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tv   Key Capitol Hill Hearings  CSPAN  November 20, 2013 3:00pm-5:01pm EST

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made putting medical research into the pentagon. because now you know, it gets funded where it should be. we're duplicating things at the pentagon that we're doing at n.i.h. on diseases like breast cancer, prostate cancer. i happen to have a little experience with that one. the fact is we're not spending the money wisely. we're spending money that we don't have, duplicating things that we're already spending money on. so i would yield back to my senior colleague from texas. mr. cornyn: i would ask the senior senator from oklahoma isn't it true you have the materials senator mccain referred to posted on your web site? mr. coburn: i do. coburn dot senate dot gov. every study we've published all the waste all the duplication. there's at least $200 billion a year that the g.a.o. -- not tom coburn -- has identified in waste and duplication in the federal government.
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and we've not acted. only one committee in congress, the labor afford work force in the house has acted on one of those recommendations he recommendations as far as duplication. so the problem is us. mr. cornyn: i would ask the senior senator from arizona as we discussed you've been a critic and pointed out waste in the procurement process. but i know the military in designing state-of-the-art weapons systems the f-35 for example, they built in concurrence si, they're designing it while they're building it which is -- which creates a cost overrun challenges. but i know you were also instrumental in finally getting the pentagon to negotiate a fixed-price contract. could you talk about some of the challenges? mr. mccain: for years i'd say to my friend from texas the cost overruns went unchecked with someone who has a roof that
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leaks and hires someone to fix the roof, on a cost-plus contract i guarantee you the cost to have your roof fixed will probably exceed the initial estimate that the roof fixer provides you with. so when we go into cost plus contracting which is justified by many of the contractors by saying well, we're not sure what the additional costs will be. well they don't seem to have difficulty once those contracts are fixed cost. but the best example the story -- best or worst example i can tell my friend from texas is the original effort to replace marine one the presidential helicopter. and this helicopter over a period of a couple years went from requirement to requirement to requirement to requirement to the point where it was even a
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requirement that the helicopter could withstand a nuclear blast and it ended up before it was even off the drawing board at a greater cost than air force one, a greater cost than air force one. so finally they had the good sense to scrap it and we still are using the old reliable helicopter which seems to be fairly suited to the purpose of transporting the president around in a helicopter. another interesting story was this -- the air force now believes that one of their primary acquisitions has got to be a long-range bomber, and we're starting in this process again, and at one point there was a proposal to put a kitchenette -- i'm not making this up -- a kitchenette into the long-range advanced air force bomber. finally someone decided well,
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maybe that doesn't look too good to have a kitchenette on this airplane. but that's the case of what happens in the system we have today. and god knows the chairman, senator levin and i and other members of the armed services committee have gone time after time after time to try to bring these costs under control. and i guess one of the favorite stories is the famous kelly johnson of the skunk works of the old lockheed team, they went out in the desert of nevada and came back seven weeks later with the sc-71. now it takes decades literally decades to come forward with a weapons system and never once in recent years that i can recall has there been a weapons system on time and on cost. so then you understand, i say to my friend from texas where
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the industry, defense industry is so important and vital to the economy of his state as it is with mine, the apache helicopter which i'm very proud of is built out in the east valley of phoenix arizona. but the american people then become cynical about defense spending and that really does erode our ability to sponsor and support those requirements that are so badly needed. so i thank the senator from oklahoma for all he has done to continue to bring this to the american people's attention and i just want to make one additional comment about this medical research. there isn't a person that i know in america that doesn't support research medical research, particularly cancer is one of the big projects that we appropriate money for.
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but it's the classic willie sutton syndrome. what in the world does the defense department have to do with cancer research? it's the willie sutton syndrome. when they asked willie why he robbed banks he said that's where the money is. we're robbing defense appropriations for programs and projects that have nothing to do with defense but because the money is there, we are spending it. meanwhile, we do not have particularly as a result of sequestration, adequate funding in my ability that will prevent us -- that will enable us to continue to defend this nation. so all of us are for medical research. i don't know anybody in the world that isn't. but for us to take money out of defense appropriations and put it into medical research is something that is not in any way justified except for the fact that the money is there. mr. cornyn: mr. president, how much time is remaining?
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the presiding officer: one minute and 40 seconds remaining. mr. cornyn: i yield the re345eu7bg time to the junior senator from arizona. mr. flake: i thank the gentleman. this is interesting in terms of the money being used where it shouldn't be. i gave the example last week, and i'm coming down every week and speaking at least five minutes on waste and duplication in government. i talked a couple of weeks ago about the department of agriculture. the department of agriculture -- this is the department of agriculture but you wouldn't know it when you look at some of the programs run by the department of agriculture. one, they have a simple family housing direct and guaranteed loan program in the department of agriculture. it provides zero down payment mortgage loans it costs the taxpayers about $10 billion since 2006. that's the department of agriculture running a housing program. we see this all over government. and it just -- it's -- just
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the duplication as senator coburn, the senator from oklahoma has spoken of many many times could save the government and the taxpayer billions and billions of dollars a year. i appreciate my colleagues, this colloquy we've had and look forward to more. i thank the gentleman. mr. cornyn: mr. president we yield back the remainder of our time. a senator: mr. president? the presiding officer: the senator from maine. mr. king: mr. president i rise to address one of the most difficult issues that we faced in this bill, an issue that the armed services committee spent a great deal of time and in fact more time on than any other issue this year. and it's the issue of sexual assault in the military. at our very first hearing where we were discussing this with a group of people in our hearing
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i made the observation that the only sure long-term way to confront and defeat this tragic problem is through a change in the culture. it has to become unacceptable unacceptable in the culture of our armed services that sexuality is in -- sexual assault is in in any way tolerated or ignored. we've got to solve this. it's a problem that's been festering for years and i understand the impatience of those who say we've been waiting too long, we have to take strong steps. and i think it's very important to realize that in the bill that's already before us are strok -- are strong steps. the most comprehensive package of sexual assault provisions that have ever been in any defense bill to my knowledge in the history of this institution. it has been taken seriously it's been dealt with in a
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comprehensive way. some of the strongest changes ever. i think one of the most important that i want to highlight is the criminalization of retaliation. a great deal of the discussion has been about reporting and the reluctance of victims to report in part because of retaliation. one of the things this bill does is make it a crime to retaliate against a victim for reporting one of these horrendous crimes. so the debate today is really about one particular provision one particular provision dealing with sexual assault scawlt that's not in the bill -- sexual assault that's not in the bill. the question really boils down to who makes the decision to refer a sexual assault case to prosecution. and i've heard the debate and i should say -- i should have said at the outset i so admire senator gillibrand for her
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intellect, for her passion for her dedication, her perseverance to this issue. everybody involved in this debate has exactly the same goals, which are to get rid of this problem to diminish it, to reduce it to zero. to not tolerate it. that's the goal of everyone involved. the question is whether removing the decision to refer to court-martial from the commander will further that goal or, in fact will undermine it. after listening to the arguments, discussing it at length with senator gillibrand and others, i've concluded that to take this decision out of the chain of command would, in fact do harm to the cause of victims' rights. the reason is simple. i want the commander to be fully responsible for this problem. i don't want a commander saying it's not my problem anymore
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the congress of the united states has said i don't have to worry about this, i'll check that box. i believe going back to my original point that the way you change the culture is in a multifaceted approach but certainly one of the ways you do it is through the decisions that come from the commander. that's what sets the tone in the unit. leadership always infects an entire unit in good or bad ways. and i believe it would be a mistake on the side of the victims if we changed the system and allowed the commanders to say this isn't my problem this isn't my responsibility. as senator reed mentioned on the floor earlier today, the senator from rhode island, one of the most important changes is a dhaing that the pentagon has itself -- a change that the pentagon has itself made which
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is to hold commanders responsible for the sexual assault record in their unit as part of their evaluation for promotion. that's part of the way that you change the culture. this is a very difficult decision but i think it is important to realize that the decision on this amendment is not are you in favor of victims' rights, are you in favor of the brass. i reject that dichotomy because already within the bill are these very strong provisions which are directed at this serious problem. what we're really talking about is a fairly narrow discussion of who makes that decision and as a former practicing attorney who has had experience in criminal cases, prosecutors i think may be more conservative and less likely in some cases to bring
