Military Justice Improvement and Increasing Prevention Act

Floor Speech

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Mrs. GILLIBRAND. Mr. President, I rise today to once again ask that every Senator have a chance to consider and cast their vote on the Military Justice Improvement and Increasing Prevention Act.

This bill would ensure that when crimes are committed in our military, justice is delivered. This commonsense reform, which has bipartisan, filibuster-proof support, 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 takes the same approach to criminal justice that the military takes in most other areas of operation. It puts highly technical work in the hands of trained specialists.

This is not a new concept. I first introduced a similar form of this legislation in 2013.

This is not a new idea that requires hypothetical thinking. This system or a version of it is already being used by our allies around the world to positive effect. Australia has moved charging decisions for serious crimes from the chain of command to the director of military prosecutions, as has Canada, New Zealand, and Ireland. In France, charging decisions are made by lawyers, not by commanders. Germany tries military cases in civilian courts with civilian authorities. In Italy, charging decisions are made by judge advocates, who are fully independent of the chain of command. The Netherlands assigns charging decisions to public prosecutors with broad experience in military cases. Norway uses military prosecuting authority for criminal offenses by military personnel. The UK moved serious crimes out of the chain of command in 2009 as part of an effort to provide an independent and impartial tribunal to the accused. In Israel, charging decisions are made by judge advocates whose sole commander is the military advocate general, a general officer.

I will note that the Israeli system is almost identical to the procedures set forth in our bill. Israel has not seen a decrease in good order and discipline and, in fact, has seen increased reporting and faith in their military justice system.

These countries took serious crimes out of the chain of command because they believed that defendants have a right to civil liberties. They recognized that servicemembers deserve a trial not led by a commander, who often has no legal experience or education, but by trained criminal lawyers.

When they made these changes, they did not see a diminution in command control or the ability to maintain good order and discipline within their ranks. In fact, when we stop asking commanders to act as judge and jury in complex cases, they will have more time to focus on rebuilding the trust and cohesion among their ranks that we know is critical to military readiness.

We pride ourselves on having the best military in the world. To maintain it, we need to do more to make it safe for everyone to serve. Our allies have already done this. Every day we don't act is a day we fall further behind on this front.

This is a tried and tested system. It has delivered change for our allies that the incremental reforms put in place by the Armed Services Committee have not delivered to our servicemembers. This reform has been tested; requested by survivors, veterans, and commanders; backed by experts in military justice; and supported by 65 Senators. There is no reason to delay a vote on the floor any further.

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, I would like to actually give some information to the chairman about what these other nations' leaders have actually said about this issue.

Major General Blaise Cathcart, advocate general of the Canadian Armed Forces, wrote:

The 1999 changes to the military justice system were battle tested in the theater of active operations and, in my view, were a key contributor to combat effectiveness of the Canadian armed forces. The current military justice system contributed substantially to the fielding and sustainment of a disciplined and efficient force with high morale.

Air Commander Paul Cronan, director general of the Australian Defense Force Legal Service:

At this point, it's appropriate to reflect on the effect of the reforms made to the Australian military justice system in 2003 and 2006. These reforms have undoubtedly had a significant and positive impact on the efficacy, impartiality, and perceived fairness of Australia's military justice system. This is a fact confirmed by a number of subsequent independent reviews of the effectiveness of the 2003 and 2006 reforms. As a result of their independent review, they concluded that the reforms had been effective, and that as a result of these reforms, ``The military justice system is delivering and should continue to deliver impartial, rigorous, and fair outcomes. Enhanced transparency and enhanced oversight is substantially more independent from the chain of command, and is effective in maintaining a high standard of discipline both domestically and in the operational theater.''

In the UK, Commander Andrei Spence, Commodore Naval Legal Service, Royal Navy, UK:

Probably the most pressing question that you need answering from me, and if I may preempt it slightly at the risk of being too forthcoming, is what's the effect on command of our changes? How do they view it? Do they feel disempowered, disenfranchised? I have to say that the simple answer to that is no.

Gen. Blaise Cathcart, Advocate General of the Canadian Armed Forces

``The Canadian armed forces require a robust and fair military justice system to investigate, prosecute, and adjudicate allegations of sexual assault. As the superintendent of the administration of the Canadian military justice system, I am confident our system meets the disciplinary needs of the chain of command while addressing the interests of victims and reflecting the constitutionality protected Canadian values of fairness, transparency, and the rule of law . . . The 1999 changes to the military justice system were battle tested in the theater of active operations and, in my view were a key contributor to the combat effectiveness of the Canadian armed forces. The current military justice system contributed substantially to the fielding and sustainment of a disciplined and efficient force with high morale.''

Maj. Gen. Steve Noonan, Deputy Commander, Canadian Joint Operations Command

``My intent is simply to inform the Panel that as an operational commander, I'm very comfortable with where we have evolved to, recognizing the continued key role of the commanding officer in the system, and the latitude that the system still provides for us to maintain good order and discipline, two key elements of operational effectiveness . . . In terms of the role of the commanding officer in the court martial process, in sensitive matters, like an alleged sexual assault, we believe it is in the best interest of the chain of command, the accused, and the complainant to have an independent investigator assess the evidence and lay charges, an independent prosecutor determine whether or not to proceed, and an independent court martial administrator convene a court martial. All of these actors, in my view, strengthen my role in the chain of command as those under my command can be confident in the real and perceived independence of the military justice system.'' Air Comm. Paul Cronan, Director General, Australian Defense Force Legal Service

``At this point, it's appropriate to reflect on the effect of the reforms made to the Australian military justice system in 2003 and 2006. These reforms have undoubtedly had a significant and positive impact on the efficacy, impartiality, and perceived fairness of Australia's military justice system. This a fact confirmed by a number of subsequent independent reviews of the effectiveness of the 2003 and 2006 reforms. As a result of their independent review, they concluded that the reforms had been effective, and that as a result of the reforms, ``The military justice system is delivering and should continue to deliver impartial, rigorous, and fair outcomes. Enhanced transparency and enhanced oversight is substantially more independent from the chain of command, and is effective in maintaining a high standard of discipline both domestically and in the operational theater.''

Comm. Andrei Spence, Commodore Naval Legal Services, Royal Navy, UK

``Probably the most pressing question that you need answering from me, and if I may preempt it slightly at the risk of being too forthcoming, is what's the effect on command of our changes? How do they view it? Do they feel disempowered, disenfranchised? I have to say that the simple answer to that is no.'

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