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tv   Key Capitol Hill Hearings  CSPAN  November 21, 2013 8:00am-10:01am EST

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contract, so you were not involved in the security issues involved with those web sites? >> the security, yes, but not the development, scaling or testing of the -- >> were you involved with the testing of the security? >> yes. >> and was it working? >> yes. >> at october 1? >> everything that was under our scope -- >> under your scope. >> yes. >> but in terms of how it relates to other parts, you don't know? >> i would not know that. >> okay. mr. amsler, were your parts working okay, and was that also tested in regard to the others? >> congressman, to be clear, as far as our work is concerned, our focused work around operational monitoring, curt and some testing -- security and some testing, we absolutely were working. i can't speak to the rest of the groups and the teams that were involved in development or even the -- >> what i'm trying to find out was that typical, atypical, and would you be concerned about how your parts worked in conjunction with the site overall?
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is that not typically a question you would ask? >> well -- or. >> it's like this. if you design a part for a car, you know your part's working, would you like to know that the car works? >> absolutely. >> that's what i'm asking you, would you have liked to have known your system worked, is that correct? >> well, that would be correct. >> ms. bauer? >> yes. >> okay. are these controls embedded in the applications at the direction of cms? >> they were assessed, but, yes, they were embedded, configuration changes would be made based on controls. >> and at what point of the phase should security controls begin to be embedded into the application? >> at the production phase. generally, when we test, we're assuming we're looking at the production-ready version of the application, and then we apply those cms security controls we
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talked about and assess those against the production-ready version. >> they 'em belledded into the architecture of >> the overall cms enterprise security controls are to be applied across all the systems of >> they should be embedded then into health care dot governor? >> it should be. >> were they in. >> i have no way of knowing that. >> ms. bauer, do you know if they were? >> i do not know. >> mr. amsler? >> i would not know the answer. >> you don't know if they were embedded, but you would have liked to have seen that. >> for some parts. >> correct. >> now yield to ms. degette for five minutes. >> thank you, mr. chairman. as mr. chao testified, it's part of cms' protocols that they hire independent contractors to test different parts of the security can aspects of the site, is that your understanding as well,
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mr. providakes? >> yes, it is. >> and is it yours, ms. bauer? >> yes. >> and is it yours, mr. amsler? >> yes. >> so, mr. providakes, i want to ask you first, you testified your company was not hired to do the, to perform end-to-end security testing. is that correct? >> that's correct. >> and so what your job was, to assist and identify risks and specific components of to work with cms and to address those concerns and report on the findings and results, is that correct? >> that's correct. >> and am i correct in virtually all cases when you did identify high risk at components, cms was able to mitigate those risks before the system went live? >> yes. almost all the high risks were mitigated. >> and you said in your testimony, in your written testimony miter is not in charge of security for, we were not asked, nor did we perform end the-to-end security
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testing, we have no view overall of the security status of, that's because you were asked to do a narrow assessment part of it, right? >> in scope and a time -- >> and time. now, i just want to ask you, what's your personal view of the overall safety or security of having worked on this at least some aspects of it? >> well, just from a personal pair spective, knowing cms' experience in the past as henry chao alluded to, they do a very solid job in terms of securing their systems historically. >> and what you were doing was part of the same types of things cms has done to secure their systems in the past -- >> that's correct. >> is that right? >> that's correct. >> ms. bauer, now, as i understand it, mr. amsler, your company works sort of as a contractor of ms. bauer's company, is that right? >> yes. >> okay. so what you folks do is your company -- ccsi monitors the
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tirewalls and network devices for the e-cloud that hosts and scans the web site's application for security -- [inaudible] b is that correct? >> they can.. -- they can. >> and on october 22nd you briefed this committee, and at that time had you detected activity you would consider to be off the ordinary for a system like this? >> not out of the ordinary, no. >> okay. and are you continuing to monitor the web site moving forward? >> yes. we continue to perform all the functions of our contract. >> and why is that? >> i'm sorry? >> why are you continuing to monitor the functions? >> because that's the scope of our contract. >> okay. and have you detected my activity since october 22nd that you consider to be out of the ordinary? >> well, we would detect activity on a daily, if not hourly basis. that's part of the nature of security monitoring. where it's extreme or out of the
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ordinary, there's nothing that's been brought to my attention that would -- >> and would that then be reported to cms? >> yes. there's a an incident response plan, and we follow the procedures of that plan. >> have you seen anything that would indicate some terrible problem with the web site vis-a-vis security? >> nothing that i've seen or that's been escalated to me, no. >> okay. and there's another contractor, as i understand it, that's also been asked to look at other aspects, and that's verizon. they're not here today. is that your understanding as well? >> yes. >> so, ms. bauer, has your company worked with cms before? mr. providakes' has on security issues. >> no, we have not, but we do other security work. >> okay. and mr. amsler, what about your company? >> not directly with cms. >> okay. so you wouldn't know whether this mirrors, but, mr. providakes, you're telling me with what your company has
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done before, you're seeing a similar concern and readiness force for security applications. >> well, what i said was that following cms' approach towards security, they do execute, you know, 10, 20, 70 scas a year executed for cms. so part of their process to look for the input of these scas which is a rigorous process, a definition defining a parameter in a moment of of that we would conduct these scas as input to the ato process. >> okay. thank you. thanks, mr. chairman, i appreciate it. >> let me ask clarification something ms. degette said. you used the word historically. were you referring to the web site or in the past? >> in the past. broadly across cms interms of their -- in terms of their security rigor they apply across their systems.
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mr. olson, you're recognized five minutes. >> i thank the chair. i mostly want to thank the witnesses. very brief questions. i mean, up and running is not rocket scientists. and that's good, because if it were, we'd still be waiting to land on the moon over 50 years later. you might have seen the red team report, have you all seen that? >> i have not. >> okay. i'll get some copies to you. i apologize if you haven't seen it. but on page 4, large scale rams and the current state of, and i want to ask you some yes or no questions, do you agree with the statements of this report, and it's comparing large scale program development program with the characteristics of clear around a ticklation, requirement -- articulation, requirements and assessed
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metrics at health care -- [inaudible] mr. providakes? yes or no, sir. [laughter] >> it's very difficult to answer that question. is that hypothetical? >> yes, sir. clear articulation, and has that happened on -- >> that's what i'd love to, design to, build to, to, and that would be great. although it's rare. >> requirements with, has that been a rob? >> i'm not sure. i would think there were a number of requirements for >> ms. bauer? >> i would just have to say -- >> i apologize briefly, ma'am. >> however, i wouldn't have insight into the current situation because that involves the development of >> mr. amsler? >> i would, i deal -- i agree
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with ideal. again, we weren't involved this those aspects, i couldn't speak to it. >> how about the program ideal is sequential requirements design, build and testing, revision between phases and what the current situation is pair rell stacking of all -- parallel stacking of all tases. do -- phases? do you agree -- i apologize, sir. >> that's fine. it would create significant challenges to the program office. >> has there been parallel stacking? >> it would be a significant challenge to do that. >> ms. bauer? >> i would agree with that statement. >> mr. amsler. >> >> degree. >> okay. how about integrated operations is and testing is ideal? i think we all agree with that s. what's happened is insufficient time and scope of end-to-end testing. would you all agree with those statements, yes or no? >> i guess in the context you put it, you're saying is there
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limited end-to-end testing, and given the fact you have a hard date, i would surmise they had limited time to do end-to-end testing. it doesn't mean you couldn't have done it, it just means there's limited time. >> ms. bauer? >> i would have no insight into what the increments were with regards to schedule, but you could create milestones and achieve ideally just about any goal if you create the milestones and achieve them on the way to the goal. >> mr. amsler? >> end-to-end testing for me is pure security, that's the world we live in and we only live in. we can achieve a lot testing along the way, but i always shoot for ideal. ideal would be end-to-end testing. >> an ideal a limited initial launch or a full launch? not ideal? last question, yes or no. do you agree with those statements? -- [inaudible] not very good, limited initial
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launch is what we should be seeking? >> a limited launch increases the risk, obviously, than a full. there's increased risk. >> yep. has bauer? >> i would actually suggest that perhaps a limited launch would have had a lower risk and that a full launch may have a larger risk whatever system you'd be deploying. >> mr. amsler. >> i agree with ms. bauer's statement. >> well said, sir. one final question. again, i'm not trying to put you on the spot be, but with all your knowledge about how this program rolled out, are you comfortable putting yourselves and your families and your personal information in >> i have. >> you're comfortable. >> yes. that's a personal choice you have to make based on in by case knowing the limited amount of personal information i put up there and other information, i feel comfortable personally. but i do not apply it to everyone. >> ms. bauer, yes or no, ma'am?
