National Defense Authorization Act for Fiscal Year 2014

Floor Speech

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Mr. GRAHAM. I wish to speak in support of the McCaskill, Ayotte, Fischer, and Levin amendment.

Before we begin, I wish to thank Senators Levin, Reed, McCaskill, Ayotte, Fischer, and others who have been trying to carry the burden here to make sure that we reform the military justice system and the way the military operates vis-a-vis sexual assault and misconduct but at the same time make sure we still have a military that can continue to be the most effective fighting force on the planet at a time when we absolutely need it.

If one believes, as I do, that our military is the best in the world, we have to ask ourselves why. Is it because of the equipment? We have great equipment. I would argue that the reason our military has become the most effective fighting force in the world is the way we are structured.

If one is looking for a democracy, don't look to the military. The military is a hierarchical and paternalistic organization that is focused on meeting the challenges of the Nation, being able to project force at a moment's notice to deter war and, if war ever comes, to decisively end it on our terms.

I have been a military lawyer for over 30 years. I have been assigned as a military defense counsel for 2 1/2 years and a senior military prosecutor in the Air Force for 4 1/2 years. I have been a military judge, and I have served in the Guard and Reserve, and on Active Duty for 6 1/2 years. I have learned a lot, as a military lawyer, about the military.

To my colleagues who are trying to decide what to do and what is appropriate, the goal should be to make sure that America remains the most effective fighting force on the planet. This is the proposition: They can't be an effective fighting force if they have rampant sexual assault or misconduct within the ranks. This idea that sexual assaults in the military are unacceptable, too large in number and scope--sign me up for that proposition. However, the problems of society don't stop at the gate; they continue inside the fence. I would daresay that if we did surveys in South Carolina, Missouri, New Hampshire, and New York about sexual assault and their frequency, we would all be disturbed.

The goal of our time in the Senate is to make sure that when it comes to our military, we turn a corner and create a legal system where people feel that if they file a complaint, they are going to be fairly treated and also a legal system where if one is accused of something, they will be fairly treated.

I say to my colleagues, there is a reason that every judge advocate general of all the services has urged us not to adopt Senator Gillibrand's solution to this problem.

In the military, it is possible, in my view, to correct a problem without commander buy-in and holding commanders responsible. Military commanders have awesome responsibility and almost absolute liability for the job we give them. It is their job to make sure that all under their command are ready to go into combat, perform their assignment in the most difficult task, make sure that medical records are up to date, and to make sure they are squared away when our Nation needs them.

This concept of the authority of the commander goes back to the very beginning of this Nation. Military justice is an essential part of good order and discipline.

After 30 years of experience in this area, the number of cases where a judge advocate recommends to a commander to proceed to trial in a sexual assault or, for that matter, almost any other alleged crime is a rounding error. Please don't suggest that under our current system someone can't get a case to trial because our commanders routinely blow off legal advice. That is not the case. Commanders decide as to whether to proceed to a court-martial, and what level of court-martial, based upon advice of the judge advocate community, whose job it is to provide professional advice. The commander's job is to make sure that unit is ready to go to war. The lawyer's job is not to pick and choose who goes into the battle. The lawyer's job is to give that commander the best legal advice possible, including who to court-martial and who not.

One thing I hope people understand in this debate is that no lawyer, no judge advocate, is ever going to have to deal with the situation of picking and choosing in that unit who takes the most risk. We have for 200 years allowed commanders the authority, under the Uniform Code of Military Justice since 1952 and before, and the ability to maintain good order and discipline, the absolute responsibility to make sure force is effective when it comes to the fight, and giving them the tools to make sure that happens.

What would bother me greatly is if this conversation occurred: Sir or ma'am--depending on who the commander is, as there are more and more female commanders in the military--there was an alleged rape last night, a sexual assault in the barracks last night, and the commander would say: That is no longer my problem. Send that to Washington.

Ladies and gentlemen of the Senate, that is the commander's problem.

