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tv   Key Capitol Hill Hearings  CSPAN  November 20, 2013 11:00am-1:01pm EST

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professionals who are outside the chain of command but still within the military this change will allow prosecutorial decisions to be made based on facts and evidence and not be derailed by preexisting relationships, attitudes, biases and perceptions. it is our sincere belief that this change in the military justice system will provide the opportunity for real progress toward eliminating the scourge of sexual assault in the military. i am hopeful, madam president, that our colleagues will listen to these collective voices because nobody knows the military and what needs to be done to fix this broken system than they do. listen to listen to the victims who have clearly told us over and over again how a system that only produces 302 prosecutions out of the d.o.d.'s estimated 26,000 cases of rape, sexual assault
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and unwanted sexual contact last year must be fundamentally changed to restore trust and accountability. these men and women of america's military have put everything on the line to defend our country. each time they are called to serve they answer that call, but too often these brave men and women find themselves in the fight of their lives not on some far-off battlefield against an enemy but right here within our own soil, within their own ranks, with their commanding officers as victims of horrible acts of sexual violence. sexual assault is not new, but it has been allowed to fester in the shadows for far too long because instead of the zero tolerance we have heard for two decades since dick cheney used those words in 1992, what we
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truly have, mr. president, is zero accountability. there is no accountability because the trust that any justice will be served has been irreparably broken under our current system. commanders hold all the cards over whether a case moves forward or not to prosecution. there are those that argue that removing these decisions out of the chain of command into the hands of independent prosecutors in the military will diminish good order and discipline. this is not a theoretical question. we actually know the answer to this. our allies have already made these reforms and they have not seen a diminishment in good order and discipline. the u.k., israel, australia, canada, netherlands, germany, all of them have taken the decision making of whether or not to prosecute cases outside
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the chain of command for civil liberties reasons. some in instances of defendants rights, some in instances of victims rights to make their justice system better. we could use a better justice system. we could use that tr-pbs parpb is i and -- transparency and accountability here. we have a unique problem. i think this reform solves our problem. the director general of the australian defense force legal service paul crow anyone -- kronin said australia faced these same arguments. he said it is a little bit like when we opened up the military to gay people. there are those who argue that our reform would somehow take commanders off the hook or that they would no longer be accountable. let me be clear, there is nothing in this bill that takes
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commanders off the hook. they are still the only ones responsible for setting command climate, for maintaining good order and discipline, for making sure these rapes and assaults don't happen, to make sure there is no retaliation if a victim comes forward, to make sure the retaliation climate is sufficient for when they do come forward. actually most commanders never get to make this legal decision. your appellate taopb sergeant, your tkurbs i -- they still have to maintain good order and discipline. they are on the hook and the underlying bill is strong because we make retaliation a crime to give them just one more tool to help them set their command climate. there are those who argue that this reform will cost too much.
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i do not know how you could possibly say that enforcing cases and prosecuting rape in the military costs too much. our men and women in uniform are worth much more. not only do these critics ignore the fact that we already have trained jags serving in our military, they actually ignore the financial cost of sexual assault in the military. the rand corporation has estimated that this scourge costs $3.6 billion last year alone. there are those who say commanders move forward on cases that civilian prosecutors won't. to claim that keeping prosecutions inside the chain of command will increase prosecutions is not supported by the statistics because if you only have 3,000 or so cases being reported and 23,000 cases
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not being reported under the current system, if you change that system and those 23,000 cases start becoming reported cases, you will have more prosecutions. you will have more convictions. you will have more justice. the bottom line is really simple. the current system ernestoed around the -- oriented around the chain of command is producing horrible results and has been producing horrible consults for 25 years. -- horrible results for 25 years. the current structure is producing 1% of cases that go to trial. that is not good enough, not deserving of the sacrifice men and women give to our country every single day. it's also contrary to the
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fundamental values of our american justice system. our justice system relies on the fact that a decision about whether to go to trial is never made on bias. it is always made on facts and evidence. it's not made on whether it's good or not for the commander. it's made on whether or not there are facts and evidence to prove that a serious crime has been committed. for all those that say this is a radical idea and should just wait until next year, the d.o.d. has an advisory panel that actually has opined for the past 50 years on the status of women in the military. that panel called the dacowits, that panel had a vote on these proposals, and they voted in favor overwhelmingly with no one against. of the ten votes that we have, nine are former military. four or high-ranking generals
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and officers. the nonmilitary voice is the head of the women's law center, knowledgeable individuals who are actually tasked by the department of defense, hand-picked by the department of defense to opine on the status of women in the military, and they have voted to support these measures. secretary hagel has even said that he -- quote -- "places a great premium on the voices of this panel." i've not come to the conclusion that we need to fundamentally reform our military justice system in order to strengthen it. but this is a commonsense proposal. it's not a democratic idea. it's not a republican idea. it's just doing the right thing. and if you listen to these survivors, veterans, retired generals and commanders, they believe this change is needed.
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but even our current military commanders at the department of defense do not dispute the problem or the facts or the reason of the problem. commandant of the marine corps, general james f. amos said in his speech earlier this year that victims don't report these cases because -- quote -- "they don't trust us." they don't trust the chain of command. they don't trust the leadership. we have to restore that trust. and if you have too many commanders and too many command climates, the 23,000 unreported cases where that trust is broken, you're not going to fix it by keeping it with the commanders. that is the problem. this is the fundamental problem. listen to chairman of the joint chiefs of staff, general demsey, who said that the military is sometimes -- quote -- "too forgiving." end of quote.
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in these cases, admitting bias in the system towards decorated officers. mr. president, i firmly believe it is our obligation to restore that trust, our fundamental duty as senators, as members of congress to provide the needed oversight and accountability over the armed services. we should not do what the generals are telling us to do. this is our job. every time i meet with a member of the military, i am overwhelmingly grateful for their service, for their sacrifice, for their courage. they deserve better.
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they deserve a military justice system that is consistent with our core fundamental american values of objectivity, of truth, of evidence, of facts and of justice. i urge my colleagues to support our amendment. i yield the floor. mrs. mccaskill: mr. president, i ask unanimous consent that any time spent on quorum call during this debate on the sexual assault issue be equally divided between senator gillibrand on one side and senator ayotte and senator mccaskill on the other side. the presiding officer: without objection. mrs. mccaskill: and i would yield five minutes of senator ayotte's time to the senator from missouri, senator blunt. the presiding officer: the senator from missouri. mr. blunt: i thank senator
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mccaskill for yielding. i want to thank senator mc l0)caskill and senator gillibrand for the effort, time, commitment two things senator step in the right direction is a result of our committee debate o'our committee action. i think i heard the senator from new york say she was supporting the mccaskill amendment which adds even additional things to that. i also am supporting that amendment. it does a number of things that i think make the bill even stronger. it says the commanders will be evaluated based on this as one of the factors, that no longer would this just be something if it happens to come up you talk about it, but the commanders would be evaluated based on what they did to change the command
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atmosphere, what they did to protect people against sexual assault, what they did to create an atmosphere where these things not only don't happen but when they do happen, they are vigorously dealt with and looked to as something that has to be dealt with, and the commanders will be evaluated in that way. there is another layer of review in the mccaskill amendment, if the commander disagrees with something that's happened in this process, they have to kick that review up another level. the so-called good soldier defense, no longer a defense. this is about -- this incident, this assault, this accusation and dealt with solely in that way because of this additional amendment that i think many of us will support that will be added to what's already a strong underlying bill. also, this amendment would allow victims to express a preference, whether they would have this
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pursued in a civilian trial or in a military trial, a court-martial, those are all good additions. i think that's why both -- not why senator mccaskill proposed them but both why the senator from new york and i would be supporting that amendment. i believe that the amendment improves what the committee did, but i think the committee had a full debate and a long debate and vigorous debate on how important it is that commanders be involved. senator mccaskill, my colleague from number, has been a leader on this all her time in the senate. she came to the senate. one of the things in her background was a county prosecutor but specifically a prosecutor of sexual assault cases. i have relied on her judgment as we looked at these issues, and i think her judgment is borne out by so many things we heard in the committee. senator ayotte, who will be here speaking for this amendment and for the underlying bill, for the
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mccaskill amendment and the underlying bill. senator fischer, also on the armed services committee, will be part of that debate. we introduced a bill, the armed services committee did, that has the most comprehensive legislation targeting sexual assault in -- that's ever been considered by the congress. we add to that these important elements of another mccaskill amendment. 26 provisions are in the underlying bill that deal with this issue. it's among -- it was among the most difficult decisions i think we met but also one of the most important decisions that we met. the idea that commanders would have responsibility for the atmosphere they create, one of the things that was mentioned more than once was what finally happened as we integrated the armed forces. president truman, i stand here by his desk, one of our predecessors in the senate from
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missouri was -- signed the order that integrated the armed forces. president eisenhower pursued that further, but only when the command structure was given absolute responsibility to deal with what had become a real possible, as there were even race riots on ships, according to senator mccain, who talked to us about this. it was when the commanders were given the responsibility to see that this problem was solved that it was solved. i think this bill and the additional amendment that i will be supporting, the mccaskill amendment really clarifies in new ways how important it is that commanders accept this as part of their command responsibility. the numbers that senator gillibrand talked about are totally unacceptable, totally unacceptable, and one of the things that commanders will be evaluated on in the future will be what they did about changing that environment. i think actually taking them out
