Unanimous Consent Request--S. 1520

Floor Speech

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Mrs. GILLIBRAND. Mr. President, I rise once again to call for every Senator to have the chance to vote on the Military Justice Improvement and Increasing Prevention Act. It is time for us to move serious crimes, like sexual assault and murder, out of the chain of command and put them in the hands of the most capable people in the military to do this: independent, impartial, highly trained uniformed prosecutors.

I want to first acknowledge and express my gratitude to my colleagues on the Armed Services Subcommittee on Personnel who recognize the importance of this legislation and this morning voted to include it as an amendment to the Senate Armed Services Personnel Subcommittee markup of the NDAA.

The reason we are calling for this reform is because our current system is just not working for our servicemembers. It is not delivering justice on the values of justice and equality that they have sacrificed so much to defend. We are here to serve them. Any reform that we should make should be made with their best interests in mind.

So while I am glad that so many of our colleagues are now looking for ways to help survivors of sexual assault in the military, we must help them by starting to listen to them and what they are saying about the justice they want delivered.

If we move just sexual assault and related crimes out of the chain of command, we are ignoring the voices of the very people whom we are trying to help. Survivors have asked for all serious crimes to be taken out of the chain of command. They have told us time and time again that they do not want to be further isolated, further diminished, by being given special treatment. They do not want to have a separate judicial system. The request is clear: Do not create a pink court, a court that will be perceived by other servicemembers as only serving women. While we know that many sexual assault survivors are men, the perception in the military will be reality, and it will be seen as marginalizing and minimizing women servicemembers.

It is our obligation to listen to the men and women we are serving and to do our job. Creating a bifurcated system will not only silence survivors' voices; it will silence the voices of the enlisted servicemembers who have asked us to provide basic fairness.

Our servicemembers recognize that, intentionally or not, a commander who knows both the accuser and the victim cannot remove bias from decision making. Our servicemembers have told us that they lack faith in the current system, which leaves serious crimes and, potentially, serious sentences with commanders who are not trained lawyers.

We have to listen to the men and women in uniform who have asked us to ensure that their cases will be decided by an independent, highly trained military prosecutor if they are going to face prosecution that can lead to more than a year of confinement

I ask my colleagues who are in favor of moving just sexual assault and related crimes out of the chain of command: Why should some crimes be handled by better lawyers than others? Don't we want all serious crimes to be given serious consideration by a JAG with criminal justice experience? Don't all of our servicemembers deserve a professionalized judicial system?

As Senator Hawley, a former prosecutor, this morning in our subcommittee hearing, said:

[W]hen we have service men and women who have had serious crimes committed against them--felony crimes, as are addressed in this bill--it is absolutely imperative that: justice is done to these men and women, is done for them; that the procedures and standards that they can expect are uniform and predictable; [and] that trained military prosecutors make the final call as to whether or not . . . these cases will go forward for prosecution. And the reason for that is we want the evidence to be weighed by the prosecutor--the individual, the woman or the man--who is going to be presenting this to a jury, to a judge in the system. . . . That's a predictable system. I think it is one that both defendants and victims can support because the rules are uniform--it's across the board, it's is analogous to our civilian system but still, of course, stays within the military system of justice.

Many of our colleagues brought renewed attention to the need for military justice after the tragic murder of SPC Vanessa Guillen. Her case shows us that a bifurcated system that leaves some crimes with prosecutors and some crimes with commanders will not deliver justice.

Specialist Guillen was sexually harassed by one soldier and then murdered by another. If we remove just sexual assault and related crimes from the chain of command, only her harasser's case would be handled by a prosecutor. Her murderer's case would not. It would be left in the hands of the same command that so deeply mishandled her case that her murderer was able to flee the base and end his own life. Her family, as a consequence, will never have justice.

We have heard from voices inside the Pentagon who have resisted this change for far too long. We cannot let them continue to drown out the voices of the people in the military justice system whom they are supposed to serve. We must listen to the voices of the enlisted. They have asked us to make this reform and to put all serious crimes in the hands of highly trained, impartial, professional military prosecutors.

That is what the Military Justice Improvement and Increasing Prevention Act would do. Every day it is delayed is another day our servicemembers' voices are silenced. It is time to listen to them and bring this legislation to the floor for a vote.

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, my colleague has made some serious misstatements and allegations in his remarks.

I never said White commanders are racist, nor would I ever. In fact, all I have done is cite 3 years of evidence published by the Department of Defense about disparities in sentencing and punishment, with the Marines, for example, having 2.61 times more likely to be punished for Black servicemembers versus White servicemembers. It is DOD data. It is DOD information.

As the Senator knows, this bill was written 8 years ago, and the reason it was written with a bright line was for three reasons.

The first is that our allies already have done this. They created a bright line of felonies for both plaintiffs' and defendants' rights-- the UK, Israel, Canada, Germany, Netherlands, and Australia. They did this because they believed servicemembers deserve basic civil liberties. The commander is not a trained lawyer. They thought a trained military prosecutor should make those decisions for serious crimes.

We were told by every military justice expert available that to do anything less than a bright line would be a terrible disservice to the UCMJ, that bright lines work, that bright lines are necessary, and that having the bright line be a punishment of more than a year would serve the servicemembers better.