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comfort bl if. >> yes. >> mr. amsler? >> i'm actually very happy with my current health care. >> oh, boy. [laughter] you're trying to open a hornet's nest there. >> too bad you can't keep it. gentleman's time has expired. ms. degette, you have a clarifying question? >> thank you, mr. chairman. the questions that mr. olson was asking you folks were on this mcdens si document that we spent so much time talking about with the last witness. have you seen that report before, mr. providakes? >> i am familiar with this report. >> okay. ms. bauer, have you seen it? >> no, i have the. -- not. >> okay. so, mr. providakes, the two of you -- ms. bauer and mr. amsler, this any answers you were giving were really just based on speculation since you weren't, haven't seen it, weren't involved with it, is that right? >> yes. >> mr. amslersome. >> that's correct. >> okay, mr. providakes.
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so mr. olson was asking you about some of these recommendations. this is from last spring. it was a snapshot in time. on page 4 of that report, at the bottom where he was talking about evolving requirements, multiple definitions of success, etc., the part he forgot to mention which was the part be also i noticed today forgot to mention when the previous witness was up is the part that's in the box in bold type at the bottom of all of those current situation bullet withs which says cms has been working to mitigate challenges resulting from program characteristics. do you see that? >> i do see it. >> what does that mean to you? >> it means to me we recognize the risks and the challenge of the program, and they were looking at options or mitigation approaches that would minimize the risk. >> so, so cms hired mckenzie to do an evaluation of the program and come up with some concerns that they could then work to mitigate, is that right? >> um, only what i -- yes.
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>> and that's the same reason they hired your company, to do security assessments, is to find places where there might be problems and to make recommendations they could work to mitigate, right? >> they can. identify risks and mitigate risks. >> and in your view, at least the recommendations your company made, did they, in fact, work to mitigate those risks? >> in the context of the sca, yes. >> thank you very much, mr. chairman. >> had you seen this document before today? >> i am familiar of the document. it's been a while. >> so when today say they've been working to mitigate challenges, you are personally aware that some of these mitigations were taking place or you're just saying so today? >> no. i have no idea telephone whether they took the recommendations -- >> i was curious. so that's based upon a guess today. >> yes. >> quick thing. mr. amsler, while developing the security measures for the cloud environment, have you encountered any challenges at all? >> certainly, lots of challenges
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along the way. congressman, did you mean more implementing them or certain things? >> some things that are different from what you're used to here or anything standing out to you that's a concern with regard to the cloud environment and security there? >> well, the cloud in itself brings a unique set of damages that us in the industry are all trying to deal with. >> that's a system that you can't necessarily correct right now with the cloud environment. it's on its own to secure concern. >> agreed. it is our biggest, one of our biggest challenges that we're facing as an industry today, that being the cybersecurity. >> who's in charge of that cloud environment? >> verizon, taramark, and i assume you mean actually owns it and controls it. >> and how difficult is it to develop these security measures while the system is being built? >> that would not be ideal. >> do you have all the tools and capabilities now to successfully and fully monitor the system?
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>> i'm a unique animal in that i live, eat and breathe cybersecurity, and as a company we do -- >> i understand. >> we always strive sister better. i'm always striving -- >> do you have all the l tools now you need to fully monitor the system? >> we have a set of controls that exceed this any standards that -- >> i understand you're trying to do a great job. i appreciate that. i'm just trying to get a sense of have you been limited in any way in your ability to do all the things you would like to do with your excellent team in place? >> there are some things we have asked for that are not in place as of yet. >> really? such as what? >> these -- they're very technical in nature. again, we have a standard set of controls. >> sure. >> mr. chairman, we might want to have him give us that information. >> yeah. could you let us know? instead of public? >> i would be happy to get my team and give -- >> i appreciate that.
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ms. bauer, do you have all the tools -- >> all our answers are essentially the same because we're an integrated team, and i would agree with dave. >> all right. and, mr. providakes, do you have all the tools necessary to tully do your work here? >> well, we're in a slightly different role, but, yes. >> i see. so let me ask this then, with regard to how things are, is the system, have there been any attempts under what you have monitored, any attempts to hack into the system you can tell? >> the simple answer's yes. the longer answer is i don't have an environment where it's not being attacked today though. >> i understand. so with regard to this then, is the system now, are you saying that it's fully secure? from external hackers trying to get in? >> i've never -- we live in a world of not if, but more when. that's the nature of the world we live in today.
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so i could never give you a guarantee that someone's not going to get in. it's probably going to happen at some point, but we have designed it to limit the damage and identify it as quick as possible. >> so we cannot at this point sign off and say the system is fully secure. of it's an ongoing process? >> it's an always ongoing process. today i feel comfortable with the security we've put in place, but i'm always striving for more. >> and ms. bauer -- >> you have to talk in your microphone. >> i would say that from our perspective with regard to the tools and appliances we have in place right now today, the system is secure, as dave says. security is always evolving, it's always dynamic and ongoing, and we're always going to want to do better and keep on top of the latest technology, the latest appliances, so it will always be maturing. but as regards the scope of our contract and the appliances and tools and processes we have in place, we are confident --
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>> i appreciate your standards of excellence, and i appreciate you understand this is an evolving process. but given the concerns about security, what i'm hearing from you is nobody can really give 100% guarantee that this web site is secure with regard to the data that has personally-identifiable information. as people put those things this there, no one can guarantee that some hacker isn't going to try to get into it and they will continue to try and probe be until they get through, is that what you're saying? >> but i also would say the same thing about facebook or any banking site as well. it's just, unfortunately, the world we live in today. >> sure. i appreciate that. same with you, ms. bauer? >> yeah. and i think the rigor which we have procedures in place to identify any risks and vulnerabilities and work to mitigate them, and we have very robust procedures in place for that. >> very good. be well, i appreciate the comments from the panel today, and i ask unanimous consent that the written opening statements of other members be introduced
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into the record, and without objection, those documents will be in the record. i also ask unanimous consent that the contents of the document finder to authorize staff to make appropriate redactions, and without objection, the documents will be entered into the record with any redactions staff determines appropriate. in conclusion, i'd like to thank the witnesses and members who participated in today's hearing. members have ten days to submit questions for the record, and i ask that the witnesses all please agree to answer promptly to the questions, and we will work out some mechanism to answer some of them in confidential, in camera discussions and with that, this hearing is concluded. ♪ [inaudible conversations]
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[inaudible conversations] [inaudible conversations]
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>> the senate judiciary committee looks into government surveillance programs at a hearing this morning. you can see it live starting at 10 eastern on our companion network, c-span3. and later, recent developments in north africa are the subject of a senate foreign relations subcommittee hearing. live coverage starts at 2:15 p.m. eastern also on c-span3. >> friday marks 50 years since the assassination of john f. kennedy, and our special coverage includes your calls remembering the day during "washington journal" starting at 7 a.m. eastern. and at 10 a.m., the rarely-seen fbc news coverage from november 22, 1963, when they first reported on the assassination. and we'll take you live to dallas nor a commemorative event from dealy plaza, including david mccullough reading some
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of the president's speeches. and the boston for a musical tribute with james taylor, the paul winter sextet and the women's glee club performing selections from the president's state funeral. >> november 22, 2013, is the 50th anniversary of the assassination of president john f. kennedy, and there are several books that have been published to mark the event. we want to know what kennedy book you're reading. throughout the pont, join other readers to discuss other kennedy books published the year. go to and click on book club to somewhere the chat room. once there, you can check out the resources we have posted including book reviews and videos from the tv archives and log in as a guest or through your facebook or twitter account to post your thoughts on the books you're reading. then join booktv on saturday, november 30th, at 11 a.m. eastern for a live google plus
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chat to discuss weeks on the 35 -- books on the 35th president. >> coming up at 10:30 each, the senate returns for work on the 2014 defense programs bill. up next, two hours of debate on the amendments about the handling of sexual assaults in the military. senator kirsten gillibrand's amendment would remove the decisions about whether to prosecute sexual assault cases from military commanders and give them to military lawyers. senator claire mccaskill's amendment would keep the decisions within the military chain of command but would administer oversight responsibilities to the service chiefs. >> i rise today to speak about my amendment to the national defense authorization act, an amendment known as the bipartisan military justice improvement act. i want to start by thanking my colleagues on both sides of the