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of the command responsibility in this area, in my view, makes it less likely, not more likely, that the atmosphere will change. then you're down not just to the atmosphere -- one additional minute? since senator ayotte is not here to object, i will just take it from her time if no one objects. the presiding officer: no objection. mr. blunt: but the fact that this is in the bill, further improved, i believe, by the amendment, but clearly says that we're going to change the culture in the military, and that would not be nearly as far along as it is if it hadn't been for the hard work of my colleagues, particularly senator mccaskill and senator gillibrand. they are here on the floor talking about a difference of opinion, not on solving this problem, because we all believe this problem is going to be solved. i think we all believe the bill takes a step, a significant, strong step toward doing that. i think most senators are going to agree that the mccaskill amendment adds another element
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there, and i'm glad that the defense committee, the armed services committee and now the united states senate is taking additional steps to solve this problem. it's a tragedy for every military in the military, man or woman who has been the victim of a sexual assault, reported or not. whatever we can do to see that they are reported and they are minimized and that they are ended is what ought to happen. i hope this bill does that. i believe it does. i was pleased to be part of bringing this bill to the floor, and i will be pleased when i think the mccaskill amendment will be added to it today and we face a new view of how this issue is dealt with, and i would thank the senate for the time. mrs. mccaskill: mr. president? the presiding officer: the senator from missouri. mrs. mccaskill: i want to thank senator blunt for his hard work and his issues on the armed services committee as we tackle this issue that we have an
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emotional issue for the right reasons. i want to thank senator gillibrand. we both want fundamental reform. we both are working as hard as we can to get it. we have a fundamental disagreement about how best to obtain that goal, and i'd like to go through some of that disagreement for the next few minutes. the 26 historic reforms that are in the bill are going to make our military the most victim-friendly criminal justice system in the world. in no other system does a victim get their own lawyer. in no other system will they have the protection and the empowerment and the deference that we are creating for them in this bill. my years of experience handling these cases, hundreds of them with victims, i would have given anything if that victim had the confidence of independent advice. i think it would have made a tremendous difference in the staggering number of victims
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that refused to go forward. this is the most personally painful moment of anyone's life. and make no mistake about it, no matter what we do in this chamber and no matter what this bill accomplishes, we will never be able to get every victim to come forward because of the nature of this horrific crime, but we have to do better. like senator gillibrand, i have talked to dozens and dozens and dozens of victims. i have talked to prosecutors, spent hundreds of hours with prosecutors, military prosecutors, women and men, veterans, commanders, active and retired, and just like there is not agreement among all the women in this chamber, there is not agreement among all the victims, there is not agreement among all the veterans, there is not agreement even among all the
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commanders. although most women commanders have acknowledged that even though this sounds seductively simple, it is much more complicated and we will create even more problems than we will be solving if we make the change that is advocated by senator gillibrand. let's get at what we're trying to do. we have no disagreement that there are too many of these crimes and that they are not reported enough. complete agreement. the goal here is how do we get more reporting? there is a theory that if we do this, if we take this decision away from any command at all to go forward, that that will magically have victims come forward. senator gillibrand talked about our allies. i am grateful that we have their experience, because we can look
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and see what happened. our allies have done this, and not in one instance has reporting gone up. we know this is not the silver bullet because if it were, you would have seen an increase in reporting in all the countries that have adopted this system, and we know the response systems panel that was put in place by the armed services committee to recommend to the pentagon changes in this area, we know they have formally acknowledged that our allies, many of whom did this to protect defendants' rights, have not seen an increase in reporting. and if the theory is that reporting can only go up if we do this, then why are we seeing a spike in reporting right now? 46% increase just this year over last year.
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that is because some of the military are already putting in the reforms that we are codifying in the underlying bill. they are giving victims their own lawyers. they are ramping up the protection and information and deference they give victims. that is the single most important factor based on all of my experience that will dictate whether a victim has the courage to come out of the shadows. and then finally that somehow doing this will stop retaliation. that unit's still going to know that that crime was reported. and keep in mind that currently an under our reforms, the victim does not have to report to the chain of command. right now, the victim does not have to report to the mccain of command. many of my colleagues -- to the chain of command. many of my colleagues don't realize that. under our reforms, they will immediately get a lawyer and have that level of protection
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immediately. and they will have the information that they don't have to report in the chain of command. but i'm trying to understand how reporting and investigating and deciding a half a continent away a group of lawyers making that decision somehow stops retaliation. how does that keep the people from your unit from acting inappropriately towards you because you have reported a crime? there is nothing magical about that. in most instances, the word will get out. in most instances. and use common sense. you're back in your unit, you have been assaulted. why way are you going to have more protection? if a group of colonels a half a continent away are looking at the facts of the case or if your commander has signed off? of course if your commander has signed off because that sends a
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message to the unit we're getting to the bottom of this. and probably the most telling fact about this debate is is this happening now, because now outside investigators investigate these cases and outside jags make recommendations. we have that in our system now. so the question is if these outside lawyers are recommending that we go forward based on their independent investigation, are commanders shutting them down? are commanders saying we will not go forward? no one can find me a case where that happened. where the prosecutors said we need to go and the commander said no. on the other hand, over the last two years, 93 separate times has the outside lawyer said, you know, this case is too weak,
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this case doesn't have enough facts. 93 times. and you know what happened in every one of those cases? the commander said we're going to get to the bottom of it. so almost 100 victims in the last two years would not have had their day in court under senator gillibrand's proposal because in senator gillibrand's proposal, when the lawyer says no, it's over. whereas in our proposal, if this were to ever happen, even though we know this is not a problem now, we have review after review after review. no one is going to be able to turn a victim away from her day in justice without accountability, checks and balances and oversight. and there will be a difference in that unit ruse now
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retaliation is a crime and the commander is going to be evaluated on how they are handling this issue within their command. there are also practical problems, and some of my colleagues will come to the floor today and talk about this, but there are a number of implementation issues that i don't think have been thought through. and this is real world here. we're talking about appeals and challenges. we're talking about not even having enough colonels, 06's right now to staff this. we're talking about risking the ability to get a speedy trial. we're talking about eliminating the ability to plea bargain. and let me just tell you, mr. president, having handled these cases, i think people sometimes make the assumption that a plea bargain is about copping out, it's about not protecting the victim. i can tell you -- talk about
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stories of victims. i can tell you story after story of real people that i dealt with that came forward, said yeah, i think i can do this, and one woman i'll never forget came to me and said my mental health counselor says testifying in court will set me back so far i can't do it, but can you get something on him? can you get something on him? and in those instances, do you think that defense lawyer is going to plead to a sexual offense? or even a serious offense? but we were many times able to get something on him so that we the next time if it happened we at least had a better shot. many times, plea bargains are dictated by victims. the practical way this will be implemented, it is a -- and these are military prosecutors telling me this, that it will really limit their ability, create serious due process
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concerns. in her proposal, this outside lawyer picks everybody, picks the defense lawyer, picks the jury, picks the prosecutor. now, how is that going to stand up to a due process claim? it's not clear who picks the judge. that's left silent. i don't know who picks the judge. it is not clear. that's another question. who's going to decide who is going to actually pick the judge? it eliminates the option of nonjudicial punishment. take the case of the air force airman who was just recently tried in the civilian courts. he was initially charged with a sexual offense. it was reduced to a simple assault. now, if that had been within the military, they couldn't have done that because it wasn't a serious offense, so it goes back over to the convening authority within the command and then the command -- that soldier knows they're not going to do a trial,
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they can't, and all he has to do is turn down nonjudicial punishment. some of these difficulties will be explored in more detail, as i say, throughout the day. but here's the one i don't understand. if you believe deeply in the policy that you are advocating, why in the world would you pro actively limit the act to resource it? in the language of the gillibrand amendment it actually says there shall be no funds authorized for this, no personnel billets authorized for this. and the military has estimated over $100 million a year just in personnel costs because they have to create a completely different system outside the system they currently have, which will still be operative for some offenses that are related to the military and that are low-level offenses but we have to have a whole new system for arson, for murder, for
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sexual assault, and yet she proactively in her amendment says we can't resource it. that is truly one that makes me scratch my head. there is a lot of problems surrounding this amendment, but let me emphasize our goals are the same. and our motives are pure. we believe and we believe this is borne out by the data, we will have more prosecutions because it will be very easy for lawyers a long way away, overworked, underresourced to say, you know, this is a is consent case, it's a little messy, everybody was drunk, let that one go and then it's over. let me briefly talk about what we have in our amendment because
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it's also very, very important. once again empowering victims further. in our amendment we're going to allow victims to formally weigh in whether they would prefer, if there is concurrent jurisdiction for the civilian authorities to handle the case in addition or whether they would rather the military authorities handle it. it strengthens the role of the prosecutor because it provides another layer of review over the prosecutor's decisions. it increases the accountability of commanders making this evaluated on their forms and adding that other layer of review. and it eliminates the good soldier defense. it is irrelevant whether someone is a good pilot if they have sodomized or raped someone in the military. and our amendment will make it irrelevant and inadmissible. i want to thank the president for the time. i know we have others that want to visit on this, i will be happy to be back later in the
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day to talk about specifically some of the other issues in this bill. i do not see anyone else here right now so i would suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call: a senator: mr. president? the presiding officer: the senator from new york. mrs. gillibrand: i have nine unanimous consent requests qst -- the presiding officer: the senate is in a quorum call. mrs. gillibrand: i ask that the quorum call be vitiated. the presiding officer: without objection. mrs. gillibrand: i have nine unanimous consent requests for committees to meet during today's session of the senate. they have the approval of the majority and minority leaders. i ask unanimous consent these requests be agreed to and that these requests be printed in the record. the presiding officer: without objection. mrs. gillibrand: i also ask unanimous consent that my military fellow bridget burns be given floor privileges during the consideration of the national defense authorization bill. the presiding officer: without objection.
