The Congressional Record now has the full transcript of the floor debate on Senator Gillibrand’s “Military Justice Improvement Act” (S. 1752) (link to Thomas) (cloture failed) and Senator McCaskill’s “Victims Protection Act” (S. 1917) (link to Thomas) (cloture invoked; vote scheduled for 5:30 p.m. on Monday, March 10).

I’ve saved the text of the debate as a 31-page PDF that you can download here.

I encourage you to read it all, but I think the comments of Senator Levin (D-MI), Chairman of the Senate Armed Services Committee, are particularly good and I reproduce them after the jump.

Mr. LEVIN. Madam President, first let me thank Senator McCaskill for her terrific leadership on this matter and Senator Ayotte and others on our committee who worked so hard to strengthen our laws against sexual assault and strengthen the ability of our commanders to act, as we did in our defense authorization bill and in the second bill we will be voting on today.

We will be voting today on two bills regarding sexual assault in our military, and I believe the strongest, most effective approach we can take to reduce sexual assault is to hold commanders accountable for establishing and maintaining a command climate that does not tolerate sexual assault. In order to do that, we must maintain the important authority to prosecute sexual assaults that our military commanders now have, and we must add greater accountability for those commanders.

The evidence shows that removing this authority from our commanders would weaken, not strengthen, our response to this urgent problem. That is why I believe the bill offered by Senator Gillibrand and others, though offered in the hope that it would strengthen our efforts against sexual assault, will in fact have the opposite effect.

In the last year we have learned that in scores of cases during the period study, commanders prosecuted sexual assault cases that civilian attorneys had declined to prosecute. We have learned our military allies, whose policies have been cited in support of removing commanders’ authority, generally made their changes to protect the rights of the accused, not the victim. We have learned there is no evidence that their changes resulted in any increase in reporting of assaults. So when the allies made the change–not to protect victims but to increase the rights of the accused–it did not lead to any increase in the reporting of assaults.

On January 29, we received the conclusions of a report from the Response Systems to Adult Sexual Assault Crimes Panel–an independent panel of legal and military experts of diverse backgrounds that was established by Congress to advise us on how to respond to this issue. A subcommittee of the panel addressed the role of commanders in prosecuting sexual assaults, the very issue we will be voting on today.

Here is what that subcommittee concluded:

There is no evidentiary basis at this time supporting a conclusion that removing senior commanders as convening authority will reduce the incidence of sexual assault or increase sexual assault reporting.

The subcommittee reached that conclusion, despite the fact that many members began the process sympathetic–if not outright supportive–of the notion that we should remove the commanders’ authority.

Here is what one member of the subcommittee, former Congresswoman Elizabeth Holtzman, said:

I’ve changed my mind, because I was just listening to what we heard. I started out ….. thinking, why not change it and now I am saying, why change it. ….. Just turning it over to prosecutors doesn’t mean you are going to get the results you are looking for. …..

Congresswoman Holtzman authored the Federal rape shield law when she was a Member of Congress.

Another member of the subcommittee, former Federal Judge Barbara Jones, said that if you remove this authority from commanders “there is no empirical evidence that reporting is going to increase. ….. If I were persuaded that removing the convening authority would encourage victims to report then this would be a different story. But I am not persuaded of that.”

Listen to Mai Fernandez, the executive director of the National Center for Victims of Crime. She was a member of the panel, and this is what she said about the proposal to remove commanders’ authority to prosecute:

When you hear it at first blush, you go, “Yeah, I want to go with that.” But when you hear the facts, like you would in a case, it just doesn’t hold up.

The women making those statements had no stars on their shoulders; they are not Pentagon insiders. They are members of the independent panel that we in Congress tasked with reporting to us on these issues.

Underlying the crisis of sexual assault in our military is a problem of culture, a culture that has been too permissive of sexual misconduct, too unaware that a person who is successful in his professional life may also be a sexual predator. It is a culture too prone to ostracize or even act against those who report sexual assaults.

The military has unique tools to address those problems. Foremost among those tools is the authority of the commander to establish a command climate by giving orders and enforcing discipline. At every time in our history when our military has faced such cultural challenges–such as the challenge of ending racial discrimination in the 1940s and 1950s or the challenge of ending don’t ask, don’t tell in our time–commanders with the authority to initiate courts-martial have been essential in achieving change.

But we are not going to achieve change if–at the same time we demand of our commanders that they change the military culture to take on the sexual assault problem–we remove their most powerful tool to achieve that change.

