Military Justice Improvement Act of 2013

I rise in strong support of the Military Justice Improvement Act. I am so proud to stand with 17 of the 20 women Members of this Senate on both sides of the aisle and with a large number of colleagues from both sides--a majority--to fight for real change in the way our military addresses the epidemic of military sexual assault.

When one is in Washington for a while--and I have been in Washington for a while. Thanks to the good people of California, I was elected to the House in 1982 and took my seat in 1983. I have seen this issue get worse and worse. The issue of sexual assault in the military is not new. Unfortunately, it is decades old.

It was 23 years ago that dozens of women and men were sexually harassed and assaulted in the halls of a Las Vegas hotel during the Tailhook Association's annual convention. The 1991 Tailhook scandal focused a national spotlight on the issue of military sexual assault, and then-Secretary of Defense Dick Cheney declared after it was over a zero tolerance policy.

I have to be completely blunt with everybody who may be listening to this. The fact is, after Tailhook and all of these promises from everybody, I thought we would never see this epidemic grow as it has. I thought we stopped the epidemic of sexual assault in the military because it was heinous to see what they did when everyone said it would be over.

Let's take a look at how many Secretaries of Defense made a pledge. We will start from the bottom and work our way up to the top.

Secretary Cheney in 1993 said:

Well, we've got a major effort underway to try to educate

everybody, to let them know that we've got a zero-tolerance

policy where sexual harassment's involved.

So a real commitment from then Defense Secretary Cheney.

The next year it was Secretary William Perry. In 1996, he said:

For all reasons, therefore, we have zero tolerance for

sexual harassment.

Then it was Secretary William Cohen. In 1997, he said:

I intend to enforce a strict policy of zero tolerance of

hazing, of sexual harassment, and of racism.

Now we move to Donald Rumsfeld in 2004:

Sexual assault will not be tolerated in the Department of

Defense.

These are beautiful words. But I say to those listening: Nothing has stopped this epidemic--Democratic or Republican Secretaries of Defense, it doesn't matter.

Then Robert Gates, who served both Republican and Democratic Presidents, what did he say.

This is a matter of grave concern. I have zero tolerance

for sexual assault.

Leon Panetta, under President Obama:

We have absolutely no tolerance for any form of sexual

assault.

I take sexual assault allegations very seriously. We have

no place in the military for sexual assault.

Currently, Secretary Chuck Hagel, under President Obama:

It's not good enough to say we have a zero tolerance

policy. We do.

But what does it mean? How does it translate into changing anything? I want to know.

These crimes have no place--no place--in the greatest

military on earth.

We all agree with that. But here is what this shows you: Seven Secretaries of Defense, Republicans and Democrats, all these years--the first one being Dick Cheney in 1992--have all promised zero tolerance, and the problem of sexual assault in the military gets worse.

So Senator Gillibrand has issued a call to action. She has written a terrific bill, working with Republicans and Democrats, and we are getting a vote on the bill tomorrow--assuming we can break a filibuster, because there is a filibuster and we have to file cloture and we need a supermajority of 60 in order to get to an up-or-down vote.

So these promises to me ring hollow. I like so many of these people. I have worked with so many of them. They are good people. They care. But these words are hollow. We have to change the way we deal with sexual assault in the military, and that is what this vote is about tomorrow. But we have to break a filibuster.

Here is what has happened to those who have come forward: Instead of justice, sexual assault survivors have faced retaliation, revictimization, and further abuse. Instead of justice, survivors have been kicked out of the military while their attackers go unpunished.

I will share some deeply troubling statistics which speak to the scope of this problem: 26,000 cases of sexual assault occurred in the U.S. military in 2012 and 1.2 percent were prosecuted.

Mr. President, I know how deeply you care about this. You were responsible for protecting justice for the people of Connecticut. What if you had a range of cases and only 1.2 percent were prosecuted? I am sure you would admit that something was very wrong. Of course, your record speaks for itself.

The point I am making is this: How can anyone defend the status quo? Yet we have a group of people here in the Senate who are defending the status quo. Yes, they are making changes around the edges. I give them that, and I am very happy with that. But they are not getting to the root cause of the problem, which is who decides whether these cases go forward. Who is the decider? That is why the Gillibrand amendment is so critical.

So I want people to keep this chart in their minds. These are all the assaults. The number prosecuted is 1.2 percent. That means that of the estimated 26,000 sexual assaults, only 302 were prosecuted. Keep that in mind--26,000 sexual assaults in the military and only 302 were prosecuted.

Let me give another troubling figure. One in five female servicemembers reported experiencing unwanted sexual contact while serving in the military. One in five female servicemembers reported experiencing unwanted sexual contact while serving in the military. There is something wrong with the culture there. These women are putting their lives on the line, and what do they get for it? One in five is experiencing unwanted sexual contact. And by the way, many of the men are too. But we have this statistic we wanted to share.

What is this misconduct that these women--one out of five women--in the military are facing, unwanted sexual contact? This means they are experiencing rape, sexual assault, and unwanted sexual contact while serving in the military. But they don't report it because they are too scared, and that is why the Gillibrand bill is so critical, and that is why we need to make sure we defeat that filibuster--because you cannot and should not filibuster justice. Let's get an up-or-down vote. How many more women and men will become victims of these heinous crimes

before we take action? For 20 years the military has had to deal with this.

I am a fairly patient person. Before I got into politics, I was not a patient person. When I got into politics, I realized, yes, change takes time. You have to be patient, you have to work hard, and you have to make the case. You have to pile up your statistics. You have to make sure you have the facts and then take action.

But 20 years of doing nothing, 20 years of commitment from all of these people--Richard Cheney, William Perry, William Cohen, Donald Rumsfeld, Secretary Gates, Secretary Panetta, Chuck Hagel; it doesn't matter whether they are Republican or Democratic--all saying the same thing; they are going to stop this heinous situation. And they don't because they cannot.

