Military Justice Improvement Act

Floor Speech

Mrs. GILLIBRAND. Mr. President, I rise today to talk about an amendment I plan to introduce to the National Defense Authorization Act next week. This is an amendment known as the bipartisan Military Justice Improvement Act.

I thank my colleagues on both sides of the aisle for their leadership in this effort. As we have said from the beginning, this is not a Democrat nor a Republican idea. It is good, plain old common sense. It is the right idea necessary to protect the men and women who fight for our country and our values in uniform every single day. So I thank the broad coalition of supporters for their leadership--former generals and commanders, veterans, advocates--who are making their voices heard so that they know these horrible crimes aren't going to happen to someone else; that the justice system we build is one of which they are deserving. They are urging Congress to use its responsibility of oversight and accountability, to use their role head-on, by finally creating an independent military justice system which gives survivors of these horrific acts of violence a fair shot at justice--a system free of inherent bias and conflicts of interest that currently exists within the chain of command, that will enable survivors to come forward and to hold their perpetrators accountable.

The strong and growing bipartisan coalition of Senators, survivors, veterans, retired generals, commanding officers, and advocates is showing this is not only free from partisan politics and ideology, but it is a promilitary piece of legislation which actually strengthens our military readiness, strengthens unit cohesion, and strengthens good order and discipline.

This week began with all Americans saluting our veterans, honoring our solemn commitment to the brave men and women who join the Armed Services for all the right reasons: To serve our country, defend all that we hold sacred, and make America's military the best the world has ever known.

These men and women put everything on the line to defend our country. Each time they are called to serve, they answer that call. But too often these brave men and women find themselves in the fight of their lives--not on some foreign battlefield in another place against an unknown enemy but within their own ranks, on this soil, among men and women with whom they serve. They are victims of horrific acts of sexual violence.

Sexual assault in the military is not new, but it has been allowed to fester. It has been festering in the shadows for far too long, and when our commanders for the past 25 years have said there is zero tolerance for sexual assault in the military, what they really meant was there is zero accountability--and that is the problem we are facing--going back to the Secretary of Defense under Dick Cheney in 1992. He uttered those words: ``Zero accountability.'' Every Secretary of Defense has since that time said ``zero accountability.'' But our system of justice in the military is broken, and our commanders are the ones who hold all the cards about whether these cases can go forward.

There are those who argue that moving these decisions to independent military prosecutors will somehow undermine good order and discipline. If you had 26,000 cases of unwanted sexual contact, rape, and assault in the military last year alone, you do not have good order and discipline.

Our allies with whom we fight side by side in every conflict--Israel, the UK, Canada, Australia, the Netherlands, Germany--have all already made this decision to say serious crimes deserve the objective review of trained military prosecutors. They should not rest in the chain of command. They should not rest where bias is possible, where conflicts of interest are rampant. It should not be there because the scales of justice are blind. That is the whole point of the American justice system: Blind justice. Not tipped for the defendant, not tipped for the victim. Blind, objective.

We have a Defense Department panel that is actually taking up evidence on this issue. They had a hearing. They asked members from our allies to come and testify about when they made this change. When you took this decisionmaking out of the chain of command, what happened? Did you have a falling off of good order and discipline? They testified no. The director-general of the Australian Defense Force Legal Service, Paul Cronin, said that Australia had faced the same set of arguments from their military leaders in the past.

It's a bit like when we opened up to gays in the military in the late 1980s. There was a lot of concern at the time that there would be issues, but not surprisingly there haven't been any.

There are those who argue that somehow our commanders would no longer be accountable. Let me be clear about this. There is nothing in this bill that takes commanders off the hook. They are still responsible, solely responsible, for maintaining good order and discipline, for setting the command climate, for saying these rapes are not going to happen on my watch and, if they do, victims can come forward and know they will be protected. They are responsible for making sure there is no retaliation.

But you know what. Last year alone, of those 3,000 brave survivors who did come forward and report what happened to them, 62 percent were retaliated against--62 percent. That means those command climates failed to protect victims telling their commanders I have been raped; I have been sexually assaulted; I have been brutalized, and justice has to be done.

What does retaliation look like? Commanders saying things such as: It is your own fault; you are to blame; you are the problem. If you report this crime, I am going to write you up on drinking or adultery. Do you really want your military career to end?

For so many victims, that is what happened; they are forced out of the military. All they want to do is serve our country, some of our best and brightest. We are losing them because justice is impossible for them.

Some opponents say this reform will cost too much money. One estimate is that if you had enough lawyers to do all this legal work, it might cost you $113 million, $4,000 a victim. That is an absurd argument. Are you really telling me it costs too much to prosecute rapists in the military? Are you really telling me it costs too much to have enough lawyers to take these cases to trial? Are you really telling me it costs too much to have a criminal justice system that honors the men and women who serve in this military? You cannot possibly be saying that. You cannot possibly be saying that.

It is also an argument that makes no sense. Do you know how much it costs our military to have 26,000 sexual assaults, rapes, and unwanted sexual contacts every year in our military? Do you know what that costs? The RAND Corporation actually did an estimate. They said having this kind of rampant sexual assault, rape in our military, cost the military--because they lose so many of these good men and women there have to be new people retrained--$3.6 billion last year alone. That is the cost. That is a cost we should not be willing to pay.

Last argument. Our opponents say that commanders will actually move more cases forward that prosecutors wouldn't. That is not true because, again, if you have 23,000 cases that are not being reported and you create an objective criminal justice system, you are going to have more reporting. With more reporting, you are going to have more cases going to trial, many more cases than any argument that there might be an aggressive commander here or there. Many more cases will go to trial and end in conviction if you create an objective system.

Every single year the DOD does estimates; they estimate what is actually the incident rate of sexual assault in the military. Last year they had confidential surveys men and women filled out. Based on that confidential survey, they estimated there were 26,000 cases last year alone, sexual assault, rape, unwanted sexual contact. Of that number, only 2,558--that is the 1 in 10--sought justice by filing unrestricted reports. Of those 2,500 cases, 300 went to trial. So you are really talking about 1 in 100 cases end in justice. That is an abysmal record. We owe so much more to the men and women who serve in our military, so much more to those who will even die for this country. A chain of command oriented system that produces only 302 convictions of 2,558 actionable reports is simply not holding enough alleged assailants accountable under any standard. One in one hundred cases ending in conviction is not good enough under any standard.

Further, an independent system will protect not just the rights of the victim but an accused who may well be innocent, because when a commander is the only decisionmaker and they may know the victim and they may know the perpetrator or the accused and they have a reason to deal with this case in a way that is reflective of his or her bias, what you are creating is an unjust system. Justice must be blind.

I have not come to this conclusion for this fundamentally needed reform lightly. But if you listen to the survivors, if you listen to what happened to them, where the breach in the system is, where the failure of trust occurred, there is no possible reform that does not include taking it out of the chain of command.

What I would like to do, as my colleague Senator Grassley has just joined me on the floor--Senator Grassley is one of our greatest champions on this bill. He has looked at this problem from the perspective of common sense. He has looked at this problem and said you cannot possibly have a system rife with bias and conflicts of interest and expect justice will be done. I am going to yield to my colleague when he is ready. He wants to address another issue.

I yield to my colleague.

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