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cases to trial than the commanding officer who wants to ensure that justice is done for that victim. what we really want, mr. president, is no victims. we want this problem to end. we want this problem to change because the culture changes within the military, and that which was acceptable at one time is no longer acceptable. the best example i can cite for that in my life is drunken driving. o.u.i. when i was a young man there was an epidemic of drunken driving in this country and it was considered kind of a joke. it was kind of, oh, yeah, sort of a rite of passage subtly and through law changes and societal changes over a generation it's no longer acceptable it's no longer funny, it's no longer something that's tolerated and we've seen a decline because the culture has changed. and that's what has to happen in
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the military and i think it begins with the commanding officer. to take this responsibility away from the commanding officer is siding with the victims. because i want those commanding officers fully engaged in this decision. i want them fully responsible for this decision. i want them to be what, in fact, they are: leaders leaders who can make change. and leaders who can make change in this critical area. if it doesn't work, mr. president, as my father used to say congress is always in session. we can come back and correct it. i believe that we're at a moment where the military is being given a last chance to deal with this within the chain of command. i think we've given them the tools to do so in this bill, and i urge my colleagues to support senator mccaskill's amendment
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and to move afford with this bill which we can be very proud of in terms of its recognition of this horrendous issue but also in terms of the solutions and the tools that it provides to our military to solve this problem once and for all. thank you mr. president. mr. mccain: mr. president? the presiding officer: the senator from arizona. mr. mccain: mr. president, i would like to thank my friend and colleague from maine for his very thoughtful statement and from having conversations with him, i know he didn't come to this decision easily but i certainly think he made a very strong argument for the decision he arrived at. he and i and all of us share a deep and abiding concern about the issue that's before the
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senate in the form of the amendment to the national defense authorization act on the floor. it is a very difficult situation we are facing. it is an unacceptable situation where men and women in the military may be exposed to sexual assault but more important thanly than that the individuals that are responsible for those assaults be held accountable. so really what we're talking about here today is, are we going to hold the people who are in charge accountable for bringing to justice those who are offenders, or are we going to farm that responsibility out to some other entity or some other individual or some other part of the bureaucracy? that's the question here before us. i trust these commanders,
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mr. president. i've known thousands of them. i trust them, and i believe in them. has there been not sufficient effort to preventing these horrible crimes from taking place? yes. but do i trust these commanders and these men and women in command to take the proper action necessary because it is their responsibility? and i believe with the change that is already in this legislation, including removing the ability of commanders to overturn jury convictions requiring review of decisions not to reverse charges criminalizing retaliation against victims provide special victims counsel to victims of sexual assault to support and assist them through all proceedings -- that's why i supported senator boxer's amendment which reforms article 32 of the code of military justice to help prevent the abuse of victims of military
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sexual assault in pretrial settings. so we are taking action in this legislation, and maybe we can be found guilty of not acting soon enough. but to somehow say -- and basically this is a fundamental question: do we not trust the commanders whose responsibility sometimes is the very lives of the men and women under their command, do we trust them to do the right thing or not? so that's really the difference between the gillibrand amendment and what has already been done in this legislation which after extensive hearings, debate, and discussion. do we trust the commanders to do the right thing with the proper parameters like removing the ability of commanders to overturn jury convictions to require review of decisions not
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to refer charges criminalizing retaliation against victims? we have taken as far as i can tell a significant and important steps that will protect men and women not only from the assault but the abuses that may take place and recriminations that may be visited upon them in case of -- in case of the fact that they are victims. i'm not saying that this legislation that we have before us will eliminate sexual attacks, but i am saying -- sexual assaults, but i am saying that what we are doing is exactly what we did at other times when there were crises in our armed forces, and i refer back to the post-vietnam war era. i can tell you mr. president that i was a commanding officer in 1975, 1976, and 1977, and we
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had racial problems, we had drug problems we had discipline problems we had the post-vietnam war syndrome where our military was in total disarray. drugs, racial discriminations -- there had been race riots on aircraft carriers. and what did we do? we placed responsibility direct on commanding officers. and if they didn't take action and if they failed, they were relieved. that's the way the military should function, and that's the way the military has functioned successfully. and we had programs, and we had advisors and we had indoctrination and we had punishment -- punishment for those who refused to adhere to the standards of conduct that we expect every man and woman in the military to adhere to. so what does the gillibrand amendment do? it removes the commander it removes the person -- man or woman in command -- who has got
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the ultimate responsibility, unfortunately, from time to time of taking thighs young these young people into battle and risking their lives? that's what makes them different from any other part of america and any other part of society. so the gillibrand amendment, of course is, well, we don't trust these commander. well we trust these young people with their lives. we ask them to have the ultimate responsibility, which is that of defending this nation, but we don't trust them to prosecute to do their job to do their duties. well mr. president that flies in the face of every encounter i've had with the men and women who are in command and the senior petty officers, the master chief petty officers and the master sergeants that are responsible for the good order and discipline of our men and women in our armed forces. so i won't go into the fact that this gillibrand amendment
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includes things like burglary and house breaking and perjury and robbery and forgery. it's been expanded beyond belief in its areas that have to be referred out of the chain of command. i won't even bother with that. but what i am saying -- and i say it as passionately and i can to my colleagues -- that if we do not trust the commanding officers who take our young men and women into battle, our most precious asset if we don't trust them, then we obviously had better reevaluate our entire structure of the military. but i do trust them, mr. president. i do trust them. the finest people i've ever known in my life are those we have given -- who have worked their way up to positions of authority and command through a very severe screening process. have they made mistakes? can we find -- can we find an example or a case where a right
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thing was not done? of course, we can. there's nowhere in our society that we can't find examples of people having not done the right thing. today i'm embarrassed that it seems that naval officers were involved in some kind of bribery scheme about overseas ships. and from time to time we are embarrassed by leaders of our military. but they are the exception and not the rule. and so, if you pass the gillibrand amendment my friends, you are sending a message to the men and women in command in the military, we don't trust you we don't believe in you. that's what this is all about. but if we do, with these significant changes -- 26 changes -- in the defense authorization bill to ensure that if there is a wrong decision made, that decision has to be re reviewed in some cases all the way up to the service secretary; that anything that is
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done regarding this terrific problem -- and it is a terrific and horrific problem in our armed forces today -- but we have done what we believe and what the military believes and what our military leaders believe is the right thing by leaving the commanding officer in the decision-making process concerning the lives and welfare of the men and women under whom they command. so mr. president i hope that we will realize that if we pass this amendment the gillibrand amendment, our signal to the men and women in leadership, whether they be our senior enlisted personnel or spherks we officers, we don't have any confidence in you we don't trust you. that's the message that will be sent if we pass this amendment today. are they perfect? no. have they made mistakes? no. that's why we put provisions in
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this bill which would circumscribe much of the decision-making process but still leaves final decisions in the comain of chain of command. i urge my colleagues to reject the gillibrand amendment. i yield the floor. mrs. fischer: mr. president? the presiding officer: the senator from nebraska. mrs. fischer: thank you mr. president. i rise today to speak on the series of historic reforms adopted by the armed services committee to combat sexual assault in the military. the women have taken the lead on this matter. sexual assault is not a gender issue. it is a violence issue. i rise to voice support for a bipartisan amendment that i've offered with senator mccaskill and senator ayotte to directly confront this violence, and i rise to urge my colleagues to
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oppose any radical changes that would undermine justice for the victims and take away responsibility from commanders. i'm proud to have supported several measures to strengthen the rights of victims hold perpetrators accountable and strengthen oversight of military commanders to ensure that justice is delivered. as a result of a truly bipartisan effort, the committee has put forth a bill that takes an unprecedented step of providing victims with a special victims counsel to make certain they are receiving unbiased, independent legal advice. it strips commanders of the ability to overturn jury convictions, makes retaliation against victims a crime requires dishonorable discharge or dismissal for those convicted of sexual assault and provides critical civilian oversight.
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despite achieving these unprecedented reforms in committee, my colleagues and i continue to explore ways to enhance the current bill after the committee's work had concluded. senators mccaskill ayotte, and i introduced an amendment last week to expand upon the committee's progress. our proposal extends current protections to service academies academies, boosts evaluation standards for commanders, and allows victims increased input. it also eliminates the "good soldier" defense in most cases. these changes both in our amendment and in the whole ndaa, are sick. but importantly, they are also serious and they are thoughtful. they are based on sound policy, not on political sound bites.
