Executive Calendar

Floor Speech

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Mr. REED. I will repeat again: I support removing prosecution of sexual assault and related crimes from the chain of command, but we must take care that we do it thoughtfully, in a manner that does not stress the military justice system or distort it in a way that would affect the efficiency and operation of the military. The best way to do that, in my view, is to consider these matters in the context of the annual Defense bill, which we will be marking up in a month.

Mr. President, I would also point out that this week, Jeh Johnson, who served under President Obama as the Department of Defense general counsel, and then Secretary of Homeland Security, wrote an article addressing the scope of Senator Gillibrand's bill, urging caution that we focus on legislative solutions tailored to address the problem we are trying to solve. And to remind my colleagues, as the DOD general counsel, Secretary Johnson oversaw all legal services performed within the Department of Defense. He advised the Secretary and all government officials on military justice matters and oversaw the annual review of the Manual for Courts-Martial. He is an informed and expert voice on these matters.

During his tenure as DOD general counsel, he was no stranger to momentous change, leading the implementation of the repeal of don't ask, don't tell. As he states in his article, he has long supported moving charging decisions over sex offenses out of the chain of command.

(By Jeh Johnson)

The Military Justice Improvement and Increasing Prevention Act of 2021 is legislation pending in Congress to reshape the manner in which the U.S. military prosecutes sexual assault within its ranks. This is reform that is much needed and long overdue. Notably, however, the bill in its current form reshapes military justice far beyond the context of sexual assault. Congress should take care to fashion a solution commensurate with the problem at hand, and not go too far.

Senator Kirsten Gillibrand (D-NY), the principal sponsor of the bill, S. 1520, deserves credit for her heroic and persistent campaign over the years to highlight the problem of sexual assault in the military. Few others in Congress today could have assembled such a broad bipartisan coalition of 64 co-sponsors behind such an important, substantive piece of legislation, while moving (or, to put it more appropriately, dragging) the top brass at the Pentagon to the same place. From my experience 10 years ago preparing the military for the repeal of Don't Ask, Don't Tell, I know how resistant to change that community can be.

I support Senator Gillibrand's effort to move charging decisions for sex offenses in the military to an independent, trained group of military lawyers. I said as much publicly in 2013. Likewise, almost all retired general and flag officers I speak with today agree that the male-dominated chain of command has failed the victims of sexual assault in the military. They accept the need for change.

But, in its current form, the changes contemplated by S. 1520 are not limited to sex-related offenses. The bill would create an independent body of lawyers, outside the chain of command, to make charging decisions for a broad range of offenses punishable by more than a year's confinement. These include murder, manslaughter, child endangerment, larceny, robbery, fraudulent use of a credit card, kidnapping, arson, housebreaking, extortion, bribery, perjury, subornation of perjury and obstruction of justice. (Notably, other offenses such as receipt of stolen property, forgery and conduct unbecoming an officer are excluded from the bill's reach, but the logic for the distinction is unclear.) In all, if enacted, the legislation would constitute the largest change to military justice since the enactment of the Uniform Code of Military Justice in 1950.

Why are offenses ranging from murder, arson to perjury included in the bill's reach? What is the justification for so large an overhaul? Where is the congressional finding that, when it comes to the broader range of offenses, the chain of command in the U.S. military has failed in its duty to carry out military justice?

Supporters of the bill argue that, once Congress goes down the road of creating an independent body to make charging decisions for sex crimes, it cannot stop; that to limit the creation of an independent body for sex crimes would also create the stigma of ``pink courts'' that appear to exist for the benefit of women. In my view, the exception is warranted, perceptions can be addressed, and the exception should not swallow the rule. In both civilian and military life, the reality is the sex offenses are different, in the manner in which they are reported, investigated, and prosecuted. It should also be noted that victims of sexual assault are both men and women.

Here are several other considerations:

First, as written the bill appears to require a whole new bureaucracy to implement and execute the changes contemplated. No one should be under the illusion that the broad mission contemplated by the bill can be carried by a small band of elite JAGs in a suite someplace in northern Virginia. The bill would require that an independent group of lawyers make charging decisions for a vast range

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Mr. REED. I think given the wise comments of not only Mr. Johnson but also the pending recommendations by the Department of Defense concerning this issue, again, the best place to have a thorough, lively debate and amendments, by the way, which are precluded in this unanimous consent, would be in the Armed Services Committee in the context of the annual defense authorization bill. That is where we have confronted and decided these issues historically.

And with that, I would reiterate my objection to the Senator from New York's request.

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