If these outside lawyers are 
recommending that we go forward based on their independent 
investigation, are commanders shutting them down? Are commanders 
saying: We will not go forward? No one can find me a case where that 
happened and the prosecutors said: We need to go and the commanders 
said no.
  On the other hand, over the last 2 years, there have been 93 separate 
times the outside lawyer said: You know, this case is too weak, this 
case doesn't have enough facts--93 times. You know what happened in 
every one of those cases? The commander said: We are going to get to 
the bottom of it. So almost 100 victims over the last 2 years would not 
have had their day in court under Senator Gillibrand's proposal.
  In Senator Gillibrand's proposal, when the lawyer says no, it is 
over, whereas, in our proposal, if this were to ever happen, even 
though we know this is not a problem now, we have review after review 
after review. No one is going to be able to turn a victim away from her 
day of justice without accountability, checks and balances, and 
oversight. There will be a difference in that unit because now 
retaliation is a crime and the commander is going to be evaluated on 
how they are handling this issue within their command.
  There are also practical problems--and some of my colleagues will 
come to the floor today and talk about this. There are a number of 
implementation issues that I don't think have been thought through, and 
this is the real world here. We are talking about appeals and 
challenges. We are talking about not even having enough colonels right 
now to staff this. We are talking about risking the ability to get a 
speedy trial. We are talking about eliminating the ability to plea 
bargain.
  Let me tell the Presiding Officer, having handled these cases, I 
think people sometimes make the assumption that a plea bargain is about 
copping out, it is about not protecting the victim. Talk about stories 
of victims, I can tell story after story of real people whom I dealt 
with who came forward and said: Yes, I think I can do this.
  I will never forget this one woman who came to me and said: My mental 
health counselor said that testifying in court will set me back so far 
I can't do it, but can you get something on him? In those instances, do 
you think that defense lawyer is going to plead to a sexual offense or 
even a serious offense? But many times we were able to get something on 
him so the next time, if it happened, we at least had a better shot. 
Many times plea bargains are dictated by victims. Military prosecutors 
are telling me this, that it will really limit their ability and create 
serious due process concern.
  In her proposal, this outside lawyer picks everybody--picks the 
defense lawyer, picks the jury, and picks the prosecutor. How is that 
going to stand up to a due process claim? It is not clear who picks the 
judge. That is left silent. I don't know who picks the judge. It is not 
clear. That is another question: Who is going to decide who is going to 
actually pick the judge?
  It eliminates the option of nonjudicial punishment. Take the case of 
the Air Force airman who was just recently tried in civilian courts. He 
was initially charged with a sexual offense. It was reduced to a simple 
assault. If that had been within the military, they couldn't have done 
that because it wasn't a serious offense so it goes back over to the 
convening authority within the command and then that soldier knows they 
are not going to do a trial--they can't--and all he has to do is turn 
down nonjudicial punishment.
  Some of these difficulties will be explored in more detail, as I say, 
throughout the day.
  Here is the one I don't understand. If a person believes deeply in 
the policy he or she is advocating, why in the world would that person 
then proactively limit the ability to resource it? In the language of 
the Gillibrand amendment, it actually says there shall be no funds 
authorized for this, no personnel billets authorized for this. The 
military has estimated over $100 million a year just in personnel costs 
because they have to create a completely different system outside the 
system they currently have, which will still be operative for some 
offenses that are related to the military and that are low-level 
offenses. But we have to have a whole new system for arson, robbery, 
theft, murder, and for sexual assault. Yet she proactively in her 
amendment says we can't resource it. That is truly one that makes me 
scratch my head.
  There are a lot of problems surrounding this amendment, but let me 
emphasize our goals are the same and our motives are pure. We believe--
and we believe this is borne out by the data--we will have more 
prosecutions because it will be very easy for lawyers who are a long 
way away--overworked, underresourced--to say: This is a consent case. 
It is a little messy. Everybody was drunk. Let that one go, and then it 
is over.
  Let me briefly talk about what we have in our amendment because it is 
also very important, once again empowering victims further. In our 
amendment we are going to allow victims to formally weigh in, whether 
they would prefer, if there is concurrent jurisdiction, for the 
civilian authorities to handle the case in addition or whether they 
would rather the military authorities handle the case. It strengthens 
the role of the prosecutor because it provides another layer of review 
over the prosecutor's decisions. It increases the accountability of 
commanders making this evaluation on their forms and adding that other 
layer of review. It eliminates the good soldier defense. It is 
irrelevant whether someone is a good pilot if they have sodomized or 
raped someone in the military, and our amendment will make it 
irrelevant and inadmissible.
  I thank the Presiding Officer for the time. I know we have others who 
want to visit on this, and I will be happy to be back later in the day 
to talk specifically about some of the other issues in this bill.
  I do not see anyone else here right now, so I suggest the absence of 
a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from New York.

[[Page 17648]]


  Mrs. GILLIBRAND. Mr. President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. GILLIBRAND. Mr. President, as we wait for our colleagues to join 
the floor so they can have their floor time, I wish to address a few of 
my colleague's concerns.
  Some of the technical concerns she raised--we actually took some of 
those concerns and revised them in the bill that has actually been 
presented, so some of those concerns have been actually fully 
addressed.
  For example, as to her concern about the convening authority, the 
disposition authority, our bill is very specific. The disposition 
authority is the decisionmaking authority. That goes to the trained 
military legal prosecutor, the JAG counsel, so they actually get to 
make the decision about whether to proceed to trial on the evidence.
  The convening authority, which is a different right, a different 
duty, is left intact as it is. So the convening authority still will 
decide judges, juries, and all the details of what the court and the 
trial will look like. It is two separate authorities in two separate 
places. That has been clarified in the bill so there is no concern 
there.
  One other concern my colleague raised is this issue of nonjudicial 
punishment. Our bill is very specific. We exclude 37 specific crimes, 
including all article 15 crimes, all of the crimes that one would be 
using nonjudicial punishment to enforce. If the disposition authority 
decides they do not want to prosecute the case because they don't have 
enough evidence to go forward, it goes directly back to the commander 
to use the benefit of the nonjudicial punishment to do whatever kind of 
punishment he or she thinks is appropriate.
  So those are just two technical issues my colleague raised that I 
think are very important to clarify.
  Then the third issue Senator McCaskill raised that I think is a 
misunderstanding of the bill is about this world away problem. Today, 
in our bill, compared to the current system, the reporting is the same. 
One can report anywhere. One can report to a chaplain or to a friend or 
to a nurse or to a doctor. One can report anywhere. That is not 
changing. The reporting is exactly the same.
  What also is exactly the same is the investigation. So once a person 
does report, whether to a chaplain or to a commander, investigators 
will be sent to investigate the case, whether in Iraq or Afghanistan or 
Germany or anywhere. That stays exactly the same. So it doesn't matter, 
this world away, because the investigators go to the person. It is not 
a different set of investigators; it is the exact same set of 
investigators, and the commanders are still responsible to make sure 
the investigators do their job. So the commander has to be protecting 
the victim and has to be making sure the unit is not retaliating. He 
has to make sure the investigator has access to the evidence, and he 
has to make sure the command climate stays strong with good order and 
discipline. That never changes. Those commanders are always responsible 
for good order and discipline and command climate.
  The only difference under this bill is after the investigation is 
completed and there is a file--a file of evidence--it doesn't go sit on 
an 06 commander's desk. An 06 commander is colonel and above, so quite 
a senior commander. He may not even be in Afghanistan or Germany or 
exactly where that crime has occurred. The 06 commander will look at 
the file and decide: Has a crime been committed and is there enough 
evidence to go forward?
  Instead of that commander making that decision, this bill proposes 
that it will be a trained military prosecutor, so it doesn't matter 
what desk the file goes on. What does matter is whether the person 
whose desk that file goes on is objective. What matters is that person 
is actually trained, understands the law, understands the nature of the 
crime, can weigh the evidence and make a decision based on the 
evidence, not whether he likes the victim or values or doesn't value 
the perpetrator. Those biases are what is affecting the system 
negatively today.
  So that is why the world away is not a concern, because the 
investigation proceeds exactly as it always did. The only difference is 
on whose desk it goes to make the ultimate legal decision.
  Then, lastly, back to this issue of whether commanders are being held 
accountable. Commanders are held accountable. We actually have it in 
the underlying bill. Not only is retaliation now a crime, but they will 
be measured, as Senator Blunt said, on whether their command climate is 
strong. Is the command climate strong enough to make sure these rapes 
aren't happening? Is your command climate strong enough to make sure 
retaliation of a victim doesn't happen? Is the command climate strong 
enough to make sure victims believe justice is possible?
  So they will be evaluated and commanders will be held accountable.
  I don't think it is appropriate to hold a commander accountable based 
on whether he weighs the evidence properly. That is a legal judgment. 
It is not based on whether a person is tough or not tough on these 
rapes. It is based on whether there is enough evidence to show that a 
crime has been committed. It should be a technical, legal decision, not 
a decision based on how tough one is on crime. That is not the 
measurable. It is just not the measurable.
  So commanders are going to be held accountable for their command 
climate, for good order and discipline. Whether they make a legal 
decision up at the colonel level is not determinative as to whether 
they have done their job. The commanders who are getting the 
opportunity to make those legal decisions today, they are not doing a 
bad job. Of those 3,000 cases reported, 1 in 10 went to trial. That is 
not a terrible ratio. The ones they do choose to move forward, there is 
a 95-percent conviction rate.
  Yes, I agree in those 100 cases, where the commander said move 
forward, the conviction rates weren't as high. Some of those cases had 
convictions and some did not, and those are excellent opportunities for 
the victims to be heard. But we don't want just 100 more cases going 
forward; we want tens of thousands of cases to be reported so they have 
a chance to go forward. It is the difference of thousands, and that is 
why I feel this reform is so necessary. Still, in light of all of the 
amazing reforms in the underlying bill, I think it is necessary because 
that crisis of confidence is so raw, is so real, is so present.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. KAINE. Mr. President, I rise to speak about the NDAA which is 
currently on the floor. I wish to address a couple of issues. One I am 
passionate about is the veterans unemployment rate and how it is dealt 
with in the NDAA, another is shipbuilding, another is the critical 
issue of sexual assault and misconduct and, finally, sequester.
  Before I begin, let me talk about how important this bill is. This is 
a bill the Senate has passed every year for over 50 years. We pass it 
every year, even if we can't pass a budget, even if we can't do other 
things, because it is so critical to show those who serve in the 
military that we are behind them. I have heard some indications, even 
within the last 24 hours, that because of so many amendments that might 
be possible on this bill, would that call into question whether we 
would be able to keep our streak going. If we have to be here Christmas 
Day, we need to be on the floor Christmas Day to make sure we pass this 
bill before the end of the year. It is that important. It is the most 
important bill that comes before this body, and we need to do 
everything we can to guarantee the certainty to those who serve.
  In Virginia, we are so connected to Active-Duty service and to our 
veterans. My wife and I are a Blue Star Family. This is very important 
and we have to make sure we pass this bill.
  Let me start with a personnel issue that matters a lot to me, which 
is the veterans unemployment rate. Right now it is unacceptable that 
veterans, especially enlisted, who have served in

[[Page 17649]]

Iraq and Afghanistan have an unemployment rate that is higher than the 
national average.
  A report that was issued last week by the Bureau of Labor Statistics 
states that the unemployment rate for veterans who have served since 9/
11 remains around 10 percent, which is higher than nonveterans of the 
same age. Ten percent represents 246,000 individual veterans of that 
era who want to work but don't have it.
  That is why I introduced as my first legislation in April the Troop 
Talent Act of 2013. A companion bill in the House was introduced by 
Representative Tammy Duckworth. The bills have been incorporated into 
the NDAAs in both Armed Services Committees. They are now on the floor 
and virtually identical.
  The bill represents a strategy to deal with our veterans unemployment 
rate by making sure Active-Duty military receive civilian credentials 
for the skills they obtain in the military at the moment they obtain 
them.
  The bill has a number of provisions. My colleagues on the Armed 
Services Committee were good enough to include them in the underlying 
bill. This bill will help us deal with the veterans unemployment rate, 
and that is one of the reasons I so much wanted to get to it and am so 
strongly supportive.
  Second is shipbuilding. The Presiding Officer and I both have a real 
interest in this topic, as all Americans do. It is an area of great 
importance to the State. In Virginia we manufacture the largest items 
on the planet Earth, which is the nuclear aircraft carrier, at the 
Huntington Ingalls Shipyard in Newport News.
  As the Defense Department reorients, resources its strategy toward 
Asia, we have to find the Navy bearing more and more of the operational 
burden of our military in that policy shift, and we have to continue to 
provide the Navy with adequate resources and funding through this 
provision to support that shift and to support shipbuilding.
  Unfortunately, sequestration--and I will finish with sequestration in 
a minute--poses grave dangers. So we need to do what we can to maintain 
this priority for shipbuilding. Right now the sequester has reduced our 
normal level of three carrier strikers and three amphibious ready 
groups, which weakens our readiness to deal with challenges in a very 
challenging world. We have to maintain the priorities mandated and the 
NDAA does that and that is one of the reasons I support it.
  Regarding the issue of sexual misconduct, 2014 is going to be 
remembered as a potentially historic year for a good reason in the 
military. I wish to make sure history is good and is not clouded by our 
continued inability to grab onto and reduce the issue of sexual 
misconduct.
  Earlier this year, I know Members of this body were very happy when 
Secretary Hagel and the military leadership embraced the proposition 
that women should be able to serve in the military without being barred 
by gender from any military specialty, that military specialties could 
have rigorous physical or training criteria, but that both men and 
women should be able to compete to serve in any military specialty, 
even combat-related specialties.
  We will be remembered--2014 will be remembered--for that. But that 
memory will fade by comparison if what we are really remembered for is 
we missed an opportunity, an important opportunity, to tackle the 
important issue of sexual assault.
  I congratulate Senators Gillibrand and McCaskill for all the great 
work they have done to bring this to the attention of the body and to 
look the military in the eye and say: This has to stop.
  They have said it would stop over and over for 20 years, and it has 
not. This has to be the moment when it stops, and these Senators, 
working together with us on the Armed Services Committee, have put 
together a sizeable package of reforms that I am confident will help 
this time be different.
  I also thank the brave victims who testified. I went to every hearing 
in the Senate on the sexual assault issue. Senator Gillibrand had a 
Personnel Subcommittee hearing. I was there for that entire hearing. 
Senator Levin had a hearing in Armed Services. I was there for nearly 
that entire full-day hearing. Committee markups in the Subcommittee on 
Personnel and the full committee--I have been to all the meetings.
  I have heard these victims testify. How brave they are as survivors 
to come forward and testify. I also thank survivors in Virginia who 
have come and shared their stories with me personally so I could 
grapple with what is the right mix. These survivors have done a 
wonderful job in making sure we address this issue.
  I tackled the issue of sexual assault in a way when I was Governor. 
We were treating victims of sexual assault in the civil justice system 
poorly in Virginia. We were not unique in that, but there was no excuse 
for it.
  So I impaneled a group of advocates and survivors to look at Virginia 
law and tell us what we needed to change if we were going to try to 
deal with this scourge. One of the problems with sexual assault is--
together with domestic violence--it is often a very underreported 
crime.
  If somebody breaks into my apartment, I do not hesitate to call the 
police and say: There has been a break-in. If somebody bashes my car 
windshield in, I do not hesitate to call in and say: Look, a crime has 
been committed.
  But crimes of sexual assault and crimes of domestic violence--and 
there tends to be on overlap, not completely but there is an overlap--
are crimes where there is underreporting, in both civilian and 
military, and on college campuses. So one of the most important aspects 
in any reform is to create an environment where people feel they can 
come forward with a complaint, when they have one.
  The statistics are well known. They have just been cited on the 
floor. By a statistical sampling, it has been estimated there have been 
26,000 instances of unwanted sexual conduct, of sexual assaults in the 
military, and only 3,000 have been reported. We have to make sure these 
reforms we are about to embrace help us deal with this reporting issue 
so people feel a sense of comfort.
  What we realized in tackling these issues in Virginia is that for 
people to feel comfortable with reporting sexual assaults, they have to 
have time. You cannot make them make the decision about reporting in an 
instant. There is often a psychological component about deciding what 
to do. There needs to be privacy and discretion and confidence, and 
there also needs to be advice and resources. People need to know: what 
are the avenues they have. What are the legal procedures, how do they 
look, and what are their rights if they decide to pursue a complaint.
  I support the ongoing bill that is on the floor, and I will support 
some other proposals that are out. The McCaskill-Ayotte proposal I will 
support. I support the reform for a number of reasons. It affects the 
training and evaluation of military personnel. It affects the way 
sexual assault allegations are investigated, the way they are 
prosecuted, and the way they are punished. It protects witnesses.
  An amendment Senator Warner and I got into the bill--and we will be 
adding to it on the floor--protects whistleblowers who blow the whistle 
on an unfortunate or sexually harassing climate.
  But the most important part of this bill is what the bill does for 
anyone who has been victimized by a crime of sexual assault--to create 
a climate where they can come forward and lodge a complaint.
  In the military right now there are a number of avenues whereby 
somebody who has been victimized by a crime of sexual assault can lodge 
a complaint. Unique in this form of crime, there is a restricted 
report, where someone can come forward and report confidentially. That 
is very, very important.
  But this bill adds to it what I think is the core of driving up 
reporting, which is salutary. It adds to it, also, something that would 
be unique in the military. It would exist for no other crime category, 
no other offense category. If someone complains of a sexual assault, 
they will be assigned a special victims' counsel, whose job it is to 
have their back, to hear the painful

[[Page 17650]]

story, to share the various reporting mechanisms, counseling resources 
that are available, how the crime might be prosecuted. At every step 
along the way, as that victim is becoming a survivor and dealing with 
the challenge, that special victims' counsel will be there to help them 
make decisions and give them the backup and support they need.
  This is based on a pilot project in the Air Force, a pilot project in 
the Air Force that is working. What we are finding, based on this pilot 
project in the Air Force, is even when people file complaints in a 
restricted, confidential way--they come in and say: I want to file a 
complaint, but I don't want to go against the perpetrator because I 
don't want people to know; I just want help--after they get a special 
victims' advocate and learn about the proceedings and learn about the 
protections, and they build up a bond with somebody who has their back, 
they are very likely to say: You know what, now I have the confidence 
to actually file my complaint publicly and take on the perpetrator--who 
needs to be taken on, who needs to be drummed out of the military if 
they committed a sexual assault.
  So I believe the core of getting this right is about giving victims 
an avenue where they can have the time, they can have the advice, they 
can have the privacy and discretion to understand what their options 
are and then make a decision and go forward.
  I think if we pass this bill with that special victims' counsel this 
will be the single best thing we will be able to do to tackle the crime 
of sexual assault.
  Let me conclude by saying a word about sequestration.
  A word that none of us knew before the beginning of 2013 has been 
spoken so many times on the floor of this body. No one intended for 
sequestration to happen when the votes were cast in the summer of 2011. 
Everyone was told across the board: Nonstrategic cuts to health care, 
domestic accounts, and to defense would be harmful to us. We have seen 
the harm that sequestration is doing to our Nation's military at a time 
when our military is getting more and more dangerous.
  Indiscriminate across-the-board cuts are not only hurting all kinds 
of military priorities, they are also sending the signal to young men 
and women who are thinking about military careers or who are in the 
military and deciding how long they want their careers to be--they are 
sending them a signal that Congress does not value what they do.
  We need to show the men and women of the military we value what they 
do. We need to show them by getting an NDAA bill done this year. We 
need to show them by ending sequestration. Will there be savings we can 
find in our defense spending? Of course. We ought to be looking at 
every item of government to determine whether we can do better and save 
money. But this across-the-board sequester that is grounding air combat 
wings, that is grounding carrier units, that is making us less able to 
confront a more challenging world, is not behavior befitting of the 
greatness of this Nation.
  I am a budget conferee right now, working on a budget deal. We are 
under a Senate- and House-imposed deadline to try to find that deal by 
December 13 so the appropriators can work on a budget. We will work 
diligently on that. I have an optimistic sense about finding a budget 
deal that enables us to replace this foolish sequester with a more 
strategic approach that will not hurt our military.
  Mr. President, I thank you for the time and I now yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. BLUMENTHAL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BLUMENTHAL. Mr. President, I want to, first of all, thank the 
chairman of the Armed Services Committee and the ranking member, 
Senator Levin and Senator Inhofe, for the leadership they have provided 
to this body and to our Nation in fashioning a bill, the National 
Defense Authorization Act for Fiscal Year 2014, that truly serves our 
national security and preserves and enhances our national defense.
  I want to thank my colleague Senator McCaskill for the leadership she 
has provided, along with others, such as Senator Reed and Senator 
Gillibrand, all who have focused on the issues that are raised by the 
Military Justice Improvement Act--the need to reform and strengthen our 
system of prosecuting and providing justice to the survivors of sexual 
assault.
  I have joined with Senator Gillibrand in supporting the Military 
Justice Improvement Act because I think it embodies the kind of major 
reform that is necessary to provide enhanced confidence and trust in 
this system of military justice--major change that is needed to drive 
out the scourge of military sexual assault from our Armed Forces and 
provide the men and women of our military--the strongest and best 
military in the world now and in the history of the United States--with 
a system of military justice that matches their excellence.
  The legislation before us, the National Defense Authorization Act for 
Fiscal Year 2014, provides much-needed equipment and training needed by 
our warfighters. It keeps us dominant across the globe and all of the 
domains that are necessary for our national defense. It authorizes two 
new attack submarines for the coming fiscal year, and it keeps us on 
track for developing the next generation of ballistic missile 
submarines. These weapon systems, these weapon platforms, and all that 
is contained in this act, are vitally important for the defense of our 
Nation. The debate about the Military Justice Improvement Act should in 
no way distract us from that mission to maintain and enhance the 
defense of the United States.
  This bill enables the Air Force to move forward with a new combat 
rescue helicopter that will take injured airmen and others to safety. 
In June I wrote with five of my colleagues to Gen. Mark Welsh, the Air 
Force Chief of Staff, to support the Air Force in its efforts to 
replace the current fleet of HH-60G Pave Hawks with helicopters that 
can carry more and go further, all the while keeping the fuel 
efficiency and value that the H-60 aircraft provides. This legislation 
keeps our progress underway in the development and fielding of the 
Joint Strike Fighter that will assure that our Air Force, Navy, and 
Marines are ready to respond.
  This bill has so many critical and valuable elements that should be 
at the forefront of this debate and evoke appreciation for Senator 
Levin and Senator Inhofe and the work done by my colleagues on the 
Armed Services Committee. So I am proud to support this bill. At the 
same time, Congress has a responsibility to transform the time-worn 
slogan of ``zero tolerance for military sexual assault'' into a real 
plan and strategy that will achieve that goal.
  For years and years the military has promised zero tolerance toward 
sexual assault. Yet the actual achievement has fallen short. That is 
why reporting has been so low and why the crime of military sexual 
assault is not only underreported but underprosecuted.
  The goal of the Military Justice Improvement Act is to improve 
reporting because without reporting there cannot be investigating and 
there cannot be prosecution, which means there can be no punishment and 
no prevention and protection.
  Those are the goals of this major reform: better reporting and 
enhanced prosecution to deter this horrific crime, and to make sure 
that victims are better protected and the crime itself prevented.
  This bill requires the Secretary of Defense to afford rights to 
victims of crimes prosecuted under the Uniform Code of Military 
Justice, such as protections from unreasonable delay and the right to 
be heard. This bill gives those protections even without the Military 
Justice Improvement Act. It also obligates the Secretary of Defense to 
ensure these rights are enforceable

[[Page 17651]]

and affords every victim a special victim's counsel--again, measures on 
which there is consensus provided in the bill right now.
  I am pleased that in response to my request to the defense 
appropriations committee, when this provision is authorized in this 
legislation, there will be $25 million appropriated to stand up this 
program systemwide and defensewide.
  So the legislation before us has many good things even without the 
Military Justice Improvement Act. I am proud of the reforms that are 
accomplished in this bill on which we agree. Where we disagree is on 
the proposal to take prosecutorial decisions out of the chain of 
command. That is a narrower change that many people appreciate because 
the rest of the system, which is required for the present command and 
control authority, would be essentially maintained. What is taken out 
of the chain of command is simply the prosecutorial decision so that an 
experienced, trained, objective professional can make those decisions.
  I really believe this measure, if adopted, as I hope it will be, will 
lead the military at some point--those commanders who may resist it 
now--to actually thank the Senate and the Congress for taking these 
decisions out of their hands so that they can focus on the incredible 
challenges of military readiness and preparedness, so they can do what 
they are trained to do, which is to train their men and women and 
maintain and enhance their readiness so that they can do professionally 
what is their prime mission, which is to fight wars and defend our 
Nation.
  These decisions about prosecuting sexual assault cases can be better 
made by trained, experienced prosecutors who have the expertise in 
their field that our military commanders have in their field. I think 
it will serve the entire interests of our military to make sure that 
these decisions are made by those military professionals in JAG 
offices, just as they are trained in other areas of expertise that 
require that kind of training.
  I am listening to the voices of the victims as to what will enhance 
their reporting and eliminate their fear of reprisal and retaliation. 
On Monday I was joined by four survivors of military sexual assault to 
discuss the need for reforming military justice. I wish to express my 
appreciation for Army SST Sandra Lee, Army SGT Cheryl E. Berg, Air 
Force SSgt Pattie Dumin, and Marine Corps Cpl Maureen Friedly. Each 
demonstrated that day that their shared experiences of military justice 
warrant the reforms contained in the Military Justice Improvement Act.
  I would like to share just one--Marine Corps Cpl Maureen Friedly, who 
was sexually assaulted by a fellow marine in 2006 while attending the 
Navy School of Music. She pressed charges against her attacker and 
requested an unrestricted investigation. I will now read her words into 
the Record:

       I went to an NCIS investigator who questioned me about the 
     day I was attacked and, after hearing my testimony, told me 
     that I would have to take a lie detector test to insure I was 
     not filing falsely. I agreed to it but was never asked 
     anything by my investigator again. My chain of command made 
     it very clear that they preferred my attacker, who was a 
     platoon leader, over me and supported him through everything. 
     When I graduated from the school and went to my duty station 
     in San Diego, CA, my new chain of command tried to help me 
     find out what had happened to my case as I had not heard 
     about it for several months. A few weeks passed before we 
     found that my paperwork had been mishandled, and I was told 
     that nothing could be done and my attacker would go out to 
     the fleet.
       Eventually it was found that he had sexually assaulted 
     several other women and he was administratively separated 
     from the Corps, not charged, and not given a dishonorable 
     discharge.