To those commanders who have failed to make sure we have the right climate in the military when it comes to sexual assault, your job is at stake.

The military justice system, when it comes to rendering justice, I will put up against any system in your State. The reforms in this bill are going to become the gold standard, I hope, over time, and very few jurisdictions will be able to do what we have been able to do. With thanks to Senators McCaskill, Ayotte, Levin, and others, we have taken a problem in the military and brought a good solution. Every victim will now be assigned a judge advocate to help them through the legal process. I wish that were true in South Carolina, but it is not. Every commander who is advised to go to trial in a sexual assault case and who declines to accept the JAG's, the judge advocate, recommendation, that case is automatically sent up to the Secretary of the service in question.

In the future, as commanders have to decide how to deal with sexual assault allegations, when the lawyer tells them: Sir, ma'am, this is a good case, and if for some reason the commander decided: I disagree, that case goes up to the highest member of that civilian service, the Secretary of the Air Force, in the case of my service. This, to me, is a reform that will emphasize from the chain of command how important it is that we take these cases seriously.

If we take the chain of command out, this is what we are saying to every commander in the military: You are fired. We, the Senate, have come to conclude that you, the commander--all commanders of the group--are either intellectually insufficient to do this job or you don't have the temperament or are morally bankrupt.

We are going to take away from you this part of being a commander. You are fired.

I will never, ever say that unless and until I am convinced that there is no hope for our commanders, that our commanders are hopelessly lost when it comes to these types of issues. I don't believe we are remotely there.

In the 1970s we had upheaval throughout the country, particularly in the military. We had race riots on aircraft carriers and tension ran high. How did we fix it? We made sure every commander was held responsible for the atmosphere in their unit when it came to race relations. And now I would daresay the most equal opportunity employer in the whole country is the U.S. military because commanders changed the climate.

Under the approach of Senator Gillibrand, we take out a group of military offenses. To the commander: You are fired; you can't do this anymore. And we send these decisions to an 06 judge advocate--which I happen to be one of, by the way--in Washington. I cannot stress to my colleagues enough how ill-conceived that system would be from a military justice point of view and the damage that will be done to the command and to the fighting force if we go down this road. Let me tell you why.

A troop is in Afghanistan. There is a larceny. Senator Coons mentioned the workplace. A barracks thief is one of the worst things you can be in the military. A soldier doesn't pick and choose whom they room with; we pick whom they room with. No one gets to decide where they are going to stay; we pick for them. We throw them into the most incredible of conditions, we don't give them the comforts of home, and they have to trust their fellow soldiers in the barracks and in deployment. Soldiers, like everybody else, most are great, some are bad. In the military the bad apples, thank God, are few.

Under this construct we are coming up with, if there was a barracks theft case--a tent theft case--in a deployed environment, that really does hurt morale because if you have to worry about somebody stealing your stuff, that is really tough given the conditions under which you are living. So if the commander could not deal with this, it would go all the way to Washington, DC, to be disposed of rather than being disposed of onsite. And why does it need to be disposed of onsite? You need to render justice quickly and effectively so the troops can see what you are doing. If you are the commander, they have to respect you and they have to understand your role.

So I cannot understand why the Senate, when we have been at war for 11 or 12 years, would come up with a solution to a problem that is real that does harm to the very concept of what makes our military special--the ability to go to war, the ability to be effective and to have the commander make decisions that only a commander should be making.

I am a military lawyer. I am telling you right now, don't give me this decision, because I am not required to decide who goes to battle. Don't take away from our commanders in a theater of operation the ability to render justice in a way the troops can see.

Mrs. McCASKILL. Would the Senator yield for a question?

Mr. GRAHAM. Yes.