Senator Gillibrand’s bill creates a new, separate disposition authority to deal with the sexual assault and other serious crimes. Our focus throughout this debate has been, rightly, on how to improve our approach to sexual assault. As a matter of fact, sexual assault would make up just a fraction of the cases this new disposition authority would deal with.

In a letter to me, Under Secretary of Defense for Personnel and Readiness Jessica Wright recently reported in fiscal year 2012, the Department of Defense estimates it handled more than 5,600 cases that would be referred to this new disposition authority if it were created, but two-thirds of those cases did not involve sexual assault. The Gillibrand bill would shift dozens of our top military lawyers to a new authority that would spend only one-third of its time dealing with the problem we are trying to solve, the problem of sexual assault.

The National Defense Authorization Act, which we enacted just a few months ago, provides our commanders with additional tools to meet this challenge and important new protections for victims. It provides victims of sexual assault with their own legal counsel specially trained to assist them. It makes retaliation a crime when that retaliation is against victims who report a sexual assault. It requires that the inspector general investigate all complaints of retaliation. It requires that any decision by a commander not to prosecute a sexual assault complaint will have an automatic review by a higher command authority–in nearly all cases by a general or flag officer and in certain cases by the service Secretary, the highest civilian authority in each service.

The second bill we are going to vote on today–offered by Senators McCaskill, Ayotte, and others–provides additional protections to those we just added in the National Defense Authorization Act. The McCaskill-Ayotte bill ensures victims have a voice in deciding whether their cases will be prosecuted in the military or civilian justice system. Indeed, it requires that special victims’ counsel established by the National Defense Authorization Act advise victims on the pros and cons of those two approaches. It requires that commanding officers be graded on their success or failure in creating a climate in which there is no tolerance for sexual misconduct and in which victims can come forward without fear.

These additional protections in the McCaskill-Ayotte bill help us answer the key question of how can we best strengthen our protections against military sexual assault. I believe we do so by empowering victims and by holding our commanders accountable, but we threaten to weaken those protections if we undermine the authority of the very commanders who must be at the heart of the solution. Powerful evidence should lead us to the conclusion that we should not remove the authority of commanders to prosecute these cases.

I thank the Presiding Officer and yield the floor.

27 Responses to “Transcript of yesterday’s Senate floor debate on the Gillibrand and McCaskill military justice bills”

  1. k fischer says:

    Summary:  We are not as concerned about the consitutional protections afforded the accused because they are trumped by the complaining witnesses.  Also, McCaskill’s proposal will continue to allow us to create a personal bias in each and every convening authority who will have in the back of their minds when deciding whether or not to refer a court martial after a shaky Article 32 that their promotion will be held up if they choose to dismiss.
    How does the GCMCA not become an “Accuser” under Article 1(9) now?  I think every case that continues post recommendation that the charges be dismissed by an Investigating Officer, Trial Counsel or SJA, should have a motion to disqualify the GCMCA under ARticle 1(9), UCMJ.

  2. RKincaid3 says:

    McCaskill’s bill is a mess. It needs a lot of work.  But it supports the status quo and therefore survived while Gillibrand’s bill did not and it died.  Makes one wonder…

  3. Abe Froman says:

    The thing that bothers me through all of this is that we are battling a Congressional created caricature that is not the reality that most of us face on any given day. 

    Underlying the crisis of sexual assault in our military is a problem of culture, a culture that has been too permissive of sexual misconduct, too unaware that a person who is successful in his professional life may also be a sexual predator. It is a culture too prone to ostracize or even act against those who report sexual assaults

    I would venture that the vast majority of cases we encounter involve servicemembers under the age of 25.  This doesn’t strike me as a problem of military culture, but a societal one.  These kids come to us broken and we are expected to fix them with powerpoints, PSAs, posterboards and training standdowns.  It is the folly of modern progressivism…

  4. Zachary D Spilman says:

    The thing that bothers me through all of this is that we are battling a Congressional created caricature that is not the reality that most of us face on any given day. 

    Watch the video Abe Froman. Particularly the middle of Senator Boxer’s comments (beginning at 2:51:50 in the video) where she uses some pretty compelling demonstrative aids (filled with the military leadership’s own words and statistics) to decry “20 years of baloney.”

    The caricature is of our own creation.