  Her remarks say more than I ever could about the need for enacting 
the Military Justice Improvement Act. The reforms contained in the 
measure already are a vitally important step in the right direction. 
Taking these decisions out of the chain of command is important to good 
order and discipline because eliminating the crime of sexual assault 
and providing for greater reporting is vital to good order and 
discipline. Our experience shows that it has worked when our allies 
implemented it. Whatever the claims about numbers of cases reported in 
those allies' armies, clearly they are satisfied with the way it has 
worked there.
  Finally, let me just say that I appreciate the bipartisan efforts on 
this bill on both sides. I think that eventually we will see this kind 
of reform. Whether or not it is approved today, history is moving in 
this direction, demanded and driven by the brave men and women who have 
suffered from this crime, the survivors and victims whose voices we 
have heard, and the commanders and veterans who have come forward to 
us, all of the major veterans organizations that have made their voice 
heard to us and who wholeheartedly have said: This kind of reform is 
necessary to vindicate and support the brave men and women who put 
their lives on the line for our Nation day in and day out, whose 
excellence should be matched by a military justice system that truly 
and really looks for zero tolerance and achieves zero tolerance in 
sexual assault.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Baldwin.) The Senator from Oregon.
  Mr. WYDEN. Madam President, before he yields the floor, I wish to 
commend my colleague from Connecticut in terms particularly--and I am 
going to go into some of the history with respect to this so-called 
zero tolerance policy because I think when we look back over history, 
there is a very big gap between the past pledges of zero tolerance for 
sexual assault and the realities of what we have seen. That is one of 
the key points the Senator from Connecticut has made, among many 
others. I thank him for it. It was a very valuable presentation.
  I also commend the Presiding Officer for her extraordinary work. 
Again and again, she has outlined what I think is very constructive; 
that is, the areas where there is common ground here, common ground to 
try to address an issue that I just went through with Senator 
Blumenthal. We have heard past pledges about it, and it has not really 
come to be. The Presiding Officer has done very fine work. Senator 
Gillibrand, Senator McCaskill, Senator Ayotte, I know the best, but a 
whole host of Senators have been interested in this issue. I also see 
my friend from Rhode Island Senator Reed. He and Senator Levin have 
been very interested in this issue over the years. So there has been 
plenty of good work. I think the question now really is: How are we 
going to make a fundamental break from policies that over the last 
couple of decades simply have not worked?
  Go back to the Tailhook scandal. That was in 1991. Over the course of 
a 4-day conference in Las Vegas, more than 100 Naval and Marine Corps 
aviation officers sexually assaulted 90 victims. We watched the 
Secretary of the Navy resign after Tailhook. His replacement said that 
``sexual harassment will not be tolerated'' and that ``those who do not 
get the message will be driven from our ranks.''
  Then there was the Aberdeen debacle 5 years later. Five years after 
we were told this would not be tolerated, 5 years later, we had the 
Aberdeen debacle. Army Secretary Togo West delivered remarks to the 
Senate Armed Services Committee titled ``There's a Problem, And We Mean 
To Fix It.''
  Once again, years go by, and we have another such problem. That was 
the 2003 scandal at the Air Force Academy where 19 percent of women 
cadets reported having been sexually assaulted and 7 percent reported 
having been the victim of a rape or attempted rape. The Air Force 
Secretary told Congress, ``We will not tolerate in our Air Force, nor 
in our Academy, those who sexually assault others; those who would fail 
to act to prevent assaults.''
  So, again, we heard--and certainly I am not here to doubt the 
sincerity of those who made those comments, but yet the pattern 
continues. We have a horrible set of sexual assaults, not just one but 
multiple ones. We have these pledges for zero tolerance. Yet we have 
one event after another. After the 2003 scandal, there were again the 
pledges of zero tolerance. We had the Joint Base San Antonio-Lackland 
scandal where some 30 training instructors

[[Page 17652]]

were accused of offenses ranging from improper relationships with 
trainees to sexual assault and rape. In response, the Secretary of 
Defense said--as did many of his predecessors in the military--``the 
command structure from the chairman on down have made very clear to the 
leadership in this department that this is intolerable and it has to be 
dealt with. We have absolutely no tolerance for any form of sexual 
assault.''
  So the pattern through all of these instances is ``zero tolerance. We 
will fix this.'' These comments--as I say, I do not question the 
sincerity of those who made them. These were officials in the military 
who served their country with great distinction and great valor. But 
the bottom line is the bottom line: When they said there would be zero 
tolerance, somehow those policies did not actually work as it related 
to real life for those who wear the uniform of the United States.
  Today the military officer in charge of sexual abuse education at 
Fort Hood is under investigation for running a prostitution ring. Two 
Navy football players await trial in a military court on charges of 
sexual assault. Today a West Point sergeant stands accused of secretly 
videotaping female cadets in the shower. So it seems to me that because 
of the good work of so many here--I cited the Presiding Officer; 
Senator Reed, who is managing the bill at this point; Senator 
Gillibrand; Senator McCaskill--I believe we are now in a position to 
finally make some significant changes and turn these past pledges of 
zero tolerance into a new reality that really ensures that those who 
wear the uniform of the United States do have a new measure of 
protection from sexual assault.
  In effect, this is a new zero tolerance policy, a new policy that 
says: Zero tolerance for promises that go unfulfilled. Zero tolerance 
for a culture in which these assaults are treated as something less 
than the violent crimes they are. Zero tolerance for a system that 
continues to fail so many victims.
  The Pentagon estimates that in 2012 some 26,000 servicemembers 
experienced sexual assault. Some, I know, have looked at this issue as 
sort of a glorified hazing matter, boys being boys, a discipline issue.
  Senator Fischer, one of our colleagues who has come to the Senate 
most recently, has been correct to point out this is not a gender 
issue, this is a violence issue. It is a violence issue because sexual 
assault is called assault for a reason. It is assault. We are talking 
about a violent crime that involves control and domination.
  I think it is also worth noting that somewhere in the vicinity of 
close to half of military assault victims are men. In fact, the 
Department of Defense estimates that 14,000 of those 26,000 victims 
last year were men.
  Colleagues are waiting to speak, and I would simply wrap up by way of 
saying that I think the bill, the committee bill, takes some 
constructive steps in the right direction. I wish to see it go further. 
It is why I joined a bipartisan group of colleagues to support Senator 
Gillibrand's legislation that would remove the decision to prosecute 
from the chain of command and give it to experienced, impartial 
military lawyers.
  Suffice it to say we are going to have to come to grips, colleagues, 
with this question of assault--and particularly sexual assault--in a 
variety of forums.
  This is not the place to discuss it, but yesterday Senator Cornyn, I, 
and Senator Klobuchar introduced a fresh approach to dealing with sex 
trafficking, which is also sexual assault. There will be an opportunity 
to discuss that bipartisan bill in the future.
  This is the time. This is the time to close the gap between all of 
those unfulfilled promises about how there will be zero tolerance for 
sexual assault and a new reality that affords a new measure of 
protection from sexual assault for those who wear the uniform of the 
United States. This is the opportunity we have in the Senate today and 
the opportunity we have to achieve that goal in a bipartisan manner.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. When sexual abuse occurs in a military unit or when a 
servicemember is a victim or a perpetrator of sexual abuse, we have 
failed.
  Certainly the military has failed, but Congress with its 
constitutional mandate to ``make rules for the government and 
regulation of the land and naval forces'' and to ``provide for . . . 
disciplining the militia'' shares in that failure.
  This is why the efforts of Senator McCaskill, Senator Gillibrand, and 
indeed all of my colleagues are so important and so commendable. They 
have elevated this debate and challenged this Congress and our military 
to act. They have recognized, through their passionate advocacy, that 
sexual abuse not only is a violation of an individual, but it is a 
corrosive force that can undermine the trust that is essential for the 
functioning of any military unit.
  The essence of military service is selfless service in which every 
soldier, sailor, marine, and airman must be prepared to give his or her 
life for a comrade. Sexual abuse is the antithesis of that ethic. It 
represents predatory behavior and exploitation, not selfless sacrifice 
and protection of those you serve with. It has no place in the 
military, and if not eliminated, it will insidiously destroy our 
military. No technology, no amount of military resources can assure 
military success if courage and character fail. Sexual abuse is a 
cowardly act that betrays the ethic and character of the military.
  I believe we are united on this point. This debate is about 
preventing sexual abuse, a shared goal of every Member of the Senate, 
of Congress, of the military, and of this Nation. The question is how 
best to achieve this essential goal.
  I believe it requires leadership at every stage: recruitment, 
training, evaluation, promotion, retention, and punishment. I believe 
commanders must be involved in every step. They must be responsible and 
their subordinates must recognize this responsibility and their 
authority. To remove the commander from any of these responsibilities 
will, in my view, weaken his or her effectiveness in every one of these 
dimensions.
  I had the privilege of commanding a company of paratroopers in the 
82nd Airborne Division. I was responsible directly for nonjudicial 
company-grade punishment under the Uniform Code of Military Justice. 
But it was clear to me and to my troops that the battalion and brigade 
commanders and the division commander had court-martial authority and 
would necessarily confer with their subordinate commanders in the 
execution of this authority. This reality, this authority, permeated 
everything we did and reinforced the policy orders of every commander, 
including myself.
  I will admit that my experience is decades old, and it preceded the 
integration of women into combat units such as an airborne infantry 
battalion, but the central role of the commander has not diminished. 
Moreover, the experiences of the sixties and the seventies also reveal 
a military struggling with serious and corrosive problems, principally 
racial integration and drug use. Congress ultimately dealt with these 
problems, not by bypassing commanders but by holding them, and through 
them every member of the Armed Forces, to a higher standard.
  Today the American military is the first institution anyone points to 
when noting the progress we have made in racial equality and 
opportunity. This was not always the case.

       Incidents with racial overtones plagued the Vietnam period 
     [and the post-Vietnam era]. Among the most widely publicized 
     were a race riot among prisoners in a stockade in Vietnam in 
     1968 and several incidents aboard naval vessels in the early 
     1970s.

  In one of these incidents in 1972 on the carrier Kitty Hawk, there 
was a 15-hour melee between Black and White sailors. Effectively, that 
carrier, that ship--a capital ship of the Navy--was absolutely 
ineffectual. They weren't prepared to fight the enemy, they were 
fighting each other.
  In May of 1971, there were 4 days of rioting at Travis Air Force Base 
in California ignited by racial incidents on the base; over 100 
individuals were

[[Page 17653]]

arrested and more than 30 Air Force personnel were treated for riot-
related injuries. The Marine Corps saw serious racial clashes at Camp 
Lejeune, NC, and Kaneohe Naval Air Station in Honolulu. In the Army, 
especially in Germany, there were frequent racial clashes.
  In December of 1970, a special investigating team reported to 
President Nixon on the situation in Europe and declared that black 
troops were experiencing ``acute frustration'' and ``volatile anger'' 
because of their treatment.
  Interestingly, this report cited as a major cause of this frustration 
``the failure in too many instances of command leadership to exercise 
the authority and responsibility in monitoring the equal opportunity 
provisions that were already a part of military regulations. . . . ''
  The military has made significant progress on racial opportunity. I 
am sure more can and should be done, but the progress to date has been 
driven principally by command leadership at every stage, including the 
enforcement of the Uniform Code of Military Justice.
  The point was made by Charles Moskos and John Sibley Butler, two of 
the utmost authorities on race relations in the military. In 1996 they 
wrote:

       Perhaps surprisingly, no Army regulation deals solely with 
     race relations or equal opportunity. Instead, these issues 
     fall under Army Regulation (AR) 600-20, whose broad concern 
     is ``Army Command Policy.'' This title is more than symbolic. 
     The Army treats good race relations as a means to readiness 
     and combat effectiveness--not as an end in itself. This is 
     the foundation for the Army's way of overcoming race. Racial 
     concerns are broadened into a general leadership 
     responsibility, and commanders are held accountable for race 
     relations on their watch.

  Once again, the emphasis is on commanders, not specialized legal 
procedures that bypass commanders. My best judgment is we will make the 
most progress addressing the issue of sexual abuse by holding 
commanders accountable, not by excluding them from a critical aspect of 
military life.
  Under the leadership of Senator Levin and Senator Inhofe, the Armed 
Services Committee made significant changes to provisions regarding 
sexual abuse in the military. Moreover Senators McCaskill, Ayotte, and 
Fischer will make additional changes in their proposed amendment that 
will further strengthen our commitment and ability to respond to the 
crisis of sexual abuse in the military. But it is also important to 
describe the ongoing efforts by the Department of Defense to deal with 
sexual abuse in the military.
  I am drawing on testimony of LTG Flora D. Darpino, the Judge Advocate 
General of the Army, and she described policies effective in the Army, 
but generally there are equivalent procedures in the other services.
  The Army began a major effort to combat sexual abuse beginning in 
2004 with the creation of the Sexual Assault Prevention and Response 
Program, the SAPR Program, and the implementation of restricted 
reporting. This allows victims of sexual assault to confidentially 
disclose a crime to specifically identified individuals and receive 
medical treatment and counseling without triggering the official 
investigative process.
  This program has evolved into a comprehensive effort ``fielding a 
capability of over 11,000 personnel, deployable and available 24 hours 
a day,'' to respond to the victims' needs.
  Included in the procedures available under the SAPR Program are new 
reporting options for the victim, expedited transfers, access to victim 
advocates and, most recently, access to victim counsel.
  In addition, this program has a significant educational component 
that ``saturates Soldier training from the first days of initial entry 
training to senior leader forums.'' The training focuses on bystander 
intervention and is linked to ``Army values that bond Soldiers as a 
team.'' It reinforces the military ethic of selfless service over 
predation and self-gratification.
  ``In 2009, the Army recognized the need for improved training and 
resources for the prosecution of these crimes.'' Special Victim 
Prosecutors were created in the Judge Advocate General's Corps and 
sexual assault investigators were created in the Criminal Investigative 
Division, CID. Together, these specially trained and experienced 
professionals work only special victim cases. They are able to apply 
unprecedented expertise. In addition, all JAG prosecutors and defense 
counsels have received enhanced training regarding cases of sexual 
abuse.
  With all of these changes, Lieutenant General Darpino still 
identifies the commander as the ``critical'' element. In her words: 
``The most critical element of this institutional effort, however, is 
the focus of commanders.''
  As such, she points out:

       The Army, like the other services, has moved aggressively 
     to hold commanders accountable for setting a command climate 
     that encourages reporting, deplores conduct that degrades or 
     harasses individuals, and provides a safe environment, free 
     of retaliation, for victims after they come forward. To 
     support this effort, officers and commanders are receiving 
     enhanced training at every level. Specifically, ``the 
     officers entrusted with the disposition of sexual assaults, 
     withheld to the 0-6 (Colonel) Special Court Martial Convening 
     Authority, are required to attend Senior Legal Orientation 
     Courses at the Judge Advocate General's Legal Center and 
     School with a focus on the proper handling of sexual assault 
     allegations. General officers, who will serve as convening 
     authorities, are offered one-on-one instruction in legal 
     responsibilities, again with a focus on sexual assault.''

  Most significantly, in my view, and most recently, the Secretary of 
the Army, on September 27, 2013, directed that every officer and 
noncommissioned officer will be rated on how well he or she ``fostered 
a climate of dignity and respect and adhered to the Sexual Harassment/
Assault Response (SHARP) Program.''
  Secretary McHugh and General Odierno have made it clear that 
commanders and senior leaders are responsible. Their advancement, their 
retention, their standing in the Army will rest with an annual, 
explicit, written review of their efforts to combat sexual abuse.
  I wish to return for a moment to my discussion of the racial 
challenges facing the Army while I served. Let me also return to the 
comments of Charlie Moskos, the most respected academic authority and 
also an Army veteran. In 1986 he wrote:

       More important for blacks than the new race relations 
     curriculum was the revision of the efficiency report, a 
     performance evaluation that carries a lot of weight in all 
     promotions. Starting in the early 1970s, a new category 
     appeared in the official report for officers and NCOs: race 
     relation skills. Filling out this section was mandatory and 
     the requirement was rigorously enforced. More blacks received 
     promotions. Some officers with a poor record on race were 
     relieved of command. All of this set a tone. If for only 
     self-interest, Army officers and NCOs became highly sensitive 
     to the issue of race. Today--

  He is talking about 1986.

     one is more likely to hear racial jokes in a faculty club 
     than in an officers' club. And in an officers' club one will 
     surely see more blacks.

  I think we have made great progress, finally, by focusing on the 
evaluation and efficiency reports that every officer and NCO must 
receive each year.
  Now in the context of what the military is doing to combat sexual 
assault and in the context of glaring examples of what it is not doing 
and what it is failing to do, the Armed Services Committee adopted 
provisions that should rapidly and dramatically combat sexual abuse 
within the military. The Secretary of Defense has already taken 
administrative steps to implement some of these provisions. Senator 
McCaskill will offer additional provisions with her amendment that I 
wholeheartedly support.
  It is important to recognize the comprehensive and critical nature of 
these provisions that are already in the National Defense Authorization 
Act--from improving measures to prevent sexual assault, to protecting 
victims when it does happen, and strengthening the judicial process to 
discipline those who commit such heinous crimes.
  The bill makes important changes that will improve the prevention of 
sexual assaults. First, the bill prohibits the commissioning or 
enlistment of individuals convicted of rape, sexual assault, forcible 
sodomy, or incest, or attempting to commit these offenses.

[[Page 17654]]

  Second, the bill requires the Secretary of Defense to report on 
whether legislative action is required to modify the UCMJ to prohibit 
sexual acts and contacts between military instructors and their 
trainees.
  The next step is to ensure that all servicemembers understand how 
they can and must prevent and respond to incidents of sexual assault. 
Each of the services is conducting a variety of training programs on 
sexual assault prevention and response. This bill requires the 
Secretary of Defense to conduct a comprehensive review of the adequacy 
of this training and to then prescribe in regulations such 
modifications to address any inadequacies identified by this review. 
The bill also requires the Secretary of Defense to review the adequacy 
of the training, qualifications, and experience of individuals assigned 
to positions responsible for sexual assault prevention and response, to 
retrain or reassign any individual who does not have adequate training 
or qualifications, and to improve the requirements for selection and 
assignment to sexual assault prevention and response billets.
  Servicemembers who have been sexually assaulted or raped should have 
every resource available to report the incident, to receive care, and 
to see that justice is done. In crafting this bill, the committee 
acknowledged that many victims do not report such incidents because of 
a fear of retaliation from their peers and leaders. So this legislation 
includes a provision that makes retaliation against servicemembers for 
reporting criminal offenses a punishable offense under the Uniform Code 
of Military Justice. This will ensure that both victims and witnesses 
to such crimes are able to report the occurrence without facing 
retaliatory action or threat of such action. This bill also requires 
the DOD inspector general to review and investigate allegations of 
retaliatory personnel actions for reporting a rape, sexual assault, or 
sexual misconduct.
  Next, the bill expands certain existing protections to victims who 
are members of the National Guard and Reserves, and members of the 
Coast Guard. First, it requires the service secretaries to ensure that 
members of the National Guard and Reserves have access to a sexual 
assault response coordinator not later than 2 business days following 
the request for such assistance. These coordinators explain the 
reporting process, address the victim's safety and security needs, and 
offer expertise and available services, including medical care, 
counseling, and legal support.
  Second, it clarifies that an existing requirement for the expedited 
change of station or unit transfer requested by a victim of sexual 
assault also applies to members of the Coast Guard.
  The bill requires the service secretaries to provide a special 
victims' counsel to provide legal advice and assistance to 
servicemembers who are victims of a sexual assault committed by a 
member of the Armed Forces. This resource was initially created by the 
Air Force, in a program that began in January of this year. Since the 
committee's markup of this bill, Secretary of Defense Hagel has 
directed each of the services to implement such a program. This 
provision will codify administrative action that has already been 
taken.
  The bill also authorizes the service secretaries to provide 
guidelines to commanders regarding their authority to temporarily 
reassign or remove from an assignment a servicemember on active duty 
who is accused of committing or attempting to commit a sexual assault 
offense, not as a punitive measure but solely for the purpose of 
maintaining good order and discipline within the member's unit. In 
addition, the bill directs the Secretary of Defense to provide 
information and discussion of this authority as part of the required 
training for new and prospective commanders at all levels of command.
  The bill also makes several changes to further strengthen the 
judicial process. First, the bill eliminates the element of the 
character and military service of the accused--the so-called good 
soldier defense--from the factors a commander should consider in 
deciding how to dispose of an offense.
  I should add that Senator McCaskill's amendment further limits the 
defendant's use of good military character as evidence.
  Second, the bill requires the defense counsel in courts martial to 
make requests to interview complaining witnesses through the trial 
counsel, and, if requested by the witness, requires that defense 
counsel interviews take place in the presence of the trial counsel, 
counsel for the witness, or outside counsel. This is to protect against 
the abuse of this process.
  Next, the bill changes Article 60 of the UCMJ to limit the ability of 
a convening authority to modify the findings of a court-martial to 
specified sexual offenses. In other words, this provision eliminates a 
commander's ability to overturn a jury's conviction for sexual assault, 
rape, and other crimes.
  Additionally, the bill requires a mandatory minimum sentence of 
dismissal or dishonorable discharge of a servicemember convicted of a 
sexual assault offense.
  The bill also eliminates the 5-year statute of limitations on trial 
by court-martial for certain sexually related offenses, and requires 
that substantiated complaints of a sexually related offense resulting 
in a court-martial conviction, nonjudicial punishment, or 
administrative action be noted in the service record of the 
servicemember, regardless of the member's grade.
  Importantly, the bill maintains and strengthens the role of 
commanders in the judicial process. During the markup of this bill, the 
committee adopted an amendment on a bipartisan basis that preserves the 
ability of commanders to initiate court-martial proceedings. Removing 
this authority, which some of our colleagues advocate, would weaken 
accountability and undermine efforts to combat sexual assault. 
Commanders have the responsibility to train their subordinates, they 
are charged with maintaining good order and discipline within their 
units, and they are responsible for the safety of the men and women 
they lead. The commander is essential to instilling among the members 
of his or her unit that sexual assault and related behaviors will not 
be tolerated and will be adjudicated.
  The bill includes several provisions that address the role of the 
commanding officer. First, it requires commanding officers to 
immediately refer to the appropriate military criminal investigation 
organization reports of sexually related offenses involving 
servicemembers in the commander's chain of command. Next, the bill 
requires automatic higher level review of any decision by a commander 
not to prosecute a sexual assault allegation, with the review going all 
the way to the service secretary in any case in which the commander 
disagrees with the military lawyer's recommendation to prosecute.
  If a legal counsel advises prosecution, and the commander does not do 
it, ultimately it will be resolved by the service secretary. Most 
commanders do not want their decisions reviewed by the service 
secretary. I think this will add more sense and more purpose to their 
efforts to combat sexual abuse.
  All of these changes take significant steps forward in addressing 
these horrible crimes. However, we must remain committed to further 
improving both prevention and response. That is why the bill includes 
several provisions related to the review that is currently under way by 
the independent panel created by last year's Defense authorization 
bill--the Response Systems to Adult Sexual Assault Crimes Panel. This 
committee is assessing the systems used to investigate, prosecute, and 
adjudicate crimes involving sexual assault. The bill we are considering 
today assigns additional issues to be considered by this panel and 
requires the panel to produce its report no later than 1 year from its 
first meeting, which occurred in July, rather than 18 months, as 
originally laid out in last year's law.
  As I mentioned before, Senators McCaskill, Ayotte, and Fischer are 
proposing an amendment that further strengthens all of these provisions 
that are already in the committee's bill. First, their amendment 
requires the

[[Page 17655]]

special victims' counsels to advise victims of the advantages and 
disadvantages of their cases being prosecuted in a civilian court with 
jurisdiction or through the Uniform Code of Military Justice. The 
victim may express his or her preference, and this preference must be 
afforded great weight in the determination to prosecute the offense by 
court-martial or by a civilian court.
  The amendment codifies the decision by the Department of the Army to 
evaluate the performance of soldiers in adhering to the standards 
regarding sexual assault prevention and response. It extends this 
provision to every service in the Department of Defense. As previously 
noted in the context of race relations, this provision is likely to 
make a profound and lasting contribution to the prevention of sexual 
abuse. That is what we are about here--preventing sexual abuse. This 
could be one of the key drivers in that effort.
  The amendment also improves accountability of commanders by requiring 
that a command climate assessment be performed after an incident 
involving a covered sexual offense, as defined in the legislation, for 
both the command of the victim and the command of the accused, if they 
are in separate commands, or a single assessment if they are in the 
same command. These assessments will be completed promptly and provided 
to the military criminal investigation organization conducting the 
investigation of the offense concerned and to the next higher commander 
in the chain of command of the affected unit.
  You will know, if you are a commander, if there is an incident in 
your unit that all the details will be known by your battalion 
commander, your brigade commander, your division commander, and all the 
way up. That will be another strong incentive to make sure that nothing 
happens in your unit. That is part of the amendment proposed by my 
colleagues.
  This provision, particularly in conjunction with the requirement to 
evaluate servicemembers' compliance under the official report, will go 
a long way to provide the accountability and the emphasis on commanders 
to do their jobs.
  GEN Bruce Clarke, a distinguished officer wounded in the Battle of 
the Bulge and who was awarded the Silver Star--one of the great heroes 
of the U.S. Army--famously instructed his units that, in his words, 
``an organization does well only those things the boss checks.'' Well, 
we are checking each individual to make sure commander and 
noncommissioned officer--they are doing their best. We are checking 
each unit, if there is an incident in that unit, and we are living up 
to the advice of General Clarke. It will get done because, finally, it 
will be checked consistently, thoroughly and appropriately.
  The amendment also establishes a confidential process that will 
enable a victim of a sexual assault who is subsequently discharged to 
challenge the terms or characterization of his or her discharge in 
order to correct possible instances of retaliation. This provision will 
help ensure that a discharge accurately reflects the service of the 
individual, taking into consideration the effects of sexual assault and 
also helping to remove the concern that reporting sexual abuse could 
influence the character of a military discharge. Reporting such a crime 
should never influence the character of a military discharge.
  The amendment strengthens the role of the prosecutor in advising 
commanders on courts martial. The committee language requires the 
civilian service secretary review all cases where a commander does not 
choose to prosecute when his or her legal counsel/judge advocate 
recommends prosecution. The amendment extends that mandatory review if 
the prosecutor recommends prosecution and the commander demurs. In 
effect, if either the prosecutor or the legal counsel/judge advocate 
recommends prosecution and the commander demurs, the case will 
automatically be referred to the civilian service secretary. You will 
have the highest ranking civilian in the uniform service making the 
final call. Every commander will know that.
  The amendment modifies the Military Rules of Evidence to prevent 
defendants from introducing evidence of good military character as a 
general defense of a charge. Such evidence may only be admitted if that 
trait is relevant to an element of the offense for which the accused 
has been charged. Too often, the good soldier defense has been seen as 
overcoming specific evidence directly related to a crime. This 
appearance undermines the essential perception that a verdict is 
determined by direct evidence supporting the elements of the crime, not 
the previous reputation of the defendant. This provision builds upon a 
section of the underlying bill that eliminates the character and the 
military service of the accused from the factors a commander should 
consider in deciding how to dispose of an offense.
  Finally, the amendment ensures that all of the protections of this 
legislation are extended to the cadets and midshipmen of our service 
academies. The McCaskill-Ayotte-Fischer amendment strengthens the 
committee bill. Through enhanced accountability of commanders and 
additional changes to the Uniform Code of Military Justice, we will 
strengthen prevention and prosecution of sexual abuse.
  Those who argue for the exclusion of the commander from the judicial 
process point to the policies of our allies, including Canada, the 
United Kingdom, Australia, and Israel. These countries have removed 
commanders as convening authorities and use independent military or 
civilian prosecutors to make charging decisions. While it can be useful 
at times to draw comparisons between our Armed Forces and those we 
serve alongside, there are several points to be made with respect to 
our military justice system that do not align.
  First, none of these countries changed their system in response to a 
sexual assault crisis among their ranks or to protect rights of victims 
more generally. In most cases the system was changed to protect the 
rights of the accused.
  Second, none of the allies can draw a correlation between their 
system and any change in reporting by victims of sexual abuse. Many 
argue that removing the commander as the decisionmaker will remove a 
significant hurdle that victims face in deciding whether to report 
sexual assaults. There is no statistical or anecdotal evidence that 
removing commanders from the charging decision has had any effect on 
victims' willingness to report crimes in these judicial systems among 
our allies.
  In materials provided to the Response Systems Panel, the deputy 
military advocate general for the Israeli Defense Force noted an 
increase in sexual assault complaints between 2007-2011, attributing no 
specific reason for the increase but noting that it could represent an 
increase in the number of offenses or it could be a result of campaigns 
by service authorities to raise awareness on the issue.
  Similarly, the commodore of Naval Legal Services for Britain's Royal 
Navy has assessed that recent structural changes to their military 
judicial system had no discernible effect on the reporting of sexual 
assault offenses.
  Third, the scope and scale of our allies' caseloads are vastly 
different, primarily because of the much greater size of the U.S. Armed 
Forces. For example, the Canadian military only tried 75 to 80 courts-
martial last year, which is roughly comparable to one U.S. Army 
division's annual caseload. But several of our allies who have changed 
their military justice system have indicated that the changes have 
resulted in the process slowing down and taking longer. Frankly, that 
is one of the issues victims have raised in terms of why they aren't 
reporting and why they are so terribly frustrated--because of the 
length and duration of the process.
  Furthermore, most allies cannot conduct courts-martial in a deployed 
environment. BG Richard Gross, the legal counsel to the Chairman of the 
Joint Chiefs of Staffs, stated in a letter:

       One critical feature of our justice system is its 
     expeditionary nature--the ability to administer justice 
     anywhere in the world our forces deploy.


[[Page 17656]]


  Notably, the Army alone tried over 950 cases in deployed areas over 
the past 10 years. In one case in Iraq, four soldiers committed 
multiple crimes in a single night. The commander referred all four 
soldiers to court-martial, and they were charged with consuming 
alcohol, breaking into local Iraqi homes, and stealing property and 
money from the locals. Because the commander in Iraq had authority to 
refer these cases to trial, the first trial was underway within 2 
months of the incident. All of the co-accused and many defense 
witnesses were in the same unit, and local Iraqis were available as 
fact witnesses. Because the commander had a fully deployable military 
justice system at his disposal, he was able to send a strong message to 
the unit that such conduct would be dealt with swiftly and decisively. 
Simultaneously, he was able to restore positive relations with the 
local community.
  The Army has also cited instances of allied soldiers committing 
sexual assault crimes against U.S. soldiers, and because of the allied 
nation's system removing the authority of the chain of command and 
removing the process from the battlefield, our commanders would demand 
but not receive timely information on the status of any prosecution. We 
had a soldier victim, and they could not find anything about the 
process that was going on.
  Tragically, sexual assault is a crime that historically is 
underreported, and this is not only with respect to the military. The 
Rape, Abuse, and Incest National Network cites Department of Justice 
crime surveys that show that an average of 60 percent of assaults in 
the last 5 years were not reported to police. However, in numbers 
released earlier this month, DOD showed that more servicemembers are 
coming forward to report sexual assaults. From October 2012 to June 
2013, 3,553 sexual assault complaints were reported to DOD. That is a 
46-percent increase over the same period a year ago. These cases 
include sexual assaults by civilians on servicemembers and by 
servicemembers on civilians. A significant number of the reported 
incidents occurred before the victim had even entered military service.
  Another argument for removing the commander's authority is that 
independent JAGs or even civilian authorities will prosecute more 
cases. However, statistics show that commanders from all services have 
exercised jurisdiction and pursued courts-martial for sexual assault 
cases over the determination of civilian authorities. Over the last 2 
years, Army commanders have exercised jurisdiction in 49 sexual assault 
cases the local civilian authorities declined to pursue, and 32 of 
those cases were tried by court-martial, resulting in 26 convictions. 
The U.S. Marine Corps exercised jurisdiction in 28 sexual assault 
cases, all of which were tried by court-martial, and 16 cases resulted 
in conviction. This goes on throughout every service.
  Commanders also have an interest in pursuing a court-martial as a way 
to demonstrate the seriousness of the crime and its impact on unit 
discipline, not merely because of the quantity or quality of evidence 
that a crime occurred.
  On June 4 the Armed Services Committee held a hearing on the 
legislative proposals to address sexual assault in the military. We 
heard from four colonels from the Army, Navy, Marine Corps, and Air 
Force. They all spoke about the importance of seeking legal advice from 
their command judge advocate and having the responsibility to 
adjudicate crimes within their command.
  COL Donna Martin, commander of the Army's 202nd Military Police Group 
Criminal Investigation Division, stated:

       It is of paramount importance that commanders are allowed 
     to continue to be the center of every formation, setting and 
     enforcing standards, and disciplining those who do not. The 
     commander is responsible for all that happens or fails to 
     happen in his or her unit.

