Executive Calendar

Floor Speech

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Mrs. GILLIBRAND. Mr. President, I rise again to call for this entire body to vote and consider the Military Justice Improvement and Increasing Prevention Act. This commonsense reform would ensure that people in the U.S. military who have been subjected to sexual assault and other serious crimes get the justice that they deserve.

I began calling for the full floor vote on this bill on May 24. That was 24 days ago. Since then, an estimated 1,344 servicemembers will have been raped or sexually assaulted. Two in three of those survivors will not even report it because they know that they are more likely to face retaliation than receive justice.

This is a scourge that we have been looking at for over 8 years. We have passed nearly 250 measures to address sexual assault in the military, to address retaliation, to address prevention, and none of them have dented the numbers. In fact, our estimated cases are at about 20,000 cases, and among those, only about 200 have gone to courts- martial and ended in conviction. It is not enough. We aren't moving the numbers in the right direction. They are, in fact, going in the wrong direction.

We also have a reform that we have looked at for 8 years. It creates a bright line at all serious crimes to handle two issues: one, the bias we see in sexual assault in the military; that if you are a servicemember who reports sexual assault, it is unlikely that you will get justice, and it is likely that you will be retaliated against.

And after we have made retaliation a crime three times in a row, we have only seen one court-martial for retaliation. That is outrageous.

And so now is the time that we bring this measure to the floor. It does not cost a lot of money. It is something that uses the existing infrastructure, the existing lawyers, the existing infrastructure around the lawyers.

Two, it does not take a long time to implement because, in fact, after the military police complete their investigation and have their recommendation, basically, they send that recommendation to the prosecutor, as opposed to the commander. So after the review by the prosecutor, it goes right back to the commander if that prosecutor declines to prosecute.

So, ultimately, it changes the system in a very small but powerful way, and the reason why this change is recommended by all military experts is three reasons: One, the bright line creates a justice system for all plaintiffs and all defendants. And since we have bias with regard to women in the military and we have bias with regard to Black and Brown servicemembers, this change will remove bias and professionalize the system for everyone.

Second, our allies have done this. Our allies have done it--UK, Israel, Germany, Australia, Netherlands. They have done it over the last 40 years for defendants' rights, to make sure we have a system that is fair to everyone. When they put this change in place, they reported to our panel that, No. 1, they saw no diminution in command control; and, No. 2, they saw no undermining of good order and discipline. So for those reasons, that is why we need to pursue this legislation, a bright line.

And then, last is the question that the chairman always raises, that this must go through the committee. The committee has been looking at this for 8 years. We have had multiple hearings on this topic. We have had the data. We have talked about it with every service Secretary for the last decade I have been on the committee. We have talked about it with each of the services for the last decade that I have been on the committee, and we have tried to get a vote on this measure, unsuccessfully, for the past 5 years. We have been denied a vote every time in the last 5 years.

So to say now that only the committee can have jurisdiction is not true. They have had their chance, and they have passed close to 250 measures. Those measures have not moved the needle. Those measures are ones that the DOD was comfortable with. They have never wanted this measure. Now we have agreement by the chairman, by this panel, by many of the service Secretaries that, OK, fine, we are with you; we will take sexual assault out of the chain of command.

While that is good, it is not enough because it will create two systems of justice, and you should not privilege just one set of plaintiffs to have a positive, professional, unbiased system.

And given all of the data we have about race and bias against Black servicemembers and Brown servicemembers being punished up to 2.5 times more than White servicemembers, you need to fix the system for everybody.

So back to the argument of our allies, that is why they did their bright line at serious crimes--the equivalent of felonies--so that they could have a justice system that is worthy of the sacrifices that the men and women in our armed services make.

