National Defense Authorization Act for Fiscal Year 2014

Floor Speech

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Mrs. GILLIBRAND. Madam President, I rise today to speak about my amendment to the National Defense Authorization Act, an amendment known as the bipartisan Military Justice Improvement Act. I wish to start by thanking my colleagues on both sides of the aisle for their strong and unwavering leadership on behalf of our brave men and women in uniform. I could not be more proud of the bipartisan work that has been done to do the right thing.

I thank Senator Reid, Senator Booker, and Senator Heller, the three most recent supporters of our bill. I thank them for their extraordinary leadership and determination to end the scourge of sexual violence in the military.

I also thank my colleague and friend from Missouri for her unwavering commitment to helping victims of sexual assault. Although we disagree on my amendment, I remind all of our colleagues that the Defense Authorization Act has been made stronger in enumerable ways by Senator McCaskill's work, advocacy, and dedication. I also will be supporting her amendment today because I think the provisions in her amendment will add even more positive changes to the command climate and will help victims feel like they have a stronger voice.

However, while the changes in the McCaskill amendment are very good, I do not believe they are enough to truly ensure justice for victims of sexual assault. For that, we essentially need impartial, unbiased, objective consideration of the evidence by trained military prosecutors, which is what my amendment will provide.

Yesterday, I proudly stood with retired generals, leaders of veterans organizations, and survivors, who represent a growing chorus of military voices, to urge Congress to take its oversight role head-on and finally create an independent, unbiased military justice system the men and women who serve in our military so deeply deserve.

Leaders such as retired Maj. Gen. Martha Rainville, the first woman in history of the National Guard to serve as an adjutant general, who has served in the military for 27 years, including 14 years in command positions, wrote to me:

As a former commander, endorsing a change that removes certain authority from military commanders has been a tough decision. It was driven by my conviction that our men and women in uniform deserve to know, without doubt, that they are valued and will be treated fairly with all due process should they report an offense and seek help or face being accused of an offense.

When allegations of serious criminal misconduct have been made, the decision whether to prosecute should be made by a trained legal professional. Fairness and justice require sound judgment based on evidence and facts, independent of pre-existing command relationships.

Leaders such as BG (retired) Lorree Sutton, who served as the top psychiatrist in the U.S. Army, wrote, saying:

Failure to achieve these reforms would be a further tragedy to an already sorrowful history of inattention and ineptitude concerning military sexual assault.

In my view, achieving these essential reform measures must be considered as a national security imperative, demanding immediate action to prevent further damage to individual health and well-being, vertical and horizontal trust within units, military institutional reputation, operational mission readiness and the civilian military compact.

Far from ``stripping'' commanders of accountability, as some detractors have suggested, these improvements will remove the inherent conflict of interest that clouds the perception and, all too often, the decision-making process under the current system.

Implementing these reforms will actually support leaders to build and sustain unit cultures marked by respect, good order, and discipline.

LTG (retired) Claudia Kennedy, the first three-star female general in the Army, wrote:

Having served in leadership positions in the U.S. Army, I have concluded that if military leadership hasn't fixed the problem in my lifetime, it's not going to be fixed without a change to the status quo. The imbalance of power and authority held by commanders in dealing with sexual assault must be corrected. There has to be independent oversight over what is happening in these cases.

Simply put, we must remove the conflicts of interest in the current system. ..... The system in which a commander can sweep his own crime or the crime of a decorated soldier or friend under the rug protects the guilty and protects serial predators. And it harms military readiness .....

Until leadership is held accountable, this won't be corrected. To hold leadership accountable means there must be independence and transparency in the system.

Permitting professionally trained prosecutors rather than commanding officers to decide whether to take sexual assault cases to trial is a measured first step toward such accountability ..... I have no doubt that command climate, unit cohesion and readiness will be improved by (these) changes.

BG (retired) David McGinnis, who also served as a Pentagon appointee, wrote:

I fully support your efforts to stamp out sexual assault in the United States military and believe that there is nothing in (the Military Justice Improvement Act) that is inconsistent with the responsibility or authority of command. Protecting the victims of these abuses and restoring American values to our military culture is long overdue.