Mrs. McCASKILL. I want to make sure I understand something about nontraditional punishment. Since the Senator is discussing the barracks thief in Afghanistan and the notion that everything is going to stop and this case is going to be sent off to a lawyer half a continent away to make a decision, let's assume the lawyer--the colonel in Washington--decides there is insufficient evidence for that barracks thief. That might be 4 months later. Meanwhile, the barracks thief is still there. And let's assume it then comes back. It is my understanding--and I think there is some confusion about this by the people who are advocating this amendment--that you cannot exercise nonjudicial punishment on a soldier if he chooses a court-martial proceeding. Is that correct?

Mr. GRAHAM. That is exactly right. A nonjudicial punishment is an authority the commander has to put people in confinement for up to 30 days, reduce in rank one or two levels, depending on the rank of the commander, and to withhold pay. It is nonjudicial punishment. You don't have a trial. The person is represented by a lawyer, but there is no jury. The commander is the jury.

The Presiding Officer. The Senator has spoken for 15 minutes.

Mr. GRAHAM. I thank the Chair.

Mrs. McCASKILL. So that commander who has to now send----

Mr. GRAHAM. He loses that authority.

Mrs. McCASKILL. That case to Washington--that soldier is not going to agree to nonjudicial punishment. He is going to say: I will take my chances with the lawyers in Washington. And if the lawyers in Washington say no, then that commander's hands are completely tied to even putting him in the brig for 30 days.

Mr. GRAHAM. Exactly right.

Every military lawyer who has looked at this is very worried about what we are about to do in terms of practical military justice.

Imagine being 18 years of age. You have too much to drink and you write a bad check. Part of being a commander and a first sergeant is the paternalistic aspect of the job. How many of us have made mistakes at 18? Instead of going to college, you are going into a military unit. You bounce four or five checks. Has that ever happened? Under this proposed system, the military commander no longer has the ability to deal with it in the unit. He sends that case off to Washington. The ability to give an article 15--a lesser punishment--is taken off the table. So we are taking an 18-year-old's mistake and potentially turning it into a felony. Does that help sexual assaults?

Our commanders can send you to your death, but we don't trust them to deal with manslaughter cases? All I can tell you is that for 30 years I have been a practicing military lawyer. From my point of view, our commanders take the responsibility to impose discipline incredibly seriously. They are skilled men and women.

We have let the soldiers, sailors, airmen, and marines down when it comes to sexual assault. All of us are to blame in the military. We are going to fix that. But the problem, my colleagues, is not the military justice system. We don't have a military justice system where commanders say to the lawyers: Go to hell; we are not going to deal with that. That is not the way it works.

This new proposed system takes a portion of offenses out of the purview of the commander and sends them to somebody in Washington whom nobody in that unit will ever get to see. That will delay justice, and it will take tools off the table to make sure that is an effective fighting force in terms of dealing with the barracks thief, in terms of dealing with the bounced check, but it will also take young people who make mistakes and put them in an arena where the only avenue is to potentially charge them with a felony.

Ms. AYOTTE. Would the Senator from South Carolina yield for another question?

Mr. GRAHAM. Yes.

Ms. AYOTTE. So under the situation where the Senator says we have commanders who aren't going to ignore what is brought before them in an investigation from their JAG lawyers, particularly on a sexual assault, let's assume they did do that. Even though the evidence isn't there, they do it. Under our proposal--the proposal of myself and Senators MCCASKILL and FISCHER--if the commander makes the decision not to bring the sexual assault case and it then goes up for review before the civilian secretary of whatever force is at issue--the Army, the Air Force, the Navy--what does the Senator think that will do in terms of accountability?

Mr. GRAHAM. If you want to improve the system, and we all do--I am not questioning anybody's motives--if a commander knows that when they turn down the JAGS's advice in one of the four situations we have identified--sexual assault, the nature of the discussion here--that decision will be reviewed by the Secretary of the service, I can assure you that will do more good to make sure commanders understand how important this situation is to the country than taking their authority away.

We will be doing absolutely the worst possible thing to solve the problem with the approach of Senator Gillibrand, in my view, although every judge advocate agrees with what I am saying. You will throw the military justice system in chaos and basically take the commander's authority away in an irrational way.

