Military Justice Improvement Act

Floor Speech

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Madam President, there is no doubt that when a sexual assault occurs in a military unit, when a servicemember is a victim or a perpetrator of sexual assault, then we all fail. It is not just the military chain of command; it is all of us. That is why the efforts of Senator McCaskill and Senator Gillibrand have been so critical and important. They have galvanized this debate. They have forced action where action needs to be taken. Now the question is, What is the pathway forward that will achieve what we all want--the reduction of sexual assault in the military forces?

I have expressed before concerns with the approach Senator Gillibrand has taken because I firmly believe, based on experience in the Active military, leadership has to be involved at every stage--recruitment, training, evaluation, promotion, and retention. When we take the commanders out of any of these steps, we diminish their effectiveness in every one of these steps. Removing the commander from these responsibilities, in my view, will weaken his or her effectiveness, and the test of that effectiveness is not in the courtroom, it is on the battlefield, and the consequences of such weakness could be significant to the forces of the United States.

So we have to continue to maintain a system that recognizes the need for constant attention to this issue, constant leadership and command focus, on this issue.

We also have to recognize that the proposal we are putting forward today--and I think this is critical--is not just about sexual assault; it covers a wide range of offenses, offenses like larceny of personal equipment in the barracks. It covers a whole host of crimes that are not directly related to sexual assault.

As a result of this bifurcated system that would be created, some traditional charges, such as AWOL, have been reserved for the commander, but a significant amount of charges has been referred to this new process. This bifurcated system will cause practical problems that will undercut the effectiveness of units to perform their mission and to do what is necessary to protect their soldiers, sailors, airmen, and marines.

The service JAGs--very experienced legal officers who have served in the uniformed military justice system in the United States--have pointed out several defects.

First, the proposal fails to address the complexity of these cases. Some cases will be referred to the special prosecutor, while others will remain with the commander, creating a multiplicity of venues, multiplicity of investigations, and perhaps conflicting decisions; all of which not only impose significant costs, but I think interferes with the sense the soldiers should have that they know what the system is.

Second, this proposal takes away one of the most significant aspects of the military justice system; that is, nonjudicial punishment. For example, as I illustrated before in my remarks, you could have a barracks thief who steals an iPhone and an iPad that accumulates to a certain amount to trigger a charge that has to be referred to a special prosecutor. If that special prosecutor declines to prosecute, then it goes back to the company commander. But the company or the battalion commander, given the level of jurisdiction, cannot now impose nonjudicial punishment for the simple fact that the accused has to accept the punishment, but if there is no way he or she can be court-martialed, that punishment will not be accepted.

For offenses that are properly tried or adjudicated through the Article 15 process, those offenses will literally not only go unpunished, but the whole climate of command could be significantly changed.

Third, there is a constitutional issue, which is that under this proposal, you have the creation of a single office--and again I will refer to it generically as special prosecutors--with the authority to appoint counsel--defense counsel--and members of courts-martial panels, and that raises constitutional problems.

Let me conclude by saying that we have had a vigorous debate, and it has been an important debate, but we have had the opportunity since that debate to get the results of the Role of the Commander Subcommittee from the Response Systems Panel. These are objective members--in fact, many of them have for years been in the forefront of urging sensible reforms in the military, of being the vanguard in protecting victims in many different forms. They have concluded that the commander should remain within the loop, should remain as Senator McCaskill, Senator Ayotte, and Senator Fischer proposed, with corrections and with improvements that I think are very appropriate.

I would urge that we support strongly the provisions Senators Ayotte, McCaskill, and Fischer have proposed. They strengthen the system. But I must say that to remove the commander as proposed would in the long run be detrimental not only to the effectiveness of the military forces but detrimental to our common goal, which is to reduce sexual assault in the military of the United States. If we do not, if we allow it to continue--it is a corrosive force that will undermine our forces more than anything else.

Committed to that goal, I think we should support Senator McCaskill, and I am pleased to do so.

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