It is because they love the military that they are making their voices heard--standing united behind brave survivors. I will share some of those stories because it is their stories which inform some of this legislation.

Kate Weber, from Protect Our Defenders, was awarded the 2013 Woman Veteran Leader of the Year by the California Department of Veteran Affairs, and Sarah Plummer came to Washington, DC, all the way from Colorado. Yesterday they came to courageously tell their stories so that their brothers and sisters in uniform get a military justice system that is finally worthy of their great service to our Nation.

Sarah's story is extremely disturbing. She was raped as a young marine in 2003. She said:

I knew the military was notorious for mishandling rape cases, so I didn't dare think anything good would come of reporting the rape.

Having someone in your direct chain of command doesn't make any sense, it's like getting raped by your brother and having your dad decide the case.

Kimberly Hanks, the brave survivor from the infamous and horribly unjust Aviano case, who I spoke to months ago about this issue when our journey began, just wrote an op-ed published this week:

Regardless of all the promises by military leadership and half measures offered in the name of reform nothing short of removing the prosecution and adjudication authority away from the commander and placing it with independent, military professionals outside the accused's and victim's chain of command will end this nightmare.

Trina McDonald, who at 17 enlisted in the Navy, was stationed at a remote base in Alaska. Within 2 months, she was attacked, repeatedly drugged, and raped by superior officers over the course of 9 months. She said:

At one point my attackers threw me in the Bering Sea and left me for dead in the hopes that they would silence me forever. They made it very clear that they would kill me if I ever spoke up or reported what they had done.

Listen to Army SGT Rebekah Havrilla, who served

in Afghanistan and was raped in 2007, and said reporting the crime to her commanding officer to her was ``unthinkable'':

There was no way I was going to my commander. He made it clear he didn't like women.

A1C Jessica Hinves, who was raped in 2009 by a coworker who broke into her room at 3:00 in the morning, said:

Two days before the court hearing, his commander called me on a conference call at the JAG office, and he said that he didn't believe that [the offender] acted like a gentleman, but there wasn't reason to prosecute.

I was speechless. Legal had been telling me this is going to go through court. We had the court date set for several months. And two days before, this commander stopped it. I later found out the commander had no legal education or background, and he had only been in command for four days.

Her rapist was given the award for Airman of the Quarter. She was transferred to another base.

We also can't forget that more than half of the victims last year alone were men.

Blake Stephens, now 29, joined the Army in 2001, just 7 months after graduating high school. The verbal and physical attacks started quickly, he says, and came from virtually every level of the chain of command. In one of the worst incidents, a group of men tackled him, shoved a soda bottle into his rectum, and threw him backward off an elevated platform onto the hood of a car.

When he reported the incident, his drill sergeant told him: ``You're the problem. You're the reason this is happening.'' His commander refused to take action.

Blake said:

You just feel trapped. They basically tell you you're going to have to keep working with these people day after day, night after night. You don't have a choice.

His assailants told him that once they deployed to Iraq, they were going to shoot him in the head. ``They told me they were going to have sex with me all the time when we were there.''

This is the problem: There were 26,000 sexual assaults estimated by the Department of Defense last year alone based on confidential surveys, but only 3,374 were actually reported. Of those reported, 302 went to trial.

So if you are starting with 26,000 estimated cases and only 302 go to trial, that is a 1-percent rate of conviction in the U.S. military for the heinous crime of degradation, aggression, and dominance of rape and sexual assault. One percent. And we just heard from these victims. There are too many command climates that are toxic, that do not ensure good order and discipline, that do not protect against rape and sexual assault, that do not create a sense that if I come forward and report, that justice could be done.

In this survey--this a confidential survey--the reason victims didn't report is they said they didn't believe anything would be done. They also said they either feared or witnessed retaliation. This is the problem. About 23,000 cases weren't reported. It means in 23,000 command climates, these assaults are happening and victims feel they will not get justice.

So I am grateful for every reform we have put in place in this underlying bill. They are good, strong reforms that will help victims who report. But every single one of them applies only to these 3,000 cases. They apply to the cases that are reported, where the command climates are sufficient that a victim feels: I can come forward. I can at least report these cases. In the 23,000 other cases, those victims don't have that confidence.

