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Floor Speech

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Mrs. GILLIBRAND. Madam President, I rise today to once again call for every Senator to have the opportunity to cast their vote on the Military Justice Improvement and Increasing Prevention Act, which was unceremoniously and undemocratically removed from the NDAA behind closed doors.

I started calling for an up-or-down vote on this bill on May 24 because I feared that this would happen and that the NDAA would not do enough to address the epidemic of sexual violence and serious crimes in the U.S. military. Now that we have seen the text, it is clear that those fears were well-founded.

Committee leadership has overridden the will of a filibuster-proof majority in the Senate and a majority of the House, who called for real reform that would have moved serious crimes to independent military prosecutors. Instead, committee leadership has codified the status quo, leaving commanders as the convening authority-- even in sex crimes cases. That is the same system that everyone supposedly agreed is failing our servicemembers. Unfortunately, this does not fix the issue of convening authority, which was the singular ask from the survivor community.

The NDAA does not make the necessary changes to the military justice system. The change we must make--the change that survivors and veterans have asked for--is to remove all serious nonmilitary crimes from the chain of command. Commanders are not lawyers or judges, and they don't have training or expertise necessary to make those complex legal decisions.

Our servicemembers have told us that they do not trust commanders to be unbiased or to deliver real justice in cases where they know the survivor or the accused.

Although I have heard from my colleagues saying otherwise, the NDAA does not remove sex crimes or any other serious crimes from the chain of command. And I want to be clear about this because the American people and our servicemembers deserve to know the truth. The NDAA keeps the commander as the convening authority. Every single court-martial will still begin with the words: ``This court-martial was convened by order of the commander.''

It tells you everything you need to know.

The NDAA also continues to offer commanders the ability to choose the members of the jury panel. I want to address this point specifically because I have heard a few misleading statements about jury selection.

The NDAA allows a commander who is creating the court-martial to handpick other members of his command to be the jury pool from which the jury will be formed. Our bill, on the other hand, would put this responsibility in the hands of an independent attorney without a stake in the outcome.

Unlike what some who lack an understanding of the UCMJ have said, under our bill, the independent prosecutor is not the same person as the independent convening authority. Those are two separate military attorneys.

Don Christensen, president of Protect Our Defenders, said about the NDAA that ``because commanders retain convening authority and associated powers such as selecting jury court members, commanders will still wield significant influence over the court-martial proceeding. Such influence erodes the independence of the special victims' prosecutor and fails to address the concerns of the survivor community that conflicted commanders still have too much influence over the military justice process.''

The command influence does not stop with jury selection. The NDAA also allows commanders to oversee the preliminary inquiry. It retains commanders' ability to order depositions and to order warrants of attachment. It continues to allow commanders to grant immunity and to approve delays. It retains commanders' power to determine the incapacity of the accused and to select witnesses. It allows commanders to approve of findings and sentences and to order the reconsideration of ambiguous sentences. It also allows the commanders to grant clemency and to allow the accused to separate from the service instead of facing a court-martial--fully eluding the justice system.

Anyone who looks at the system sees a system where the commander is still in charge, where their influence cannot be overlooked. There is no way for the prosecutors to be or to be seen to be independent under that system. There will be no improvement in trust or, necessarily, in the results.

Today, just one-third of survivors of sexual assault in the military are willing to come out of the shadows to report their crime, showing a clear lack of trust in the current system, but 44 percent of survivors indicate that they would have been more likely to come forward if the prosecutor were in charge of the decision over whether to move forward with their case.

The Military Justice Improvement and Increasing Prevention Act is the only provision that would empower impartial, independent prosecutors to make the vital decisions necessary for a criminal justice system shielded from systemic command influence, while allowing commanders to focus on what they do best: warfighting, training troops.

I want to share the words of Retired Navy LT Paula Coughlin, a survivor who brought the Tailhook Symposium scandal to light 30 years ago. She said:

``The efforts to gut reform are unacceptable to the survivor community and must be rejected. If this effort succeeds, it will be a slap in the face to those who have put it all on the line this past decade.''

Those survivors and the majority of my colleagues here in the Senate who support real reform deserve to have their voices heard.

1520 and the Senate proceed to its consideration; that there be 2 hours of debate equally divided in the usual form; and that upon the use or yielding back of such time, the Senate vote on the bill with no intervening action or debate.