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mrs. gillibrand: as we wait for our colleagues to join the floor so they can have their floor time, i just wanted to address a few of my colleague's concerns. some of the technical concerns that she raised we actually took some of those concerns and revised them in the bill that's been presented so some of your concerns have been actually fully addressed. so, for example, her concern about the convening authority and did the disposition authority our bill is very specific. the disposition authority is the decisionmaking authority. that goes to the trained military legal prosecutor, the jag counsel so they get to make the decision about whether or not to proceed to trial on the evidence. but the convening authority which is a different right, a different duty, is left intact as it is so the convening authority is still with the side judges, juries, all the details of what the court and the trial will look like. it's two separate authorities in two separate places. that's been clarified in the bill so there's no concern there. one other concern that my colleagues raised is this issue
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of nonjudicial punishment. our bill is very specific. we exclude 37 specific crimes including all article 15 crimes, all of the crimes that you would be using nonjudicial punishment to enforce, and if the disposition authority decides that they do not want to prosecute the case but a they don't have enough evidence to go forward it goes directly back to the commander to use the benefit of the nonjudicial punishment to do whatever punishment he or she thinks is appropriate. so those are just two technical issues that she raised and i think that are very important to clarify. and then the third issue that senator mccaskill raised that i think is a misunderstanding of the bill is about this world away problem. today in obviously compared to the current system, you can report anywhere, you can report to your chaplain, to your friend, to your nurse, to the
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doctor. you can report anywhere. that's not changing. your reporting is exactly the same. what also is exactly the same is the investigation. see witness you do report whether you report to your chaplain or commander, investigators will be sent to investigate the case whether in iraq, whether in afghanistan, whether you're in germany, whether you're anywhere. that stays exactly the same. it doesn't matter this world away because the investigators go to you. it's not a different set of investigators, it's the exact same set of investigators and the commanders are still upon to -- responsible to make sure those investigators do their job. the commander has to be making sure the unit is not recal tal rating against hmm -- retaliating against him or her, has to make sure that the command climate stays strong and that there is good order and discipline. that never changes. those commanders are always responsible for good order and discipline and command climate. the only difference under this bill is after the investigation is completed and there's a
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file, a file of evidence, it doesn't go sit on an 06 commander's deivelg. an 06 commander is colonel and above. he may not even be in afghanistan or germany, may not be exactly where the crime has occurred. the 06 commander will look at the file and decide has a crime again committed, is there enough evidence to go forward. instead of that commander making that decision, this bill proposes that it will be a trained military prosecutor. so it doesn't matter what desk the file goes on, what does matter is the desk of the person whose desk that file goes on is objective. what matters is that person is actually trained, unders the law, the nature of the crimes, can weigh the evidence and make a decision based on the evidence, not whether he likes or doesn't like the victim or values or doesn't value the perpetrator. those biases is what is affecting the system negatively today. so that is why the world away is not -- is not a concern because
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the investigation proceeds exactly as it ever has been. the only difference is whose desk it goes on to make the ultimate legal decision. and then last, back to this issue of whether commanders are being held accountable. commanders are held accountable. we actually have it in the underlying bill. not only is retaliation a crime they will be measured as senator blunt said whether their command climates are strong. is your command climate strong enough to be sure these rapes aren't happening, so that retaliation of a victim doesn't happen. it is -- is your command strong enough that victim or she believes that justice is possible. so they're going to be evaluated. commanders will be he would hel held accountable. i don't think it's appropriate to hold the commander accountable whether he weighs the evidence properly. that's a legal jument. it's not whether you're tough or not tough, it's based on whether there is enough evidence to show a crime has been committed. it should be a technical legal decision, not a decision based
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on how tough you are on crime. it's not the measurable. so commanders will be held accountable for their command climate, for good order and discipline and whether they make a legal decision at the colonel level is not determining whether they do their job. and the commanders who make the legal decisions today, they're not doing a bad job. of those 3,000 cases reported, one in ten went to trial, not a terrible ratio. the ones they do choose to go forward, 95% conviction rate. and yes, i agree in those hundred cases where commanders said 3406 forward, the conviction rates weren't as highway high. those are excellent opportunities for the victim to be heard but we don't want just a hundred more cases going forward. we want tens of thousands of cases to be reported so they have a chance to go forward. it's the difference, the difference of thousands and that's why i feel this reform is so necessary. still in light of all the
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amazing reforms in the underlying bill i still think it's necessary because that crisis of confidence is so raw, is so real, is so present. i suggest the absence of a quorum. the presiding officer: the senator from virginia. mr. kaine: rise to speak about the ndaa which is currently on the floor. i want to address a couple of issues, an issue that i'm fashion pation national about, the veterans' unemployment rate, shipbuilding issues, the critical issue of sexual assault and misconduct and finally sequester. but before i begin let me talk about how important this bill is. this is a bill the senate has passed every year for over 50 years. we pass it every year even if we can't pass a budget, can't do other things because it's so critical that we show those who serve in the military that we're behind them. i've heard some indication even the last 24 hours because of so many amendments might be possible on this bill would that call into question whether we
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might be able to keep our streak going. if we have to be here christmas day, we need to be on the floor christmas day to make sure we pass this bill before the end of the year. it is that important. it is the most important bill that comes before this body and we need to do everything we can to guarantee the certainty to those who serve. in virginia we are so connected to active duty service and our veterans, my wife and i are a blue star family, this is very important. we have to pass this bill. let me start with personnel issue that matters a lot to me, the veterans unemployment rate. right now it is unacceptable that veterans especially enlisted to served in iraq and afghanistan have an unemployment rate that's higher than the national average. a report that was issued last week by the bureau of labor statistics states that unemployment rate for veterans who served since 9/11 remains around 10%. higher than nonveterans of the same age. 10% represents 246,000
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individual veterans of that era who want to work but don't have it. that's why i introduced as my first legislation in april the troop talent act of 2013, a companion bill on the house was introduced by representative tammy buck worth. -- tammy duckworth. it's been incorporated in the armed services committees, they're on the floor virtually identical and it's a strategy to deal with our veterans unemployment rate making sure active duty military receive civilian credentials for the skills they obtain in the military the moment they obtain them. my colleagues on the armed services committee were good enough to include in the underlying bill this bill will help us deal with veterans' unemployment rate. that's one of the reasons i so much want to get to it and i'm so strongly supportive. second, shipped building. mr. president, you and i have a real interest in this topic all a all americans do, it's of great importance to the state. in virginia we manufacturing the largest items on the planet earth which is a nuclear aircraft carrier in newport
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news. as the defense department reorients strategy towards asia we have to find the navy bearing more and more of the operational burden and that policy shift and we have to continue to provide the navy with adequate resources and funding through this provision to support that shift and to support shipbuilding. unfortunately, sequestration and i'll finish with sequestration in a minute, poses grave dangers. we need to do what we can to maintain this priority for shipbuilding. right now the sequester has reduced our normal level of three carrier strike groups and three am tbib yus groups to which weakens our readiness in a challenging word world. we have to maintain the priority. the ndaa does that. another reason i support that. 2014 will be re78d as a potentially historic year for the military. i want to make sure that history that's good is not clouded by our continued inability to
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reduce the issue of sexual assault. in 2014 secretary hagel embraced the proposition that women should be able to serve in the military without being barred from any military specialty, that they could rigorous training criteria but that both men and women should be able to compete to serve in any military specialty even combat-related specialties in the military, we will be remembered, 2014 within remembered for that. but that memory will fade if we're remembered for missing an important opportunity to tackle the issue of sexual assault. i congratulate senators gillibrand and mccaskill for all the great work they've done to bring this to the attention of the body and look the military in the eye and said it this has to stop. they've said it would stop for 20 years.
