>> we have heard no evidence that there is data that supports the notion that commanders are refusing to move forward when advised to move forward by their legal advice. that has not been a problem that we have found. in fact, has been pointed out by the chairman and others, we heard testimony to the opposite effect, that the our times the

lawyers said no and the commanders said yes. under the subcommittee's proposal it would be over when the lawyer said no. there would be cases that had their day in court that would never see court under the subcommittee's proposal. because we know for a fact that cases have moved forward even when lawyers say no. and believe me, prosecutors say no all the time in these cases. many of these cases are he said/she said, consent defenses. it is who is believable. i can tell you how many prosecutors there are and the military system and the civilian system that can get their arms around the evidentiary challenge. so there are hundreds of these cases that are being turned down today in this country by civilian prosecutors.

and there are a lot of cases that are turned down by civilian prosecutors that will be taken up under these proposals by the military. we also have heard no data that would indicate that by removing the command completely from any role here, the data will have a positive impact on retaliation. if you look at the surveys, a lot of the victims talk about retaliation. in the civil system it is more painful and personal and private and the kind of moment you never want to say out loud. in the military it's all that plus what impact will it have on my career. so what i really tried to look at is where with the victim the most protected from retaliation. a victim goes back into the unit. are the more protected from retaliation if this case is going to trial because an outside prosecutor that nobody

knows that it should wax or are the more protected from retaliation when the commander of the unit says, we're going to court-martial, we are having a trial. i can make a strong argument that the latter is true, not the former. not only does common sense tell me this is true, it is also what i've been told in numerous conversations with military prosecutors and with victims. i honestly do not believe that the chain of command at the disposition face, which in the military needs at the beginning not the end, is not our main problem. our main problem is the military doesn't know how many rapes and sodomy is a have. they have no idea. because the only anonymous information their gathering is under a broad type of sexual contact. so people anonymously are saying whether they fed unwanted

contact. well, that could be a lot of things that are not criminal and that are certainly not rape or sodomy. so first we need accurate data as to how big the problem is, and then we have to make sure that the missions that the chairman referred to is getting after that. it is a lack of focus in supporting victims that is the problem. it's a lack of resources of high level investigation. it's an inability to track offenders, because of restricted reports. i've got news for everybody. it is very unusual for anybody to do this one time. and what a better place to be a roving predator than military that moves you all the time. from country to country, from base to base. if we don't get a handle on tracking these perpetrators in a more aggressive way, we will never accomplish this mission.

and finally, it's the last of focus on prison for these cowards. and long sentences and mandatory dishonorable discharge. i know that there will be those who think that senator gillibrand and i don't agree, but we agree on one thing. we are not going to give up focusing on this problem. we are not going anywhere. one word of advice to the military. don't think this is over once this defense authorization bill becomes law. because we have just begun. we have just begun to monitor, we have just begun to hold your feet to the fire, we have just begun to hold you accountable, we have just begun to make sure that it is a new day in the

united states military when it comes to these horrific crimes. i have watched our military accomplish missions that it didn't think anybody could accomplish. this is a big one. now it's time to show your stuff. show that you can get after this problem in a way that supports victims and result in successful prosecution, and we will get a handle on one of the most embarrassing moments our united states military has had in decades. thank you, mr. chairman. >> thank you very much, senator mccaskill. i will look to this site if anyone wishes to add a comment. senator mccain? >> well, thank you, mr. chairman. a lot has been said on this issue, and so i will make my remarks brief except to say that i think you, and senator mccaskill, senator ayotte, senator graham, senator inhofe, for a lot of hard discussions and compromises.

and i think we have come up with a legislative proposal that should be extremely effective. i do like to remind my colleagues that this is a cultural problem, and so if we are really going to address this issue in an effective fashion we're going to have to change the culture in the military rather than systems of review, which are important, but the culture is the problem. and if you will indulge me for a moment i would like to remind our colleagues the following, during and following the war in vietnam when we still have an all volunteer, a draft conscript force can we are problems of the most serious that were racial in nature, to the point where we had race riots honor aircraft carriers and we had fracking

during conflict in vietnam. we didn't solve the problem by taking away the responsibility of the commanding officer. what we did was place additional responsibilities and embarked on a very, very vigorous program of indoctrination, of instruction, of explaining to the men and women in the military what was acceptable and what was not. and those who violated those regulations concerning the practice of racism were punished with the utmost severity and rapidity. i have great faith in our commanding officers. i believe that when we have the responsibility of sending young men and women into combat at the risk of their very lives, that we also should have some confidence in their ability. i strongly support a system of

review that has been aptly described here, but i also believe that when we give these men and women the responsibilities of command, that we should have them exercise those responsibilities. and i would point out, by the way, in the hearing that we had, i asked the vice admiral to rinse the what her view was about the problem in the military. and she stated unequivocally that there been significant improvements interview in this whole culture. and environment. so i think it's up to us to do what we can as legislators. but we also should hold those responsible for an attitude and a climate that rejects this kind of behavior. and if necessary, if they can't carry out those responsibilities, we find leaders that can. and i thank you, mr. chairman,

for your leadership again on this issue, and senator inhofe for yours, and i think at least this will be a major step forward in trying to address what is an unacceptable situation in our military today. thank you, mr. chairman. >> thank you very much, senator mccain. senator reid. >> thank you, mr. chairman. first let me commend senator children for extraordinary efforts in this regard and someone of our colleagues have dealt with this issue with intelligence and with passion and i didn't want to recognize senator mccaskill for her experience in bringing it to bear in helping us i think move under the chairman's proposal to an approach that's going be effective. this is a plague as chairman indicated. it undermines fundamental trust, and without that trust no

military unit can function. and i was second senator mccain's observations, because i commanded during the post-vietnam era and we had to deal with a serious set of issues. ultimately, is about a chain of commanding effective. because our goal here is prevention, proactive prevention, that can only be accomplished by the chain of command. and that process entails every step, and they have to be engaged. induction of military personnel. training of military personnel. evaluation of military personnel. promotion of military personnel your inspecting constantly, and yes, in cases where there are violations, charging those personnel. and then because they're involved in every phase, holding commanders responsible, accountable or everything they do or fail to do.

this accountability can't be merely rhetorical. a zero policy, a zero-tolerance. it's got to be measured in a very simple metric. it's a commander does not measure up, he or she is relieved of their commands. that will, i think, provide the kind of proactive cultural change that senator mccain referred to, and if necessary but i think the chairman's amendments reach this objective by making wise changes to procedure, but ultimately making it clear to every level of command, it's your job, no one else's. you have to make this work. ultimately, this translates into combat effectiveness. unit cohesion, unit loyalty, and

the ultimate value i think that soldiers sailors and marines and airmen have to have, and we will all other to do. we have to trust the soldiers sailors and marines and airmen, and a certain have to trust their commands but i think with this language we can move forward. thank you, mr. chairman. >> thank you, senator reid. senator chambliss? >> thank you, mr. chairman. you know, as we heard last week in testimony before the full committee, the military does not have a more serious problem than this issue. and i commend the senator from new york for making sure that the issue state of the profile that it deserves as we been through this process. and thank you, mr -- to addresss problem. now i think going to be up to this committee as we move through the conference to ensure that what of the end product is,

and hopefully this will be yet, that the proper oversight is done in this area to make sure that the problem does, in fact, iget solved. so look forward to supporting this, mr. chairman. >> thank you. senator nelson? >> well, i have wrestled with this one because i think a lot of our commanders did not get it. and that was borne out by a survey that the military took, of which 50% of the victims said that they do not report because they don't think that it does any good. my conclusion is, and i, too, served during the vietnam era, my conclusion is if you can't get the command system to work,

then the whole thing crumbles. and accountability has to be held. and the people that are responsible and accountable are the commanders. and i will support 11 a minute. >> senator ayotte? >> i want to thank the chairman. i want to thank my colleagues and gillibrand from new york for her passion and leadership on this issue here and really in the personnel subcommittee having hearings early on that i think i drove our understanding and a much better understanding of the public of the seriousness of this issue. and i think that's why we find all of ourselves here today with an agreement that the status quo is absolutely unacceptable for our military and for our country. and a very much also want to thank senator mccaskill for

bringing her experience in prosecuting these types of crimes to bear in addressing this important issue. i, too, was a prosecutor before coming here, and one thing that has struck me in all of this is i feel from having the hearings that send -- senator gillibrand champion, as well as the chairman had, that the military has been far too behind on this. from what work that has been done in the civilian side and the prosecution, including of victims of sexual assault are supported within those systems. and in looking at this issue of how we deal with the initial charge and speaking as well to the commanders as well as those who were at the colonel level to have responsibility for whether or not they would make the

decision as a dispositional authority on these types of cases, i believe firmly that the agreement, whether, serving the work that has been done, that if there is a disagreement between the jag and the commanding officer that it will go up to the civilian authority in each force, that everything within this military is driven by the chain of command. and ultimately we have to make sure if commanders are not taking their responsibility for zero-tolerance within their you know, that they are measured by that. and i think that bringing it up to the secretary of the surface level will bring this to the hires level of knowing that not only is it your responsibility to make sure that these cases are handled properly, that victims are fully supported, but that if you within your unit did not make zero-tolerance a priority and don't have accountability for it, then you