  She went on to say:

       The Uniform Code of Military Justice provides me with all 
     the tools I need to deal with misconduct in my unit from low-
     level offenses to the most serious, including murder and 
     rape. I cannot and should not relegate my responsibility to 
     maintain discipline to a staff officer or someone else 
     outside the chain of command.

  When asked about whether a commander might be more likely to pursue a 
court-martial than even an outside independent officer because of the 
desire to send a message to his or her unit, Marine Colonel King 
replied that he considers ``achieving justice for whatever crime was 
committed and also the message that I send to the thousands of Marines 
that are actively watching what's going on. So I can, even if I fail to 
achieve a conviction at whatever level, still send a powerful message 
to them that this kind of conduct, even alleged, even not proven, is 
completely unacceptable.''
  Col. Jeannie Leavitt, commander of the 4th Fighter Wing, stated:

       I could absolutely see the scenario where a prosecutor may 
     not choose to prosecute a case or recommend prosecuting a 
     case because of the likelihood of conviction. However, as the 
     commander, I absolutely want to prosecute the case because of 
     the message it sends so that my airmen understand that they 
     will be held accountable. And then we'll let the jury decide 
     what happened in the case and whether or not it will be 
     convicted. But that message is so important, whereas an 
     independent prosecutor may not see the need to take it to 
     trial if the proof is not necessarily going to lead to 
     conviction.''

  Additionally, our service JAGs have expressed several concerns about 
the proposed amendment my colleague from New York is introducing. I 
will take a moment and talk about the amendment.
  I thank and commend Senator Gillibrand because without her 
persistence and passion, we would not be here today. She perhaps has 
done more than anyone else to focus our attention on this incredibly 
heinous crime done to individuals and the threat to good order, 
discipline, and efficiency of the military.
  Her objective--the elimination of sexual abuse in the ranks of our 
military--must be our objective, and it must be realized. She and her 
cosponsors have determined, in their view, that the removal of the 
commander from the application of the Uniform Code of Military Justice 
for a wide variety of offenses is the best approach to achieve the goal 
of ending sexual abuse in the military, but, as my previous comments 
clearly indicate, I disagree. Indeed, given the nature of military 
service, which is significantly different from civilian life, I believe 
that without the active involvement of commanders in every phase of 
military life, this goal cannot be effectively and rapidly achieved.
  The approach in the amendment proposed by my colleague from New York 
poses significant problems in practice that could unwittingly 
complicate rather than accelerate efforts to end sexual abuse.
  The amendment attempts to divide crimes designated by specific 
articles of the UCMJ into two broad categories: traditional military 
offenses subject to command adjudication, such as AWOL and 
insubordination, and a broad category of serious offenses that would 
typically constitute civilian criminal offenses, such as murder, 
robbery, and rape and sexual crimes. In fact, here is a chart depicting 
the division of the articles of the Uniform Code of Military Justice.
  This second category of offenses would be removed from command 
adjudication and would be referred to an independent prosecutor. This 
independent prosecutor must be at least a full colonel with 
``significant experience in trials by general or specific court 
martial'' and be ``outside the chain of command of the member subject 
to such charges.''
  This bifurcated system--especially considering the scope of crimes 
excluded from the chain of command--will have profound effects on the 
ability of commanders and units to function effectively.
  Let's take the case, which is not uncommon, of a soldier who writes 
five checks on five separate occasions for $30 each to the PX knowing 
he doesn't have the funds to cover his purchases. The Criminal 
Investigations Division investigates and informs the commander. Under 
the Gillibrand amendment, the CID must refer this case to the 
independent prosecutor because it

[[Page 17657]]

falls under article 123a. These are referred to special prosecutors if 
they fall under the category. The five separate incidents, although 
they individually have a maximum punishment of 6 months, would be 
charged together, leading to 30 months, which exceeds the 1-year 
threshold for the Gillibrand amendment. As a result, this would be sent 
forward to the special prosecutor.
  I hardly think that charging this soldier for writing bad checks is 
the intent of the Gillibrand amendment, but it will be the effect. It 
also raises the very practical questions of how the independent 
prosecutor will deal with an onslaught of cases like this when the 
expectation is that he or she will be focused on sexual abuse and other 
serious crimes, such as murder. There is a practical issue: Are you 
going to take a bad check case when you have 15 pending attempted 
murders, assaults, rapes, et cetera? That is a practical issue, and I 
think the answer is probably no.
  Under the amendment, the independent prosecutor has the choice of 
convening a special court-martial or a general court-martial. A special 
court-martial consists of a panel of at least three members or, at the 
servicemember's election, a military judge sitting alone. There is a 
prosecutor, referred to as the trial counsel, and a defense counsel. In 
comparison, a general court-martial is the military's highest level 
court where servicemembers are tried for the most serious crimes--
roughly analogous to a civilian felony court--and the maximum 
punishments are increased.
  Before any charge can be sent to a general court-martial, an Article 
32 investigation must be conducted, which is a hybrid of a civilian 
grand jury proceeding and a preliminary comprehensive discovery 
proceeding. The Article 32 investigation is intended to be more than a 
mere formality; it is a valuable right for the accused and a source of 
information for the commander. The general court-martial may consist of 
a military judge and not fewer than five members or a military judge 
alone if the defendant chooses. Capital cases require 12 members.
  As we can see, these proceedings are intensive in terms of time, in 
terms of commitment of military personnel, and in terms of 
investigatory efforts. In fact, the average length of special court-
martial proceedings ranges from 3 to 5 months. General courts-martial 
can take anywhere from 5 to 8 months. In cases involving sexual 
assault, both special and general courts-martial take longer--an 
average of 9 months. Again, this is probably going to delay the 
process, not accelerate the process.
  Given the time and resources involved in a general or special court-
martial, in the case of a young soldier writing bad checks and the 
longstanding practice of reserving general and special courts-martial 
for the most serious offenses, I seriously doubt that an independent 
prosecutor would take this case. At some point, the independent 
prosecutor will inform the commander, which raises another issue. If 
this notification is delayed extensively, there is a related problem of 
what to do with the soldier under suspicion. Do you deploy him or her 
subject to recall? Do you leave him behind? So all of these issues are 
important.
  The independent prosecutor's decision is binding on any applicable 
convening authority for a trial by court-martial on such charges. It is 
binding on every commander. The amendment, however, does attempt to 
preserve authority to punish these types of offenses by declaring that 
the independent prosecutor's decision ``shall not operate to terminate 
or otherwise alter the authority of commanding officers'' to employ a 
summary court-martial or to impose nonjudicial punishment under Article 
15 of the UCMJ. But this authority is absolutely an illusion.
  Under the UCMJ, every soldier has the right to turn down a summary 
court-martial or an Article 15. Once he is informed by counsel that he 
will not be subject to a general court-martial or a special court-
martial, and he can turn down a summary court-martial and article 15, 
the soldier will invariably refuse the summary court-martial or article 
15. Ironically, in doing so he will demand a court-martial. But the 
commander cannot comply, as he can now, because he has already been 
preempted by the independent prosecutor.
  This scenario will play out over and over again. A unit is plagued by 
a series of barracks thefts which, if unchecked, erodes good order and 
discipline. The commander has information that one soldier is boasting 
about ripping off people but he has no other evidence. During a routine 
health and welfare inspection, an iPhone valued at over $500 and 
reported missing is found in the boasting soldier's room. Under the 
Gillibrand amendment, the commander must refer the case to the 
independent prosecutor and again you will have the issues of whether 
the independent prosecutor takes such a case, and if not, the 
likelihood that the accused will refuse a summary court-martial or an 
Article 15 and walk free.
  Incidents like this--and this is not the intent of the legislation, 
but this is what will happen--will erode unit cohesion and raise 
questions at least implicitly: Who is really running the unit? The 
commander? An unseen and unknown JAG, hundreds of miles away? Or 
individual soldiers who may appear to be violating the rules with 
impunity?
  This question is important here, but it is critical when a commander 
has to order soldiers to do dangerous things, and ultimately, that is 
what commanders have to do and soldiers have to have no doubt that the 
commander, he or she, is fully in charge.
  As I referenced earlier, the bifurcation of the articles of the UCMJ 
poses significant challenges. The problem with the drafting of this 
amendment complicates not just cases of common theft, not just issues 
that you say we could throw out, but the very issue of sexual assault 
we are trying to address.
  Let's take another example of a married couple, both of whom are 
Active Duty servicemembers, who get into a shouting match in their 
quarters on post. The husband stabs the wife with a kitchen knife and 
knocks her unconscious. She provides a statement to CID but later 
retracts it. They have another argument which results in his assaulting 
her with an attempt to commit rape. Under the Gillibrand amendment, the 
first offense of aggravated assault, Article 128, would have to be 
referred to the independent prosecutor to decide whether to send the 
case to a court-martial, while the offense of assault with intent to 
commit rape, which is specified under Article 134, is exempt from the 
Gillibrand proposal and would be referred to the chain of command. 
Assuming both the independent prosecutor and the independent commander 
seek a general court-martial, this particular victim will now have to 
have two separate Article 32 hearings, two subsequent courts-martial, 
at least doubling the number of times she must recount her nightmare 
and prolonging the administration of justice.
  The accused will demand and likely get two separate panels for each 
set of offenses, thus doubling the number of officers unavailable for 
their duties in the command and more than doubling the administrative, 
personnel, and witness costs associated with the general court-martial.
  This is a situation where, rather than streamlining, reinforcing, and 
clarifying the military's efforts to deal with sexual assault, we have 
confused them, we have delayed them, and we have put commanders in the 
position of competing with independent prosecutors. This is not going 
to add to the solution on a practical basis of how we deal with sexual 
assault.
  We know so many of the men and women in our Armed Forces serve our 
nation selflessly. Every day they are prepared to give their lives. 
Sexual assault is the antithesis of this ethic. It has no place in the 
Armed Forces, and if not eliminated, it will insidiously destroy our 
military. I believe preventing sexual abuse requires leadership at 
every stage and that commanders must be involved in every step. I 
believe that we will make the most progress in addressing this issue by 
involving and holding commanders accountable, not by excluding them 
from a critical area of militarily life.

[[Page 17658]]

  We have worked extensively to include provisions in this bill that 
will improve the prevention of sexual assault, the protection of 
victims, and the prosecution of perpetrators. We must pledge to do 
more, to continue our oversight of these programs and make further 
changes if needed. We owe it to all those who bravely and honorably 
wear the uniform of our Nation.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. CARDIN. Madam President, first, let me thank Senator Gillibrand 
for her leadership on this issue of sexual assault in our military. I 
support her amendment. I believe we need to look at a new way to deal 
with this issue so there is not only confidence within the military but 
within our country that sexual assault will not be tolerated in our 
military and that we have an effective way to deal with it. I thank 
Senator Gillibrand. It is quite clear, as Senator Reed said, without 
her leadership we would not be having these discussions on the floor of 
the Senate today. I applaud her for that.


                      Tribute to Major Nate Somers

  Mr. CARDIN. Madam President, we are now dealing with the NDAA bill, 
the National Defense Authorization Act, and it is our opportunity as a 
Senate to weigh in on one of the primary roles of government and that 
is the security of our country, how we can support our men and women in 
our military service to make sure they have the best equipment and the 
best support and live up to our commitments to our veterans when they 
return to civilian life. It is an awesome responsibility. I know each 
of us in our own capacities need to rely on outside help in order to be 
able to carry out this responsibility.
  We have staff. In my case I have been blessed to have a detailee from 
the Department of Defense from the Air Force. That person is Maj. Nate 
Somers. I mention that because he will be leaving my assignment very 
shortly, within the next week or so. I wanted to take this time to let 
my colleagues know, but also to let all the people know, that these 
detailees who are assigned to our office play a critical role. He has 
helped me in developing provisions that are in the National Defense 
Authorization Act and amendments that we are offering that deal with 
military health issues, that deal with regional security concerns, that 
deal with the impact of sequestration and how we can deal with the 
impact of sequestration and that deal with human rights issues with 
U.S. leadership globally as well as within the military.
  To say the least, I could not have done this as effectively as I 
needed to on behalf of the people of Maryland if it were not for Maj. 
Nate Somers. He comes to this assignment with an incredible background. 
His military record is unbelievable. Major Nate Somers has dedicated 
his life to serving our Nation. Nate started his career with the U.S. 
Air Force in 2001 when he graduated and received his commission through 
the Officer Training Program at Mississippi State University. He also, 
I might add, has two master's degrees. Nate then went on to serve in 
Arkansas, Florida, and Virginia, and was deployed in support of both 
Operation Iraqi Freedom and Operation Enduring Freedom. Prior to 
joining my office, Major Somers served as liaison between the Air 
Combat Command and the Air Force Legislative Liaison Director on issues 
ranging from constituent inquiries to weapons systems.
  Over the course of his incredible career, Major Somers has earned 17 
different major awards and decorations, including the Meritorious 
Service Medal and the Air Force Commendation Medal. His receiving these 
awards comes as no surprise to those who know him. Nate demonstrates 
his extraordinary service to our Nation and to our Armed Forces each 
and every day.
  There is hardly a day that goes by that I am not better informed 
because of his assignment to my Senate office. To say that Major Somers 
will be missed is an understatement. Nate has truly been a integral 
part of my staff. Whether ensuring our Maryland veterans get the 
services they need or advising me on complex defense issues, there was 
no task Nate would not do or could not do in order to help our office. 
The Air Force should be proud of the extraordinary talent they have in 
Maj. Nate Somers. I thank him for his service to this Nation.
  I also want to take this opportunity to thank Nate's wife and sons 
for sharing Nate with the Senate and for his service to the country.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alaska
  Ms. MURKOWSKI. Madam President, yesterday morning I was pleased to be 
able to come to the floor of the Senate and join with a good, strong, 
group of women from both sides of the aisle to express our joint 
commitment--really the commitment of every Member of this body--to 
address the scourge of sexual assault, sexual misconduct within the 
military.
  I thought it was a good way to start off the debate yesterday on the 
issue of sexual assault within the military, recognizing that some are 
in different places in terms of how we deal with these very important 
issues. But ultimately the goal of each of us is the same. The goal is 
that we make things right for those who are serving our Nation, and 
that when it comes to instances of sexual assault, military sexual 
trauma, sexual harassment, that really there is no place in our 
military for this.
  We use different terminology when we are discussing the issue of 
sexual misconduct in the military. How we define what we are seeking to 
eradicate is important. We have used the more generic term sexual 
assault probably more often to describe the problem that we need to 
address, but I suggest that definition is probably a bit too narrow. I 
prefer to use the term military sexual trauma, which is the term that 
the VA, the Veterans Administration, uses to describe a spectrum of 
harms. Their term, the VA's term, military sexual trauma, means ``the 
trauma resulting from a physical assault of a sexual nature, battery of 
a sexual nature, or sexual harassment which occurred while the veteran 
was serving.''
  I prefer this term because it emphasizes the various traumas that can 
occur, both with and without physical assaults and batteries. This 
definition also calls to our attention the fact that whatever the 
instrument of trauma there are psychological scars that need to be 
addressed. These are psychological scars that can last a lifetime. I 
think it is fair to say that this spectrum of scars is broad and it is 
deep.
  I have looked very carefully at the work that came out of the Senate 
Armed Services Committee. I have looked at Senator Gillibrand's 
amendment very carefully. I have considered all that is being 
incorporated in the Defense Authorization Act. Again, as I mentioned 
yesterday, I am pleased with how in so many different areas we have 
been working together to address these issues of military sexual 
trauma.
  I am a supporter of Senator Gillibrand's approach to ensure justice 
for victims of military sexual trauma. Today, I would like to explain 
some of the reasons why I have chosen to support that approach.
  The current system of military justice relies upon the individual 
decisions of commanders for a decision on whether or not an offense is 
to be punished, and which charges are to be brought. In our complex 
military there are many commanders. We all know that. While our code of 
military justice may be uniform, I think we are seeing strong evidence 
that its implementation is anything but uniform.
  Senator Gillibrand's approach ensures that charges will be 
investigated and that the charging decision will be made by 
disinterested military prosecutors. Decisions will be made by 
disinterested prosecutors whose only interest is that the perpetrators 
account for their actions, that victims' interests are protected, and 
that the integrity of the process is paramount. I think that this is 
very important. I think this is a breath of fresh air.
  The recent experiences I have had, as a Senator from Alaska, with the 
transparency of decisions made within the chain of command leaves much 
to be

[[Page 17659]]

desired. Unfortunately, we have learned about these situations from 
what we read in the headlines, and it makes you say: Oh my gosh. I 
cannot believe this is happening in our military.
  It makes your stomach turn. We are not hearing this from the chain of 
command. We are reading this in our newspapers. We are seeing this 
reported in the media, and that is the first time we hear of them.
  Case in point: The 49th Missile Defense Battalion, which operates our 
Nation's missile defense at Fort Greely. The missile defense 
establishment at Fort Greely is a very important facility for us in 
Alaska--as well as for the Nation. Last spring it was widely reported 
that unlawful fraternization among certain members of the battalion--
rising up into the chain of command--was creating an uncomfortable 
situation for those who were not part of what I would describe as the 
in-crowd at Fort Greely.
  Just when I thought I understood what was going on at Fort Greely--
after I was told not to worry and that everything was all fixed--there 
was a bizarre series of events which showed up on my doorstep. The 
complainant, who was a member of the Alaska National Guard, was 
involved in a child custody dispute with another member of the Alaska 
National Guard. For reasons I don't understand, the complainant's chain 
of command decided to inject himself into this custody dispute by 
causing the complainant to be detained in an electrical closet on a 
secure U.S. military base for a period of days in order to deny him 
lawful visitation with his children. It is also alleged that DOD 
civilian police and Fort Greely military police were complicit in these 
actions.
  All of this is detailed in a sworn affidavit, which the complainant 
submitted to my office.
  You just have to shake your head. Are we supposed to call this 
military justice? Maybe it is frontier justice. Maybe it is military 
justice in the last frontier. I don't like it, and I don't think we 
should ever accept it.
  I asked the Army CID to look into this incident because it was my 
impression then that an unlawful denial of one's freedom is a criminal 
offense. I understand that the complaint my office forwarded was not 
pursued by the Army CID, but was referred to the Space and Missile 
Defense Command.
  I am most appreciative that an investigation was pursued, but one 
might legitimately ask the question: How did it end? What was the 
outcome of this story? I don't know. Alaskans don't know. We don't 
know. Neither I nor the individual who sought the investigation has 
been informed of the outcome, just that the chain of command had looked 
into it. Where is the transparency?
  The complainant has been told he needs to file a Freedom of 
Information Act request in order to get an answer. None of this sits 
right with me as an example of how the chain of command is an 
impartial, unbiased, and vigorous protector of victims. I am not able 
to see that in this instance. In this case it is alleged that the chain 
of command were either the perpetrators or complicit with the 
perpetrators.
  Think of the message that sends. Fort Greely is a very small 
installation. Folks pretty much know what is going on at smaller 
installations. We know of this incident. It has been reported in the 
papers. We were told the chain of command has looked into it, but then 
nothing happened after that.
  I would like to suggest that this is the only incident that has come 
to my attention, but that is not the case. Literally, less than a month 
ago, on October 27, the Anchorage Daily News reported on allegations 
that were made by senior Alaska National Guard chaplains of pervasive 
and longstanding sexual assault and sexual misconduct within Guard 
ranks.
  There were allegations of some 26 different sexual assault and sexual 
misconduct incidents that were reported in the news. The chaplains 
become aware of these incidents through their own observations and 
through complaints that were brought to them by Guard members.
  I had an opportunity to ask senior leaders of the National Guard 
Bureau what they knew about this situation. I asked them when they 
found out about this situation. You know what the answer was? They read 
about it in the news clippings. Really? I mean, it just stuns me to 
hear this after we heard about how we have this system--throughout the 
chain of command--that has been addressing this issue. Somewhere there 
is a broken link in this chain.
  When the media finds out first and reports about it, and the senior 
leaders here are unaware of 26 different allegations, it just causes 
one to wonder.
  It is a truism of management that if you want a problem managed, you 
have to know about it. You have to measure it and let your subordinates 
know that their performance is being evaluated on that measure.
  So answer this question: How can the Secretary of Defense and our 
senior military leaders ever hope to manage the critical problem before 
us when the deplorable facts--and I am not talking about the number of 
complaints--are buried within a decentralized and far flung chain of 
command? How can I develop any sense of comfort that those who were 
responsible for these hideous activities have been brought to justice 
and not just simply moved around the military? It does cause one to 
wonder.
  It is a horrible truth that we are still dealing with in Alaska, but 
we have all heard--and are very aware--of the widespread allegations of 
child sexual abuse within the Catholic Church. We have come to learn 
that the Church, in fact, was aware of many of these allegations. 
Unfortunately, for a period of time, the way they handled the problem 
was to move the offending clergy to other places. Some of them were 
moved to the State of Alaska. If they acted inappropriately in an urban 
community, they were shipped out to a bush community--a very remote 
place.
  Out of sight, out of mind, and free to offend again. That is not 
responsibility. That is not accountability. That is not how it should 
be done within the church, and it certainly should not happen within 
our military.
  We have all shared many different victim stories here on the Senate 
floor. I want to add that the more this issue of military sexual trauma 
and sexual assault has been discussed on the Senate floor, more victims 
have come to speak to me.
  I was in my home State 2 weeks ago for a big outdoor community event. 
It was a pretty cold Saturday afternoon. I was approached by a woman 
who had seen me from across the street. She was attending a conference 
at the time. She came across the street and into the town square. She 
was not wearing a coat. She wanted to make sure that I knew she too had 
been a victim but had not had the strength to report the crime. She 
just left the service.
  She said to me: Don't give up on this because I had to step down from 
my military career and the perpetrator stayed on, and as he stayed on, 
he continued to be promoted. Her plea to me was: Please don't let that 
continue.
  I want to share another story that is very personal to me. I think 
all of us as Members of the Senate know what a privilege and honor it 
is to nominate qualified constituents to attend our Nation's service 
academies. The military stands very tall in the eyes of Alaskans, so in 
my State these nominations are highly competitive.
  Last spring I became aware that one of my nominees who was accepted 
into one of the service academies and did phenomenally well was 
sexually assaulted at the academy. I was following this young woman 
because I knew her family.
  She graduated and was commissioned, but now the burden of dealing 
with the fact that she was not protected from the crime has caused her 
to resign her commission. She put 4 years of very hard work toward a 
military career, and now that career is in the garbage.
  I contacted her recently. She is a strong woman, but her dreams have 
been completely dashed by what she experienced.
  Many of my colleagues know I have taken a keen interest in the work 
of our service academies. I served for a

[[Page 17660]]

short time on the Board of Visitors of one of the academies, but I was 
not aware of the trauma my constituent had suffered until she contacted 
me long after graduation. I don't recall any substantial discussions 
about issues like this during my tenure on the Board of Visitors. It 
needs to be discussed. It not only needs to be discussed but action 
needs be taken to eliminate instances like that from ever happening.
  These issues are all current issues, but not all of these issues are 
new. Earlier this year I came to know a woman by the name of Trina 
McDonald. At one point in time she had the opportunity to live in the 
State of Alaska as a servicemember. So many of our servicemembers who 
have been stationed in Alaska want to stay for life. They want to 
retire there because they love it. Unlike many of her colleagues, Trina 
chose to try to forget everything that had been attached to her service 
in Alaska. She prefers to forget that experience. That is because she 
was sexually assaulted while serving in my home state.
  Many of you may have seen ``The Invisible War.'' Ms. McDonald speaks 
of the experiences she had when she was assigned to the Navy and 
stationed at Adak, which is now a closed naval base on the Aleutian 
Chain. This happened about 20 years ago. Trina asserts she was 
repeatedly drugged, raped, and ultimately dumped in the Bering Sea by 
superior officers.
  What did the chain of command do? Trina states that she had no place 
to turn because both the police and her superiors were the 
perpetrators. What do you do? Where do you go? Where is the redress? It 
pains me to think that the issues, which today are very high in the 
attention of this body, have been out here for 20-plus years. I have 
listened to my colleagues on the floor talk about the Tailhook scandal, 
and we have talked about so many of the other high profile instances 
where we have heard our military leaders say, Never again; never again; 
zero tolerance. They are using all the right words.
  It really does cause us to ask the question: Are we to attribute this 
cycle of violence we are seeing to attention deficit on the part of us 
here in Congress or attention deficit on the part of our military 
leaders? This is not what zero tolerance looks like. Whatever the case, 
I think it is going to take some very strong medicine to break through 
this powerful attention deficit we have seen historically.
  Incremental steps, in my view, don't cut it anymore. For the young 
woman, again, whose military career is no longer; the woman I met out 
in the cold 2 weeks ago who gave up her dream and has just had to stand 
by and watch her perpetrator ascend his career ladder, incremental 
measures don't cut it.
  I think it is time for profound change. I think the amendment offered 
by the Senator from New York, while it is strong medicine, and I 
acknowledge that, I think it is the right tool for what we are dealing 
with at this time.
  With that, I thank the Presiding Officer and I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Madam President, I wish to reiterate my strong support 
for Senator Gillibrand's reforms to the military justice system. I am 
proud to be an original cosponsor of this act, and I should add it has 
been a pleasure working with Senator Gillibrand on the issue. Her 
passion and commitment to rooting out sexual assault in the military 
ought to be inspiring to all of us, and watching how she negotiates and 
how she lobbies for her ideas can teach all of us a good lesson.
  I should also add that I appreciate the work of the Armed Services 
Committee, which added a large number of commonsense reforms to the 
underlying bill. In fact, some of them are so commonsense that one has 
to wonder why the military hasn't adopted them already or, if need be, 
asked for legislation to do so before now.
  For instance, the bill before us provides that people convicted of 
certain sexual assault offenses may not join the Armed Forces--common 
sense. It requires mandatory discharge from the Armed Forces of any 
member convicted of certain sexual assault offenses--common sense. It 
directs a comprehensive review of the adequacy of training pertaining 
to sexual assault prevention and response--common sense.
  The underlying bill also has a number of provisions to address 
certain concerns about commanding officers not handling sexual assault 
charges properly but still keeps this judicial process in the chain of 
command. That is inappropriate; hence, this amendment.
  We have tried working within the current system. This isn't a new 
issue. Military leaders have been making emphatic promises about 
tackling the problem of sexual assault for years and years, but the 
problem only seems to be getting worse. What is more, the current 
system appears to be part of the problem. There is a culture that has 
to change, and it won't change by itself.
  According to a recent Defense Department report, 50 percent of female 
victims stated they did not report the crime. Why? Because they 
believed that nothing would be done with their report.
  Seventy-four percent of females and 60 percent of males perceive one 
or more barriers to reporting sexual assault. Sixty-two percent of the 
victims who reported a sexual assault indicated they received some form 
of professional, social, or administrative retaliation. This should not 
happen in a military where everybody ought to be looking out for 
everybody else.
  A very cohesive unit is essential for everybody's protection but also 
for the success of the mission. So it is a terrible deterrent when 
sexual assaults ought to be reported 100 percent but aren't. If sexual 
assault cases are not reported, it is quite obvious, common sense tells 
us they can't be prosecuted. If sexual assault isn't prosecuted, common 
sense ought to tell us it leads to predators remaining in the military 
and a perception that that sort of activity will be tolerated or a 
person can get away with it. Common sense tells us that people get away 
with it.
  By allowing this situation to continue, we are putting at risk the 
men and women who have volunteered to place their lives on the line. We 
are also seriously damaging military morale and military readiness. 
Taking prosecutions out of the hands of commanders and giving them to 
professional prosecutors who are independent of the chain of command 
will help ensure impartial justice for the men and women in uniform.
  I know some Senators will be nervous about the fact that the military 
is lobbying against this legislation. There is a certain awe that 
permeates among Senators when people with stars on their shoulders 
appear among us. We are being asked, once again--that environment is 
here--to wait and see if the latest attempt to reform the current 
system will do the trick. I respond that the time for trying tweaks to 
the current system and waiting for another report or study has long 
since passed.
  We also hear that this measure will affect the ability of commanders 
to retain good order and discipline. I would like to be clear that we 
in no way take away the ability of commanders to punish troops under 
their command for their military infractions. Commanders also can and 
should be held accountable for the climate under their command. But the 
point here is sexual assault is a law enforcement matter, not a 
military one.
  If anyone wants official assurances that we are on the right track, 
we can take confidence in the fact that an advisory committee appointed 
by the Secretary of Defense himself supports our reforms. On September 
27 of this year, the Defense Advisory Committee on Women in the 
Services--and I believe that acronym is DACOWITS--voted overwhelmingly 
in support of each of the components of the Military Justice 
Improvement Act amendment.
  This advisory committee isn't something new. These various advisory 
committees under different Secretaries of Defense have been around 
since 1951 when they were created by then-Secretary of Defense George 
C. Marshall.

