National Defense Authorization Act for Fiscal Year 2014

Floor Speech

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Ms. AYOTTE. Mr. President, I rise today to talk about a very important issue I spoke about on the floor yesterday; that is, eliminating sexual assaults in our military, making sure victims are supported, that they get the support they need.

Yesterday on the floor I talked about important reforms we are doing together on a bipartisan basis to make sure victims receive special victims' counsel, so each victim is now going to receive an attorney who represents him or her in the system, and stands up for their rights.

We make retaliation a crime under the Uniform Code of Military Justice so that victims of sexual assault understand if they are retaliated against, there will be a crime for that. In fact, those who retaliate will be brought to justice.

There are many other dozens of reforms that are in the Defense authorization, but today I want to talk about a very important issue. I see on the floor Senator McCaskill. I want to commend her for her leadership on this issue. She has been a tremendous leader. Senator McCaskill, Senator Fischer from Nebraska, and I have offered an amendment that will further strengthen historic reforms that we discussed yesterday on the Defense authorization, including allowing a victim to formally express their wish about how their case will be handled, in addition to their being, of course, provided special victims' counsel, to provide the prosecuting attorney the ability to disagree with a commander's decision, which I will talk about more, and to have a review of that decision by the civilian head of each force.

Then we eliminate things such as the good soldier defense. Then those who feel like they have been discharged from the military or how their discharge has been described will now get an opportunity to have their case reviewed. So we are not only looking forward, but we are going to look backward to make sure that victims of crimes know they will be treated with dignity and respect.

I have come to this issue as someone who was a prosecutor. Most of the cases I prosecuted were murder cases, but I also had the chance to serve as attorney general of our State, where I worked with not only murder victims but also victims of sexual and domestic violence. This is a set of crimes that is unacceptable in society, but particularly unacceptable in our military, where we expect the very best from our military.

I looked at this issue very carefully, the issue that has been discussed so much on the floor today, that is, in handling sexual assault cases and other types of cases, should the military justice system be changed fundamentally to take the commander out of the decision on whether a charge will be brought after an independent investigation. I came down on the side of we need to hold commanders more accountable, not less accountable, because everything within our military, of course, is deployable. We have the finest men and women who serve our country in the world. We have to have a military justice system structured in a way that it can bring justice in Afghanistan as easily as it can bring justice in the United States of America, wherever our men and women are situated. If we take commanders out of the decisionmaking process, then fundamentally we are holding them less accountable for the results of how these cases are handled. So I would like to talk about the proposal Senators McCaskill, Fischer, and I have that I think will hold commanders much more accountable.

Right now, as we look at cases of sexual assault in our military, we want victims to understand they can come forward. When they come forward, and we want them to come forward, they will get the support they need and deserve; that their perpetrators will be held accountable for the crimes they have committed.

We want commanders to establish a climate within their unit to say no tolerance when it comes to sexual assault. If you do not handle a sexual assault case properly, you will be relieved of your command. That is what this is about.

So in our proposal, rather than remove commanders from the decisionmaking--let me say how this works so people understand. Right now, a victim of a sexual assault or another serious crime comes forward. They do not have to come forward through their chain of command. They can come forward through a health care professional, they can come forward through a 911 call, they can come forward through their pastor to report a sexual assault. Then it is independently investigated.

From there, that investigation is presented to a JAG lawyer in the chain of command who then makes a recommendation to the commander of whether a charge should be brought and whether they should be going to a military trial at that point. So to take out of that the decision of the commander is now to leave the victim in a situation where--let's put this victim in Afghanistan. They are in a situation where the case has been investigated. It comes back. The commander now does not take responsibility for whether a charge is brought. The commander is now put in a situation where: I am sorry, that decision is being made by another set of JAG lawyers who are outside of the chain of command, so go talk to the lawyers over here, not me. It puts the commander in a bystander responsibility rather than taking responsibility for these decisions.

So what we have done is made commanders more accountable. When the JAG lawyer comes to the commander for a recommendation, saying this case should be brought on a sexual assault case, if the commander says: No, it should not, that will go all the way up to the civilian secretary of whatever force is involved, whether it is the Secretary of the Army, the Secretary of the Air Force, each branch, and will be reviewed separately. That will hold commanders more accountable than turfing it over to a lawyer over here where the victim has to hear that: I am sorry, I cannot tell you what the decision is on your case because there is a lawyer over here making this decision.

Even in a case where the commander and the JAG lawyer both agree that a charge should not be brought, under our proposal there will be another review of those cases up the chain of command to say someone else should look at it. There should be accountability. There should be accountability at every level of our military to ensure that victims of sexual assault will be supported and that these cases will be handled and the perpetrators will be brought to justice.

There has been a lot of discussion on the floor today. All of us want more victims to come forward and feel that they can report their case, because not enough of them have come forward.

Yet the evidence shows that if we take commanders out of it, we are not necessarily going to get any more reporting. In fact, we have cases that may not be brought to justice. The evidence shows that commanders are being more aggressive than the actual JAG lawyers in terms of cases that are being brought. If we look over the last 2 years, there are 26 Army victims where the JAG lawyer said: Don't bring the case.

The commander overruled the JAG, went to trial, and the perpetrator was convicted. There was justice for this victim.

Under this proposal those cases would not have gone forward because the JAG lawyer said: No, don't bring it. There were 16 cases in our Marine Corps over the last 2 years where that would have happened as well, where 16 victims wouldn't have received justice.

There was one Navy victim, and nine Air Force victims would not have seen a conviction for their perpetrators--the rapists, who deserve to go to trial, to be convicted, and to be judged. Those cases would not have gone forward.

