Congressional Record, Senate, December 8, 2021, Page S9025
Summary
A page of the Congressional Record, Senate, dated December 8, 2021, at page S9025. A Senator argues that the defense authorization bill's military justice language leaves commanders with convening authority and does not draw a bright line at all serious non-military crimes, saying only one-third of survivors of sexual assault in the military are willing to report and that 44% would have been more likely to come forward if a prosecutor were in charge. A Senator then speaks about scheduled Medicare cuts, saying that unless his bill passes Medicare will be cut $36 billion in 2022 and farmers will also face cuts, and says he will make a motion at the end of his colleagues' remarks. The remarks are the speakers' own.
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“Congressional Record, Senate, December 8, 2021, Page S9025.”
Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/crec-crec-2021-12-08-crec-2021-12-08-pt1-pgs9025-7f5a8030cc/
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December 8, 2021 CONGRESSIONAL RECORD — SENATE S9025
members accused of crimes the option of sep- cial Trial Counsel, the Service Secretaries leagues would also like to comment
aration from service instead of facing a and the TJAGs (the head Judge Advocate of about my bill, so I will be yielding to
court-martial. every Service), which will add layers of bu- them. At the end of my colleagues’ re-
Removing convening authority from com- reaucracy, slowing the process down and
manders is critical to providing a system marks, I will have a motion to make.
making it take even longer for survivors to
that is fair and perceived to be fair by sur- see justice. As a result of the American Rescue
vivors and the accused. Only one-third of NDAA LANGUAGE DOES NOT INCLUDE ALL SERI-
Plan, working in conjunction with the
survivors of sexual assault in the military OUS NON-MILITARY CRIMES (INCLUDING SEX- Budget Control Act of 2011, there are
are willing to come out of the shadows to re- UAL HARASSMENT AND CHILD cuts scheduled to take effect in 2022
port their crime, showing a clear lack of ENDANGERMENT), CREATING A BIFURCATED, with respect to Medicare and with re-
trust in the system. 44% of survivors indi- UNEQUAL SYSTEM FOR SURVIVORS AND AC- spect to our farmers.
cated they would have been more likely to CUSED Medicare specifically, unless my bill
come forward if a prosecutor were in charge See Table B. The NDAA also fails to draw passes and unless this body takes ac-
of the decision over whether to move forward a bright line at all serious, non-military
with their case. With commanders retaining tion, will be cut $36 billion. Those
crimes. That bright line is critical, because Medicare cuts will include—but they
convening authority under the NDAA text, it avoids creating so-called ‘‘pink courts’’ fo-
the Special Trial Counsel (‘‘STC’’) will still are not limited to—they will include
cused solely on sex crimes, which only fur-
be necessarily reliant on the commander for ther stigmatizes survivors—something sur- cuts to cancer treatments for our el-
the prosecution of a case. The perception and vivors have specifically asked us to avoid derly. Those cuts would reduce labora-
reality of commanders influencing the out- doing. Drawing that bright line also avoids tory fees and analyses that our seniors
come will be unavoidable. creating an inherent inequality in the mili- depend on every single day.
MJIIPA is the only provision that would
empower impartial, independent prosecutors
tary justice system. For the reasons I just referenced, our
The crimes chosen for the STC program farmers are also going to get cut unless
to make the vital decisions necessary for a are seemingly random. Although sexual as-
criminal justice system shielded from sys- we take action—specifically, the crop
sault and kidnapping are included, sexual
temic command influence and other struc- harassment (which was in both the House
insurance programs on which our farm-
tural defects. It is the only system that uses and Senate versions of the NDAA), child ers rely.
the UCMJ as it is designed to implement endangerment, murder of a pregnant women, We are recovering from a pandemic,
military justice: empowering officers to exe- and obscene mailing are not (to name a few). as we all know. Now is not the time, in
cute convening authority. How does a commander have more expertise my judgment, to put this burden on our
NDAA TEXT IS NOT COMMANDER FRIENDLY on the prosecution of child endangerment seniors and on our farmers. Our sen-
Under the Special Trial Counsel program than an independent military prosecutor? iors, part of the ‘‘greatest generation,’’
alone, there is a lack of accountability for Every victim and every accused offender in
don’t deserve them, and our farmers,
the system. Commanders remain in charge these serious cases should be treated equally
as the convening authority, but their hands and have access to a system that is profes- the backbone of America, don’t deserve
are tied from making key decisions such as sional and unbiased. It is unrealistic and un- these cuts either. In fact, America was
the referral of charges. The STC has some of tenable to leave these complex legal deci- born on the farm, and I think we ought
the decision-making authorities, such as re- sions to commanders whose expertise relates to keep that in mind.