We need to listen to survivors--survivors who are going to solve the crisis of sexual assault in the military because they are going to speak up, and they have. Survivors are telling us that the only way to stop this horrible epidemic of sexual assault is to take the decision about whether to prosecute serious crimes such as sexual assault out of the hands of the commanders. Give it to the professional, trained military prosecutors outside the chain of command.

There are many people who misconstrue this. They think we are going to take it completely outside the military structure. That is not what we do. What we do is we say the professionals should deal with this. Right now you have to report to your commander. We never would allow a CEO of a corporation to make the decision about whether one of his or her employees should be prosecuted for rape. If something happened in our office and someone came to the Presiding Officer or to me and said: Something horrible has happened upstairs, and we think somebody raped someone else. We wouldn't decide whether to prosecute. We would go right to the police--right to the police. And that is what we are saying when supporting the Gillibrand amendment. We are saying these legal decisions should be made by independent, experienced legal experts so the decision to go to trial is a fair one, objective, and based on the evidence.

By the way, that helps all sides--the accuser and the accused. As a matter of fact, we have some people who are worried that the accused may not get a fair trial if we don't change things because there has been so much publicity about this.

There has been a defense advisory committee on women in the services that has advised the Secretary of Defense for over 60 years. That commission overwhelmingly supports this reform, arguing that the authority of commanders to decide whether to prosecute these cases ``poses an inherent conflict of interest.'' It is obvious. Of course it is a conflict of interest. If the commander is faced with a situation-- remember, we are talking about people who put their lives on the line. If the commander is in a circumstance where he does not want to lose one of these guys who is, let's say, a very good fighter, he has a conflict right there. He may be friends with the guy or the gal, whoever the accused is. We have to take this away from the commander and let them focus on what they need to do.

We have been told by many commanders that they would welcome this even though the top brass is quashing it and fighting hard against them. Why? Why are they fighting against this when for 20 years they have claimed they want to solve the problem? Let's listen to retired military officers such as LTG Claudia Kennedy, the first female three- star general in the Army. This is what she said:

If military leadership hasn't fixed the problem in my

lifetime, it is not going to be fixed without a change from

the status quo. The imbalance of power and authority in

commanders dealing with sexual assaults has to be corrected.

There has to be independent oversight over what is happening.

Then we have a situation where a woman was put up for a position. This is amazing. Dr. Jo Ann Rooney was nominated to be the Under Secretary of the Navy. She was asked:

In your view, what would be the impact of requiring a judge

advocate outside the chain of command to determine whether

allegations of sexual assaults should be prosecuted?

Mr. President, do you know what she said? This is what she said would happen if the Gillibrand bill passed:

I believe the impact would be decisions based on evidence

rather than the interest of preserving good order and

discipline.

And she is against the Gillibrand bill because she put good order and discipline over justice.

Then she said:

I believe this will result in fewer prosecutions and

therefore defeat the very problem I understand it seeks to

address.

Many of us have said we are not going to let a vote come up on this. We have been very open about it. She is complaining that if we pass the Gillibrand bill, the decision will be based on the evidence rather than on the good old boy system. I don't get it.

We need to listen to our allies, such as Israel, Canada, the United Kingdom, Australia. They have successfully made this change.

I want to say very clearly that none of us in this body should filibuster justice. And I have a very strong chart here. I am going to keep this up: ``Don't filibuster justice.'' That is what we are facing. We have people who are going to filibuster the Gillibrand bill and not allow a vote on it, while they would vote not to filibuster the McCaskill bill. I say don't filibuster either of these bills. Vote yes on both. Both are good. But it is only the Gillibrand bill that will make sure the system that is resulting in a disastrous record of prosecutions and a disastrous record of people--90 percent of the people don't report. Isn't that true? Ninety percent of the people don't report because they are scared. These are men and women. If you don't report, you cannot have justice.

For over a year survivors of military sexual assault have been walking the halls of Congress and calling for these vicious crimes to be decided outside the chain of command. In other words, they support S. 1752. They don't want us to filibuster S. 1752. They don't want us to filibuster justice. These brave men and women deserve an up-or-down vote on the Gillibrand bill. They don't deserve the filibuster. That is wrong. They don't deserve two more decades of broken promises. We should be humble in their presence--humble in their presence.

You know, I hear people stand and say: Oh, this is terrible. It would be terrible. It would be awful.

Wait a minute. Why not ask the people who have been raped? Why not ask the people who survived that? Why not ask the people who did not report because they are frightened to death of the commander? We need to give these brave survivors what they deserve--an up-or-down vote on legislation that will fix our broken military justice system.

I want to tell a couple of stories if the numbers are not convincing enough. I want to put a face on it. This is the story of Stacey Thompson, who is a Californian. I stood next to her, and I literally held her hand when she first told the story publicly.

Stacey was drugged and brutally raped by a male sergeant in December 1999 while she was stationed in Okinawa, Japan. She did what she was supposed to do: She reported the rape to her superior. Her allegations were swept under the rug. Her attacker was allowed to leave the Marine Corps without ever facing trial. Do you hear what I am saying? He was allowed to leave the Marine Corps, where he went home and probably continued his activities of raping.

But what happened to Stacey? She became the target of a drug investigation, extending from the night of her rape because her attacker drugged her--drugged her that night and molested her on the ground. She was forced out of the Marine Corps with an other-than- honorable discharge. Stacey told me she still struggles with the emotional and psychological effects of being raped. She is fighting to have her discharge upgraded so she can access the benefits she earned.

So let me just synthesize this story. Here she is. She was raped. She was drugged. She was left on the ground. As a result of the drugging by her attacker, they began an investigation and she was drummed out of the military and denied any benefits. She is appealing, and she hopes to make progress on that appeal. Her accuser gets out of the military scot-free. Right?

I want to point out that half of the estimated 26,000 victims of military sexual assault are men, so I would like to share the story of Amando Javier.

Amando was serving in the Marine Corps in 1993 when he was raped and assaulted by a group of fellow marines. Ashamed and fearing for his life, he kept his rape a secret for 15 years.

When Amando finally found the courage to share his story with a friend, he decided to write it down. I would like to read some of his words at this time.

