National Defense Authorization Act for Fiscal Year 2016
Floor Speech
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Mr. GRASSLEY. Mr. President, I have serious concerns with the language that was tacked on to the House FISA reform bill that passed the Senate, and at the end of my remarks I am going to offer a unanimous consent request. I say that because maybe other Members of the Senate would like to be heard or would like to maybe reject my unanimous consent request, and I want to give them the privilege of knowing I am doing this.
The language in the FISA bill made changes to the Federal criminal code to implement four important multilateral treaties relating to nuclear terrorism and the proliferation of weapons of mass destruction. It is good that these treaties are finally being implemented. The Senate gave its advice and consent to these treaties back in 2008. In the years since then, however, the Senate leadership repeatedly failed to bring bills to the floor that would implement them.
The language which is now law omits a number of key provisions that were requested by both the Obama administration and the Bush administration. So I want my colleagues to know this has had support from both Republican and Democrat Presidents, in the present and in the past.
My amendment No. 1786 restores these provisions, which are important tools to combat the gravest of threats to our national security. I am happy to note that Senator Whitehouse, the ranking member of the Judiciary Committee's Subcommittee on Crime and Terrorism, has joined me in offering this amendment.
First, the amendment adds the authority for prosecutors to seek the death penalty for these newly created crimes in appropriate cases. Under the criminal code, similar crimes already carry the possibility of the death penalty. Singling out these new offenses under this treaty, which is intended to stop terrorists from threatening us with the world's most dangerous weapons, for lesser punishment simply makes no sense.
For example, section 2280 and 2281 of the code, which criminalizes various acts of violence on the high seas, already provide for the possibility of the death penalty. So it is only logical that new sections 2280a and 2281a, which criminalize acts of terrorism on the high seas related to weapons of mass destruction, should as well. The newly created offenses of nuclear terrorism, now codified in section 2332i, should as well. In fact, I am hard pressed to think of an offense for which the death penalty might be more appropriate than nuclear terrorism.
Terrorists who kill Americans--especially nuclear terrorists--should be eligible for the death penalty. This shouldn't at all be controversial, and I think the support of both former President Bush and President Obama speaks to that point. Terrorists who kill Americans--especially nuclear terrorists--should be eligible for the death penalty. I can't repeat too often that this shouldn't be controversial.
Second, the amendment makes these newly created criminal offenses material support predicates. In other words, the amendment would provide the government the ability to prosecute those who finance or otherwise provide material support to these terrorists. Naturally, these are complex crimes that aren't committed by just one person.
They involve entire networks that need to be stopped in their tracks. This provision will help do that by making sure that those who provide materiel support to terrorists don't escape justice.
Third, the amendment would add these offenses to the list of those crimes that are predicates for wiretap applications. As the law now stands, prosecutors can't request a traditional criminal wiretap against a terrorist suspected of breaking these new laws, but at the same time, they can get a wiretap to investigate a long list of less serious offenses. Again, this doesn't make sense. In fact, this is a dangerous omission. Our government needs the ability to listen in on calls of suspected nuclear terrorists. So this provision would permit prosecutors to request the authority to do so from a Federal judge.
Once again, I use the term ``common sense.'' These are commonsense fixes, supported by both Republican and Democratic Presidents, fixing and harmonizing these recently created crimes with the rest of the criminal code, fixing and harmonizing these recently created crimes with the rest of the Criminal Code. They were requested by both the Obama and Bush administrations because they will help protect us from the catastrophe that could result from terrorists seeking to use the ultimate weapons against us. So I urge my colleagues to support Grassley-Whitehouse amendment No. 1786.
At this time, I ask unanimous consent to set aside the pending amendment and call up and make pending Grassley-Whitehouse amendment No. 1786.
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Mr. GRASSLEY. Mr. President, I accept the good-faith effort to listen to my point of view, even though there is a rejection, but I would like 1 minute to react to the objection.
This amendment only does what both the Bush and Obama administrations asked Congress to do, to make clear that the death penalty could apply to any active nuclear terrorism. It is not enough that other criminal statutes might also apply to nuclear terrorists and might also carry the death penalty. It is quite the opposite; that terrorists who use guns and explosives to kill can face the death penalty means that nuclear terrorists certainly should as well. It does not take too much imagination to come up with a situation which, under current law, the death penalty might not clearly apply.
