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“EXECUTIVE CALENDAR” mentioning Kirsten E. Gillibrand was published in the Senate section on pages S4608-S4610 on June 17.
Of the 100 senators in 117th Congress, 24 percent were women, and 76 percent were men, according to the Biographical Directory of the United States Congress.
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The publication is reproduced in full below:
EXECUTIVE CALENDAR
The PRESIDING OFFICER. The clerk will report the nomination.
The senior assistant legislative clerk read the nomination of John K. Tien, of Georgia, to be Deputy Secretary of Homeland Security.
The PRESIDING OFFICER. The Senator from New York.
Mrs. GILLIBRAND. Mr. President, I ask unanimous consent that I be allowed to complete my remarks prior to the recess.
The PRESIDING OFFICER. Without objection, it is so ordered.
Unanimous Consent Request--S. 1520
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.
Mr. President, as if in legislative session, I ask unanimous consent that at a time to be determined by the majority leader in consultation with the Republican leader, the Senate Committee on Armed Services be discharged from further consideration of S. 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.
The PRESIDING OFFICER (Mr. King). Is there objection?
The Senator from Rhode Island.
Mr. REED. Mr. President, once again, I object to the request from the Senator from New York for the reasons I previously stated. I will repeat again: I support removing prosecution of sexual assault and related crimes from the chain of command, but we must take care that we do it thoughtfully, in a manner that does not stress the military justice system or distort it in a way that would affect the efficiency and operation of the military. The best way to do that, in my view, is to consider these matters in the context of the annual Defense bill, which we will be marking up in a month.
Mr. President, I would also point out that this week, Jeh Johnson, who served under President Obama as the Department of Defense general counsel, and then Secretary of Homeland Security, wrote an article addressing the scope of Senator Gillibrand's bill, urging caution that we focus on legislative solutions tailored to address the problem we are trying to solve. And to remind my colleagues, as the DOD general counsel, Secretary Johnson oversaw all legal services performed within the Department of Defense. He advised the Secretary and all government officials on military justice matters and oversaw the annual review of the Manual for Courts-Martial. He is an informed and expert voice on these matters.
During his tenure as DOD general counsel, he was no stranger to momentous change, leading the implementation of the repeal of don't ask, don't tell. As he states in his article, he has long supported moving charging decisions over sex offenses out of the chain of command.
Mr. President, I ask unanimous consent to have printed in the Record this article
There being no objection, the material was ordered to be printed in the Record, as follows: The Military Justice Improvement and Increasing Prevention Act: Are the
Solutions Commensurate With the Problem?
(By Jeh Johnson)
The Military Justice Improvement and Increasing Prevention Act of 2021 is legislation pending in Congress to reshape the manner in which the U.S. military prosecutes sexual assault within its ranks. This is reform that is much needed and long overdue. Notably, however, the bill in its current form reshapes military justice far beyond the context of sexual assault. Congress should take care to fashion a solution commensurate with the problem at hand, and not go too far.
Senator Kirsten Gillibrand (D-NY), the principal sponsor of the bill, S. 1520, deserves credit for her heroic and persistent campaign over the years to highlight the problem of sexual assault in the military. Few others in Congress today could have assembled such a broad bipartisan coalition of 64 co-sponsors behind such an important, substantive piece of legislation, while moving (or, to put it more appropriately, dragging) the top brass at the Pentagon to the same place. From my experience 10 years ago preparing the military for the repeal of Don't Ask, Don't Tell, I know how resistant to change that community can be.
I support Senator Gillibrand's effort to move charging decisions for sex offenses in the military to an independent, trained group of military lawyers. I said as much publicly in 2013. Likewise, almost all retired general and flag officers I speak with today agree that the male-dominated chain of command has failed the victims of sexual assault in the military. They accept the need for change.
But, in its current form, the changes contemplated by S. 1520 are not limited to sex-related offenses. The bill would create an independent body of lawyers, outside the chain of command, to make charging decisions for a broad range of offenses punishable by more than a year's confinement. These include murder, manslaughter, child endangerment, larceny, robbery, fraudulent use of a credit card, kidnapping, arson, housebreaking, extortion, bribery, perjury, subornation of perjury and obstruction of justice. (Notably, other offenses such as receipt of stolen property, forgery and conduct unbecoming an officer are excluded from the bill's reach, but the logic for the distinction is unclear.) In all, if enacted, the legislation would constitute the largest change to military justice since the enactment of the Uniform Code of Military Justice in 1950.
Why are offenses ranging from murder, arson to perjury included in the bill's reach? What is the justification for so large an overhaul? Where is the congressional finding that, when it comes to the broader range of offenses, the chain of command in the U.S. military has failed in its duty to carry out military justice?
Supporters of the bill argue that, once Congress goes down the road of creating an independent body to make charging decisions for sex crimes, it cannot stop; that to limit the creation of an independent body for sex crimes would also create the stigma of ``pink courts'' that appear to exist for the benefit of women. In my view, the exception is warranted, perceptions can be addressed, and the exception should not swallow the rule. In both civilian and military life, the reality is the sex offenses are different, in the manner in which they are reported, investigated, and prosecuted. It should also be noted that victims of sexual assault are both men and women.
Here are several other considerations:
First, as written the bill appears to require a whole new bureaucracy to implement and execute the changes contemplated. No one should be under the illusion that the broad mission contemplated by the bill can be carried by a small band of elite JAGs in a suite someplace in northern Virginia. The bill would require that an independent group of lawyers make charging decisions for a vast range
Mr. REED. I think given the wise comments of not only Mr. Johnson but also the pending recommendations by the Department of Defense concerning this issue, again, the best place to have a thorough, lively debate and amendments, by the way, which are precluded in this unanimous consent, would be in the Armed Services Committee in the context of the annual defense authorization bill. That is where we have confronted and decided these issues historically.
And with that, I would reiterate my objection to the Senator from New York's request.
The PRESIDING OFFICER. Objection is heard.
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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