My experience left me torn apart physically, mentally, and

spiritually. I was dehumanized and treated with ultimate

cruelty, by my perpetrators. . . . I was embarrassed and

ashamed and didn't know what to do. I was young at that time.

And being part of an elite organization that values

brotherhood, integrity and faithfulness made it hard to come

forward and reveal what happened.

Now it is two decades later and no one has been held accountable for this heinous crime. The perpetrators are still out there able to commit these crimes again and again.

Ninety percent of the assaults are not reported. We think 26,000 is a conservative number. Think of how many perpetrators there are in the military, and then when they get out of the military they continue to commit these crimes.

I also want to share the story of Ariana Clay. Ariana graduated from the U.S. Naval Academy and joined the Marine Corps. She deployed to Iraq in 2008. Following her return Ariana was selected to serve at the Marine Barracks in Washington, DC, which is a very prestigious post down the street.

At the Marine Barracks Ariana was subjected to constant sexual assault, and when she tried to report it to her chain of command, she was told to ``deal with it.''

In August 2010, Ariana was gang raped by a senior Marine officer and his friend at her home. Ariana bravely reported the assault, but a Marine Corps investigation determined she had welcomed the harassment because she wore makeup and exercised in shorts and tank tops.

Finally, the Marine Corps did court-martial one of her rapists but failed to convict him of rape. Instead, he was convicted only of adultery and indecent language.

Ariana's husband is a former Marine Corps officer. He joined her at the recent press conference about the importance of changing how the military handles sexual assault. Here is what Ariana's husband said:

The first step to addressing sexual assault in the military

is to remove its prosecution from the chain of command. It is

unfair to expect commanders to be able to maintain good order

and discipline as long as their justice system incentivizes

and empowers them to deny their units' worst disciplinary

failures ever happened.

That was from a former Marine Corps officer who said that the first step is to remove the prosecution of these crimes from the chain of command. So we now see the whole story, and we are going to go through these charts again.

Sadly, Senator Gillibrand's bill--which will finally take the prosecution of these assaults outside the chain of command, keep it in the military, and give it to the trained prosecutors--is being filibustered by my colleagues. Don't you think we should have a vote on justice without having to set up a 60-vote threshold?

I say to my colleagues--none of whom are here now, and I understand since it is very late--don't filibuster justice. If you want to vote against the Gillibrand approach, vote against it but allow us an up-or- down vote. Don't filibuster justice. That is wrong. Frankly, anyone who does that ought to lose some sleep over it. I will tell you, if we get very close--somewhere in the high fifties--this change is coming, so why not make the change now.

I will put these charts back up to remind everyone of what I said. These magnificent men and women in the military are innocent. They joined the military out of love and devotion to country. They put their lives on the line. One in five women is either getting assaulted or harassed and many men--50 percent of the 26,000 cases are men. Men have an even harder time of stepping to the plate and admitting this happened.

The commanders are making these decisions. They are choosing between two people in their unit. It is akin to a CEO determining whether he or she is going to prosecute a case for a Senator and saying: You know what. It is a he said, she said, and I will decide who is telling the truth. Wrong. That is not justice in America. That should not be justice anywhere on our streets, and it should not be justice in the military.

Look at that face. This is a woman who was destroyed. I stood next to her and had to hold her hand so she could actually get the words out. Because of Senator Gillibrand's bill, she is empowered to speak out. Because of a movie called ``Invisible War,'' which focused on people coming forward and telling the truth, she is empowered.

We have to change the way the military handles this or we are just a bunch of folks who come out here and sound great. No, it is time to change.

There were 26,000 cases of sexual assault in 2012. Of those 26,000 cases, 1.2 percent were prosecuted. This is an absolute disgrace on its face and anyone who will not make the changes required is accepting this because all they are doing is tinkering around the edges. It doesn't help because that is all we have done for years.

The moment of truth is coming in the Senate--and it is coming tomorrow around 2 p.m.--and Senators will have to stand here and decide if they are going to filibuster the Gillibrand bill and filibuster justice. They are going to have to decide that.

We have been listening to words and promises and baloney for 20-odd years. I was here all that time, so I know. I was here after Tailhook. Oh, this will never happen. Dick Cheney said: it will not happen. Then we heard from William Perry, William Cohen, Gates, Panetta, Chuck Hagel. I think they meant it when they said no more and zero tolerance, but they will not step up and support the change that needs to be made.

We made a lot of changes in the military. Many years ago they would not allow Blacks and Whites to fight side by side. Those days, thank God, are over. Gays in the military--oh, my God, that was going to be horrific and hurt morale. Thank God that is over. The military fought tooth and nail, day in and day out, and this is just part of the pattern. They protect the status quo.

Put this in your mind: There is no place for a filibuster when it comes to justice. If you don't like the Gillibrand bill, then vote no on it, but give us a chance to vote up or down. I am going to vote to allow a vote on the Gillibrand bill, and I am going to vote to allow a vote on McCaskill's bill.

I ask that the McCaskill people please join us. Let us have an up-or- down vote. Honestly, I know in my heart that these opportunities to make change don't come along very often, and this is our moment. We have all the facts on our side. We have every victims' rights group and every survivor group on our side. We know status quo is dangerous.

I just want to say about my colleague Senator Gillibrand how proud I am to stand with her. What an amazing Senator she is. She listens to advice from both sides of the aisle. Her bill reflects comments that were made by myself, Senator Paul, Senator Hirono, as well as other Senators on both sides of the aisle. People were so happy to sit and work with her and her staff.

Now we are down to the wire. To have people tell me to my face: Oh, yes. I am going to filibuster this because I don't like it--if you don't like it, then vote no, but give us a chance to vote up or down.

It is interesting because many of the same people who are going to filibuster this tell me they want to do away with the filibuster altogether. It is odd. They want to do away with it but not on this one.

We are at the moment of truth, and tomorrow Senator Gillibrand will lead us in the hour of time that we have. Senator McCaskill will offer her views of negativity on the Gillibrand bill. Senator Gillibrand will support both bills, as will I.