will be measured by that. and as senator reed said, you will be fired. you will lose your commanding authority. and i think by bringing the situation up to the secretary of service level, it brings it to the seriousness of which it deserves. so i will support the chairman of the committee on this issue, but i want to also touch upon something that senator mccaskill said, that our military leaders need to understand, we are giving you more responsibility here, more accountability. in other words, we're not going to let you off the hook on this, and this is not something that we're going to pass something on here today and forget about. because many of us we hope will continue to serve on this committee. we will expect to understand how this system is working. we will expect to hear real metrics back as to whether victims can come forward, how many victims are coming forward,

how they're treated within the system. and this will not be the last time you will here from congress on this issue, because it's not going to be, again, when we pass something and then 10 years later the issue comes up again, or two years later. we will continue to have an oversight function on this on a continual basis, on a bipartisan basis, to make sure that whatever is passed by this committee today, and to give the strongest laws that we can in place to make sure that this is zero-tolerance issue does go to the absolute culture of this military. and i am married to an iraq war veteran, and nothing has offended him more than knowing the scourge of sexual assault within our military. and i know that our men and women who serve every single day, most of them and credibly honorably, nothing offends them

more that they would be this type of behavior within our military. so i think the chairman. i want to thank send to children for leadership. senator mccaskill, all of you who have worked so hard on this. and i will be supporting what the chairman has done, and i think that this'll make sure that the leadership within the military and the commanders are not let off the hook, that we will continue to make sure that they are held accountable, not just in this defense authorization, but as we do our oversight function next year, after the summer and as this thing continues. thank you, mr. chairman. >> thank you, senator. senator shaheen? >> thank you, mr. chairman. i very much appreciate the work that you have done, and this alternative an amendment that you going to be offering. i do hope it works, because i

know all of us on this committee believe that this is an issue that must be addressed. i'm not going to be voting for it, however. i'm a cosponsor of senator gillibrand's provision, and appreciate a work that she has been. appreciate the leadership that senator mccaskill and others have shown on the committee. i was interested to both senator gillibrand and you, mr. chairman, and i think senator reed and some others have referred to the zero-tolerance policy within the military about sexual assault. well, the fact is that that is zero-tolerance policy was actually established by the secretary of the navy, in 1989, nearly two and a half decades ago. and then detailed look incident took place in 1991 and was outraged then, too. there was a call on the chain of command to step up and to fix what was going on.

on june 2, 1982, secretary garrett wrote a memo to his military leaders that said, each individual must be accountable for his or her own action, commanding officers have unique responsibility for leadership and ensuring appropriate behavior and attitudes of those under their command. that was the moment i think much like the moment that we are in now. and yet we are here to two decades later, the congress has made modest changes during that time to try and address the culture within the military that's created the circumstances around sexual assault. the military justice system has remained unchanged during that period. family, what is also unchanged is the existence of sexual assaults in the ranks.

and so i think the question that we have to ask ourselves, and i appreciate all of the discussion about the importance of the chain of command and commanding officers and the necessity that may be part of changing the current culture, but the fact is if we don't have a fundamental change in how we address this issue, are we going to be back here in two more decades having the same conversation? because we still have not seen the culture change that needs to happen. i hope that's not the case. i hope that all of the efforts that we are making, and members of this committee are making now, and our leadership in the military is making, will make a difference. and as others have said so

eloquently, it's important to us to make sure that it does make a difference that we follow what's happening so that this issue, once and for all, is stamped out and is no longer a stain on the men and women who are serving. thank you very much, mr. chairman. >> thank you. let me call on, i think senator gillibrand and then senator kaine, and then senator blumenthal. >> thank you, mr. chairman. i want to start with my thoughts on your amendment. because i think so many other oe provisions in it, in fact, on very strong and they're going to long way to providing transparence -- ken spence and accountability where none existed. i particularly like the fact retaliation is not going to be a crime. i think that is extraordinarily good measure that i fully support, and i think it is an excellent step in the right

direction. i also support all of the levels of transparency for ipo taking up to the secretary of the services, i think is very, very wise. i also appreciate the sense of congress, although i wish we could've made it stronger but right now the sense of congress says that commanding officers are responsible for establishing a command climate free of retaliations, free of fear of retaliation. failure of the chief of the commanding officers to maintain such command of climate is an appropriate basis for release from the command position. senior officers should evaluate subordinates commanding officers on how well they establish a command climate free of fear of -- those are ago. i wish those are actually required and i hope we as a committee can move forward to make the actually a requirement that climate is part of the evaluation process of commanders as to whether or not they're doing a good job. and i also hope we can actually

make that a requirement, because as senator mccain said, we need to hold commanders accountable. this has to be part of the process but i think he was right when he said that, and we need a measurable by which commanders can actually be held accountable if they are not showing a climate of command productive and actually values all of the men and women are serving in our military. so i would like to hopefully change that ultimately cannot just be a sense of congress might actually make it a measurable within the review process. i hope we can work as a committee to do the. i want to address what i think this is insufficient. there seems to be a misunderstanding that the commanders are not taking the judgments of their j.a.g. they are. in fact, they only disagree with their j.a.g. 1% of the time, less than 1%. it's very rare when commanders are disagreeing with their j.a.g. that's not our problem so all

this transparency and review is excellent but it's not solving a given problem. that is not a problem we have today. the problem is very clear, because the victims have told us what it is. and i'm just distressed that the victims voices are not being heard in this debate not nearly enough. that they can say it is the climate that they fear retaliation. the commanders are not creating a climate where they fear they can report without being blamed, being retaliated against, the marginalized, having their careers be over. that is the commanders responsibility. if they are creating a climate of fear and there's retaliation within their ranks, they are not maintaining good order and discipline. the victims tell us they do not report because of chain of command. so i disagree with the statements today, and previously, that the chain of command at the disposition phase is the problem but it's not that their decision is wrong, it's

that they are the decider, and the victims have said i'm not reported because it's within the chain of command. and so the j.a.g. leaders that are making these recommendations, those j.a.g. lawyers are in the chain of command to it would be like my general counsel making a recommendation to me. it's entirely within the chain of command. the reason why our bill is different is it's asking a set of j.a.g. lawyers did not report to the chain of command to make these decisions independently. so the victims can perceive that is not within the chain of the distinguishes me because if you look at the victims descriptions of what happens to them, their essays and is usually someone senior to them, someone up the chain, someone senior, more decorated, purple heart recipient, someone who has done great acts of bravery. they see the chain of command will not be objective. there's no objectivity in the decision that's been made about whether or not to prosecute. it's not that the command is disagreeing with his lawyer.

it's that the victim fears retaliation. the statistics in the last report that we know, we just know, they said 50% said they don't think anything will be done with the case, that's why they didn't report. 47% said they feared some form of retaliation or it wouldn't go with a 43% said i've actually witnessed someone who did report the retaliated against. so that is their fear. it's the chain of command as a decision-maker. and so that's why we believe that if you took out of the chain of command you would have the hope that you would increase reported in. now, i agree, commanders have done the extra job of moving more cases to trial, but it's not a meaningful number. if there's 26,000 unwanted sexual contacts, assault and rates, we don't know how many of those are assaults and rapes. we do know is 3300 were reported. huge falloff between incident number and reported, whatever the incident number of rape and sexual assault is. 3300 are reported.

of the 3300 that are reported, 70% are sexual assaults and rapes. so we know there are thousand sexual assaults and rapes every single your reported. we also know it's only one in 10 go to trial. so i want to go to trial this 302, let's say the commander said, let's see increased by 25, 25 more cases. that's a good thing. that's a really good thing and i appreciate the commanders of make and take that step. so we are 302 cases that go to trial, pretty good conviction rate, 238 conviction -- convicted are pretty good but the bomb is kind of thread two cases going to talk, but there's some number of 3300 of cases actually taking place, it's the reporting we need to change. so we look at our allies to the allies we fight with every time we need an ally in war. look at israel. look at the uk. look at canada. look at germany. look at australia. they have made this decision

already because of the objectivity problem and because reporting issues. in fact, in israel because the events of my level prosecutions, the last by this, their reporting has increased by 80%. what would that mean if are reporting increased by 80%? it would mean we wouldn't have 3300 reported cases. we would have tens of thousands of reported cases. and if that many are reported, how many are going to go to trial? a lot more than 300 even with an aggressive command you might get more but i thought more are going to trial if you increase reporting. so let's just listen to the victims. they say it's in the chain of command. that's why they're not reporting. so we can believe them or we cannot believe them. many are don't believe the victims. i don't believe the victim. a doubly chain of command is the problem. -- they don't believe chain of command is a problem.

