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Floor Speech
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Mrs. GILLIBRAND. Madam President, I rise today to call for every Senator to have the opportunity to cast their vote on the Military Justice Improvement and Increasing Prevention Act.
I started calling for this up-or-down vote since May 24, because I knew--sexual assault survivor advocates knew--that if the Armed Services Committee leadership had the chance, they would strip the provision out of the NDAA behind closed doors, despite the overwhelming support the bill has in both the Senate and House. That is exactly what has just happened.
Time and time again, I have asked on this floor for the same opportunity to have an up-or-down vote. Time and time again, I have heard the same false promise that we would proceed under regular order and that the will of the Members of this body would be respected.
I was told that ``the best way to move forward on this issue is to ensure that all 26 members of the Armed Services Committee have their voices heard and to consider this legislation in the course of the markup of the fiscal year 2022 Defense bill,'' and that it was ``the traditional means of making these decisions.''
I was assured that ``fulsome debate during committee markup of the annual defense bill . . . is the hallmark of our committee. It ensures that everyone's voice is heard.'' And here on this very floor, I heard that ``all amendments offered by Senators on the committee will be fully considered during the full committee markup'' and ``that is, in fact, the tradition of the committee. If a Member wants a vote on amendments, we will vote.''
So we took it to the committee, we had the fulsome debate, and we voted. The Military Justice Improvement and Increasing Prevention Act was included in the Senate Armed Services' NDAA bill and passed out of committee 23 to 3. That is a pretty decisive vote.
But despite all of the claims that we would follow regular procedure and that everyone's voices would be heard, when the doors closed for the conference, the story changed. Our votes were not respected. Our voices were silenced. Those promises were broken. The House and Senate Armed Services leadership gutted our bipartisan military justice reforms, stripped them from the NDAA, and did a disservice to our servicemembers and our democracy.
Committee leadership has ignored the will of a filibuster-proof majority in the Senate and a majority of the House in order to do the bidding of the Pentagon. This is an act of blatant disregard for the servicemembers, veterans, and survivors who have fought for an impartial and independent military justice system that is worthy of the sacrifice they make every day for our country.
Committee leadership has also ignored President Biden, our Commander in Chief's public support for moving felonies from the chain of command and fallen short of even the limited reforms that Secretary of Defense Austin called for that would have removed sex crimes from the chain of command. Despite claims otherwise, the NDAA does not remove sex crimes from the chain of command because the commander remains the convening authority, a central role to the military justice system. Every single court-martial will still begin with the words:
This court-martial was convened by order of the commander.
Commanders can still pick the jury, select the witnesses, and allow servicemembers accused of crimes the option of separation from service instead of facing a court-martial--a total denial of justice.
We know that removing convening authority from commanders is critical to providing a system that is fair and perceived to be fair by the servicemembers. To quote Secretary Austin's own panel:
The DoD's Office of the Special Victim Prosecutor structure must be, and must be seen as, independent of the chains of command of the victim and of the accused all the way through the Secretaries of the Military Departments. Anything less will likely be seen as compromising what is designed to be an independent part of the military justice process, thus significantly undermining this recommendation. . . . Finally, because of the breadth and depth of the lack of trust by junior enlisted Service members in commanders--
The IRC goes on-- it was determined that the status quo or any variation on the status quo that retained commanders as disposition authorities in sexual harassment, sexual assault, and related cases would fail to offer the change required to restore confidence in the system.
That was Secretary Austin's own panel.
The NDAA bill does not provide meaningful change to the status quo. Our bill would provide it by moving serious crimes like sexual assault out of the chain of command completely, putting them in the hands of the most capable people in the military--those independent, impartial, highly trained, uniformed prosecutors. That is a system our servicemembers can trust. I know that because that is the reform that survivors have asked for over and over and over again.
Since I started calling for this vote in May, we estimate that more than 11,000 servicemembers will have been raped or sexually assaulted and more will have been victims of other serious crimes. Two in three of those survivors will not even report those crimes because they know that under the current system, they are more likely to face retaliation than to receive justice. It is clear we cannot wait for committee leadership to recognize the importance of this reform.