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this has to be the moment it stops and these senators working on the armed services committees have have put together a sizable package of reforms that i'm confident will help this time be different. i also want to thank the brave victims who testified. i went to every hearing in the senate on these sexual assault issues. senator gi -- senator gillibrand had a hearing, senator levin had a hearing. i was there for nearly that entire full-day hearing. committee markups in the subcommittee of personnel and the full committee. i have a been to all the meetings and i have heard these victims testify and how brave they are as survaifers to come afford and self, and i also thank survivors in virginia who've come and shared their stories with me personally so that i could grapple with what is the right mix. these survivors have done a wonderful job in making sure we address this issue. i tackled the issue of sexual assault in a way when he was governor. we were treating victims of sexual assault poorly in virginia. there was no excuse for if.
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so i impaneled a group of advocates and survivors to look at virginia law and tell us what we needed to change, and one of the problems with sexual assault is together with domestic violence, it is often a very underreported crime. somebody breaks into my applicant, i don't hesitate to -- somebody breaks into my apartment, i don't hesitate to call the police. but crimes of sexual assault and crimes of domestic violence -- and there tends to be an overlap -- are crimes where there is underreporting, both civilian, military, on college compasses. one of the most important things you have to do in any reform is create an environment where people feel like they can come afford with a complaint. the statistics are well-known. they have just been cited on the floor, by a statistical sampling, it has been estimated 26,000 instances of unwanted sexual conduct, sexual assaults
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in the military, only 3,000 reported. we have to make sure that these reforms that we are about to embrace help us deal with this reporting issue so that people feel a sense of comfort. what we realized in tackling these issues in virginia is that for people to feel comfortable with reporting sexual assaults, they have to have time. you can't make the them make the decision about reporting. there needs to be privacy and discretion and confidence, and there also needs to be advice and resources. people need to know, what are the avenues they have, what are the legal procedures, how do they look and what their rights are if they decide to pursue a complaint. i support the ongoing bill that's on the floor -- and i'll support some other proposals that are out -- the mccaskill-ayotte proposal i'll support. i support the reform for a umin of reasons. it affects the training and evaluation of military personnel. it effec affects the way sexual
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assault allegations are investigated, the way they're prosecuted and the way they're punished. it protects witnesses. an amendment that senator warner and i got into the bill protects whistle-blowers who blow the whistle on an unfortunate or sexually harassing climate. the most important part of this bill is what it does for anyone who's been victimized by a crime of sexual assault to create a climate where they can come afford and lodge a complaint. in the military right now, there are a number of avenues whereby somebody had a to be victimized bay crime of sexual assault can lodge a complaint. unique in this form of crime, there is a restricted report where someone can come afford and report confidentially. this adds to it what i think is the core of driving up the reporting. it adds something unique in the military. it would exist for no other offense category.
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in someone complains of a sexual assault, they will be assigned a special victims' counsel whose job it is to have their back, to hear the painful story, to share the various report being mechanisms, counseling resources that are available, how the crime might be prosecuted. and at every step along the way, as that victim is becoming a survivor and dealing with the challenge, that special victims' counsel will be there to help them make decisions and give them the support they need. this is based on a pilot in the air force, a pilot project in the air force that is working. and what we're finding, based on this pilot project in the acres o-- inthe air force, is even whn people file reports in a restricted confidential, they come in and say, i want to fail a report but i don't want to go against the perpetrator, i just want help, after they get a special victims' advocate and learn about the proceedings and protections and they build up a
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bond with somebody who has their back, they're very likely to say, now i have the confidence to actually file my complaint publicly and take on a perpetrator who needs to be taken on cialtion who needs to be drummed out of the military if they committed a sexual assault. and so i believe the core of this -- getting this right is about giving victims an avenue where they can have the time, they can have the advice, they can have the privacy and discretion to understand what their options are and make a decision to go afford. i think if we pass this bill, with that special victims counsel, this will be the single-best thing we'll be able to do to tackle the crime of sexual assault. finally, let me just conclude, mr. president, and say a word about sequestration. you know, we've -- for a word that none of us knew before the beginning of 2013, this word has been spoken so many times on the floor of this body. no one intended for sequestration to happen when the votes were cast in the summer of
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2011. everyone was told across-the-board nonstrategic cuts to health care, domestic accounts and to defense would be harmful to us, and we've seen the harm that sequestration is doing to our nation's military, at a time when our military is getting mured and more dangerous -- is getting more and more dangerous. indiscriminate across-the-board cuts is not only hurting all kinds of military priorities, it's also sending a signal to young men and women who are thinking about military careers or who are in the military and deciding how long they want their careers to be. it's sending them a signal that congress doesn't value what they do. we need to show the men and women of the military that we value what they do. we need to show them by getting an n.d.a. bill done this year. we need to show them by ending sequestration. will there be savings in defense spending? of course. we ought to determine whether we can do better and save money.
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but this across-the-board sequestration that's grounding our combating wings, that's grounding carrier units, there's making us less able to confront a more challenging world is not behavior befitting of the greatness of this nation. i'm a budget conferee right now. we are under a senate and house-imposed deadline to try to find that deal by december 13, so the appropriators can work on a budget. we will work diligently on that. i have an optimistic sense about finding a budget deal that enables us to replace this foolish sequestration with a more strategic approach that will not hurt our military. mr. president, i thank you for the time, and i now yield the floor back. and i suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:
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mr. kaine: mr. president, could i ask that the quorum call be suspended. the presiding officer: without objection. kane canaled like to get unanimous consent for sergio and eric, two detailees from my office shall to be granted floor privileges for the pendency of the ndaa2013. the presiding officer: without objection. mr. kaine: thank you. i suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call: mr. blumenthal: mr. president, i ask that the quorum call be lifted. the presiding officer: without objection. mr. blumenthal: thank you, mr. president. i want to, first of all, thank the chairman of the armed services committee and the ranking member, senator levin and senator inhofe, for the leadership they've provided to
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this body and to our nation in fashioning a bill, the national defense authorization act for fiscal year 2014, that truly serves our national security and preserves and enhances our national defense. and i want to thank my colleague, senator mccaskill, for the leadership that she has provided along with others like senator reed and senator gillibrand, all who have focused on the issues that are raised by the military justice improvement act, the need to reform and strengthen our system of prosecuting and providing justice to the survivors of sexual assault. i have joined with senator gillibrand in supporting the military justice improvement act because i think it embodies the kind of major reform that is
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necessary to provide enhanced confidence and trust in this system of military justice. major change that is needed to drive out the scourge of military sexual assault from our armed forces and provide the men and women of our military the strongest and best military in the world now and in the history of the united states with a system of military justice that matches their excellence. the legislation before us, the national defense authorization act for fiscal year 2014, provides much-needed equipment and training needed by our war fighters. it keeps us dominant across the globe and all of the domains that are necessary for our national defense.