>> thank you, senator gillibrand that i'm going to answered senator fischer some going to alternate back and forth where i have someone on this side that seeks recognition. senator fischer? >> thanking mr. chairman. i certainly appreciate your leadership on this issue, and i will support the proposal that you have brought forward. i would like to thank all the members on this committee who have worked on amendments, represented amendments. senator gillibrand, thanks to you. cindy sheehan, send it a lot. i would especially like to recognize senator mccaskill, because i think you have brought forward from your experience as a prosecutor issues and the viewpoint that have been very, very helpful to me as we have heard testimony, and as we have discussed this horrific issue that is before us. so thank you very much. sexual assault is unacceptable.

because it goes truly to the very core of our armed forces. and so as i look around this table and i look at my colleagues, i know that each and every person will focus on this issue and is going to continue to monitor how the military is behaving. as we move forward. that's a good thing, because i think it states to the military and it states to the public, but especially to the victims, that we are concerned, we don't take this lightly, and and that we will continue to be there in the future. because the changes have to be made, and we need, we need to solve this cancer that is taking place within the armed forces.

thank you, mr. chairman. >> thank you, senator fischer. the order now, if i can remember what i said, would be senator kaine next, consider blumenthal. i believe that's what i announced. senator king. >> thank you, mr. chairman. spent let me interrupt you for one minute. if someone on the republican side seeks recognition, i'm going to insert them in that order. >> one thing i feel very confident about sitting around this table is that everyone who is here, everyone who serves on this committee believes the victims, police the victims have testified, believes the victims who have been reported on the surveys we have received. i cannot think that establishes anyone on this committee from each other. the testimony has been harrowing. i was at the first subcommittee hearing and that the lengthy hearing last week. every last number of this committee, democrat and republican, believes the victims.

we also -- were awfully by the major problem the we believe the problem is a stain on military. and because it's a stain on the military it is a stain on the nation. we are short of heroes right now and the military is as good as we get. when our heroes have a problem like this, that is so serious, it's not just a stain on the military, it's a stain on our country. a positive development is that there is also much agreement on this committee about hold series of significant and major reforms that we need to take. and for that i give credit to all my colleagues but especially to the personnel subcommittee chairman cindy children. a package of significant reforms to reporting, prevention, training, recruiting, anti-retaliation measures, investigation, prosecution, punishment, counseling, the provision of the a benefits. and protection for whistleblowers. we are opposed to agree to hold series of what i think are

significant reforms. there is only one major policy disagreement. and the policy disagreement is should we remove from military command the decision to prosecute serious offenses, remove the decision to prosecute serious offenses from the chain of command. and for two reasons i do not think we should and that's why i'm supporting the chairman's amendment. first, and this has been covered pretty significant. i don't think removing this issue from the chain of command is the best way to fix the problem of sexual misconduct or i do not believe we're going to fix it by taking responsibility away from command to i think we need to give resources and tools to command but i think we need to force the chain of command to take this more serious it. will not solve the by reducing the authority. we will solve it by increasing their authority and increasing our expectation. if we take this power away from the chain of command, we send the message not just that you're doing a bad job, we're sending that message with a package of

amendments we are about to embrace. we send a message we have no confident you can fix this. that's the message we send if we take it away from the chain of command. we have confidence in 12 years of war, the longest period of war that our nation has ever been in, we got confidence in the making decision. we're confidence in the chain of command that you ongoing cocoa chance, the application of "don't ask, don't tell," the implication of the recent decision to remove barriers to women serving in combat position. we're counting on the chain of command in those instances to change the culture, to send a signal of no confidence we did not think you can get this right, i do not think is the right thing to do. second, i support the chairman's amendment because i think it maintains the focus on the issue which is sexual misconduct. they are proposal pre-amendment is to remove from the military chain of command the decision to initiate prosecution and all serious nonmilitary offenses.

murder, larceny, robbery, forgery, bad checks, arson, extortion, burglary, house break-ins, perjury, fraud against the united states, the proposal is to remove from the chain of command the decision to initiate prosecution in all of those offenses. now, there's very smart people around this table, lawyers, prosecutors, those who have served in the military, but however smart we are we have not heard one bit of evidence to suggest that the chain of command is not capable of handling all those kinds of offenses that i've just gone through. we've heard ample evidence about sexual misconduct. we have heard no evidence that the chain of command can't handle these other serious offenses.

answer to act on the basis of no evidence and pole at all out of the military chain of command, we would lose the focus on the problem. the problem is sexual misconduct both of the criminal variety but also of hostile workplace, sexual discrimination. we've got to solve all but. but for those two reasons we cannot fix this without the chain of command and we shouldn't try to fix problems that we have not yet heard exist. i support the chairman's amendment. >> thank you. senator blumenthal i believe is next. >> thank you, mr. chairman. i want to join in thanking you for the very serious and hard work that you and others have done in crafting this proposal, which i think is an effort to strike a balance and we all recognize the competing interests at play here. and as senator cain has just said very powerfully, we share this interest.

we share the condemnation of the scourge as the secretary of defense himself has called it. as everyone of our service chiefs condemned when they came before us. and i just want to say that i think the military deserves some credit here. i think that attitudes are changing, the very powerful testimony that we heard on our committee from those service chiefs goes beyond just the rhetoric and the words. they are taking action, and just to give you one example, one of the and for me this morning that he is convening a group of his senior company commanders, colonels and lieutenant colonels for a very extended session, which will include showing them the testimony and questions and statements during our hearing. in that connection i want to say thank you to senator gillibrand

far leadership because i think are proposal has helped to move this debate. it has moved the line of consensus in favor of a more independent review with the knowledge that trust and credibility are everything here. and i, i have some reservations about your proposal, mr. chairman, that will lead me to continue to support the children proposal. first of all, i think that we have to look at this problem from the standpoint not just of the command authority but from the standpoint of the victims. how the system looks to him or her. and my fear is that it will look to the victim as though we're simply tinkering with the process. the system will remain for the

victim essentially a black box. there will be little or no opportunity to participate, and virtually no information during this system of review the and the review itself in almost every case will go to the senior commanding authority, and never reach anybody in civilian a story. that this is the fact of the way the system will work because if the commander decides not to charge, and the j.a.g. supports not charging, then he goes to the senior commanding authority. so i will continue to support the proposal to make a more demonstrative change in the current system. and i join in the view that the military leadership of this country will not be let off the

hook, but they don't expect to be let off the hook. they will hold themselves accountable. and i look forward to their knowing that we will revisit this issue. in fact, i think that we are in many respects differing to another day a real solution to this problem that will provide for trained and experienced prosecutors to be making these decisions. and i would just finish on that point. senator mccaskill have said so eloquently, there's a real need to know how to do these cases because they are very demanding and if -- difficult and in some ways unique kind of prosecution that the training and experience not only to make decisions but review decisions really require. and i hope that we can continue to work to make the system worthy of the greatest military in the history of the world that

is changing, because we have a new generation entering come and because we are promoting more women, which i think may be the two decisive factors in changing the culture. thank you. >> thank you, senator blumenthal. senator hirono? >> thank you very much, mr. chair. i ago the sentiments of my colleagues, and thanking you. and the ranking member. but in particular thanking senator gillibrand for her leadership, and, of course, senator mccaskill and all the other of my colleagues here who have focused on this issue like a laser beam. and this is been going on, sexual assault in the military has been going on for decades. and while i certainly appreciate the chairman's efforts to move us forward, i will not be supporting his amendment, although i acknowledge the improvements that the chair's amendment does constitute.

i think the people who suffer sexual assault in the military, when you think about reporting this, really have two great fears. one is the fear of not being believed, because in the case as it usually he said/she said, or sometimes she said he said. and the fear of retaliation and while i acknowledge, mr. chair, that you have in your amendment provisions that make retaliation a crime, i note that the language in the amendment really focuses on retaliation as it relates to personnel matters. and while that come in your amendment no such as eminem, there's so many ways that retaliation can occur in this environment. you can retaliate, the retaliate if on the basis of not-so-subtle or subtle harassment. or you can be retaliated by having to undergo a psychological evaluation that

finds you somehow psychologically, having some kind of psychological disorder. so there are so many ways that retaliation can occur that is really hard to define. and so i acknowledge your efforts to try and define it, but i do think that is one of the biggest, biggest barriers to reporting. and that really is a bottom line issue here, i believe, the nonreporting by thousands and thousands of people who have been -- who have endured sexual trauma in the military. and yes, it is a cultural issue. and to change the culture as one of my colleagues said you have to change the culture, this culture has been going on for decades. and i do believe him that sometimes cultural change can more rapidly occur when you make a structural change.