Madam President, as if in legislative session, I ask unanimous consent that at a time to be determined by the majority leader in consultation with the Republican leader, the Senate Armed Services Committee be discharged from further consideration of S. 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 that time, the Senate vote on the bill with no intervening action or debate.
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Mrs. GILLIBRAND. I just want to thank the Senator from South Carolina for his work and support in this area. He has worked with me in trying to find common ground, and I appreciate that work very much. I just want to respond to a couple of his concerns.
One of the reasons why we wanted to have a bright line at felonies is because we didn't want to marginalize women in the armed services. If you only remove a small number of crimes--just the 11 that are in this bill--that disproportionately affects women servicemembers.
Oftentimes, there will be a belief that these changes are made to give special treatment just to women servicemembers. The reason why both Senator Joni Ernst and Senator Tammy Duckworth--two of the female armed service veterans in the U.S. Senate from both the Democratic and Republican Party--the reason they support this bill is because they believe that if you put the bright line at felonies and treat all servicemembers the same regardless of the crime, that you won't be further marginalizing women servicemembers. They won't be perceived as receiving special treatment. If they are being perceived as receiving special treatment, that is being perceived as a pink court, and we would like to avoid pink courts. We would like to avoid the perception of special treatment.
We believe that if you are reforming the military justice system, as Secretary Austin has said, that it needs to be unbiased, it needs to be professionalized, and it needs to be independent of the chain of command; that what is good for this set of crimes is good for all sets of crimes, just as the IRC has recommended.
Second, we know that this type of system actually strengthens commanders because it allows them to focus on winning wars and training troops. This bifurcated system under the NDAA is going to leave commanders without all authority to do what they would want to do and just some authority, so there will be a lot of bureaucracy that will take time and effort and may lead to undue command influence and unintended consequences.
So a system that gives all that decisionmaking directly to trained, independent military prosecutors is preferable and a commander-friendly system. In fact, our allies chose to do a bright line at serious crimes for this very reason. UK, Israel, Australia, Netherlands, Canada, Germany--they did it specifically for both plaintiffs' and defendants' rights, so they had an equal justice system for all parties, and they allowed commanders to focus on commanding and doing the job of winning wars and training troops.
fraud)), 122 (robbery), 124 (fraud against the U.S., BAH fraud, using false documents to claim benefit), 124a-b (bribery, graft), 125 (kidnapping), 126 (arson), 127 (extortion), 128 (assault), 128a (maiming), 128b (domestic violence), 130 (stalking), 131 (perjury), 131 a-g (obstruction of justice), 132 (retaliation), 134 (child pornography), 134 (negligent homicide), 134 (indecent conduct), 134 (indecent language to a child under the age of 16), 134 (pandering and prostitution) ------------------------------------------------------------------------ NDAA Final Text Does Not Meaningfully Reform Military Justice Commander retains convening authority under the NDAA, which means there is no true independence. Survivors' lack of trust in the system and the perception of bias will continue
Table A below. Under the NDAA, the commander remains the convening authority, a central role to the military justice system. This is usually the same commander in the chain of command of the accused and the survivor. Every single court- martial will still begin with the words, ``This court-martial was convened by order of the commander.'' Commanders will still pick the jury, select the witnesses, and allow service members accused of crimes the option of separation from service instead of facing a court-martial.
Removing convening authority from commanders is critical to providing a system that is fair and perceived to be fair by survivors and the accused. Only 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 system. 44% of survivors indicated they would have been more likely to come forward if a prosecutor were in charge of the decision over whether to move forward with their case. With commanders retaining convening authority under the NDAA text, the Special Trial Counsel (``STC'') will still be necessarily reliant on the commander for the prosecution of a case. The perception and reality of commanders influencing the outcome will be unavoidable.