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it authorizes two new attack submarines for the coming fiscal year, and it keeps us on track for developing the next generation of ballistic missile submarines. these weapon systems, these weapon platforms, and all that is contained in this act are vitally important for the defense of our nation, and the debate about the military justice improvement act should, in no way, distract us from that mission to maintain and enhance the defense of the united states. this bill enables the air force to move afford with a new combat rescue helicopter that will take injured airmen and others to safety. in june i wrote with myself of my colleagues to general mark welsh, the ai air force chief of staff, to support the air force
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in its efforts to replace the current fleet of hh-60 (g) with helicopters that can carry more and go further, all the while keeping fuel efficiency and value that the h-60 aircraft provides. this legislation keeps our progress under way in the development and fielding of the joint strike fighter that will assure that our air force, navy, and marines are ready to respond. this bill has so many critical and valuable elements that should be at the forefront of this debate and evoke appreciation for senator levin and senator inhofe and the work done by my colleagues on the armed services committee. so i'm proud to support this bill. but, at the same time, congress
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has a responsibility to transform the time-worn slogan of zero tolerance for military sexual assault into a real plan and strategy that will achieve that goal. for years and years, the military has promised zero tolerance toward sexual assault. and yet the actual achievement has fallen short. and that is why reporting has been so low and why the crime of military sexual assault is not only underreported by underprosecuted. the goal of the military justice improvement act is to improve reporting, because without reporting there can't be investigating and there can't be prosecution, which means there can be no punishment and no
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prevention and protection. those are the goals of this major reform: better reporting, an enhanced prosecution to deter this horrific crime, and to make sure that victims are better-protected and the crime itself prevented. this bill requires the secretary of defense to afford victims of crime prosecuted under the uniform code of military justice rights -- such as protections from unreasonable delay and the right to be heard. this bill gives those protections, even without the military justice improvement act. it also obligates the secretary of defense to ensure these rights are enforceable and it affords every victim a special victims' counsel. again, measures on which there is consensus provided in the
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bill right now. and i'm pleased in response to my request to the defense appropriations committee, when this provision is authorized in this legislation there will be $25 million appropriated to stand up this program systemwide and defensewide. so the legislation before us has many good things even without the military justice improvement act, and i am proud of the reforms that are accomplished in this bill on which we agree. where we disagree is on the proposal to take prosecutorial decisions out of the chain of command. and that is a narrower change than many people appreciate because the rest of the system, which is required for the present command and control
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authority, would be essentially maintained. what is taken out of the chain of command is simply the prosecutorial decision so that an experienced, trained, objective professional can make those decisions. and i really believe that this measure if it's adopted as i hope it will be, will lead the military at some point -- those commanders who may resist it now -- to actually thank the united states senate and the congress for taking these decisions out of their hands so that they can focus on the incredible challenges of military readiness and preparedness so that they can do what they are trained to do, which is to train their men and women and maintain and enhance our readiness so that they can
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do professionally what is their prime mission, which is to fight wars and defend our nation. these decisions about prosecuting sexual assault cases can be better made by trained, experienced prosecutors who have the expertise in their field, that our military commanders have in their field. and i think it will serve the entire interest of our military to make sure that these decisions are made by those military professionals in j.a.g. offices just as they are trained in other areas of expertise that require that kind of training. i am listening to the voices of victims as to what will enhance their reporting, and eliminate their fear of reprisal and
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retaliation. on monday i was joined by four survivors of military sexual assault to discuss the need for reforming military justice, and i want to express my appreciation for army staff sergeant sandra lee, army sergeant cheryl eberg, air force staff sergeant patty duman and marine corps of engineers ral -- marine corps corporal patty freedman each demonstrating that it warrants the improvements in the military justice improvement act. marine corps, corporal friedly who was sexually assaulted in 2006 while attending the school of music. she pressed charges against her attacker and requested an unprestricted investigation and i will now read her words into
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the record. i went and i'm quoting, i went to an ncis investigator who questioned me about the day i was attacked and after hearing my testimony told me that i would have to take a lie detector test to ensure that i was not filing falsely. i agreed to it. but i was never asked anything by my investigator again. my chain of command made it very clear that they preferred my attacker, who was a platoon leader, and supported him through everything. when i graduated from the school and went on to my duty station in san diego, california, my new chain of command tried to help me find out what had happened in my case as i had not heard about it for several months. a few weeks passed before we found that my paperwork had been
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mishandled and i was told that nothing could be done and my attacker would go out to the fleet. eventually it was found that he had sexually assaulted several other women and he was administratively separated from the corps, not just and not given a dishonorable discharge. her remarks say more than i ever could about the need for enacting the military justice improvement act. the reforms contained in the measure already are a vitally important step in the right direction. taking these decisions out of the chain of command are important to good order and discipline because eliminating the crime of sexual assault and providing for greater reporting is vital to good order and discipline. our experience shows that it has worked when our allies implemented it. and whatever the claims about numbers of cases reported in
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those allies' armies, clearly they are satisfied with the way it has worked there. and finally, let me just say i appreciate the bipartisan efforts on this bill on both sides. i think that eventually we will see this kind of reform, whether it is approved today or not, history is moving in this direction, demanded and driven by the brave men and women who have suffered from this crime, the survivors and victims whose voices we have heard, and the commanders and veterans who have come forward to us, all of the major veterans' organizations who have made their voices heard to us and who wholeheartedly
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have said this kind of reform is necessary to vindicate and support the brave men and women who put their lives on the line for our nation day in and day out, whose excellence should be matched by a military justice system that truly and really looks for zero tolerance and achieves zero tolerance in sexual assault. madam president, i yield the floor. a senator: madam president? the presiding officer: the senator from oregon. mr. wyden: plapts, madam president, before he yields the floor i want to commend my colleague from connecticut in terms particularly -- and i'm going to go into some of the history with respect to this so-called zero tolerance, you know, policy, because i think when you look back over history there is a very big gap between the
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past pledges of zero tolerance for sexual assault and the realities of what we have seen. and i think that's one of the key points that the senator from connecticut has made, among many others, and i thank him for it. it was a very valuable presentation. madam president, i also want to commend the president of the senate for her extraordinary work on this. again and again she has outlined what i think is very constructive, and that is the areas where there is common ground here, common ground to try to address an issue that, as i just went through with senator blumenthal, we've heard past pledges about and that hasn't really come to be. and the president of the senate has done very fine work on this, senator gillibrand, senator mccaskill, senator ayotte, i know the best, but a
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whole host of senators have been interested in this and i also see my friend from rhode island here, senator reed. he and senator levin have been very interested in this issue over the years. so there's been plenty of good work here, and i think the question, you know, really now is how are we going to make a fundamental break from policies that over the last couple of decades simply not have worked. i mean, you go back to the tailhook disanl. this was -- scandal. this was in 1991 over the course of a four-day conference in las vegas, more than a hundred naval and marine corps aviation officers sexually assaulted 90 victims. we watched the secretary of the navy resign after tailhook. his replacement said -- and i quote -- "sexual harassment will not be tolerated and those who don't get the message will be driven from our ranks." then there was the aberdeen
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debacle. five years later, five years after, madam president, we were told that this would not be tolerated, five years later you have the aberdeen debacle. army secretary togo west delivered remarks to the armed services committee titled "thrtz a problem and -- there's a problem and we mean to fix it." once again years go by and you have another such problem. that was the 2003 scandal at the air force academy where 19% of women cadets reported having been sexually assaulted and 7% reported being the victim of rape or attempted rape. the air force secretary told congress -- and i quote -- "we will not tolerate in our air force nor in our academy those who sexually assault others, those who failed to act to prevent assaults."
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so, again, we heard and certainly i'm not here to doubt the sincerity of those who made, you know, those comments, but yet the pattern just continues. you have a horrible, horrible set of sexual, you know, assaults, not just one but multiple ones, you have these pledges for zero tolerance and yet you just have one event after another, and after the 2003 scandal again the pledges of zero tolerance, you had the joint base san antonio-lackland scandal where where some 30 training instructors were accused of improper relations with trainees to sexual assault and rape. in response the secretary of defense said, as so many of his predecessors in the military said -- and i quote -- "the
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command structure from the chairman on down have made very clear to the leadership in this department that this is intolerable and it has to be dealt with. we have absolutely no tolerance for any form of sexual assault"-- unquote. so the pot earn through all of -- the pattern through all of these instances, madam president, is zero tolerance. quote -- "we will fix this." and these comments as i say, don't question the sincerity of those who made them. these were officials in the military who have served their country with great distinction and great valor, but the bottom line is the bottom line. when they said there would be zero tolerance, somehow those policies didn't actually work as it related to the real life for those who wear the uniform of the united states. so today, madam president, the military officer in charge of
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sexual abuse education at fort hood is under investigation for running a prostitution ring, two navy football players await trial on charges of sexual assault, and today west point sergeant stands accused of secretly video taping female cadets in the showers. so it seems to me that because of the good work of so many here -- and i cite the president of the senate, senator reed who is managing the bill at this point, senator gillibrand, senator mccaskill, i think we are now in a position to finally make some significant changes and turn these past pledges of zero tolerance into a new reality that really ensures that those who wear the uniform of the united states do have a new measure of protection from sexual assault.