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aisle for their strong and unwavering leadership on behalf of our brave men and women in uniform. i could not be more proud of the bipartisan work that has been done to do the right thing. i want to thank senator reid, senator booker, senator heller, our three most recent supporters of our bill. i want to thank them for their extraordinary leadership and determination to end the scourge of sexual violence in the military. i also want to thank my colleague and friend from missouri for her unwavering commitment to helping victims of sexual assault. although we disagree on my amendment, i want to remind all our colleagues that the defense be authorization has been made stronger in innumerable ways by senator mccaskill's work, advocacy and dedication. i also will be supporting her
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amendment today, because be i think -- because i think the provisions this that amendment will add even more positive changes to the command climate and will help victims feel like they have a stronger voice. however, while the changes in the mccaskill amendment are very good, i do not believe that they are new to truly insure justice for victims of sexual assault. for that we essentially need impartial, unbiased, objective consideration of the evidence by trained military prosecutors which is what my amendment will provide. yesterday i proudly stood with retired generals, leaders of veterans organizations and survivors who represent a growing chorus of military voices that are urging congress to take its oversight role head on. and finally create the independent, unbiased military justice system that the men and
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women who serve in our military so deeply deserve. leaders like retired general major general martha rainville, the first woman in history of the national guard to serve as an adjunct general who has served in the military for 27 years including 14 years in command positions. she wrote to me, quote: as a former commander, endorsing a change that removes certain authority from the military commanders has been a tough decision. it was driven by my conviction that our men and women in uniform deserve to know without any doubt that they are valued and will be treated fairly with all due process should they report an offense and seek help or face being accused of an offense. the decision about whether to prosecute should be made by trained legal professionals. fairness and justice requires sound judgment based on evidence and fact, independent of
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pre-existing command relationships. leaders like brigadier general retired laurie sutton who served as a top psychiatrist in the u.s. army. she wrote saying, quote. failure to achieve these reforms would be a further tragedy to an already sorrowful history of inattention and ineptitude concerning military sexual assault. in my view, achieving these essential reform measures must be considered as a national security imperative demanding immediate action to prevent further damage to individual health and well being, vertical and horizontal trust within units, military reputation, operational mission readiness and the civilian military compact. far from stripping commanders of accountability as some detractors have suggested, these improvements will remove the inherent conflict of interest that clouds the perception all too often the decision making process under the current
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system. implementing these reforms would actually support leaders to build and sustain unit cultures marked by respect, good order and discipline. and lieutenant general retired claudia kennedy, the first three-star female general in the army, wrote, quote: having served in leadership positions in the u.s. army, i have concluded that if military leadership hasn't fixed this problem in my lifetime, it's not going to be fixed without change to the status quo. the imbalance of power and authority held by commanders in dealing with sexual assault must be corrected. there has to be independent oversight over what is happening in these cases. be simply put, we must remove the conflict of interest in the current system, the system in which commanders can sweep his own crime or the crime of a decorated soldier or a friend under the rug, protects the guilty and protects serial
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predators, and it harms military readiness. until leadership is held accountable, this won't be with corrected. to hold leadership accountable peens there must be independence and transparency in the system. permitting professional hi-trained prosecutors rather than commanding officers to decide whether to take sexual assault cases to trial is a measured first step towards such accountability. i have no doubt the command climate, unit cohesion and readiness will be improved by these changes. and brigadier general retired david mcginnis who also served as a pentagon appointee wrote: i fully support your efforts to stamp out sexual assault in the united states military and believe that there is nothing in the military justice improvement act that is inconsistent with the responsibility or authority of command. protecting the victims of these abuses and restoring american values to our military culture is long overdue. it is because they love the
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military that they are making their voices heard. standing united behind brave survivors. and i'd like to tell some of those story thes, because it's tear stories that inform this legislation. kate weber from protect our defenders who was awarded the 2013 woman veteran of the year by the california department of veteran affairs and sarah plumber who came to washington, d.c. all the way from colorado yesterday to courageous hi tell their stories so that their brothers and sisters if uniform get a military justice system that's finally worthy of their great service to our nation. sarah's story is extremely disturbing. she was raped as a young marine in 2003. she said, i knew the military was notorious for mishandling rape cases, so i didn't dare think anything good would come of reporting the rape. she said, having someone in your direct chain of command doesn't make any sense. it's like getting raped with by your brother and having your dad
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decide the case. kim hanks, brave survivor from the infamous and horribly unjust aviano case who spoke months ago about this issue when our journey began. kim just wrote an op-ed published this week. quote: regardless of all the romses and half measures offered in the name of reform be, nothing short of removing the prosecution and adjudication authority away from the commander and placing it with incompetent military -- independent military professionals outside the accused and victim's chain of command will end this nightmare. or trina mcdonald who at 17 enlisted this the navy. she was stationed in a remote base in alaska. within two months she was attacked, repeatedly drugged and raped by superior officers over the course of nine months. she said, quote: at one point my attackers knew me into the bering sea and left me for dead in the hopes that that they
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would silence me forever. they made it cheer that they would kill me if i ever spoke up or reported what had been done. or listen to army sergeant rebecca herera who served in afghanistan, was raped in 2007. reported the crime to her commanding officer. to her, it was unthinkable. quote: there was no way i was going to my commander. he made it clear he didn't like women. or airman first class jessica hines who was raped many 2009 by a coworker who broke into her room at three in the morning. she said, quote: two days before the court hearing his commander called me on a conference call at the jag office, and he said that he didn't believe the offender, quote, acted like a gentleman, but will budget a reason to -- there wasn't a reason to prosecute. quote, i was speechless. legal had been telling me this was going to go through court. we had the court date set for several months. and two days before, this
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commander stopped it. i later found out the commander had no legal education or background, and he'd only been in command for four days. her rapist was given the award for airman of the quarter. she was transferred to another base. we also can't forget that more than half of the victims last year alone were men. blake stevens, now 29, joined the armybe 2001 just seven months after graduating high school. the verbal and physical attacks started quickly, he says, and came from virtually every level of the chain of command. in one of the worst incidents, a group of men tackled him, shoved a soda bottle into his rectum, threw him backward onto the hood of a car. when he reported the incident, his drill sergeant told him, quote: you are the problem. you're the reason this is
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happening. his commander refused to take action. make said -- blake said, quote: you just feel trapped. they basically tell you you're going to have to keep working with these people day after day, night after night. you don't have a choice. his assailants told him that once they deployed to iraq, they were going to shoot him in the head. quote, they told me they were going to have sex with me all the time when we were there. now, this this is the problem. there were 26,000 sexual assaults estimated by the department of defense last year alone based on confidential surveys. but only 3,374 were actually reported. of those reported, 302 went to trial. so if you are starting with
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26,000 estimated cases and only 30 the go to -- 302 go to trial, that is a 1% rate of conviction in the u.s. military for the heinous crime of degradation, aggression and dominance of rape ask sexual assault. 1%. and you just heard from these victims, there are too many command climates that are toxic, that do not insure good order and discipline, that do not protect against rape and sexual assault, that do not create a sense that if i come forward and report that justice could be done. in this survey, the confidential survey the reason victims didn't report is they said they didn't believe anything would be done. they also said they either feared or witnessed retaliation. this is the problem. about 23,000 cases weren't reported.