[[Page 17661]]

The committee is composed of civilian and retired military men and 
women who are appointed by the Secretary of Defense to provide advice 
and recommendations on matters and policies relating to the recruitment 
and retention, treatment, employment, integration, and well-being of 
highly qualified professional women in the Armed Forces. Historically, 
this advisory committee's recommendations have been very instrumental 
in affecting changes to laws and policies pertaining to military women.
  The bottom line is--and, again, this is common sense--this isn't some 
advocacy group or fly-by-night panel. It is a longstanding advisory 
committee handpicked by the Secretary of Defense, and it supports the 
substance of our amendment to a tee.
  I know it is easier to support incremental reforms. That is even 
prudent in some cases. However, when we are talking about something as 
serious and life-altering as sexual assault, we cannot afford to wait 
any longer than we already have. Our men and women serving in this 
military deserve bold action to solve this problem--not in a few years 
or a little bit at a time but right now. So I urge my colleagues to be 
bold and join us in this effort. It is the right thing to do.
  It seems to me as though a lot of debates in this body get 
complicated, and this one seems to be complicated too by some people. 
But it is really a very simple issue. It doesn't need to be this 
complicated, because it talks about changing the culture. I know there 
are cultures in every bureaucracy that need to be changed that affect 
their operations, but none of them are as damaging as the No. 1 
responsibility of the Federal Government. So a culture in the Defense 
Department has to be taken seriously. We have to change the culture.
  When one joins the military--and I haven't been in the military so I 
don't speak with authority, but it seems to me as I understand the 
military--I have a grandson in the Marines and I had sons in the 
military. But when a person joins, they join because they feel that 
everybody in that unit will have each other's back. There should be no 
fear of anyone--anyone--in the unit. There should be nothing but 
respect for each other. Members of the military should have confidence 
in each other and loyalty toward each other. They are all on the same 
mission. None of them should be considered an enemy. None of them 
should have any particular power over another. That is what this sexual 
assault thing is all about--power over weak individuals--not weak 
because of who they are, but weak because of the power of the people 
above.
  This is badly needed legislation.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Ms. HEITKAMP. Madam President, this is a tough issue. It is a tough 
issue because good people don't agree. Good people don't see the issue 
the same way. But we cannot lose sight of the fact that so many of the 
reforms we will be voting on to guarantee a safe haven, to guarantee a 
safe experience, a common camaraderie, are all parts of a big plan for 
change. What we are debating today is one small portion of that--not 
small in the sense of impact. We need to make sure we reward all of the 
great work the committee has done, the great work that has been done 
with the leadership of Senator McCaskill from the great State of 
Missouri, and the commitment that this body is making today, in a very 
unified way, to change the outcome.
  I will spend a moment with that in mind to talk about how I came to 
my decision to support the Gillibrand amendment. I wish to first talk 
about my experience. I am probably one of the few people in this body 
who has actually sat across a table as somebody who had the power to 
make the decision on whether we were going to, in fact, pursue a 
prosecution and have that discussion. I know that is a shared 
experience I have with Senator McCaskill, and those are experiences we 
will never forget--the damage that is done so often when people are 
victims of sexual assault, beyond other kinds and other forms of 
physical assault, the power and the responsibility. So I recognize the 
great need we have to deal with this issue. I recognize the great need 
we have to have professionals make the decision.
  The bottom line for me is, if someone came forward and appendicitis 
was suspected, he or she wouldn't ask the commanding officer to make 
the decision for the doctor. What I am suggesting today is that these 
are very difficult decisions on whether one is going to pursue or 
decline a prosecution and they should be made by people who are 
trained. There should be a whole system--as we have seen in the civil 
side--a whole system of support.
  Frequently we talked about, back in the 1980s and the 1990s--as we 
were moving through these same questions in the civil courts--not 
revictimizing the victim. I think what you are hearing today is story 
upon story where victims of sexual assault in the military feel not 
only let down but they feel revictimized.
  So I want to very quickly go through a couple of the points we have 
heard over and over, which is that this change in the Gillibrand 
amendment would affect good order and discipline in the military. I 
have heard this from many of the military, the good military leaders 
who have come to my office to talk about this problem: that they need 
this authority, this specific convening authority, because their orders 
will fall on deaf ears or their leadership will be questioned.
  I am not an expert in leadership, but I have to ask you: Do we really 
believe that sort of authority is truly essential to being someone whom 
the troops will follow, someone who demands respect, who inspires 
devotion or truly will stand and fight side by side no matter what the 
cost?
  The conclusion I make is that I do not think so. Because when I talk 
to our brave veterans in North Dakota or our noncommissioned officers 
who lead our servicemembers every single day, that is not what I hear. 
I hear: I knew he would do the same for me. Not: Well, he has convening 
authority.
  That is what I believe inspires and maintains good order and 
discipline: the shared values of a mission, of trust, of concern, and 
respect.
  I also have heard great reforms, especially in the Air Force--and we 
have a special relationship in North Dakota to the Air Force, having 
two air bases. The Air Force JAG came in and told me about the new 
process and the new procedures and impressed upon me this great 
opportunity they had taken now for change. I said one thing. I said: It 
is too late. It is too late to expect that we are going to believe it 
this time. It's the old adage: ``Fool me once, shame on you; fool me 
twice, shame on me.'' We are at that point now where something very 
dramatic needs to happen in order to send the very important message 
that you matter and this behavior does not reflect behavior that is 
becoming of our troops, of our country, and the people who step up to 
serve our country.
  Progress that has been made does not go far enough. I think it is 
time to boldly act and step up for people who serve, who have stepped 
up bravely and said: What can I do, no matter the cost or the 
sacrifice--knowing the hardship they will endure and the distance from 
home and family who love and care for them; that when they go, our 
military personnel say: I am yours. I will go and do whatever I need to 
do, whatever you tell me, to protect our values and to protect our way 
of life.
  It seems a small thing to do everything we can to protect those who 
protect us. The time has come to address this, to send a strong and 
important message to our volunteer service that we will not tolerate 
this and that we will put this decision in the hands of the people who 
are best equipped to make this important decision. And that is the 
prosecutors.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. ALEXANDER. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page 17662]]


  Mr. ALEXANDER. Madam President, I ask unanimous consent that I be 
allowed to speak as in morning business for 10 minutes, without taking 
the time from either side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ALEXANDER. Madam President, I thank the Senator from Texas and 
the Senator from Missouri for their courtesy, and I will endeavor to do 
it a little quicker than in 10 minutes.


                         Changing Senate Rules

  Madam President, this weekend, Vanderbilt plays Tennessee in a 
football game in Knoxville. Let's say Vanderbilt gets on the 1-yard 
line of Tennessee and Tennessee then says: Well, we are the home team. 
Let's add 20 yards or whatever it takes to win the game. Or let's say 
in the World Series recently the Red Sox were behind St. Louis in the 
ninth inning and the Red Sox said: Well, we are the home team. Let's 
add a couple of innings or whatever it takes to win the game. Everyone, 
I think, would say that is cheating. Everyone would say: You are 
destroying the game of football or baseball.
  If a home team could change the rules at any time during the game or 
whatever it takes to win the game, what kind of game is it? That is 
what Senator Vandenberg said after World War II and Senator Levin 
repeated to all of us--that a Senate in which a majority can change the 
rules any time the majority wants to change the rules is a Senate 
without any rules.
  Yet we hear that is what the Democratic majority may be seeking to do 
this week. They are unhappy, they say, that Republicans have said it is 
premature to vote up or down on three circuit judges nominated by 
President Obama--even though that was exactly the position of the 
Democratic Senators in 2006 and 2007 when they argued that the D.C. 
Circuit Court is underworked and that we should transfer judges from 
where they are needed the least to where they are needed the most. So 
they are going to change the rules of the game during the game or 
whatever it takes to get the results they want.
  We have a lot of new Senators on both sides of the aisle. Nearly half 
the Senate, 44 members, are in their first term. It is important for 
them to remember that in Senator Reid's book he said that to do this 
would be the end of the U.S. Senate, that Senator Robert Byrd--probably 
the most distinguished Senate historian in its history--said in his 
last speech to us that the filibuster is the necessary fence against 
the excesses of the majority and of the Executive. It is the fence 
against what de Tocqueville called in the early 1830s the greatest 
danger to our country that he saw, which was the tyranny of the 
majority.
  You may ask, how could this possibly happen? Here is how I am afraid 
it is happening. Sometimes we get off in our rooms by ourselves--and 
Republicans do it as well as Democrats--and we give ourselves our own 
version of the facts. The last time this came up, we tried to address 
this in the Old Senate Chamber. I think all of us thought it was a 
pretty good session. But this is my third opportunity to respond to 
these nuclear threats, and I am not going to do it again.
  The President said during the government shutdown that he was not 
going to negotiate with a gun to his head. Neither am I. Democrats have 
had their finger on the nuclear button for 2 years. I hope they will 
reconsider.
  No. 1, I hope they will read Senator Leahy's letter, which I ask 
unanimous consent to have printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                    Washington, DC, July 27, 2006.
     Hon. Arlen Specter,
     Chairman, Committee on the Judiciary, Washington, DC.
       Dear Chairman Specter: We write to request that you 
     postpone next week's proposed confirmation hearing for Peter 
     Keisler, only recently nominated to the D.C. Circuit Court of 
     Appeals. For the reasons set forth below, we believe that Mr. 
     Keisler should under no circumstances be considered--much 
     less confirmed--by this Committee before we first address the 
     very need for that judgeship, receive and review necessary 
     information about the nominee, and deal with the genuine 
     judicial emergencies identified by the Judicial Conference.
       First, the Committee should, before turning to the 
     nomination itself, hold a hearing on the necessity of filling 
     the 11th seat on the D.C. Circuit, to which Mr. Keisler has 
     been nominated. There has long been concern--much of it 
     expressed by Republican Members--that the D.C. Circuit's 
     workload does not warrant more than 10 active judges. As you 
     may recall, in years past, a number of Senators, including 
     several who still sit on this Committee, have vehemently 
     opposed the filling of the 11th and 12th seats on that court:
       Senator Sessions: ``[The eleventh] judgeship, more than any 
     other judgeship in America, is not needed.'' (1997)
       Senator Grassley: ``I can confidently conclude that the 
     D.C. Circuit does not need 12 judges or even 11 judges.'' 
     (1997)
       Senator Kyl: ``If . . . another vacancy occurs, thereby 
     opening up the 11th seat again, I plan to vote against 
     filling the seat--and, of course, the 12th seat--unless there 
     is a significant increase in the caseload or some other 
     extraordinary circumstance.'' (1997)
       More recently, at a hearing on the D.C. Circuit, Senator 
     Sessions, citing the Chief Judge of the D.C. Circuit, 
     reaffirmed his view that there was no need to fill the 11th 
     seat: ``I thought ten was too many . . . I will oppose going 
     above ten unless the caseload is up.'' (2002)
       In addition, these and other Senators expressed great 
     reluctance to spend the estimated $1 million per year in 
     taxpayer funds to finance a judgeship that could not be 
     justified based on the workload. Indeed, Senator Sessions 
     even suggested that filling the 11th seat would be ``an 
     unjust burden on the taxpayers of America.''
       Since these emphatic objections were raised in 1997, by 
     every relevant benchmark, the caseload for that circuit has 
     only dropped further. According to the Administrative Office 
     of the United States Courts, the Circuit's caseload, as 
     measured by written decisions per active judge, has declined 
     17 percent since 1997; as measured by number of appeals 
     resolved on the merits per active judge, it declined by 21 
     percent; and as measured by total number of appeals filed, it 
     declined by 10 percent. Accordingly, before we rush to 
     consider Mr. Keisler's nomination, we should look closely--as 
     we did in 2002--at whether there is even a need for this seat 
     to be filled and at what expense to the taxpayer.
       Second, given how quickly the Keisler hearing was scheduled 
     (he was nominated only 28 days ago), the American Bar 
     Association has not yet even completed its evaluation of this 
     nominee. We should not be scheduling hearings for nominees 
     before the Committee has received their ABA ratings. 
     Moreover, in connection with the most recent judicial 
     nominees who, like Mr. Keisler, served in past 
     administrations, Senators appropriately sought and received 
     publicly available documents relevant to their government 
     service. Everyone, we believe, benefited from the review of 
     that material, which assisted Senators in fulfilling their 
     responsibilities of advice and consent. Similarly, the 
     Committee should have the benefit of publicly available 
     information relevant to Mr. Keisler's tenure in the Reagan 
     Administration, some of which may take some time to procure 
     from, among other places, the Reagan Library. As Senator 
     Frist said in an interview on Tuesday, ``[T]he D.C. Circuit . 
     . . after the Supreme Court is the next court in terms of 
     hierarchy, in terms of responsibility, interpretation, and in 
     terms of prioritization.'' We should therefore perform our 
     due diligence before awarding a lifetime appointment to this 
     uniquely important court.
       Finally, given the questionable need to fill the 11th seat, 
     we believe that Mr. Keisler should not jump ahead of those 
     who have been nominated for vacant seats identified as 
     judicial emergencies by the non-partisan Judicial Conference. 
     Indeed, every other Circuit Court nominee awaiting a hearing 
     in the Committee, save one, has been selected for a vacancy 
     that has been deemed a ``judicial emergency.'' We should turn 
     to those nominees first; emergency vacancies should clearly 
     take priority over a possibly superfluous one.
       Given the singular importance of the D.C. Circuit, we 
     should not proceed hastily and without full information. Only 
     after we reassess the need to fill this seat, perform 
     reasonable due diligence on the nominee, and tend to actual 
     judicial emergencies, should we hold a hearing on Mr. 
     Keisler's nomination.
       We thank you for your consideration of this unanimous 
     request of Democratic Senators.
           Sincerely,
     Patrick Leahy.
     Chuck Schumer.
     Russ Feingold.
     Ted Kennedy.
     Dianne Feinstein.
     Dick Durbin.
     Herb Kohl.
     Joe Biden.

  Mr. ALEXANDER. It was signed in 2006 by all the Democratic members of 
the Judiciary Committee: Senator Leahy, Senator Feinstein, Senator

[[Page 17663]]

Kennedy, Senator Biden, Senator Schumer, Senator Durbin, Senator 
Feingold, and Senator Kohl. These Senate Democrats said under no 
circumstances should we consider confirming a judge to the D.C. Circuit 
when it is so underworked. So the Republican President and the 
Democratic Senate agreed with that and reduced the Court's size by one 
judge--just the same argument being made today.
  No. 2, any suggestion that the President's nominations are being held 
up is completely wrong. I invited the Congressional Research Service 
into my office. I asked that question. They have said: No. President 
Obama's cabinet nominations in his second term are being considered at 
about the rate as those of President Clinton and President George W. 
Bush.
  On every Senator's desk is an Executive Calendar. Every person who 
could be confirmed by the Senate is on this calendar. There are about 
11 pages. The one who has been on there the longest goes back to 
February and six were reported in the Summer. But all the rest of them 
go back just to September 12--just a few weeks. Most of them have been 
there just 3 or 4 weeks.
  So people are not being held up. The only way a nominee can be 
reported to the Senate floor is by a Democratic committee. The only 
person who can bring them from the calendar to be confirmed is the 
Democratic leader. Why doesn't he bring them to the floor and let them 
be confirmed?
  In the history of the Senate--and this is from the Congressional 
Research Service--there have only been 17 executive nominees in its 
history who have failed to be seated because of a filibuster vote, a 
failed cloture vote. There have been two under the Clinton 
administration, three in the Bush administration, two in the Obama 
administration. There have been five Bush circuit judges and five Obama 
circuit judges. Never a Supreme Court Justice--there was a little 
exception with Abe Fortas, which was different--never a district court 
judge, and never a Cabinet member denied a seat by a filibuster--a 
failed cloture vote. So where is the crisis?
  In conclusion, I would make this suggestion: I think what makes 
Americans angry about ObamaCare is it is taking us in the wrong 
direction, it is the 3,000-page bill, but as much as anything else it 
is the raw exercise of political power in the middle of the night 
during a snowstorm to pass a bill by a partisan vote, without any 
bipartisan support.
  If the Democrats proceed to use the nuclear option in this way, it 
will be ObamaCare II, it will be the raw exercise of political power to 
say: We can do whatever we want to do.
  Grantland Rice, a famous sportswriter, once said: ``It's not whether 
you win or lose, it's how you play the game.'' In this case, it is not 
so much what the rule is, it is how you change the rule. There have 
always been a few Senators on either side of the aisle who care enough 
about our institution and enough about our Constitution of checks and 
balances to stop a stampede that we will later regret. I hope that will 
be true again. I hope we will resist turning the Senate into an 
institution where the home team can cheat to win the game, to get 
whatever result it wants at any time it wants. Because as Senator 
Vandenberg said, and Senator Levin has repeated: A Senate where a 
majority can change the rules any time it wants is a Senate without any 
rules at all.
  I ask unanimous consent to have printed in the Record a 1-page 
summary of the 17 nominations that have not been confirmed after a 
failed cloture vote, which, according to the Congressional Research 
Service, is the entire number in the history of the U.S. Senate that 
have ever been denied their seat by a filibuster.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         Nominations Not Confirmed After a Failed Cloture Vote

                            Executive Branch


                            Clinton Nominees

       Sam Brown--to be Ambassador to the Conference on Security 
     and Cooperation in Europe
       Henry Foster--to be U.S. Surgeon General


                          G. W. Bush Nominees

       Thomas Dorr--to be Undersecretary of Agriculture for Rural 
     Development and Board Member, Commodity Credit Corporation
       John R. Bolton--to be U.S. Representative to the United 
     Nations
       Peter Flory--to be Assistant Secretary of Defense


                             Obama Nominees

       Craig Becker--to be member of the National Labor Relations 
     Board
       Mel Watt--to be director of the Federal Housing Finance 
     Agency

                          Circuit Court Judges


                             Bush Nominees

       Miguel Estrada
       Charles Pickering
       William Myers
       Carolyn Kuhl
       Henry Saad


                             Obama Nominees

       Goodwin Liu
       Caitlin Halligan
       Patricia Millet
       Cornelia Pillard
       Robert Wilkins
       Source: Congressional Research Service.

  The PRESIDING OFFICER (Mr. Heinrich). The assistant majority leader.
  Mr. DURBIN. Mr. President, I will take a few minutes to respond to 
the statement just made by my colleague from Tennessee, my friend, 
Lamar Alexander.
  We have a circumstance here in the U.S. Senate which is----
  The PRESIDING OFFICER. On whose time does the Senator speak?
  Mr. DURBIN. Mr. President, I am sorry. I did not know we were in 
controlled time, so I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CRUZ. Mr. President, I rise in support of the Gillibrand 
amendment. I am proud to support Senator Gillibrand's concerted effort 
to deal with the problem of sexual assault in our military.
  I want to begin by commending her persistent leadership in forging a 
bipartisan coalition to tackle this serious problem. I supported the 
Gillibrand amendment in committee, and I am proud to be a cosponsor of 
the amendment here on the floor of the Senate. I rise today to share my 
reasons for supporting it and to encourage my colleagues to continue to 
come together in support of this amendment.
  Everyone in this body wants to support the men and women of our 
military. In the course of the Senate Armed Services Committee hearings 
on sexual assault, we heard testimony after testimony after testimony 
about the persistent problem of sexual assault in the military. I found 
myself persuaded by the arguments that Senator Gillibrand raised in 
defense of her amendments.
  Indeed, when I said at the hearing that I had been persuaded by the 
arguments, I have to tell you, afterwards a reporter from a newspaper 
came up to me astonished, and asked, in wonderment: Were you really 
persuaded by arguments at a hearing? I thought everyone came in with 
their views already set in stone, and nothing that was said here made a 
difference.
  I chuckled and said: Well, the arguments Senator Gillibrand put forth 
I found powerful in terms of how do we deal with a serious problem.
  There were two arguments in particular that I found persuasive. The 
first is that sexual assault has proven to be a persistent problem in 
the military. According to the Defense Department, 3,374 cases of 
unwanted sexual contact were reported last year.
  More than 23,000 additional cases of unwanted sexual contact went 
unreported. This has been a problem that has been present in the 
military for decades. Our commanders, our generals, our admirals, have 
worked in good faith, have worked diligently to correct this problem. 
It has proven a persistent problem. Yet, unfortunately, their efforts 
to correct the problem have not proven successful.
  In the civilian side, one of the great challenges when it comes to 
sexual assault is the relatively low rate of reporting. Sadly, on the 
military side, that problem is even greater. The most significant 
barrier we see to deterring and preventing sexual assault is that many 
of the victims are unwilling, are not comfortable coming forward and 
reporting the assaults they are experiencing. Despite the repeated 
good-faith

[[Page 17664]]

efforts of our military commanders, we have been unable to fix that 
problem.
  The second argument Senator Gillibrand raised that I find quite 
persuasive is that a number of our allies, including Great Britain, 
including Israel, including Canada, including Germany, have implemented 
reforms quite similar to the reforms she is proposing, which is namely 
that the decision whether to bring a prosecution for a crime like 
sexual assault should be made by an impartial military prosecutor and 
not by the commanding officer who may well be the commanding officer 
both of the victim of the crime and the perpetrator of the crime. Those 
reforms have been implemented by our allies. Our allies have not seen 
good order and discipline undermined. Indeed, the data suggests they 
have seen an increase in reporting rates. Those are the arguments that 
persuaded me that we need to solve this problem, we need to stop this 
problem.
  Let me point out that the coalition supporting the Gillibrand 
amendment is a bipartisan coalition. This cuts across party lines.
  In my view, there are two strong conservative principles, both of 
which the Gillibrand amendment furthers. No. 1, all of us want to 
strengthen our military, ensure that good order and discipline are 
protected; that our commanders are effective; that we maintain the 
strongest fighting force on the face of the planet. But, No. 2, all of 
us want to prevent and deter violent crime and to ensure that anyone 
who commits violent crime, and in particular a crime of a sexual 
nature, meets swift and sure punishment.
  Prior to being elected in the Senate I spent many years in law 
enforcement working to ensure that those guilty of violent crimes, and 
in particular crimes of sexual violence against children, against 
women, received the swiftest and surest punishment.
  In my view, the Gillibrand amendment furthers both of these 
conservative objectives. I have tried to think about this issue not 
just from the perspective of a Senator but also from the perspective of 
a father. My wife and I have two little girls, Caroline and Catherine, 
who are 5 and 3. I have tried to think if some years hence Caroline or 
Catherine made a decision to step forward and volunteer to serve in our 
Armed Forces, what are the rules I would want to be in place to ensure 
that my daughters were protected against any risk of sexual assault.
  Given the two-decade-plus history that we have seen in the military 
of not being able to effectively prevent these crimes and not having 
victims willing to come forward and report, in my view, shifting not to 
a civilian authority but to an impartial military prosecutor is going 
to significantly increase the reporting rates, which, in turn, is going 
to deter these crimes from being committed.
  All of us owe a duty to our soldiers, our sailors, airmen, and 
marines, the young men and women who voluntarily step forward to risk 
everything to defend our Nation. For one of those young soldiers to 
find himself or herself the victim of sexual assault is an absolute 
violation of that trust.
  The Supreme Court has referred to rape as ``short of murder, the 
ultimate violation of self.'' All of us have an obligation to make sure 
we are protecting our soldiers. An environment where young men and 
women in the military fear the risk of sexual assault or are not able 
to come forward and report those crimes is not an environment that 
furthers good order and discipline. So I would encourage all of my 
friends in this body, both Democrats and Republicans, to come together 
in support of this commonsense proposal to strengthen our military, and 
at the same time to deter and punish the unacceptable, unspeakable 
crimes of sexual assault so we can together honor the commitment we owe 
to all men and women in the military.
  I yield the floor and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Ms. AYOTTE. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. AYOTTE. Mr. President, I rise today to talk about a very 
important issue I spoke about on the floor yesterday; that is, 
eliminating sexual assaults in our military, making sure victims are 
supported, that they get the support they need.
  Yesterday on the floor I talked about important reforms we are doing 
together on a bipartisan basis to make sure victims receive special 
victims' counsel, so each victim is now going to receive an attorney 
who represents him or her in the system, and stands up for their 
rights.
  We make retaliation a crime under the Uniform Code of Military 
Justice so that victims of sexual assault understand if they are 
retaliated against, there will be a crime for that. In fact, those who 
retaliate will be brought to justice.
  There are many other dozens of reforms that are in the Defense 
authorization, but today I want to talk about a very important issue. I 
see on the floor Senator McCaskill. I want to commend her for her 
leadership on this issue. She has been a tremendous leader. Senator 
McCaskill, Senator Fischer from Nebraska, and I have offered an 
amendment that will further strengthen historic reforms that we 
discussed yesterday on the Defense authorization, including allowing a 
victim to formally express their wish about how their case will be 
handled, in addition to their being, of course, provided special 
victims' counsel, to provide the prosecuting attorney the ability to 
disagree with a commander's decision, which I will talk about more, and 
to have a review of that decision by the civilian head of each force.
  Then we eliminate things such as the good soldier defense. Then those 
who feel like they have been discharged from the military or how their 
discharge has been described will now get an opportunity to have their 
case reviewed. So we are not only looking forward, but we are going to 
look backward to make sure that victims of crimes know they will be 
treated with dignity and respect.
  I have come to this issue as someone who was a prosecutor. Most of 
the cases I prosecuted were murder cases, but I also had the chance to 
serve as attorney general of our State, where I worked with not only 
murder victims but also victims of sexual and domestic violence. This 
is a set of crimes that is unacceptable in society, but particularly 
unacceptable in our military, where we expect the very best from our 
military.
  I looked at this issue very carefully, the issue that has been 
discussed so much on the floor today, that is, in handling sexual 
assault cases and other types of cases, should the military justice 
system be changed fundamentally to take the commander out of the 
decision on whether a charge will be brought after an independent 
investigation. I came down on the side of we need to hold commanders 
more accountable, not less accountable, because everything within our 
military, of course, is deployable. We have the finest men and women 
who serve our country in the world. We have to have a military justice 
system structured in a way that it can bring justice in Afghanistan as 
easily as it can bring justice in the United States of America, 
wherever our men and women are situated. If we take commanders out of 
the decisionmaking process, then fundamentally we are holding them less 
accountable for the results of how these cases are handled. So I would 
like to talk about the proposal Senators McCaskill, Fischer, and I have 
that I think will hold commanders much more accountable.
  Right now, as we look at cases of sexual assault in our military, we 
want victims to understand they can come forward. When they come 
forward, and we want them to come forward, they will get the support 
they need and deserve; that their perpetrators will be held accountable 
for the crimes they have committed.
  We want commanders to establish a climate within their unit to say no 
tolerance when it comes to sexual assault. If you do not handle a 
sexual assault case properly, you will be relieved of

