Executive Calendar

Floor Speech

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Mrs. GILLIBRAND. Mr. President, I rise today to address the need to reform our military justice system.

Just this month, the Department of Defense released its annual report on sexual assault in the military. That report and more than a decade of data on sexual assault in the military show a clear and disturbing trend. Reports of sexual assault have increased virtually every single year and remain at record highs, while prosecution and conviction rates have declined, including a shocking 10 percent point decline in the prosecution rate from last year. By every measure that you can imagine, we are moving in the wrong direction.

Congress has given the military more than $1 billion--$500 million in fiscal year 2019 alone--enacted hundreds of provisions, and chartered special panels, Commissions, and advisory committees to address this problem. Not one of these steps has reduced the prevalence rate of sexual assaults within the ranks. We are still getting reports like the one we got from Fort Hood, which found that the world's largest Army base was ``a permissive environment for sexual assault and sexual harassment.'' We are right where we started. Nothing has changed.

I have heard from too many survivors who have barely come forward in search of justice, only to have their cases outright declined by the chain of command and then face more harassment and retaliation for reporting their assailant. We owe it to our servicemembers to do more to prevent these crimes and properly prosecute them when they occur.

Our bill, the Military Justice Improvement and Increasing Prevention Act, would ensure that, when these crimes are committed, justice is delivered. It does so by taking the same approach to these cases that the military takes in almost every other area of operation. It puts highly technical work in the hands of trained specialists.

This bipartisan and commonsense reform moves the decision on whether to prosecute serious crimes to independent, trained, and professional military prosecutors while leaving misdemeanors and uniquely military crimes within the chain of command. In other words, it will let prosecutors prosecute and commanders command.

By moving this work off of the commander's plate, it will empower command to focus on mission-critical activities and on rebuilding the trust among their ranks that we know is critical to military readiness.

This bill is not political. It is about doing the right thing for our servicemembers who do so much for this Nation.

The Military Justice Improvement and Increasing Prevention Act has bipartisan, filibuster-proof support. It is supported by 63 Senators, including 42 Democrats, 2 Independents, and 19 Republicans, and the majority of the Senate Armed Services Committee. If we brought this bill to the floor today, it would pass.

We have the legislation, and we have the votes. Now we just need the will to act. I urge all of my colleagues to join me in working to pass this bill as quickly as possible. As this week's Department of Defense report makes clear, our servicemembers do not have time to wait.

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Mrs. GILLIBRAND. Mr. President, as if in legislative session, I ask unanimous consent that at a time to be determined by the majority leader, in consultation with the Republican leader, the Senate Armed Services Committee be discharged from further consideration of S. 1520 and the Senate proceed to its consideration; that there be 2 hours for debate, equally divided in the usual form; and that upon the use or yielding back of that time, the Senate vote on the bill with no intervening action or debate.

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Mrs. GILLIBRAND. Mr. President, well, I just want to respond to my colleagues and chairman and ranking member. While I am extremely grateful for their leadership and their willingness to review and take on the IRC recommendations, the IRC recommendations are limited. It was only a 60-day review of the issue of sexual assault and sexual harassment only. It did not look at the military justice system overall. It did not have the benefit of 8 years of review, study, and passing related amendments and changes.

Our committee has passed over 200--or nearly 250--different resolutions and changes to how the military deals with sexual harassment and sexual assault, to no effect.

Deferring only to the IRC, which is an unelected panel that has only looked at this issue for 60 days, is not sufficient. Not only do we have Senators on the Armed Services Committee who have been studying this issue for 8 years, making recommendations and passing laws on this topic for 8 years, it would seem that to defer to a panel that has only looked at this issue for 60 days, to one issue, seems irresponsible.

Second, I do not believe that issues of this weight and of this significance should be dealt with the committee only. The Armed Services Committee has been working on this issue for 10 years, and we have seen no improvement in the number of sexual assaults in the military and on the rate of prosecution and the rate of conviction. That is highly problematic.

Also, when I asked for a vote on this measure over the last several years, I have been denied a vote on this measure on the floor by the chairman and the ranking member. So they have been unable or unwilling to allow me to have a vote, given all the bipartisan support we have had from the beginning.

This bill has been bipartisan from day one. Senator Grassley has been on this bill from day one, as have several other Republicans. Today, we now have 63 cosponsors to this legislation--widely bipartisan--and more than half of the Armed Services Committee. We have established that the weight of this Senate, in a filibuster-proof majority, wants a floor vote on this and does not want to leave it up to the committee.

The Armed Services Committee has lost their opportunity to claim sole jurisdiction over this issue by failing to improve this situation over the last 10 years. In fact, the 250 measures that we passed were all approved by various panels that took 60 days or 90 days or a year to review this issue, and we willingly took those recommendations and turned them into law.

I, too, will willingly take the recommendations of the IRC board and turn them into law because they are good and thoughtful recommendations, but they are limited. By design, they were only allowed to look at two crimes--sexual assault and sexual harassment-- and by not looking at all serious crimes, you are not looking at the weight of the problem.

We now have evidence that has been developed since 2017 about racial disparities and how the criminal justice system in the military works.

Protect Our Defenders issued a significant report that can be found at https:\\www.protectourdefenders.com/wp-content/uploads/2017/05/ Report_20.pdf.