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so in effect it's a new zero tolerance policy, madam president. a new policy that says zero tolerance for promises that go unfulfilled. zero tolerance for a culture in which these assaults are treated as something less than the violent crimes they are. zero tolerance for a system that continues to fail so many. now, the pentagon estimates that in 2012 some 26,000 service members experienced sexual assault. and some, i know, have looked at this issue as sort of a glorified hazing kind of matter, boys being boys, discipline issue, but i think senator fischer, one of our colleagues who has come to the senate most recently, has been correct to point out this is not a gender issue. this is a violence issue. and it's a violence issue because sexual assault, it's
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called sexual assault assault for -- it is called assault for a reason. it is assault. it's a violent crime that involves control and domination and it's also worth noting that somewhere in the vicinity of close to half of military assault victims are men. in fact, the department of defense estimates 14,000 of those 26,000 victims last year were men. so, madam president, i know colleagues are waiting to speak, and i would simply wrap up by way of saying that i think the bill -- the committee bill takes some constructive steps in the right direction. i'd like to see it go further. it's why i've joined a bipartisan group of colleagues to support senator jil. mrs. gillibrand: brand's legislation-- --it's why i've joined a bipartisan group of colleagues to support senator jill brand's legislation. suffice it to say, we are going
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to come to grips, colleagues with this question of assault and particularly sexual assault in a variety of forms. this is not the place to discuss it but yesterday senator cornyn and i and senator klobuchar introduced a fresh approach to dealing with sex trafficking, which is also sexual assault. so there will be an opportunity to disa discuss that bipartisanl in the future. but i know colleagues are waiting. this is the time. this is the time to close the gap, madam president, between all of those unfulfilled promises about how there would be zero tolerance for sexual assault and a new reality that affords a new measure of protection from sexual assault for those who wear the uniform of the united states. that's the opportunity we have in the senate today. that's the opportunity we have to achieve that goal in a
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bipartisan manner. and, with that, madam president, i yield the floor. a senator: madam president? the presiding officer: the senator from rhode island. mr. reed: thank you, madam president. when sexual abuse occurs in a military unit or when a service member is a perpetrator or victim of sexual assault, we have failed. certainly the military has failed. but congress with its constitutional mandate to make rules for the government and to provide for disciplining the militia shares in that failure. that is why the efforts of senator mccaskill and senator gillibrand and indeed all of thigh colleagues are so important and so commendable. they have elevated this debate and challenged this congress and our military to act. they have recognized through their passionate advocacy that sexual abuse not only is a violation of an individual, but it is a corrosive force that can
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undermine the trust that is essential for the functioning of any military unit. the essence of military service is selfless service in which every soldier, sailor, marine, and airmen must be prepared to give his or her life for their comrade. sexual abuse is the a antithesis of that. it represents predatory behavior and exploitation, not selfless sacrifice and protection of those you serve with. it has no place in the military, and if not eliminated, it will insidiously destroy our military. no technology, no amount of resources can ensure military success if courage and characteristic fail. and sexual abuse is a cowardly abuse that betrace the ethnic and characteristic of the military. i believe we are united on this point. this debate is about preventing
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sexual abuse, a shared goal of every member of the senate, of the congress, of the military, of this nation. the question is how best to achieve this essential goal. i believe it requires leadership at every stage: recruitment, training, evaluation, promotion, retention, and punishment. and i believe commanders must be involved in every step. they must be responsible, and their subordinates must recognize this responsibility and their authority. to remove the commander from any of these responsibilities will, in my view, weaken his or her effectiveness in every one of these dimensions. i had the privilege of commanding a company of paratroopers in the 82nd airborne division. i was responsible directly for nonjudicial company-grade punishment under the military code of military justice. but it was clear to me and to my
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troops that the battalion of the brigade commander and division commander had court-martial authority and would necessarily confer with their subordinate commanders in the execution of this authority. this reality, this authority permeated everything that we did and reinforced the policy orders of every commander, including myself. now, i'll admit that my experience is decades' old, and it preceded the integration of women into combat units, but the central role of the commander has not diminished. moreover, the experiences of the 1960's and 170's also reveal a military struggling with serious and corrosive problems; principally racial integration and drug use. congress and the military ultimately dealt with these problems, not by bypassing commanders but by holding them and through them every member of the armed forces to higher
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standards. today the american military is the first institution anyone points to when noting the progress we have made in racial equality and opportunity. this was not always the case. incidents with racial overtones plagued the vietnam period and the post-vietnam era. among the most widely publicized were race riots in 1968 and several incidents aboard naval vessels in the early 1970's. in one of these incidents in 1972 on the carrier kitty hawk, there was a 15-hour melee between black and white sailors. effectively, that carrier, that ship, capital ship of the navy, was absolutely infectual. they weren't prepared to fight the enemy. they were fighting each other. in may of 1971, there were four days of rioting at travers air
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force base. over 100 individuals were arrested and more than 30 air force personnel were treated for riot-related injuries. the marine corps saw racial classes. in the a.m., especially in germany, there were frequent racial clashes. in december of 1970, a special investigating team reported to president nick nixon on and repd that black troops experienced "acute frustration and volatile anger because of their treatment." interesting, this report cited the major cause of this frustration, "the failure in too many instances of command leadership to exercise the authority and responsibility in monitoring the equal opportunity provisions that were already a part of military regulations." the military has made
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significant progress on racial opportunity. i'm sure more can and should be done. but the debate has been driven principally by command leadership at every stage, including the enforcement of the military code of military justice. the point was made by charles moscose, and mr. butler in 1996, they wrote, "perhaps surprisingly, no army regulation deals solely with race relationships or equal opportunity. instead, these issues fall under army regulation ar-60-20 whose broad exern is army command policy. this title is more than symbol iefnlg the army treats good race relations as a means to readiness and combat effectiveness, not as and he in itself. this is the foundation for the army's way of overcoming race. racial concerns are broadened into a general leadership responsibility and commanders are held accountable for race
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relations on their watch." once again, the emphasis is on commanders, not specialized legal procedures that bypass. my best judgment is that we will make the most progress addressing the issue of seismual abuse by -- of sexual abuse by involving and holding commanders accountable not by excluding them from a critical aspect of military leave. under the leadership of senator leaf inned and senator inhofe, the armed services committee made significant changes to provisions regarding sexual abuse i in the military. senators mccaskill, ayotte and fisher will make additional changes in their proposed amendment that will further strengthen our commitment and our ability to respond to the crisis of sexual abuse in the military. but it is also important to describe the ongoing efforts by the department of defense to deal with sexual abuse in the military. i am drawing on the testimony of lieutenant general flora
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d.darpino, the judge advocate general of the army. she described the policy effective in the army but generally there are equivalent procedures in the other services. the army began a major effort to combat sexual agoos sexual abuse 1970's. the implementation of restricted reporting was also included. this allows victims of sexual assault to confidentially disclose a crime to specifically identified individuals. this program has evolved into a comprehensive effort, fielding a capability of over 11,000 personnel deployable and available 24 hours are a day to respond to the victims' needs. included in the procedures available under the program are new reporting options of the victim, expedited transfers, access to victims' advocates,
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and access to victims' counsel. in addition, this program has a significant educational component that saturates soldier training from the first days of training to senior leader forums. the training focus on bystander intervention is linked to army values that bond soldiers as a team, and it reinforces the military ethic of selfless service over self-gratification. in 2009, the army recognized the need for improved training and resources for the prosecution of these crimes. special victim prosecutors were created and the judge advocate court and sexual assault virgts were created in the c.i.d. together these specially trained and experienced professionals worked only special-victim cases. they are able to apply unprecedented expertise. in addition, all j.a.g. prosecutors and defense counselors receive special
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training. with all these changes, lieutenant general darpino still identifies the commander as -- quote -- "the critical element." in her words, "the most critical element of this institutional effort, however, is the focus of commandercommanders." as such, "the army like the other services, has moved aggressively to hold commanders accountable for setting a command climate that encourages reporting, deplores conduct that harasses individuals and provides a safe environment for victims after they come afford." to support this effort, officers and commanders are receiving enhanced training at every level. specifically, the officers entrusted with the disposition of sexuality assaults" -- and that's been withheld to the special court-martial convening authority -- "are required to attend special officer
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orientation classes with a focus on the proper handling of sexual assault allegations." general officers who will serve as convening authorities are offered one-on-one instruction with a focus on sexual assault." most significantly, most significantly, in my view, and most recently, the secretary of the army on september 27, 2013, directed that every officer and noncommissioned officer will be rated on how well he or she -- quote -- "enforced a climate of dignity and respect and adhered to the sexual harassment assault program," the new terminology for the preexisting program. general odierno has made it clear that commanders are responsible for their advancement, their retention, their standing in the army will rest with an annual explicit, written rear view of their effort touses combat sexual abuse. now, let me return a moment to
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my discussion of the racial challenge facing the army while i served. let me also return to the comments of charlie moscose, an army veteran. in 1986 he wrote, "more important for blacks than a new race relations curriculum was the revision of the efficiency report. performance evaluations that carry a lot of weight in all promotions. starting in the early 1970's, a new category appeared in the efficiency reports for officers and n.c. o.'s: race relations skills. filling out this section was mandatory and the requirement was rigorously enforced. more blacks promotions. some officers with a poor record on race were relieved of command. all of this set a tone. if for only self-interest, they became highly sensitive to the issue of race.
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today one is more like think to selikely to hearjokes not in th. i think we'll make great progress focusing on the evaluation and efficiency reports that every officer and n.c.o. must receive each year. now, in the context of what the military is doing to combat sexual assault and the context of glaring examples of what it is not doing and what it is failing to do, the armed services committee after multiple hearings and thoughtful debate adopted significant provisions that have rapidly combat sexual assault within the military. the secretary of defense has already taken administrative steps to implement some of these provisions. senator mccaskill will offer additional provisions that i wholeheartedly support. it is important to recognize the comprehensive and critical nature of these provisions that are already in the national defense authorization act.