What we should do is hold the commander more accountable by having what is the commander's worst nightmare--I guess anybody in the military--and that is having the boss look at your homework. How do you get promoted in the military? People over you judge your work product.

Let me just say this. It is not a military justice problem here. The reforms we are going to engage in are historic, and they will be the model for systems in the future. Very few people can afford what we are about to impose upon the military because we are going to make this a priority and we are going to assign judge advocates to victims. There is no other State in the Nation that will be able to do that. We will have something of which we can all be proud. We are going to hold commanders more accountable.

Here is the essence of the argument: We have to take this out of the chain of command because there is something defective about the commander; because the commander doesn't have the ability or they have a bias against victims, we no longer can trust them to do the right thing.

That, to me, is an indictment of every commander in the military. That, quite frankly, is not what we should be doing or saying given the track record of how our military has performed.

In the area of sexual assault, the problems we see in the military are all over the country; they are just talked about more in the military. The people in the military should be held to the highest standard, but we will fix no problem in the U.S. military if we deal that commander out.

Ms. AYOTTE. Would the Senator yield for a comment? Looking at the facts, the evidence we have reflects that commanders are bringing more cases, are pursuing more cases than those recommended by their JAGs in sexual assault cases.

We received a letter from ADM Winnefeld, Deputy Chairman of the Joint Chiefs of Staff, basically pointing out that there were over 90 cases where commanders had a different view than their JAGs that a case should go forward. Guess what. Convictions were had and people were held accountable.

Mr. GRAHAM. There are situations where joint jurisdiction lies--the military has jurisdiction, the civilian community has jurisdiction. There have been cases where the civilian community went first. There were 49 cases in the Army where the civilian community decided not to prosecute on a sexual assault and the Army took it up and they got an 81-percent conviction rate. In the Marine Corps, 28 cases were turned down by the civilian community where the Marine base was and they went to court with a 57-percent conviction rate. In the Navy and in the Air Force, it is the same. We see a civilian jurisdiction saying no to the case and the military saying yes, we are going to go to court. And that is because there is a difference between what the civilian community is trying to accomplish and what the military community must be trying to accomplish; that is, to let the troops know there is certain conduct that is out of bounds, and if it is even close, you are going to pay a potential price.

Having said that, please do not blame sexual assault problems in the military on a broken military justice system because it is not broken. The commanders are not telling the lawyers to take a hike. The cases the lawyers recommend to go to trial actually do go to trial.

Juries in the military are not juries of one's peers. This is not a civilian system. Everybody who goes to trial as an enlisted man is judged by officers. You can request one-third of the military jury to be enlisted members, but they will be the most senior people on the base.

Please understand that military juries are not constructed the way civilian juries are. They are told to be fair, and they do their best to be fair. But it goes into the concept of how the military works. The only person in the military entitled to a trial of the equivalent rank is an officer. An officer cannot be tried by people of lesser rank. That may sound unfair, but in the military it makes perfect sense, doesn't it? Officers eat in one corner of the base and enlisted people eat in the other corner of the base not because they hate each other. They admire and respect each other. This chain of command, these lines of authority make us--Mr. President, I ask unanimous consent for 1 additional minute.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. GRAHAM. This unusual situation for most Americans works in the military. It may not sound right to most, but it works because the military is about when you are ordered to do something, you answer the order; you don't debate.

So if we don't elevate the commander to have the tools available to make the right decisions, and if we don't instill those below the commander to follow, it all breaks down. When a commander lets the troops down--and they do sometimes--fire the commander. Don't take away the authority of the commander to win wars that we will inevitably fight. This is not a civic organization. This is not a democracy. This is a situation where one person can choose to send another person to their death. That person is the commander, and there are plenty of checks and balances.

Ladies and gentlemen, sexual assault is a problem. But for God's sake, let's not tell every commander in the military: You are fired. You are morally bankrupt. You are incapable of carrying out the duties of making sure that justice is done in these cases.

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