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rather than radically remaking the entire military justice system, which would carry significant risk, our proposals improve and update the current system. to do so, we applied lessons from history. in 2006, congress hastily changed portions of the uniform code of military justice to address instances of rape. these changes disrupted victims' paths to justice and congress was forced to rewrite its own changes a few years later. congress can't forward afford to get something this important wrong. we cannot let our deep desire to solve this problem lead to imprecise solutions solutions because victims suffer when we do. any changes to the ucmj should
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come after a deliberate and transparent process with feedback from all sides. the mccaskill ayotte, fisher amendment is the result of such a process, and i encourage my colleagues to support it. finally i urge my colleagues to oppose any amendment that undermines a commander's responsibility for his or her troops. senator mccaskill put it so well when she spoke on the floor earlier today. the amendment by my friend and colleague, the junior senator from new york, offers a solution that is -- quote -- -- quote -- quote sedutively simple. i do not agree with the underlying goal of removing
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commanders from the military justice system. as senator mccaskill noted we know commanders pursue courts-martial when their legal add advisors recommend doing so against doing so. we know based on the experiences of our allies that removing commanders from that judicial process does not achieve the desired results. and we know the commanders have risen to the challenge in the past to confront con temptous issues within their units including integration. these fact lead me to conclude that the changes in this bill combined with the reforms included within our amendment will best serve the interests of victims and punish those responsible. mr. president, i commend the senator from missouri for her leadership on this issue and i am grateful for the opportunity to work closely with her
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senator ayotte, and many other colleagues to help our men and women he in uniform. i yield the floor. mr. inhofe: mr. president? sproeup the senator -- the presiding officer: the senator from oklahoma. mr. inhofe: i agree with comments of the senator from nebraska. i'm a little disturbed. i heard a number of reports one from a news conference on november 6 and one from the 19 -- that's yesterday i guess -- that senator gillibrand was saying that i was objecting to her amendment. yes, i opposed her amendment but not to the extent that i would hold back the bill. my gosh, there's no one on the floor of this u.s. senate who's been working hard to get this
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bill in other than -- no two people more than the chairman and me. and so i want to make sure that people understand that. in terms of the alternative i've been watching it very closely, and my strongest possible support is for that amendment 2170 by ayotte and mccaskill. it provides additional enhancements to the historic enhancements of the sexual assault prevention and response activities of our military. i commend my two colleagues of the armed services committee for their tireless efforts and their leadership and urge all senators to join me in supporting this amendment. it doesn't mean that if you're oppose 0ed to the gillibrand amendment that you're not wanting change. yes, we tkofplt this is major change -- yes we do. it adds the senior trial counsel to the officers who make recommendations on whether to proceed to trial and if the convening authority decides not
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to proceed results in the case being referred to the service secretary. it adds duties for the special victims counsel to inform victims of options for military and civilian prosecution of sexual offenses. it gives them a voice. they can express a preference. it requires commanders to give weight to that preference and to notify the victim if the civilians decline prosecution. these are changes. these are changes in the current system that are coming with the amendment by ayotte and mccaskill, amendment number 2170. it requires including a written performance appraisals for every member of the armed forces, officers and a list of people, an assessment of that member's support for sexual assault prevention and response programs. it requires every commander to be evaluated in their
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performance appraisals on whether they have or have not established a command climate where allegations of sexual assault are properly managed and fairly evaluated and ensure a victim can report sexualt assaults without fear of retaliation, ostracism or any kind of group pressure from members of the command. it also requires command climate assessments to be performed after a sexual assault incident with copies of that assessment to be provided to superiors in the chain of command and the military criminal investigation organization. and it creates finally a process through the boards for correction of military records for confidential review for -- for individuals who were victims of sexual offenses to require consideration of psychological and physical aspects of the victim's experience that may
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have had a bearing on the separation. i just want to say this is a major change. it's one that i strongly support. i just would give the senator from new york the benefit of the doubt that she did not mean what some people interpreted as to i would hold up a bill and opposing her amendment. i certainly would not do that, but i am for reforms. we have a great opportunity that is bipartisan to do that and accomplish that very thing that we should have accomplished many years ago. i thought there's 0 others waiting here but let me make one comment. i agree with my colleague the junior senator from oklahoma. i know that he has worked tirelessly in trying to do something to stop waste in the pentagon and quite frankly, i think, you know, there's some
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there. but i just want to show this chart. this chart shows the devastation of sequestration. what it shows is the bottom line are these are the efficiencies. this is what he's talking about. i want you to see this because this goes from fiscal year 2014 all the way to 2023. and if you take the sequestration as it is right now without any adjustments now senator sessions, senator mccain and i have tried to make adjustments in there so that there are greater cuts back here and not so many in the first two years. the orange -- and that's where almost everything comes out from -- that's readiness. that's what we need to support our fighters in the field to save lives. now the green is modernization. that's not affected by these inefficiencies that we're talking about. the force structure that's a major cost item. that's the yellow in there.
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what i'm saying is i know there's room for improvements, and i want senator coburn and others to work on areas within the pentagon where money can be saved. if that happens it's still going to be all found down here. i mean everything, tricare and all of it is down on this blue line so you can see that the devastation that comes with sequestration to our military is still going to go, is still going to take place. i think the -- if you look at the level there of the sequestration cuts that takes place, it's almost entirely in the readiness. readiness is a term we've used for a long time. that's our ability to save lives. that's our ability to train and equip our men and women in harm's way. and i can -- we have testimony right now, i want to share with my good friend in the chair who was there and heard it from all
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four services, talking about how much more risk is involved if we go to go through sequestration. and risk equals lives. and so i just think that i agree with those who want to do all they can through efficiencies. i'm for them. i'll do all i can to help them. but that doesn't solve the problem. the problem is immediate. it's today. and i still believe it should be something we can do to stop draconian cuts in our readiness and our force structure accounts that will come with sequestration. it wouldn't do me any good to read all the quotes that we have from the various individuals but i can assure you the chair and anyone who sat through any of the armed services hearings have heard all four of the chiefs talk about how devastating this will be if we're not able to correct it at some level. with that, i yield the floor.
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the presiding officer: the clerk will call the roll. quorum call: ms. hirono: mr. president? the presiding officer: the senator from hawaii. ms. hirono: mr. president, i ask unanimous consent that the quorum call be vitiated. the presiding officer: without objection. ms. hirono: mr. president there is not a single senator here who does not acknowledge
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the seriousness of sexualt assaults in the military and that we must do something to prevent and prosecute these crimes. and, yes, there are differences of opinion as to what we need to do. but make no mistake we share the common goal of preventing and prosecuting these crimes. i want to thank the leadership of two strong women on the armed services committee senator mccaskill and senator gillibrand for their leadership in pushing for solutions that will make a difference. i also want to thank chairman levin for his commitment and leadership in bringing forth a bill that includes a number of important improvements to the current system. we all support these changes. however, i believe there is a fundamental structural problem with how sexual assault cases are prosecuted in the military. we need to make the changes
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proposed by the gillibrand amendment. i am a cosponsor of senator gillibrand's amendment. i spoke on the floor last week and explained why i think we need to remove disposition authority from the chain of command. i don't want to repeat everything i said last week, so let me make just a few points first. for two decades or longer the department of defense has had a zero-tolerance policy for sexual assault and sexual harassment. yet, the problem persists. service members continue to be assaulted and raped and in too many cases the perpetrators continue to go unpunished. year after year, secretary after secretary, and commander after commander have told us about all the efforts to correct this problem. but those efforts have not worked. there are probably many reasons
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why these incremental changes have not worked, but every year that these changes do not work many more of our brave men and women in the military endure the trauma of sexual assault. it's time to make a major change to the military justice system. second, too often these attacks are not reported which allows the attacker to prey on more victims. the survivors tell us the biggest reason they do not report these crimes is because they do not believe their chain of command will ensure that justice is done. even the commandant of the marine corps general amos, has acknowledged that many victims do not come forward because -- quote -- "they do not trust the command." end quote. the concerns of survivors in coming forward makes sense because there are inherent biases and conflicts of interest
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in the chain of command. these concerns are echoed in a letter from general claudia kennedy that was signed by more than two dozen former officers from all branches of the military. the letter states -- quote -- "we know that in too many cases service members have not reported incidents of sexual assault because they lack confidence in the current system. they inherit conflicts that exist in the military justice system have led service members to believe that their allegations of sexual assault will not receive a fair and impartial hearing and that perpetrators will not be held accountable. end quote. we should give weight to these concerns and act today to remove the chain of command from prosecutorial decisions in sexual assault cases and instead put these decisions in the hands of an impartial experienced
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military lawyer. third, removing prosecutorial decisions from the chain of command will not harm good order and discipline. i've heard this concern from many military leaders as well as from others who oppose this amendment. they say eliminating a commander's ability to decide whether a case should go to trial would undermine the commander's ability to maintain good order and discipline within the unit, and yet and yet, we have heard from many others who have command experience who support the gillibrand amendment. good order and discipline should not depend upon a commander's ability to decide whether or not to prosecute a sexual crime. a commander's authority and leadership must certainly be based on more than that. furthermore, the gillibrand amendment preserves a commander's disposition authority over crimes that are uniquely military, crimes such
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as desertion awol, contempt and noncompliance with procedural rules. this insures the commanders will have the authority they need to maintain good order. in closing, it is undeniable that the current system does not work. we know it doesn't work, because according to the department of defense, in 2012, there were an estimated 26,000 cases 26,000 cases of unwanted sexual contact. we know that not all survivors report these crimes, because in the words of general amos -- quote -- "they do not trust the command." end quote. we know that we can eliminate bias and conflicts of interest by entrusting prosecutorial decisions to an impartial experienced military lawyer. and we know that removing disposition authority from the