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it means in 23,000 command climates the assaults are happening, and victims feel they will not get justice. so i am grateful for every reform be we put in place in this underlying bill. they are good, strong reforms that will help victims who report. but every sickle one of them -- single one of them applies only to these 900 cases. today -- 300 cases. they apply to the cases that are reported where the command climates are sufficient, that a victim feels i can come forward. i can report this case. in the 23,000 other cases, those victims don't have that confidence. and so, madam president, if you don't create a transparent, accountable system that's outside the chain of command, your hope of getting more victims to come forward and report so we can at least weigh the evidence and see whether we can go to trial, it's not there. the hope isn't there. the confidence in an objective
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review by someone who doesn't know the perpetrator and doesn't know the victim doesn't exist. so while you have these 3,000 cases, you have these 3,000 cases that were reported and commanders did make sure one in ten went to trial and when they did go to trial, you had a 95% conviction rate, so they're not making the wrong decisions about what case to try. it's just that only 3,000 of these command climates were strong enough. you can't train your way out of this problem. there's 23,000 command climates that weren't strong enough. that didn't insure justice. that created fear of retaliation. that's the problem. and so without your objective system, without creating transparency and accountability, without saying the decider doesn't know the victim or the perpetrator, there's no bias. because in too many cases as you heard from these stories, the perpetrators may well be more valuable to the commander, may well have several tours of duty under his belt, may well have
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done great acts of bravery, hay well -- may well have two kids and a wife at home. so when that commander looking at the case file says i know this can't possibly have happened, didn't happen this way, he weighs the evidence differently, differently than someone objective who's trained, who actually knows the difference in these crimes and knows what a rape is. they know that a rape is not a crime of romance. they know that a rape is a crime of dominance. be -- they know that a rape is a crime of violence. it's not about a date gone badly. it's not about hormones. it's not about a hook-up culture. it's actually a crime that is brutal and violent committed by someone who is acting on aggression and dominance and violence. so that's why the training matters, madam president. i want somebody who knows that,
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who's been trained as a lawyer, who understands prd tore y'all -- prosecutorial discretion and weigh evidence objectively. so we have to look at who's advocating for this bill. our veterans' organizations, iraq and afghanistan veterans of america, want this reform. vietnam veterans of america want this reform. servicewomen's action network wants this reform. they're all speaking this one voice, and they say, quote: a vote for an independent and objective military justice system is a vote for our troops and a vote to strengthen our military. they know. they served. they're veterans. they're no longer active duty, they can speak their mind. this week we released a letter of 26 retired generals, admirals, commanders, colonels, captains and senior enlisted personnel including two generals and two admirals known as flag
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officers who are saying to congress, quote: we believe that the decision to prosecute serious crimes, including sexual assault, should be made by trained legal professionals who are outside the chain of command but still within the military. this change will allow prosecutor y'all decisions to be made based on facts and evidence and not be derailed by pre-existing relationships, attitudes, biases and perceptions. it is our sincere belief that this change in the military justice system will provide the opportunity for real progress toward eliminating the scourge of sexual assault in the military. i'm hopeful, madam president, that our colleagues will listen to these collective voices, because nobody knows the military and what needs to be done to fix this broke withen system -- broken system than they do. listen to the victims who have clearly told us over and over again how a system that only
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produces 302 prosecutions out of the dod's estimated 26,000 cases of rape, sexual assault and unwanted sexual contact year must be fundamentally changed to restore trust and accountability. these men and women of america's military have put everything on the line to defend our country. each time they are called to serve, they answer that call. but too often these brave men and women find themselves in the fight of their lives not on some far-off battlefield against an enemy, but right here within our own soil, within their own ranks with their commanding officers as victims of horrible acts of sexual violence. sexual assault is not new. but it has been allowed to fester in the shadows for far too long, because ip ted of the zero tolerance -- instead of the
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zero tolerance pledge we have heard for two full decades now since dick cheney was the secretary of defense, using those words in 1992, what we truly have, mr. president, is zero accountability. there's no accountability because the trust that any justice will be served has been irreparably broken under our current system. where commanders hold all the cards over whether a case moves forward orbit to prosecution. now, there are those who argue that removing these decisions out of the chain of command into the hands of independent prosecutors in the military will diminish good order and discipline. this is not a theoretical question. we actually know the answer to this. our allies have already made these reforms, and they have not seen a diminishment in good order and discipline. the u.k., israel, australia,
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canada, netherlands, germany. all of them have taken the decision making whether or not to prosecute cases outside the chain of command for civil liberties reasons. some in instances of defendants' rights, some in instances of victims' rights to make their justice system better. we could use a better justice system. we could use that transparency and accountability here. we have a unique problem. i think this reform solves our problem. the director general of the australian defense force legal service paul cronin says that australia has faced the same set of arguments from military leaders in the past. quote: it's a little bit like when we opened up to gays this the military in the 1980s, cronin said. there was a lot of concern at the time that there'd be issues, but surprisingly, there haven't been any. .. argue that
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our reform would somehow take commanders off the hook or that they would no longer be accountable. let me be clear, there is nothing in this bill that takes commanders off the hook. they are still the only ones responsible for setting command climate, for maintaining good order and discipline, for making sure these rapes and assaults don't happen, to make sure there is no retaliation if a victim comes forward, to make sure the retaliation climate is sufficient for when they do come forward. actually most commanders never get to make this legal decision. get to make this legal decision. they are never going to be able to be the disposition a story. that's not their job. but they still have to maintain order and discipline. they are off the hook. the underlines are strong because retaliation of crime to give them one more tool to help them set the command climate.
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there are those who argue that this reform will cost too much. i do not know how you could possibly say that enforcing cases and prosecuting rape in the military costs too much. our men and women in uniform are worth much more. not only do these critics ignore the fact that we already have trained jack serving in the military. the financial cost of sexual assault in the military. the rand corporation has estimated that this gorge costs $3.6 billion last year alone. there are those who say commanders move forward on cases that civilian prosecutors won't.
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to claim that keeping prosecutions inside the chain of command will increase the prosecutions is not supported by the statistics. because if you only have 3000 or so cases being reported, and 23,000 cases not being reported under the current system, if you change that system and those 23,000 cases start becoming reported cases, you will have more prosecutions. you will have more convictions. you will have more justice. the bottom line is really simple. the current system oriented around the chain of command is producing horrible results and has been producing horrible results for 25 years. the current structure is producing 1% of cases that go to trial.
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that is not good enough. it is not a system that is deserving of the sacrifice of the men and women in uniform get to our country every single day. it's also contrary to the fundamental values of our american justice system. our justice system relies on the fact that a decision about whether to go to trial is never made on bias. it is always made on facts and evidence. it's not made on whether it's good or not for the commander. it's made on whether or not there are facts and evidence to prove that a serious crime has been committed. for all those who say this is a radical idea and should just wait until next year, the dod has an advisory panel that actually has opined for the past 50 years on the status of women in the military. that panel had a vote on these
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proposals, and they voted in favor, overwhelmingly, with no one against. of the 10 votes, that we had, nine are former military, for our high ranking generals and officers. the nonmilitary voice is the head of the louisiana law center, knowledgeable individuals who are actually tasked by the department of defense, and picked by the department of defense to opine on the status of women in the military, and they have voted to support these measures. secretary hagel has even said that he quote places a great premium on the voices of this panel. i have not, to the conclusion that we need to fundamentally reform our military justice system in order to strengthen it. but this is a commonsense proposal.
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it's not a democratdemocrat ic idea. it's not a republican idea. it's just doing the right thing. and if you listen to the survivors, veterans, retired generals and commanders, they believe this change is needed. but even our current military commanders at the department of defense did not dispute the problem for the facts or the reason of the problem. commandant of the marine corps general james amos said in a speech earlier this year, the victims don't report these cases because quote, they don't trust us. they don't trust the chain of command. they don't trust the leadership. we have to restore that trust, and if you have too many commanders and to me commend claimants, the 23,000 unreported cases where that trust is broken, you're not going to fix it by keeping it with the commanders. that is the problem.
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this is a fundamental problem. listen to chairman of the joint chiefs of staff general dempsey who said that the military is sometimes quote too forgiving, end of quote, in these cases, admitting bias in a system towards decorated officers. mr. president, i firmly believe it is our obligation to restore that trust. our fundamental duty as senators, as members of congress to provide the needed oversight and accountability over the armed services. we should not do what the generals are telling us to do. this is our job. every time i meet with a member of the military, i am overwhelmingly grateful for
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their service, for their sacrifice, for their courage. they deserve better. they deserve a military justice system that is consistent with our core fundamental american values of objectivity, of truth, of evidence, of fact. and of justice. i urge my colleagues to support our amendment. i yield the floor. >> mr. president? >> the senator from missouri. >> i ask unanimous consent anytime spent on the quorum call during this debate on the sexual assault it should be equally divided between senator gillibrand on one side and senator ayotte and senator mccaskill on the other side.