I truly pray tonight that people will think about this and will think about Stacey and the men and women who have come forward in such a difficult situation to open their hearts to talk about things that have been kept a secret for so long because they honestly think it will help bring about change.

If we don't allow a vote on that change, then I am afraid this Senate will not look very good when we awaken the next morning.

I thank the Presiding Officer, yield the floor, and note the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, over the past several weeks, the American people have been witness to one of the most breathtaking-- breathtaking--indictments of big-government liberalism in memory. And I am not just talking about a Web site. I am talking about the way in which ObamaCare was forced on the public by an administration and a Democratic-led Congress that we now know was willing to do and say anything--anything--to pass the law.

The President and his Democratic allies were so determined to force their vision of health care on the public that they assured them up and down that they would not lose the plans they had, that they would save money instead of losing it, and that they would be able to use the doctors and hospitals they were already using.

But, of course, we know that that rhetoric does not match reality. The stories we are hearing on a nearly daily basis now range from heartbreaking to comical. Just yesterday I saw a story about a guy getting a letter in the mail saying his dog--his dog--had qualified for insurance under ObamaCare. So, yeah, I would probably be running for the exits too if I had supported this law. I would be looking to change the subject--change the subject--just as Senate Democrats have been doing with their threats of going nuclear and changing the Senate rules on nominations. If I were a Senator from Oregon, for example, which has not enrolled a single person--a single person--for the ObamaCare exchange, I would probably want to talk about something else too.

But here is the problem with this latest distraction: It does not distract people from ObamaCare. It reminds them of ObamaCare. It reminds them of all the broken promises. It reminds them of the power grab. It reminds them of the way Democrats set up one set of rules for themselves and another for everybody else--one set of rules for them and another for everybody else.

Actually, this is all basically the same debate, and rather than distract people from ObamaCare, it only reinforces the narrative of a party that is willing to do and say just about anything to get its way--willing to do or say just about anything to get its way. Because that is just what they are doing all over again.

Once again, Senate Democrats are threatening to break the rules of the Senate--break the rules of the Senate--in order to change the rules of the Senate. And over what? Over what? Over a court that does not even have enough work to do?

Millions of Americans are hurting because of a law Washington Democrats forced upon them, and what do they do about it? They cook up some fake fight over judges--a fake fight over judges--who are not even needed.

Look, I get it. As I indicated, I would want to be talking about something else too if I had to defend dogs getting insurance while millions of Americans lost theirs. But it will not work. The parallels between this latest skirmish and the original ObamaCare push are just too obvious to ignore.

Think about it. Just think about it. The majority leader promised--he promised--over and over that he would not break the rules of the Senate in order to change them. This was not an ancient promise. On July 14 on ``Meet the Press'' he said: ``We're not touching judges.'' This year, on July 14, on ``Meet the Press'': ``We're not touching judges.''

Then there are the double standards.

When Democrats were in the minority, they argued strenuously for the very thing they now say we will have to do without; namely, the right to extended debate on lifetime appointments. In other words, they believe that one set of rules should apply to them--to them--and another set to everybody else. He may just as well have said: ``If you like the rules of the Senate, you can keep them.'' ``If you like the rules of the Senate, you can keep them''--just the way so many Democrats in the administration and Congress now believe that ObamaCare is good enough for their constituents, but that when it comes to them, their political allies, their staffs, well, of course, that is different.

Let's not forget about the raw power--the raw power--at play here. On this point, the similarities between the ObamaCare debate and the Democratic threat to go nuclear on nominations are inescapable-- inescapable. They muscled through ObamaCare on a party-line vote and did not care about the views of the minority--did not care one whit about the views of the minority. And that is just about what they are going to do here.

The American people decided not to give the Democrats the House or to restore the filibuster-proof majority they had in the Senate back in 2009, and our Democratic colleagues do not like that one bit. They just do not like it. The American people are getting in the way of what they would like to do. So they are trying to change the rules of the game to get their way anyway. They said so themselves. Earlier this year, the senior Senator from New York said they want to ``fill up the DC Circuit one way or another''--``fill up the DC Circuit one way or another.''

The reason is clear. As one liberal activist put it earlier this year, President Obama's agenda ``runs through the DC Circuit.'' You cannot get what you want through the Congress because the American people, in November 2010, said they had had enough--they issued a national restraining order, after watching 2 years of this administration unrestrained--so now their agenda runs through the bureaucracy and through the DC Circuit.

As I said, in short, unlike the first 2 years of the Obama administration,

there is now a legislative check on the President. The administration does not much like checks and balances, so it wants to circumvent the people's representatives with an aggressive regulatory agenda, and our Democratic colleagues want to facilitate that by filling up a court that will rule on his agenda--a court that does not even have enough work to do, especially if it means changing the subject from ObamaCare for a few days.

And get this: They think they can change the rules of the Senate in a way that benefits only them. They want to do it in such a way that President Obama's agenda gets enacted but that a future Republican President could not get his or her picks for the Supreme Court confirmed by a Republican Senate using the same precedent our Democratic friends want to set. They want to have it both ways.

But this sort of gerrymandered vision of the nuclear option is wishful thinking. As the ranking member of the Judiciary Committee Senator Grassley pointed out yesterday: If the majority leader changes the rules for some judicial nominees, he is effectively changing them for all judicial nominees, including the Supreme Court, as Senator Grassley pointed out yesterday.

Look, I realize this sort of wishful thinking might appeal to the uninitiated newcomers in the Democratic Conference who have served exactly zero days in the minority. But the rest of you guys in the conference should know better. Those of you who have been in the minority before should know better.

Let's remember how we got here. Let's remember that it was Senate Democrats who pioneered, who literally pioneered the practice of filibustering circuit court nominees, and who have been its biggest proponents in the very recent past. After President Bush was elected, they even held a retreat in which they discussed the need to change the ground rules by which lifetime appointments are considered. The senior Senator from New York put on a seminar, invited Laurence Tribe, Cass Sunstein. In the past the practice had been neither side had filibustered circuit court nominees. In fact, I can remember at Senator Lott's gagging several times and voting for cloture on circuit judges for the Ninth Circuit, knowing full well that once cloture was invoked, they would be confirmed.

