Hearing of the Senate Armed Services Committee - Markup of the National Defense Authorization Act for Fiscal Year 2014

Hearing

Senator GILLIBRAND. Thank you, Mr. Chairman.

I want to start with my thoughts on your amendment because I think so many of the provisions in it, in fact, are very strong and are going a long way to providing transparency and accountability where none existed.

I particularly like the fact that retaliation is now going to be a crime. I think that is an extraordinarily good measure that I fully support, and I think it is an excellent step in the right direction.

I also support all of the levels of transparency for appeals. Taking it up to the secretary of the services I think is very, very wise.

I also appreciate the sense of Congress, although I wish we could have made it stronger. Right now, the sense of Congress says that commanding officers are responsible for establishing a command climate free of retaliation, free of fear of retaliation. Failure of the commanding officers to maintain such command climate is an appropriate basis for relief from that command position. Senior officers should evaluate subordinate commanding officers on how well they establish a command climate free of fear of retaliation. Those are excellent.

I wish those were actually required. And I hope we as a committee can move forward to make that actually a requirement, that command climate is part of the evaluation process of commanders as to whether or not they are doing a good job. And I also hope we can actually make that a requirement because, as Senator McCain said, we need to hold commanders accountable. They have to be part of this process. I think he was exactly right when he said that. And we need a measurable by which commanders can actually be held accountable if they are not showing a climate of command
that is productive and actually values all of the men and women who are serving in our military. So I would like to, hopefully, change that ultimately to not just be a sense of Congress but actually make it a measurable within the review process. I hope we can
work as a committee to do that.

Now, I want to address why I think this is insufficient.

There seems to be a misunderstanding that the commanders are not taking the judgments of their JAG. They are. In fact, they only disagree with their JAG 1 percent of the time, less than 1 percent. It is very rare when commanders are disagreeing with their JAG. That is not our problem. So all this transparency and review is excellent, but it is not solving the given problem. That is not a problem we have today.

The problem is very clear because the victims have told us what it is, and I am just distressed that the victims' voices are not being heard in this debate not nearly enough. The victims say it is the climate that they fear retaliation. Their commanders are not creating a climate where they feel they can report without being blamed, being retaliated against, being marginalized, having their careers be over. That is the commanders' responsibility. If they are creating a climate of fear and there is retaliation within their ranks, they are not maintaining good order and discipline. The victims tell us they do not report because of chain of command.

So I disagree with the statements today and previously that the chain of command at the disposition phase is the problem. It is not that their decision is wrong. It is that they are the decider, and thevictims have said, I am not reporting because it is within the chain of command. And for the JAG lawyers that are making these recommendations, those JAG lawyers are in the chain of command. It would be like my general counsel making a recommendation to me. It is entirely within the chain of command.

The reason why our bill is different is it is asking a set of JAG lawyers who do not report to the chain of command to make these decisions independently, so that the victims can perceive that it is not within the chain that the decision is made, because if you look at the victims' descriptions of what happens to them, their assailant is usually someone senior to them, someone up the chain, someone senior, more decorated, Purple Heart recipient, someone who has done great acts of bravery. And they see that the chain of command will not be objective. There is no objectivity in the decision that is being made about whether or not to prosecute.

It is not that the commander is disagreeing with his lawyer. It is that the victim fears retaliation. The statistics in the last report that we know, we just know, they said 50 percent said they do not think anything will be done with their case. That is why they did not report. Forty-seven percent said they feared some form of retaliation or it would not go well. Forty-three percent said I have actually witnessed someone who did report be retaliated against.

So that is their fear. It is the chain of command as the decision maker. And so that is why we believe that if you took it out of the chain of command, you would have the hope that you would increase reporting.

Now, I agree, commanders have done the extra job of moving more cases to trial, but it is not a meaningful number. If there are 26,000 unwanted sexual contacts, assaults, and rapes, and we do not know how many of those are assaults and rapes. What we do know is 3,300 were reported, huge falloff between incident number and reported, whatever the incident number of rape and sexual assault is. Thirty-three hundred are reported. Of the 3,300 that are reported, 70 percent are sexual assault and rape. So we know there are thousands of sexual assaults and rapes every single year reported. What we also know is only one in 10 go to trial.

So of the ones that go to trial, there are 302. So let us just say the commander said, I really want to go to trial more often than my lawyers tell me. Let us say he increased it by 25. Twenty-five more cases went to trial. That is a good thing. That is a really good thing. And I appreciate that the commanders actually make and take that step.

So we have 302 cases that go to trial. Pretty good conviction rate: 238 convicted. Pretty good. The problem is if you only 302 cases going to trial, but there is some number above 3,300 of cases actually taking place, it is their reporting that we need to change.

So we look at our allies, the allies we fight with every time we need an ally in war. Look at Israel. Look at the UK. Look at Canada. Look at Germany. Look at Australia. They have made this decision already because of the objectivity problem and because of reporting issues. In fact, in Israel, because they have done some high level prosecutions in the last 5 years, their reporting has increased by 80 percent. What would that mean if our reporting increased by 80 percent? It would mean we would not have 3,300 reported cases. We would have tens of thousands of reported cases.

And if that many reported, how many are going to go to trial? A lot more than 300. Even with an aggressive commander, you might get more. But a lot more are going to trial if you increase reporting. So to increase reporting, let us just listen to the victims.
They say it is in the chain of command. That is why they are not reporting. So we can believe them or we can not believe them. Many here do not believe the victims. They do not believe the victims. They do not believe chain of command is the problem.

I urge people to support our original version of the personnel markup.

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