  5. DCGoneGalt says:

    The Sausage King of Chicago hits the nail on the head.  This issue is political theater in which facts will have no bearing on the debate or the eventual solution that is crafted.  Sadly, no one in a position of authority seems to have the courage to behave like a rational adult and explain why cases do not go forward (some are untrue, some victims do not want to participate, some cases just do not have the evidence regardless of whether you believe an assault occured) and why cases result in acquittals (which will only increase as you send more to trial because the additional referrals are coming from the pool of cases that are generally weak on evidence). 

  6. RKincaid3 says:

    Abe/Z.S./DCGG: I concur with each of you.  And I concur that it is a myth that the military has is a culture of sex assault. It is not. That accusation, though, is a convenient message to justify political agendas, some of which are progressive, some of which are not.
    While many youngsters do indeed coming to us broken, all come to us without any experience with (or expectation of) the new social paradigm afflicting the military. It is a paragigm that does not reflect the American culture in whch they were raised: that much of what they say or do will lead to some type of punishment or adverse consequence based solely upon an allegation, and that much non-sexual conduct is now sexual conduct.
    Sex assault allegations, specifically, are rampant not because our kids are broken, but because the new Art 120 criminalizes and classifies so much ordinary, non-sexual human conduct as sex assault, which leads to the imposition of a lifelong “Scarlet Letter” as a RSO. Even veteran service members who have been through the military’s cultural upheavals before are having problems with this one–because making so much general human conduct criminal, and ending one’s career on so little actual proof–is not how we were brought up and educated and trained.
    The current military environment is toxic, as evinced by the slow, domino-like fall of the best and brightest among us who are not new to the military. I would not be so concerned about their fall if the fall followed a trial. But it doesn’t.
    With all the news about toxic leadership in the military lately, I can’t help but wonder if Congress recognizes its role in creating this envrionment.

  7. k fischer says:

    In addition to a GCMCA having a personal stake in ensuring that a bs sexual assault allegation sees the inside of a courtroom due to Congress’ actions to hold Commanders accountable via promotions, I am also concerned that a panel will now be concerned that their CG would have his or her promotion delayed or denied by Congress because of the lack of convictions and predominance of acquittals.  
    What prevents a Congresswoman like Claire McCaskill from doing such a thing?  Nothing.  She is certainly the most educated and savvy on the issues presented in this debate.  She knows the way to ensure more prosecutions is to hold the Commanders feet to the fire.  
    Gillibrand has the right idea, but for the wrong reasons.   I agree that her way will be worse for accusers and better for the accused, which is needed to counteract the UCI injected into the system.  I don’t see how she doesn’t get that.  And, I chuckled when I saw Ariana Klay standing next to her.  Her and her husband’s performances in “The Invisible War” were pathetic; the transcripts of her testimony at her Court martial would make a blind man’s eye roll.  She is too ignorant to realize that her Senator’s plan is actually going to be the most fair plan to the accused. 
    As I’ve said before, Congress is like a flock of seagulls, they swoop in, squawking, flapping their wings, and crapping all over the place, then they fly off and leave you with a giant mess to clean up.

  8. stewie says:

    “Modern progressivism” has nothing to do with it.  It’s the result of being human.  Sexual assault has been going on as long as sex has, and as Prince would say, that’s a mighty long time.
    People were getting drunk and having sex for quire awhile.  So yes much of it is human, not military.  Then again, US society is big on drinking and getting drunk, and military culture ramps that up to 11.  Then we are shocked that sexual assaults happen when you mix drinking and young people.  We could ameliorate the sexual assault program simply by stopping the sale of alcohol in class 6 and otherwise deemphasizing the culture of alcohol in the military.

  9. RKincaid3 says:

    We could ameliorate the sexual assault program simply by stopping the sale of alcohol in class 6 and otherwise deemphasizing the culture of alcohol in the military.

    Good idea.  And good luck getting that past AAFES, who makes a killing on alcohol and tobacco sales.  That unofficial special interest alone will kill that bill.

  10. DCGoneGalt says:

    I disagree, Stewie.  This is a prime example of the “modern progressivism” need to find and/or create problems to fix the issue of men preying upon women when the problem is in large part created by the moral relativism that sanctions and encourages sexual licentiousness.  The current environment is the result of a politically motivated hysteria in which “modern progressivism” seeks to remedy a situation and is doomed to failure because of a willful blindness to the facts of what created the problem. 
    I say this even though, at this point, I could care less if Congress chooses to relieve commanders of Article 120 convening authority and instead place the authority in the hands of JAGs.  I say this because the political pressure will simply be transferred onto JAGs and they, as a whole and especially at the leadership levels, have shown no more ability to withstand the political pressure than commanders.  It would merely be a legal shell game.
    Thank God for member panels as the last safeguard against the inability of commanders and JAGs to stop this modern-day witch hunt.