So this business of filibustering circuit court judges was entirely an invention of the guys over here on the other side, the ones you are looking at right over here. They made it up. They started it. This is where we ended up.

After President Bush was elected, they held this retreat that I was just talking about and made a big deal about it. It was all a prelude to what followed, the serial filibustering of several of President Bush's circuit court nominees, including Miguel Estrada, whose nomination to the DC Circuit was filibustered by Senate Democrats a record seven times--seven times. Now they want to blow up the rules because Republicans are following a precedent they themselves set.

I might add, we are following that precedent in a much more modest way than Democrats did.

So how about this for a suggestion? How about instead of picking a fight with Senate Republicans by jamming through nominees to a court that does not even have enough work to do, how about taking yes for an answer and working with us on filling judicial emergencies that actually exist?

Yet rather than learn from past precedent on judicial nominations that they themselves set, Democrats now want to set another one. I have no doubt if they do, they will come to regret that one as well. Our colleagues evidently would rather live for the moment, satisfy the moment, live for the moment, and try to establish a story line that Republicans are intent on obstructing President Obama's judicial nominees. That story line is patently ridiculous in light of the facts. That is an utterly absurd suggestion in light of the facts.

Before this current Democratic gambit to fill up the DC Circuit one way or the other, the Senate had confirmed 215--215--of the President's judicial nominees and rejected 2. That is a 99-percent confirmation rate. There were 215 confirmed and 2 rejected--99 percent.

Look, if advice and consent is to mean anything at all, occasionally consent is not given. But by any objective standards, Senate Republicans have been very fair to this President. We have been willing to confirm his nominees. In fact, speaking of the DC Circuit, we just confirmed one a few months ago 97 to 0 to the DC Circuit.

So I suggest our colleagues take a timeout, stop trying to jam us, work with us instead to confirm vacancies that actually need to be filled, which we have been doing. This rules change charade has gone from being a biannual threat, to an annual threat, now to a quarterly threat. How many times have we been threatened, my colleagues? Do what I say or we will break the rules to change the rules. Confirm everybody, 100 percent. Anything less than that is obstructionism. That is what they are saying to us.

Let me say we are not interested in having a gun put to our head any longer. If you think this is in the best interests of the Senate and the American people to make advice and consent, in effect, mean nothing--obviously you can break the rules to change the rules to achieve that. But some of us have been around here long enough to know that the shoe is sometimes on the other foot.

This strategy of distract, distract, distract is getting old. I do not think the American people are fooled about this. If our colleagues want to work with us to fill judicial vacancies, as we have been doing all year--99 percent of judges confirmed--obviously we are willing to do that. If you want to play games, set yet another precedent that you will no doubt come to regret--I say to my friends on the other side of the aisle, you will regret this, and you may regret it a lot sooner than you think.

Let me be clear. The Democratic playbook of broken promises, double standards, and raw power, the same playbook that got us ObamaCare, has to end. It may take the American people to end it, but it has to end. That is why Republicans are going to keep their focus where it belongs, on the concerns of the American people. It means we are going to keep pushing to get back to the drawing board on health care, to replace ObamaCare with real reforms, to not punish the middle class, and we will leave the political games to our friends on the other side of the aisle.

Mr. President, I ask for the yeas and nays.

Parliamentary inquiry.

Is it correct that more than 200 judicial nominations have been confirmed by the Senate since 2009?

Mr. President, a further parliamentary inquiry.

Is it correct that under the bipartisan streamlining provisions of S. Res. 116 and S. 679 in the 112th Congress, the Senate removed 169 nominations from Senate consideration completely, moved 272 nominations to the Senate's expedited calendar, and removed from Senate consideration approximately 3,000 nominations for the NOAA officer corps and the Public Health Service?

I move to adjourn the Senate until 5 p.m. and ask for the yeas and nays.

Mr. President, parliamentary inquiry.

Is it correct that under the bipartisan provisions of S. Res. 15, adopted earlier this year, postcloture debate time on a district court nomination is limited to 2 hours before an up-or-down vote is required under the rules?

Further parliamentary inquiry, Mr. President.

Is it correct under the provisions of S. Res. 15, adopted earlier this very year, that postcloture debate time on any executive branch nomination other than those at the Cabinet level is already limited to 8 hours before an up-or-down vote is required under Senate rules?

Mr. President, one other parliamentary inquiry. When the Senate's rules were amended and a new standing order on consideration of nominations was established earlier this year, the majority leader and I engaged in a colloquy to announce that no further rules changes would be considered unless under the regular order and through the action of the Senate Rules Committee.

Would the Chair confirm that currently the rules of the Senate provide that a proposal to change the Senate rules would be fully debatable unless two-thirds of the Senators present and voting voted to invoke cloture, which would mean 67 Senators voting in the affirmative if all 100 voted?

Further inquiry: It is my understanding that prevailing on appeal of the ruling of the Chair would

change Senate precedent on how nominations are considered in the Senate and effectively change the procedures or application of the Senate's rules.

How many votes are required to appeal the ruling of the Chair in this instance?

So I am correct that overturning the ruling of the Chair requires a simple majority vote?

Mr. President, I make a point of order that nominations are fully debatable under the rules of the Senate unless three-fifths of the Senators chosen and sworn have voted to bring debate to a close. Under the precedent just set by the Senate, cloture is invoked at a majority. Therefore, I appeal the ruling of the Chair and ask for the yeas and nays.

I appeal the ruling of the Chair and ask for the yeas and nays.

Mr. President, I move to proceed to Calendar No. 243, S. 1356, the Workforce Investment Act of 2013.

Mr. President, following my remarks and those of the Republican leader, the Senate will resume consideration of the National Defense Authorization Act. I filed cloture on that bill last night. As a result, the filing deadline for first-degree amendments to the bill is 1 p.m. today.