So if we don't create a transparent, accountable system that is outside the chain of command, the hope of getting more victims to come forward and report so we can at least weigh the evidence and see if we can go to trial is not there. The hope isn't there. The confidence in an objective review by someone who doesn't know the perpetrator and doesn't know the victim doesn't exist.

So while we have these 3,000 cases which were reported and commanders did make sure 1 in 10 went to trial--and when they did go to trial, there was a 95-percent conviction rate. So they are not making the wrong decisions about what case to try. It is just that only 3,000 command climates were strong enough. We can't train their way out of this problem. There are 23,000 command climates that weren't strong enough, that didn't ensure justice, that created fear of retaliation. That is the problem.

So without an objective system, without creating transparency and accountability, without saying the decider doesn't know the victim of the perpetrator, there is no bias, because in too many cases, as we heard from these stories, the perpetrators may well be more valuable to the commander, may well have several tours of duty under his belt, may well have done great acts of bravery, may well have two kids and a wife at home. So when that commander, looking at the case file, says: You know, it can't possibly have happened; it didn't happen this way; he weighs the evidence differently than someone objective, who is trained, who actually knows the difference in these crimes and knows what a rape is. They know rape is not a crime of romance. They know rape is a crime of dominance. They know rape is a crime of violence. It is not about a date gone badly. It is not about hormones. It is not about a hookup culture. It is actually a crime that is brutal and violent, committed by someone who is acting on aggression and dominance and violence.

That is why the training matters. I want somebody who knows that, who has been trained as a lawyer, who understands prosecutorial discretion and can weigh evidence objectively.

We have to look at who is advocating for this bill--our veterans organizations: Iraq and Afghanistan Veterans of America wants this reform. Vietnam Veterans of America wants this reform. Service Women's Action Network wants this reform. They are all speaking in one voice, and they say: ``A vote for an independent and objective military justice system is a vote for our troops and a vote to strengthen our military.''

They know. They have served. They are veterans. They are no longer Active Duty. They can speak their mind.

This week we released a letter of 26 retired generals, admirals, commanders, colonels, captains, and senior enlisted personnel, including two generals and two admirals known as flag officers, who are saying to Congress:

We believe that the decision to prosecute serious crimes including sexual assault should be made by trained legal professionals who are outside the chain of command but still within the military.

This change will allow prosecutorial decisions to be made by facts and evidence and not be derailed by preexisting relationships, attitudes, biases, and perceptions.

It is our sincere belief that this change in the military justice system will provide the opportunity for real progress toward eliminating the scourge of sexual assault in the military.

I am hopeful our colleagues will listen to these collective voices because nobody knows the military and what needs to be done to fix this broken system better than they do. Listen to the victims who have clearly told us over and over how a system that only produces 302 prosecutions out of the DOD's estimated 26,000 cases of rape, sexual assault, and unwanted sexual contact last year must be fundamentally changed to restore trust and accountability.

These men and women of America's military have 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 far-off battlefield against an enemy but right here on their own soil, within their own ranks, with their commanding officers, as victims of horrible acts of sexual violence.

Sexual assault is not new, but it has been allowed to fester in the shadows for far too long because instead of the zero tolerance pledge we have heard for two full decades now, since Dick Cheney was the Secretary of Defense, first using those words in 1992, what we truly have is zero accountability.

There is no accountability because any trust that justice will be served has been irreparably broken under our current system where commanders hold all the cards over whether a case moves forward to prosecution.

There are those who argue that removing these decisions out of the chain of command into the hands of independent prosecutors in the military will diminish good order and discipline. This is not a theoretical question. We actually know the answer to this. Our allies have already made these reforms and they have not seen a diminishment in good order and discipline. The UK, Israel, Australia, Canada, Netherlands, Germany--all of them have taken the decisionmaking whether to prosecute the cases outside the chain of command for civil liberties reasons--some in interests of defendants' rights, some in interests of victims' rights--to make their justice system better. We could use a better justice system. We could use that transparency and accountability. We have a unique problem. I think this reform solves our problem.

Director general of the Australian Defence Force Legal Service Paul Cronan said that Australia has faced the same set of arguments from military leaders in the past. Cronan said:

It's a little bit like when we opened up [to] gays in military in the late '80s. There was a lot of concern at the time that there'd be issues. But not surprisingly, there haven't been any.