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chain of command will not undermine good order and discipline. we know what needs to be done. we ought to do it and do it today. we owe it to the men and women who serve our country in uniform. we owe it to the families and loved ones of those who serve because the trauma of sexual assault often extends beyond the trauma experienced by the survivor. i urge my colleagues to support the gillibrand amendment. i yield the floor and notice the absence of a quorum. the presiding officer: will the senator withhold the request? mr. levin: mr. president? ms. hirono: mr. president, i withhold my request. the presiding officer: the senator from michigan. mr. levin: mr. president the bill that was reported by -- i
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yield myself six of my ten minutes. the bill that's reported by the committee includes ground breaking new measures to reduce sexual assault and misconduct. on a bipartisan basis members debated and approved more than two dozen measures, related to preventing sexual assault and to delivering justice to the victims of these crimes. the bill that we approved and which is now before us would provide sexual assault victims a counsel a lawyer who works not for commanders, prosecutors defense attorneys or for the court but the victim. it provides strong new protections for victims that are designed to combat the number one problem we have in preventing assaults and dealing with person a traitors. the -- perpetrators, the fact that many assaults remain unreported to authorities. and of great important the committee-reported bill for the first time makes it a crime under the uniform code of military justice to retaliate against a service member who reports a sexual assault. it also requires that the
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department of defense inspector general review and investigate any allegation of retaliation against those who make communications regarding sexual assault or sexual misconduct. our bill includes important criminal justice system reforms including reforms on how commanders respond to sexual assaults. our bill includes a requirement to commanders who become aware of a reported sexual assault immediately forward that information to criminal investigators. it eliminates the consideration of the accused character from the factors that a commander should weigh in deciding whether to prosecute a sexual assault allegation. it restricts the authority of commanders under article 60 of the ucmj to set aside court-martial verdicts in cases involving sexual assault and other crimes. it requires a decision by a commander that he will not prosecute a sexual assault complaint to undergo an automatic review by a higher
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command authority. in nearly all cases a general or flag officer and in a case where a commander's decision not to prosecute contradicts the recommendation of his or her legal advisor that automatic review is conducted by the service secretary. and the committee-reported bill also makes clear that we expect a demand that commanders will use their authority to rein in this problem by fostering a climate of zero tolerance toward sexual misconduct and one in which service members believe they can come forward to report cases of sexual assault. these important reforms are the work of almost every member of the armed services committee. the desire to remove this stain from our military is bipartisan and it is strong. now, mr. president perhaps the most basic reason to oppose an amendment of the senator from new york is this. it removes a powerful tool from
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those who are indispensable to turning the problem that we have around. our military commanders are the indispensable tool to turn this problem around. i have met at length with several groups of retired military women. i specifically chose to meet with retired military personnel to ensure that they would be free to speak their minds. these women all of whom have seen cases of sexual assault and sexual harassment in the course of their military careers told me the problem is not commanders. the problem is a military culture. they told us that tolerates excessive drinking and barracks banter that borders on sexual harassment or crosses that line. the problem is that there is a failure to recognize the existence of service members who appear to be good soldiers, but in fact they are sexual
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predators. a culture that values unit cohesion to such an extent that those who report misconduct are more likely to be ostracized than respected. none of these problems is unique to the military, but they are exacerbated in the military by the frequent rotation of military assignments which could make it easier for predators to hide. now, the military has a unique tool for addressing this problem. commanders who can bring about changes in command climate through mandatory training by issuing and enforcing orders that are not possible in a civilian environment and that is what they did in addressing racial discrimination and in ending don't ask, don't tell. that is what they can and should do here. weeding out sexual predators in the climate that makes it possible for them to hide is an essential ingredient in any
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solution to the sexual assault problem. the military women that i met with over the summer told me that our commanders are in the best position to make that change. weakening the authority of commander will do serious damage to their ability to accomplish this change. all of us seek the strongest most effective response to the plague of military sexual assault. the amendment that senator gillibrand proposes will not strengthen our response. the evidence before us shows it will in fact, weaken our response by removing the decision from the hands of commanders. we have two dozen historic reforms in our bill. a number of senators led by senator mccaskill and ayotte and fischer have continued to work on policies to strengthen our response to the military assault problem and this has resulted in the amendment that they have proposed.
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mr. president, i will conclude by saying this. these additional reforms of the mccaskill-ayotte-fischer amendment are significant additions to what is in the committee bill, and i support them. what i cannot support and i hope the senate will not support is legislation that will remove from our commanders the authority to combat this problem. the real, strongest tool to combat this problem is the ability to send a matter to a court-martial. we cannot strengthen our efforts to prevent sexual assault by reducing the likelihood of prosecution. we know from history and from the facts that that is the result of taking this decision away from the hands of commanders. we know of the 100 cases where other authorities civilian authorities have decided not to
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prosecute but where the commanders then decided to pursue it anyway. that's just in the last two years. and we don't know of any cases that go in the other direction. we cannot strengthen our efforts to prevent sexual assaults by reducing the likelihood of prosecutions. we cannot strengthen our efforts by weakening the authority of our commanders to act against sexual assault. commanders were tasked again with making those monumental changes in military culture from combating racial discrimination in the 1950's to ending don't ask, don't tell in 2011. if we're to accomplish the change in military culture that we all agree is central to combating sexual misconduct and sexual assault commanders are essential. we can't fight sexual predators if we make it more difficult to try and convict them, and we
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cannot hold our commanders accountable for accomplishing the needed change in culture if we remove their most powerful weapon in the fight. i would ask mr. president unanimous consent that the balance of my statement be inserted in the record, and i yield the floor. the presiding officer: without objection. a senator: mr. president? the presiding officer: the senator from new york. ms. gillibrand: i want to thank chairman levin for his extraordinary leadership on combating sexual assault in the military. he has led a process over the last year to ensure that our base bill has a set of historic reforms that make a huge difference in how cases that are actually reported are handled and in fact the reforms that chairman levin has put forward and our colleagues are continuing to perfect do make the handling of the cases that are reported better. they make sure that every victim that reports has a victim's advocate to help him or her steer through the process. they also make sure that if that
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victim is so lucky enough to get that conviction, that it can't be overturned by a commander on a second level review. they also make sure that we have better recordkeeping. they make sure that the rules of evidence are better. they make sure that victims are protected throughout the process, and most importantly we as a committee have put forward in the bill a law that makes sure retaliation is now a crime. those reforms help the victims who are strong enough and able enough and have a command climate that is strong enough to report their cases. but one thing the chairman said that is not true. commanders do not need this legal right to be able to set the command climate. in fact, most commanders will never have this legal right. just looking at the army rankings second lieutenant, they will command 16-44 soldiers they do not have convening authority. first lieutenant commands 110-
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140 personnel do not have this authority. captains 62-190 soldiers, do not have this authority. majors lieutenant colonels, lieutenant colonels who typically command battalion-sized units, 300 to 1,000 soldiers, do not have this legal right. most commanders will never get to look at a case file and say are we going to trial so i disagree that the ability to decide if something goes to court-martial is necessary to set good order and discipline because almost every commander all of them here, these commanders they all have to set good order and discipline as part of their job. they have to set a command climate where the rate doesn't happen. they have to set a command climate where that victim feels comfortable enough to come forward. and they must by law now ensure that victim is not retaliated against. it's their job whether they ever have this right. commanders can do this and must do this without this legal
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right. it does not weaken their ability. to have one guy way up here in the army who wears the bird, the man who is the colonel 0-6 level and above, he will make a legal decision. and he is not a lawyer, he is not trained. he does not know the ins and outs of prosecutorial discretion. he may be biased. he may value the perpetrator more than the victim. he does not need to make this legal decision, and he shouldn't be judged on how toughest on crime -- how tough he is on crime. he shouldn't be judged on how he weighs the evidence if he does his job properly. he should weigh the evidence fairly. and you can only do that if you are objective and that's why we wanted to go to trained military prosecutors outside the chain of command. those commanders, every single one of them, should be judged on what the command climate is. and most of them will never get to weigh legal evidence as part
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of that. chairman levin my colleague has said they have never heard of examples where commanders didn't go forward but the lawyer did. i talked about one this morning. we have heard from many victims. in fact, one victim said she was on her way to trial and the commander was changed and the new commander had been in command for four days, and he decides that the trial is not going forward. he actually discontinued the trial. and you know what he said to her? your rapist, wasn't a crime. he may not have been a gentleman. so mr. president i do not believe this legal right undermines our military system. i believe it strengthens our military system. i believe it gives commanders the chance to to their job fighting and winning wars, training men and women. commanders are entirely on the hook by our base legislation they will be swrd on the command
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climate, on whether there is retaliation, able to treat retaliation as crimes. i believe that if you create transparency and accountability in the system, we will be able to have many more cases be reported first of all more of those 23,000 cases will be reported when you have more of 23,000 cases being reported, you will have more investigations. you will therefore have more trials therefore have more convictions. if you are ever going to change the culture you need to do it by showing there's accountability by showings there justice you need to show it by showing justice can be done. we need the active involvement of commanders. this is never going to happen if we don't so they need to start focusing on retaliation to start focusing on command climate, they need to make sure these rapes aren't happening and they will do that whether or not
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they ever have this legal right. when our allies changed their laws to elevate all serious crimes out of the chain of command, they didn't see a falling apart of their military. they didn't see good order and discipline going out the window. they didn't see any change at all, in fact. so i know our military can do the same. i know our military can build a transparent, accountable system that responds to what victims have asked. they want to be able to have the decisionmaker be outside their chain of command. if we do that, we have a chance of building a criminal justice system within our military that is good and it is just as our men and women deserve. i yield the floor. mr. president, i suggest the absence of a quorum. the presiding officer: the clerk will call the roll.