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from improflg measures to prevent sexual assault and strengthening the judicial process to discipline those who commit such heinous crimes. the bill makes important changes for prevention of sexual assault. first, the bill prohibits the commissioning or enlimit 6 individuals convicted of rape, sodomy or attempting. starting at the beginning, who do you allow in the military. second, the bill requires the secretary of defense to report on whether actions are needed to prohibit sexual contact between military instructors and their trainees. the next step is to ensure all service members understand how they can and must prevent and respond to incidents of sexual assault. each of the services is conducting a variety of training programs on sexual assault prevention and response. this bill requires the secretary of defense to conduct a comprehensive review of the adequacy of this training and to then prescribe in regulations to
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address any inadequacies identified by this review. the bill also requires the secretary of defense to review the adequacy of the training, qualifications and experience of individuals assigned to positions responsible for sexual assault prevention response, to retrain or reassign any individual who does not have adequate training or qualifications and to improve the requirements for selection or assignment to sexual assault prevention and response billets. service members who have been sexually assaulted or raped should have the resources available to receive care and see that justice is done. in crafting this bill the committee andle that many victims do not report such incidents because of a fear of retaliation from peers and leaders. so this legislation includes a provision that makes retal yaiption against service members for reporting criminal offenses a punishable offense under the uniform code of military
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justice. this will ensure victims and witnesses to such crimes are able to report the occurrence without facing retaliatory action or threat of such action. this bill requires the d.o.d. inspector general to review and investigate allegations of retaliatory personnel actions for reporting a rape, sexual assault or sexual misconduct. next, the bill expands certain existing protections to members of the national guard and reserves and members of the coast guard. first, it requires the service sector to ensure the members of the national guard and reserves have access to a sexual assault response coordinator not later two business days following a request for such assistance. these coordinators explain the reporting process, address the victim's safety and security needs and offer expertise and available services. including medical care, counseling and legal support. seconds, it clarifies existing requirements for the expedited change of station or unit transfer requested by a victim
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of sexual assault also applies to members of the coast guard. the bill requires the service sector to provide a special victims counsel to provide legal advice to service members who are victims of sexual assault committed by a member of the armed services. this resource was initially created by the air force in january of this year since the committee's markup of this bill, secretary of defense hagel has directed each of the services to implement such a program. this provision will codify administrative action that has already been taken. the bill also authorizes the service secretaries to provide guidelines to commanders regarding their authority to temporarily reassign or move from assignment a service member on active duty accused of committing or attempting to commit a sexual assault, not as a punitive measure but for maintaining good order and discipline within the member's unit. additionally, provides the secretary of defense to provide information for new and
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prospective commanders. the bill strengthens the judicial process. first, the bill eliminates the element of the so-called good soldier defense. from the factors that commanders should consider in deciding how to dispose of an offense. i should add that senator mccaskill's amendment further limits the defender's use of good military character as evidence. second, the bill requires the defense counsel and court-martials to to interview through the trial count counsel and if requested by the witness requires that interviews take place in the presence of the trial counsel, counsel for the witness, or outside counsel. to protect against the abuse of this process. next, the bill changes article 6 through the ucnj to limit the ability of an authority to modify the findings to specific sexual offenses. in other words, this provision eliminates the commander's
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ability to overturn a jury's conviction for sexual assault, rape and other crimes. additionally, the bill requires a mandatory minimum sentence of dismiss alf or dishonorable discharge of a member convicted of a sexual assault offense. the bill limb names the five -year statute of limitations and offenses resulting in a court-martial conviction, nonjudicial punishment or administrative action be noted in the service record of the service member regardless of the member's grade. importantly, the bill maintains and strengthsens the role of commanders in the judicial process. during the markup the committee adopted an amendment on a bipartisan basis that preserved the ability of commanders to initiate court-martial proceedings. removing this authority which some colleagues advocate would weaken accountability and undermine efforts to prevent sexual assault.
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commanders are maintained with maintaining good order and discipline in their units and are responsible for the safety of the men and women they lead. the commander is essential in instilling that sexual assault and related behaviors will not be tolerated and will be adjudicated. the bill includes several provisions that address the role of the commanding officers. first it requires them to immediately refer to the appropriate criminal military investigation authorization reports involving sexual assault in the commander's chain of command. next, the bill requires higher level review of any decision by commander not to prosecute a sexual assault allegation with the review going to the service secretary in any case where the commander disagrees with the recommendation not to prosecute. if a legal counsel advises prosecution, openly it will be resolved by the service secretary and most commanders do
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not want their decisions reviewed by service secretaries. i think this will add more sense and more purpose to their efforts to combat sexual abuse. all these changes take significant steps forward in addressing these horrible crimes. however, we must remain committed to further improving both prevention and responsible. that's -- response response. that is why several provisions currently underway created by last year's defense authorization bill. the call crimes panel. this committee is using the systems to adjudicate crimes involving sexual assault. the bill we are considering today asigns additional issues to be considered by this panel and requires the panel to produce its report no later than one year from its first meeting which occurred in july rather than 18 months as originally laid out in last year's bill. as i mentioned before, senator
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mccaskill, ayotte, and fischer are proposing an amendment that further strengthens all of these provisions that are already in the committee's bill. first, their amendment requires special victims counsel to advise of the advantages and disadvantages of their cases being prosecuted in a civil yar court with jurisdiction or through the uniform code of military justice. the victim may express his or her preference and this must be given great weight in the determination to determine by a court-martial or a civilian court. the amendment codifies to sea valuate in adhering to the standards regarding sexual assault and response. it extends it to every service in the department of defense. as previously noted, this provision is likely to make a profound and lasting contribution to the prevention of sexual abuse and that's what we're about, preventing sexual
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abuse and this could be one of the key drivers in that prevention effort. the amendment improves accountability of commanders by requiring a command climate assessment be performed after an incident involving a covered sexual offense as defined in the legislation for both the command of the victim and of the accused if they are in separate commands or a single assessment if they are in the same command. these assessments will be completed promptly and provided to the military criminal investigation conducting the investigation of the offense concerned and the next higher commander in the chain of command of the affected unit. you will know if you're a command forthere is an incident in your unit that all the details will be known by your be a battalion commander, your division commander, all the way up, and that will be another strong incentive to make sure that nothing happens in your unit. and that is part of the amendment proposed by my colleagues. this position particularly in
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conjunction with the requirement to evaluate service members' compliance under the efficiency reports will go a long way, i think, to provide the accountability and the emphasis on commanders to do their jobs. general bruce clark, the distinguished officer wounded in the battle of the bulge, awarded the silver star, one of the great heroes of the united states army, famously instructed his units that -- his words -- an organization does well only those things the boss checks. well, we are checking each individual to make sure commander and noncommissioned oomb, they're doing their best. we're checking each unit if there's an incident in that unit and we are living up to the advice of general clark. it will get done because finally it will be checked consistently, thoroughly and appropriately. also establishes a confidential process to allow a victim of a sexual assault who is discharged
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to characterize the terms of his or her discharge to correct possible instances of retaliation. this provision will help ensure a discharge accurately reflects the service of the individual taking into effect the effects of sexual assault and removes the concern that reporting sexual abuse could influence the character of a military discharge. the amendment strengthens the role of the prosecutors on court-martial, the committee language requires that the civilian secretary review all cases when a commander does not choose to prosecute. the amendment extends that mandatory review if the prosecutor recommends prosecution and the commander demurs. in effect if either the prosecutor or the legal counsel/judge advocate remsz prosecution and the commander demurs, the case will automatically be referred to the
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civilian service secretary. the highest ranking civilian in the uniformed service making the final call and every commander knows that and will know that. the amendment modifies the rules of evidence to prevent defendants from introducing evidence of good character. it will only be limited if it is relevant to the offense. too often the good soldier defense has been seen as overcoming specific evidence directly related to a crime. this appearance undermines the perception that a verdict is be determined by direct evidence supporting the elements of the crime, not the previous reputation of the defend. -- the defendant. this builds upon a section in the underlying bill that eliminates the character and and the military service of the accused from facts a commander should consider. finally, the amendment ensures that all the protections of this legislation are extended to the
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cadets and midshipmen of our service academies. the mccaskill-ayotte-fischer amendment strengthens the committee bill to enhance our accountability of commanders. we will strengthen prevention and prosecution of sexual abuse. now, those who argue for the exclusion of the commander from the judicial process point to the policies of our allies. including canada, the united kingdom, australia and israel. these have removed commanders as convening authorities and used independent prosecutors to make charging decisions. while it can be useful as times to draw comparisons between our armed services and those we serve alongside, there are several points to be made with respect to to our military justice system that do not align. first, none of these countries changed their system in response to a sexual assault crisis among their ranks or to protect the rights of victims more generally. in most cases the systems were
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changed to protect the rights of the accused. second, none of the allies can draw a correlation between their system and any change in reporting by victims of sexual abuse. many argue that removing the commander as the decisionmaker will remove a hurdle victims face whether to report sexual assaults. there is no evidence that removing commanders from the charging decision has any effect on victims' willingness to report crimes among our allies. in materials provided to response systems panel, the deputy military advocate general for the israeli defense force noted an increase between 2007 and 2011 attributing no specific reason for the increase but noted it could represent an increase in the number of offenses or could be a result of campaigns by service authorities to raise awareness on the issue. the commander has assessed that
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recent structural chaiption to the military justice system had -- quote -- "no discernible" effect on the reporting of sexual assault offenses. the scope and scale of our allies' caseloads are vastly different primarily because of the much greater size of the u.s. armed forces. for example, in the military, only 75 to 80 court-martials last year. but several of our allies who have changed their military justice system have indicated that the changes have resulted in the process slowing down and taking longer. and frankly that is one of the issues that victims of rapes in terms of why they aren't reporting and why they're so frustrated because of the length and duration of the process. furthermore, most allies cannot conduct court marshals in a deployed environment. as brigadier general richard gross stated in a letter, "one
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critical feature of our justice system is its expeditionary narks the ability to administer justice anywhere in the world our forces deploy. notably, the army alone tried over 950 cases in deployed areas over the past ten years." in one case in iraq, four soldiers committed multiple crimes in a single night. the commander referred all four soldiers to court-martial and they were charged with consuming alcohol, breaking into local homes and stealing money from locals. because the commander in iraq had the authority to refer these cases to trial, the first trial was under way within two months of the incident. all of the coaccused and defense were in the same unit. he was able to send a strong message to the unit that such conduct would be dealt with swiftly and decisively. simultaneously, he was able to restore positive relations with the local community.