There are those who argue that our reform would somehow take commanders off the hook or that they would no longer be accountable. Let me be clear. There is nothing in this bill that takes commanders off the hook. They are still the only ones responsible for setting command climate, for maintaining good order and discipline, for making sure these rapes and assaults do not happen, for making sure there is no retaliation and the victim comes forward, for making sure the command climate is sufficient when they do come forward.

This is a legal decision and actually most commanders never get to make this legal decision. Your platoon sergeant, your drill sergeant, they are never going to be able to be the convening and disposition authority. That is not their job. But they still have to maintain good order and discipline. They are on the hook and the underlying bill is strong because we make retaliation a crime to give them just one more tool to help them set their command climate.

There are those who argue that this reform will cost too much. I do not know how you could possibly say that forwarding cases and prosecuting rape in the military costs too much. Our men and women in uniform are worth much more. Not only do these critics ignore the facts that we already have trained JAGs serving in our military, they actually ignore the financial cost of sexual assault in the military. The RAND Corporation has estimated that this scourge cost $3.6 billion last year alone.

There are those who say commanders move forward on cases that civilian prosecutors will not. To claim that keeping prosecutions inside the chain of command will increase the prosecutions is not supported by the statistics. If you only have 3,000 or so cases being reported and 23,000 cases not being reported under the current system, if you change that system and those 23,000 cases start becoming reported cases, you will have more prosecutions, you will have more convictions, you will have more justice.

The bottom line is simple. The current system oriented around the chain of command is producing horrible results and has been producing horrible results for 25 years. The current structure is producing 1 percent of cases that go to trial. That is not good enough. It is not a system that is deserving of the sacrifice that the men and women in uniform give to our country every single day.

It is also contrary to the fundamental values of our American justice system. Our justice system relies on the fact that a decision about whether to go to trial is never made on bias, it is always made on facts and evidence. It is not made on whether it is good for the commander. It is made on whether there are facts and evidence to prove a serious crime has been committed.

For all those who say this is a radical idea and should wait until next year, the DOD has an advisory panel that actually has opined for the past 50 years on the status of women in the military. That panel, called the DACOWITS--that panel had a vote on these proposals. They voted in favor overwhelmingly, with no one against. Of the 10 votes that we have, 9 are former military, 4 are high-ranking generals and officers. The nonmilitary voice is the head of a women's law center--knowledgeable individuals who are actually tasked by the Department of Defense, handpicked by the Department of Defense, to opine on the status of women in the military. They have voted to support these measures.

Secretary Hagel has even said he places ``a great premium'' on the voices of this panel.

I have not come lightly to the conclusion that we need to fundamentally reform our military justice system in order to strengthen it, but this is a commonsense proposal. It is not a Democratic idea. It is not a Republican idea. It is just doing what is right. If you listen to these survivors, veterans, retired generals, and commanders, they believe this change is needed. But even our current military commanders at the Department of Defense do not dispute the problem or the facts or the reason for the problem. The Commandant of the Marine Corps Gen. James F. Amos said earlier this year the victims do not report these cases because ``they don't trust us, they don't trust the chain of command, they don't trust the leadership.''

We have to restore that trust. If you have too many commanders and too many command climates with 23,000 unreported cases where that trust is broken, you are not going to fix it by keeping it with the commanders. That is the problem. This is a fundamental problem.

Listen to the Chairman of the Joint Chiefs of Staff, General Dempsey, who said that the military is sometimes ``too forgiving'' in these cases, admitting bias in the system toward decorated officers.

I firmly believe it is our obligation to restore that trust. Our fundamental duty as Senators, as Members of Congress, is to provide the needed oversight and accountability over the armed services. We should not do what the generals are telling us to do. This is our job.

Every time I meet with a member of the military I am overwhelmingly grateful for their service, for their sacrifice, for their courage. They deserve better. They deserve a military justice system that is consistent with our core, fundamental American values of objectivity, of truth, of evidence, of fact, and of justice.

I urge my colleagues to support our amendment.

I yield the floor.