like this sort that senator gillibrand is proposing. and i certainly have nothing against the military and in their efforts, and anti-acknowledge their service, but this is truly -- and i acknowledge their service but this truly is a unique kind of crime that requires us to continue to focus. and again, i ago i colleagues in saying that we're going to continue to hold our commanders and military leadership accountable. this is not the end of the discussion. we know we're going to continue to provide oversight as we proceed. thank you very much. >> senator cruz? >> thank you, mr. chairman but i'd like to thank the committee for its good work in drawing attention to this very serious problem. sexual assault in the military is a total violation of the

obligation we have to the men and women who step forward to defend ourselves, and to defend our nation, defend our liberties. and i commend the good work of this committee working to improve reporting, to improve prosecution. i commend the chairman for his good work in crafting this amendment which i think is working to improve the situation but i want to commend the leadership of a number of leaders on this committee, including senator mccaskill and senator shaheen, senator ayotte. and in particular i want to commend senator gillibrand. i'm going to be voting against the chairman's amendment. and i'm going to be voting against it because i was persuaded by the arguments that senator gillibrand committed in this committee a few moments ago. i think she made a powerful and effective argument that the lack

of reporting is driven by fear of not having an impartial third party outside the chain of command. in which to report a sexual assault. and i think that argument was buttressed by her pointing to our allies, that implement similar policies and seen significant increases in the reporting that's occurred when there is an impartial, and an impartial act to lodge that report. now, based on the comments of many senators at this hearing, it appears likely that the chairman's amendment is going to be adopted. and i would suggest that if that is the case, it may well prove that this amendment makes material progress in solving the problem. and if it does i know all of us

would celebrate that fact. if it does not, is going forward in a year or two or three we see the data and reporting is still abysmal, it's still not working, there is still a fear of not having an impartial prosecutor, an impartial tribunal, then i would suggest it may well be in order for this committee to return to senator gillibrand very good proposal. and i would note that i thought senator kaine made a very good point about the breath of the offenses, and in particular the offenses not ready to sexual assault, that i at least have not heard a predicate that there is the same problem with other offenses that appear to be present with sexual assault. so it may in the future makes sense to consider the approach senator gillibrand has presented, but narrowed and

focused on those offenses concerning sexual assault which are certainly the heart of the concern of this committee. and so i commend the good work of so many leaders around this committee, but i am going to vote no, because i think senator gillibrand's proposal is a good one. >> thank you, senator cruz. we will now call ashley unser, senator king. >> mr. chairman, thank you very much. i have to say first as a newcomer to the senate and to this committee, this is one of the most impressive discussions i've been engaged in since i've been here, and this is the way these important decisions are supposed to be made, with passionate and well conceived arguments on all sides. i find this a very tough call. i've gone back and forth, as senator gillibrand well knows, as we discussed this issue over the past several weeks. there's a natural tendency of any hierarchy, of any hierarchical organization to protect itself first.

and i think that is an instinct of whether it's the army or any other similar kind of organization. and that makes this a particularly tough call. another preliminary comment i want to make is i think it's really important that we focus on the fact that this is part of a package, and that there is a long list of initiatives in this bill, in the personnel bill and india mini meds, the 10th amendments that we adopted today, and all the controversy is about one and it shouldn't take either our ayes or the public's ayes off the fact that this is the most comprehensive approach to dealing with this issue that, and my knowledge, has ever been taken by congress. so i think that's a very important point of context. next, to me the most, may

turnout to be the most important part of your a minute is the retaliation section. i think that's one of the major things that is driving people not reporting. and the data is, they didn't say we are not reporting because of the chain of command. they say when not reporting because of fear of retaliation, or because we don't think anything is going to be done. it's unclear. you can interpret the data in different ways, but clearly retaliation is part of the problem. and that our hearing last week when they had the second panel with the officers who were actually having these cases, one of the witnesses actually testified in answer to some questions that he believed that right now the more likely sort of grassroots response to some kind of retaliation against the complainant instead of against the perpetrator. and i thought that was a very damning but honest statement.

ultimately, mr. chairman, i'm going to support your amendment because i believe that in any organization the leader sets the tone. and that's what we're talking about here is tone and culture. and if you take the commander of the unit out of the equation, then as cindy mccain mentioned, you are sending a message that we don't trust these folks. but also basically that commander then can say okay, this isn't my problem anymore. and we want it to be their problem. and i think the engagement of the leader of the group, whatever level, is a terribly important part of the solution to this problem. the target is the failure to report. and i think if we can establish that retaliation itself is an

offense, that i believe will be a very important contribution in addition to the safeguards that are the heart of your proposal that this will, there will be an alternative route if the decision is negative. and, finally, i think senator cruz said something very important, and i was thinking and trying to figure out how i was going to put it, but you put it very eloquently. this is a test. this is not the end of this story, and i realize there's a long history to this and it's not satisfactory to victims to say, well, we're going to try something for two years and see if it works. i think this is a very far-reaching comprehensive and strong proposal, but if it doesn't work, if we don't see an improvement, if we don't see higher levels of reporting and a change in the culture, then i think this committee is going to have very little option but to

change fundamentally the way these matters are handled. in a sense i see this as a last chance for the chain of command to get it right. and for all those reasons, again, i'll go back to the beginning, i consider this a very tough and close call, but i think we have done something important here today. i commend senator gillibrand. i am so admiring of her passion and energy on this issue, and i don't think there's any question that we would not be where we are had she not been so strong on this. but on the other hand, i commend the chair and others who listened to both sides and found a solution that i think is created and will be affected. i will support -- >> thank you all. i want to ask the clerk to call the roll. [roll call]

[roll call] [roll call]

>> thank you all. now, we can't have the roll call if it is so desired, and i would particularly ask this, everyone just concentrate on this, the technical procedurally, but we can either roll call should be desired on the sexual assault package as amended as a whole. is there a desire for a vote on that? >> mr. chairman, there are some of the amendments that have not been cleared that -- >> on this? >> on the sexual assault portion spent i think we cleared all of them. to left, i apologize. i apologize. thank you. senator mccaskill. >> the first amendment that i would like to talk about is amendment number 17. right now during the clemency

face of the trail the convening authority receives a package of materials prepared by defendants council. there are no limitations on what can appear in that packet. it presents an opportunity for the defendant to attack the victim which occurs almost in every case. except this time without any ability to rebut. this amendment does two things. first it gives the victim the same opportunity as the defendant to provide information for clemency consideration. it gives a voice to the victim during the clemency phase. secondly, this amendment prohibits the convening authority from reviewing any material that speaks to the character of the victim. if that information was not presented as evidence at trial. this keeps the convening authority for making -- we have a rachel statute in ucmj and the rape shield statute is that where the prosecutor and the defense lawyer argued to the judge whether or not prior sexual our post-sexual contact

of the victim is relevant. and the judge makes a decision. i learned in the case, and many others, that after the judge ruled that none of that was admissible, it went in the clemency packet. totally inappropriate. so this amendment would not only give a voice to the victim during clemency process, it would make sure that no one is reading anything about that victim that wasn't deemed admissible in trial. >> mr. chairman, i moved for a voice vote speak back let's see if there's other debate on this. this amendment that i know has been cleared on our side, i just want to hear from your site as to whether there's any objection. >> mr. chairman, i have no problem with this amendment. >> any further debate questioning none, all in favor say aye. opposed? the ayes have it. next, mccaskill amendment. a fairly there are five. >> that are. the second name is 18, and this

calls for mandatory, this is a provision that was i in the bipartisan bicameral legislation that senator collins represented turner, and representative tsongas and i introduced. this would require a mandatory discharge or dismissal of conviction of a sexual crime. ..

>> as i see it, i'd let anyone else make comments. >> mr. chairman, i'd like to look at it longer. i understand what senator mccaskill's trying to do but, you know, if you're going to mandate a discharge, i don't know how many times we do that in ucmj. i'd just like to look at it and maybe we can, you know, if there's a problem, i can sit down with her. but i don't want to hold up progress here. >> um, and i also ask unanimous consent that senator blumenthal be added as a co-sponsor to this. he also had some this in his legislation. if you want to hold this, mr. chairman -- >> i think senator graham said that he'd accept that we could modify it later on a voice vote.

he would, that doesn't mean that my ranking member would. can we -- >> i think we could have -- yes, and it could be addressed on the floor too. >> okay. so all those in favor, say aye? >> aye. >> opposed, nay? the ayes have it, the ayes appear to have it. now to mccaskill number 3. >> this amendment requires that defense counsel give notice -- doesn't limit access to the victim in any way. the victim still can get accessed by the defense counsel. but it requires defense counsel give notice to the prosecutor before they interview a victim which will give the prosecutor an adequate opportunity, if desired, to give support to the victim during that interview. it also requires that upon request the victim have counsel present for those interviews, reaffirming this right under this law. >> is there further debate on this. >> >> could you say that again?

i'm sorry. >> it two things. it requires defense counsel give notice to the prosecutor before trying to interview the victim. doesn't limit how often the defendant can interview the victim that or the fact that they can, but secondly, if victim questions, that they are entitle today counsel present, their own counsel present for the interview. >> you got me on the first one but not the second one, so i oppose this. >> is there debate? >> yes, because there's -- the only time i can ever interview the person accusing my client of a crime that could put him in jail for life or other things that i have to have someone else in the interview. >> i think -- >> i'm not so sure that that is, i don't know if it breaches attorney/client privilege. i don't know, this is a far-ranging change. there's two sides to every court-martial or every trial. >> if there's no objection,

we're going to put this on for later, further discussion during the markup, if there's no objection, we'll do it that way. senator mccaskill number 4. >> this is amendment number 193. this is a limitation on the convening authority in terms of their ability to grant clemency. >> what is the number on this? >> 193. >> the mark already addresses the ability of a commander to overturn the findings of a jury. this would address a commander's ability to modify a sentence. under this amendment a commander could modify a sentence only for cases where there is a prearranged plea bargain or where the defendant provides substantial assistance to the government in the investigation or prosecution of another matter. we are, we've heard a lot of concerns that cremen si agreements -- clemency agreements are often used to provide monetary assistance to the defendant's family. my amendment would still allow for a commander to modify sentences of forfeiture of pay. so it would let the commander

still modify forfeiture of pay issues to address family needs, but it would only allow them to modify sentences for plea agreements or cooperation with the government with the prosecutors on another investigation. >> senator gillibrand. >> just a question, is this for all felonies? >> this is for all felonies. >> senator graham? >> mr. chair, i should have looked at these. i'll blame myself, but i'm not ready to commit. it just strikes me as being basically unsound, but i'll defer -- >> that's not possible. [laughter] >> all right. if there's no objection -- >> polite way of saying i don't like it. >> if there's no objection, senator mccaskill, we'll hold this later on in the markup as well. >> and number 5, this may be one that we need to talk about too. it's my defender database.