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>> without objection. >> and i would yield five minutes of senator ayotte's time to the senator from missouri, senator blunt. >> senator from missouri. >> i thank my colleague for yielding. first of all i want to thank senator mccaskill answer to gillibrand both for the effort, that time, the commitment, the focus that they have made on this issue. they have clearly both been at the front lines are changing the underlying bill. two things that send to gillibrand said that absolute want to agree with, the underlying bill is strong. it is a step in the right direction. it is a result of our committee debate, our committee action. and i think i heard the senator from new york say that she was supporting the mccaskill amendment, which adds even additional things to that. and i also am supporting that amendment. it does a number of things that i think make the build even stronger. it says the commanders will be
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evaluated based on this as one of the factors. no longer would they just be something if it happens to come up you talk about it, but the commanders be evaluated based on what they did to change the command atmosphere. what they did to protect people against sexual assault. what they did to create an atmosphere where these things not only don't happen, but when they do happen they are vigorously dealt with and looked to come as something that has to be dealt with, and the commanders be evaluated in that way. there's another layer of review in the mccaskill amendment. of the commander disagrees with something that's happened in this process they have to kick that review up another level. the so-called good soldier defense no longer a difference. this is about this incident, this assault, this accusation, and dealt with solely in that way because of this additional
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amendment that i think many of us will support that will be added to what's already a strong underlying bill. also this amendment would allow victims to express a preference, whether they have pursued -- this pursued in a civilian trial or in a military trial, a court martial. those are all good editions. i think that's why both, i don't know why senator mccaskill proposing but why we would be supporting that amendment. i believe that the amendment improves with the committee did, but i think the committee had a full debate and a long debate and a vigorous debate on how important it is the commanders the baltic senator mccaskill, my colleague from missouri, has been a leader on this all her time in the senate. she came to the senate. one of the things in the background was a county prosecutor but specifically a prosecutor of sexual assault cases. i have relied on her judgment as
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we look at these issues and i think her judgment is borne out by sony things we heard in the committee. senator ayotte who will be speaking for this amendment and for the underlying bill for the mccaskill and them and the underlying bill, senator fischer, also on the armed services committee, will be part of that debate. we introduced a bill, the armed services committee did, that has the most comprehensive legislation targeting sexual assault that's ever been considered by the congress. we add to that these important elements of another mccaskill amendment. 26 provisions are in the underlying bill that deal with this issue. it's among the most difficult decisions i think we met but also one of the important decisions that we met. the idea that commanders would have responsibility for the atmosphere they create, one of the things that was mentioned
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more than once was what finally happened as we integrated the armed forces. president truman, i stand here by his desk, one of our predecessors in the senate from missouri signed the order that integrated the armed forces. president eisenhower pursued that further but only when the command structure was given absolute responsibility to deal with what had become a real problem, as there were even race riots on ships, according to senator mccain who talked to us about this. it was when the commanders were given the responsibility to see that this problem was solved, that it was solved. i think this bill and they additional amendment that i'll be supporting, the mccaskill amendment, ma really clarifies a new way so important it is recommendethecommanders accept t of their command responsibility. the numbers that senator joe
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brand talked about about are totally unacceptable. totally unacceptable. and one of the things that commanders will be evaluated on any future would be what they did about changing that environment. are i think actually taking them out of the command responsibility in this area come in my view, makes it less likely, not more likely that the atmosphere will change. then you are down not just to the atmosphere, one additional minute? since an ayotte is not here to object i will take it from her down if no one objects. >> without objection. >> the fact that this is in the bill, further improved i believe by the amendment, but clearly says that we're going to change the culture of the military. and that would not be nearly as long as it is if it hadn't been for the hard work of my colleagues, particularly senator mccaskill and gillibrand. they are here on the floor talking about a difference of opinion, not on solving this problem because we all believe
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this problem is going to be solved. i believe we all believe the bill takes asymmetric and strong step toward doing that. i think most senators are going to agree that the mccaskill amendment adds another element of there. and i'm glad that the defense committee, the armed services committee, and now the united states senate is taking additional steps to solve this problem. it's a tragedy for every individual in a military commander woman who has been a victim of a sexual assault, reported or not, what if we can do to see that they are reported and that they are minimized and those are indeed is what you ought to happen. i hope this bill does that. i believe it does. i am pleased be part of bringing this bill to the floor. and please, i will be pleased when i think the mccaskill amendment will be added to it today, and we face a new view of how this issue is dealt with, and i would thank the senator for the time. >> mr. president? >> the senator from missouri.
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>> i want to thank senator blunt for his comments, and appreciate his hard work on the armed service committee as we tackle this issue that all of us have an emotional commitment to for all the right reasons. i want to thank senator gillibrand. we both want fundamental reform. we both are working as hard as we know how to get it. we have a fundamental disagreement about how best to obtain that goal, and i would like to go through some of that disagreement for the next few minutes. the 26th historic reforms that are in the bill are going to make our military the most victim friendly criminal justice system in the world. in no other system does a victim get their own lawyer. in no other system will they have the protections and the empowerment and the deference that we are creating for them in this bill. my years of experience handling these cases, hundreds of them
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with victims, i would have given anything if that they can have the confidence of an independent advice. i think it would have made a tremendous difference in the staggering number of victims that refused to go forward. this is the most personally painful moment of anyone's life. and make no mistake about it, no matter what we do in this chamber and no matter what this bill accomplishes, we will never be able to get every victim to come forward. because of the nature of this horrific crime. but we have to do better. likes and gillibrand, i have talked to dozens and dozens and dozens of the dems. i have talked to prosecutors, spent hundreds of hours with prosecutors, military prosecutors, women and men and veterans, commanders, active and
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retired. and just like there is not agreement among all the women in this chamber, there is not agreement among all the victims. there is not agreement among all the veterans. there is not agreement even among all of the commanders, although most women commanders have acknowledged that even though this sounds seductively simple, it is much more complicated. and we will be creating more problems and -- and we'll be solving if we make the change as advocated by senator gillibrand. let's get at what we are trying to do. we have no disagreement that there are too many of these crimes and that they are not reported enough. complete agreement. the goal here is how do we get more reporting? there is a theory that if we do this, if we take this decision away from any command at all to go forward, that that will
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magically have the victims come forward. senator gillibrand talked about our allies. i am grateful that we have their experience, because we can look and see what happens. our allies have done this, and not in one instance has reporting gone out. we know this is not the silver bullet because if it were, you would have seen an increase in reporting in all the countries. that have adopted this system. and we know the response systems panel that was put in place by the armed services committee to recommend to the pentagon changes in this area, we know they have formally acknowledged that our allies, many of them to protect defendants rights have not seen an increase in reporting. >> and if the theory is that reporting can only go up if we
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do this, then why are we seeing a spike in reporting right now? 46% increase just this year over last year. and that is because some of the military are already putting in the reforms that we are codifying in the underlying bill. they are giving victims their own lawyers. they are ramping up the protection and information and deference they give victims. that is the single most important factor, based in all of my experience that will dictate whether a victim has the courage to come out of the shadows. and then finally, and that somehow doing this will stop retaliation. that unit is still going to know that that crime was reported. and keep in mind that currently under our reforms the victim does not have to report to the chain of command. right now the victim does not
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have to report to the chain of might -- command. many of my college did not realize that. a victim as many places they can report this crime. they can immediately get along and have that level of protection immediately. and they will have the information that they don't have to report to the chain of command. i'm trying to understand how reporting and investigating and deciding a half a continent away a group of lawyers making that decision somehow stops retaliation. how does that keep the people in the unit from asking in a properly toward you because you have reported a crime? there is nothing magical about that. in most instances the word will get out. in most instances. and use common sense. you are back in your unit. you have been assaulted. which way are you going to have more protection? if a group of colonels a half a
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continent away our look at the facts of the case? or if your commander has signed off? of course if your commander has signed off. because that sends a message to the you know, we are getting to the bottom of this. and probably the most telling fact about this debate is, is this happening now? because now outside investigators investigate these cases. a our system now. so the question is if these outside lawyers are recommending that we go forward based on their independent investigation, are commanders shutting them down? are commanders saying we will not go forward? no one can find me a case where that happened. where the prosecutors said we need to go and the commander said no.
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on the other hand, over the last two years, 93 separate times has the outside lawyer said, you know, this case is too weak, this case doesn't have enough facts. 93 times. and you know what happened in every one of those cases? the commander said we're going to get to the bottom of it. so almost 100 victims in the last two years would not have had their day in court under senator gillibrand's proposal because in senator gillibrand's proposal, when the lawyer says no, it's over. whereas in our proposal, if this were to ever happen, even though we know this is not a problem now, we have review after review after review. no one is going to be able to turn a victim away from her day in justice without accountability, checks and
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balances and oversight. and there will be a difference in that unit ruse now retaliation is a crime and the commander is going to be evaluated on how they are handling this issue within their command. there are also practical problems, and some of my colleagues will come to the floor today and talk about this, but there are a number of implementation issues that i don't think have been thought through. and this is real world here. we're talking about appeals and challenges. we're talking about not even having enough colonels, 06's right now to staff this. we're talking about risking the ability to get a speedy trial. we're talking about eliminating the ability to plea bargain. and let me just tell you,
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mr. president, having handled these cases, i think people sometimes make the assumption that a plea bargain is about copping out, it's about not protecting the victim. i can tell you -- talk about stories of victims. i can tell you story after story of real people that i dealt with that came forward, said yeah, i think i can do this, and one woman i'll never forget came to me and said my mental health counselor says testifying in court will set me back so far i can't do it, but can you get something on him? can you get something on him? and in those instances, do you think that defense lawyer is going to plead to a sexual offense? or even a serious offense? but we were many times able to get something on him so that we the next time if it happened we at least had a better shot. many times, plea bargains are dictated by victims.