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Mrs. GILLIBRAND. Mr. President, as we wait for our colleagues to join the floor so they can have their floor time, I wish to address a few of my colleague's concerns.

Some of the technical concerns she raised--we actually took some of those concerns and revised them in the bill that has actually been presented, so some of those concerns have been actually fully addressed.

For example, as to her concern about the convening authority, the disposition authority, our bill is very specific. The disposition authority is the decisionmaking authority. That goes to the trained military legal prosecutor, the JAG counsel, so they actually get to make the decision about whether to proceed to trial on the evidence.

The convening authority, which is a different right, a different duty, is left intact as it is. So the convening authority still will decide judges, juries, and all the details of what the court and the trial will look like. It is two separate authorities in two separate places. That has been clarified in the bill so there is no concern there.

One other concern my colleague raised is this issue of nonjudicial punishment. Our bill is very specific. We exclude 37 specific crimes, including all article 15 crimes, all of the crimes that one would be using nonjudicial punishment to enforce. If the disposition authority decides they do not want to prosecute the case because they don't have enough evidence to go forward, it goes directly back to the commander to use the benefit of the nonjudicial punishment to do whatever kind of punishment he or she thinks is appropriate.

So those are just two technical issues my colleague raised that I think are very important to clarify.

Then the third issue Senator McCaskill raised that I think is a misunderstanding of the bill is about this world away problem. Today, in our bill, compared to the current system, the reporting is the same. One can report anywhere. One can report to a chaplain or to a friend or to a nurse or to a doctor. One can report anywhere. That is not changing. The reporting is exactly the same.

What also is exactly the same is the investigation. So once a person does report, whether to a chaplain or to a commander, investigators will be sent to investigate the case, whether in Iraq or Afghanistan or Germany or anywhere. That stays exactly the same. So it doesn't matter, this world away, because the investigators go to the person. It is not a different set of investigators; it is the exact same set of investigators, and the commanders are still responsible to make sure the investigators do their job. So the commander has to be protecting the victim and has to be making sure the unit is not retaliating. He has to make sure the investigator has access to the evidence, and he has to make sure the command climate stays strong with good order and discipline. That never changes. Those commanders are always responsible for good order and discipline and command climate.

The only difference under this bill is after the investigation is completed and there is a file--a file of evidence--it doesn't go sit on an 06 commander's desk. An 06 commander is colonel and above, so quite a senior commander. He may not even be in Afghanistan or Germany or exactly where that crime has occurred. The 06 commander will look at the file and decide: Has a crime been committed and is there enough evidence to go forward?

Instead of that commander making that decision, this bill proposes that it will be a trained military prosecutor, so it doesn't matter what desk the file goes on. What does matter is whether the person whose desk that file goes on is objective. What matters is that person is actually trained, understands the law, understands the nature of the crime, can weigh the evidence and make a decision based on the evidence, not whether he likes the victim or values or doesn't value the perpetrator. Those biases are what is affecting the system negatively today.

So that is why the world away is not a concern, because the investigation proceeds exactly as it always did. The only difference is on whose desk it goes to make the ultimate legal decision.

Then, lastly, back to this issue of whether commanders are being held accountable. Commanders are held accountable. We actually have it in the underlying bill. Not only is retaliation now a crime, but they will be measured, as Senator Blunt said, on whether their command climate is strong. Is the command climate strong enough to make sure these rapes aren't happening? Is your command climate strong enough to make sure retaliation of a victim doesn't happen? Is the command climate strong enough to make sure victims believe justice is possible?

So they will be evaluated and commanders will be held accountable.

I don't think it is appropriate to hold a commander accountable based on whether he weighs the evidence properly. That is a legal judgment. It is not based on whether a person is tough or not tough on these rapes. It is based on whether there is enough evidence to show that a crime has been committed. It should be a technical, legal decision, not a decision based on how tough one is on crime. That is not the measurable. It is just not the measurable.

So commanders are going to be held accountable for their command climate, for good order and discipline. Whether they make a legal decision up at the colonel level is not determinative as to whether they have done their job. The commanders who are getting the opportunity to make those legal decisions today, they are not doing a bad job. Of those 3,000 cases reported, 1 in 10 went to trial. That is not a terrible ratio. The ones they do choose to move forward, there is a 95-percent conviction rate.