ferral and the ability to make plea deals, but to warfighting, not the minutiae of the law. At this time, I would yield to the
the commander is ultimately responsible for OTHER PROBLEMS WITH THE NDAA TEXT senior Senator from Arkansas, Senator
creating the court-martial, approving wit- Implementing the requirement that the BOOZMAN.
nesses, etc. Thus, there is not one figure who senior STC be an O–7 will take years because Mr. BOOZMAN. Madam President, I
can be held accountable for the military jus- there are few generals or admirals with sig- want to thank Senator KENNEDY for his
tice process. Just as it would be unfair to nificant litigation experience. There is a
send a commander into combat without all
help and his leadership in this effort.
very limited number of military lawyers in We simply have to support America’s
the tools at their disposal, it is unfair to the ranks of Admiral and General, and most,
commanders to keep them in charge of the if not all, of them are generalists rather than
healthcare providers, farmers, and
court-martial but limit their decision-mak- military justice experts. It will take years ranchers. Doctors and the entire med-
ing in this way. Under MJIIPA, commanders for the services to develop the officers nec- ical community are still struggling
are allowed to focus on warfighting, train- essary to fill this role. MJIIPA on the other after being unable to perform non-
ing, and taking care of service members hand allows O–6s to fill these roles. There are emergency procedures during the pan-
while independent military lawyers take sufficient O–6s with military justice experi- demic.
over the military justice system for serious, ence currently in the services. With an aging population and more
non-military crimes. SENATOR GILLIBRAND IS CALLING FOR AN UP OR
The STC program continues the risk of un- physicians not accepting Medicare be-
DOWN VOTE ON MJIIPA cause of insufficient payment, Medi-
lawful command influence. Every year, ap-
pellate courts throw out convictions for seri- The process is broken: MJIIPA was in- care beneficiaries would face a reality
cluded in the Senate Armed Services NDAA
ous crimes because the commander oversteps of less access to quality care. That is
their bounds. If commanders are still in bill and passed out of committee 23 to 3. It
has 66 cosponsors in the Senate and 220 in why I introduced my own legislation to
charge under the STC program, but re- prevent these damaging cuts from
stricted in new ways, this will only increase the House. And yet without a vote or debate
on the floor, this bipartisan, bicameral bill harming our physicians, our providers.
this risk.
Under the STC program in the NDAA text, was gutted from the NDAA. Our agriculture community is also
the commander will be unable to give non- MJIIPA and the new STC system can work struggling, and we must protect our
judicial punishment (‘‘NJP’’) to the accused well together, with MJIIPA acting as the farmers and ranchers by ensuring their
for lower-level conduct. If the STC decides overall structure and STCs prosecuting spe- operations can stay afloat and keep
not to prosecute, the commander will be un- cial victim cases.
A good overall explainer: https:// producing the most abundant and
able to credibly impose NJP. For example, if safest food supply in the world.
www.justsecurity.org/79481/ndaa-a-missed-
the STC gets a stalking case and decides not For all of these reasons, I support
opportunity/
to prosecute it, the commander may want to
do non-judicial punishment, but if the ac-
Mrs. GILLIBRAND. I yield the floor. Senator KENNEDY’s bill.
cused refuses, the commander will be unable The PRESIDING OFFICER. The Sen- I understand that my fellow Senator
to send the case to court-martial. That takes ator from Louisiana. from Missouri also has some concerns,
the teeth out of the NJP. The accused walks UNANIMOUS CONSENT REQUEST—S. 3344 and so I yield to him.