Measure Placed on the Calendar--S. 1752

Mr. President, I am told S. 1752 is due for a second reading.

I object to any further proceedings on this bill at this time.

Mr. President, I am a strong supporter of our Iran sanction regime and believe that the current sanctions have brought Iran to the negotiating table.

I believe we must do everything possible to stop Iran from getting nuclear weapons capability, which would threaten Israel and the national security of our great country.

The Obama administration is in the midst of negotiations with the Iranians that are designed to end their nuclear weapons program. We all strongly support those negotiations and hope they will succeed, and we want them to produce the strongest possible agreement.

However, we are also aware of the possibility that the Iranians could keep the negotiations from succeeding. I hope that won't happen, but the Senate must be prepared to move forward with a new bipartisan Iran sanctions bill when the Senate returns after the Thanksgiving recess. I am committed to do just that.

A number of Senators, Democrats and Republicans, have offered their own amendments on Iran, and they have offered a couple of the amendments in the Defense authorization bill. I know other Senators also have their own sanctions bills they would like to move forward on.

I will support a bill that would broaden the scope of our current petroleum sanctions, place limitations on trade with strategic sectors of the Iranian economy that support its nuclear ambitions, as well as pursue those that divert goods to Iran.

While I support the administration's diplomatic efforts, I believe we need to leave our legislative options open to act on a new bipartisan sanctions bill in December, shortly after we return.

Mr. President, I note the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, the American people believe Congress is broken. The American people believe the Senate is broken, and I believe the American people are right.

During this Congress--the 113th Congress--the United States has wasted an unprecedented amount of time on procedural hurdles and partisan obstruction. As a result the work of this country goes undone.

Congress should be passing legislation that strengthens our economy and protects American families. Instead, we are burning wasted hours and wasted days between filibusters. I could say, instead, we are burning wasted days and wasted weeks between filibusters.

Even one of the Senate's most basic duties--confirmation of presidential nominees--has become completely unworkable. There has been unbelievable, unprecedented obstruction. For the first time in the history of our Republic, Republicans have routinely used the filibuster to prevent President Obama from appointing his executive team or confirming judges. It is truly a troubling trend that Republicans are willing to block executive branch nominees, even when they have no objection to the qualifications of the nominee. Instead, they block qualified executive branch nominees to circumvent the legislative process. They block qualified executive branch nominations to force wholesale changes to laws. They block qualified executive branch nominees to restructure entire executive branch departments, and they block qualified judicial nominees because they don't want President Obama to appoint any judges to certain courts.

The need for change is so very obvious. It is clearly visible. It is manifest we have to do something to change things.

In the history of our country--some 230-plus years--there have been 168 filibusters of executive and judicial nominations. Half of them have occurred during the Obama administration--so 230-plus years, 50 percent; 4\1/2\ years, 50 percent. Is there anything fair about that?

These nominees deserve at least an up-or-down vote--yes or no--but Republican filibusters deny them a fair vote--any vote--and deny the President his team.

Gridlock has consequences, and they are terrible. It is not only bad for President Obama and bad for this body, the Senate, it is bad for our country, it is bad for our national security, and it is bad for our economic security.

That is why it is time to get the Senate working again--not for the good of the current Democratic majority or some future Republican majority, but for the good of the United States of America. It is time to change. It is time to change the Senate before this institution becomes obsolete.

At the beginning of this Congress, the Republican leader pledged that, ``This Congress should be more bipartisan than the last Congress.''

We are told in the Scriptures--let's take, for example, the Old Testament, the Book of Numbers, that promises, pledges, a vow--one must not break his word.

In January, Republicans promised to work with the majority to process nominations in a timely manner by unanimous consent, except in extraordinary circumstances. Exactly three weeks later, Republicans mounted a first-in-history filibuster of a highly qualified nominee for Secretary of Defense.

Despite being a former Republican Senator and a decorated war hero, having saved his brother's life in Vietnam, Defense Secretary Chuck Hagel's nomination was pending in the Senate for a record 34 days--more than three times the previous average for a Secretary of Defense. Remember, our country was at war.

Republicans have blocked executive nominees such as Secretary Hagel not because they object to the qualifications of the nominee but simply because they seek to undermine the very government in which they were elected to serve.

Take the nomination of Richard Cordray to lead the Consumer Financial Protection Bureau. There was no doubt about his ability to do the job. But the Consumer Financial Protection Bureau, the brainchild of Elizabeth Warren, went for more than 2 years without a leader because Republicans refused to accept the law of the land, because they wanted to roll back the law that protects consumers from the greed of Wall Street.

I say to my Republican colleagues: You don't have to like the laws of the land, but you do have to respect those laws and acknowledge them and abide by them.

Similar obstruction continued unabated for 7 more months, until Democrats threatened to change Senate rules to allow up-or-down votes on executive nominations. In July, after obstructing dozens of executive nominees for months--and some for years--Republicans once again promised they would end the unprecedented obstruction.

One look at the Senate's Executive Calendar shows that nothing has changed since July. Republicans have continued their record obstruction as if no agreement had ever been reached. Again, Republicans have continued their record of obstruction as if no agreement had been reached.

There are currently 75 executive branch nominations ready to be confirmed by the Senate. They have been waiting an average of 140 days for confirmation.

One executive nominee to the agency that safeguards the water my children and my grandchildren drink and the air they breathe has waited almost 900 days for confirmation.

We agreed in July that the Senate should be confirming nominees to ensure the proper functioning of government.

Consistent and unprecedented obstruction by the Republican Caucus has turned ``advise and consent'' into ``deny and obstruct.''

In addition to filibustering a nominee for Secretary of Defense for the first time in history, Senate Republicans also blocked a sitting Member of Congress from an administration position for the first time since 1843.

As a senior Member of the House Financial Services Committee, Congressman Mel Watt's understanding of the mistakes that led to the housing crisis made him uniquely qualified to serve as Administrator of the Federal Housing Finance Agency.