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the practical way this will be implemented, it is a -- and these are military prosecutors telling me this, that it will really limit their ability, create serious due process concerns. in her proposal, this outside lawyer picks everybody, picks the defense lawyer, picks the jury, picks the prosecutor. now, how is that going to stand up to a due process claim? it's not clear who picks the judge. that's left silent. i don't know who picks the judge. it is not clear. that's another question. who's going to decide who is going to actually pick the judge? it eliminates the option of nonjudicial punishment. take the case of the air force airman who was just recently tried in the civilian courts. he was initially charged with a sexual offense. it was reduced to a simple assault. now, if that had been within the military, they couldn't have done that because it wasn't a serious offense, so it goes back
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over to the convening authority within the command and then the command -- that soldier knows they're not going to do a trial, they can't, and all he has to do is turn down nonjudicial punishment. some of these difficulties will be explored in more detail, as i say, throughout the day. but here's the one i don't understand. if you believe deeply in the policy that you are advocating, why in the world would you pro actively limit the act to resource it? in the language of the gillibrand amendment it actually says there shall be no funds authorized for this, no personnel billets authorized for this. and the military has estimated over $100 million a year just in personnel costs because they have to create a completely different system outside the system they currently have,
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which will still be operative for some offenses that are related to the military and that are low-level offenses but we have to have a whole new system for arson, for murder, for sexual assault, and yet she proactively in her amendment says we can't resource it. that is truly one that makes me scratch my head. there is a lot of problems surrounding this amendment, but let me emphasize our goals are the same. and our motives are pure. we believe and we believe this is borne out by the data, we will have more prosecutions because it will be very easy for lawyers a long way away, overworked, underresourced to say, you know, this ierworked, underresourced toas,
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say this is a consent case.dy ws it's a little messy. everybody was wrong. let that one go. then it's over. in let me briefly talk about what we have in our amendment because it's also very, very important.s allow in our amendment we will allow victims to formally way ins whether they would prefer if there is concurrent jurisdiction for the slain afford to handle the case in addition or whether they would rather the military authorities handle. it strengthens the role of the prosecutors because it provides another layer of review over the prosecutors decision. it increases the accountability of commanders making this evaluated on their form and adding that layer of view -- review. it eliminates the good soldier defense. it is irrelevant whether someone is a good pilot, or if they have sodomized or raped someone in the military. and our amendment will make it
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irrelevant and inadmissible. i want to thank the president for the time. i know with others who want to visit on this and i will be happy to be back later in the day to talk about specifically some of the other issues in this bill. i do not see anyone else here right now so i would suggest the absence of a quorum. >> the clerk will call the roll. >> mr. alexander. >> [inaudible conversations] >> the senator from new york. >> i have nine unanimous consent requests it is the sin is in a quorum call. >> i asked the quorum call be vitiated. >> without objection. >> i have nine request for commit to me today during today's session to have the approval of the majority and minority leaders. i ask unanimous consent these requests be agree to and these requests be printed in the
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record. >> without objection. >> i also asking in his consent that my military fellow bridget burns be given privileges during the consideration of the defense authorization bill. as a way for our colleagues to join the floor so they can have their floor time, i just want to address a few of my colleagues concerns. somebody technical concerns that she raised, we actually took some of those concerts and revise them into bill that's been presented so some of their concerns have been actually fully address. so, for example, are concerned about the convening authority and the disposition authority, our bill is a specific. the disposition of for is the decision-making authority. that goes to the train military legal prosecutor, a jacket council so they could make the decision about whether or not to proceed to trial on the evidence. the convening authority which is a different right, a different duty is left intact as it is pics of the convening authority was to decide judges, juries and
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all the details of what the court and the trial will look like. is to separate authorities in two separate places. that's been clarified in the bill so that there's no concern there. one other concerned that my colleagues raise is this issue of nontraditional punishment. our bill is very specific. we exclude 37 specific crimes, including all article 15 crimes, all of the crimes that you be using nontraditional punishment to enforce. and if the disposition authority decides that they do not want to prosecute the case because they don't have enough evidence to go forward, it goes directly back to the commander to use the benefit of a nonjudicial punishment to do whatever kind of punishment he or she thinks is appropriate. so those are just too technical issues that you raise that i think are very important to clarify. and the third issue that senator mccaskill raised that i think is a misunderstanding of the bill is about this world away
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problem. today, in our bill compared to the current system, the reporting is the exact same. you can report anywhere. you can report to your chaplain. you can report to your friends. you could report dinners. you could report to the doctor. that's not changing. reporting is exactly the same. what also is exactly same as the investigation. so once you do report, when you port your chaplain our command, and this gives will be sent to investigate the case whether in iraq, afghanistan, germany, anywhere. that stays exactly the same. it doesn't matter this world away because investigators go to you. it's not a different set of investigators. it's the exact same set of investigators. commanders are still responsible to make sure those investigators do their jobs. the commander has to be protecting the victim. making sure the unit is not retaliating against him or her and asked make sure that the -- he has to make sure that the command climate stays strong and
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that there is good order of discipline. that never changes. those commanders are always responsible for good order and this one and command climate. the only difference under this bill is after the investigation is completed and there's a file, a file of evidence, it doesn't go sit on an '0 '06 commanders does. '06 command is colonel and above. he may not even be in afghanistan or in german. he may not be exactly where the time has a good. the '06 command will look at the file and decide as a crime been committed. is there enough evidence to go forward with instead of the commander may be in that position, this bill proposes it will be a train military prosecutor. it doesn't matter what desk the fog goes on. what does that is the desk of a person's desk that file goes on is objective. what matters is that person is trained, urnands the law, understands the nature of the crime, can weigh the evidence and make a decision based on the evidence. not what he likes or doesn't
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like the victim or values or doesn't value the perpetrator. those biases is what is affecting the system negatively today. so that is why the world away is not a concern. because investigation proceeds exactly as it ever has been. only difference is who's best to goes on to make the ultimate legal decision. and then last, back to this issue of whether commanders are being held accountable. commanders are held accountable. we have in the underlying bill not only as retaliation to a crime but they will be measured as senator blunt set on whether the command climates are strong. is your command climate strong enough to make sure these rates aren't happening ?-que?-que x isn't strong enough so that retaliation of a victim doesn't happen? and is your command strong enough that that victim that he or she believes that justice is possible? so they will be evaluated. so commanders will be held accountable. i don't think it's appropriate that you're holding a command accountable based on whether he
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weighs evidence properly. that's a legal judgment. it's not based on whether you are tough are not tough on rape. it's based on is there enough evidence to show that a crime has been committed. it should be a technical legal decision, not a decision based on how tough you are on crime. that's not measurable. so commanders will be held accountable for the command climate. and whether they make a legal decision up at the colonel level is not determined have asked whether they have done the job. the commanders who are getting opportunity make those legal decisions today are not doing a bad job. of those 3000 cases reported, one in 10 wichita. 10 way to go. that's not a terrible ratio. the ones they do choose to go forward, 95% conviction rate. and yes, i agree in those 100 cases were commander said move forward, convictions -- conviction rates weren't as high. those are excellent opportunities for the victims to be heard but we don't want just 100 more cases going forward.
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we want tens of thousands of cases to be reported so they have a chance to go forward. it's the difference, the difference of thousands. and that's why i feel this reform is so necessary. still in light of all the amazing reforms in the underlying bill i still think it's necessary because the crisis of confidence is so raw, so real, so present. >> thank you, mr. president. i rise today to talk about a very important issue that i spoke about on the floor yesterday, and that is eliminating sexual assaults in our military, making sure that victims are supported, and that they get the support that they need. and yesterday on the floor i've talked about important reforms that we are doing together on a bipartisan basis to make sure that victims receive special victims council. said each victim is not going to receive an attorney that represents him or her in the
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system and stands up for the rights you're making retaliation a crime under the uniform military code of justice so that victims of sexual assault understand that they will, if they are retaliated against, that there will be a crime for that. and effect those who retaliate will be brought to justice. and the many other dozens of reforms that are in the defense authorization, but today i want to talk about a very important issue. and i see on the floor senator mccaskill, who i believe, i want to commend her for her leadership on this issue. she's been a tremendous leader. senator mccaskill, senator fischer from nebraska and myself have introduced an amendment that will further strengthen the historic reforms that we discussed yesterday of the defense authorization, including having in it allowing a victim
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to formally express their wishes about how the case will be handled in addition to there being of course provided special victims council. to provide the prosecuting attorney the ability to disagree with the commanders decision, which i will talk about more, and to have a review of the decision by civilian head of each force. and into eliminate things like the good soldier defense. and then those who feel like they have been discharged from the military, or how their discharge has been described, will now get an opportunity to have their case reviewed. so we are not only looking forward but we are going to look backwards to make sure that victims of crimes know that they'll be treated with dignity and respect. i come to this issue as someone who was a prosecutor. i spent most of the cases are prosecuted were murder cases, but i also had the chance to serve as attorney general of our
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state where i worked with not only victims, murder victims, but also victims of sexual and domestic violence. and this is a set of crimes that is unacceptable in societies, but particularly unacceptable in our military where we expect the very best from our military. and i looked at this issue very carefully, the issue that has been discussed so much on the floor today. and that is in handling sexual assault cases, and other types of cases, should the military justice system be changed fundamentally to take the commander out of the decision on whether or not a charge will be brought after an independent investigation? and i came down on the side of we need to hold commanders more accountable, not less accountable.