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the army has also cited instances of allied soldiers committing sexual assault crimes against u.s. soldiers and because of the allied nations system, removing the authority of the chain of command and removing the process from the battlefield, our commanders would demand but not receive timely information on the status of any prosecution. we had a soldier victim and they could not find anything about the process that was going on in the foreign service. tragically, and with respect to reporting, sexual assault is a crime that historically is underreported. and this is not with respect simply to the military. the rape, abuse, incense network show an average of 60% of assaults in the last five years were not reported. however, in numbers that were released earl whyer this month, d.o.d. showed that more service members are coming afford to report sexual assaults. from october 2012 to june 2013,
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3,553 sexual assault complaints were reported to the d.o.d. this is a 46% increase over the same period a year ago. these cases include sexual assaults by civilians on service members and by service members on civilians. a significant number of the reported incidents occurred before the victim even entered military service. now, there is another argument for removing the commander tion -- the commander's authority. it's that independent j.a.g.s will prosecute more cases. is istatistics show that commans have exercised jurisdiction and pursued court-martials over the determination of civilian authorities. over the last two years army commanders have exercised jurisdiction in 49 sexual assault cases. 32 of these cases were tried by court-martial resulted in 26 convictions. the u.s. marine corps exercised
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jurisdiction in 28 sexual assault cases, awful were i tried by court-martial. 16 cases resulted in conviction. this goes on throughout every service. comarngdzs are also having an interest in pursuing court-martial as way to demonstrate the seriousness of the crime and the impact on their unit discipline, not merely because of the quantity and quality of the crime occurring. a hearing was held. we heard from four colonels. they all spoke about the importance of seeking legal advice from the command judge coact and for having the responsibility to adjudicate crimes. colonel donna martin of the 202nd group stated that "it is of paramount importance that commanders are allowed to continue to be the center of every formeration, setting, and enforcing standards and
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disciplining those who do not. the commander is responsible for all that happens or fails to happen in her unit." she went on to say, "the uniform code of military justice provides me with all the tools i need to deal with misconduct in my unit from a low-level offenses to the most serious, including murder and rape. i cannot and should not relegate my responsibility to maintain disminutdiscipline to a staff or someone else outside the chain of command." when asked about whether a commander might be more likely to pursue a court-martial than even an outside independent officer because it has decided to send a message, marine colonel king replied that he considers -- quote -- "achieving justice wherever crime was committed and also the message that i send to the thousands of marines that are actively watching what's going on. so i can, even if i have failed to achieve a conviction at whatever level, still send a powerful message to theme this kind of conduct, even alleged, even not proven, is completely unacceptable."
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and colonel jeannie leavitt stated, "i could compliewl see the scenario where a prosecutor may not choose to prosecute a case or recommend prosecuting a case because of the likelihood of conviction. however, as the commander, i absolutely want to prosecute the case because of the message it send so that my airmen understand that they will be held accountable and then we'll let the jury decide what happens in the case and whether or not it will be convicted." but that message is so important, whereas an independent prosecutor may not see the need to take it to trial if it is not going to lead to a conviction. our service j.a.g.'s have expressed several concerns about the proposed amendment that my colleague from new york is introducing. but i want to just take a moment and talk about the amendment. and also essentially thank and commend senator gillibrand.
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without her persistence and passion wold we would not be here today. she perhaps has done more than anyone else to focus our attention on this incredibly heinous crime to individuals and thiindividuals.her objective, tf sexual abuse must be our objective and it must be railed. and she and her cosponsors have determined in their view that the removal of the commander from the application for a wide variety of offenses is the best approach to achieve the goal of ending sexual abuse in the military. but i disagree. indeed, given the nature of military service, which is significantly different from civilian liervetion i believe without the active involvement of commanders at every phase of military life, this goal cannot be effectively and rapidly achieved. the approach in the amendment
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proposed by my colleague from new york posed significant problems in practice that could unwittingly complicate rather than accelerate efforts to end sexual abuse. the amendment attempts to divide crimes designated by specific articles of the ucmj into two broad categories: traditional offenses such as awol and i subordination, and a broad category of serious phones that would constitute civilian offenses such as murder, robbery, and rape and sexual crimes. here is a chart depicting the code of military justice. this second category of offenses would be removed from command adjudication and be referred to an independent prosecutor. this independent prosecutor must be at least a full colonel with significant experience in trials and be outside the chain of command of the member.
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this bifurcated system, especially considering the scope of crimes excluded from the chain of command, will have profound effects on the ability to function effectively. let's take the case -- and it is not uncommon -- of a soldier who writes five checks and five separate occasions to -- $30 each to the p.x. knowing that he does not have the funds to cover his purchases much the krill investigation division, c.i.d., investigates andness of the commander. under the gillibrand amendment, the c.i.d. must refer this case to the independent prosecutor because it falls under article is 23-a makin. these are referred to special prosecutors. if they fall in the category and one more criteria. the five separate incidents, although they have a maximum punishment of six months, would be charged together leading to
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30 months, which exceeds the one-year threshold for the gillibrand amendment. as a result, this would be sent afford to the -- forward to the special prosecutor. i highly think that think that charging this senator for writing bad checks is the intent of the gillibrand amendment. it raises the practical question of how the john paul prosecutor will deal with an onslaught of cases like this when the expectation is that he or she will be focused on sexual abuse and serious crimes like murder. there is a real practical check here. are you going to take a bad-check case when you have 15 pending attempted murders, assaults, rapes, et cetera? that's just a practice issue and i think the -- that's just a practical issue and i think the answer is no. under the amendment, the independent prosecutor has a choice of convening a special court-martial or a general court-martial. a special court-martial consists of a panel of a at least three
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members or a military judge signature alone. there is a prosecutor, referred to as trial counsel and defense counsel. in comparison, a general court-martial is a military highest level where service members are tried for most serious crimes. it ithebefore any charge can beo a court-martial, a general court-martial, a general court-martial, an article 32 investigation must be conducted. it is a hybrid of a grand jury proceeding. the article 32 investigation tending to be more than a mere formality. it is a right for the accused and a source of information for the commander. the general court-martial may consist of not less than five members or military judge alone, if the defendant choose. capital cases require 12
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members. as you can see, these proceedings are intensive in terms of time, in terms of commitment of military personnel, in terms of investigatory efforts. in fact, the average length of special court-martial proceedings ranges from three to five months. general court-martials can take anywhere from five months to eight months. in cases involving sexual assault, both special and general court-martials take longer, an average of nine months. again, this is probably going to delay the process, not accelerate the process. now, given the time and resources that are involved in a general or special court-martial, in the case of a junk soldier writing bad checks and the long-standing practice of reserving general and special court-martials for the most serious of offenses, i would doubt seriously that the independent prosecutor would take this case. at some point the independent
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prosecutor will inform a commander which raises other issue. if this notification is delayed extensively, the other related problem of what you do with the soldier under suspicion. do you deply him or her? subject to recall? do you leave him behind? so all of these issues are important. and the independent prosecutor's decision is binding on any applicable convening authority for a trial by court-martial on such charges. it is binding on every commander. the amendment, however, does attempt to preserve authority to punish these types of offenses by dhairg that the independent prosecutor's decision "shall not operate, determine nate or otherwise alter the authority of commanding officers" to apply a summary court-martial or to impose nonjudicial punishment under article 15 of the ucmj. but this authority is absolutely an illusion. under the ucmj, every soldier has the right to turn down a
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summary court-martial or an article 15. once he is informed by counsel that he will not be subject to a general court-martial or a special court-martial and he can turn down a summary court-martial or article 15rbg the soldier will invariably refuse the summary court-martial or article 15. ironically, in doing he, he will demand a court-martial but the commander cannot comply, as he can now, because he's already been preempted by the special prosecutor, the independent prosecutor. now, this scenario will play out over and over again. a unit is plagued by a series of steps which unchecked erodes good order and discipline. the commander has information one soldier is boasting about ripping off other people but has no other evidence. an iphone is found in the boasting soldier's room. under the gillibrand amendment the commander nuss m


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