We are all aware of the threat of cyber terrorism. If a terrorist used a computer to take over a nuclear powerplant and caused a deadly nuclear meltdown, it is not clear that his crime would be eligible for the death penalty under any other Federal Criminal Code. We simply shouldn't accept this potential gap in the law which my amendment fixes.
So, once again, I am sorry there was an objection. I am not done with this. We will continue it in some other environment. I respect my colleagues, however, for objecting.
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Mr. GRASSLEY. Mr. President, I thank Senator Gillibrand for her leadership in this area over a long period of time, and I add my voice to the support of her amendment. She has been a great leader on the issue. As you can see, she has a lot of passion in her dogged pursuit of justice.
Last year, when I spoke in favor of this measure, I made the point this was not a new issue that required further study or incremental reforms. We had been hearing promises for years and years that there would be zero tolerance and a real crackdown on military sexual assault. Last year, the National Defense Authorization Act included a lot of commonsense reforms, but it did not include any fundamental reform of the military justice system. We were told to give these new adjustments to the current system a chance to work and come back next year.
At the time, I made the point that we had already tried working within the current system to no avail. I am not one to advocate for major sweeping reform if less will address the problem, but what we have been doing has not worked.
Last year, after Congress passed the package of more modest reforms but not our Military Justice Improvement Act amendment, the Chairman of the Joint Chiefs of Staff, General Dempsey, said: ``We have been given about a year to demonstrate both that we will treat this with the urgency it deserves and that we can turn the trend lines in a more positive direction.'' He made clear that if we didn't see real progress, he wouldn't stand in the way of more major reforms. Well, we have not seen significant movement.
In terms of the number of sexual assault cases and the shocking rate of retaliation against those who report, we simply don't see progress. That is probably because the current system is part of the problem. The fact that victims of sexual assault cannot turn to an independent system to get justice, combined with the very real fear of retaliation, acts as a terrible deterrent to reporting sexual assault. If sexual assault cases are not reported, they then cannot be prosecuted. If sexual assault isn't prosecuted, it leads to predators remaining in the military and a perception that this sort of activity is going to be tolerated.
By allowing this situation to continue, we are putting at risk the men and women who have volunteered to place their lives on the line. We are also seriously damaging military morale and readiness.
Taking prosecutions out of the hands of commanders and giving them to professional prosecutors who are independent of the chain of command will help ensure impartial justice for the men and women of our Armed Forces. This would in no way take away the ability of commanders to punish troops under their command for military infractions. Commanders also can and should be held accountable for the climate under their command, but the point here is the sexual assault is a law enforcement matter, not a military one.
This isn't some reform that came out of the blue either. We have an advisory committee appointed by the Secretary of Defense himself which came out in support of reforms. On September 27, 2013, the Defense Advisory Committee on Women in the Services--which goes by the acronym DACOWITS--voted overwhelmingly in support of each of the components of the Military Justice Improvement Act amendment.
DACOWITS was created way back in 1951 by then-Secretary of Defense George C. Marshall. The committee is composed of civilian and retired military men and women who are appointed by the Secretary of Defense to provide advice and recommendations on matters and policies relating to the recruitment and retention, treatment, employment, integration, and well-being of highly qualified professional women in the Armed Forces. Historically, this committee's recommendations have been very instrumental in effecting changes to laws and policies pertaining to military women.
The bottom line is, this isn't some advocacy group or fly-by-night panel. It is a longstanding advisory committee handpicked by the Secretary of Defense and it supports the substance of our amendment to a tee.
We have tried reforming the current system and it didn't work. When we are talking about something as serious and life-altering as sexual assault, we cannot afford to wait any longer. So I urge my colleagues to join us in supporting this amendment.
As we approach this from the outside, it gives me an opportunity to reiterate what I see so wrong in so many bureaucracies. We are always promised change, but as I have looked back over a couple or three decades of this problem of the culture of the various bureaucracies, nothing really happens from within. It has to happen from without. In this particular case of national defense being the No. 1 responsibility of the Federal Government, this change has to happen from without because it hasn't happened from within, regardless of the promises.
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