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because everything within our military, of course is deployable. we have the finest men and women who serve our country in the world. we have to have a military justice system that is structured in a way that it can bring justice in afghanistan as easily as they can bring justice and the united states of america, whatever our men and women are situated. and if we take commanders out of the decision-making process, then fundamentally we are holding them less accountable for the results of how these cases are handled. and so i would like to talk about the proposal that senators mccaskill, fish and i have that i think will hold the commanders much more accountab accountable. right now as we look at cases of sexual assault in our military, we want victims to understand they can come forward. and when they come forward we want them to come forward.
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they will get the support that they need and deserve. that their perpetrators will be held accountable for the crimes that they have committed. and we want commanders to establish a climate within their unit to say no tolerance when it comes to sexual assault. and if you don't handle a sexual assault case properly, you will be relieved of your command. that's what this is about. so in our proposal, rather than remove commanders from the decision-making, and let me just tell you how this works so people understand. right now, a victim of a sexual assault, or another serious crime, comes forward and they don't have to come forward to their chain of command. they can come forward through a health care professional. they can come forward through a 911 call. they can come forward to the pastor to report a sexual assault. and then it is independently investigated. and from there that
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investigation is presented to a jag lawyer in the chain of command who then makes a recommendation to the commander of whether a charge should be brought and whether we should go, if they should be going through a military trial at that point. and so, to take out of that decision of the command is now to leave the victim in a situation where let's put this victim in afghanistan. they are in a situation where the case has been investigated. it comes back, and the commander now doesn't take responsibly for whether a charge is brought. the commander is now put in a situation where, i'm sorry, that decision is being made by another set of jag lawyers that are outside of the chain of command. and so go talk to the lawyers over here, not me. it puts the commander and a bystander responsibly rather than in the responsibility of
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taking responsibility for these decisions. so what we have done is made commanders more accountable. when the jag lawyer comes to the commander for a recommendation saying this case should be brought, on a sexual assault case come if the commander says no, he should not, that will go all the way up to the civilian secretary of whatever force is involved, whether it's the secretary of the army, the secretary of the air force, each branch, and will be reviewed separately. that will hold commanders more accountable than cursing it over to a lawyer over here where the victim has to hear that, i'm sorry, i can tell you what the decision is on your case because there's a lawyer over there making this decision. and even in the case where the commander and the jag lawyer both agreed that a charge should not be brought. under our proposal there will be another review of those cases up the chain of command to say
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someone else should look at it. there should be accountability, and there should be accountability at every level of our military to ensure that victims of sexual assaults will be supported and that these cases will be handled, and that the perpetrators will be brought to justice. there's been a lot of discussion on the floor today, all of us want more victims to come forward, and to come forward and feel that they can report their case. because not enough of them have come forward. yet, the evidence shows that if we take commanders out of it, that we're not necessarily going to get any more reporting. in fact, we have cases that may not be brought to justice because the evidence shows that commanders are being more aggressive than the actual jag lawyers in terms of cases that are being brought.
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.. are 26 army victims that -- where the j.a.g. lawyer said don't bring the case, the commander overruled the j.a.g., went to trial, and the perpetrator was convicted. there was justice for the victim. and under this proposal, those cases would have never gone forward because the lawyer would have said -- the j.a.g. lawyer said no, don't bring it. 16 cases in our marine core the last years where that would have happened as well. 16 victims who wouldn't have gotten justice. one may be a victim. nine air force victims who would not have seen a conviction or their perpetrators who deserve to go to trial to be convicted, to be judged, those cases would not have gone forward.
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when i hear senator gillibrand's proposal, i respect her very much and so much we agree on in all of this and i respect the work she has done on this and the work we have done together on many provisions of talked-about but when i hear the discussion that taking it out of the chain of command will cause more reports to come forward, unless cases go to conviction, if i am victim, how does that make me feel more like a want to come forward and report a case if i know that maybe my case won't be broader, there are cases that would never have been brought if a commander who had responsibility within his or her unit for is this hadn't recommended that this case go forward? the other argument we have heard a lot about is our allies have taken it out of the chain of command including canada, great
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britain, israel, germany, australia. there has been a misunderstanding out there because as we research this issue as to why allies took it out of the chain of command we found out the truth is they took the decision on whether a commander would bring, whether i commander would make the decision to go to a trial on a sexual assault case, they took it out to protect defendants, not victims. i can assure you that we are here today, with all due respect to defendants. i have defended cases as well because they certainly have rights under our laws and i respect that but this is about protecting victims. our allies changed their systems to protect defense ands. we are trying to have a victim friendly environment where people come forward and perpetrators will be held accountable.
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the other thing is if you look at those countries, canada, great britain, israel, germany, australia, that changed their system they have not seen any greater reporting. in other words it is one thing if you look at it and say in those systems victims when they change their system the victims came forward, that is not the case. that is not what the evidence shows. facts are stubborn things. as a former prosecutor i want to make decisions on how to address this very real and important problem based on facts and the facts i that there are cases that wouldn't have been prosecuted if we took it out of the chain of command, perpetrators that should have been held accountable. our allies did it but haven't seen greater reporting and did to protect defendantss so what do we want to do? let's hold our commanders more accountable and this is what former leaders of the military
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have said. u.s. army retired former judge advocate general sent to this than 25 years in the military. we asked her about these two proposals and she said if you take out the convening authority meaning the decisionmaking process from the commander you are essentials getting the military justice process. if you take the court martial process away from the convening authority for sexual assault or major offenses that allows them to say they are dealing with it. the j.a.g.s need to be held accountable and part of the process. we don't want to create a situation where dare are lawyers over here making the decisions. commanders should be held accountable for those decisions. and in fact we had a woman who is currently in the marine corps in the republican conference and she is a woman commander, very
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impressive to have gone where she has in the marine corps, she works training our marines. i was so impressed with her experience, she has commanded at every level and she says if we want to get this done for victims don't make the commander of bystander and that what makes me very worried. if i thought it taking the commanders out of the decisionmaking process would help victims further i would do it but as she described if you make a commander a bystander which is what this will do, the proposal that is on the table, my opponent, proposal that senator gillibrand has i very much respect and dino her passion is real for this and i shared. i don't want commanders setting standards and if they are bystanders, how do we relieve them from command when they don't do their job? they have taken a decisionmaker
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making such. and here is the other issue that has concerned me. we spent all the time, rightly so, trying to address the issue of sexual assaults in the military but the head gillibrand amendment on the floor doesn't just take sexual assault out of the chain of command, it takes out murder, manslaughter, death or injury of an unborn child, stalking, larceny and wrongful appropriations, robbery, for jury, making, drying or order without sufficient funds, maiming, arson, extortion, assaults, burglary, housebreaking, perjury, fraud against the united states. we need to understand the reason we have a military justice
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system structured the way it does, the way it is is because we deploy to places like afghanistan and so not only in sexual assault cases will the decision of the commander whether or not to be, refer the charge for a trial >> reporter: under the gillibrand proposal but all of these crimes in which we have not received any testimony about. we have not received evidence that the commanders of mishandling critic cases, manslaughter cases, arson cases, extortion, assault, burglary, fraud, so this is very much a fundamental change not only in the area of an area we all care passionately about getting right to make sure victims of sexual assault are supported by all of these crimes will now be removed from the military code of justice. how will that work in afghanistan? i am trying to figure out there
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have been over 900 cases as scientist and it with some type of trial had to be held because of offenses that were committed in afghanistan of all different types, not just talking about sexual assaults but all kinds of things. how is that going to work? are we going to wait to say we will wait to see if we should bring this trial when the lawyers that are located somewhere, we don't know where, could be the pentagon, and wherever this separate set of lawyers is going to be until we have justice in places like afghanistan and this is for all of these cases on all of these crimes that we haven't even had any testimony about before the armed services committee to address an issue that we all care very much about. so mr. president gawker i am sorry, 900 came from iraq and afghanistan i want to correct for the record but as we know,
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iraq could have been just as much of an issue in terms of having a deployable military justice system to ensure that victims of all types of violent crimes no matter where they are will get justice and perpetrators no matter where they are will be held accountable for their actions and that is what this is about. mr. president, i think -- i thank the chamber for all the work that has been done on this important issue. i know that boxer these proposals, senator gillibrand's proposal is voted on as well as the proposal senator mccann still and i have and senator fisher, that we will be working together to make sure there is accountability on this issue, that the reforms that have been passed in the defense authorization are very important things like special victims council that i mentioned earlier
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but please note, i see senator m mccaskill here. we are not going to let this issue go but there will be follow-up to make sure that the military is held accountable. we have the best military in the world. this goes to the core of our readiness of global order and discipline. you can't have good order and discipline if you put commanders on the sidelines. we will hold a more accountable under our amendment, amendment 2170. so thank you, mr. president, for the opportunity to speak on this important issue and i yield the floor. >> mr. president, i under stand senator leahy is on his way and i will yield to him when he arrives but i have to come to the floor to say what a good debate we are having but let's be clear. only one amendment put in place of fundamental change and that is the gillibrand amendment.