Senate Republicans simply do not like the consumer protections Congressman Watt was nominated to develop and implement, so they denied a fellow Member of Congress and a graduate of the Yale School of Law even the courtesy of an up-or-down vote.

In the last 3 weeks alone, Republicans have blocked up-or-down votes on three highly qualified nominees to the DC Circuit Court of Appeals. This does not take into consideration they twice turned down one of the most qualified people in my 30 years in the Senate who I have ever seen come before this body: Caitlin Halligan. So we have three more to add to that list.

The DC Circuit is considered by many to be the second highest court in the land, and some think maybe the most important. It deals with these complex cases that come from Federal agencies and other things within their jurisdiction.

Republicans have blocked four of President Obama's five nominees to the DC Circuit, whereas the Democrats approved four of President Bush's six nominations to this important court.

Today the DC Circuit Court--at least the second most important court in the land--has more than 25 percent in vacancies. There is not a single legitimate objection to the qualifications of any of these nominees to the DC Circuit that President Obama has put forward. Republicans have refused to give them an up-or-down vote--a simple ``yes'' or ``no'' vote. Republicans simply do not want President Obama to make any appointments at all to this vital court--none, zero.

Further, only 23 district court nominations have been filibustered in the entire history of our country--23. And you know what. Twenty of them have been in the last 4\1/2\ years. Two hundred thirty-plus years: 3; the last 4\1/2\ years: 20. That is not fair. With one out of every 10 Federal judgeships vacant, millions of Americans who rely on courts that are overworked and understaffed are being denied the justice they rightly deserve.

More than half of the Nation's population lives in parts of the country that have been declared a ``judicial emergency.'' No one has worked harder than

the President pro tempore to move judges. The President pro tempore is the chairman also of the Judiciary Committee. No one knows the problem more than the President pro tempore.

The American people are fed up with this kind of obstruction and gridlock. The American people--Democrats, Republicans, Independents-- are fed up with this gridlock, this obstruction. The American people want Washington to work for American families once again.

I am on their side, which is why I propose an important change to the rules of the U.S. Senate. The present Republican leader himself said-- and this is a direct quote--``The Senate has repeatedly changed its rules as circumstances dictate.''

He is right. In fact, the Senate has changed its rules 18 times, by sustaining or overturning the ruling of the Presiding Officer, in the last 36 years--during the tenures of both Republican and Democratic majorities.

The change we propose today would ensure executive and judicial nominations an up-or-down vote on confirmation--yes, no. The rule change will make cloture for all nominations other than for the Supreme Court a majority threshold vote--yes or no.

The Senate is a living thing, and to survive it must change, as it has over the history of this great country. To the average American, adapting the rules to make the Senate work again is just common sense.

This is not about Democrats versus Republicans. This is about making Washington work--regardless of who is in the White House or who controls the Senate.

To remain relevant and effective as an institution, the Senate must evolve to meet the challenges of this modern era.

I have no doubt my Republican colleagues will argue the fault is ours, it is the Democrats' fault. I can say from experience that no one's hands are entirely clean on this issue. But today the important distinction is not between Democrats and Republicans. It is between those who are willing to help break the gridlock in Washington and those who defend the status quo.

Is the Senate working now? Can anyone say the Senate is working now? I do not think so.

Today Democrats and Independents are saying enough is enough. This change to the rules regarding Presidential nominees will apply equally to both parties. When Republicans are in power, these changes will apply to them as well. That is simple fairness, and it is something that both sides should be willing to live with to make Washington work again. That is simple fairness.

I suggest the absence of a quorum.

Mr. President, what is the business before the Senate right now?

Mr. President, I now move to proceed to the motion to reconsider the vote by which cloture was not invoked on the Millett nomination.

I move to reconsider the vote by which cloture was not invoked on the Millett nomination.

Are we now on the motion to reconsider the Millett nomination?

I raise a point of order that the vote on cloture under rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote.

I appeal the ruling of the Chair and ask for the yeas and nays.

I ask for the yeas and nays.

Mr. President, what is the pending question before the Senate?

I yield 8 minutes to the Senator from Rhode Island, Mr. Reed.

I yield 10 minutes to the Senator from Michigan, the chairman of the Senate Armed Services Committee, Mr. Levin.

Madam President, I rise, together with my colleagues Senator Graham and Senator Ayotte, and ask that the Chair advise when we have used 20 minutes of time. We are going to engage in a colloquy about this important decision that is in front of the Senate.

It is, in fact, with great humility that I come to this policy debate. I don't think anyone in the Senate has spent more time in a courtroom putting perpetrators in prison who have committed sexual crimes. I don't think anybody has spent more time with victims of sexual assault. There is an incredible amount of pressure that you feel when you walk into a courtroom knowing that victim has placed trust in you to bring the evidence forward, and I am forever marked by that experience. It is with that experience that I have become convinced that the policy changes that are being advocated will not work for victims.

In fact, it is clear that when these changes have been enacted other places, reporting has not increased. It is clear that right now we have more cases going to court-martial over the objections of prosecutors than the objections of commanders. Today there is a court-martial ongoing where a prosecutor walked away from the serious charges and the commander said go forward. There have been almost 100 cases over the last 2 years where prosecutors said this case is too tough and the commanders have said, no, we have to get to the bottom of it. We can't let the commanders walk away. We cannot let the commanders walk away.

There is nothing in the Gillibrand proposal that provides additional protection from retaliation.

I ask Senator Graham: If someone walks back into their unit after being victimized and the unit knows the commander has said this case is going forward, how would that contrast to walking back into his or her unit when the unit knows some lawyer in Fort Belvoir--hundreds of miles away--has said whether this case should go forward? I am trying to figure out how removing the commander provides any additional protection from retaliation to that victim.

I would say to Senator Ayotte, I am also struggling with some of the practical problems in this policy, and one of the things I can't figure out is why the amendment limits the ability to add any additional resources. It strictly prohibits the military from bringing additional resources to bear on this problem, which is counterintuitive to me. If the goal here is to do our very best job to protect victims, and the practical problem is we do not have enough of the level of JAG officers right now to set up these offices on a global basis, which means things are going to slow down because we don't have enough--I know the Senator from New Hampshire has been a prosecutor. Certainly there is nothing harder for a victim than justice delayed.

