Cloture Motion

Floor Speech

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Mr. GRAHAM. Mr. President, I have been listening today and a few other days, I think, about Senator Gillibrand's efforts to bring up what I think is a major reform of the military justice system to the point where you won't recognize it as it is today. I hope you understand what we are being asked to do here. Senator Reed, who is the chairman of the committee, has been objecting.

Before I got here, I was a military lawyer and Active Duty in the Reserves for about 33 years. I was a prosecutor, defense attorney, and judge.

What I would like to challenge this body to do is find me cases where the judge advocate has recommended prosecution in a sexual assault case in the last 8 years and the commander refused to go forward. I was in the military JAG Corps for 33 years. I can only remember one time where that was even an issue.

Previous efforts to reform the system work like the following: If the JAG recommends prosecution in a sexual assault case as defined in the last piece of legislation and they refuse to go forward, it is taken to the commander's commander. So what problem are we trying to solve here?

What we are doing in this bill is relieving the chain of command when it comes to military justice. If the commander no longer is concerned about sexual assaults in the barracks, we made a huge mistake. The heart and soul of the military justice system is to provide a fair trial to the accused, take care of victims, but give the commander the tools they need for good order and discipline.

So the idea of taking the commander out of the chain of command when it comes to terrible things like sexual assault I think is a bad idea because it is the commander's job to make sure that unit works well. Having a bunch of professional prosecutors make the decision without the commander being involved is basically relieving the commander of what is best for that unit overall.

Sexual assault is a problem in the military. It is a problem in the civilian world. It is a problem all over the place. But the military justice system is designed to bring about good order and discipline.

I can only say that the day that the commander is taken out of the responsibility for what happens in that unit is a bad day for good order and discipline and I think a bad day for that unit.

Again, the legal advice given to commanders in cases like we are talking about is almost universally followed. There have probably been more occasions where a commander will take an iffy case to court just to make the point--cases that would never probably get off first base in the civilian world.

But the people pushing this bill always talk about results and courts-martial. I think the worst thing the U.S. Senate could do is create an impression that a not-guilty verdict is unacceptable in the military. Sometimes a not-guilty verdict is the right answer to the situation presented to the court. I am beginning to doubt whether or not you can get a fair trial in the military if you are accused of one of these crimes.

When politicians attack results in the system, we are sending a pretty clear signal: If you are a court-martial panel member, we are going to be grading your homework here in the Senate, because there seems to be a bias that the only outcome must be a guilty verdict.

The truth of the matter is that a lot of women go to their graves having been assaulted and never having reported the events to anybody. We need to make it easier for victims to come forward. On occasion, people are accused of things they didn't do, and I have been involved in many of these cases. On occasion, you will find that the accusation doesn't hold water--not sufficient to be anywhere near being beyond a reasonable doubt--and sometimes people say things that are just flat not true.

So what I worry about is that, in our effort to reform the system to solve a problem that really doesn't exist--commanders ignoring the JAGs and not prosecuting people because they like them or they have favoritism is not a problem. If you want to talk about reforming the military justice system, fine, but let's don't stand here in the U.S. Senate and say that commanders in the military routinely turn down legal advice to prosecute. They don't. That is just not true. In the military, in a general court-martial, you need three-fourths to convict.

If we are going to go down this track of talking about what an acceptable outcome should be, then I am going to start introducing legislation to change the requirement of the verdict to be unanimous. I was a prosecutor for 4\1/2\ years and a defense attorney for 2. I understand sort of the military courtroom environment.

The panel members--the members of the jury--are commissioned officers or you can request noncommissioned officers, and the accused has that right up to a certain percentage of the panel. These panels are constructed not like a civilian court; they are constructed to make sure that the jury usually comes from the officer corps, and people with the responsibility for that base are picked to serve on these juries to make sure that the base is being well run, that people receive justice who have been violated, and that those accused of a crime have a fair trial. The worst thing that can happen is when a commander seems to have favorites and the people he likes get away with almost anything and the people the commander doesn't like--well, they look for reasons to come down hard on them.

When I was a young JAG, I would go talk to commanders and first sergeants. The worst thing you can do to a unit is play favorites. Call them as you see them. You need to show up in the middle of the night in the barracks--the commander and first sergeant--when they least think you are going to come, and just let people know you are watching them. Most enlisted people are 18 to 22 years old, and it is their first time away from home.

We have made some strides that I think are good. We provide victims of sexual assault in the military with their own individual counsel. Most people don't get that in the civilian world. We are trying to train prosecutors on how to handle these cases, and I like that. Yet, if we are going to start creating a presumption here--contrary to being innocent--that there is only one right answer, then we need to start training a bunch of defense attorneys and have a specialty there. The worst thing that could happen in a military unit is for somebody to be assaulted and to be treated poorly, and nothing happens. Second to that is for somebody to be accused of something that is seen as being not legitimate. That is why you have trials. That is why you have defense attorneys. That is why you have judges. That is why you have prosecutors.

The thing that is unique about the military is that it is not a jury of your peers. The jury is made up of the officer corps on that base who has the responsibility, usually, to run the base. You can request, as an enlisted member, that part of the panel be enlisted, but they are going to be the more senior ranks on the base. They are not going to be E-3s and E-4s. They are going to be E-8s and E-9s. They are going to be the senior enlisted corps, who is responsible for good order and discipline and morale on the base. That is what is unique about the military justice system.

I found, as a defense attorney, that people look long and hard at the government's case. I will talk later on about some cases I had wherein people were accused of using drugs by urinalysis. The system was fatally flawed, and over time the military justice system got that right.

I just want Senator Reed to know that, on slowing this train down and getting the Members of this body to understand what we are talking about, I will support him more. I should be down here talking more. Like everybody else, we are busy. I promise to come down more to give my side of what we should be thinking about in terms of reform and why what is before us is not reform; it is a radical change to the military justice system based on, I think, a premise that doesn't exist.

The one thing I want you to know is there are a handful of cases a year in the Army, the Air Force, the Marine Corps, and the Navy on which the commander refuses to go forward after the JAGs have recommended a court-martial in sexual assault cases. That is what we are all supposed to be worried about--that the system is biased against victims. What can we do to make it easier to report these situations? What can we do to convince people that the command is not going to turn on you if you are a victim? These are all legitimate things, but to fire the entire chain of command based on a premise that, I think, doesn't hold water would be bad and would, over time, undercut the military's ability to maintain good order and discipline and to be an effective fighting force.

Senator Reed is the chairman of the committee, and I will try to do more to help him. I respect Senator Gillibrand a lot, and she is very passionate about this. All I can say is that passion and justice have to be measured, and we have to be making decisions based on facts, not just on an outcome that we would like. When we start talking about a case wherein somebody was acquitted and as if that was the wrong result, that scares the hell out of me.

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