if you think about the civilian criminal justice world, can you imagine a situation where a rape victim comes forward and names a perpetrator and then refuses to give any additional testimony that that name would disappear into thin air? that's what happens in the military. that name disappears into thin air. that predator is free to strike again at another base, in another country, at another time. this amendment would allow us to build an offender database for military law enforcement only, not for the public, and it would not identify the victims. but it would allow investigators to go back and see if they get a report at, you know, some base here in the united states, they go back and see, well, you know, this, this person over in lejeune did something like this or was accused of doing something like this, and then

you could actually maybe go back and find that victim and talk to that victim and find the same mo, the same pattern, and it would really enhance the ability to investigate these crimes and find the guilty parties and hold them accountable. and, um, i think this is something that is just common sense in the civilian world, and i was shocked to learn that it is not even, hadn't even been contemplated in the military system. >> this is limited to sexual assault matters? >> it is. >> is there further debate on this? >> yes. >> well, it actually makes sense to me, quite frankly, that, you know, you're not going to use an unfounded accusation to prove somebody guilty in a court-martial, but if we've got a sexual predator problem, during my time in the military they actually talk to each other. there's a network of people out there, uni, child abusers,

and -- you know, child abusers, and there are people out there who talk about where you go and what's the best bar to go to. believe it or not, it's true. and so let's see if we can work on this. i like the idea of catchturing for the system's -- capturing for the system's sake not being used against somebody, the end of your career, but it sure needs to be captured somehow. >> senator nelson. >> but we're in a nation that you are presumed innocent until proven guilty, and we're now -- this is an allegation. this is not a conviction. so -- >> well, mr. chairman, let me just point out that under that scenario, we should not take any fingerprints of anyone who's accused of a crime, but where the crime is not brought to trial, we should never take dna from anybody who is ever accused of a crime but the case is not brought to trial.

we should never keep their name on record if they've been accused of a crime but not been brought to trial. we're not talking about this being a public record. we're not talking about this being available. we're talking about within the law enforcement community they being able to access this information. there's no rights that are going to be taken away from this person. it would not be available if someone asked for it. so i just think you're really handcuffing your law enforcement capability within the military if you do not have some kind of database tracking this information. >> would the accused have been in the military court system, would they have been actually charged by the prosecutor -- >> no. >> or is this just an alleged offense because a victim comes forward, an alleged victim comes forward and says so? >> yes. >> as i understand immaterial, what she's saying is if someone comes forward and makes an allegation but they don't want to go to trial --

>> right. >> that this is captured. we actually do this in child abuse cases. there is a system that tracks child abuse complaints for adoption, for other things because this is tough. i understand what you're saying. i don't want it to be used to deny someone a promotion, i don't want the promotion board to get access to it. i don't want it to be used in a different trial. but if somehow we can find for law enforcement enforcement purposes only a way to keep track of the allegations, it strikes me as not a bad thing to do given the fact that i believe sexual predators are organized, and they just don't do it one time. >> as i understand the amendment, this will allow law enforcement officials to identify people's possible sexual predators where victims at different times and at different places report that they were a victim of this person.

and it seems to me that that's reasonable going in. i would suggest we adopt it by a voice vote -- >> mr. chairman, if i could is ask a question. >> of course, senator. >> back to what senator nelson is talking about, what's the database used for if they haven't been convicted? what would be used but to build a case against them if they haven't been convicted of anything? >> well, here's what would happen. a woman comes forward and says i was stalked outside the barracks last night, and then he, this man threw me up against the wall and brutally raped me, but i'm not going to -- i'll tell you his name, but that's all i'm going to do, and i won't do anything else. i don't want to come forward, it's too personal, it's too painful. law enforcement in the military could then go in a database and see if someone else made the exact same accusation against the same person, the same way, the same way the crime was committed in another location at a different time. then you've got, go back to that

victim and say, you know what? this isn't the first time you did this. will you talk to us, and will you consider going forward? and many, many times victims who will not come forward in isolation will come forward when they learn that there is another victim that's willing to come forward that had the exact same brutality committed upon her. and we can't do that in the military, because they don't track this information. we do it all the time in the civilian law enforcement world. >> would, would you explain that, please, in the civilian law enforcement why that record is kept? you said fingerprints, dna and so forth, but that's not what this is. the arrest hasn't been made -- >> well, an arrest may have been made. >> the allegation is made, but in your particular case the lady, the alleged victim says

that she's not going to prosecute. >> are within law enforcement community information is maintained when accusations are made. it doesn't mean that it's a public record. it doesn't mean that it impacts that person's life in any way. but they don't destroy information that comes to law enforcement just because the victim doesn't want to cooperate. >> so in the civilian law enforcement community, there's an ability to track from one state to another the fact that someone had an alleged crime committed, and yet the prosecutor never prosecuted -- >> don't let me misrepresent this in that i am not saying this works perfectly in the civilian law enforcement world. and i'm not saying there aren't a whole lot of allegations that don't get captured. i am saying that i was shocked to learn there was not even an

effort being made to capture the allegations for purposes of law enforcement reviewing and using as part of other investigations. you know, it's very difficult in 50 states in all the different jurisdictions with federal and state and local jurisdiction to have a system that is perfect in terms of sharing information among law enforcement. but in the military when you know for sure that the perpetrators are going to be moved, they're not going to stay put, they're going to move around, it is even more imperative especially because you have a closed system, and you can protect the information and the rights of the accused, because it's not going to get out into the mainstream because you have a closed investigatory community. >> chairman? >> may i respond to that? >> i'm sorry. >> just to say we have done so much good in what has been adopted, i'd hate to see us start to mess it up getting into these very sensitive issues. as the senator was speaking, i was thinking, well, do we have this kind of tracking in the

civilian area, for example, with people that are in the state department? or in -- the same kind of thing where they move around from place to place? i just don't know enough to be comfortable about getting into this area. >> may i ask a question? >> senator inhofe. >> yeah. let me just for clarification, senator mccaskill, are these, all five of these that you're bringing up or have brought up, were they discussed at the subcommittee level and then forwarded to the whole committee? >> no. >> they were filed in time here to be considered here though. >> yes. they were filed in a timely manner to be considered. you know, i'm trying to get at this problem of restricted reports. respecting the victim's rights to not come forward is a very important thing. on the other hand, it is our huge enemy in this area. and so if someone wants a

restricted report but is willing to name their perpetrator, i think that name ought to be made available to law enforcement down the line. >> i think what's unusual about this crime and what sets it apart from others is that there is a reluctance -- for the reasons which have been referred to by many of us today -- there's a reluctance often to come forward, an embarrassment. that's not true with other crimes. surely, i think, an exception apparently has been made with the child, cases involving children. and i think that there is a basis here for collecting in this kind of a limited, restricted way this kind of an information because of the reason of the reluctance that people have of coming forward in this type of crime which doesn't exist with other kinds of crimes, you know, larceny, murder, etc. there's an unusual circumstance. we've all talked about it today. and i think this is a response to that circumstance. i would suggest that we, if you're willing, take a voice

vote. we can always -- >> mr. barney would have some comments here. could we, could i ask him if he has anything to add? >> of course. >> thank you, mr. chairman. i'd like to invite the attention of the committee to amendment 22 that was previously tonighted today -- adopted today as part of the package. as part of that amendment, it included a proposal that a similar provision would be sent to the department as part of the 576 panel that was created in last year's national defense authorization act to specifically look at this issue of how the information that is included in restricted types of reports may be considered for the purposes that senator mccaskill has pointed out. and i would also suggest that one of the reasons why this may be important for your consideration is that unlike the unrestricted reports which were

designed specifically to inform law enforcement purposes, restricted reporting was not designed for that purpose. it was designed primarily in the law to create an opportunity for those victims to pursue the types of treatment and counseling and other support that they need after a sexual assault without necessarily triggering that law enforcement action. and so for that reason, i wanted to insure that you are aware that this has previously been adopted and is included in the mark as it would go to the 576 panel for review. thank you. >> be. [inaudible] >> so the question that you just said, if i may, mr. chairman, is that it's been adopted that we were going to study this question about keeping this kind of data? >> yeah. he's correct in that the amendment that was adopted was also my amendment. and -- >> let's just take --

>> -- it's true that the committee is being asked to look at this. but i thought it was important to bring this forward because this is the equivalent of someone filing a police report and saying i will not give you any more information or cooperate with you any further s and in the civilian system them destroying the police report. i don't think we should be destroying the police report. i think it should be available to law enforcement. and i'm happy to put 24 over, and we can talk about it later in the markup or defer it based on the other amendment. but i didn't want this moment to pass without acknowledging this is an issue for our law enforcement community in the military where they are really handcuffed, and there is no question that somebody who's moving around and a predator has the upper hand as long as they can continue keep victims quiet. >> is there any further debate? my inclination would be to voice vote this and then to -- no?