[[Page 17665]]

your command. That is what this is about.
  So in our proposal, rather than remove commanders from the 
decisionmaking--let me say how this works so people understand. Right 
now, a victim of a sexual assault or another serious crime comes 
forward. They do not have to come forward through their chain of 
command. They can come forward through a health care professional, they 
can come forward through a 911 call, they can come forward through 
their pastor to report a sexual assault. Then it is independently 
investigated.
  From there, that investigation is presented to a JAG lawyer in the 
chain of command who then makes a recommendation to the commander of 
whether a charge should be brought and whether they should be going to 
a military trial at that point. So to take out of that the decision of 
the commander is now to leave the victim in a situation where--let's 
put this victim in Afghanistan. They are in a situation where the case 
has been investigated. It comes back. The commander now does not take 
responsibility for whether a charge is brought. The commander is now 
put in a situation where: I am sorry, that decision is being made by 
another set of JAG lawyers who are outside of the chain of command, so 
go talk to the lawyers over here, not me. It puts the commander in a 
bystander responsibility rather than taking responsibility for these 
decisions.
  So what we have done is made commanders more accountable. When the 
JAG lawyer comes to the commander for a recommendation, saying this 
case should be brought on a sexual assault case, if the commander says: 
No, it should not, that will go all the way up to the civilian 
secretary of whatever force is involved, whether it is the Secretary of 
the Army, the Secretary of the Air Force, each branch, and will be 
reviewed separately. That will hold commanders more accountable than 
turfing it over to a lawyer over here where the victim has to hear 
that: I am sorry, I cannot tell you what the decision is on your case 
because there is a lawyer over here making this decision.
  Even in a case where the commander and the JAG lawyer both agree that 
a charge should not be brought, under our proposal there will be 
another review of those cases up the chain of command to say someone 
else should look at it. There should be accountability. There should be 
accountability at every level of our military to ensure that victims of 
sexual assault will be supported and that these cases will be handled 
and the perpetrators will be brought to justice.
  There has been a lot of discussion on the floor today. All of us want 
more victims to come forward and feel that they can report their case, 
because not enough of them have come forward.
  Yet the evidence shows that if we take commanders out of it, we are 
not necessarily going to get any more reporting. In fact, we have cases 
that may not be brought to justice. The evidence shows that commanders 
are being more aggressive than the actual JAG lawyers in terms of cases 
that are being brought. If we look over the last 2 years, there are 26 
Army victims where the JAG lawyer said: Don't bring the case.
  The commander overruled the JAG, went to trial, and the perpetrator 
was convicted. There was justice for this victim.
  Under this proposal those cases would not have gone forward because 
the JAG lawyer said: No, don't bring it. There were 16 cases in our 
Marine Corps over the last 2 years where that would have happened as 
well, where 16 victims wouldn't have received justice.
  There was one Navy victim, and nine Air Force victims would not have 
seen a conviction for their perpetrators--the rapists, who deserve to 
go to trial, to be convicted, and to be judged. Those cases would not 
have gone forward.
  When I hear Senator Gillibrand's proposal--and I respect her so much, 
and there is so much we agree on, and I respect the work that she has 
done and the work that we have done together on many of the provisions 
that I have talked about--the discussion that taking it out of the 
chain of command will cause more reports to come forward, then if less 
cases will go to conviction, if I am the victim, how does that make me 
feel more as if I want to come forward and report my case? Maybe my 
case won't be brought or there is a set of cases that would not ever be 
brought if a commander--who has responsibility within his or her unit 
for this--hadn't recommended this case go forward.
  The other argument we have heard a lot about is many of our allies 
have taken it out of the chain of command, including Canada, Great 
Britain, Israel, Germany, and Australia. There has been a 
misunderstanding, because as we researched this issue as to why our 
allies took it out of the chain of command, we discovered the truth is 
they took the decision out--of whether a commander would make the 
decision to go to a trial on a sexual assault case or other serious 
felony--to protect defendants, not victims.
  I can assure people--with all due respect to defendants, and I have 
defended cases as well because they certainly have rights under our 
laws and I respect that--this is about protecting victims. Our allies 
changed their system to protect defendants. What we are trying to do is 
to have a victim-friendly environment where people will come forward 
and where perpetrators will be held accountable.
  If we look at those countries such as Canada, Great Britain, Israel, 
and Australia, that have changed their system, they have not seen any 
greater reporting. In other words, it is one thing if we looked at it 
and said when they changed their systems the victims came forward. That 
is not the case. That is not what the evidence shows. Facts are 
stubborn things.
  As a former prosecutor, I want to make decisions on how to address 
this very real and important problem based on facts. The facts are that 
there are cases that wouldn't have been prosecuted if we took it out of 
the chain of command--perpetrators that should have been held 
accountable. Our allies did it, but they haven't seen any greater 
reporting, and they did it to protect defendants.
  What do we want to do? Let's hold our commanders more accountable. 
This is what some former peers of our military have said, such as COL 
Lisa Schenck, U.S. Army retired former Judge Advocate General, who 
spent 25 years in the military. We asked her about these two proposals. 
She said: If you take out the convening authority--meaning the 
decisionmaking process from the commander--you are essentially gutting 
the military justice process. If you take the court-martial process 
away from the convening authorities for sexual assaults or for major 
offenses, that allows them to say: Hey, the JAGs are dealing with it. 
They need to be held accountable, and they need to be part of a 
process.
  We don't want to create a situation where we say: I have turfed it to 
my lawyer over here, and the lawyers over here are going to make the 
decision.
  Commanders should be held accountable for those decisions.
  In fact, we had a woman who is currently in the Marine Corps come to 
the Republican Conference, a woman commander. She is very impressive to 
have reached the level she has in the Marine Corps. She works training 
our marines. I was very impressed with her experience. She has 
commanded at every level. She said: If you want to get this done for 
victims, don't make the commanders bystanders.
  This is what makes me very worried. If I thought that taking the 
commanders out of the decisionmaking process would help victims 
further, I would do it. As she describes: If you make a commander a 
bystander--which is what the proposal on the table of Senator 
Gillibrand is, who I very much respect, and I know her passion is very 
real for this and I share it. I don't want commanders to be bystanders. 
If they are bystanders, then how do we relieve them from command when 
they don't do their job on this because we have taken the decisionmaker 
standard from it.
  This is another issue that concerns me. We have spent a great deal of 
time, rightly so, trying to address the issue of sexual assault in the 
military. The Gillibrand amendment that is on the floor doesn't only 
take sexual assault

[[Page 17666]]

out of the chain of command, it takes out murder, manslaughter, death 
or injury of an unborn child, stalking, rape--we talked about rape--
larceny and wrongful appropriation, robbery, forgery; making, drawing, 
or uttering a check, draft or order without sufficient funds; maiming, 
arson, extortion, assault, burglary, housebreaking, perjury, and frauds 
against the United States.
  We need to understand that the reason we have the military justice 
system structured this way is because we deploy to places such as 
Afghanistan. Not only in sexual assault cases will the decision of the 
commander--whether or not to refer the charge for a trial--be changed 
under the Gillibrand proposal, but in all of these crimes in which we 
have not received any testimony about. We have not received evidence 
that the commanders are mishandling murder cases, manslaughter cases, 
arson cases, extortion, assault, burglaries, fraud.
  This is very much a fundamental change, not only in an area we all 
care passionately about getting right, to make sure that victims of 
sexual assault are supported, but all of these crimes will now be 
removed from the chain of command.
  How will that work in Afghanistan and Iraq? I am trying to figure 
this out. There have been over 900 cases in Iraq and Afghanistan, as I 
understand it, where some type of trial has had to be held because of 
offenses that were committed in Afghanistan, all different types. I am 
not only talking about sexual assault, I am talking about all different 
types of crime.
  How is that going to work? Are we going to say we will wait to see 
whether we should bring this to trial? The lawyers are located 
somewhere else. We don't know where; it could be in the Pentagon. So we 
will wait for the lawyers from the Pentagon, or wherever this separate 
set of lawyers are located, until we have justice in places such as 
Afghanistan.
  This is for all of these cases on all of these crimes about which we 
haven't even had any testimony before the Armed Services Committee to 
address an issue that we all care very much about.
  There were 900 cases from Iraq and Afghanistan. As we know, Iraq 
could have been as much of an issue in terms of having a deployable, 
military justice system to ensure that victims of all types of violent 
crimes, no matter where they are, will get justice and that 
perpetrators, no matter where they are, will be held accountable for 
their actions. This is what this is about.
  I thank the Chamber for all of the work that is being done, for all 
of this work done on this important issue. I know that after we vote on 
all of these proposals--Senator Gillibrand's proposal, as well as the 
proposal that Senator McCaskill, Senator Fischer and I have--that we 
will be working together to make sure that there is accountability on 
this issue. Reforms have already been passed that are in the Defense 
authorization. They are very important items such as the special 
victims' counsel that I mentioned earlier.
  I see Senator McCaskill, and I know that she and I, as members of the 
Armed Services Committee, are not going to let this issue go. There 
will be follow-up to make sure that the military is held accountable. 
We have the best military in the world.
  This does go to the core of our readiness of good order and 
discipline. We can't have good order and discipline if we put 
commanders on the sidelines. We will hold them more accountable under 
our amendment, amendment No. 2170.
  I thank the Chair for the opportunity to speak on this important 
issue.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. I understand Senator Lee is on his way to the floor. I 
will yield to him when he arrives.
  I came to the floor today to say what a good debate we are having. 
Let us be clear, there is only one amendment that puts in place a 
fundamental change; that is the Gillibrand amendment.
  We have had 20 years of promises that this problem would be fixed. I 
have a chart I will bring out later to show that every Secretary of 
Defense for 20 years, Republican and Democratic, has said exactly what 
Senator Ayotte has said: Oh, we are going to fix this, and it is going 
to be fine.
  We are picking up steam in our support. I wish to state the reason we 
are picking up steam. It is because, with all due respect, every single 
victims' organization that I know of supports the Gillibrand amendment. 
When victims say to me the reason I don't report is because I don't 
want to take it to my commander, I think we ought to listen.
  With all due respect, I love the Senators on the other side and I 
have great respect for the people in the military, but they are not the 
victims. The victims are standing behind the Gillibrand amendment.
  The committee that advises the Pentagon on the treatment of women in 
the military is called DACOWITS. This committee came out overwhelmingly 
in favor of the Gillibrand amendment.
  My colleagues are saying don't make this fundamental change. But the 
one committee that advises the military--made up of retired military 
members and civilians--had a chance to say go with the status quo or go 
with the Gillibrand amendment. They voted without a single dissent in 
favor of the Gillibrand amendment.
  When one stands here and defends the status quo in terms of the way 
this is decided, we have to understand they are in essence saying a 10-
percent reporting of these incidents is OK with them. Otherwise they 
would vote to change it.
  They can think they know why more people aren't reporting and fix it 
around the edges. I am so pleased we have some reforms in the bill. But 
the main, major reform and the reason the victims' rights groups are so 
behind the Gillibrand amendment is because it is the only fundamental 
change that is in the bill.
  I compliment my colleagues for what they have done. It is wonderful, 
but they don't get to the heart of it, which is why we have a 90-
percent problem. Of 26,000 cases, only 10 percent are reported. I 
thought it was bad in the civilian world where 50 percent are reported.
  I say to my colleagues, we all have staffs and we run a workplace. I 
don't know how many people each of us has in their offices. I say to my 
colleagues, suppose there was a horrible sexual assault that took place 
in our workplace. We knew the alleged perpetrator, and we knew the 
alleged victim. We would call the police. We wouldn't become the 
decider. We wouldn't become the jury, the judge, as these commanders 
do.
  What is really interesting is Senator Gillibrand called a press 
conference, and we had a commander who commanded troops in Iraq, and he 
said: Honestly, the last thing I wanted as I was getting my troops 
ready to fight and win battles was to deal with some horrible incident 
that occurred among those I was commanding. I wanted to get a 
professional in there.
  The Gillibrand amendment is important not only for the victims but, 
yes, for good order and discipline. How can people stand here and say 
there is good order and discipline when there are 26,000 incidents of 
sexual assault and only 10 percent are reported? There are thousands of 
people walking around the military not being charged, and sometimes the 
deal they get is to get kicked out.
  I will tell a story of one of my constituents because I think it is 
instructive. She joined the Marines. She was out with friends, and she 
was drugged. She was brutally raped. She was tossed on the street in 
the early morning hours. She woke up dazed. She reported it to her 
commander. Let me tell you what happened. The perpetrator got out of 
the military--probably to continue his rampage on the streets of some 
city we represent--and my constituent was investigated by the military 
for drug use because she was drugged that night and abandoned on the 
street.
  So I hope the people who support the status quo will hear that story 
and

[[Page 17667]]

hear the other stories. We have a 90-percent problem; 90 percent do not 
report. We have DACOWITS advising the military it is made up of former 
military members and civilians saying support Gillibrand. We have every 
victims' rights group I know supporting Gillibrand. I will just say 
that if a minority of this Senate stops us today, we are going nowhere. 
We had a press conference yesterday where we revealed the new 
Republican on our team; today, a new Democrat. We want to have the best 
servicemembers in the world. We want our commanders concentrating on 
what they have to concentrate on. We have men and women being 
assaulted, and we have a plan in front of the Senate, and that plan is 
the Gillibrand amendment. It is smart, and it has strong bipartisan 
support.
  Believe me, I was at a press conference with Senator Grassley, 
Senator Cruz, Senator Paul, Senator Shaheen, of course, Senator 
Gillibrand, Senator Hirono, and our group is growing. So if a minority 
of the Senate stops this, I will hearken back to the many reforms that 
have been made--whether it is don't ask, don't tell, gays in the 
military--you can just name them. Yes, it may take us a time or two. I 
remember having an amendment that lost that said you can't take 
convicted felons into the military if they have been convicted of a sex 
crime. I lost. I lost. But years later I won, and now you cannot take 
these felons into the military. So these reforms are hard. This one is 
20 years in the making. History will record who stood on the side of 
positive change, who stood with the victims, and who obstructed.
  I know everybody is doing it for reasons, and I respect that, OK. 
Let's be clear. But I am passionate about this because I have been here 
before. I was in the Congress during the Tailhook scandal, and I said 
to myself after that was publicized: This will never happen again. We 
won't see harassment. We will see a reduction in rapes.
  Remember, half of the victims are men. This is a crime of violence. 
This is a crime of terror. We have to make sure there is justice, and 
that means trained people making the decision of whether to go forward, 
trained people running the trial and not putting this on the 
commanders. At the end of the day, when you talk to them--and I haven't 
talked to all of them, but I have talked to many of them--they say the 
last thing they want is this power.
  No one can tell me there is good discipline when we have a 10-percent 
reporting record here--10 percent of the crimes are reported. It just 
can't be. That isn't good discipline. That isn't good order when you 
have rapists walking around because people are too scared to go to 
their commander.
  I know my colleagues are trying to do the best for this country, but 
listen to the victims. We don't know better than the victims. We don't 
know better. We should be humble. We should listen to the victims.
  Our allies have gone this way, and they have been pummeled here 
today, saying they have bad records and the rest of it. I think the 
reputation of the Israeli military is second to none. They have taken 
this outside the chain of command. Many of our other allies and 
friends--Australia. I visited there and talked about this. Frankly, 
this is the way to go.
  Sixty percent of the American people support the Gillibrand 
amendment--60 percent in a poll that just came out. So the people are 
for the Gillibrand amendment, the victims are for the Gillibrand 
amendment, and the one committee that advises the Pentagon on women's 
rights in the military is for the Gillibrand amendment.
  I praise everyone who has worked on so many other reforms in this 
bill. I am so proud. This is a reform bill. But I beg my colleagues to 
make that fundamental change we need to make and have the professionals 
decide whether there is a case from beginning to end. That is what 
justice really is.
  I will close with this. There is a woman who has been put up for 
Under Secretary of the Navy. I have a hold on her nomination. I don't 
believe in secret holds. This is from the Obama administration. She was 
asked about the Gillibrand proposal, and do you know what she said, Mr. 
President? Here is what she said: If you take this outside the chain of 
command, decisions on this crime will be made based on the evidence, 
not on good order and discipline.
  Can you believe that? This is the truth. We don't have decisions 
being made based on the evidence. This woman was honest, I give her 
that. She said that if we took this outside the chain of command, 
decisions on these crimes would be made based on the evidence. Well, 
she made our case, and I am proud to stand with a very strong 
bipartisan coalition in favor of the Gillibrand amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Republican whip.
  Mr. CORNYN. Mr. President, I ask unanimous consent to engage in a 
colloquy with my colleagues for 30 minutes and that those 30 minutes 
not count against the current 6-hour commitment to debate the 
amendments on military sexual assault.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. CORNYN. Mr. President, I have been a member of this Chamber for a 
while now, and during my time here few of our colleagues have done more 
to expose waste and duplication and overspending than our colleague 
from Oklahoma Senator Coburn. I am, of course, cognizant of the fact 
that Senator McCain, the senior Senator from Arizona, has quite a 
reputation himself in this area. I am pleased to join both of my 
colleagues, along with, I anticipate, the junior Senator from Arizona, 
to talk about some very important work Senator Coburn and his staff 
have done to help highlight the savings we can find within the Defense 
Department budget due to duplication and waste and failure to exercise 
reasonable management practices, such as audits. We can save money and 
reallocate that money to help our fighting men and women in uniform, 
help keep them safe and help maintain America's role as a preeminent 
military leader in the world.
  Senator Coburn has pointed out in a new report I am sure he will talk 
about that we can save more than $60 billion by consolidating half the 
Federal Government's duplicative programs. Each of these programs has 
its own overhead, and through consolidation we can eliminate that 
overhead and still make sure the same amount of money is used to 
deliver the particular service. For that matter, if we were to 
consolidate just a third of the renewable energy programs, we could 
save $5 billion alone. If we stop sending unemployment checks to 
millionaires, we could save another $30 billion.
  I am a proud defense hawk. We call it the Yellow Pages test in Texas. 
If you can look in the yellow pages and see a service being provided by 
the private sector, you have to ask, why is the government providing 
that service? But there is no ability of anyone to provide national 
security except for the Federal Government. It is the No. 1 reason for 
the Federal Government's existence, and it is a tragedy to see so much 
money wasted when it is needed so desperately by our military during 
these very dangerous times. It is, indeed, embarrassing that the 
Pentagon cannot even conduct an audit. They do not know where the money 
is. They do not know how it is being spent, how it is being misspent. 
So I am a proud cosponsor of my colleague's Audit the Pentagon Act. The 
Pentagon isn't scheduled to actually perform an audit until 2017, and I 
doubt they will be able to meet that deadline. I am sure we will hear 
more about that from the Senator from Oklahoma.
  There is no good reason why the Pentagon shouldn't be able to tell 
the American people exactly how it is spending hundreds of billions of 
dollars in taxpayer money. Don't get me wrong. If our military needed 
the money in order to protect the American people and to keep us safe, 
I would vote for that expenditure 10 times out of 10. But when I am 
told there is money that should be spent helping keep us safe and 
protecting our national security that is wasted through duplicative 
programs, through inefficiencies, through the inability to simply 
manage the hundreds of billions of

[[Page 17668]]

dollars the Pentagon manages, it makes me livid, as I think it should 
all of the American people.
  We know DOD continues to experience serious cost overruns with major 
acquisition programs. I know Senator McCain, in his capacity on the 
Armed Services Committee, has been an eloquent critic of these cost 
overruns of various acquisition systems. A 10-percent reduction in DOD 
waste could yield an annual savings of $60 billion--$60 billion. That 
is real money, and that is money that could either be reallocated to 
pay down the debt or could be reallocated to help fund very important 
overseas operations by our military in dangerous parts of the world or 
here at home.
  The bottom line is that even those of us who are proud national 
security hawks should be pushing first and foremost to eliminate 
wasteful defense spending and to audit the Pentagon. In my view, those 
are no-brainers. We should not continue down the path of wasteful 
Washington spending and say: Well, we don't have enough money, so we 
are just going to bust the budget caps in the Budget Control Act. We 
shouldn't say: Well, we are not going to address the hard issues of 
wasteful spending at the Pentagon; we are just going to raise taxes. 
Those are cop-outs, and we shouldn't go there.
  With that, I yield the floor for my good friend from Oklahoma.
  Mr. COBURN. I thank the Senator from Texas. I have worked on these 
areas for a long time. I too am a defense hawk. I am not often accused 
of that because I am critical of wasteful spending in the Pentagon.
  Let me outline for my colleagues that the Pentagon's budget is near 
$600 billion, counting the extra money for overseas efforts today. Just 
by auditing the Pentagon, the GAO estimates the Pentagon itself would 
save $25 billion. The only branch of the Pentagon that has come close 
to an audit so far is the Marine Corps. For every dollar they are 
spending now on managing, they are saving $3 in the Marine Corps.
  So we have repeated attempts through the year to address the symptoms 
of the problems rather than the real problem. Let me outline that.
  The Pentagon has a broken procurement system. If we think about the 
programs which have been canceled and the penalties paid because of the 
programs which have been canceled--and Senator McCain can talk about 
those better than I ever could--we have never fixed the real problem, 
and the real problem is what Eisenhower warned against. It is the 
defense industrial complex. The only way we will ever solve the 
procurement problem of major weapons systems is to force the defense 
industry to have capital at risk on new weapons systems. In other 
words, they have to have money in the game.
  What routinely happens are two things: One is they don't have money 
in the game and we start out at cost-plus programming. Then the second 
problem--which Senator McCain identified with me today and I have long 
known--is there is never a grownup in the room when it comes to adding 
on the bells and whistles in terms of the costs. As a matter of fact, 
half of the major weapons systems the Pentagon is buying today are on 
the high-risk list by GAO. So what we have to do is fix the real 
problems, not continue to treat the symptoms.
  Let me run through a list in terms of savings in the Pentagon. These 
are not 1-year but 10-year numbers. So if we instituted this, we would 
save one-tenth of what I mention.
  Just consolidation of the defense IT structure could save $160 
billion over the next 10 years. There are 80,000 employees working in 
IT for the Pentagon. That is twice the population of my hometown. They 
have more data centers in the Pentagon than we have in all the rest of 
the government combined. As a matter of fact, Senator Bennet and I have 
coauthored a bill to reduce those data centers. They are not highly 
utilized. They are very expensive to run. They also put us at risk for 
cyber security.
  The other thing not mentioned about IT is in weapons system 
procurement we have other ITs that aren't even counted in this, 
managing those procurement programs.
  If we took the V-22 Osprey we have on order and replaced it with MH-
60 helicopters--which can accomplish almost exactly the same thing--we 
can save $600 million a year, every year, over the next 10 years. 
Boeing doesn't like that--Boeing and their partner in contracting don't 
like that. But there hasn't been a weapons systems we have deployed 
that has had as many problems as the V-22 Osprey. Yet we are going to 
buy more, rather than a proven vehicle transport system which can 
accomplish almost everything the Osprey can. It is not the latest, it 
is not the newest, but it actually accomplishes the goal.
  If we reduce the spending for other procurement programs--and let me 
say why this is important. The Defense Logistics Agency has no idea 
what they have in inventory. There is a public law which says they will 
have an inventory. They have ignored it for years. So they have never 
taken an inventory. It is ``too big'' to take an inventory. There are 
hundreds of billions of dollars of equipment and parts and supplies at 
the DLAs, at the depots around the country, that are in excess and we 
continue to buy new parts for because we don't know we have them. Fix 
the real problem. That is $52 billion over the next 10 years.
  If, in fact, we took nonmilitary jobs at the Pentagon being filled by 
uniformed personnel today and replace them with civilian Federal 
employees, we would save $53 billion over the next 10 years. These do 
not require a trained soldier to do these jobs. That is $5 billion a 
year. That is 10 percent of the sequester on the Pentagon. All we have 
to do is to decide to do it. Do it. But we will not do it.
  If we reduced contractor support and did more stuff internally by the 
military--and I will give a great story. Offutt Air Force Base in 
southwest Oklahoma, C-17 training. The most recent commander down there 
saved $136 million the first year he tried in running that base. He got 
the heck kicked out of him for doing it by the higher-ups because they 
wanted him spending all the money. But what he did is demonstrate there 
was $136 million we could save on that one base. The question is, Where 
is the leadership to do that? So we could save that $53 billion--$37 
billion in terms of decreasing contract support.
  If we just consolidated the three military health care services, we 
would save $380 million a year. At the same facilities, at the same 
locations we have duplicative military health care services. So we can 
consolidate that, give more consistent care, give better care, and yet 
save a significant amount of money.
  The Department of Defense has over 104 science, technology, 
engineering, and math programs. Governmentwide we have 207. Over half 
of them are at the Department of Defense. Why 104 from the Department 
of Defense? Why not one that incentivizes science, technology, 
engineering, and math? If we consolidated them, we could save $1.7 
billion over the next 10 years. That is $170 million a year.
  What will that do for the operations and maintenance budget? What 
will that do for flying time for our pilots? What will it do for 
training that is not happening now for people deploying to Afghanistan? 
Those should all happen.
  Domestic schools. We have 16 bases that still have domestic schools 
on them, where we run schools by the Pentagon. The cost per student in 
the United States is $50,000 per student, five times what we spend 
everywhere else in this country on elementary and high school 
education. If we just ran those in the local school district and paid 
them $1,000 or $2,000 more than their average cost, we would save over 
$9.8 billion the next 10 years. We would save $1 billion a year.
  If we consolidated the DOD-administered grocery and retail stores--
and, by the way, Walmart has offered to do that, to offer the same 
prices--we lose money every year on those, and that doesn't include the 
cost of running them. When we have gone out to price things against the 
grocery store or Costco or Walmart or everywhere else, we can actually 
buy it as cheaply in

[[Page 17669]]

the private sector as we can at a base PX. The point is here is a 
perceived benefit which is costing us a lot of money but isn't truly 
there.
  Mr. McCAIN. Will the Senator yield for a question?
  Mr. COBURN. I would be happy to yield.
  Mr. McCAIN. As my friend from Oklahoma knows well--and, by the way, I 
wish every American could have a chance to read this list of waste, 
fraud, and incredible misuse of Americans' tax dollars. But one of the 
areas not in this document that the Senator from Oklahoma and I have 
talked about is the issue of cost overruns in our weapons systems.
  For example, the latest aircraft carrier which was just christened 
with great fanfare, the Gerald R. Ford, is now at a $2 billion cost 
overrun of what the original cost estimate was. That is for one ship. 
When I think about what the $2 billion cost overrun could do in my home 
State of Arizona, it is even more staggering. Yet somehow we let this 
cost overrun accumulate over a long period of time, and the ship still, 
by the way, was recently christened, which does not mean finished, 
commissioned.
  At a hearing we had in the Armed Services Committee the other day 
where the effects of sequestration--which I think are devastating--were 
described by each of the service chiefs, the Chief of Naval Operations, 
my old service, said: We need $500 million more for the Gerald R. Ford. 
I was stunned. I said to him: Admiral, there is a $2 billion cost 
overrun on that ship. I asked him if anyone had been fired. His answer, 
I tell my friend from Oklahoma, was he didn't know if anyone had been 
fired over the cost overrun of over $2 billion, with a request for $500 
million more.
  The Senator from Oklahoma mentioned the military industrial complex 
that President Eisenhower so wisely spoke about. I would disagree. I 
think it is a military industrial congressional complex because never 
has Congress canceled a program once it has been in full production.
  I ask my friend from Oklahoma, what do we do about what I think is 
the No. 1 cost right now in the Pentagon; that is, cost overruns. I 
could mention the $1 trillion F-35 and many other programs. What is to 
be done about that?
  Mr. COBURN. There are a lot of ideas. No. 1, our biggest problem is 
when we buy, we don't know what we want. So don't even start a proposal 
until we truly know what we want. That is No. 1.
  No. 2 is there has to be capital at risk by the person building the 
ship or building the airplane. The only way to incentivize the private 
industry to control cost is to make sure half the cost is coming out of 
their hide. If we do that, what will happen is we will see real cost 
control because they don't do it on the commercial side. They only do 
it on the military side.
  The third thing is having a grownup in the room when we decide to 
make modifications. The fact is, when we think we have an unlimited 
budget, nobody is there to say: You don't have an unlimited budget. You 
can't add this. It may be nice.
  There is a great story on that. It was an Army backpack helicopter 
developed by Honeywell--on time, on price. Here is Honeywell delivering 
what the Army wanted on time and on price, and the military buyers 
added bells and whistles. It ended up weighing 12 pounds more, tripling 
the cost, and delaying the onset, to where they finally cancelled it--
not because the supplier didn't supply it on time and on price, but the 
military was out of control in terms of what they were asking for. So 
they didn't get it. So we didn't have the availability to our troops in 
Iraq and Afghanistan to look behind walls, which was available and on 
time. But it was our purchasing system.
  So we can't worry about the symptoms. We have to change the 
structure. We have to change the leadership.
  I will make one final point. Right now we have more admirals than we 
have ships. At the end of World War II, we had 10,500,000 people under 
arms, we had over 2,200 general staff officers. Today, we have half 
that many and 1,500,000 in arms. There is one of the big problems. One 
of the biggest problems is that we have way too many staff officers--
general staff officers who each have a cadre of people and then protect 
their turf. They don't protect the country, they protect their turf, 
and that is not to take anything away from their service. It is human 
nature. What we need is a marked reduction in general officers.
  Mr. FLAKE. Would the Senator yield?
  Mr. COBURN. I would be happy to yield.
  Mr. FLAKE. The Senator mentioned the problem we have of the Defense 
Department running schools which ought to be run by local school 
districts. It goes even beyond that.
  Just in the past couple of years we have absorbed into the defense 
budget a capital maintenance--new capital building and replacement of 
schools that are managed by the local district. Several hundred million 
dollars just in the past couple of years, and obligated for the next 
several years, will be used to rebuild or refurbish or to maintain 
schools which are the responsibility of local districts.
  What has happened is people say the local districts may not be able 
to afford it or the Department of Education doesn't have jurisdiction. 
There is a defense budget we can put it in. We have seen that in other 
areas as well. So the Department of Defense is assuming 
responsibilities it just shouldn't have. When it does, typically the 
costs are much greater as well.
  So I take the Senator's point and just say it is worse than we know 
because we have added new responsibilities and new budget items just in 
the past couple of years.
  Mr. COBURN. I would add one thing and then yield back to my 
colleagues.
  Inside the Defense Department, over the next 10 years, we are going 
to spend approximately $60 billion on things that have nothing to do 
with defense. Ten percent of that is health care research conducted by 
the military which doesn't have anything to do with the military. We 
have the NIH, the world's premier leading research organization, and we 
ought to transfer that out of the military.
  As a matter of fact, the guy who started that was a friend of mine, 
Ted Stevens. One of the last things he told me is one of the biggest 
mistakes he ever made is putting medical research into the Pentagon, 
because now it gets funded, and we are duplicating things at the 
Pentagon which we are doing at NIH on diseases such as breast cancer, 
prostate cancer. I happen to have a little experience with that one. 
The fact is we are not spending the money wisely. We are spending money 
we do not have duplicating what we are already spending money on.
  I yield to my senior colleague.
  Mr. CORNYN. I ask the Senator from Oklahoma, isn't it true he has the 
materials Senator McCain referred to posted on his Web site?
  Mr. COBURN. If people are interested, coburn.senate.gov, and they can 
get that information. Everything we have, every study we have 
published, all the waste, all the duplication.
  I have one other item.
  There is at least $200 billion a year that the GAO--not Tom Coburn--
has identified in waste and duplication in the Federal Government. We 
have not acted. Only one committee of Congress, Education and The 
Workforce, in the House, has acted on one of the recommendations as far 
as duplication. So the problem is us.
  Mr. CORNYN. I ask the senior Senator from Arizona, as we discussed, 
he has been a critic and pointed out waste in the procurement process. 
I know the military, in designing state-of-the-art weapons systems, the 
F-35, for example, built in the notion of concurrency, where they are 
actually designing it while they are building it which creates cost 
overrun challenges. But I know the Senator was also instrumental in 
finally getting the Pentagon to negotiate a fixed-price contract. Could 
the Senator talk a little bit about some of the challenges?
  Mr. McCAIN. For years, I say to my colleague from Texas, the cost 
overruns went unchecked. When someone has a roof that leaks and they 
hire