MJIIPA 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 and other structural defects. It is the only system that uses the UCMJ as it is designed to implement military justice: empowering officers to execute convening authority. NDAA text is not commander friendly
Under the Special Trial Counsel program alone, there is a lack of accountability for the system. Commanders remain in charge as the convening authority, but their hands are tied from making key decisions such as the referral of charges. The STC has some of the decision-making authorities, such as referral and the ability to make plea deals, but the commander is ultimately responsible for creating the court- martial, approving witnesses, etc. Thus, there is not one figure who can be held accountable for the military justice process. Just as it would be unfair to send a commander into combat without all the tools at their disposal, it is unfair to commanders to keep them in charge of the court-martial but limit their decision-making in this way. Under MJIIPA, commanders are allowed to focus on warfighting, training, and taking care of service members while independent military lawyers take over the military justice system for serious, non-military crimes.
The STC program continues the risk of unlawful command influence. Every year, appellate courts throw out convictions for serious crimes because the commander oversteps their bounds. If commanders are still in charge under the STC program, but restricted in new ways, this will only increase this risk.
Under the STC program in the NDAA text, the commander will be unable to give non-judicial punishment (``NJP'') to the accused for lower-level conduct. If the STC decides not to prosecute, the commander will be unable to credibly impose NJP. For example, if the STC gets a stalking case and decides not to prosecute it, the commander may want to do non- judicial punishment, but if the accused refuses, the commander will be unable to send the case to court-martial. That takes the teeth out of the NJP. The accused walks away with no punishment. NDAA text creates an even bigger judicial bureaucracy that will slow down justice for survivors
See Table B below. Some crimes will be prosecuted by Special Trial Counsels while the majority of the crimes will remain within the chain of command. The bifurcated system will create complexity and unfairness due to different processes for different crimes.
Under the NDAA text, responsibilities will be divided between the commander, the Special Trial Counsel, the Service Secretaries and the TJAGs (the head Judge Advocate of every Service), which will add layers of bureaucracy, slowing the process down and making it take even longer for survivors to see justice. NDAA language does NOT include all serious non-military crimes (including sexual harassment and child endangerment), creating a bifurcated, unequal system for survivors and accused
See Table B. The NDAA also fails to draw a bright line at all serious, non-military crimes. That bright line is critical, because it avoids creating so-called ``pink courts'' focused solely on sex crimes, which only further stigmatizes survivors--something survivors have specifically asked us to avoid doing. Drawing that bright line also avoids creating an inherent inequality in the military justice system.
The crimes chosen for the STC program are seemingly random. Although sexual assault and kidnapping are included, sexual harassment (which was in both the House and Senate versions of the NDAA), child endangerment, murder of a pregnant women, and obscene mailing are not (to name a few). How does a commander have more expertise on the prosecution of child endangerment than an independent military prosecutor?
Every victim and every accused offender in these serious cases should be treated equally and have access to a system that is professional and unbiased. It is unrealistic and untenable to leave these complex legal decisions to commanders whose expertise relates to warfighting, not the minutiae of the law. Other problems with the NDAA text
Implementing the requirement that the senior STC be an O-7 will take years because there are few generals or admirals with significant litigation experience. There is a very limited number of military lawyers in the ranks of Admiral and General, and most, if not all, of them are generalists rather than military justice experts. It will take years for the services to develop the officers necessary to fill this role. MJIIPA on the other hand allows O-6s to fill these roles. There are sufficient O-6s with military justice experience currently in the services. Senator Gillibrand is calling for an up or down vote on MJIIPA
The process is broken: MJIIPA was included in the Senate Armed Services NDAA bill and passed out of committee 23 to 3. It has 66 cosponsors in the Senate and 220 in the House. And yet without a vote or debate on the floor, this bipartisan, bicameral bill was gutted from the NDAA.
MJIIPA and the new STC system can work well together, with MJIIPA acting as the overall structure and STCs prosecuting special victim cases.
A good overall explainer: https://www.justsecurity.org/ 79481/ndaa-a-missed-opportunity/ Mrs. GILLIBRAND.
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