>> hold it over. >> you want to hold it over? >> okay. ranking member, senator nelson, want to hold it over. that's enough. we'll hold this over for further debate during markup or for the floor. are there any other amendments before we vote on the package of amendments that are involved in the sexual assault part of this personnel subcommittee? senator graham. >> thank you. mr. chairman, we've talked a lot about trying to make the system more responsive, allowing the victim to come forward, feeling that there's a support network available, making the allegation through multiple channels so you don't have to worry about your first sergeant or the nco being the only person can bring the case forward. we've got hotlines, we've got many ways to capture the allegations now outside the traditional chain of command. but most of us have decided the chain of command is necessary to solve the problem and should be held more accountable, not less.

and being a military lawyer for 30 years, i do understand exactly what the chairman and senate mccaskill were saying. you look at this as a lawyer. there's a difference between being a lawyer and a commander. i know the difference. it's night and day. and the reason i asked general amos why do you take a case to trial when the lawyer said i don't think we can get there from here? i knew the answer. and is i don't mean to bore the committee, but one of the first cases i dealt with as a young captain in the air force was involving are -- involving a guy that was an alleged barracks thief. and if you want to create chaos in the barracks, just have people's property stolen. it really is bad for morale, and it's one of the worst things you can do. sexual assault is a thousand times worse because it does destroy the unit. but this trust that we're talking about in the military is real. you don't live where you would

hike, you live where you're assigned. you don't get individual rooms, and you don't pick your roommate. you don't get a bunch of locks. you share the same everything. so when somebody breaches that trust and preys, in this case, on the property of people, it really is bad for that unit. and here was the dilemma: they thought he did it because nobody liked him. he was the type of guy that would do that. and the allegation, to me, was more about we don't like him than he actually did it. and i can remember the commander saying, well, if you don't scare the hell out of the -- if you're not willing to go after somebody that might be innocent, you can never scare the hell out of the guilty. that was funny at the time but not funny now, is it? we taught the -- we talked the commander down. so article 60 allows a commander the convening authority to send a case to trial but also to provide clemency after it's over

based on what's best for the unit. this guy got whacked too hard. i think we need to back up a little bit. or in the case of the aviano case, the article 60 powers would allow a convening authority to set aside a finding of guilt entirely or by specification. in the marine corps, this article 60 power of setting aside a finding of guilt in part or total, there have been no cases where that was exercised in a sexual assault allegation. as a matter of fact, there were seven cases, there were just a very few cases where the convening authority set aside a finding of a court-martial but not involving sexual assault in the air force. there were 40 cases set aside out of 3,713, five of them involved sexual misconduct, sexual assault. in the navy, none. in the army, 68 cases out of

4,603. none involving sexual assault. so the article 60 powers to set aside a finding of guilt in a sexual assault case is very rare. but the aviano case got a lot of attention. i've listened to the facts, senator mccaskill's listened to the facts. why would you give the commander the power to do this? all i can tell you is that we now know that commanders push cases that lawyers say you shouldn't go there. because they want to send a message. and desiring to make sexual assault zero in the military, a noble goal. we've got to remember that individual cases also have to have a chance of getting it right. what i fear is that we're creating an environment where it's going to be almost impossible to be found innocent if we don't watch it. as we micromanage the system, as

we try to correct the system, god knows it needs to be corrected, i just fear that we don't want to create a situation where there's a contested trial involving sexual assault that the only outcome that people believe is acceptable is that of guilty. because all of you know every trial to be done right has two sides to the story. and that gets back to the role of defense counsel. i've been both a defense attorney and a prosecutor. and i want to work with senator mccaskill. you've been incredibly helpful, but i just don't know if i want to put the defense counsel in a situation someone has to be in the room. i'll have to think long and hard about that. so what i've done is i've modified our solution to the article 60 powers. i've said that when it comes to defenses that senator levin has outlined -- rape enforceable

sodomy and attempted rape and forcible sodomy, we're going to take the power away from the convening authority to set aside a finding of guilt because we do have an appeal process. i just don't want to say that they have lost that power in every case where you have a year sentence or more. to the military, the reason we're coming down on you so hard is you have not stepped up to the plate and done the right thing. to my colleagues, these reforms, i think, are going to create the most supportive environment of anywhere in america for somebody who's been sexual assaulted. but having said that, there will be a trial in many of these cases. i want to make sure that that trial is conducted in a fashion that those who are accused have their fair day in court too. so i am willing to restrict the article 60 powers of the commander in these cases because

of the way the system has been broken, but i just wouldn't want to take it away for every case that involves a crime over a year. i just think that's going too far, and that would be what my amendment would do. >> is this an amendment you're offering now, or are you going to withhold this for later? >> i can withhold it. >> has it been filed? >> yes. >> are why don't i just withhold it and talk to senator mccat till. >> be i think the words of caution are fair enough. i think all of us want to make sure that victims of sexual assault feel free, comfortable to report those crimes. it's essential he change the culture and the dynamic. but we also always want to protect the right of a defendant to a fair trial. i don't think -- i hope nobody wants ever in this country to change that. your words of caution are welcome. and if you can withhold that, we can take a look at that later. is there any other discussion or

debate before we vote now on the package of the sexual assault language as amended that came from the subcommittee? we're going to have a roll call vote. i think there's been request for that. and so the clerk will call the roll. >> mr. reed? >> aye. >> mr. nelson? >> aye. >> ms. mccaskill? >> aye. >> mr. udall? >> aye. >> ms. hagen? >> aye. >> mr. manchin? >> aye. >> mrs. shaheen? >> aye. >> mrs. gillibrand? mr. blumenthal? >> aye. >> mr. donnelly? >> aye. >> ms. hirono? mr. king? >> aye. >> mr. inhofe? >> aye. >> mr. mccain? >> aye by proxy. >> mr. policewoman bliss? >> aye. >> mr. wicker? >> aye. >> ms. ayotte? >> aye by proxy. >> mrs. fischer? >> aye.

>> mr. graham? >> aye. >> mr. visiters? >> aye. >> mr. blunt? >> aye. >> mr. lee? >> aye by proxy. >> mr. cruz? mr. chairman? >> thank you all very much. this has been a very, very, very good constitution, debate -- discussion, debate, and i believe a good resolution. nonetheless, time tell that. we will now meet in room 222 at 4:30 pursuant to -- >> mr. chairman? >> yes. >> mr. i just want to procedurally make sure i know when to make my motion to make the entire mark oip? >> that'll be at the meeting that starts at 4:30. >> okay. [inaudible conversations]

>> according to the centers for disease control, prescription painkiller abuse is the fastest growing drug problem in the u.s. this morning the white house drug policy director will testify at a house subcommittee about prescription drug abuse. live coverage at 9:30 eastern. >> she was born in charleston in 1898. her father was a slave. she started her teaching career in 1916 in a rural school on john's island which is a sea island off the coast of charleston. she continued her career in urban schools in south carolina, spent most of her teaching career, all of her teaching career in south carolina. and then in 1956 the state of south carolina passed a law forbidding state employees from belonging to subversive organizations such as the naacp.

and she lost her job and her retirement. and then he developed a citizenship education program to be used during the civil rights movement. >> the life of teacher and civil rights activist septima clark this weekend as booktv and american history tv look at the history and literary life of raleigh, north carolina. saturday at noon eastern on c-span2's booktv and sunday at 5 on c-span3's american history tv. >> the c-span video library has reached a milestone. since its online launch in 2007, there are now more than 200,000 hours of original c-span programming, public affairs, politics, history and nonfiction books all totally searchable and free, a public service created by private industry. america's cable companies. >> next, former republican governors jeb bush and haley barbour talk about changes to the country's immigration

policy. from the bipartisan policy center, this is an hour. >> good morning, everyone. welcome the bipartisan policy center. my name is becky talent, i'm the director of information policy here, and i'd like to thank you all for coming today. we are very excited to have our two very distinguished quests here, governors haley barbour and governor jeb bush, to talk about immigration reform, state and local impacts of immigration reform, republican politics, whatever you all want to talk to them about. as many of you know, the bpc was founded in 2007 by former senate majority leaders howard baker, tom daschle, bob dole and george mitchell as a place for rigorous analysis, reason, negotiations and respectful dialogue. we have multiple projects here at the bpc where we try to combine politically-balanced policy making with strong,

proactive advocacy and outreach. in february the bpc launched the immigration task force which is co-chaired by governor barbour. former governor rendell, former secretary of state condoleezza rice and former secretary of hud, henry cisneros. with our immigration task force, bpc hopes to work through many of the issues that still need to be resolved in this large and ongoing immigration debate. we also hope to host many more of these events like this one to foster a conversation among key advocacy groups, policymakers, academics and hopefully congressional members on the toughest issues in immigration reform. we look forward to receiving many insights from the governor withs today from their unique perspectives on this important issue. i'll now turn it over to cat learn koch, form -- kathleen koch who will moderate today's discussion. again, thank you all for being here. >> thank you, becky.