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quorum call:
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a senator: mr. president? the presiding officer: the senator from new york is recognized. mrs. gillibrand: i ask the quorum call be vitiated. the presiding officer: without objection, so ordered. mrs. gillibrand, i have a i ask unanimous consent request that aaron jilanek be granted privileges of the floor during consideration of the national defense authorization act of 2014. the presiding officer: without objection, so ordered. mrs. gillibrand, i have mrs. gillibrand: i have a statement that, we made significant changes to address those technical concerns and i have a full analysis and description of them aid like to appear in the record.
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the presiding officer: is there objection? so ordered. mrs. gillibrand: i suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:
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a senator: mr. president? the presiding officer: the senator from delaware is recognized. mr. coons: i ask unanimous consent proceedings under quorum call be vitiated. the presiding officer: without objection, so ordered. mr. coons: i come to the floor today to speak on the tragedy on the ongoing crisis of sexual assault in our armed forces and what i believe we must do. there are several options before us each of which have been the subject of lengthy and passionate debate, a debate that i think is healthy and needed and welcome in this chamber. i commend my many colleagues, chairman levin and senator inhofe, senator mccaskill and senator ayotte, for the very real progress, the very significant steps taken both in the base bill, the ndaa and in the amendment offered by senators mccaskill and ayotte.
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serious and important steps forward to protect victims to ensure that commanders are held accountable and to criminalize retaliation. a wide range of important and significant reforms that will make real progress towards addressing the ongoing decades-old scourge of sexual assault in the united states military. as was said recently on the floor by another of my colleagues, this disagreement today is over one of more than a dozen important and needed reforms. but in the end we have to decide. and i believe the measure offered by senator gillibrand of new york of which i am a cosponsor is the right additional path forward. because at the end here's the bottom line: sexual assault has been a disease a corrosive and widespread and horribly negative influence on our military that has simply not been effectively treated. and i think this significant -- this dramatic step is the needed driver for extensive reform.
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i understand that the chain of command is essential that it is central to the proper functioning and order of the military especially during wartime. in fact, the chain of command is nearly sacred. but ensuring that our spouses and our siblings and our children can serve with honor and not have to face another enemy within our ranks is sacred this is in the end a debate about justice justice within our own armed forces, justice so that we can fulfill that sacred duty of protecting men and women in uniform as well as they protect us and despite many years of good-faith efforts by leaders in our armed are forces to work within the parameters of our current system, literally tens of thousands of sexual assaults are still exiewrg annually within our armed forces. that is frankly unacceptable and reflects a fundamental breakdown in order and discipline that we
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cannot tolerate any more. this current system in this important and vital way is failing. i understand the intense desire our leaders feel to fix what was broken and for our military leaders to tone for taking -- atone for taking their eyes off the ball to paraphrase the chairman of the joint chiefs. but once again this debate is not about them, about their commitment or about their tragic or about their -- strategy or about their determination. but it is about justice and justice should be blind. whether someone receives it should not depend on whether or not he or she serves in the military. and the chilling facts according to the department of defense's own sexual assault defense office, 50% of female victims report they did not report the crime in the first place because they did not believe anything would be done and a quarter or 25% indicated the offender was in their chain
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of command. in my view, we strengthen our military when victims of sexual assault have the confidence to come forward and to report crimes and when we remove fear and stigma from the process and we strengthen our military when we're able to deliver fair and impartial justice on behalf of victims. when we know the military chain of command in this one area is failing, we should not continue tole to rate an exception we wouldn't make in other settings. mr. president, i came to this decision with great reluctance. recognizing as many in my family have that the importance of the chain of command the importance of respecting the unique and different traditions and structure of the military is something that we should only come to with great hesitation. one of the responsibilities of serving in the senate that i take seriously is my annual responsibility to review and approve candidates for the military academies who are selected by my independent military academy advisory board.
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and personally calling the top candidates to inform them that they will be the ones of the dozens and dozens of highly qualified competitors they will be selected to go to the merchant marine academy the air force academy to annapolis, or the united states military academy to west point. this is a moving experience, each of the three years i've had the chance to do that. but this past year the three top candidates for west point annapolis, for the air force academy were all women impressive compelling, determined to serve our nation and meeting with them and their families families, the nervous and proud parents and these confident cadet candidates is a great experience and it reminds me always of my responsibility to them. i promise their parents that we will support and respect them and their service and when we speak to the cadets and thank them for their willingness to
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serve, i'm reminded we have a responsibility to not send them into an institution where they'll face threats that we can and should address. i believe i have a responsibility to send them into an institution i know is well equipped to respond strongly and swiftly to threats to their safety. yet today i'm not able to uphold that responsibility because we have not protected our men and women in uniform from sexual assault. i thought of my picks for the service academy when i heard another senator say to general dempsey that that senator would not advise a parent to encourage his or her daughter to join the military. what made this decision, this difficult decision for me to join senator gillibrand on this particular amendment was an unfortunate -- it was a tragic case. last spring while i was trying to decide which path to follow in this bill my office received a gut wrenching call from the father of a young woman serving honorably in our military. he was calling against his daughter's wishes and only as a desperate last resort.