When I hear Senator Gillibrand's proposal--and I respect her so much, and there is so much we agree on, and I respect the work that she has done and the work that we have done together on many of the provisions that I have talked about--the discussion that taking it out of the chain of command will cause more reports to come forward, then if less cases will go to conviction, if I am the victim, how does that make me feel more as if I want to come forward and report my case? Maybe my case won't be brought or there is a set of cases that would not ever be brought if a commander--who has responsibility within his or her unit for this--hadn't recommended this case go forward.

The other argument we have heard a lot about is many of our allies have taken it out of the chain of command, including Canada, Great Britain, Israel, Germany, and Australia. There has been a misunderstanding, because as we researched this issue as to why our allies took it out of the chain of command, we discovered the truth is they took the decision out--of whether a commander would make the decision to go to a trial on a sexual assault case or other serious felony--to protect defendants, not victims.

I can assure people--with all due respect to defendants, and I have defended cases as well because they certainly have rights under our laws and I respect that--this is about protecting victims. Our allies changed their system to protect defendants. What we are trying to do is to have a victim-friendly environment where people will come forward and where perpetrators will be held accountable.

If we look at those countries such as Canada, Great Britain, Israel, and Australia, that have changed their system, they have not seen any greater reporting. In other words, it is one thing if we looked at it and said when they changed their systems the victims came forward. That is not the case. That is not what the evidence shows. Facts are stubborn things.

As a former prosecutor, I want to make decisions on how to address this very real and important problem based on facts. The facts are that there are cases that wouldn't have been prosecuted if we took it out of the chain of command--perpetrators that should have been held accountable. Our allies did it, but they haven't seen any greater reporting, and they did it to protect defendants.

What do we want to do? Let's hold our commanders more accountable. This is what some former peers of our military have said, such as COL Lisa Schenck, U.S. Army retired former Judge Advocate General, who spent 25 years in the military. We asked her about these two proposals. She said: If you take out the convening authority--meaning the decisionmaking process from the commander--you are essentially gutting the military justice process. If you take the court-martial process away from the convening authorities for sexual assaults or for major offenses, that allows them to say: Hey, the JAGs are dealing with it. They need to be held accountable, and they need to be part of a process.

We don't want to create a situation where we say: I have turfed it to my lawyer over here, and the lawyers over here are going to make the decision.

Commanders should be held accountable for those decisions.

In fact, we had a woman who is currently in the Marine Corps come to the Republican Conference, a woman commander. She is very impressive to have reached the level she has in the Marine Corps. She works training our marines. I was very impressed with her experience. She has commanded at every level. She said: If you want to get this done for victims, don't make the commanders bystanders.

This is what makes me very worried. If I thought that taking the commanders out of the decisionmaking process would help victims further, I would do it. As she describes: If you make a commander a bystander--which is what the proposal on the table of Senator Gillibrand is, who I very much respect, and I know her passion is very real for this and I share it. I don't want commanders to be bystanders. If they are bystanders, then how do we relieve them from command when they don't do their job on this because we have taken the decisionmaker standard from it.

This is another issue that concerns me. We have spent a great deal of time, rightly so, trying to address the issue of sexual assault in the military. The Gillibrand amendment that is on the floor doesn't only take sexual assault out of the chain of command, it takes out murder, manslaughter, death or injury of an unborn child, stalking, rape--we talked about rape--larceny and wrongful appropriation, robbery, forgery; making, drawing, or uttering a check, draft or order without sufficient funds; maiming, arson, extortion, assault, burglary, housebreaking, perjury, and frauds against the United States.

We need to understand that the reason we have the military justice system structured this way is because we deploy to places such as Afghanistan. Not only in sexual assault cases will the decision of the commander--whether or not to refer the charge for a trial--be changed under the Gillibrand proposal, but in all of these crimes in which we have not received any testimony about. We have not received evidence that the commanders are mishandling murder cases, manslaughter cases, arson cases, extortion, assault, burglaries, fraud.

This is very much a fundamental change, not only in an

area we all care passionately about getting right, to make sure that victims of sexual assault are supported, but all of these crimes will now be removed from the chain of command.

How will that work in Afghanistan and Iraq? I am trying to figure this out. There have been over 900 cases in Iraq and Afghanistan, as I understand it, where some type of trial has had to be held because of offenses that were committed in Afghanistan, all different types. I am not only talking about sexual assault, I am talking about all different types of crime.

How is that going to work? Are we going to say we will wait to see whether we should bring this to trial? The lawyers are located somewhere else. We don't know where; it could be in the Pentagon. So we will wait for the lawyers from the Pentagon, or wherever this separate set of lawyers are located, until we have justice in places such as Afghanistan.

This is for all of these cases on all of these crimes about which we haven't even had any testimony before the Armed Services Committee to address an issue that we all care very much about.

There were 900 cases from Iraq and Afghanistan. As we know, Iraq could have been as much of an issue in terms of having a deployable, military justice system to ensure that victims of all types of violent crimes, no matter where they are, will get justice and that perpetrators, no matter where they are, will be held accountable for their actions. This is what this is about.

I thank the Chamber for all of the work that is being done, for all of this work done on this important issue. I know that after we vote on all of these proposals--Senator Gillibrand's proposal, as well as the proposal that Senator McCaskill, Senator Fischer and I have--that we will be working together to make sure that there is accountability on this issue. Reforms have already been passed that are in the Defense authorization. They are very important items such as the special victims' counsel that I mentioned earlier.

I see Senator McCaskill, and I know that she and I, as members of the Armed Services Committee, are not going to let this issue go. There will be follow-up to make sure that the military is held accountable. We have the best military in the world.

This does go to the core of our readiness of good order and discipline. We can't have good order and discipline if we put commanders on the sidelines. We will hold them more accountable under our amendment, amendment No. 2170.

I thank the Chair for the opportunity to speak on this important issue.

I yield the floor.

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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?

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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.

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