Cloture Motion

Floor Speech

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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, it is very kind the chairman notes that the last time we got a vote in committee was 2013. We have been asking for a vote on this for the last 8 years, asking for the last 5 years to get a floor vote and been denied. This bill has been routinely and roundly filibustered and opposed by the chairman and the ranking member for the entire 8 years that I have been working on this bill. And this bicameral bill, that has 66 Senate cosponsors, should not be relegated by a committee that will communicate with the DOD behind the scenes. That is what they do. That is what they have been doing.

This is not a bill related to a technical aspect of warfighting that would benefit from the expertise found within the DOD. It is a check on the commander's power that has allowed a culture to flourish, where two and three victims do not feel comfortable coming forward to report their assault and 64 percent--a number that is stubbornly unchanged-- experience retaliation when they do come forward. Moreover, a majority of the Members already cosponsor this bill so it is unclear what expertise the committee will add. It will only create an opportunity for the DOD to water down this much needed reform.

As a military law expert, Brenner Fissell wrote today in The Hill, ``An institution with the power to kill people and topple governments should not resist our elected Senators' clear will, cheering as a procedural loophole allows a small minority to prevent popular forms from being implemented.''

Mr. President, this is the 12th time that I have risen to ask for unanimous consent for a very simple reason: The Military Justice Improvement and Increasing Prevention Act deserves a vote. The people in the military deserve a military justice system worthy of their sacrifice.

We don't have time to delay. Every day that we delay a vote on this, more servicemembers are being sexually assaulted and raped.

I started this request for unanimous consent 28 days ago. Since then, an estimated 1,568 servicemembers have been raped or sexually assaulted. More will have been victims of other serious crimes, and most of them will feel that there is no point in even reporting the crime because they have no faith in the current military justice system. That system asks commanders, not lawyers, to decide whether cases go forward. The lack of faith is understandable. Less than 1 in 10 sexual assault cases that are considered for command action are actually sent to trial, and just a small fraction of those end in conviction.

In the 8 years that we have been fighting for this reform, further fault lines in the military justice system have been made evident, including deeply troubling racial disparities. It is a disappointment that the chairman is not here to hear this information himself.

In 2017, a report found Black servicemembers were as much as 2.61 times more likely to have disciplinary action taken against them as their White counterparts. In 2019, the GAO found Black and Hispanic servicemembers were more likely than White servicemembers to be subjected to criminal investigation and to face general and special courts-martial. Those statics show a clear and pressing need to address what appears to be inherent bias in the current command-controlled system.

To provide our servicemembers with real justice, we must move all serious crimes out of the chain of command. This bill will do that by making a simple but critical change to the way the military justice system handles serious crime. It streamlines how cases move forward. Instead of commanders, who have zero formal legal training, making the decision to prefer or refer cases to trial, this bill gives those legal decisions to highly trained, impartial, professional military justice lawyers. It allows the commander to continue to work hand in hand with judge advocates to implement good order and discipline in their unit.

The bill really comes down to one thing: Is there enough evidence to move this case forward? We should not put that responsibility on commanders, who often know both the accused and the accuser and do not have legalized training to be able to make these decisions properly. When it comes to serious crimes that can lead to long, more-than-a-year sentences, that decision should be made by a legal expert.

That is the change the bill would make. It is tailored, it is simple, and it is an elegant solution to meet a very real problem. Commanders still have lots of power. They have the ability to enact nonjudicial punishment, which allows them to set the tone for their troops and maintain good order and discipline. They will still have the ability to put people on restriction and in confinement. They still have the ability to issue protective orders. These are the basic tools that commanders rely on to implement good order and discipline, not general courts-martial.

If a serious crime is not preferred and then referred by the JAG convening authority, it goes right back to the commander, who can choose to do several things. He can do nothing. He can carry out nonjudicial punishment or administrative separation. He can pursue summary or special court-martial.

However, this change, despite its simplicity and despite being a very small change, will create a seismic shift in how the military justice system is perceived by both servicemembers who have been subjected to sexual assault and by Black and Brown servicemembers who have been subjected to bias.

We need a professionalized military justice system so that everyone, from survivors to defendants, can have more trust in the current process--a process that is based on evidence and legal facts and that cases will be decided impartially. That is the system our servicemembers deserve and is the system that we create by the Military Justice Improvement and Increasing Prevention Act.

We have tried every small ball effort you can imagine. The Presiding Officer has been on that committee for years. You watched us pass every type of reform that the DOD is OK with. This is the one they have fought tooth and nail to prevent implementation of, and even today, our chairman wants to narrow it down and reduce it to a very small size-- one crime, one crime only.

Well, let's just look at the facts. The Vanessa Guillen case was a murder case. Under the chairman's own analysis, he would not have allowed that case to go forward through the review of a special, trained military prosecutor. In fact, her case may never have seen the light of day. That is a problem. So we need to treat all serious crimes the same.

We have compromised on this bill. We carved out all the serious crimes that are military in nature--going AWOL, not following a direct command, anything that the commander would have a special purview over--but we draw a bright line at the rest of those serious crimes, and that is a good solution. It is what our allies have already done-- UK, Israel, Canada, Germany, Netherlands, Australia--and they saw no diminution in command control.

We need to build a military justice system that is worthy of the sacrifices that the men and women in our armed services make every day.
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