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she had been the victim of sexual assault and like so many others reported it to her commanding officer up the chain of command but like too many others her case went nowhere. her by the book reporting and patient waiting for results was met by delays, excuses nonresponse and ultimately during these repeated delays she was physically assaulted after she had warned leadership she feared for her safety. we took action and ultimately in this instance justice was done. but a chain of command like that isn't strengthening unit cohesion and morale, it's harming it. after this particularly troubling case i made a decision to join senator gillibrand as a cosponsor, to say mr. president, to all of us how can we accept this, how can this situation that's gone on for years be tolerable how can we justify the status quo? i am grateful for the leadership of the many senators on the armed services committee and
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throughout this body who have taken real steps to add significant improvements to the ucmj and to the code that underlice our -- underlies our military to take on and tackle these very real problems of sexual assault in the military. in my view taking decisions out of the quhain of command should only be done in the most serious of circumstances but that is exactly what we have here. we wouldn't find justice in if this was the way any other workplace operated. the men and women who dedicate themthemselves to keeping us safe deserve their safety and their rights. mr. president, if i might, i'd like to also speak about three bills that i'm offering as amendments to the ndaa that all relate to a topic that i've spoken to on the floor -- to manufacturing and to
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manufacturing jobs. the first is the american manufacturing competitiveness act, a bill i introduced last week with illinois senator mark kirk and enjoys the support of the presiding officer as well as senators blunt and stabenow. it has a simple but important objective: to require the creation after national manufacturing strategy. we need to know our country's direction, as we try to support the growth of manufacturing. we've grown more than half a million manufacturing jobs in the last three years and an encouraging sign but one we need to strengthen and support with a coordinated strategy between the federal government, state governments, and private sector to align our investments in research and development in new skills in new infrastructure to make sure they're all heading in our leading competitors all have successful and well-deployed national manufacturing strategies whether germany china, india south africa, they've all got prominently successful strategies which we lack. our amendment would require that every four years the secretary
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of commerce advise by a board of folks who think through research and then deliver a national manufacturing strategy. this amendment is bipartisan, simple, does not cost the federal government a dime, a and doesn't create a a new new program. it is a scngs measure i commonsense measure i hope we adopt. next in the 1970's, congress pass measured for the small business administration to ensure that small businesses that get contracts from the government aren't actually fronts for much larger companies. and last year we passed similar but distinctly different rules for the department of defense. most of the time these two sets of rules can peaceably coexist but in a few cases they conflict creating compliance difficulties for real small businesses. when both sets of rules aplierks the s.b.a. apply while the d.o.d. rules do not. this amendment is bipartisan,
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has no cost and will help deliver products and services without worrying about compliance. last, i am sponsoring a amendment with senator cory booker of new jersey. this is an important measure that would create more opportunities to train america's best talent and pave the way to new innovations. recently the commission an r&d in the u.s. intelligence committee reviewed our current and future r&d compass capacity to support our vital works. their unclassified report shows that in fact we have insufficient funding and a critical deficiency. specifically for one arks it said we may not have the kind and number of people we really need to build the next generation of satellites, to gather and process these intelligence upon which our national security relies. there's currently a program run by the department of defense
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steined to address one element of this problem. it's called the science mathematics and research program. the amendment calls on the secretary of defense to report back to congress on two things, whether the smart scholarship program or similar programs are in fact providing the necessary number of undergraduate and graduate students in the fields to meet the recommendations of the commission's report and recommend how those promises can become concretely improved. this amendment has already passed the house of representatives by a voice vote and would be an important if small, step toward paving the way for job creation and ensuring our national security now and into the future. i urge my colleagues to support these amendments and i'm grateful for the opportunity to contribute to the debate on these important issues. with that, mr. president i yield the floor. a senator: mr. president? the presiding officer: the senior senator from south
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carolina is recognized. mr. graham: thank you. i would like to speak in support of the mccaskill mccaskill-ayotte-fisher-levin, et al amendment. could you let me know when 15 minutesminutes has expired. mr. president, before we get started, i really want to thank senator levin reed, mccaskill, ayotte, fisher, and others who have been trying to carry the burden here to make sure that we reform the military justice system and the way the military operates vis-a-vis sexual assaults and misconduct, but at the same time make sure that we still have a military that can continue to be the most effective fighting force on the planet at a time when we absolutely need it. if you believe as i do, our military is the best in the world, you have to ask yourself, why? is it because of the equipment?
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we have great equipment. i would argue that the reason our military has become the most effective fighting force in the world is the way we're structured. if you're looking for a democracy, don't look to the military. the military is an hierarchical organization that's focused on meeting the challenges of the nation being able to project force at a moment's notice to deter war and if ever war comes, to decisively end it on our terms. i've been a military lawyer for over 30 years. i've been assigned as a military defense counsel for two and a half years a senior military prosecutor in the air force for four and a half years been a military judge i've served in the guard the reserve and on active duty for six and a half years. i have learned a lot as a
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military lawyer about the military. to my colleagues who are deciding what to do and what's appropriate the goal should be to make sure that america remains the most effective fighting force on the planet. and here's a proposition: you can't be an effective fighting force if you have rampant sexual assault or misconduct within the ranks. and this idea that sexual sexual assaults in the military are unacceptable too large in number and scope sign me up for that proposition. but the problems of society don't stop at the gate; they continue inside the fence. i would dare say that if we did surveys in south carolina
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missouri, new hampshire, new york about sexual assaults and their frequents frequency we'd all be disturbed. and the goal of our time here is to make sure that when it comes to our military that we turn a corner and that we create a legal system where people feel that if they file a complaint they're going to be fairly treated. and also a legal system, if you're accused of something you're going to be fairly treated. to my colleagues, there is a reason that every judge advocate general of all the services have urged us not to adopt senator jill brandt's solution to this -- gillibrand's solution to this problem. in the military, it is impossible in my view, to
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correct a problem without commander buy-in and holding commanders responsible. military commanders have you a you awesome responsibility and almost absolute liability for the job that we give them. it is their job to make sure that all under their command are ready to go into combat, perform their assignment in the most difficult task, make sure that your medical records are up to date to make sure that you're squared away when the nation needs you. this concept of the authority of the commander goes back to the very beginning of this nation. military justice is an essential part of good order and discipline. after 30 years of experience in this area the number of cases where a judge advocate recommends to a commander that you proceed to trial in a sexual
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assault or for that matter most any other alleged crime is a rounding error. so please don't suggest that our current system that you can't get a case in to trial because our commanders routinely blow off legal advice. that is not the case. commanders decide as to whether or not to proceed to a court-martial and what level of court-martial based on advice of the judge advocate community whose job it is to provide professional advice. the commander's job is to make sure that unit is ready to go to war. the lawyer's job is not to pick and choose who goes into the battle. the lawyer's job is to give that commander the best legal advice
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possible including who to court-martial and who not. but one thing that i hope you understand in this debate, that no lawyer, no judge advocate is every going to have to deal with the situation of picking and choosing in that unit who takes the most risk. we have for 200 years now allowed commanders the authority under the uniform code of military justice since 1952 and before the ability to maintain good order and discipline, the absolute responsibility to make sure the force is effective when it comes to the fight and giving them the tools to make sure that happens. what would bother me greatly is this conversation occurred: sir ma'am -- deeing on who depending
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on who the commander is -- there was an alleged rape last night a sexual assault in the barracks last night and the commander would say that's no longer my problem. send that to washington. ladies and gentlemen of the senate, that is the commander's problem. and to those commanders who have failed to make sure that we have the right climate in the military when it comes to sexual assault, your job is at stake. the military justice system, when it comes to rendering justice, i will put up against any system in your state. the reforms in this bill are going to become the gold standard i hope, over time. and very few jurisdictions will be able to do what we've been able to do. thanks to senator mccaskill ayotte levin and others, we've taken a problem in the military and i think brought a good
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solution. every victim will now be assigned a judge advocate to help them through the legal process. i wish that were true in south -- i wish that were true in south carolina but it is not. every commander whose advised to go to trial in sexual assault cases and who declines to accept the j.a.g., the judge advocate's recommendation that case is automatically sent up to the secretary of the service in question. so in the future, as commanders have to decide how to deal with sexual assault allegations when the lawyer tells them, sir -- ma'am -- this is a good case, and if for some reason the commander decided i disagree, that case goes up to the highest civilian member of that service the secretary of the air force in the case of my service. that to me, is a reform that
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will emphasize from the chain of command how important it is that we take these cases seriously. if we take the chain of command out, here's what we're saying, in my view. to every commander in the military you're fired. we the united states senate, have come to conclude that you the commander -- all commanders of the group -- are either insufficient to do this job intellectually or you just don't have the temperament or you're morally bankrupt. we're going to take away from you this part of being a commander. you are fired. i will never ever say that until i am convinced that there is no hope for our commander. that our commanders are hopelessly lost when it comes to these types of issues.