away with no punishment. Mr. KENNEDY. Madam President, I Mr. HAWLEY. Madam President, I
NDAA TEXT CREATES AN EVEN BIGGER JUDICIAL want to talk about the American Tax- rise to make a very simple point, which
BUREAUCRACY THAT WILL SLOW DOWN JUS- payer and Medicare Act, of which I am is that Medicare is too important to be
TICE FOR SURVIVORS a sponsor. Cosponsoring this legisla- held hostage to political games, and
See Table B below. Some crimes will be that is what is going on here now. We
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tion with me are Senator GRAHAM, Sen-
prosecuted by Special Trial Counsels while ator HAGERTY, Senator TIM SCOTT, Sen- need to have a clean bill to fully fund
the majority of the crimes will remain with- ator RICK SCOTT, Senator BLACKBURN, and protect Medicare for the millions
in the chain of command. The bifurcated sys-
Senator HAWLEY, Senator COTTON, Sen- of Americans who rely on it, including
tem will create complexity and unfairness
due to different processes for different ator BOOZMAN, and others who are like- over 1 million just in the State of Mis-
crimes. ly to join. souri.
Under the NDAA text, responsibilities will I am going to make a few remarks And that is why I am supporting Sen-
be divided between the commander, the Spe- about the bill, and a number of my col- ator KENNEDY’s bill to fully protect and
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S9026 CONGRESSIONAL RECORD — SENATE December 8, 2021
secure Medicare, and I will support were overflowing; the ICU beds were support Build Back Better. I under-
every amendment and bill and clean full; and doctors and nurses across this stand many of my Democratic friends
amendment and bill to fully protect Nation ran to the sound of the battle. do. I understand President Biden does.
and secure Medicare, including, I We didn’t have vaccines. There I understand Senator SCHUMER does. I
think, Senator GRAHAM’s that he’s weren’t therapeutics, but we took an understand Speaker PELOSI does. And I
going to be offering shortly, which I oath to take care of our fellow man. I respect that, but I don’t support it.
am also privileged to cosponsor. joined those doctors. I went to an ICU Now, they are going to try to pass
And I would just say this: I call on in Southwest Kansas where we had 8 Build Back Better, and they are going
the Members of both parties—both par- beds, 12 patients, and 9 ventilators. to try to implement it. But they can’t
ties—to stop using Medicare as a pawn So how are we going to reward those do it without raising the debt ceiling.
in a political game. Let’s fund Medi- doctors today? We are going to cut Now, if I don’t support the Build Back
care. Let’s do it on its own. Let’s not their pay. We are going to cut most Better bill, why would I want to allow
hold it hostage to other agendas. Let’s doctors’ pay 2 to 11 percent. Even be- them to borrow the money to imple-
not hold it hostage to other programs. fore COVID, there was a doctor short- ment the Build Back Better bill? I
Let’s not hold it hostage to others’ in- age. There was doctor burnout. Be- don’t, and I am not going to break my
dividual ambitions, whatever they may cause of this pay cut, even more doc- word and vote to do that.
be. tors will quit. More doctors are going If my colleagues want to do that,
But let’s take the opportunity now to stop taking Medicare. that is their business. I don’t tell peo-
with this bill to fully protect Medicare Yesterday, the leadership on the ple how to vote. If I am ever asked how
for our seniors all across this country. other side of the aisle just wanted to to vote, I rarely—I almost always say,
That should be something that we can kick doctors, but today I found out follow your heart, but just take your
all get behind, and for those reasons I they are kicking farmers in the shins brain with you. And that is why I
am proud to support Senator KEN- as well. Holding doctors and farmers brought this bill. And I want to make
NEDY’s legislation. hostage is no way to run a government. it very clear, and you can write this
And now I yield to Senator HOEVEN. I, too, am tired of seeing doctors and down and take it home to mama, I do
Mr. HOEVEN. I would like to thank farmers used as pawns for political not support cutting Medicare, and I do
my colleague from Missouri. As my gain. not support cutting farmers.
colleagues have pointed out, we rise to I support Senator KENNEDY’s bill, and I do support keeping my word to the
support Senator KENNEDY’s UC—unani- I am honored to turn it back to him. American people. When I tell them I
mous consent request—his legislation, Mr. KENNEDY. Madam President, am going to do something, by God, I
because we have consistently supported Americans may be poor since President am going to stick. And I am not going
funding for Medicare and funding for Biden took office, but they are not stu- to be scared away by some cynical deal
our farmers and our ranchers who work pid. that was made in Washington, DC.