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we have had 20 years of promises that this problem would be fixed. i have a chart that i will bring all leader to show you every secretary of defense for 20 years, republican and democrat has said exactly what senator ayotte said. we are going to fix this, it is going to be fine. we are picking up steam in our support, and let me tell you the reason we are picking up steam. it is because with all due respect, every single victims' organizations that i know about supports the gillibrand amendment. i have got to tell you, when victims say to me the reason i don't report is because i don't want to take it to my commander i think we ought to listen to victims. with all due respect, i love the
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senators on the other side and i have great respect for the people in the military. but they are not the victims, mr. president. the victims are standing behind the gillibrand amendment and of the one committee that adviseds the pentagon on the treatment of women in the military, they came out absolutely united in favor of the gillibrand amendment. i have my colleagues saying don't make this fundamental change but the one organization advises the military, these are generals, retired. these are military people, the one organization, they had a chance to say go with the status quo or go with the gillibrand amendment and they voted without a single dissent in favor of the
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gillibrand amendment. when you stand here and defend the status quo in terms of the way this is decided, you have to understand you are in essence saying that 10% reporting of these incidents is okay with you. otherwise you would vote to change it and you can think that you know why more people aren't reporting it and you could fix it around the edges and i am so happy we have some reforms in the bill but the main major reform and the reason the victims' rights groups are so behind the gillibrand amendment is that is the only fundamental change that really is in the bill. i compliment my colleagues for what they have done. it is wonderful but they don't get to the heart of it which is why we have a 90% problem.
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twenty-six thousand cases, only ten% reported. i thought it was bad in the civilian world where 50% are reported. i say to my colleagues we all have staff that run a work place. i don't know how many each of us have in our office here but let's say, i say to my colleagues, hear me out on this. suppose there was a horrible sexual assault that took place in our workplace and we knew the alleged perpetrator and we knew the alleged victim. we would call the police. we wouldn't become the decider. we wouldn't be, the grand jury, the jury, the boss like these commanders do. you know what is really interesting? we had a commander, senator gillibrand called a press conference, a commander who
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commanded troops in afghanistan, he said honestly, the last thing i wondered as i was getting my troops ready to fight and win battles was to deal with some horrible incident that occurred among those i command. i wanted to get a professional in there. i think the gillibrand amendment is important not only for the victims but yes, for good order and discipline and how people could stand up here and say there's good order and discipline when you have 26,000 incidents of sexual assault and only 10% are reported. you have got thousands of people walking around the military not being charged, and sometimes the deal they get is to get kicked out. i will tell you a story of one
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of my constituents because i think it is instructive. she joined the marines. she was asked out on a date and she was drugged, she was tossed on the street, in the early-morning hours. she woke up dazed. she was raped beautifully. brutally in. he reported it to her commander. let me tell you what happened. the perpetrator got out of the military probably to continue his rampage on the streets of some city we represent. and my constituent, you know what happened to her? she was investigated by the military for drug use because she was drugged at night and left and abandoned on the street. the people who support the status quo, hear that story.
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and here the other stories. so we have got a 90% problem. ninety% do not report. we have the dakowicz committee telling us to support gillibrand. we have every victims' rights group the dino. supporting gillibrand. and i am going to say here if the minority of the united states senate stops us today we are going nowhere. we just had a press conference yesterday where we reveals its new republican on our team. today and new democrat. we want to have the best soldiers in the world. we want our commanders concentrating on what they have to concentrate on. we have men and women being
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assaulted and we have a plan in front of a senate and that plan is the gillibrand amendment. it is smart, it has strong bipartisan support, believe me, i was at a press conference with senator grassley, senator ted cruz, senator paul, senator gillibrand, and i have to tell you, our group is growing so if a minority of the united states senate stops this, i will hearken back to the many reforms that have been made, whether it is don't ask don't tell, gays in the military, you name it, and it may take us a time or two. i had an amendment that lost that said you can't take convicted felons in to the military if they convicted a sex crime. i lost.
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i lost. but years later i won. and you cannot take these felons into the military. these reforms are hard. this one is 20 years in the making. history will record who was on the side of positive change. who stood with the victims and who obstructed and everybody is doing it for reasons i respect. let's be clear. but i am passionate about this because i have been here before. i was in congress in the tailhook situation and said to myself after that was publicized this will never happen again. we won't see harassment. we will see reduction in rates and remember half of the victims are men. this is a crime of violence. this is a crime of terror. and we have to make sure there is justice and that means trained people, trained people
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making the decision of whether to go forward. trained people running the trial and not putting this on the commanders because at the end of the day when you talk to them, and i have been talked to all of them but i talked to many of them who said the last thing they want is this power. no one can tell me there is good discipline when you have a 10% reporting record here. 10% of the crimes reported. it just can't be. that isn't good discipline. that isn't good order when you have rapist's walking around because people too scared to go to their commander. and i know my colleagues are trying to do the best for this country but listen to the victims! we don't know better than the victim's. we don't know better. we should be humble. we should listen to the victims.
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allies have gone this way and have been pummeled here today saying they have bad records and the rest of it. i think the reputation of the israeli military is second to none. they have taken this outside the chain of command and many of our other allies and friends, australia, talked about it, frankly this is the way to go. 60% of the american people support the gillibrand amendment. 60% in a poll that just came out so people for the gillibrand amendment, the victims are for the gillibrand amendment, the one committee that advises the pentagon on women's rights in the military are for the gillibrand amendment. i praise everyone who has worked on so many other reforms in this bill. i am so proud. this is a reform bill but i beg my colleagues to make that fundamental change that we need
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to make and have the professionals decide if there is a case, from beginning to end. that is what justice really is. i will close with this. there is a woman who has been put up for undersecretary of the navy. i avalon nomination. i don't believe and secret holes. this is from the obama administration. you know what she said? she was asked about the gillibrand proposal. you know what she said? here is what she said. said if you take this outside the chain of command decisions on this crime will be made based on the evidence, not on good order and discipline. can you believe this? this is the truth. we don't have decisions being made based on the evidence. this woman was honest. i give her is that. he said if we took this outside the chain of command decisions on these crimes will be made
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based on the evidence. she made our case and i am proud to stand with the very strong bipartisan coalition in favor of the gillibrand amendment and i yield the floor. >> mr. president, i would like to thank my friend and colleague in maine for his very thoughtful statement. from having conversations with my no 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 is before the senate in the form of the amendment to the national defense authorization act on the
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floor. a very difficult situation we are facing and it is an unacceptable situation where men and women in the military may be exposed to sexual assault but more importantly than that individuals who are responsible for those assaults will be held accountable. so really what we are 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 is the question here before us. i trust these commanders, mr. president. i have known thousands of them. i trust them and i believe in them. has there been not sufficient effort devoted to preventing this -- these horrible crimes from taking place? yes. but do i trust these commanders and these men and women in
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command to take the proper action necessary? because it is their responsibility, and i believe with the changes already in this legislation, including the ability of commanders to overturn jury convictions, requiring review of decisions not to reverse charges, criminalizing retaliation against the victims, provide special victims counsel to victims of sexual assault to support and assist them through all proceedings, that is why i support senator and a 11's amendments which reforms but military sexual 's amendments which reforms but military sexual assault in pretrial settings. maybe we can be found guilty of
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not acting soon enough but to say, 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? that is 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? require review of decisions not to refer charges, criminalizing retaliation against the victims. we have taken as far as i can tell, a significant and important step that will protect
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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 the fact that they are victims. i am not saying that this legislation that we have before us will eliminate sexual attacks but i am saying sexual assaults, what i am saying is 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 i was the commanding officer pin in 1975, 6, and 7 and we have racial problems, we had drug problems, we had discipline problems, we had post vietnam war syndrome, where our military was in total disarray.
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drugs, racial discrimination, there had been race riots, what did we do? we place the responsibility direct and commanding officers and if they didn't take action and if they failed, they were relieved. that is the way the military should function and that is the way the military has functioned successfully. we had programs and we advisers and indoctrination and we had punishment, punishment for those who refused to adhere to standards of conduct that we expect every man and woman in the military to adhere to so what is the gillibrand amendment to? it removes the commander, it removes the person, the man or woman in command who has the ultimate responsibility unfortunately from time to time of taking these young people into battle and risking their very lives. that is what makes them different from any other part of america, any other part of our society.
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so the gillibrand amendment, of course, is we don't trust those commanders. when 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. .. 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 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 botherit


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