[applause] thank you very much, and thank you all for joining us here today. i know you hear this frequently at events that i'm -- that the guests need no introduction, and in this case it is really true, but i will keep the introduction brief because, obviously, in your folders you have these men's bios, and you know them well. governor jeb bush served as the 43rd governor of the state of florida from 1998 to 2007. as you also know, he is co-author of "immigration wars: forging an american solution." he is the son of a president, the brother of a president, and many of his supporters -- with the exception of his mother -- belief that he could, indeed, hold that office himself someday. [laughter] then i would also like to introduce the gentleman next to me who is very handy to have at the helm if your state ever encounters the world natural disaster in u.s. history as my home state of mississippi did back in 2005. haley barbour had been governor

for just a year. he took office in 2004. he held office as the 62nd governor of mississippi until 2012. before that haley was chairman of the republican national committee from 1993 to 1997. and now, obviously, is busy back doing what he does best, as a lobbyist, and then heading up the immigration reform organization here at bpc. so thank you, gentlemen, for joining us. >> thank you. >> i'd like to first go to them each for just a very brief opening statement, some opening remarks. governor bush, you first. >> well, thank you. thanks for letting me come. we're going to talk about the state and local aspects of immigration reform, but i want to set the stage perhaps in a broader way about why embracing our immigrant experience, our immigrant heritage is important for renewing america's greatness. i think our country is the only developed country, mature country, if you will, that could grow at 3.5, 4% per year for the

next decade. we have abundant resources, we have great talent, we have the ability to rebuild our demographic pyramid right now that has eroded dramatically. haley and i are getting older. all the societal changes that are taking place make it imperative, i think, for us to have immigration reform as a key element of an economic strategy for sustained growth. this is a huge opportunity. i don't view immigration as a problem, i view it as embracing an enormous opportunity for us to fulfill our potential as a nation. and, um, we're within -- it's within our grasp to do it now. i think delay would be inappropriate because tepid growth, the new normal of economic growth in our country, will not allow us to deal with the pressing problems that we face. we'll be overwhelmed by our problems if we don't grow economically. and there are other elements of

an economic growth strategy, but without immigration i don't see how we could do it. >> thanks, jeb. first, kathleen asked us to talk for about three minutes, and those of you know, i can't say hello in three minutes. [laughter] so i'm going to limit my subject matter and try to stay within the bounds. jeb's points are the kinds of things that have made me very interested in this. america's in a global battle for capital and labor. and if we're going to grow the economy in the united states at the rates that he talked about, at the historical rates of all of our lifetimes, then we've got to have more labor. we not only have to have more high, high-skilled labor like science, technology, engineering and math, you know, that is critical to increase the number of h-1b visas and also at the

same time to start doing a better job of raising american kids to get masters and ph.d.s in engineering and physics. but in the short term and the midterm, a lot of this labor has to come from other countries. and if we are so blessed that our university system is magnet for the best students in the world. you know, when a kid gets a ph.d. in engineering from the mississippi state, you know, we ought to staple a green card to his diploma, because if not he's going to go home to mumbai and hire 800 people where if we'd let him, he'd much rather open a business in memphis and hire 800 people. so that is, i think, obvious and almost universeally accepted and agreed on. but we also have other essential labor that's not ph.d.s.

we've got california, the biggest agricultural state in america, more than half the farm labor reportedly is here illegally. and only 4% are here on these special agricultural visas, because they're cumbersome, unwieldy, bad policy. so we can't just focus on the top end. but jeb is right. if we're going to grow our economy at the rate we can, we need to remember gdp growth is simply productivity multiplied by the number of workers. and it -- i wasn't a math major, but i can figure out if the number of workers stays the same as it has during this administration, where essentially the same number of people are working in the united states that were working in the united states five years ago, it's very hard to get gdp to go up at the rate that will sustain

for our children and grandchildren the lifestyle which we enjoy and which we can continue, particularly with the energy changes in our national economy. so i'm like jeb. i'm focused on this for policy and the right policy for our economy is to have real, comprehensive immigration reform. >> thank you very much, governors. >> is mumbai in alabama, or are you talking about the mumbai over there in india? [laughter] identify never heard it said that way. i like the way you said it. >> governors, before we talk about the what, i'd like to talk about the why. as we look at the measure that's moving through the senate on immigration reform and potentially will make it to the house, is it not true -- do you believe that they would even be considering immigration reform right now if it weren't for what happened in the fall, if mitt romney had not secured just 27% of the hispanic vote? i mean, if the gop wasn't

tanking in the polls with one of the fastest growing minority groups in the country? >> well, i personally think that we need to do immigration for good policy reasons. you know, i -- >> but we're doing it now because of politics. >> well, frankly, we're doing it now because obama didn't do it the first year he was president like he said he was going to. but this is not about a partisan argument, and it shouldn't be about a partisan issue. republicans need to be for this because it's good policy, democrats need to be for this because it's good policy. it could have come up in the last four years. it didn't. now it's coming up, and i think you're going to see a lot of bipartisan support, evidence what you see here. and the reason is not good politics. the reason is good policy. i used to work for ronald reagan, i ran a political office in the white house. pretty heady stuff for a boy out of mississippi. but reagan used to say at the end of the day good policy, good

politics. if you have good policy and you do what's right, you get good results. when you get good results, you get reelected. so that's the reason that we ought to be doing it. >> governor bush, but why aren't we doing it? >> i'd say both parties have, feel a need for political reasons to forge a consensus on good policy. and nothing wrong with that. republicans, i think, i would say the canary in the coal mine politically would be asian-americans. if you were a pollster from gallup mars branch, you know, you didn't have a whole lot of knowledge about american politics but enough, and you were fold here's a -- you were told here's a group who has higher intact families, more entrepreneurial, higher than average incomes, higher college graduation rates and they support president obama's re-election 75-23, that would be surprising. asian-americans are actually the

canary in the coal mine, i believe, for republicans if we've lost connectivity to emerging voters not because of our policy so much, but because we are not engaged in issues of importance to them, then i think we pay a price. democrats, on the other hand, can't keep going back to the well promising to do things and never even trying. so i think both parties are now focused on this. and when you have these windows of opportunity, you really need to engage. and i'm proud of the fact that this is one little part of policy world. we have big structural problems. there are a lot of other things that need to get done. but here is a place where the process seems to be working, and we should not be critical of that. we should be celebrating the fact that our democracy can work when people build confidence, build faith, don't think that there is an effort to try to, you know, outdo one another and forge a consensus which is being done right now.

i'm actually very pleased that the gang of eight and in the house, similar efforts. not quite as successful yet, but they're all underway. and it leads me to believe that there's a pretty good chance there's going to be an immigration law passed that will allow us to take advantage of the strengths we have as an immigrant nation. >> governor bush, i know as an author what it's like when you write a book, and then you're surprised by the reaction sometimes that you get from people when your book comes out, and you go, gosh, in hindsight, i wish i had written a little bit differently, i wish i had changed this, i wish i had described my position a bit differently. looking at the reaction to your book, "the immigration wars," would you -- is there anything that you would do differently? is there anything that you would change, and are you at all surprised by the reaction it's received? >> no, no, it's -- look, i'm not surprised. i do think that everything is viewed from a political lens, everything rather than from a policy point of view. so people that were critical of

my book hadn't read it, you know? it's like i just assumed maybe that they would actually understand the substance of the proposition before they were critical. but i'm not surprised by it. that's the -- we're live anything a hyperpartisan, hyperpolitical world. the book we wrote, which we wrote last year, has a set of recommendations that is eerily similar to what is being discussed in the senate and in the house. so i feel pretty good about that. and you can -- it's called "immigration wars," and you could probably get it at a deep discount on amazon. [laughter] can i say something about book writing? it's interesting. >> sure, okay. >> it's totally off topic, but we wrote the book, and we wrote it kind of old school. we wrote here's the problem, here are some elements that are peripheral to the challenge, but they're significant, here's some life experiences of immigrants to put a human context around why this is important, and the last chapter was here are our

recommendations. and the publishers to their credit said, no, no, no, you have to put the recommendations in the first chapter. which i thought, why? i normally read books from the beginning to the end. but apparently now in america in the world of twitter, in the world of media, you've got to have it all at once, you get to the conclusion first. so our book, if you really don't have time to read a full book, the book actually will give you the set of recommendations in chapter one. >> but the path to citizenship, you wouldn't change anything about that? not -- a grant of citizenship is an undeserving award for conduct that we cannot afford to encourage? you wouldn't change any of that? >> no, no, i wouldn't. if we end up with a law that takes 13 years where people have to do the same things that we recommended in the book where you have to learn english, you have to pay a fine, you have to -- you cannot access government, federal government transfer of payments, and it takes 13 years, i think that that satisfies the concerns of