They look around Washington, DC, Now, Madam President, as in legisla-
hard to provide food, fuel, and fiber for
and they see liars and they see frauds tive session, I ask unanimous consent
our Nation.
in every direction. Now, I don’t think a that the Senate proceed to the imme-
That is why I support both the UC re-
single member of this body supports diate consideration of S. 3344—the bill
quest and the amendment that Senator
about which I have been speaking, and
GRAHAM is sponsoring. I am cospon- cutting Medicare or hurting our farm-
my colleagues, Protecting the Amer-
soring that amendment as well. That ers, especially not at this moment. I
ican Taxpayer and Medicare Act—at
would ensure that we fund these prior- don’t. I don’t.
And I don’t think any of my Repub- this time, it is at the desk. I further
ities.
lican colleagues or any of my Demo- ask that the bill be considered read a
I do not support linking these funds
cratic colleagues do as well. But a deal third time and passed and that the mo-
with an increase in the debt ceiling, as
has been made. A deal has been made tion to reconsider be considered made
the bill from the House would do, with-
to give us—some of us see it this way and laid upon the table.
out our amendment.
The PRESIDING OFFICER. Is there
We should not be tying the debt ceil- anyway—a choice between voting for a
objection?
ing to important legislation that en- heart attack or cancer. Mr. WYDEN. Reserving the right to
sures healthcare providers can con- You either have to give up your prin- object, Madam President.
tinue to care for our seniors and pro- ciples on the debt limit or you have to The PRESIDING OFFICER. The Sen-
tect our farmers who produce the high- vote to cut Medicare and hurt our ator from Oregon.
est quality, lowest cost food supply in farmers, and no one wants to do that. I Mr. WYDEN. Madam President and
the world. understand that people disagree over colleagues, I yield to no Senator in my
So I strongly support and have co- the debt limit, but there is no disagree- support of this country’s senior citi-
sponsored the Graham amendment ment in this body over not cutting zens. My background, colleagues, I was
which would strike the fast-track debt Medicare and not hurting our farmers. codirector of the Oregon Gray Pan-
ceiling process from this bill. As we are Now, I am labor. I am not part of thers, the senior citizens group, for al-
saying very clearly, we support the management. I don’t want to be part of most 7 years before I went into public
funding for Medicare. We support the management. I wouldn’t be good at life.
funding for our farmers and ranchers. management because I don’t always fit And I know that there is no Senator
Now, Democrats, who control the in. It is not one of my best qualities. In here who doesn’t support senior citi-
White House, the Senate, and the fact, it is my best quality, and that is zens, farmers, the extraordinarily im-
House, are trying to use reconciliation why I brought this bill. portant Americans that my colleagues
to pass a trillion-plus tax-and-spending As Senator HAWLEY said, much more have been talking about.
bill on a purely partisan basis. Given eloquently than I could, the disagree- But what really has not been ex-
that, they obviously can use reconcili- ment that reasonable people are having plained here—because we all kind of
ation to pass a debt ceiling increase on over the debt limit has been conflated talk this special lingo around here—is
their own. They do not need this House in a cynical attempt to fool the Amer- what my colleagues really seek to do in
legislation to do it. ican people by putting them both in a the Kennedy amendment.
And with that, I will yield to my col- bill that we are going to shortly be What my colleague from Louisiana
league from Kansas. asked to vote on. And we are going to wishes to do is rip up an agreement
Mr. MARSHALL: I thank the Senator be asked to give the American people
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reached between Democrats and Repub-
for yielding. I am honored to be here either a heart attack or cancer. You licans. Specifically, colleagues, Sen-
this evening to support my colleague have to choose. And I don’t want to ators Schumer and McConnell. So what
from Louisiana. I want to take this Na- make that choice, and I am not going they did is reach a bipartisan agree-
tion back to a year ago, a year ago this to make that choice. And that is why I ment to defuse an economic timebomb
spring in April 2020. COVID was on the brought this bill. by creating a process to avoid default.
rise—our first variant, our first wave I do not agree with my Democratic Senator KENNEDY’s proposal sticks a
ripping through this country. Our ERs friends about the debt limit. I don’t flame right back under that fuse. Now,
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December 8, 2021 CONGRESSIONAL RECORD — SENATE S9027
the two parties obviously have dif- I am not part of management. I am WYDEN. For 4 months, we have been
ferent approaches when it comes to labor, and I meant what I said. I belong saying, as a party, our Democratic col-
gamesmanship around this country’s in labor because I don’t always fit in, leagues are spending all this money by
financial commitments. Setting all of and I do believe it is one of my best themselves through reconciliation;
that aside, the fact is our country is qualities. they should choose that path to raise
now way too close to default for the The truth of the matter is—and this the debt ceiling.
