Unanimous Consent Request--S. 1520

Floor Speech

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Mrs. GILLIBRAND. Mr. President, I rise to ask that the Senate be given the chance to consider and vote on the Military Justice Improvement and Increasing Prevention Act.

Before I discuss the bill, I would like to first acknowledge that we have just returned from Memorial Day recess and to recognize the men and women who made the ultimate sacrifice to protect our country and to protect our freedom. They got on a plane or they got on a ship; they went to countries they may never have been to before; they fought for our country; and they didn't come home.

We ask so much of our servicemembers and their families, and we owe it to them to take action when they are in danger. That is why I want to talk about this bill right now.

Sexual assault in the military is an epidemic. Year after year, reports of sexual assault have gone up, but conviction rates and prosecution rates have actually come down. This stems from a fundamental problem which has to be addressed: There is bias in our military justice system.

Right now, if you are a victim of sexual assault or another serious crime, the decision to prosecute goes to a commander, not to a trained military prosecutor. And while our commanders are exceptional leaders and exceptional warfighters, they are not legal experts, nor should they be asked to be. Nor can commanders be truly independent when considering charges against a subordinate or charges made by a subordinate.

This bill removes the decision of whether to prosecute sexual assaults or any other serious crime out of the chain of command and gives it to trained military prosecutors, where it belongs. This would establish something fundamental to our justice system: blind justice. It is a simple change. It is a change that is supported by legal experts, by JAGs, by commanders, by generals, by admirals, by veterans.

Opponents of this bill--and their numbers are dwindling--claim that this one change would somehow undermine good order and discipline. Well, I will tell you, I have heard that one before. It is the same weak argument they have made time and time again.

Many people stood on this floor and said that we could not repeal don't ask, don't tell because it undermined good order and discipline. When we wanted to integrate the military and have Black servicemembers serve, we were told we couldn't possibly do that; it would undermine good order and discipline. We made the case that LGBTQ members should be able to serve openly, that trans members should be able to serve openly. We were told: You can't possibly do that; it would undermine good order and discipline. When we asked for women to be able to serve in combat, something they had been doing for a very long time but not necessarily getting credit for it, we were told: You can't possibly do that; it will undermine good order and discipline.

But each of those times Congress rose to the occasion and did the right thing and did the thing that was necessary to make our military stronger, and each time our military became stronger.

Further undermining this argument is the fact that this system, or versions very similar to it, are being used today by our allies that we fight side by side, allies like the UK or Israel or Germany or Netherlands or Australia or Canada. They did not see a degradation of good order and discipline. They told us so.

Finally, in addition to the opposition to this bill being a weak argument, the support for this bill is strong, and that support continues to grow. How many bills have you heard of in this Congress, or the last, or the last, or the last that have 66 cosponsors? Widely bipartisan. How many bills have Liz Warren and Ted Cruz on them or Mitch McConnell and Chuck Schumer in support of? It doesn't happen very often.

But this is something that I and many Senators in this Chamber have been working on for 8 years, holding hearings on for 8 years, making amendments in the NDAA for 8 years, making the case that this change is needed for 8 years. And through all that work and through all that advocacy, we now have 66 cosponsors--a majority of the Senate, a majority of the Armed Services Committee. This bill deserves a vote. This bill deserves to have the Senate vote on it now. It is time to pass this law, and it is time to do our jobs.

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, while the chairman does agree that the serious crime of sexual assault should be taken out of the chain of command, our bill requests and requires that all serious crimes be taken out of the chain of command because of the existence of bias. And we have two data points that prove that bias. One is the poor results we have seen for survivors of sexual assaults over the last 10 years that data has been collected, and the second data point we have, which has been developed over the last 3 years, is the existence of racial bias.

Protect Our Defenders did a serious report in 2017, and it determined that across all services, looking at all punishments, Black and Brown servicemembers were punished approximately two times more often than White servicemembers, looking at both nonjudicial and court-martials. And that show of bias means that the military justice system isn't working for many people. It is not working for plaintiffs, and it is not working for defendants.

And, in fact, when our allies looked at this same issue, particularly defendants' rights over the last 40 years, they determined that bias in the system was incompatible with their views of justice, and they decided that for defendants' rights, specifically, all serious crimes should be decided by trained military prosecutors.

So this solution is one we have been debating in the committee for 8 years, and, in fact, we have used compromises and smaller steps and small-ball measures over the last 8 years to address this problem. Unfortunately, despite putting in place approximately 250 new measures over the last 8 years, the rate of conviction and the rate of prosecution is still going down, but the rate of sexual assault has stayed persistent at approximately 20,000 incidents a year.

So while I appreciate that my colleague is coming to the conclusion that one serious crime should be taken out of the chain of command, military experts disagree that a line should be drawn around only one crime because they believe that that will result in unfair systems of justice--two systems of justice and one that does not meet the needs of bias that we see in the current system.

Second, we have many combat veterans on this legislation. Joni Ernst is one of our lead sponsors, who is the only female Republican combat veteran and who has also experienced sexual assault. Mark Kelly is on our bill. Tammy Duckworth is on our bill. Gary Peters is on our bill. Josh Hawley is on our bill. And we also have many of our attorneys general on this bill, people who have looked at the law from a perspective of civil rights and civil liberties, such as Richard Blumenthal.

This matters, and I believe that we have given the committee 8 years to solve this problem.

Third, when we have given the opportunity to the committee to solve this problem and pass meaningful--meaningful--reforms, if the DOD disagreed with those reforms, despite passing in the House and in the Senate, they have seen fit to make sure those reforms have been taken out in conference. One such example was legislation we passed in 2019 creating a ``safe to report'' provision, which would have allowed survivors of sexual assault to come forward to report the crime but not be prosecuted for related smaller crimes, such as drinking or being off base.

That language passed the Senate. It passed the House. And, miraculously, because the DOD didn't approve, it was taken out in conference. In 2020, the Senators who worked on that provision, Senator Ernst and I, made very clear that we did not appreciate staff members taking out work and provisions that had been considered and voted on by Senators as part of their responsibility. And we were able to pass it the second time.

So, unfortunately, Mr. President, I don't have faith that if we allow the committee to look at this bill and pass it in the Senate and the House, that it will not be watered down or taken out in conference without the consent of all the Senators who voted for it.

Therefore, I urge this body to allow for an up-or-down vote on this Senate floor. That is a privilege that was given ``don't ask, don't tell'' repeal because of similar filibusters by members of the Armed Services Committee. When we voted on ``don't ask, don't tell,'' it was an up-or-down Senate vote. This deserves the same opportunity.

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