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i don't believe we're remotely there. in the 1970's you had upheaval throughout the country particularly in the military. we had race riots on aircraft carriers and tension ran high. how did we fix it? we made sure that every commander was held responsible for the atmosphere in their unit when it came to race relations and now i would dare say that the most equal opportunity employer in the whole country is the united states military because commanders changed the climate. under its censure gillibrand's approach we take out a group of military offenses to the commander, you're fired you can't do this anymore and we send these decisions to an 0-6 judge advocated, which i happen
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to be one by the way in washington. i cannot stress to my colleagues enough how ill conceived the system is from a military system point of view and the damage you're going to do to the command and to the fighting force if you go down this road. and let me tell you why. you're in afghanistan. there is a larceny and you talked about employment. senator coons mentioned workplace. a barracks thief is one of the worst things you can do in the military. you don't pick and choose who you room with. we pick who you room with. you don't get to decide where you're going to stay. we pick for you. we throw you in the most incredible conditions. we don't give you the comforts of home, and you have to trust your fellow soldier in the
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barracks and in deployment. and soldiers, like everybody else most are great some are bad. in the military, the bad apples, thank god are few. but under this construct we're coming up with, if you're in a deployed environment and there was a barracks theft case, a tent theft case that really does hurt morale because if you got to worry about somebody stealing your stuff that's really tough given the conditions you're living under. the commander could not deal with this. it would go all the way to washington d.c. to be disposed of rather than being disposed of on site. and why does it need to be disposed of on site? you need to render justice quickly, effectively so the troops can see what you're doing. and if you're the commander they have to respect you and
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they have to understand your role. so i cannot understand why the united states senate, when we've been at war for 11 or 12 years would come up with a solution to a problem that's real, that does harm to the very concept of what makes our military special. the ability to go to war the ability to be effective and have the commander make decisions that only a commander should be making. i'm a military lawyer. i am telling you right now don't give me this decision because i'm not required to decide who goes to battle. don't take away from our commanders in a theater of operation the ability to render justice in a way that the troops can see. mrs. mccaskill: mr. president would the senator yield for a
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question? mr. graham: yes. mrs. mccaskill: i want to make sure i understand something about nonjudicial punishment since you're on the barracks thief in afghanistan and we're going to send the case to a lawyer half a continent away to make a decision. let's assume the lawyer in washington decides there is insufficient evidence for that barracks thief that might be four months later. meanwhile the barracks thief is still there. it is my understanding and i think there is confusion about this by the people advocating this amendment that you cannot exercise nonjudicial punishment on a soldier if he chooses a court-martial proceeding. is that correct? mr. graham: that's exactly right. a nonjudicial punishment is authority the commander has to put people in confinement for up to 30 days, reduce in rank one or two levels depending on the rank of the commander and to
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withhold pay. it is nonjudicial punishment. you don't have a trial. the person is represented by a lawyer but there is no jury. the commander is the jury. mrs. mccaskill: so that commander -- the presiding officer: the senator has spoken for 15 minutes. mrs. mccaskill: so that commander who has to now send the barracks thief case to washington that soldier is not going to agree to nonjudicial punishment. he's going to say i'll take my chances with the lawyers ind with. and if the lawyers in washington say no, that commander's hands are completely tied to even put him in the barracks for 30 days -- i mean in the brink for 30 days. mr. graham: exactly right. every military lawyer who has looked at this is very worried about what we're about to do in terms of practical military justice. if you're 18 years of age, you had too much to drink you write a bad check, part of being a commander and a first sergeant
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is the paternalistic aspect of the job. how many of us have made mistakes at 18? instead of going to college you're going into a military unit. you bounce four or five checks. has that ever happened? under this system, the military commander no longer has the ability to deal with it in the unit. you send that case off to washington. the ability to give an article 15 a lesser punishment, is taken off the table. you're taking an 18-year-old mistake and potentially turning it into a felony. now does that help sexualt salts? our commanders can send them to your death but we don't trust them to deal with manslaughter cases? all i can tell you for 30 years i've been a practicing military lawyer and from my point of view our commanders take the responsibility to impose
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discipline incredibly seriously. they're skilled men and women. and we have let the soldiers, sailors, airmen, marines down when it comes to sexual assault. all of us are to blame in the military. we're going to fix that, but the problem, ladies and gentlemen is not the military justice system. we don't have a military justice system where commanders tell the lawyer go to hell, we're not going to deal with that. that's not the way it works. this new system takes a portion of offenses out of the purview of the commander and sends them to somebody in washington that nobody in that unit will ever get to see. that will delay justice will take tools off the table to make sure there is an effective fighting force in terms of dealing with a barracks thief in terms of dealing with the bounced check but also is taking young people who make mistakes and putting them in an arena where the only --
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ms. ayotte: would the senator from south carolina yield for another question? mr. graham: yes. ms. ayotte: under this situation where you said we have commanders that aren't going to ignore what is brought before them in an investigation from their jag lawyer, particularly on a sexual assault let's assume they did do that even though the evidence isn't there that they do it, under our proposal the proposal that i have that senator mccaskill has and senator fisher, that decision, if a commander makes the decision not to bring the sexual assault case, it then goes up for review of the civilian secretary of whatever forces the army, air force navy. what do you think that does in terms of accountability? mr. graham: if you want to improve the system and we all do -- i'm not questioning anybody's motives -- if a commander knows when they turning down the jag's advice and one of the four situations we've identified -- sexual
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assaults the nature of the discussion here, that decision will be reviewed by the secretary of the service. i can assure you that will do more good to make sure commanders understand how important this situation is to us and the country than taking their authority away. you're doing absolutely the worst possible thing to solve the problem from senator gillibrand's approach in my view but every judge advocate agrees with what i'm saying. you fill the military justice system with chaos basically take the commander's authority away in an irrational way. what you do is hold the commander more accountable by having what is the commander's worst nightmare i guess. anybody in the military having your boss look at your homework. how do you get promoted in the military? people over you judge your work product. let me just say this. it is not a military justice problem here. the reforms that we're going to engage in are historic. will be the model for seus timms
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in the future -- seus timms in -- system's in the future. we're going to assign judge advocates to victims. we're going to have something you should be proud of. we're going to hold commanders more accountable. here's the essence of the argument. you've got to take this out of the chain of command because there's something defective about the commander. because the commander doesn't have the ability or they have a bias against victims that you no longer can trust them to do the right thing. that to me, is an indictment of every commander in the military that i think, quite frankly is not what we should be doing or saying given the track record of how our military's performed. in the area of sexual assault the problems that you see in the military are all over the country. they're just talked about more in the military. the people in the military
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should be held to the highest standard but you will fix no problem in the united states military if you deal that commander out. ms. ayotte: the senator yield for a comment? and in fact the evidence is, looking at the facts that commanders are bringing more cases, are pursuing more cases than over the recommendation of their jags in skwaeult -- in sexual assault cases. the letter we've gotten from admiral winifield deputy chairman of the joint chief of staffs he pointed out there were over 90 cases where the commanders had a different view from their jags. cases were had and people were held accountable. the presiding officer: there are situations where joint -- mr. graham: there are situations where joint jurisdiction lies. there have been cases where the civilian community went first. there were 49 cases in the army
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where the civilian community decided not to prosecute in sexual assault that the army took up and they got an 81% conviction rate. in the marine corps 28 cases turned down by the civilian community where the marine base was at, that went to the court 57% conviction rate. in the navy, in the air force it's the same thing where you have civilian jurisdictions saying no to the case, the military saying yes we're going to go to court because there's a difference between what the civilian community is trying to accomplish and what the military community must be trying to accomplish. and that is to let the troops know that there's certain conduct that's out of bound and if it's even closure going to pay a potential price. now having said that, please do not blame sexual assault problems in the military on a broken military justice system, because it is not broken. the commanders are not telling the lawyers take a hike.