Second, we heard from servicemembers, particularly female servicemembers. And I know there is a lot of mansplaining in this body, but Joni Ernst is the only female combat commander Republican in this body. Tammy Duckworth is the only female combat veteran Democrat in this body. They helped to write this legislation, and when they wrote it, they said this: They said women in the military are often marginalized, and the perception, dear colleague, is that although men are sexually assaulted, more often than not, it is the women who come forward. More often than not, they will associate a sexual assault procedure and process that is unique to be specialized treatment.

Joni Ernst is not only a combat veteran, she is also a sexual assault survivor. So I don't think you can put yourself in her shoes, nor should you try to. This is legislation that she worked hard over the last 6 years with me on to tailor it, to narrow it.

Bar fights are excluded specifically because Joni Ernst knows as a commander that bar fights are prevalent, and we don't want to have to deal with bar fights when we are talking about serious felonies. They are carved out. They are carved out as to all military crimes.

The reason why this bright line of felonies protects servicemembers is because--you know this, dear colleague. You know that in domestic violence cases, often other serious crimes are at play. We have a case where a boyfriend and girlfriend--the girlfriend breaks up with the boyfriend, and he shoots her dead. Her case would not be taken to a special commander--excuse me--a special prosecutor because she was murdered.

Vanessa Guillen. Her case would not have the benefit of a special prosecutor because she was murdered.

We have another case just published last week, a domestic violence case where a servicemember is beating his wife. A neighbor hears the screams and intervenes to try to protect her. The servicemember shoots the neighbor, who is killed. The commander decides that that is a stand-your-ground case, and he decides not to prosecute, and all that happens is that servicemember is moved. He is moved. So the next time he is beating his wife and she finally reports, that evidence of the murder isn't even in his case file. It is nowhere to be found. So they don't protect her. She doesn't get special review.

You need other serious crimes to be part of this; otherwise, they won't necessarily get the proper review. I know that you don't want to include serious crimes like check fraud or stealing or arson because you are like, what does this have to do with sexual assault? The truth is, in many cases of domestic violence, arson is used to cover up the crime. In many cases, when you have a domestic violence victim, 99 percent of them, their spouse or their partner used money as a way to isolate them. They use it to create dominance. They will steal her money. They will steal her credit card. If you don't have a specialized prosecutor look at the case, the commander might say: You took her checkbook; stop doing that. That is ridiculous. He won't even know this is something that happens in domestic violence cases all the time.

There are a lot of reasons. We wrote it this way because the military experts told us.

The issue of race has come up recently because the DOD started taking data. But the Air Force, you must know, started taking data about 20 years ago. In 1972, the Nixon administration had a task force specifically about this issue and found disparities. All we have done is cited the disparities as confirmation that if you fix the whole system, maybe you can fix other problems too.

But make no mistake, it was written this way initially specifically to end sexual violence. This Commission that President Biden asked for and Secretary Austin supports, every crime they looked at, every single one, they took and said it had to be taken out of the chain of command, not just sexual assault but sexual harassment, domestic violence, child abuse, trafficking of children, all of these related things. They looked at these and said these kinds of cases all need to be taken out. They didn't look at murder. They didn't look at the other serious crimes because it wasn't their mission.

I stand ready to work with you, Senator Sullivan, on a bipartisan, commonsense solution, but to say that just because you have the chairman and the ranking member, that somehow you have the moral authority here--I disagree. I disagree because we have 66 Members on this bill and another 5 or 6 who would vote for this. So that is about 70 Members who have stated they want to do this bright line.

I have been very forthright with every Senator whom I have spoken to about why this bill is written the way it is. We don't want to marginalize women. We don't want them to be perceived as getting special treatment. We just want to professionalize the whole system.

I can tell you, when we talk to commanders who are fighting wars in Iraq and Afghanistan and they have to do the analysis of a highly complex crime, it distracts them from the work of training troops and winning wars. So why not give these hard issues, just the felonies, to the smartest military prosecutor we can find?

Why not fix the system for all plaintiffs and all defendants? Why just draw out just one set of plaintiffs and one set of defendants?

I know this will not undermine good order and discipline because Secretary Austin said, taking out sexual assault-related crimes does not undermine good order and discipline; it does not undermine command and control. When asking the Chairwoman of this Commission whether taking out serious crimes would undermine command and control, she said absolutely not. So I believe this is the right answer. I have believed it was the right answer for 8 years.

Every year, I have asked my colleagues to look at the bill, study the bill, give me questions on the bill. When colleagues have wanted to shave off crimes because they thought they didn't rise to the level of a serious crime, like a bar fight, we have taken it out. We took out all military crimes because the commander has a unique understanding of those crimes. We have worked so hard for 8 years to do this one solution, and to imply that it is all new or it is only about this one set of data is so inappropriate and wrong.

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Mrs. GILLIBRAND. Madam President, I just want to thank the Senator and my colleague for his tireless work on this issue, and I do stand ready to work with him because I know how much he cares about the issue. He has led great reforms in his State of Alaska, and I believe, if his voice were lent to this issue, it would be unanimous.

So I thank the Presiding Officer, and I thank my colleague from Alaska.

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