Mr. President, that report will show that Black servicemembers were at least 1.29 times and as much as 2.61 times more likely to have disciplinary action taken against them in an average year across all branches from 2006 to 2015. These disparities largely did not improve and in some cases worsened in the most recent years covered.

So we have other challenges within the military justice system, and now we have two areas where we have data that the military itself has collected. On sexual assault, we have 10 years of data, and now on racial disparities and racism within the military, we have data over the last 3 years, and that has to be considered as well.

So the way to fix both of these problems is really simple: Professionalize the military justice system. Allow serious crimes to be taken out of the chain of command and given to trained military prosecutors who do not have bias and have highly specialized training.

If we professionalize the military justice system, we will see justice done because there will be less bias in the system and there will be more professionalism. The combination of those two things, we believe, based on what military members have told us, will result in more cases going forward and more prosecutions.

Second, we have the support of military justice experts. We have a letter from the National Institute of Military Justice:

The National Institute of Military Justice recommends transferring prosecutorial discretion not only for all sex offenses, but also for all serious offenses--those for which the authorized maximum punishment exceeds one year's confinement. The dividing line is a familiar feature [in the] American criminal justice [system].

These changes will strengthen the fairness of military justice and bolster public confidence in the administration.

Similarly, we have a piece published in the Marine Corps Gazette by Capt. Lambert Jackson, who has prosecuted these cases. He served as trial counsel for the 2nd Marine Division and is complex trial counsel.

He fundamentally understands the nature of these cases. He was an operational law attorney in the 1st Marine Division. He says:

Felony prosecution determinations must be vested with trained military attorneys rather than commanders; disentangling commanders from the often-ugly legal determinations for which they are ill-trained will allow commanders to more effectively focus their attention on preparing their units for conflict.

While I appreciate the willingness to take the recommendations of the panel that General Austin has impaneled to look at just two crimes and while I agree that we should accept those recommendations--and I intend to push them into the mark through our personnel subcommittee--we also should look at the reforms that 63 Senators want done. We should also look at the reforms that are supported by more than half of the Armed Services Committee members. We deserve a floor vote, and we deserve a process that cannot be undermined by the committee.

I have served on this committee for 10 years, and the chairman well understands that in conference, bills that have passed both sides have been taken out.

You do not have to look further than what happened to the safety report language. It was passed in the House, passed in the Senate, and it is safe to report, by the way, that it was offered in the Senate by Senator Ernst and me in the Armed Services Committee because it would deal with retaliation. That bill was passed in the Senate, passed in the House, and taken out in conference. That is a problem.

I do not want to expose this massive reform that is a generational reform to the whims of those who decide what gets taken out in conference. It is not acceptable to me to be watered down or reduced or minimized by those in conference. That is the risk you run by not allowing this to have a floor vote, which it deserves.

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Mrs. GILLIBRAND. Madam President, one of the concerns I have is that we have been studying this issue and debating this issue for years.

We have had several floor debates. We had two floor debates because we only got to vote on it twice. Both times, we had the majority of the Senate promoting this provision.

What we have is a record of our allies already making this change, not for the issue of sexual assault in the military but for the issue of defendants' rights. The UK, Israel, Germany, Netherlands, Australia all took serious crimes, a bright-line of felonies out of the chain of command because they believed that a defendant had a right to basic civil liberties. When they did so, they did not see a diminution in command control or the ability to have good order and discipline within the ranks. And they wrote to one of the many panels that we have had over the past 10 years--that information--to tell them that this is a change we have made. And the UK even said this was a change that our commanders basically didn't notice.

So this is not some untested, out-of-the-box idea. This is an idea that is supported by the survivors, by veterans, by commanders, by experts in military justice, and by our allies. I believe that our servicemembers deserve a criminal justice system worthy of the sacrifices they make.

Last, I do not think this is a moment to defer to the committee. The committee has failed survivors over the last 10 years, and I do not think it is in their purview to make this ultimate decision. When we had a vote on the ``don't ask, don't tell'' repeal--something that was similarly a generational change--it was done on a floor vote, an up-or- down vote, and we had that vote twice. It was called twice because the first time Republicans refused to participate in the vote. We called it again, and we had the 60 votes we needed to overcome a filibuster.

I believe this vote is also a once-in-a-generation vote that needs the review and the vote of the entire Senate because, not only does the Congress have the responsibility to oversee the military and the entire executive branch, but this whole body has the ability to oversee individual committees if they aren't going far enough when the moment demands it.

I believe this is some such time. We are here for a time such as this. We should do our job. We should vote on this measure, and it should be an up-or-down floor vote.

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Mrs. GILLIBRAND. Madam President, I would simply state that we have already established that this is something that should become law. We already have 63 Senators on a bipartisan basis supporting this reform.

This is not something that is new to the committee. We have been debating this issue for 8 years. I have asked for a vote every one of those 8 years and have only been given one twice. We had the majority of the Senate on both of those votes. So this bill has been filibustered for 8 years. This bill has been refused to be allowed to be part of the NDAA for a long time. This is not a new issue. These are not new facts. These are things that we have been wrestling with and failing. So I believe it is time this measure comes to the floor.

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