So in addition to it not increasing reporting, in addition to it not protecting from retaliation, in addition to removing commanders from their accountability, we also have some real practical implications.

We have hard data on that. In fact, I think that is one of the reasons, if we look at this quote:

I went into this thinking Senator Gillibrand's legislation

made sense, but when you hear the facts, it doesn't hold up.

That is an important quote, but even more important when we realize who said it. This is the woman who runs the National Center for Victims of Crime for our entire Nation. She heard 150 witnesses, representing many of the groups that have been referenced in this debate. She realized that when they looked at the data, our allies have done this, and not in one nation, after years of experience with changing the system, has the reporting increased.

The way we increase reporting is to give the victim a safe harbor, which we have done, to report outside the chain of command, and to have their own lawyer, and to make sure they have power and deference in the process, which we have done, along with the reforms, on which I am very proud to have worked with Senator Gillibrand.

I have great respect for the Senator's time and for working in the trenches as a military prosecutor in the JAG corps. I will tell my colleagues honestly, I am less concerned about the commanders than I am the victims. The Senator and I maybe don't see it exactly the same way in that regard. I believe there are commanders who deserve to be held accountable for their failure to act, for their want to sweep this crime under the rug throughout history, but I think we are handing the broom to the prosecutors at this point based on the data we have.

One of the things I wanted to go over and mention to Senator Ayotte is the systems response panel. I think it is important to understand-- the DACOWITS panel was mentioned. I want everybody to understand the difference between the DACOWITS panel and the systems response panel. The DACOWITS panel has been in place for years, and they took up this matter and heard no witnesses from the JAG corps. In fact, I think they heard two witnesses or three witnesses and two of them were me and Kirsten Gillibrand. They took no time to really go deeply into this very complex subject.

The systems response panel was created by Congress, and it was for the purpose of giving us their clear eye of

advice on the best way to deal with this problem in the military.

This is a majority of civilians and a majority of women who made up this panel. They heard 150 witnesses over months. They heard from all of the people who are advocating for the Gillibrand proposal. They heard from the JAGs. They heard from victim organizations. They came out overwhelmingly rejecting this proposal.

One of the most interesting members--and I will be honest; when I went to testify in front of this response panel, I was very worried that Elizabeth Holtzman maybe would not agree with me. She has a long history in Congress. She wrote the Federal rape shield statute. I assumed she would begin this process assuming that in the simple equation of victims versus commanders, I take victims. If only it were that simple. What the response panel figured out is that it is not that simple.

Judge Holtzman, the judge who wrote the decision overturning DOMA, said:

Just turning it over to prosecutors doesn't mean you are

going to get the results you are looking for.

And Elizabeth--this is what Elizabeth Holtzman said: ``Just turning it over to prosecutors doesn't mean you are going to get the results you are looking for.'' That is what Holtzman said.

Judge Jones: ``There is no evidence that removing the convening authority is going to improve any of the parts of the system.''

That is startling, this response, from a panel that looked at it over months, 150 witnesses, majority civilians, majority women. This is not a bumper sticker. It is not as simple as it sounds. I would never oppose anything that I thought was going to help victims or put more perpetrators in prison--ever. This will have the opposite impact that many of the advocates are indicating that it will.

Isn't it true that, in fact, our reporting is up?

One minute.

Thank you, Madam President.

Madam President, I yield 5 minutes to my friend from Arizona, Senator McCain.

I yield 3 minutes to the Senator from New Hampshire, Senator Ayotte.

Madam President, I will take a couple of moments at the close of this very difficult debate to express my deep respect to the Senator from New York, Mrs. Gillibrand.

While many aspects of this debate have been hard, perhaps the hardest part of this debate has been that this disagreement on policy has overshadowed the amazing work so many have done this year to enact a different day in the U.S. military when it comes to sexual assault and victims of sexual assault.

When the Sun sets today, this body will have passed 35 major reforms in less than 1 year, making the military the most friendly victims organization in the world, giving victims more power, more leverage, holding commanders accountable, and holding perpetrators accountable. It will eliminate the ridiculous notion that how well one flies a plane should have anything to do with whether they committed a crime, professionalizing the process so that victims no longer endure a ridiculous amount of inappropriate questioning at what should be something like a preliminary hearing to establish probable cause, as opposed to some kind of rendering of questioning, torture to a victim who has come out of the shadows and is willing to go forward.

I know I can speak with confidence for Senator Gillibrand that she and I have walked lockstep on those 35 reforms. We have disagreed on one. I know in the future she and I will work very hard together to make sure our military does the right thing by victims and puts perpetrators where they belong--in prison--and out of the ranks of the military where they stain the good name of the bravest men and women in the world.

I thank all of my colleagues for their patience during this debate. I know this has been tough for everyone. But I stand with years of experience, holding the hands and crying with victims, with many victims, who have spoken to me and other organizations, knowing that what we have done is right for victims and right to hold perpetrators accountable.

I respectfully request that people support our amendment today and reject the one area of policy on which the great Senator from New York and I disagree.

I yield the floor.

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

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

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

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

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

Here is what that subcommittee concluded:

There is no evidentiary basis at this time supporting a

conclusion that removing senior commanders as convening

authority will reduce the incidence of sexual assault or

increase sexual assault reporting.

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

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

I've changed my mind, because I was just listening to what

we heard. I started out . . . thinking, why not change it and

now I am saying, why change it. . . . Just turning it over to

prosecutors doesn't mean you are going to get the results you

are looking for. . . .

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

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

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

When you hear it at first blush, you go, ``Yeah, I want to

go with that.'' But when you hear the facts, like you would

in a case, it just doesn't hold up.

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

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

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

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

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

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

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

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

These additional protections in the McCaskill-Ayotte bill help us answer

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

I thank the Presiding Officer and yield the floor.