having the right balance between respect for the rule of law and embracing our immigrant heritage. secondly -- >> you argue for self-deportation, though, do you not? >> no. >> no? >> no, totally wrong. >> okay. >> and secondly, the issue at hand here that is, you know, grounded in fact is that my guess is a majority of people that hopefully will get legalized status in that they will not even apply for citizenship. if the amnesty bill -- which it truly was in 1986 or '7 was an example of that -- a majority didn't apply for citizenship. i think it totally misreads what the aspirations are for a whole lot of people. they come here, they want to come out from the shadows and be treated with dignity and respect, they don't necessarily want to be citizens. they want to work hard to pay for the needs of their families. and many of them want to go back to their families. i know that sounds line a really -- like a really crazy idea. people don't always leave their countries of origin because they

hate them, they leave because they have no other option. so the proposal that we had, that we made was geared towards trying to reach a consensus at a time when there was no possibility -- at least in september when we were writing this book, i had no idea, had no thought that we would be as far along as we are. finish but i don't find either one of those incompatible. they solve the problem either way, and that's what we need to do. >> governor barbour, what are your thoughts on the will right now -- on the bill right now that's moving through the senate? >> i think it's a good start. i think that there's, the fact that it's bipartisan and they've worked hard on it. i don't think it's what will ultimately pass. i think the senate is likely to amend it some. i think the house will, i hope the house will pass a bill that certainly won't be exactly the same. it may be quite different in some ways from the senate bill. and whether they pass several small bills and engross them for

conference or whether they decide to pass one big bill -- which i think is unlikely in the house -- then i think we'll go to conference with two bills that will have some substantial differences and that'll have to be worked out. and that's the way the process works. and i am hopeful that in this congress we'll get a bill, that we will get an immigration reform law that we can put into effect immediately after passage. for me, no immigration reform's the worst outcome. if you're concerned about securing the border, keeping what we've got now and doing nothing, we'll have another ten million illegal immigrants come in the country in the next 10-20 years. immigration reform is the critical element needed for border security to finally enforce visas' expiration dates, you know?

30, 40% of the people in this country illegally entered the country legally. i mean, they came here on a visa. just when the visa expired, they stayed. and no administration, to my knowledge, in history has ever tried to do anything about that. has ever tried to go find 'em. so if you want to do something about that, if you want to secure border much less if you want the kind of economic growth that our country is capable of to maintain our leadership role in the world, then immigration reform is essential, and not having it is going to lead to more bad results. on every front. >> governor bush, i was wondering if you're concerned about the cornyn amendment. harry reid has called it a poison pill. for people who don't know the details, just a couple of the measures that would require 100% monitoring capability and a 90% apprehension rate along the southern border before granting not full citizenship, but just

simple legal status to the estimated 11 million undocumented immigrants. what do you think about the plan? >> i'm not going to comment on the saw sack. >> can okay. >> it's work in progress, and i think that's -- actually, my only comment would be that it's encouraging that sausage is being made rather than talked about. our democracy doesn't work when we're just chirping on the sidelines. it works when people are engaged in good faith to try to find on consensus. i would say that a key element of border security -- obviously, controlling the border better is an essential element of it -- but creating a legal system of immigration is also a key element of a, of border security. the theory is, it's not a theory, i think the fact is that if you make legal immigration easier with less costs, less pain, less risk, then illegal immigration you'll not have as much illegal immigration. and our legal immigration system is broken. one of the elements that was

controversial in our recommendation that is going, that is embraced in the senate bill and likely in the house bill is to redefine narrow family petitioning back to what every ore country in the world concern every other country in the world has, something along the lines of a spouse and minor children. the senate bill now has miles per hour children, spouse and adult -- minor children, spouse and adult parents. whatever the case is, if you narrow it down, you open up the door for economic influence, and you can create a guest worker program that's robust, and you can expand h-1b visas, and you can create additional visas that are economically driven both on the high end and the low end of the income scale. so while border security has to be first and foremost simultaneously with that, there has to be a system where people -- when you say get in the back of the line, if you're a filipino in the back of a line if you're not petitioned by a family member, the back of the line is like 165 years.

there is no -- unless we have a massive change in life science where life expectancy is dramatically changed, that's not a line. and so creating this system of openness for people having a chance to come legally, i think, is critical. >> let me, without chirping -- [laughter] let me make, i want to make -- i think jeb's point about we need more of the people who come in legally come here because of merit and work and what they can do for our economy. that's where the need is. and i think he's very right on that. i think it is also fair to understand after impson-my solely that there are people who are concerned about are we going to be serious about border security. if you ask alan simpson, he will tell you what was the principal failure of simpson-my solely. the first thing we're going to do is secure the border, and we never did. so i can understand -- i can't,

i am not going to try to get into senator cornyn's or anybody else's amendment, but it's clearly understandable that this time the american people want to have some certainty that we're going to have border security, and we're going to do better enforcing visas, because last time they just took the government at its word, and i don't think they're prepared to do that again. i mean, you know, fool me once shame on you. fool me twice, shame on me. >> governors, i know this measure is moving through the senate right now and eventually, and we expect it to be taken up by the house, but even if immigration reform makes it through the senate, everyone does say it's going to be an uphill battle in the house. and i think there's a really interesting analysis that came out recently in the cook political report that found while the electorate is growing increasingly diverse, that the average republican district is getting whiter and whiter. so how do you persuade those

house lawmakers to vote for immigration reform particularly when there are so many of their constituents don't want it? a recent washington post poll found that 60% of legalization opponents said they would not support a candidate for congress who voted in favor of a path to legal status for undocumented immigrants. how do you sell it to them? >> well, we've got polling all over the lot. >> yeah. i've seen a lot of polls the exact opposite. >> the polling is kind of like streetcars, you know? if you miss one, there'll be another one along in ten minutes. [laughter] and it'll be going a totally different direction. but your question, let's just take it at face value. those districts are largely rural. those districts have a huge dependency on agriculture. agriculture in america has a huge dependency on immigrant labor. now, i was talking about california.

mississippi is a substantial agriculture state. believe it or not, the number one commodity in mississippi is not cotton, it's chickens. we, we process $2.5 billion a year worth of poultry, broilers. you go to a chicken processing plant anywhere in mississippi, and if you can find somebody on the floor that speaks english, i'd give you $100. they are all here for work. they are willing to do nasty, dirty work where every day they come home covered in blood and guts and veins and feet and feathers -- >> okay, all right. >> we got it, we got it. [laughter] >> i'll tell you, i'll tell you how bad it is -- >> you just did. >> there's this idea that it's a myth that there are jobs that americans won't take. well, in mississippi we have a very advanced corrections

department. our recidivism rate's about half the national average, 27%. but one of the reasons is inmates when they get to a certain security level after they're trustworthy, we let 'em work. and they can go work in the area, get paid. the state takes the cost of incarceration, they get the rest put in a savings account for them. and we have one of our penal institutions is in chicken country. the inmates, they won't stay two days. they'd rather be in penitentiary than stay in the chicken plant. that's the literal truth. so those congressmen that you're talking about have huge constituencies who are dependent on this labor. the big part of their economy -- and they're going to have those constituents saying to them, congressman, please vote for immigration reform so we don't have to have people here illegally, so that we can get labor that's here legally to build the economy and support

the families of your district. there's going to be a lot of that, and there'll be other examples one after another. >> did you have any thoughts, governor? >> most of the polling i see shows that there is broad support for the reforms that are being discussed in congress right now. and the implication of the question is that every decision is made purely for political self-interest in congress today, and there's probably, you know, you survive by being cognizant of the fact that you can't go way out of the mainstream of your district. i think the district isn't as out of whack with what we're doing right now. and, again, i haven't seen the poll you brought up, but i was on the other streetcar going the other way, i guess. [laughter] and i think, i think there is a broader question. you change the conversation from the question of illegal immigration, and you move it to how do you create an economic strategy of sustained economic growth, and the whole dynamic of

the conversation changes. and so my advice to members of congress and i gave humble advice this morning at 7:30 or 8:00, it was just that. change the conversation to how do we restore our greatness as a nation by sustained economic growth. and if you can tell me we can do that with an older and older and older population that is less productive where our fertility rates -- unless you tell me that every one of our kids and grandkids is going to have four or five kids, if you can promise me that, then there is no way that we can have based on the simple math that haley brought up of labor output times productivity equaling to economic activity that we can grow over a sustained period of time. we have to change our policies. they're broken. and so that is a winning message in conservative america, for sure. >> but, governor bush, it was conservatives who shot down your brother's own efforts back in -- >> no. >> -- 2007 to pass immigration

reform. what's different now? why do you think? >> it wasn't just, it wasn't just republicans. that's a wrong premise. a lot of people ran for cover on both sides. it was a must vote, and then all of a sudden it stopped being a must vote, and people got scared, and they went from 61 to 62 people supporting the bill to 39, i think, or 40 at the end. so -- >> what's ooh different now? -- what's different now? >> what's different now i think is, a, people do see it as an issue of great opportunity, many do. b, i think both parties realize that we have to do something for political purposes and that the policies need to be implemented. and, c, i think that there is a, the people, american people contrary to the poll you brought up are generally, by a matter of 2 to 1, supportive of the initiatives being proposed in