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Military Justice Improvement Act

Floor Speech

Location: Washington, DC


That is a very good question. The commander in the military is just not somebody. The man or woman in charge of that unit is the person to whom we give the ultimate authority to decide life-and-death decisions for that unit. So if we deal the commander out, we have a rape in the barracks. The worst thing that could happen in a unit is for the commander to say, This is no longer my problem. It is the commander's problem. Every commander I have met wants it to continue to be their problem, because when we have one member of a unit assaulting the other, it affects everybody in that unit. And the person we as a nation choose to run the finest military in the world--the commander--has the absolute authority to maintain that unit for readiness. If we don't give that commander the tools and hold them accountable, that unit will fall apart right in front of our eyes, because some lawyer somewhere is no substitute for the commander who is there every day.


Madam President, if we wanted to find the definition of leadership in 2014: MCCASKILL, AYOTTE, and the great Senator from Nebraska, three women taking on an issue head on. To those of my Democratic colleagues who are going to stick with making reforms without destroying a commander's role in the military: You deserve a lot of credit because people have been on your butt in the donor community to vote the other way.

To these ladies--and there have been plenty of people helping--they don't know how much it will be appreciated in the military. This is not a legal debate here. How many of my colleagues have done courts-martial? How many of my colleagues have court-martialed anybody in the military? I have done hundreds, as a prosecutor and as a defense attorney. This is not some casual event to me.

What Senator Gillibrand is doing is way off base. It will not get us to the promised land of having a more victim-friendly system to report sexual assaults. That is being accomplished because of the people I have just named: Senators FISCHER, AYOTTE, MCCASKILL, and Senator Levin. They have brought about reforms in terms of how a case is reported in the military, allowing a lawyer to be assigned to every victim. I cannot tell my colleagues how proud I am of what they have been able to accomplish. The U.S. military is going to have the most victim-friendly system of every jurisdiction in the land, including New York and South Carolina.

But this is about the commander. How many of my colleagues believe we have the finest military in the entire world? Every Member of this body would raise their hand. The question is why. Because we have the best lawyers in the world? No. Because we have the best commanders--men and women who are given the responsibility to defend this Nation and have power and responsibility that most of my colleagues could never envision. And if this is about sexual assault, why the hell are we taking barracks theft out of the commander's purview?

This is about liberal people wanting to gut the military justice system--social engineering run amok. I want to help victims, but I also want a fair trial. But the one thing I will not say to our commanders who exist in 2014: You are fired, because you are morally bankrupt. You don't have the ability to render justice in your unit because there is something wrong with you; your sense of justice is askew, so we are going to fire you and take away an authority you have had traditionally to make sure that your unit is ready to go to war, because we feel as though you are morally bankrupt. What other conclusion can we come to?

The next time we see somebody in the military who is a senior member of the 3 percent that Senator Gillibrand speaks about--it is only 3 percent who make these decisions. Who are these 3 percent? They are our wing commanders, our squadron commanders, our fleet commanders, our brigade commanders--the people we entrust and hold accountable for fighting and winning the war.

I say to my colleagues, if we care about what military lawyers think, every judge advocate general is begging us not to do this. The people we are going to give the power to don't want it because they understand that the commander is different than the lawyer. The first female judge advocate general of the Army has made an impassioned plea: Do not do this.

This is not a legal issue alone; this is about how to maintain the best military in the world.

I would conclude that if we want to create confusion in the ranks and if we want to tell every enlisted person who has to--should be--looking up to the commander, the Senate just fired your boss when it comes to these kinds of matters, but you should still respect him, that is a very confusing message.

I wish to end my speech with this: We have had some bad commanders. However, to those who command the military, I have confidence in you. You will take this system to a new level. You have to up your game, but I am not going to fire you. Thank you for commanding the finest military in the world. I will do nothing to say you are morally bankrupt, because I don't believe that.


Why is it nobody seems to think taking the commander out of the loop is going to help the problem? Because you cannot solve the problem in the military unless the commander buys in. I cannot think of any change in the military that is major and substantial that can happen without the chain of command being held accountable and buying in.

I would like to say this. To those who believe our military is set up where a victim's case is never heard because you have some distant figure called the commander and they just put this stuff under the rug, O-6 commanders--the O-6 level are special court-martial convening authorities. General court-martial convening authorities are flag officers.

It is not rampant in the military, folks, where a JAG will go in to the commander and say: This is a case that needs to be prosecuted, sir, madam; and the commander says: I don't want to fool with this.

The opposite is true, where the JAG will say: Tough; and the commander says: Move forward.

Well, what have we done here. We have said to the command that if your judge advocate recommends prosecution in the four areas in question--sexual assault--and the commander refuses to prosecute, that decision is appealed to the Secretary of the service.

So if you are wondering about rogue commanders--and there are bad commanders--you are indicting the whole chain of command here, folks. That is why I am so emotional about this. You are indicting a class of Americans who deserve praise and a chance to get their act together where they failed.

But the bottom line is, if a commander refuses to--I ask unanimous consent for 1 minute--2 minutes.


If the commander refuses the JAG's recommendation, it goes to the Secretary of the service. If the JAG and the commander both say this is not a case we want to prosecute, when it is in the area of sexual assault, it goes to the commander's commander. So there are built-in checks and balances.

The key to fixing this problem is the commander. The key to maintaining a well-run military is the commander. The key to fighting and winning wars is the commander. The key to bringing justice to victims is the court-martial panel, the lawyers, the judge and the juries, and the commander. But the key to American military success over time has been the commander.

Madam President, 800 trials in Iraq and Afghanistan since 9/11. This is a nondeployable military justice system that Senator Gillibrand is trying to create. Please do not change the structure of the military because of this issue. Fix this issue. Preserve the structure of the military that has served us so well, and keep reforming.

To the Senators I have named, you have done those in the military--victims--a great service. For God's sake, Members of the Senate, do not change the structure of the military at a time we need it the most. Hold it more accountable, not less.


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