Yes, I agree in those 100 cases, where the commander said move forward, the conviction rates weren't as high. Some of those cases had convictions and some did not, and those are excellent opportunities for the victims to be heard. But we don't want just 100 more cases going forward; we want tens of thousands of cases to be reported so they have a chance to go forward. It is the difference of thousands, and that is why I feel this reform is so necessary. Still, in light of all of the amazing reforms in the underlying bill, I think it is necessary because that crisis of confidence is so raw, is so real, is so present.

I suggest the absence of a quorum.

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Mrs. GILLIBRAND. Mr. President, I wish to thank Chairman Levin for his extraordinary leadership on combating sexual assault in the military. He has led a process over the last year to ensure that our base bill has a set of historic reforms that make a huge difference in how cases that are actually reported are handled. In fact, the reforms that Chairman Levin has put forward and that our colleagues are continuing to perfect do make the handling of the cases that are reported better.

They make sure every victim who reports has a victim's advocate to help him or her steer through the process. They also make sure that if that victim is so lucky enough to get that conviction, that it cannot be overturned by a commander on a second-level review.

They also make sure we have better recordkeeping. They make sure the rules of evidence are better. They make sure victims are protected throughout the process. Most important, we as a committee have put forward in the bill a law that makes sure retaliation is now a crime.

Those reforms help the victims who are strong enough and able enough and have a command climate that is strong enough to report their cases. But one thing the chairman said that is not true: Commanders do not need this legal right to be able to set the command climate. In fact, most commanders will never have this legal right. Just look at the Army rankings. Second lieutenants, they will command 16 to 44 soldiers. They do not have convening authority. First lieutenant commanders--110 to 140 personnel--do not have this authority. Captains--62 to 190 soldiers--do not have this authority. Majors, lieutenant colonels, lieutenant colonels, who typically command battalion-sized units--300 to 1,000 soldiers--do not have this legal right.

Most commanders will never get to look at a case file and say: Are we going to trial? So I disagree that the ability to decide if something goes to court-martial is necessary to set good order and discipline because almost every commander--all of them here--these commanders, they all have to set good order and discipline as part of their job. They have to set a command climate where the rape does not happen. They have to set a command climate where that victim feels comfortable enough to come forward. They must, by law, now ensure that victim is not retaliated against. It is their job--whether they ever have this right. Commanders can do this and must do this without this legal right. It does not weaken their ability.

To have one guy way up here in the Army who wears the bird--the man who is the colonel, O6 level and above--he will make a legal decision, and he is not a lawyer. He is not trained. He does not know the ins and outs of prosecutorial discretion.

He may be biased. He may value the perpetrator more than the victim. He does not need to make this legal decision. He should not be judged on how tough he is on crime. He should not even be judged after he weighs the evidence if he does his job properly. He should weigh the evidence fairly. You can only do that if you are objective. That is why we want it to go to trained military prosecutors outside the chain of command.

Those commanders, every single one of them, should be judged on what the command climate is. Most of them will never get to weigh legal evidence as part of that. Chairman Levin, my colleague, has said: They have never heard of examples where commanders did not go forward but a lawyer did.

I talked about one this morning. We heard from many victims. In fact, one victim said she was on her way to trial, and the commander was changed. The new commander had been in command for 4 days. He decides that the trial is not going forward. He actually discontinued the trial.

You know what he said to her? Your rape was not a crime. He may not have been a gentleman. So I do not believe this legal right undermines our military system. I believe it strengthens our military system. I believe it gives commanders the chance to do their jobs, fighting and winning wars, training men and women. Commanders are entirely on the hook by our base legislation. They will be judged on the command climate. They will be judged on whether there is retaliation. They will be able to prosecute retaliation as a crime.

I believe that if you create transparency and accountability in the system, we will be able to have many more cases be reported, first of all. More of those 23,000 cases will be reported. When you have more of the 23,000 cases being reported, you will have more investigations. You will, therefore, have more trials. You will, therefore, have more convictions.