  11. stewie says:

    Wow. So the problem is sexual licentiousness caused by moral relativism? So you think if we just went back to the good old days when no one had sex before marriage we’d nip this sex assault thing in the bud?

  12. afsvc says:

    Indeed we would, Stewie; prior to those pesky Hippies, folks always made sure to keep alcohol and sex separate…

  13. Dew_Process says:

    OK, so why not withhold federal funding from college campuses that don’t toe the line as well – those 18-14 year olds are in the same sociological situation as the young enlisted, away from home, away from parental control, booze and members of the opposite sex.
    Add to that, the cultural shift whereby nudity – at least in the quasi-private digital world – is meaningless, e.g., I’m reading a ROT right now where the female openly admitted to sending “nudies” of herself to the Accused “to get his attention” because she “wanted to ‘hook up’ with him!”  They both got drunk, got caught – she got an ADMIN SEP, he got 15 years for an aggravated sexual assault of an “incapacitated” person.
    The combination of rampant hormones and alcohol is a toxic brew.

  14. DCGoneGalt says:

    Yes, Stewie, (deliberately ignoring afsvc) when society encourages the idea of sex without consequences or any deeper emotional meaning you end up with people who believe sex is without consequences and is merely a pleasure seeking endeavor.  When those people join the military they find that there are consequences and, especially among our younger members, it creates a crisis of rampant drunken sex which the military is attempting to criminalize (well, at least for the men) by imposing some sort of retroactive non-consent.
    Dew_Process illustrates the political nature of the faux crisis by pointing to the college world where studies indicate the prevalence of drunken sex is much higher than in the military.  Although many colleges have administrative procedures that have attempted to punish the typical drunken sex allegation they have not engaged in the constant messaging that the military nor are they forced to keep accurate statistics on the prevalence of sexual assault.  If this was not a political issue then Congress would be threatening federal funding to higher education.  However, the military makes an easier target (and I do think some of it is from those who reflexively believe the military is an evil entity that needs to be brought to heel) because it is directly subject to Congressional control.
    So the military will continue to refer more cases, the acquittal rate will go up (because I believe, except for senior officers, the messaging campaign is starting to backfire) because the additional cases that will be referred have even less of a chance of conviction.  However, this will be taken as further ammunition to attack the military and, in time, the media will hand-select a few outlier cases to re-attack the system.

  15. stewie says:

    So you think rape and sexual assault of women started with the liberalization of America? Yeah, I don’t think the facts bear you out.  When people join the military, they learn that excessive drinking is tacitly encouraged and only minimally officially discouraged and poor attitudes towards women are still allowed to have some level of purchase.  Of course, these lessons are also learned at universities.  The difference is twenty years ago, the very IDEA of drunken sex equaling sexual assault would have been laughed at, and thirty years ago, you could use the “but she was a slut” defense.  The military is an “easier target” because the military is the only entity that Congress has any control over not because “the military is evil.” 
    Were your theory to be true, there would be clear, objective evidence that sexual assaults didn’t happen nearly as much in the 50s and 60s (or whenever you think the Pleasantville-like Utopia ended).  Very little evidence for that.  What there is evidence for is that the scope of what we considered sexual assault boiled down to jumping out of the bushes forcible rape, and not much else, that women had the emphasis on their own chastity and the men little incentive to respect it, and that alcohol was viewed as a means to an end, not a facilitator of sexual assault (after all, no decent woman would drink with a man who wasn’t her husband/boyfriend, in public no less).
    You want to reduce sexual assault in the military? Get rid of the alcohol culture that’s been present in the military going back at least as long as I’ve been in, and that’s quite awhile.