[[Page 17670]]

someone to fix the roof on a cost-plus contract, I guarantee that the 
cost to have your roof fixed will probably exceed the initial estimate 
the roof fixer provides you. When we go into cost-plus contracting, 
which is justified by many of the contractors saying, well, we are not 
sure what the additional costs will be, they do not seem to have 
difficulty once those contracts are fixed cost.
  The best example--best or worst example--I can tell my friend from 
Texas is the original effort to replace Marine One, the Presidential 
helicopter. This helicopter, over a period of a couple of years, went 
from requirement to requirement to requirement, to the point where it 
was even a requirement that the helicopter could withstand a nuclear 
blast. It ended up, before it was even off the drawing board, at a 
greater cost than Air Force One. At a greater cost than Air Force One. 
So finally they had the good sense to scrap it and we are still using 
the old reliable helicopter which seems to fairly suit the purpose of 
transporting the President.
  Another interesting story was the Air Force now believes that one of 
their primary acquisitions has to be a long-range bomber. We are 
starting in this process again. At one point there was a proposal to 
put a kitchenette--I am not making this up--a kitchenette into the 
long-range advanced Air Force bomber. Finally someone decided maybe 
that doesn't look too good, to have a kitchenette on this airplane. But 
that is the case of what happens in the system we have today.
  God knows the chairman Senator Levin and I and other members of the 
Armed Services Committee have gone time after time to try to bring 
these costs under control. I guess one of the favorite stories is of 
the famous Kelly Johnson of ``Skunk Works'' of the old Lockheed team. 
They went out in the desert of Nevada and came back 7 weeks later with 
the SR-71. Now it takes literally decades to come forward with a 
weapons system, and never once in recent years that I can recall has 
there been a weapons system on time and on cost.
  Then you understand, I say to my friend from Texas, where the defense 
industry is so important and vital to the economy of his State, as it 
is with mine. The Apache helicopter, which I am very proud of, is built 
out in the east valley of Phoenix, AZ. But the American people then 
become cynical about defense spending. That really does erode our 
ability to sponsor and support those requirements that are so badly 
needed.
  I thank the Senator from Oklahoma for all he has done to continue to 
bring this to the attention of the American people.
  I want to make one additional comment about this medical research. 
There is not a person I know in America who does not support medical 
research. Particularly cancer is one of the big projects we appropriate 
money for. But it is the classic Willie Sutton syndrome. What in the 
world does the Defense Department have to do with cancer research? It 
is the Willie Sutton syndrome. They asked Willie why he robbed banks 
and he said: That is where the money is. So we are robbing Defense 
appropriations for programs and projects that have nothing to do with 
defense, but because the money is there we are spending it.
  Meanwhile, we do not have, particularly as a result of sequestration, 
adequate funding, in my opinion, that will enable us to continue to 
defend this Nation.
  All of us are for medical research. I do not know anybody in the 
world who is not. But for us to take money out of Defense 
appropriations and put it into medical research is something that is 
not any way justified except for the fact that the money is there.
  Mr. CORNYN. Mr. President, how much time remains?
  The PRESIDING OFFICER. There is 1 minute 40 seconds remaining.
  Mr. CORNYN. I yield the remaining time to the junior Senator from 
Arizona.
  Mr. FLAKE. Mr. President, it is interesting in terms of the money 
being used where it should not be. I gave the example last week, and I 
am coming down every week and speaking at least 5 minutes on waste and 
duplication in government. I talked a couple of weeks ago about the 
Department of Agriculture. The Department of Agriculture--this is the 
Department of Agriculture, but you would not know it when you look at 
some of the programs run by the Department of Agriculture. No. 1, they 
have a Single-Family Housing Direct and Guaranteed Loan Program in the 
Department of Agriculture. It provides zero downpayment mortgage loans. 
It has cost the taxpayer about $10 billion since 2006. That is the 
Department of Agriculture, running a housing program.
  We see this all over government. It is wrong. Eliminating the 
duplication that Senator Coburn, the Senator from Oklahoma, has spoken 
of many times can save our government and the taxpayers billions of 
dollars a year.
  I appreciate, my colleagues, this colloquy we have had, and I look 
forward to more.
  Mr. CORNYN. Mr. President, we yield the remainder of our time.
  The PRESIDING OFFICER. The Senator from Maine.
  Mr. KING. Mr. President, I rise to address one of the most difficult 
issues we have faced in this bill, an issue on which the Armed Services 
Committee spent a great deal of time, in fact more time than on any 
other issue this year. It is the issue of sexual assault in the 
military.
  At our very first hearing where we were discussing this with a group 
of people, I made the observation that the only sure, long-term way to 
confront and defeat this tragic problem is through a change in the 
culture. It has to become unacceptable in the culture of our armed 
services that sexual assault is in any way tolerated or ignored. We 
have to solve this. It is a problem that has been festering for years. 
I understand the impatience of those who say we have been waiting for 
too long, we have to take strong steps. I think it is very important to 
realize that in the bill that is already before us are strong steps, 
the most comprehensive package of sexual assault provisions that has 
ever been in any Defense bill, to my knowledge, in the history of this 
institution. It has been taken seriously. It has been dealt with in a 
comprehensive way, some of the strongest changes ever.
  I think one of the most important I want to highlight is the 
criminalization of retaliation. A great deal of the discussion has been 
about reporting and the reluctance of victims to report, in part 
because of retaliation. One of the provisions in this bill is to make 
it a crime to retaliate against a victim for reporting one of these 
horrendous crimes. The debate today is about one particular provision, 
one particular provision dealing with sexual assault that is not in the 
bill, and the question boils down to who makes the decision to refer a 
sexual assault case to prosecution.
  I have heard the debate. I should have said at the outset, I so 
admire Senator Gillibrand for her intellect, for her passion, for her 
dedication, for her perseverance on this issue. Everybody involved in 
this debate has exactly the same goal, which is to get rid of this 
problem, to diminish it, to reduce it to zero, to not tolerate it. That 
is the goal of everyone involved. The question is whether removing the 
decision to refer to court-martial from the commander will further that 
goal or in fact will undermine it.
  After listening to the arguments, discussing it at length with 
Senator Gillibrand and others, I have concluded that to take this 
decision out of the chain of command would in fact do harm to the cause 
of victims' rights.
  The reason is simple. I want the commander to be fully responsible 
for this problem. I don't want a commander saying: It is not my problem 
anymore; the Congress of the United States has said I don't have to 
worry about this; I will check that box.
  I believe, going back to my original point, that the way you change 
the culture is in a multifaceted approach, but certainly one of the 
ways you do it is through the decisions that come from the commander. 
That is what sets the tone in the unit. Leadership always infects an 
entire unit in good or bad

[[Page 17671]]

ways, and I believe it would be a mistake on the side of the victims if 
we change the system and allow the commanders to say this is not my 
problem, this is not my responsibility.
  As Senator Reed mentioned on the floor earlier today, the Senator 
from Rhode Island, one of the most important changes is a change the 
Pentagon has itself made which is to hold commanders responsible for 
the sexual assault record in their unit as part of their evaluation for 
promotion. That is part of the way you change the culture.
  This is a very difficult decision, but I think it is important to 
realize that the decision on this amendment is not: Are you in favor of 
victims' rights or are you in favor of the brass? I reject that 
dichotomy because already within the bill are these very strong 
provisions which are directed at this serious problem. What we are 
talking about is a fairly narrow discussion of who makes that decision. 
As a former practicing attorney who has had experience in criminal 
cases, prosecutors I think may be more conservative and less likely, in 
some cases, to bring cases to trial than the commanding officer who 
wants to ensure that justice is done for that victim. What we want is 
no victims. We want this problem to end. We want this era to change 
because the culture changes within the military, and that which was 
acceptable at one time is no longer acceptable.
  The best example I can cite for that in my life is drunken driving--
OUI. When I was a young man, there was an epidemic of drunken driving 
in this country, and it was considered as kind of a joke. It was 
considered as a sort of a rite of passage. Suddenly, through law 
changes and societal changes over a generation, it is no longer 
acceptable or funny, and it is no longer tolerated, and as a result we 
have seen a decline because the culture has changed. That is what has 
to happen in the military, and I think it begins with the commanding 
officer.
  In my opinion, to take this responsibility away from the commanding 
officer is not siding with the brass, it is siding with the victims, 
because I want those commanding officers fully engaged in this 
decision. I want them fully responsible for their decision. I want them 
to be what, in fact, they are, leaders--leaders who can make change, 
and leaders who can make change in this critical area. If it doesn't 
work, as my father used to say, Congress is always in session. We can 
come back and correct it.
  I believe we are at a moment where the military is being given a last 
chance to deal with this within the chain of command. I think we have 
given them the tools to do so in this bill, and I urge my colleagues to 
support Senator McCaskill's amendment and to move forward with this 
bill which we can be very proud of in terms of its recognition of this 
horrendous issue, but also in terms of the solutions and tools it 
provides to our military to solve this problem once and for all.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Coons). The Senator from Arizona.
  Mr. McCAIN. Mr. President, I thank my friend and colleague from Maine 
for his very thoughtful statement. After having several conversations 
with him, I know he did not come to this decision easily, but I 
certainly think he made a very strong argument for the decision he 
arrived at.
  He and I--and all of us--share a deep and abiding concern about the 
issue that is before the Senate in the form of the amendment to the 
National Defense Authorization Act that is being debated on the floor. 
This is a very difficult situation. It is an unacceptable situation 
where men and women in the military may be exposed to sexual assault 
but, more importantly than that, the individuals who are responsible 
for those assaults need to be held accountable.
  What we are asking today is: Are we going to hold the people who are 
in charge accountable for bringing offenders to justice or are we going 
to farm that responsibility out to some other entity, individual, or 
some other part of the bureaucracy? That is the question before us.
  I trust these commanders. I have known thousands of them. I trust 
them, and I believe in them. Has there been an insufficient effort 
devoted to preventing these horrible crimes from taking place? Yes. I 
trust these commanders--these men and women in command--to take the 
proper action necessary because it is their responsibility.
  The changes that are in this legislation include removing the ability 
of commanders to overturn jury convictions, require review of decisions 
not to reverse charges, criminalize retaliation against victims, 
provide a special victims' counsel to victims of sexual assault, and 
support and assist them through all their proceedings. That is why I 
supported Senator Boxer's amendment which reforms article 32 of the 
Uniform Code of Military Justice. Her amendment will help prevent the 
abuse of victims of military sexual assault in a pretrial setting.
  We are taking action in this legislation. Maybe we can be found 
guilty of not acting soon enough. Basically this deals with a 
fundamental question: Do we not trust the commanders--whose 
responsibility is the very lives of the men and women under their 
command--to do the right thing? That is the difference between the 
Gillibrand amendment and what has already been done in this 
legislation.
  We have had extensive hearings, debate, and discussions on this piece 
of legislation. The question is: Do we trust the commanders to do the 
right thing within the proper parameters, such as removing the ability 
of commanders to overturn jury convictions, require review of decisions 
not to prefer charges, and criminalizing retaliation against victims?
  As far as I can tell, we have taken significant and important steps 
that will protect our men and women not only from assault but the 
abuses and recriminations that may be visited upon them in cases where 
they are victims.
  I am not saying the legislation before us will eliminate sexual 
assault, but I am saying that what we are doing is exactly what we did 
at other times when there were crises in our Armed Forces. I am 
referring back to the post-Vietnam war era. I was a commanding officer 
in 1975, 1976, and 1977, and we had racial, drug, and discipline 
problems. We had the post-Vietnam war syndrome where our military was 
in total disarray. We were dealing with drug abuse and racial 
discrimination. There were race riots on aircraft carriers.
  What did we do? We placed the responsibility directly on the 
commanding officer, and if they didn't take action and failed, they 
were relieved. That is the way the military should function, and that 
is the way the military has functioned successfully. We had programs, 
advisers, indoctrination, and punishment--punishment for those who 
refused to adhere to the standards of conduct we expect every man and 
woman in the military to adhere to.
  What does the Gillibrand amendment do? It removes the commander. It 
removes the person--the man or woman in command--who has the ultimate 
responsibility, unfortunately, from time to time of taking these young 
people into battle and risking their very lives. That is what makes 
them different from any other part of America and any other part of our 
society.
  The Gillibrand amendment says we don't trust these commanders. Well, 
we trust those commanders with the lives of these young people. We ask 
them to have the ultimate responsibility, which is that of defending 
this Nation, but we don't trust them to prosecute and do their job and 
their duties? Well, that flies in the face of every encounter I have 
ever had with the men and women who were in command, and the senior 
petty officers, master chief petty officers, and master sergeants who 
are responsible for the good order and discipline of the men and women 
in our Armed Forces.
  I won't go into the fact that this Gillibrand amendment includes 
matters such as burglary, perjury, robbery, and forgery. It has been 
expanded beyond belief in its areas that have to be referred out of the 
chain of command. I will not even bother with that.
  I say to my colleagues as passionately as I can that if we do not 
trust

[[Page 17672]]

the commanding officers who take our most precious assets--the young 
men and women of the military--into battle, then we obviously need to 
reevaluate our entire structure of the military. But I do trust them. 
The finest people I have ever known in my life are those who have 
worked their way up to positions of authority in command through a very 
severe screening process. Have they made mistakes? Can we find an 
example or a case where the right thing was not done? Of course we can. 
There is nowhere in our society where we can't find examples of people 
who have not done the right thing.
  Today I am embarrassed that it seems naval officers were involved in 
some kind of bribery scheme about overseas ships. Sometimes we are 
embarrassed by leaders of our military, but they are the exception and 
not the rule.
  If the Gillibrand amendment is passed, the message we will send to 
the men and women in command in the military is that we don't trust you 
and we don't believe in you. That is what this is all about. If we 
follow through with the 26 changes that have been made in the Defense 
authorization bill and ensure that if there is a wrong decision made in 
some cases, that decision will be sent all the way up the chain of 
command to the service secretary.
  This is a terrific and horrific problem in our Armed Forces today. We 
have done what we believe and what our military and military leaders 
believe is right--leaving the commanding officer in the decisionmaking 
process concerning the lives and welfare of men and women under their 
command. I hope we will realize that if we pass the Gillibrand 
amendment, our signal to the men and women in leadership--whether they 
are our senior enlisted personnel or our officers--is we don't have any 
confidence in you, and we don't trust you. That is the message we will 
send if we pass this amendment today.
  Are they perfect? No. Have they made mistakes? Yes. That is why we 
put provisions in this bill which would circumscribe much of the 
decisionmaking process but still leaves final decisions in the chain of 
command.
  I urge my colleagues to reject the Gillibrand amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mrs. FISCHER. Mr. President, I rise today to speak on the series of 
historic reforms adopted by the Armed Services Committee to combat 
sexual assault in the military. The women have taken the lead on this 
matter. Sexual assault is not a gender issue, it is a violence issue.
  I rise to voice support for a bipartisan amendment that I have 
offered with Senator McCaskill and Senator Ayotte to directly confront 
this violence, and I urge my colleagues to oppose any radical changes 
that would undermine justice for the victims and take away 
responsibility from commanders.
  I am proud to have supported several measures to strengthen the 
rights of victims, hold perpetrators accountable, and strengthen 
oversight of military commanders to ensure that justice is delivered.
  As a result of a truly bipartisan effort, the committee has put forth 
a bill that takes an unprecedented step of providing victims with a 
special victims' counsel to make certain they are receiving unbiased, 
independent legal advice. It strips commanders of the ability to 
overturn jury convictions, makes retaliation against victims a crime, 
requires dishonorable discharge or dismissal for those convicted of 
sexual assault, and provides critical civilian oversight.
  Despite achieving these unprecedented reforms in committee, my 
colleagues and I continue to explore ways to enhance the current bill 
after the committee's work had concluded.
  Senators McCaskill, Ayotte, and I introduced an amendment last week 
to expand upon the committee's progress. Our proposal extends current 
protections to service academies, boosts evaluation standards for 
commanders, and allows victims increased input. It also eliminates the 
good soldier defense in most cases.
  These changes, both in our amendment and in the whole NDAA, are 
significant but, importantly, they are also serious and thoughtful. 
They are based on sound policy, not on political sound bites.
  Rather than radically remaking the entire military justice system, 
which would carry significant risks, our proposals improve and update 
the current system. To do so, we applied lessons from history.
  In 2006, Congress hastily changed portions of the Uniform Code of 
Military Justice to address instances of rape. These changes disrupted 
victims' paths to justice, and Congress was forced to rewrite its own 
changes a few years later.
  Congress can't afford to get something this important wrong. We 
cannot let our deep desire to solve this problem lead to imprecise 
solutions because victims suffer when we do. Any changes to the UCMJ 
should come after a deliberate and transparent process, with feedback 
from all sides. The McCaskill-Ayotte-Fischer amendment is the result of 
such a process, and I encourage my colleagues to support it.
  Finally, I urge my colleagues to oppose any amendment that undermines 
a commander's responsibility for his or her troops. Senator McCaskill 
put it so well when she spoke on the floor earlier today: The amendment 
offered by my friend and colleague, the junior Senator from New York, 
offers a solution that is ``seductively simple,'' but its simplicity 
creates a host of complex policy problems.
  In addition to technical concerns, I do not agree with the underlying 
goal of removing commanders from the military justice system. As 
Senator McCaskill noted, we know commanders pursue courts-martial when 
their legal advisers recommend against doing so. We know, based on the 
experiences of our allies, that removing commanders from that judicial 
process does not achieve the desired results. And we know that 
commanders have risen to the challenge in the past to confront 
contentious issues within their units, including integration. These 
facts lead me to conclude that the changes in this bill, combined with 
the reforms included within our amendment, will best serve the 
interests of victims and punish those responsible.
  I commend the Senator from Missouri for her leadership on this issue, 
and I am grateful for the opportunity to work closely with her, Senator 
Ayotte, and many other colleagues to help our men and women in uniform.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. INHOFE. Mr. President, first of all, I agree with the comments of 
the Senator from Nebraska.
  I have to say I was a little disturbed because I have heard a couple 
of reports--one was in a news conference on November 6 and one on 
November 19--yesterday, I guess--that Senator Gillibrand was saying 
that I was objecting to her amendment. Yes, I oppose her amendment but 
not to the extent that I would hold back the bill. My gosh, there is no 
one on the floor of this Senate who has been working harder to get this 
bill through--no two people more than the chairman and me. So I want to 
make sure people understand that.
  In terms of the alternative, I have been watching it very closely, 
and my strongest possible support is for that amendment, No. 2170, 
offered by Senators Ayotte and McCaskill, which provides additional 
enhancements to the historic enhancements for sexual assault prevention 
and response activities in our military. I commend my two colleagues on 
the Armed Services Committee for their tireless efforts and their 
leadership, and I urge all Senators to join me in supporting this 
amendment.
  It doesn't mean that if someone is opposed to the Gillibrand 
amendment, that someone is not wanting change. Yes, we do. This is 
major change.
  It adds the senior trial counsel to the officers who make 
recommendations on whether to proceed to trial and, if the convening 
authority decides not to proceed, results in the case being referred to 
the service Secretary.

[[Page 17673]]

  It adds duties for the special victims' counsel to inform victims of 
options for military and civilian prosecution of sexual offenses. It 
gives them a voice. They can express a preference. It requires 
commanders to give weight to that preference and to notify the victims 
if the civilians decline prosecution.
  These are changes. These are changes in the current system that are 
coming with the amendment offered by Senators Ayotte and McCaskill, 
amendment No. 2170.
  It requires including written performance appraisals of every member 
of the Armed Forces--officers and enlisted people--an assessment of 
that member's support for sexual assault prevention and response 
programs.
  It requires every commander to be evaluated in their performance 
appraisals on whether they have or have not established a command 
climate where allegations of sexual assault are properly managed and 
fairly evaluated and ensures that a victim can report sexual assaults 
without fear of retaliation, ostracism, or any kind of group pressure 
from members of the command.
  It also requires command climate assessments to be performed after a 
sexual assault incident, with copies of that assessment to be provided 
to superiors in the chain of command and the military criminal 
investigation organization.
  It creates, finally, a process through the boards for correction of 
military records for confidential review of discharges of individuals 
who were victims of sexual offenses, to require consideration of 
psychological and physical aspects of the victim's experience that may 
have had a bearing on the separation.
  So this is a major change. It is one I strongly support. I give the 
Senator from New York the benefit of the doubt that she did not mean 
what some people would interpret it to mean--that I would hold up a 
bill in opposing her amendment. I certainly would not do that. I am for 
reform, and we have an opportunity to do that which is bipartisan and 
accomplishes the very thing we should have accomplished many years ago.
  I thought there were others waiting here, but let me make one 
comment. I agree with my colleague, the junior Senator from Oklahoma. I 
know he has worked tirelessly in trying to do something to stop waste 
in the Pentagon, and, quite frankly, I think there is some there.
  This chart shows the devastation of sequestration. What it shows is 
the bottom line--these are deficiencies. This is what he is talking 
about. I want my colleagues to see this because this goes from fiscal 
year 2014 all the way to 2023. If we take the sequestration as it is 
right now, without any adjustments--now, Senator Sessions, Senator 
McCain, and I have tried to make adjustments so that there are greater 
cutbacks here and not so many in the first 2 years.
  The orange--and that is where almost everything comes out--represents 
readiness. That is readiness. Readiness is what we need to support our 
fighters in the field to save lives.
  The green is modernization. That is not affected by these 
inefficiencies we are talking about.
  The force structure is a major cost item, and it is demonstrated by 
the yellow on the chart.
  So what I am saying is I know there is room for improvement, and I 
want Senator Coburn and others to work on areas within the Pentagon 
where money can be saved. But if that happens, it is still going to all 
be found down here--everything. TRICARE and all of it is down in this 
blue line. So we can see that the devastation that comes from 
sequestration to our military is still going to take place.
  I think if we look at the level there of the sequestration cuts that 
take place, it is almost entirely in the readiness. ``Readiness'' is a 
term we have used for a long time. That is our ability to save lives. 
That is our ability to train and equip our men and women in harm's way.
  We have testimony right now that I wish to share with my good friend 
and the Chair, who was there and heard it, from all four services 
talking about how much more risk is involved if we have to go through 
sequestration. Risk equals lives. I agree with those who want to do all 
they can through efficiencies. I am for them. I will do all I can to 
help them. That doesn't solve the problem. The problem is immediate. It 
is today. I still believe there should be something we can do to stop 
draconian cuts in our readiness and our force structure accounts that 
would come with sequestration.
  It wouldn't do me any good to read all of the quotes we have from 
various individuals, but I can assure my colleagues that the Chair and 
anyone who sat through the Armed Services Committee hearings has heard 
all four of the chiefs talk about how devastating this will be if we 
are not able to correct this.
  With that, I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Ms. HIRONO. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. HIRONO. Mr. President, there is not a single Senator here who 
does not acknowledge the seriousness of sexual assault in the military 
and that we must do something to prevent and prosecute these crimes. 
Yes, there are differences of opinion as to what we need to do, but 
make no mistake, we share the common goal of preventing and prosecuting 
these crimes.
  I thank two strong women on the Armed Services Committee, Senator 
McCaskill and Senator Gillibrand, for their leadership in pushing for 
solutions that will make a difference. I also thank Chairman Levin for 
his commitment and leadership in bringing forth a bill that includes a 
number of important improvements to the current system. We all support 
these changes. However, I believe there is a fundamental structural 
problem with how sexual assault cases are prosecuted in the military. 
We need to make the changes proposed by the Gillibrand amendment.
  I am a cosponsor of the Gillibrand amendment. I spoke on the floor 
last week and explained why I think we need to remove disposition 
authority from the chain of command. I don't want to repeat everything 
I said last week, so let me make a few points.
  First, for two decades or longer the Department of Defense has had a 
zero tolerance policy for sexual assault and sexual harassment. Yet the 
problem persists. Servicemembers continue to be assaulted and raped, 
and in too many cases the perpetrators continue to go unpunished. Year 
after year, Secretary after Secretary and commander after commander has 
told us about all the efforts to correct this problem, but those 
efforts have not worked. There are probably many reasons why these 
incremental changes have not worked, but every year that these changes 
do not work, many more of our brave men and women in the military 
endure the trauma of sexual assault. It is time to make a major change 
to the military justice system.
  Second, too often these attacks are not reported, which allows the 
attacker to prey on more victims. The survivors tell us the biggest 
reason they do not report these crimes is because they do not believe 
their chain of command will ensure that justice is done. Even the 
Commandant of the Marine Corps, General Amos, has acknowledged that 
many victims do not come forward because ``they do not trust the 
command.''
  The concerns of survivors in coming forward makes sense because there 
are inherent biases and conflicts of interest in the chain of command. 
These concerns are echoed in a letter from GEN Claudia Kennedy that was 
signed by more than two dozen former officers from all branches of the 
military. The letter states:

       We know that, in too many cases, servicemembers have not 
     reported incidents of sexual assault because they lack 
     confidence in

[[Page 17674]]

     the current system. The inherent conflicts that exist in the 
     military justice system have led servicemembers to believe 
     that their allegations of sexual assault will not receive a 
     fair and impartial hearing and that perpetrators will not be 
     held accountable.