If you are ever going to change the culture, you need to do it by showing there is accountability. You need to do it by showing there is justice. You need to show it by showing that justice can be done. We need the active involvement of commanders. This is never going to happen if we do not. So they need to start focusing on retaliation. They need to start focusing on command climate. They need to make sure these rapes are not happening.

They will do that whether or not they ever have this legal right. When our allies changed their laws to elevate all serious crimes out of the chain of command, they did not see a falling apart of their military. They did not see good order and discipline going out the window. They did not see any change at all, in fact. So I know our military can do the same. I know our military can build a transparent, accountable system that responds to what victims have asked. They want to be able to have the decisionmaker be outside of their chain of command.

If we do that, we have a chance of building a criminal justice system within our military that is good, and it is just, as our men and women deserve.

I am heartened by the conversation we are having on the floor today and I am grateful to all of my colleagues for their engagement and involvement on this critical issue. I have heard some questions about the technical implementation of the Military Justice Improvement Act mentioned on the floor today and during the past few months and I would like to address those concerns.

First of all, thanks to feedback that we received about the MJIA, we made some technical changes to the amendment that I would like to note.

One such concern was the omission of the Coast Guard, we have now included the Coast Guard in the amendment.

Another concern we heard about was how to handle attempts of crimes, both in the new system and those that are excluded. In the amendment, conspiracies, solicitations and attempts have all been included.

We were also asked about crimes that happen simultaneously. For example, what if during a sexual assault, crimes are also committed that fall under the old system? In order to clarify any confusion about this question, the amendment says that all known crimes will be charged under the new system.

There were also questions about whether the convening authority will be able to pick the judge, prosecutor and defense counsel. The newly filed amendment has been clarified to ensure that it is clear that the new, independent, convening authority has the same power as the previous convening authority--the commander--in overseeing the process of convening a trial. The processes for detailing judges, prosecutors and defense counsels remains as they are today.

Other concerns we have heard seem to take as a negative the fact that the MJIA leaves some issues up to the military to implement.

We see this as one of the strengths of the MJIA.

We wanted to ensure that the military had the ability to best interpret and implement the legislation in a way that was effective for the whole military, and for each service, each of which have slightly different systems.

Let me give you an example. Some have argued that that plea bargaining will not work under our system. That is not true. The amendment transfers the commander's responsibilities for convening authority to the office of the Chiefs of Staff of each service; therefore, the offices of Chiefs of Staff will now have the authority to oversee pre-trial agreements.

We specifically leave interpretation and implementation of the plea bargain up to the military to ensure that it is most expeditious--therefore the military can choose to include the commander's perspective in the pre-trial agreement conversation and send the case back to him or her for non-judicial punishment or summary court martial.

Let me give you another example. Article 32 is not explicitly mentioned in the amendment. This is intentional. Most if not all of the members of this body agree that the article 32 hearing needs to be fixed, but equally that it must be maintained. Because under the MJIA a trained, independent prosecutor will now be making the decision about whether to go to court martial, this may change the way that article 32 may best be implemented. We want to leave the military, and these trained prosecutors, with the ability to best implement the UCMJ.

I have also heard a lot of questions about non-judicial punishment. As I have said all along, the amendment leaves all crimes with punishment under 1 year of confinement, and 37 military-specific crimes with the commander, thereby leaving the vast majority of crimes punishable by courts martial in the hands of commanders.

However, to suggest that crimes as serious as rape and murder be handled with anything but a clear look at the evidence is at the heart of the importance of this amendment. If evidence exists to send a case to court martial, there is absolutely no reason anyone should consider non-judicial punishment as an option. This is exactly why this decision should be in the hands of an impartial attorney.

Further, the amendment even allows for a failsafe if the independent JAG decides that there is not enough evidence to proceed to trial that the charges would not be appropriately addressed at a court-martial, then the commander would still be able to exercise non-judicial punishment. In the event that the military member demanded a trial by court martial, the decision authority would at that point still be able to send the charge to the convening authority for referral to trial. There is nothing unique about this situation.

I want to assure all of my colleagues that I have spoken to military justice experts and to retired JAGs about how to ensure that the Military Justice Improvement Act addresses potential issues and to ensure that the military has the ability to implement it in the best manner possible.

I yield the floor and I suggest the absence of a quorum.

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