So I ask once again that we can have a vote on this floor. We now have 66 cosponsors of this legislation, widely bipartisan. How many bills in this Chamber are supported by Liz Warren and Ted Cruz at the same time? How many pieces of legislation have been voted on by both Chuck Schumer and Mitch McConnell? Very few. But the reason we have such bipartisan support is we have two female command veterans in this body. One is a Republican, Joni Ernst. One is a Democrat, Tammy Duckworth. They are both on this legislation. They have served as commanders, and they understand the importance of the commander's roles. But they also have seen that nothing has gotten better. They saw the report from Fort Hood that said the command climate was so toxic that it was permissible for sexual assault and sexual harassment. And so they have said enough is enough.

And so when you have so many former commanders and sexual assault survivors from this Chamber supporting this legislation, it is time that it does not need to go through the committee. More than half of our committee supports this. But when we take issues like this to the committee, they have been taken out in conference.

Despite winning the vote in the Senate, despite winning the vote in the House, our bill in 2019 to make sure that a servicemember could come forward and not be prosecuted for minor related offenses, like drinking or being off base--that bill passed in the Senate, passed in the House, and was taken out in conference because the DOD didn't like it.

So I promise you, if we pass this bill in our committee, in the House and the Senate--I promise you--it would be narrowed just down to sexual assault because that is what the DOD will agree to.

I am tired of doing only what the DOD will agree to. It is not our job to defer to the DOD. It is our job as U.S. Senators to provide oversight and accountability over the administration and over the entire Department of Defense.

When we abdicate that responsibility, what we have is what we had for the last 10 years, failure--failure in the committee because we only put forward items the DOD was comfortable with.

I just don't know how much longer we want survivors to have to wait. We have considered this legislation together. We have, every year, sat down, discussed it--pros, cons. Are other reforms working?

I have done that with every one of the 100 Senators in this Chamber every year for the last 10 years. It has been intensely considered, and I spend an extra amount of time with committee members because they are interested.

So this is not new. It doesn't need to go through the committee. We have been denied a vote and filibustered a vote for 8 years and denied a vote for the last 5 years. So I don't know why the committee gets sole jurisdiction. I don't understand.

And, again, how many measures does this Chamber have that have 66 cosponsors?

It is also a generational shift. And when you have something of such import, it comes to the floor. We repealed don't ask, don't tell on the floor. We had two floor votes. The majority leader at the time gave us those votes, and it passed on the floor. It did not go through the committee.

It is time to bring a justice system that is worthy of the sacrifice that the men and women make every day. And you need to have that bright line so it is a justice system that works for women and servicemembers of color because right now we have data and evidence that there is bias against those individuals.

1520 and the Senate proceed to its consideration; that there be 2 hours of debate, equally divided in the usual form; and that upon the use or yielding back of time, the Senate vote on the bill with no intervening action or debate.

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Mrs. GILLIBRAND. Mr. President, two issues: First, the op-ed by Jeh Johnson was not in reference to my legislation. In fact, he conflated my legislation with recommendations from the IRC. He mentioned lawyers in Virginia having to make the decisions. That is not what my bill says. It has never said that, and it is not how it is organized. In fact, my bill is organized by services to adjudicate these cases, as they are doing today.

Right now, prosecutors prosecute these cases, and the decision making of whether to proceed to trial would be given to them in the first instance. If they decline to prosecute, it goes right back to the commander. So, for example, if there wasn't enough evidence to prosecute the case, it would go back to the commander, who could then use a special court-martial or he could use nonjudicial punishment for related or lesser offenses. That is typically what the commanders do in these cases.

So very little changes. But what does change is the perception of the victim who is asking for unbiased review by someone who is highly trained to do that review. It also gives assurance to defendants' rights that the person making the decision is unbiased and is highly and professionally trained.

Those changes change everything. It changes the perception that our military justice is blind, fair, and professional. And that is not the impression of servicemembers today. Both women and men and survivors of sexual assault do not believe that justice is possible for them, and Black and Brown servicemembers do not believe the justice system is fair to them either.

This solution makes sense, and I do not think that we should defer again our responsibility to one op-ed by one former SecDef. That is not our job, and that is not how we should be responding.

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