  We should give weight to these concerns and act today to remove the 
chain of command from prosecutorial decisions in sexual assault cases 
and instead put these decisions in the hands of an impartial, 
experienced military lawyer.
  Third, removing prosecutorial decisions from the chain of command 
will not harm good order and discipline. I have heard this concern from 
many military leaders, as well as from others who oppose this 
amendment. They say eliminating a commander's ability to decide whether 
a case should go to trial would undermine the commander's ability to 
maintain good order and discipline within the unit, and yet--and yet--
we have heard from many others who have command experience who support 
the Gillibrand amendment.
  Good order and discipline should not depend upon a commander's 
ability to decide whether to prosecute a sexual crime. A commander's 
authority and leadership must certainly be based on more than that.
  Furthermore, the Gillibrand amendment preserves a commander's 
disposition authority over crimes that are uniquely military--crimes 
such as desertion, AWOL, contempt, and noncompliance with procedural 
rules. This ensures that commanders will have the authority they need 
to maintain good order.
  In closing, it is undeniable that the current system does not work. 
We know it does not work because, according to the Department of 
Defense, in 2012 there were an estimated 26,000 cases--26,000 cases--of 
unwanted sexual contact.
  We know that not all survivors report these crimes because, in the 
words of General Amos, ``They do not trust the command.'' We know we 
can eliminate bias and conflicts of interest by entrusting 
prosecutorial decisions to an impartial, experienced military lawyer. 
We know that removing disposition authority from the chain of command 
will not undermine good order and discipline.
  We know what needs to be done. We ought to do it and do it today. We 
owe it to the men and women who serve our country in uniform. We owe it 
to the families and loved ones of those who serve because the trauma of 
sexual assault often extends beyond the trauma experienced by the 
survivor. I urge my colleagues to support the Gillibrand amendment.
  I yield the floor.
  Mr. LEAHY. Mr. President, earlier this year, as many others were, I 
was shocked when the Department of Defense released a stunning report 
about the increase in sexual assault among the branches of the Armed 
Forces. Sexual assault in the military is neither a new issue, nor an 
uncommon one. It has been a problem for decades. Its occurrence is a 
stain on the honor of our military and Nation that we must all work to 
eliminate. Military bases are where our troops are supposed to be safe, 
and to know that they risk being in harm's way not only when deployed 
but among their fellow servicemembers as well is horrible.
  I have worked hard to bring greater attention to the ongoing problem 
of sexual violence in our communities and am proud of the significant 
improvements we made in the recent reauthorization of the Violence 
Against Women Act earlier this year. It is time we bring the same level 
of attention to the crisis on our military bases.
  While this epidemic is not representative of the vast majority of our 
service men and women, who serve honorably and conduct themselves 
commensurate with our expectations of those in uniform, it is also not 
isolated to just a handful of bad actors. We can no longer ignore that 
the time is long overdue for meaningful changes to help end sexual 
assault and harassment in the ranks of our Armed Forces. We must work 
together to protect victims and provide appropriate help and support 
and to ensure that those responsible for such crimes are held 
accountable.
  Just as our civilian justice system is the envy of the world, our 
military justice system must also meet that standard. That is why I am 
a cosponsor of Senator Gillibrand's Military Justice Improvement Act, 
and why I support her amendment to the National Defense Authorization 
Act, NDAA.
  In last year's Defense authorization bill, Congress included 
provisions meant to address sexual assault in the military. That 
legislation required the Secretary of Defense to prescribe standards 
for victim support and mandated an independent review and assessment of 
the systems used to adjudicate crimes involving sexual assault and 
related offenses.
  When the Department of Defense released its fiscal year 2012 report 
on sexual assault in the military earlier this year, its findings were 
jarring, and for many myself included they were infuriating. To make 
matters worse, the problem seems only to be growing.
  The status quo for how we deal with sexual assault and unwanted 
sexual contact in the military is untenable. If we are serious about 
curing this problem, we need to get serious about making fundamental 
changes to how it is addressed. We cannot expect that by doing the same 
thing over and over again we will achieve different results.
  I supported Secretary of Defense Chuck Hagel's proposals this summer 
to limit a commander's authority to overturn major court martial 
verdicts, among other reforms to the system. I am pleased that the 
members of the Senate Armed Services Committee included this key 
provision, as well as other measures to address the so-called ``good 
soldier'' defense and to require commanders to immediately report 
alleged sexual assaults to the investigative office, in this year's 
Defense authorization bill.
  Senator Gillibrand's proposal is another move in the right direction, 
taking these reforms a step further by removing the determination to 
bring sexual assault cases from the chain of command and giving that 
discretion to an experienced military prosecutor. This is a commonsense 
solution, and I commend her for her clear-eyed and energetic leadership 
on this issue.
  Senator McCaskill's proposal also includes strong protections for 
victims so that the process of getting justice for these crimes does 
not revictimize those who come forward to report them. I believe 
Senator McCaskill's proposal also is a step in the right direction to 
encourage victims to come forward and report these crimes. Our Nation's 
troops should not have to fear sexual assault, and if they are victims, 
they certainly should not fear any stigma after bringing to light 
unwanted sexual contact.
  Surely we can all agree that we have an obligation to ensure that our 
men and women in uniform are protected from the threats we can control. 
Holding perpetrators of sexual assault and unwanted sexual contact 
accountable and caring for, supporting, and protecting those victims is 
within our control. I hope Senators on both sides of the aisle will 
join me in supporting reforms that will fundamentally change the way we 
approach this issue in order to achieve better results.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I yield myself 6 of my 10 minutes.
  One of the issues we address in this bill is the problem of sexual 
assault in the military. Too many of the men and women who volunteer 
for our military to serve and protect us are victims of sexual assault 
and other misconduct. That is deeply offensive to our conscience and a 
stain on an honorable institution.
  The bill that was reported by the committee includes groundbreaking 
new measures to reduce sexual assault and misconduct. On a bipartisan 
basis, members debated and approved more than two dozen measures 
related to preventing sexual assault and to delivering justice for the 
victims of these crimes.
  The bill that we approved, and which is now before us, would provide 
sexual assault victims a counsel, a lawyer, who works not for 
commanders, prosecutors, defense attorneys or a court but for the 
victim. It includes strong

[[Page 17675]]

new protections for victims that are designed to combat the No. 1 
problem we have in preventing assaults and dealing with perpetrators: 
the fact that many assaults remain unreported to authorities. Of great 
importance, the committee-reported bill for the first time makes it a 
crime under the Uniform Code of Military Justice to retaliate against a 
servicemember who reports a sexual assault.
  It also requires that the Department of Defense inspector general 
review and investigate any allegation of retaliation against those who 
make communications regarding sexual assault or sexual misconduct.
  Our bill includes important criminal justice system reforms, 
including reforms on how commanders respond to sexual assaults. Our 
bill includes a requirement that commanders who become aware of a 
reported sexual assault immediately forward that information to 
criminal investigators. It eliminates the consideration of the 
accused's character from the factors a commander should weigh in 
deciding whether to prosecute a sexual assault allegation. It restricts 
the authority of commanders under Article 60 of the UCMJ to set aside 
court-martial verdicts in cases involving sexual assault and other 
crimes. It requires that a decision by a commander not to prosecute a 
sexual assault complaint undergoes an automatic review by a higher 
command authority, in nearly all cases a general or flag officer. In 
the case where a commander's decision not to prosecute contradicts the 
recommendation of his or her legal advisor, that automatic review is 
conducted by the service Secretary. The committee-reported bill also 
makes clear that we expect and demand that commanders will use their 
authority to rein in this problem by fostering a climate of zero 
tolerance toward sexual misconduct and one in which servicemembers 
believe they can come forward to report cases of sexual assault.
  These important reforms were the product of the work of almost every 
member of the Armed Services Committee. The desire to remove this stain 
from our military is bipartisan and it is strong.
  Despite widespread bipartisan agreement on significant reforms, one 
significant issue of dispute remains. This is the question of whether 
military commanders should retain their authority to prosecute sexual 
assaults. Senator Gillibrand proposed in committee, and proposes again 
here on the floor, to remove our commanders' authority to prosecute. 
Along with a strong majority of the Armed Services Committee, I opposed 
Senator Gillibrand's proposal, which was defeated on a bipartisan 17-9 
vote. I oppose it for a simple reason: I do not believe its passage 
would strengthen efforts to end military sexual assault and other 
misconduct, and in fact I believe it could weaken those efforts.
  The Gillibrand amendment would uproot major portions of the military 
justice system and require the establishment of a parallel justice 
system within the military. Our top military lawyers have told us that 
the amendment leaves large gaps and unexplained issues that could make 
the new system unadministrable and bog it down in litigation.
  Despite those problems, if I believed that the proposed amendment 
would remove more sexual predators from the ranks and put more of them 
behind bars, or lead more victims to report sexual assaults, I could 
support it. But the evidence we received in our committee shows the 
opposite.
  First, we learned that military commanders are more likely, not less 
likely, more likely, to prosecute sexual assaults than military or 
civilian lawyers. The committee heard from many commanders, at all 
levels, that they see important value in sending cases to court-martial 
even if a conviction is not a slam-dunk. But we have more than the 
assurances of commanders. We have hard data. Over the last two years, 
in nearly 100 sexual assault cases which civilian prosecutors declined 
to prosecute, military commanders stepped in and took the case to 
court. Trials are complete in 63 of those cases, resulting in 52 
convictions an 83 percent conviction rate. Those victims would not have 
seen justice if a military commander had not stepped in where 
professional prosecutors declined to act. The evidence before us 
indicates that commanders are ready to prosecute these cases, and that 
removing their judgment and replacing it with career attorneys will 
result in fewer prosecutions of these cases.
  The evidence is that when victims do come forward, their reports are 
properly investigated, and when commanders are presented with the 
facts, our commanders do their job. They often send cases to trial even 
when professional prosecutors hesitate to do so. So why would we want 
to take that authority away?
  Second, the supporters of this proposal have argued that it will 
increase victims' willingness to come forward. They do not provide any 
data to support the assertion that victims will be more willing to come 
forward in a system that is less likely to bring them justice. Why 
would victims feel more confident in a system that is less likely to 
aggressively prosecute these crimes?
  The Response Systems to Adult Sexual Assault Crimes Panel, which was 
established in the National Defense Authorization Act for Fiscal Year 
2013 and has looked in depth at the experience of our allies on this 
issue, reported last week: ``We have seen no indication that the 
removal of the commander from the decision making process has resulted 
in an increase in reporting and there is nothing in the experiences of 
our foreign Allies that suggests adopting their systems as a model will 
have any impact on the reporting of sexual assaults.''
  I believe the contention that this amendment would increase reporting 
stems in many cases from a fundamental misunderstanding of how sexual 
assaults are reported. One member of the Senate, in announcing his 
support for taking away commanders' authority to prosecute, said: ``To 
me, it's as simple as this: Should you have to report to your boss when 
you've been abused or when you've been a victim of a crime?''
  Well, of course you shouldn't have to. And in the military, you 
don't. There are many different avenues by which a member of the 
military may report a sexual assault. Reporting it to your commanding 
officer is only one. Victims can report an assault to civilian police, 
to military criminal investigators, to a health care professional or to 
a sexual assault response coordinator. The Gillibrand amendment does 
not affect any of those reporting channels. Its only effect is to 
change what happens once an assault is reported and investigated.
  Supporters of this proposal have argued that our allies have adopted 
changes to their military justice systems along the lines they propose, 
and that these changes have better served sexual assault victims. What 
this argument ignores is the fact that our allies' decisions have not 
been aimed at protecting sexual assault victims. In fact, with allies 
such as Canada and Great Britain, commanders' authority to prosecute 
was removed not out of concern for crime victims, but out of concern 
for the rights of the accused. I have yet to hear anyone argue that the 
problem with our handling of military sexual assault is that it is too 
tough on perpetrators. Yet that has been why allied militaries removed 
the decision to prosecute from their commanders.
  Perhaps the most basic reason to oppose the amendment of the Senator 
from New York is that it removes a powerful tool from those who are 
indispensable to turning around the problem we have. Our military 
commanders are the indispensable tool to turn around this problem. I 
have met at length with several groups of retired military women.
  I specifically chose to meet with retired military personnel to 
ensure that they would be free to speak their minds. These women--all 
of whom have seen cases of sexual assault and sexual harassment in the 
course of their military careers--told me the problem is not 
commanders. The problem is a military culture, they told us, that 
tolerates excessive drinking and barracks banter that borders on sexual 
harassment or crosses that line. The problem

[[Page 17676]]

is there is a failure to recognize the existence of servicemembers who 
appear to be good soldiers but in fact are sexual predators, and a 
culture that values unit cohesion to such an extent that those who 
report misconduct are more likely to be ostracized than respected. None 
of these problems are unique to the military, but they are exacerbated 
in the military by the frequent rotation of military assignments, which 
can make it easier for predators to hide.
  The military has a unique tool for addressing this problem: 
commanders who can bring about changes in command climate through 
mandatory training and by issuing and enforcing orders that are not 
possible in a civilian environment. That is what they did in addressing 
racial discrimination and in ending don't ask, don't tell. That is what 
they can and should do here. Weeding out sexual predators and the 
climate that makes it possible for them to hide is an essential 
ingredient in any solution to the sexual assault problem. The military 
women whom I met with over the summer told me that our commanders are 
in the best position to make that change.
  Weakening the authority of commanders will do serious damage to their 
ability to accomplish this change. All of us seek the strongest, most 
effective response to the plague of military sexual assault. The 
amendment Senator Gillibrand proposes will not strengthen our response. 
The evidence before us shows it will, in fact, weaken our response by 
removing the decision from the hands of commanders.
  We have two dozen historic reforms in our bill, but a number of 
Senators, led by Senators McCaskill and Ayotte and Fischer, have 
continued to work on policies to strengthen our response to the 
military assault problem. This has resulted in the amendment they have 
proposed.
  Their amendment would ensure that the duties of special victims' 
counsels include advising victims on the advantages and disadvantages 
of prosecuting a case in the civilian or military justice systems, 
giving victims a greater voice in where a case is heard. It would 
require that performance evaluations of commanding officers consider 
their success or failure in creating a command climate in which victims 
can report sexual assaults without fear. It would require command 
climate assessments of any unit in which a servicemember is the victim 
of a sexual assault or is accused of committing one. It would give the 
victims of sexual assault who leave the military the ability to 
challenge the terms or characterization of their separation or 
discharge. It would prohibit introduction as evidence during judicial 
proceedings a sexual assault defendant's general military character--
the so-called ``good soldier defense.'' In other words, the fact that a 
defendant happens to be a good troop would no longer be allowed as 
evidence that he or she did not commit a sexual assault. These reforms 
are aimed at the problems we do have that is, at rooting out 
retaliation against victims, and providing victims better support--and 
not at a problem we don't have--that is, the decisions our commanders 
make relative to prosecution of these crimes.
  I will conclude by saying that these additional reforms in the 
McCaskill-Ayotte-Fischer amendment are significant additions to what is 
in the committee bill, and I support them. What I cannot support--and 
what I hope the Senate will not support--is legislation that will 
remove from our commanders the authority to combat this problem. The 
real, strongest tool to combat this problem is the ability to send a 
matter to a court-martial.
  We cannot strengthen our efforts to prevent sexual assault by 
reducing the likelihood of prosecutions. We know from history and from 
the facts that is the result of taking this decision away from the 
hands of the commanders. We know of the 100 cases where other 
authorities, civilian authorities, have decided not to prosecute but 
where the commanders then decided to pursue it anyway. That is just 
within the last 2 years, and we do not know of any cases that go in the 
other direction.
  We cannot strengthen our efforts to prevent sexual assaults by 
reducing the likelihood of prosecutions. We cannot strengthen our 
efforts by weakening the authority of our commanders to act against 
sexual assault. Commanders were tasked, again, with making those 
monumental changes in military culture, from combating racial 
discrimination in the 1950s to ending don't ask, don't tell in 2011. If 
we are to accomplish the change in military culture that we all agree 
is central to combating sexual misconduct and sexual assault, 
commanders are essential. We cannot fight sexual predators if we make 
it more difficult to try and convict them. We cannot hold our 
commanders accountable for accomplishing that needed change in culture 
if we remove their most powerful weapon in the fight.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mrs. GILLIBRAND. Mr. President, I wish to thank Chairman Levin for 
his extraordinary leadership on combating sexual assault in the 
military. He has led a process over the last year to ensure that our 
base bill has a set of historic reforms that make a huge difference in 
how cases that are actually reported are handled. In fact, the reforms 
that Chairman Levin has put forward and that our colleagues are 
continuing to perfect do make the handling of the cases that are 
reported better.
  They make sure every victim who reports has a victim's advocate to 
help him or her steer through the process. They also make sure that if 
that victim is so lucky enough to get that conviction, that it cannot 
be overturned by a commander on a second-level review.
  They also make sure we have better recordkeeping. They make sure the 
rules of evidence are better. They make sure victims are protected 
throughout the process. Most important, we as a committee have put 
forward in the bill a law that makes sure retaliation is now a crime.
  Those reforms help the victims who are strong enough and able enough 
and have a command climate that is strong enough to report their cases. 
But one thing the chairman said that is not true: Commanders do not 
need this legal right to be able to set the command climate. In fact, 
most commanders will never have this legal right. Just look at the Army 
rankings. Second lieutenants, they will command 16 to 44 soldiers. They 
do not have convening authority. First lieutenant commanders--110 to 
140 personnel--do not have this authority. Captains--62 to 190 
soldiers--do not have this authority. Majors, lieutenant colonels, 
lieutenant colonels, who typically command battalion-sized units--300 
to 1,000 soldiers--do not have this legal right.
  Most commanders will never get to look at a case file and say: Are we 
going to trial? So I disagree that the ability to decide if something 
goes to court-martial is necessary to set good order and discipline 
because almost every commander--all of them here--these commanders, 
they all have to set good order and discipline as part of their job. 
They have to set a command climate where the rape does not happen. They 
have to set a command climate where that victim feels comfortable 
enough to come forward. They must, by law, now ensure that victim is 
not retaliated against. It is their job--whether they ever have this 
right. Commanders can do this and must do this without this legal 
right. It does not weaken their ability.
  To have one guy way up here in the Army who wears the bird--the man 
who is the colonel, O6 level and above--he will make a legal decision, 
and he is not a lawyer. He is not trained. He does not know the ins and 
outs of prosecutorial discretion.
  He may be biased. He may value the perpetrator more than the victim. 
He does not need to make this legal decision. He should not be judged 
on how tough he is on crime. He should not even be judged after he 
weighs the evidence if he does his job properly. He should weigh the 
evidence fairly. You can only do that if you are objective. That is why 
we want it to go to trained military prosecutors outside the chain of 
command.

[[Page 17677]]

  Those commanders, every single one of them, should be judged on what 
the command climate is. Most of them will never get to weigh legal 
evidence as part of that. Chairman Levin, my colleague, has said: They 
have never heard of examples where commanders did not go forward but a 
lawyer did.
  I talked about one this morning. We heard from many victims. In fact, 
one victim said she was on her way to trial, and the commander was 
changed. The new commander had been in command for 4 days. He decides 
that the trial is not going forward. He actually discontinued the 
trial.
  You know what he said to her? Your rape was not a crime. He may not 
have been a gentleman. So I do not believe this legal right undermines 
our military system. I believe it strengthens our military system. I 
believe it gives commanders the chance to do their jobs, fighting and 
winning wars, training men and women. Commanders are entirely on the 
hook by our base legislation. They will be judged on the command 
climate. They will be judged on whether there is retaliation. They will 
be able to prosecute retaliation as a crime.
  I believe that if you create transparency and accountability in the 
system, we will be able to have many more cases be reported, first of 
all. More of those 23,000 cases will be reported. When you have more of 
the 23,000 cases being reported, you will have more investigations. You 
will, therefore, have more trials. You will, therefore, have more 
convictions.
  If you are ever going to change the culture, you need to do it by 
showing there is accountability. You need to do it by showing there is 
justice. You need to show it by showing that justice can be done. We 
need the active involvement of commanders. This is never going to 
happen if we do not. So they need to start focusing on retaliation. 
They need to start focusing on command climate. They need to make sure 
these rapes are not happening.
  They will do that whether or not they ever have this legal right. 
When our allies changed their laws to elevate all serious crimes out of 
the chain of command, they did not see a falling apart of their 
military. They did not see good order and discipline going out the 
window. They did not see any change at all, in fact. So I know our 
military can do the same. I know our military can build a transparent, 
accountable system that responds to what victims have asked. They want 
to be able to have the decisionmaker be outside of their chain of 
command.
  If we do that, we have a chance of building a criminal justice system 
within our military that is good, and it is just, as our men and women 
deserve.
  I am heartened by the conversation we are having on the floor today 
and I am grateful to all of my colleagues for their engagement and 
involvement on this critical issue. I have heard some questions about 
the technical implementation of the Military Justice Improvement Act 
mentioned on the floor today and during the past few months and I would 
like to address those concerns.
  First of all, thanks to feedback that we received about the MJIA, we 
made some technical changes to the amendment that I would like to note.
  One such concern was the omission of the Coast Guard, we have now 
included the Coast Guard in the amendment.
  Another concern we heard about was how to handle attempts of crimes, 
both in the new system and those that are excluded. In the amendment, 
conspiracies, solicitations and attempts have all been included.
  We were also asked about crimes that happen simultaneously. For 
example, what if during a sexual assault, crimes are also committed 
that fall under the old system? In order to clarify any confusion about 
this question, the amendment says that all known crimes will be charged 
under the new system.
  There were also questions about whether the convening authority will 
be able to pick the judge, prosecutor and defense counsel. The newly 
filed amendment has been clarified to ensure that it is clear that the 
new, independent, convening authority has the same power as the 
previous convening authority--the commander--in overseeing the process 
of convening a trial. The processes for detailing judges, prosecutors 
and defense counsels remains as they are today.
  Other concerns we have heard seem to take as a negative the fact that 
the MJIA leaves some issues up to the military to implement.
  We see this as one of the strengths of the MJIA.
  We wanted to ensure that the military had the ability to best 
interpret and implement the legislation in a way that was effective for 
the whole military, and for each service, each of which have slightly 
different systems.
  Let me give you an example. Some have argued that that plea 
bargaining will not work under our system. That is not true. The 
amendment transfers the commander's responsibilities for convening 
authority to the office of the Chiefs of Staff of each service; 
therefore, the offices of Chiefs of Staff will now have the authority 
to oversee pre-trial agreements.
  We specifically leave interpretation and implementation of the plea 
bargain up to the military to ensure that it is most expeditious--
therefore the military can choose to include the commander's 
perspective in the pre-trial agreement conversation and send the case 
back to him or her for non-judicial punishment or summary court 
martial.
  Let me give you another example. Article 32 is not explicitly 
mentioned in the amendment. This is intentional. Most if not all of the 
members of this body agree that the article 32 hearing needs to be 
fixed, but equally that it must be maintained. Because under the MJIA a 
trained, independent prosecutor will now be making the decision about 
whether to go to court martial, this may change the way that article 32 
may best be implemented. We want to leave the military, and these 
trained prosecutors, with the ability to best implement the UCMJ.
  I have also heard a lot of questions about non-judicial punishment. 
As I have said all along, the amendment leaves all crimes with 
punishment under 1 year of confinement, and 37 military-specific crimes 
with the commander, thereby leaving the vast majority of crimes 
punishable by courts martial in the hands of commanders.
  However, to suggest that crimes as serious as rape and murder be 
handled with anything but a clear look at the evidence is at the heart 
of the importance of this amendment. If evidence exists to send a case 
to court martial, there is absolutely no reason anyone should consider 
non-judicial punishment as an option. This is exactly why this decision 
should be in the hands of an impartial attorney.
  Further, the amendment even allows for a failsafe if the independent 
JAG decides that there is not enough evidence to proceed to trial that 
the charges would not be appropriately addressed at a court-martial, 
then the commander would still be able to exercise non-judicial 
punishment. In the event that the military member demanded a trial by 
court martial, the decision authority would at that point still be able 
to send the charge to the convening authority for referral to trial. 
There is nothing unique about this situation.
  I want to assure all of my colleagues that I have spoken to military 
justice experts and to retired JAGs about how to ensure that the 
Military Justice Improvement Act addresses potential issues and to 
ensure that the military has the ability to implement it in the best 
manner possible.
  I yield the floor and I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Brown.) The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. COONS. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. COONS. Mr. President, I come to the floor today to speak on the 
tragedy, on the ongoing crisis of sexual assault in our Armed Forces 
and what I believe we must do. There are several options before us, 
each of which has been the subject of lengthy and passionate debate, a 
debate that I think is

[[Page 17678]]

healthy, and needed, and welcome here in this Chamber.
  I commend my many colleagues--Chairman Levin and Senator Inhofe, 
Senator McCaskill and Senator Ayotte--for the very real progress, the 
very significant steps taken both in the base bill, the NDAA, and in 
the amendments to be offered by Senators McCaskill and Ayotte, serious 
and important steps forward to protect victims, to ensure that 
commanders are held accountable and to criminalize retaliation. A wide 
range of important and significant reforms that will make real progress 
towards addressing the ongoing decades-old scourge of sexual assault in 
the United States military.
  As was said recently on the floor by another of my colleagues, this 
disagreement today is over one of more than a dozen important and 
needed reforms. But in the end, we have to decide. I believe the 
measure offered by Senator Gillibrand of New York, of which I am a 
cosponsor, is the right additional path forward. Because at the end, 
here is the bottom line: Sexual assault has been a disease, a corrosive 
and widespread and horribly negative influence on our military that has 
simply not been effectively treated.
  I think this significant, dramatic step is the needed driver for 
extensive reform. I understand that the chain of command is essential, 
that it is central to the proper functioning and order of the military, 
especially during war time. In fact, the chain of command is nearly 
sacred.
  But ensuring that our spouses and our siblings and our children can 
serve with honor and not have to face another enemy within our ranks is 
sacred. This is, in the end, a debate about justice--justice within our 
own Armed Forces, justice so we can fulfill that sacred duty of 
protecting men and women in uniform as well as they protect us.
  Despite many years of good-faith efforts by leaders in our Armed 
Forces to work within the parameters of our current system, literally 
tens of thousands of sexual assaults are still occurring annually 
within our Armed Forces.
  That is, frankly, unacceptable and it reflects a fundamental 
breakdown in order and discipline that in my view we cannot tolerate 
anymore. The current system, in this important and vital way, is 
failing. I understand the intense desire our leaders feel to fix what 
was broken and for our military leaders to atone for taking their eyes 
off the ball, to paraphrase the testimony of the Chairman of the Joint 
Chiefs.
  But, once again, this debate is not about them, about their 
commitment or about their strategy or about their determination. It is 
about justice. In America, justice must be blind. Whether someone 
receives it or not should not depend on the fact of whether or not he 
or she serves in the military rather than in other workplaces. We know 
the chilling facts, that according to the Department of Defense's own 
Sexual Assault Prevention and Response Office, 50 percent of female 
victims state they did not report the crime in the first place because 
they believed nothing would be done, and one-quarter or 25 percent who 
received unwanted sexual contact indicated the offender was in their 
chain of command.
  In my view, we strengthen our military when victims of sexual assault 
have the confidence to come forward and to report crimes and when we 
remove fear and stigma from the process. We strengthen our military 
when we are able to deliver fair and impartial justice on behalf of 
victims.
  When we know the military chain of command in this one area is 
failing, we should not continue to tolerate an exception we would not 
make in other settings. I came to this decision with great reluctance, 
recognizing as many in my family have, that the importance of the chain 
of command, the importance of respecting the unique and different 
traditions and structures of the military is something that we should 
only come to with great hesitation.
  One of the responsibilities of serving in the Senate that I take 
seriously is my annual responsibility to review and approve candidates 
for the military academies who are selected by my independent military 
academy advisory board, and personally calling the top candidates to 
inform them that they will be the ones--of the dozens and dozens of 
highly qualified competitors, they will be the ones selected to go to 
the Merchant Marine Academy, the Air Force Academy; to Annapolis, the 
United States Naval Academy, or to the U.S. Military Academy, to West 
Point.
  This is a moving experience each of the 3 years I have had the chance 
to do this. But this past year, the three top candidates for West 
Point, for Annapolis or for the Air Force Academy were all women--
impressive, compelling, determined to serve our Nation.
  Meeting with them and their families, the nervous and proud parents 
of these confident cadet candidates is also a great annual experience. 
It reminds me always of my responsibility to them. I promised their 
parents that we will support and respect them and their service. When 
we speak to the cadets and thank them for their willingness to serve, I 
am reminded we have a responsibility to not send them into an 
institution where they will face threats that we can and should 
address.
  I believe I have a responsibility to send them into an institution I 
know is well equipped to respond strongly and swiftly to threats to 
their safety. Yet, today, I am not able to uphold that responsibility 
because we have not protected our men and women in uniform from sexual 
assault.
  I thought of my picks for the service academies when I heard another 
Senator say to General Dempsey that the Senator would not advise a 
parent to encourage his or her daughter to join the military. What made 
this decision difficult for me to join Senator Gillibrand on this 
particular amendment was an unfortunate, tragic case.
  Last spring while I was trying to decide which path to follow on this 
bill, my office received a gut-wrenching call from the father of a 
young woman serving honorably in our military. He was calling against 
his daughter's wishes, and only as a desperate last resort.
  She had been the victim of sexual assault and, as so many others, 
reported it to her commanding officer up the chain of command. As so 
many others, her case went nowhere. Her by-the-book reporting and 
patient waiting for results was met with delays, excuses, and 
nonresponse. Ultimately, during these repeated delays, she was 
physically assaulted after she had warned leadership she feared for her 
safety.
  We took action and, ultimately in this instance, justice was done. A 
chain of command such as that isn't strengthening unit cohesion and 
morale, it is harming it.
  After this particularly troubling case, I made a decision to join 
Senator Gillibrand as a cosponsor, to say to all of us, how can we 
accept this? How can this situation that has gone on for years be 
tolerated? How can we justify the status quo?
  I am grateful for the leadership of the many Senators on the Armed 
Services Committee and throughout this body who have taken real steps 
to add significant improvements to the UCMJ and to the code that 
underlies our military and the requirements for leadership in the 
service to take on and tackle these very real problems of sexual 
assault in the military.
  In my view, taking decisions out of the chain of command should only 
be done under the most serious of circumstances, but that is exactly 
what we have. We wouldn't find justice if this was the way that any 
other workplace in America operated. How can we argue that we have 
justice today for these thousands of victims in our military? The men 
and women who dedicate themselves to keeping us safe and protecting our 
rights deserve equal dedication on our part to their safety and to 
those same rights.
  I wish to speak about three bills I am offering as amendments to the 
NDAA that all relate to a topic I have spoken to many times on the 
floor, to manufacturing and manufacturing jobs.
  The first is the American Manufacturing Competitiveness Act, a bill I 
introduced last week with Illinois Senator Mark Kirk. It enjoys the 
support of the Presiding Officer, as well as Senator Blunt and Senator 
Stabenow. It

