Military Justice Improvement Act

Floor Speech

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I thank the Senator from Missouri for her leadership. She is correct. She has prosecuted more of these cases than I think anyone in this body, so I appreciate her leadership.

Under the system that is put forward under the Gillibrand proposal--let me thank her for her passion about this issue as well--we know it prohibits funding and personnel. How does that work when we are going to set up a whole new system? I worry about the deployability of this system. When someone is in Iraq or Afghanistan and they are a victim, where are these JAG lawyers going to be? Will they be in Washington making these decisions? But we won't be able to put any additional resources toward it. So is this system still deployable?

There are other problems with implementation. There are big concerns about the right to a speedy trial. If that happens, as we know, then the defendant can't be prosecuted.

Eliminating the ability to plea bargain--we heard Senator Reid speak about that, because this proposal eliminates two-thirds of the crimes from the UCMJ out of the authority of the commander, well beyond this issue of sexual assault, which we are committed to addressing. It also creates serious due process concerns. So there are serious implementation questions about this.

I wish to raise a question that keeps coming up: We need to hold the commanders more accountable. I agree with the Senator from Missouri. We cannot allow them off the hook. If we take them out of this equation, then there will be less accountability. Our proposal actually has it as part of how a commander is going to be judged, how the commanders handle these cases. That is not the status quo, because we want the chain of command to be more accountable. But we keep hearing we want victims to come forward, and the Senator from Missouri knows that from her experience as a prosecutor.

I would say this: Does the evidence support that more victims will come forward if we actually pass the Gillibrand proposal? Because why are we here. We want more victims to come forward. Will more victims see justice if this proposal is passed? Because this is ultimately what we are trying to get at.

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Let me just say, this panel took on the key question. That is why we are doing this. I am doing this because I believe victims will get justice and there will be more accountability. I want to hold commanders more accountable for not only how they handle these crimes but also for that zero tolerance policy within their unit. That is why we want them judged on this basis.

That panel has looked at this issue of reporting and found that there is no evidentiary basis at this time to support a conclusion that removing senior commanders as the convening authority will reduce the incidence of sexual assault--which we want them to establish that climate within their unit to do so--or increase reporting of sexual assaults.

I would also say, if we want justice for victims, what about those 93 victims where the commander said: Bring the case forward, even though the JAG lawyer said no? They would not have gotten justice. So the evidence is the opposite. What would we say to those victims? The evidence shows that actually commanders are bringing cases more frequently than their JAG's lawyers and over their objections.

The panel also found that none of the military justice systems of our allies was changed or set up to deal with the problem of sexual assault. So for those allies who have taken it out of the chain of command, this panel said that none of them can attribute any changes in the reporting of sexual assault to changing the role of the commander.

We were told from the beginning of this argument that our allies changed this so that more people would come forward. Well, they have not. In fact, what we learned is many of our allies changed it to protect defendants.

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Our reporting has actually--since 2013, in the Marine Corps it is up 80 percent and in the Army it is up 50 percent. That is even before the legislation that we have all worked on to have special victims counsels for every single victim that we have already passed in this body.

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I thank the Senator from Missouri, and I thank the Senator from New York for her passionate and important debate. Let's not forget the work we have already done in the Defense authorization, ensuring that every victim will have his or her own attorney to represent their interests, taking commanders out of overturning verdicts, and making retaliation a crime. So we have done very important work.

But why are we here today? The issue is will more cases be prosecuted if we take it out of the chain of command?

Actually, no. There would be 93 cases under the current situation that wouldn't have been brought where commanders actually made a different decision than their military lawyer. What about those victims and those victims having their day in court? I want more victims to have their day in court.

As we think about it, why are we doing this? Some of our allies did it. We looked at that issue. Our allies haven't seen any greater reporting, so there is no evidence that we are going to have reporting. Many of them did it to protect defendants. We are here to protect victims today. We certainly want a system with due process, but this is about having more victims coming forward.

I also want to make sure people understand that under the system now they do not have to report to their commander. We had people come to the floor and say they shouldn't have to go to their boss. They can go to a sexual assault response coordinator, clergy, minister, civilian medical personnel. Already they can come forward if they don't feel comfortable coming forward to the commander.

No evidence has been presented that we are going to help victims more or that more cases will be prosecuted or more will come forward if we take it out of the chain of command. That is why I want to hold commanders more accountable, not less. That is what Senator McCaskill, Senator Fischer, and I do in our proposal. We want to make sure they are not let off the hook. We want to make sure the victims can get not only justice but make sure they get swift justice. This proposal risks delaying that justice in the system.

I ask my colleagues to vote against Senator Gillibrand's proposal. I ask my colleagues to say what will hold commanders more accountable. That is our proposal. I ask them to say where is the evidence that more evidence will be pursued or more cases will come forward. There is no evidence. Our proposal is based on the evidence.

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