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Mrs. GILLIBRAND. I would like to thank the chairman for his steadfast work on trying to find common ground here, but I disagree that ``all meaningful prosecutorial'' actions have been taken away from the commander. These are the actions that still rest with the commander, and these are meaningful: granting clemency, highly meaningful; grant sentencing witnesses, highly meaningful; granting immunity, highly meaningful; ordering depositions, highly meaningful; preliminary inquiries, highly meaningful; separation authority, highly meaningful. These are things that are essential to the prosecution of any case, and so if the prosecutor doesn't have the right to do these things, it means the prosecutor has to go ask the commander: May I do these things? May I call this witness? May I have approval for a witness at sentencing? May I have approval for this preliminary inquiry?

That request alone sends the signal to survivors and to servicemembers that the chain of command is still in charge; that that independent prosecutor, while the language of the bill sounds really good--they are independent and their decision is binding, wonderful. The perception of servicemembers who understand the weight of convening authority, they know what the words ``convening authority'' mean; they know what the command ability and importance is.

They may not receive these changes and these reforms in the way the chairman believes them to be seen. They may not see them as the ``most transformative reforms'' that have ever happened because if they still perceive the chain of command in charge, it may not dent their willingness to report these crimes. They may not have now the ability to report and to have a belief that they can have faith in this system.

And so my question to the chairman is, Why didn't we take the extra step to do the one thing that we have been trying to do for 8 years, which was to make these prosecutors, these independent, specialized prosecutors--which is what we have been fighting for, for 8 years-- truly independent and give them all the authority the convening authority had?

The only change they would have had to make is the designation of ``convening authority'' would go from the commander to these new, independent, trained prosecutors. It is a simple change. It is a change we have begged for from the survivor community, from the veterans organizations, from Protect Our Defenders, the best and most effective vocal organization, per the chairman. We have asked for that one change--to be denied by this conference committee of four men in a closed room making the decision themselves.

And for the chairman to get up and say that having such an overwhelming vote by the House of Representatives just shows how right they are, well, then why does 220 cosponsors in the House mean nothing? Why does 66 sponsors in the Senate mean nothing? Why does the endorsement of every veterans group in America mean nothing? Why does the support of 29 attorneys general mean nothing? That is my question.

And it is such a small thing.

So, yes, having an independent, trained military prosecutor outside the chain of command whose decision is binding sounds amazing. That is what we have been fighting for. Why not make it really independent? Why not take the convening authority and give it to the independent, trained military prosecutor?

And, sadly, the answer is the DOD does not want to change the status quo. They don't want to make these changes, and so what they are willing to do is they are willing to put a great label on it. They are willing to pretend that they are doing the thing that we have asked them to do. They are willing to create the impression that they are doing the thing we asked them to do. But they know what ``convening authority'' means, and they retained it.

And when asked: Please, take the convening authority, give it to the trained military prosecutor; please make a truly independent system, like all these people are asking you to do, they said no. They said no over and over and over again.

And, unfortunately, our chairman did not want to disregard the views of the Department of Defense. And, unfortunately, that is my job, to oversee, to provide oversight and accountability over the Department of Defense, over the executive branch. That is what the Constitution requires this Chamber, this body, this Senate to do. We are not supposed to take our marching orders from the Department of Defense. We are not supposed to do what the generals ask us to do.

We are supposed to look hard and fast at a problem that has plagued our servicemembers who give their lives for this country. We are asked to solve the problem, and we have put forward legislation that has the blessing of 66 Senators and 220 House Members and every veterans organizations that we know of and every single of the 29 attorneys general who have written a letter. We have this breadth of support, but it doesn't matter because it is not what the DOD wants to do.

So, yes, having independent, trained military prosecutors who make decisions outside the chain of command that cannot be changed is definitely a step in the right direction, but it is not the independent review that we asked for because without convening authority, the perception of servicemembers, of survivors, of the men and women this justice system is designed to protect will be that all these rights and privileges sit with the commander and that these are rights and privileges that have value, that have ``meaningful prosecutorial value.''

They are not meaningless, and if they were so meaningless, then you would have given it to independent prosecutors.

That is why I will keep fighting on behalf of survivors. It is why we do not just say we are excited, and we go home. It is why we have not decided this is the moment to celebrate because, for us, it is not because I worry that that percentage of sexual assaults, rapes, and unwanted sexual contact--the 20,000 that are estimated every year--that the percentage of those that will be willing to come forward will not go up and the rate of cases will not go down and the rate of cases that end in conviction will not go up.

So that is my concern. It is why I stand here gravely concerned and very dismayed and very disappointed that we did not take this moment in time to do the right thing on behalf of our servicemembers to have a military justice system that is worthy of their sacrifice.

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