[[Page 17679]]

is a simple but important objective, to require the creation of a 
national manufacturing strategy.
  We need to know our country's direction as we try to support the 
growth in manufacturing. We have grown more than half a million 
manufacturing jobs in the last 3 years, an encouraging sign, but one we 
need to strengthen and support with a coordinated strategy between the 
Federal Government, State governments, and private sector to align all 
our investments in research and development, new skills, and new 
infrastructure, to make sure they are all heading in the right 
direction. Our leading competitors all have successful and well-
deployed national manufacturing strategies. Whether Germany, China, 
India, South Africa, or Russia, they have all thoroughly developed, 
deeply researched, and prominently successful strategies, which we 
lack.
  Our amendment would require that every 4 years the Secretary of 
Commerce, advised by a board of 15 different folks, pull together and 
think through, research, and then deliver a national manufacturing 
strategy.
  This amendment is bipartisan, simple, does not cost the Federal 
Government a dime and doesn't create a new program, Like the next two 
amendments I will speak about, it is a commonsense measure that I hope 
we will adopt.
  Secondly, I wish to speak to an amendment I am cosponsoring with 
Congressman Blunt to ensure small businesses are not subject to 
conflicting guidance from Federal agencies.
  In the 1970s Congress passed a measure for the Small Business 
Administration to ensure that small businesses that get contracts from 
the government aren't actually fronts for much larger companies.
  Last year we passed similar but distinctly different rules for the 
Department of Defense. Most of the time these two sets of rules can 
peaceably coexist, but in a few cases they come into conflict, creating 
significant compliance difficulties for very small business. This 
amendment would say that when both sets of rules apply to a small 
business contract, the SBA rules would apply, while DOD rules would 
not.
  This amendment is bipartisan, has no cost, and will help small 
businesses focus on effectively delivering products and services 
without worrying about compliance.
  Last, I wish to speak about an amendment I am cosponsoring with 
Senator Booker of New Jersey to ensure that our defense and 
intelligence communities maintain their vital technological edge. This 
is an important measure that would create more opportunities to train 
America's best talent and pave the way to new innovations.
  Recently, the commission on R&D in the U.S. Intelligence Committee 
reviewed our current and future R&D capacity to support our 
intelligence community's vital work. Their unclassified report shows, 
in fact, that we have insufficient funding and a critical deficiency of 
human capital, of skilled workers, and the cutting-edge thinkers we 
need in this area. Specifically, for one example it said we may not 
have the kind and number of people we need to build the next generation 
of satellites to gather and process the intelligence upon which our 
national security relies.
  There is currently a program run by the Department of Defense 
designed to address one element of this problem. It is called the 
Science, Mathematics & Research for Transformation Scholarship Program, 
or the SMART Scholarship Program. This amendment calls on the Secretary 
of Defense to report back to Congress on two things: Whether the SMART 
Scholarship Program, or similar fellowship and scholarship programs, 
are, in fact, providing the necessary number of undergraduate and 
graduate students in the fields of science, technology, engineering, 
and math to meet the recommendations of the commission's report, and to 
recommend how those programs can be concretely improved. Those 
amendments have already passed the House of Representatives by a voice 
vote and would be an important, if small step toward paving the way 
toward job creation and ensuring our national security now and into the 
future.
  I urge my colleagues to support these amendments.
  I am grateful for the opportunity to contribute to the debate on 
these important issues.
  I yield the floor.
  The PRESIDING OFFICER. The senior Senator from South Carolina is 
recognized.
  Mr. GRAHAM. I wish to speak in support of the McCaskill, Ayotte, 
Fischer, and Levin amendment.
  Before we begin, I wish to thank Senators Levin, Reed, McCaskill, 
Ayotte, Fischer, and others who have been trying to carry the burden 
here to make sure that we reform the military justice system and the 
way the military operates vis-a-vis sexual assault and misconduct but 
at the same time make sure we still have a military that can continue 
to be the most effective fighting force on the planet at a time when we 
absolutely need it.
  If one believes, as I do, that our military is the best in the world, 
we have to ask ourselves why. Is it because of the equipment? We have 
great equipment. I would argue that the reason our military has become 
the most effective fighting force in the world is the way we are 
structured.
  If one is looking for a democracy, don't look to the military. The 
military is a hierarchical and paternalistic organization that is 
focused on meeting the challenges of the Nation, being able to project 
force at a moment's notice to deter war and, if war ever comes, to 
decisively end it on our terms.
  I have been a military lawyer for over 30 years. I have been assigned 
as a military defense counsel for 2\1/2\ years and a senior military 
prosecutor in the Air Force for 4\1/2\ years. I have been a military 
judge, and I have served in the Guard and Reserve, and on Active Duty 
for 6\1/2\ years. I have learned a lot, as a military lawyer, about the 
military.
  To my colleagues who are trying to decide what to do and what is 
appropriate, the goal should be to make sure that America remains the 
most effective fighting force on the planet. This is the proposition: 
They can't be an effective fighting force if they have rampant sexual 
assault or misconduct within the ranks. This idea that sexual assaults 
in the military are unacceptable, too large in number and scope--sign 
me up for that proposition. However, the problems of society don't stop 
at the gate; they continue inside the fence. I would daresay that if we 
did surveys in South Carolina, Missouri, New Hampshire, and New York 
about sexual assault and their frequency, we would all be disturbed.
  The goal of our time in the Senate is to make sure that when it comes 
to our military, we turn a corner and create a legal system where 
people feel that if they file a complaint, they are going to be fairly 
treated and also a legal system where if one is accused of something, 
they will be fairly treated.
  I say to my colleagues, there is a reason that every judge advocate 
general of all the services has urged us not to adopt Senator 
Gillibrand's solution to this problem.
  In the military, it is possible, in my view, to correct a problem 
without commander buy-in and holding commanders responsible. Military 
commanders have awesome responsibility and almost absolute liability 
for the job we give them. It is their job to make sure that all under 
their command are ready to go into combat, perform their assignment in 
the most difficult task, make sure that medical records are up to date, 
and to make sure they are squared away when our Nation needs them.
  This concept of the authority of the commander goes back to the very 
beginning of this Nation. Military justice is an essential part of good 
order and discipline.
  After 30 years of experience in this area, the number of cases where 
a judge advocate recommends to a commander to proceed to trial in a 
sexual assault or, for that matter, almost any other alleged crime is a 
rounding error. Please don't suggest that under our current system 
someone can't get a case to trial because our commanders routinely blow 
off legal advice. That is

[[Page 17680]]

not the case. Commanders decide as to whether to proceed to a court-
martial, and what level of court-martial, based upon advice of the 
judge advocate community, whose job it is to provide professional 
advice. The commander's job is to make sure that unit is ready to go to 
war. The lawyer's job is not to pick and choose who goes into the 
battle. The lawyer's job is to give that commander the best legal 
advice possible, including who to court-martial and who not.
  One thing I hope people understand in this debate is that no lawyer, 
no judge advocate, is ever going to have to deal with the situation of 
picking and choosing in that unit who takes the most risk. We have for 
200 years allowed commanders the authority, under the Uniform Code of 
Military Justice since 1952 and before, and the ability to maintain 
good order and discipline, the absolute responsibility to make sure 
force is effective when it comes to the fight, and giving them the 
tools to make sure that happens.
  What would bother me greatly is if this conversation occurred: Sir or 
ma'am--depending on who the commander is, as there are more and more 
female commanders in the military--there was an alleged rape last 
night, a sexual assault in the barracks last night, and the commander 
would say: That is no longer my problem. Send that to Washington.
  Ladies and gentlemen of the Senate, that is the commander's problem.
  To those commanders who have failed to make sure we have the right 
climate in the military when it comes to sexual assault, your job is at 
stake.
  The military justice system, when it comes to rendering justice, I 
will put up against any system in your State. The reforms in this bill 
are going to become the gold standard, I hope, over time, and very few 
jurisdictions will be able to do what we have been able to do. With 
thanks to Senators McCaskill, Ayotte, Levin, and others, we have taken 
a problem in the military and brought a good solution. Every victim 
will now be assigned a judge advocate to help them through the legal 
process. I wish that were true in South Carolina, but it is not. Every 
commander who is advised to go to trial in a sexual assault case and 
who declines to accept the JAG's, the judge advocate, recommendation, 
that case is automatically sent up to the Secretary of the service in 
question.
  In the future, as commanders have to decide how to deal with sexual 
assault allegations, when the lawyer tells them: Sir, ma'am, this is a 
good case, and if for some reason the commander decided: I disagree, 
that case goes up to the highest member of that civilian service, the 
Secretary of the Air Force, in the case of my service. This, to me, is 
a reform that will emphasize from the chain of command how important it 
is that we take these cases seriously.
  If we take the chain of command out, this is what we are saying to 
every commander in the military: You are fired. We, the Senate, have 
come to conclude that you, the commander--all commanders of the group--
are either intellectually insufficient to do this job or you don't have 
the temperament or are morally bankrupt. We are going to take away from 
you this part of being a commander. You are fired.
  I will never, ever say that unless and until I am convinced that 
there is no hope for our commanders, that our commanders are hopelessly 
lost when it comes to these types of issues. I don't believe we are 
remotely there.
  In the 1970s we had upheaval throughout the country, particularly in 
the military. We had race riots on aircraft carriers and tension ran 
high. How did we fix it? We made sure every commander was held 
responsible for the atmosphere in their unit when it came to race 
relations. And now I would daresay the most equal opportunity employer 
in the whole country is the U.S. military because commanders changed 
the climate.
  Under the approach of Senator Gillibrand, we take out a group of 
military offenses. To the commander: You are fired; you can't do this 
anymore. And we send these decisions to an 06 judge advocate--which I 
happen to be one of, by the way--in Washington. I cannot stress to my 
colleagues enough how ill-conceived that system would be from a 
military justice point of view and the damage that will be done to the 
command and to the fighting force if we go down this road. Let me tell 
you why.
  A troop is in Afghanistan. There is a larceny. Senator Coons 
mentioned the workplace. A barracks thief is one of the worst things 
you can be in the military. A soldier doesn't pick and choose whom they 
room with; we pick whom they room with. No one gets to decide where 
they are going to stay; we pick for them. We throw them into the most 
incredible of conditions, we don't give them the comforts of home, and 
they have to trust their fellow soldiers in the barracks and in 
deployment. Soldiers, like everybody else, most are great, some are 
bad. In the military the bad apples, thank God, are few.
  Under this construct we are coming up with, if there was a barracks 
theft case--a tent theft case--in a deployed environment, that really 
does hurt morale because if you have to worry about somebody stealing 
your stuff, that is really tough given the conditions under which you 
are living. So if the commander could not deal with this, it would go 
all the way to Washington, DC, to be disposed of rather than being 
disposed of onsite. And why does it need to be disposed of onsite? You 
need to render justice quickly and effectively so the troops can see 
what you are doing. If you are the commander, they have to respect you 
and they have to understand your role.
  So I cannot understand why the Senate, when we have been at war for 
11 or 12 years, would come up with a solution to a problem that is real 
that does harm to the very concept of what makes our military special--
the ability to go to war, the ability to be effective and to have the 
commander make decisions that only a commander should be making.
  I am a military lawyer. I am telling you right now, don't give me 
this decision, because I am not required to decide who goes to battle. 
Don't take away from our commanders in a theater of operation the 
ability to render justice in a way the troops can see.
  Mrs. McCASKILL. Would the Senator yield for a question?
  Mr. GRAHAM. Yes.
  Mrs. McCASKILL. I want to make sure I understand something about 
nontraditional punishment. Since the Senator is discussing the barracks 
thief in Afghanistan and the notion that everything is going to stop 
and this case is going to be sent off to a lawyer half a continent away 
to make a decision, let's assume the lawyer--the colonel in 
Washington--decides there is insufficient evidence for that barracks 
thief. That might be 4 months later. Meanwhile, the barracks thief is 
still there. And let's assume it then comes back. It is my 
understanding--and I think there is some confusion about this by the 
people who are advocating this amendment--that you cannot exercise 
nonjudicial punishment on a soldier if he chooses a court-martial 
proceeding. Is that correct?
  Mr. GRAHAM. That is exactly right. A nonjudicial punishment is an 
authority the commander has to put people in confinement for up to 30 
days, reduce in rank one or two levels, depending on the rank of the 
commander, and to withhold pay. It is nonjudicial punishment. You don't 
have a trial. The person is represented by a lawyer, but there is no 
jury. The commander is the jury.
  The PRESIDING OFFICER. The Senator has spoken for 15 minutes.
  Mr. GRAHAM. I thank the Chair.
  Mrs. McCASKILL. So that commander who has to now send----
  Mr. GRAHAM. He loses that authority.
  Mrs. McCASKILL. That case to Washington--that soldier is not going to 
agree to nonjudicial punishment. He is going to say: I will take my 
chances with the lawyers in Washington. And if the lawyers in 
Washington say no, then that commander's hands are completely tied to 
even putting him in the brig for 30 days.
  Mr. GRAHAM. Exactly right.
  Every military lawyer who has looked at this is very worried about 
what we are about to do in terms of practical military justice.
  Imagine being 18 years of age. You have too much to drink and you 
write

[[Page 17681]]

a bad check. Part of being a commander and a first sergeant is the 
paternalistic aspect of the job. How many of us have made mistakes at 
18? Instead of going to college, you are going into a military unit. 
You bounce four or five checks. Has that ever happened? Under this 
proposed system, the military commander no longer has the ability to 
deal with it in the unit. He sends that case off to Washington. The 
ability to give an article 15--a lesser punishment--is taken off the 
table. So we are taking an 18-year-old's mistake and potentially 
turning it into a felony. Does that help sexual assaults?
  Our commanders can send you to your death, but we don't trust them to 
deal with manslaughter cases? All I can tell you is that for 30 years I 
have been a practicing military lawyer. From my point of view, our 
commanders take the responsibility to impose discipline incredibly 
seriously. They are skilled men and women.
  We have let the soldiers, sailors, airmen, and marines down when it 
comes to sexual assault. All of us are to blame in the military. We are 
going to fix that. But the problem, my colleagues, is not the military 
justice system. We don't have a military justice system where 
commanders say to the lawyers: Go to hell; we are not going to deal 
with that. That is not the way it works.
  This new proposed system takes a portion of offenses out of the 
purview of the commander and sends them to somebody in Washington whom 
nobody in that unit will ever get to see. That will delay justice, and 
it will take tools off the table to make sure that is an effective 
fighting force in terms of dealing with the barracks thief, in terms of 
dealing with the bounced check, but it will also take young people who 
make mistakes and put them in an arena where the only avenue is to 
potentially charge them with a felony.
  Ms. AYOTTE. Would the Senator from South Carolina yield for another 
question?
  Mr. GRAHAM. Yes.
  Ms. AYOTTE. So under the situation where the Senator says we have 
commanders who aren't going to ignore what is brought before them in an 
investigation from their JAG lawyers, particularly on a sexual assault, 
let's assume they did do that. Even though the evidence isn't there, 
they do it. Under our proposal--the proposal of myself and Senators 
McCaskill and Fischer--if the commander makes the decision not to bring 
the sexual assault case and it then goes up for review before the 
civilian secretary of whatever force is at issue--the Army, the Air 
Force, the Navy--what does the Senator think that will do in terms of 
accountability?
  Mr. GRAHAM. If you want to improve the system, and we all do--I am 
not questioning anybody's motives--if a commander knows that when they 
turn down the JAGS's advice in one of the four situations we have 
identified--sexual assault, the nature of the discussion here--that 
decision will be reviewed by the Secretary of the service, I can assure 
you that will do more good to make sure commanders understand how 
important this situation is to the country than taking their authority 
away.
  We will be doing absolutely the worst possible thing to solve the 
problem with the approach of Senator Gillibrand, in my view, although 
every judge advocate agrees with what I am saying. You will throw the 
military justice system in chaos and basically take the commander's 
authority away in an irrational way.
  What we should do is hold the commander more accountable by having 
what is the commander's worst nightmare--I guess anybody in the 
military--and that is having the boss look at your homework. How do you 
get promoted in the military? People over you judge your work product.
  Let me just say this. It is not a military justice problem here. The 
reforms we are going to engage in are historic, and they will be the 
model for systems in the future. Very few people can afford what we are 
about to impose upon the military because we are going to make this a 
priority and we are going to assign judge advocates to victims. There 
is no other State in the Nation that will be able to do that. We will 
have something of which we can all be proud. We are going to hold 
commanders more accountable.
  Here is the essence of the argument: We have to take this out of the 
chain of command because there is something defective about the 
commander; because the commander doesn't have the ability or they have 
a bias against victims, we no longer can trust them to do the right 
thing.
  That, to me, is an indictment of every commander in the military. 
That, quite frankly, is not what we should be doing or saying given the 
track record of how our military has performed.
  In the area of sexual assault, the problems we see in the military 
are all over the country; they are just talked about more in the 
military. The people in the military should be held to the highest 
standard, but we will fix no problem in the U.S. military if we deal 
that commander out.
  Ms. AYOTTE. Would the Senator yield for a comment? Looking at the 
facts, the evidence we have reflects that commanders are bringing more 
cases, are pursuing more cases than those recommended by their JAGs in 
sexual assault cases.
  We received a letter from ADM Winnefeld, Deputy Chairman of the Joint 
Chiefs of Staff, basically pointing out that there were over 90 cases 
where commanders had a different view than their JAGs that a case 
should go forward. Guess what. Convictions were had and people were 
held accountable.
  Mr. GRAHAM. There are situations where joint jurisdiction lies--the 
military has jurisdiction, the civilian community has jurisdiction. 
There have been cases where the civilian community went first. There 
were 49 cases in the Army where the civilian community decided not to 
prosecute on a sexual assault and the Army took it up and they got an 
81-percent conviction rate. In the Marine Corps, 28 cases were turned 
down by the civilian community where the Marine base was and they went 
to court with a 57-percent conviction rate. In the Navy and in the Air 
Force, it is the same. We see a civilian jurisdiction saying no to the 
case and the military saying yes, we are going to go to court. And that 
is because there is a difference between what the civilian community is 
trying to accomplish and what the military community must be trying to 
accomplish; that is, to let the troops know there is certain conduct 
that is out of bounds, and if it is even close, you are going to pay a 
potential price.
  Having said that, please do not blame sexual assault problems in the 
military on a broken military justice system because it is not broken. 
The commanders are not telling the lawyers to take a hike. The cases 
the lawyers recommend to go to trial actually do go to trial.
  Juries in the military are not juries of one's peers. This is not a 
civilian system. Everybody who goes to trial as an enlisted man is 
judged by officers. You can request one-third of the military jury to 
be enlisted members, but they will be the most senior people on the 
base.
  Please understand that military juries are not constructed the way 
civilian juries are. They are told to be fair, and they do their best 
to be fair. But it goes into the concept of how the military works. The 
only person in the military entitled to a trial of the equivalent rank 
is an officer. An officer cannot be tried by people of lesser rank. 
That may sound unfair, but in the military it makes perfect sense, 
doesn't it? Officers eat in one corner of the base and enlisted people 
eat in the other corner of the base not because they hate each other. 
They admire and respect each other. This chain of command, these lines 
of authority make us--Mr. President, I ask unanimous consent for 1 
additional minute.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRAHAM. This unusual situation for most Americans works in the 
military. It may not sound right to most, but it works because the 
military is about when you are ordered to do something, you answer the 
order; you don't debate.

[[Page 17682]]

  So if we don't elevate the commander to have the tools available to 
make the right decisions, and if we don't instill those below the 
commander to follow, it all breaks down. When a commander lets the 
troops down--and they do sometimes--fire the commander. Don't take away 
the authority of the commander to win wars that we will inevitably 
fight. This is not a civic organization. This is not a democracy. This 
is a situation where one person can choose to send another person to 
their death. That person is the commander, and there are plenty of 
checks and balances.
  Ladies and gentlemen, sexual assault is a problem. But for God's 
sake, let's not tell every commander in the military: You are fired. 
You are morally bankrupt. You are incapable of carrying out the duties 
of making sure that justice is done in these cases.
  The PRESIDING OFFICER. The Senator's time has expired.
  The majority leader is recognized.
  Mr. REID. Mr. President, I ask unanimous consent that the motion to 
recommit be withdrawn; the pending Levin amendment No. 2123 be set 
aside for Senator Gillibrand, or designee, to offer amendment No. 2099 
relevant to sexual assault; that the amendment be subject to a relevant 
side-by-side amendment from Senators McCaskill and Ayotte, amendment 
No. 2170; that no second-degree amendments be in order to either of the 
sexual assault amendments; that each of these amendments be subject to 
a 60-affirmative-vote threshold.
  I am told each side would like 10 minutes; that is, the McCaskill 
side and the Gillibrand side would receive 10 minutes to close. If 
there are other people who wish to speak, now is the time to say 
something.
  The PRESIDING OFFICER. The assistant majority leader is recognized.
  Mr. DURBIN. I understood there were 30 minutes left on the Gillibrand 
time.
  Mr. REID. How much time does the Senator need if I get a consent 
agreement?
  Mr. DURBIN. Ten minutes.
  Mr. REID. So we need 10 minutes for McCaskill also. That would be 20 
minutes on each side.
  That the time then until 5:30 be equally divided between the 
proponents and the opponents of the Gillibrand amendment and the 
McCaskill amendment; that the Senate proceed to vote in relation to 
Gillibrand first; that upon disposition of the Gillibrand amendment, 
the Senate proceed to vote in relation to the McCaskill-Ayotte 
amendment; that there be 2 minutes equally divided between the votes; 
finally, that no motions to recommit during the consideration of these 
amendments be in order.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. Reserving the right to object.
  The PRESIDING OFFICER. The senior Senator from Oklahoma.
  Mr. INHOFE. Mr. President, I would ask the leader if he would amend 
his request to add the following language: Following the disposition of 
the McCaskill-Ayotte amendment, all pending amendments be withdrawn and 
the Republican manager, or his designee, be recognized to offer the 
next amendment in order, followed by an amendment offered by the 
majority side, and that the two sides continue offering amendments in 
alternating fashion until all amendments are disposed of.
  The PRESIDING OFFICER. Will the majority leader modify his UC?
  Mr. REID. Mr. President, we went through this yesterday. I 
reluctantly object.
  The PRESIDING OFFICER. Objection is heard. Is there objection to the 
majority leader's request?
  Mr. COBURN. Reserving the right to object.
  The PRESIDING OFFICER. The junior Senator from Oklahoma is 
recognized.
  Mr. COBURN. This is a very important bill for our country in terms of 
authorizing the defense of this country. Many of us have relevant 
amendments--not amendments outside the scope of this bill, but relevant 
amendments--which will actually markedly improve the way we conduct 
policy in the Defense Department. Without the assurance that those 
amendments are going to be able to be offered--they can be tabled, but 
without that assurance, it makes it difficult to agree to a consent not 
knowing whether or not we will have the opportunity to represent the 
people we represent in offering amendments which will make positive 
improvements to this bill.
  So I put forward that we are really not conducting the business of 
the country if we are limiting the ability of Members of the Senate to 
offer amendments. Absent that guarantee, I will object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. REID. Mr. President, we have 350 amendments which have been filed 
on this bill. I know every person who has filed an amendment feels 
entitled to offer that amendment. I just think we are not in a position 
to deal with this for all the reasons we have talked about here for 
several months. We are not seriously legislating anymore.
  We can pass the blame to anyone we want, but we have tried all kinds 
of things. How about so many amendments on each side? We have done that 
before. It is not anything unique. We have done that lots of times in 
the past. It doesn't work. How about 13 amendments? No. It won't work 
because we want more amendments after that.
  So I understand, and I am not denigrating anyone's intent. I know the 
intentions are good. The record reflects how I feel about this bill. I 
am sorry we are at the point we are. Couldn't we at least have 
everybody vote on this amendment which people have spent days of their 
lives working on? It doesn't matter how we feel about what has been 
done, but there has been tremendously important work done on the sexual 
assault issue, and we should at least have the opportunity, with the 
work that has been put into this, to have a vote. No one is 
disenfranchised by doing that--or move to try to figure something else 
out after that. But, gee whiz, couldn't we do that? Otherwise, we will 
walk away not having done anything on this. I think that is just so 
unfair to the people who worked on this.
  I know other people have worked hard on their amendments. But I have 
to say, in the last year or two, no one has worked harder on amendments 
than the proponents and opponents of this amendment.
  So having said that, I ask unanimous consent that we move to a period 
of morning business for debate only until 7:30 p.m. tonight.
  The PRESIDING OFFICER. Is there objection? The Senator from Michigan.
  Mr. LEVIN. Is that a unanimous consent request?
  Mr. REID. Yes, it was.
  Mr. LEVIN. Of course, while reserving the right to object--I will 
not, but I will say this. I can't tell everybody in this body how 
disappointing it would be if we do not finish this bill tomorrow or 
Friday, because the issue is this, and we all ought to face it: There 
is only 1 week left where both the House and the Senate are going to be 
in session. If we don't finish this bill this week, there cannot be a 
conference report; and then, for the first time in 52 years, there will 
not be a Defense authorization bill in the absence of some miracle.
  I would plead with our colleagues, let us vote on this amendment. The 
alternative was a list of 13 amendments which we were willing to then 
move to. That wasn't satisfactory. We have got to do this a step at a 
time, and we have done it that way before. We can't even get cleared 
amendments agreed to where both sides have cleared them into a 
manager's package.
  If Senators want to vote tomorrow or Friday against the cloture 
motion because their amendments haven't been reached, they are free to 
do so. That is plenty of ``leverage,'' which I guess is the currency 
around here, tragically. But I plead--and Senator Inhofe and I have 
worked so hard on this bill and I think he feels this same way--we need 
to get this bill finished this week or else we are not going to get a 
conference report.
  Mr. COBURN. I would like to object.
  The PRESIDING OFFICER. The majority leader is recognized.

[[Page 17683]]


  Mr. REID. I am sorry.
  Mr. INHOFE. I reserve the right to object.
  Mr. REID. I would say, while they are reserving the right to object, 
there is still time left. With the tentative agreement we had, which 
was just kind of a handshake, there would be 6 hours, and there is 
still time left on that. So that time for debate only, that time could 
still be used.
  The PRESIDING OFFICER. Is there objection to the request?
  Mr. COBURN. Reserving the right to object.
  Mr. INHOFE. Reserving the right to object.
  The PRESIDING OFFICER. The junior Senator from Oklahoma is 
recognized.
  Mr. COBURN. First of all, the amendment we are talking about isn't 
pending because the tree has been filled. So we don't even have an 
amendment pending. Seventy-six times the majority leader has filled the 
tree, more than two times all the rest of the Senate majority leaders 
in history.
  Last year, under Senators Levin and McCain's leadership, we 
considered 125 amendments or thereabouts, some in a manager's package 
with others. There were over 300 amendments offered. The average length 
of time to consider this bill is about 2\1/2\ weeks. We have had it up 
less than 1 week, and the fact is this is the consideration for an 
authorization bill in excess of $500 billion, and we are not going to 
have amendments on it.
  So there is not a unanimous consent that I will agree to, until we 
agree to open the Senate to allow Members to offer their ideas. Table 
them. The fact is, if we run this just like we did last year, we will 
be through with this in 5 to 7 days. If we continue to do what we are 
doing now, we won't finish it, and it won't be because we don't want to 
finish it. It will be because we won't have the opportunity to have 
input into a bill that is over 50 percent of our discretionary spending 
in this country.
  The PRESIDING OFFICER. Is there objection?
  Mr. INHOFE. Reserving the right to object.
  The PRESIDING OFFICER. The senior Senator from Oklahoma.
  Mr. INHOFE. I think when we are going through an exercise like this 
there are some people who want to have their program placed on a must-
pass bill in order to get something through. The junior Senator from 
Oklahoma made it very clear that he is talking about something he feels 
is relevant to the defense of this country, and I think that sounds 
reasonable.
  What I would like to suggest to the majority leader and to my very 
good friend with whom I have worked for many years, the chairman of the 
committee Senator Levin, is that we can qualify and work on a UC which 
would either use the words germane, relevant or related, in some way so 
that those amendments--which have nothing to do with defending 
America--might be able to be considered in some form, maybe a limited 
form. I would like to be able to sit down and see if something like 
that can be worked out before giving up.
  The PRESIDING OFFICER. Is there objection? The majority leader.
  Mr. REID. I know there is a unanimous consent pending. I have no 
problem in the world with continuing to work to see if we can come up 
with something. We have tried. It is not as if we have not tried. But 
my disappointment is that we are just not doing any legislating here, 
and people can bring the blame to me all they want. We can get into all 
kinds of statistics that we want about what has happened in years past 
and why it has been necessary to fill the tree, but that doesn't 
accomplish anything. Everyone knows what is going on around here. So I 
am not going to get into a he said, they said situation.
  I know the two managers of this bill want to get something done. 
Let's give them the time it takes to get that done.
  So my consent is pending, and I would like the Chair to rule on that.
  The PRESIDING OFFICER. Is there objection to the request?
  Mr. COBURN. I object.
  Mr. REID. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, I renew my request that was just denied.
  The PRESIDING OFFICER. Is there objection?
  Mr. REID. I also add to that that I be recognized at 7:30.
  The PRESIDING OFFICER (Mr. Blumenthal). Is there objection?
  Without objection, it is so ordered.

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