  16. DCGoneGalt says:

    Stewie, I am generally a big fan of your posts but on this one I just believe we are bound to be two ships passing in the night.  It is the hysteria-driven political climate which has created a crisis atmosphere out of drunken sex and it is drunken sex which has become acceptable.  Rape and sexual assault did not begin with liberalism, however it is the attempt to re-define what constitutes sexual assault based on feminist legal theory and the misleading briefings which take those theories to their logical extreme (one drink means non-consent) which have created an increase in reports based on an apparent belief that retroactive non-consent constitutes sexual assault.
    Every time people drink heavily and have sex should not be the potential basis for a sexual assault allegation.  Because of the changes in the law it now is.  While there certainly are alcohol facilitated sexual assaults, the current environment has led to a climate where “victim-blaming” now seemingly prohibits an impartial consideration of the facts at the disposition stage as convening authorities become a matador waving all but the most patently weak cases forward.  I agree that getting rid of the alcohol culture would be a good thing.  However, a politically motivated witch hunt based on (deliberately?) inaccurate statistics and a messaging campaign that appears to be based on instilling fear within the command and misleading recitations of what is the law to the rank and file is not the way to change the culture.  It is the way to destroy what was once a respected system of justice that served the ends of good order and discipline.

  17. Zeke says:

    Thank God for member panels as the last safeguard against the inability of commanders and JAGs to stop this modern-day witch hunt.

    The witch hunt is exactly what the jury system was designed by our English ancestors to combat.  It’s too bad that, for our military service members, we have abandoned the jury, with it’s requirement of a unanimous verdict from a large and diverse group of people, for a pale and distorted reflection: a court-martial panel.

  18. stewie says:

    The problem is not about liberalism or even the idea that “drunk sex” can be a crime (and technically drunk sex isn’t a crime, sex with someone incapacitated by alcohol is–the fact that differential is codified in law belies your argument), it’s about specific attempts to codify the latter improperly, not the overarching concept.
    But, for the sake of comity, and the desire to not bore/anger the rest by us engaging in a back and forth on a deeply side issue, I agree we are two (platonic) ships passing in the night…on opposite sides of the planet…and shall speak of this no more.

  19. DCGoneGalt says:

    Two sober platonic ships passing in the night.

  20. Tami says:

    It’s movies like Varsity Blues and American Pie that make the younger generation think this is all fun and games.  Great movies for sure, and funny, but in real life, Tweeter would be going to jail for the rest of his life, and Michelle would probably be going to jail too.  Kids nowadays watch those movies and laugh, and hear other people laugh, so talking about dropping Valium in girls’ drinks to get them to drop their panties becomes acceptable.

  21. A.Firefly says:

    It requires that commanding officers be graded on their success or failure in creating a climate in which there is no tolerance for sexual misconduct and in which victims can come forward without fear.

    Translation.  Dear Commander, Every allegation you hear of, no matter the evidence, must result in preferral of charges and complete immunity for the complaining witness.  Message to everyone else: Get complete immunity by making an allegation.  

  22. Tami says:

    Another translation:  Dear Commander, any allegation of sexual misconduct must not only result in preferral of charges, but also a conviction, or you get a big fat F on your next evaluation.  And don’t even think about supporting a Chapter 10, because in our sense of Congress paragraph, we frowned on Chapter 10s.

  23. Tami says:

    Interesting that Senator Imofe referred  to LTG Darpino as “he.”

  24. Balkan Ghost says:

    That the Response Systems panel was hardly independent since the Pentagon got to choose the majority of participants. Which is like asking the NRA to convene a panel to consider gun control proposals. 
    That our military allies who removed command authority over courts-martial have not experienced an epidemic in sexual assaults like we have. That removing the command authority in those countries had no noticeable impacts on good order and discipline, except in Canada and Great Britain, where the change helped cases get to trial faster. 
    That broad “cultural challenges” in the military like racial integration and DADT only changed when Congress intervened. 
    That the proposal with the most votes lost.

  25. Balkan Ghost says:

    Last line should say, “That the proposal with the most public and political support lost.”  
    I am also curious about Senator Levin’s concern for senior military lawyers being able to handle 5600 cases. Apparently, he thinks that our flag-level commanders are the ones who have enough time to contemplate these cases. Perhaps this narrative is why the service JAGs quietly removed their announcements to conduct selective early retirement boards for O6s. The narrative of “We have too many JAGs sticking around” quickly turned into “We don’t have enough lawyers!” during the Pentagon’s MJIA lobbying.  

  26. RKincaid3 says:

    Sigh.  How come so few of us see (and know how to fix) this problem so clearly?
    And the fact that members of Congress do not know that the Army’s TJAG is a woman reinforces how little they know about the system they are screwing with, er, up. 
    Any responsible person would at least attemp to understand the system and its players before they act to alter it. 

  27. Balkan Ghost says:

    K Fischer:  I love the way you’re thinking about these issues.