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the cases the lawyers recommend to go to trial actually do go to trial. and juries in the military, it is not a jury of one's peers. this is not a civilian system. everybody who goes to trial is an enlisted man is judged by officers. you can request one-third of the military jury to be enlisted members, but they are going to be the most senior people on the base. please understand that military juries are not constructed the way civilian juries are. they're told to be fair and they do their best to be fair. but it goes into the concept of how the military works. the only person entitled to a trial in the military of the equivalent rank is an officer. an officer cannot be tried by people of lesser rank. and that may sound unfair, but in the military it makes perfect sense. does it, pat? officers eat in one corner of the base and enlisted people eat
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in the other corner of the base not because they hate each other. they admire and respect. this chain of command these lines of authority make us -- i ask for one extra minute if i could. the presiding officer: is there objection? so ordered. mr. graham: thank you. this unusual situation for most americans works in the military. it may not sound right to you but it works because the military is about when you're ordered to do something you answer the order. you don't debate. so if we don't elevate the commander to have the tools available to make the right decisions, and if we don't instill those below the commander to follow, it all breaks down. and when a commander lets the troops down and they do sometimes, fire the commander. don't take away the authority of the commander to win wars that
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we will inevitably fight. this is not a civic organization. this is not a democracy. this is a situation where one person can choose to send another person to their death. that person is the commander and there are plenty of checks and balances. ladies and gentlemen, sexual assault is a problem but for god's sake, let's don't tell every commander in the military you are fired, you are morally bankrupt, you are incapable of carrying out the duties of making sure that justice is done in these cases. the presiding officer: the senator's time has expired. mr. reid: mr. president? the presiding officer: the majority leader is recognized. mr. reid: mr. president? the presiding officer: the majority leader. mr. reid: i ask unanimous
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consent that the motion to recommit be withdrawn the pending levin amendment 2123 be set aside for senator gillibrand or her designee to offer amendment numbered 2099 related to sexual assault, that the amendment be subject to a relevant side-by-side amendment by senators mccaskill and ayotte. amendment number 2170, that no second-degree amendments be in order to any of these sexual assault amendments, that each of these amendments be subject to a 60 affirmative vote threshold. mr. president, i am told that each side would like ten minutes. that is, the mccaskill side and the gillibrand side would be ten minutes to close. there are other people who want to speak now is the time to say something. mr. durbin: mr. president? the presiding officer: the assistant majority leader is recognized. mr. reid: do you want some time? mr. durbin: i understood there were 30 minutes left on the gillibrand side. mr. reid: how much time do you
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need if i get consent agreement? mr. durbin: ten minutes. mr. reid: so we need ten minutes for mccaskill also. that would be 20 minutes on each side. at the time then until 5:30. be equally divided and controlled between the opponents and proponents of the gillibrand amendments and the mccaskill amendment, that the senate proceed to vote in relation to gillibrand first and upon the disposition of that, the senate proceed to vote in relation to the mccaskill amendment and that there be two minutes equally divided between the votes. finally, no motions to recommit during the consideration of these amendments be in order. the presiding officer: is there objection? a senator: reserving the right to object. the presiding officer: the senator from -- the senior senator from oklahoma. mr. inhofe: thank you mr. president. i would like to ask the leader if he would amend his request to add the following language. following the disposition of the mccaskill-ayotte amendment all pending amendments be
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withdrawn and the republican manager or his designee be recognized to offer the next amendment in order followed by an amendment offered by the majority side and that the two sides continue offering amendments in alternating fashion until all amendments are disposed of. mr. reid: mr. president? the presiding officer: will the majority leader modify his u.c.? mr. reid: mr. president we went through this yesterday. i reluctantly object. the presiding officer: objection is heard. is there objection to the majority leader's request? a senator: reserving the right to object. the presiding officer: the junior senator from oklahoma is recognized. mr. coburn: this is a very important bill for our country in terms of authorizing the defense of this country. and many of us have relevant amendments not amendments outside the scope of this bill but relevant amendments that will actually markedly improve the way we conduct policy in the defense department. and without the assurance that those amendments are going to be able to be offered they can be
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tabled, but without that assurance, it makes it difficult to agree to a consent not knowing whether or not we will have the opportunity to represent the people we represent in offering amendments that will make positive improvements to this bill. and so i would put forward that we're really not conducting the business of the country. if we're limiting the ability of members of the senate to offer amendments. and absent that guarantee, i will object. the presiding officer: the objection is heard. mr. reid: mr. president? the presiding officer: the majority leader. mr. reid: i would -- we have 350 amendments that have been filed on this bill. every person that filed an amendment, i know they feel very entitled to offer that amendment, but i just think that
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we are not in a position to deal with this, for all the reasons that we have talked about here for several months. we're not seriously legislating anymore, and we can pass the blame to anyone we want to do that. but, you know, we have tried all kinds of things. how about so many amendments on each side. we've done that before. that's nothing that's her ethical, it's nothing that is unique. we have done that lots of times in the past. that doesn't work. how about 13 amendments? no that won't work because we want more amendments after that. so i understand and i'm not denigrating anyone's intent. i know the intentions are good. my speeches, the record reflects how i feel about this bill, but i'm sorry that we're at the point we're in. couldn't we at least everybody vote on this amendment that people have spent days of their lives working on? it doesn't matter how you feel about what has been done, but
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there has been tremendously important work done on this sexual assault issue. and we should at least have the opportunity, with the work that's been put into this, to have a vote on this. no one has -- is disenfranchised by doing that or move to try to figure out something else out after that. but gee whiz, couldn't we do that? otherwise, we will walk away not having done anything on this. i think that's so unfair to the people that work on this. i know the other people have worked hard on their amendments, but i would have to say in the last year or two no one has worked harder on amendments than the proponents and opponents of this amendment. so mr. president having said that, i have consent here that i have someplace. here it is. okay. i ask unanimous consent that we move to a period of morning
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business for debate only until 7:30 p.m. tonight. the presiding officer: is there objection? the senator from michigan. mr. levin: is that a unanimous consent request? mr. reid: yes, it was. mr. levin: of course, while reserving the right to object, i will not. but i will say this -- i can't tell everybody in this body how disappointing it would be if we do not finish this bill tomorrow night or friday because the issue is this -- we all ought to face it. there is only one week left where both the house and the senate are going to be in session. if we don't finish this bill this week, there cannot be a conference report, and then for the first time in 52 years there will not be a defense authorization bill in the absence of some miracle. i would plead with our colleagues to let us vote on this amendment. the alternative was a list of 13
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amendments which we were willing to then move to. that wasn't satisfactory. i mean, we have got to do this a step at a time. we have done it that way before. we can't even get cleared amendments agreed to where both sides have cleared them into a manager's package. now, if senators want to vote tomorrow or friday against the cloture petition because their amendments haven't been reached they're free to do so. that is plenty of -- quote -- leverage which i guess is the currency around here, tragically but i would plead -- and i know senator inhofe and i have worked so hard on this bill and i think he feels the same way. we need to get this bill finished this week or else we're not going to get a conference report. mr. reid: mr. president? a senator: reserving the right to object. the presiding officer: the majority leader is recognized. mr. reid: oh, i'm sorry.
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does my friend want to -- and i would say while they are reserving the right to object, there is still time left under -- with the tentative agreement we had, it was just kind of a handshake that there would be six hours, is that right, and there is still time left on that, so that time for debate only, that time could still be used. the presiding officer: is there objection to the request? a senator: reserving the right to object. the presiding officer: the junior senator from oklahoma is recognized. mr. coburn: first of all the amendment we're talking about isn't pending because the tree has been filled. so we don't even have an amendment pending. 76 times the majority leader has filled the tree. more than two times all the rest of the senate -- more than two times than all the rest of the senate majority leaders in history. last year, under senator levin
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and mccain's leadership, we considered 125 amendments or thereabouts, some in a managers' package with others. there were over 300 amendments offered. the average length of time to consider this bill is about two and a half weeks. we have had it up less than a week. and the fact is is a consideration for a budget in an authorization bill in excess of $500 billion and we're not going to have amendments on it. so there's not a unanimous consent that i want to agree to until we agree to open up the senate to allow amendments to offer their ideas. table them. the fact is if we run this just like we did last year, we'll be through with this in five or seven days. if we continue to do what we're doing now we won't finish it. and it won't be because we don't want to finish it. it will be because we won't have the opportunity to put input into a bill that is over 50% of our discretionary spending in this country.
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the presiding officer: is there objection? mr. inhofe: yes reserving the right to object. the presiding officer: the senior senator from oklahoma. mr. inhofe: i think when we are going through exercises like this, there are some people who want to have their program placed on a must-pass bill in order to get something through. the senator from oklahoma, the junior senator from oklahoma made it very clear that he's talking about something that he feels is relevant to the defense of this country and i -- i think that sounds -- that sounds reasonable. what i'd like to suggest to the majority leader and to my very good friend with whom i have worked for many, many years the chairman of the committee chairman levin, is that we can qualify and work on a u.c. that would either use the words germane, relevant or related in some way to -- so that those amendments had nothing to do with defending america might be able to be considered in some form. maybe a limited form.
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i would like to be able to sit down and see if somebody like that -- something like that can be worked out before giving up on this thing. the presiding officer: is there objection? mr. reid: mr. president? the presiding officer: the majority leader. mr. reid: yes i know that there is a unanimous consent request pending. i have no problem in the world with continuing to work to see if we can come up with something. we have tried. it's not as if we haven't tried. but my disappointment is that we're just not doing any legislating here, and i -- people point all the blame to me all they want. we can get in all kind of statistics if we want about what's happened in years past and why it has been necessary to fill the tree, but that doesn't accomplish anything. everyone kind of knows what's going on around here. so i'm not going to get into a he said, they said situation. i know that the two managers of this bill want to get something
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done. let's give them the time it takes to get that done. so my consent is pending and i would like the chair to rule on that. the presiding officer: is there objection to the request? a senator: i object. mr. reid: i note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:
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quorum call:


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