Senate to be playing games. is what we are disagreeing over—Presi- Because what are we talking about?
This debate is almost entirely about dent Biden, Senator SCHUMER, Speaker A $1.9 trillion spending bill without one
financial commitments made under PELOSI, my other Democratic friends Republican vote through reconcili-
past Presidents. It doesn’t have any- have proposed the Build Back Better ation.
thing to do with legislation that is still bill. We have pending next week another
in the works. That is a fact. The re- Now, any economist with a pulse will reconciliation proposal that scores at
ality is my colleague from Louisiana tell you that it is going to cost about 1.7 trillion, if you assume every pro-
seeks to bring the country closer to de- $5 trillion without the gimmicks. It is gram goes away in a year. I will be in
fault. The Senate ought to be clear on going to raise taxes a couple of trillion. the NBA before that assumption. I
the consequences if that were to come We will probably end up having to bor- don’t like my chances.
to pass. row another 3 trillion to pay for it. We Ronald Reagan said the closest thing
Default would be an economic dis- will have to borrow the money. We to immortality on Earth is a govern-
aster for our country as well as for in- don’t have the 3 trillion. We don’t even ment program.
dividual families and businesses. And, have 5 percent of it. So they have written the bill for the
again, colleagues, since senior citizens Now, I think that the bill represents 17 big spending items to expire within
came up so frequently, this has been a spending taxation and borrowing 1, 2 or 3 years, and not one of them
my particular passion. It is why I went orgy that we don’t need, but I under- want them to expire.
into public service. Social Security stand my Democratic colleagues dis- So the whole bill is a fraud. And the
stops going out. Military could stop agree. I get that. Congressional Budget Office is going to
My Democratic friends can’t pass and give to me Friday what the bill would
getting paid. Interest rates go into the
implement the bill without raising the cost if the sunset clauses actually went
stratosphere, making existing Federal
debt limit. That is just a fact, because away—did go away; what would it cost
debt even more expensive, if you go for-
they won’t be able to borrow the if the programs survive, which it will.
ward with this proposal.
money. And I anticipate, Senator KENNEDY,
Costs go up for families who want to Now, if I don’t support the bill, why
buy homes or buy cars. Getting a small it will be at least twice what we are
do I want to support allowing them to
business loan becomes more expensive. talking about.
borrow the money, especially when
Jobs across the country are wiped out The effect on the debt is 367 billion
Senator SCHUMER—my friend Senator
amid this turmoil. And all of that only because they limited the pro-
SCHUMER—can do it on his own?
would happen right in the middle of the grams to last for a year or two rather
He can do it before the weekend is
holidays, when Americans are simply than the 10 years they are actually
out. All he has got to do is do a simple
trying to enjoy their time with fami- going to last.
amendment to the budget resolution.
lies, go out and shop for presents, and What am I missing here? So the deficit is going to go from 367
enjoy their time together. And I know a deal has been made and billion to probably close to 2 trillion.
My view is, after almost 2 years of some people are going to vote for it. We are going to expose that Friday.
pandemic and economic chaos, people You are not looking at one of them. They are playing a game. They are cre-
have had it hard enough. And two lead- And I respect their right to make a ating gimmicks.
ers—a Democrat and a Republican— deal, but I didn’t make a deal. But I And Senator MANCHIN, to his credit,
have come together because they un- have been put in the position of saying: said: ‘‘I believe Build Back Better is
derstand the Senate doesn’t need to OK, Kennedy, we are going to show full of gimmicks.’’
add another catastrophe to their finan- you. You have got to choose between We will know Friday exactly what
cial challenges, the challenges I just keeping your word to your people or the bill would look like without gim-
described—one, by the way, that would cutting Medicare. micks.
be entirely self-made. And we wonder why Congress polls This is the ultimate gimmick. If you
There is an agreement before the right up there with skim milk. That is had asked me 4 months ago, ‘‘How does
Senate, colleagues; an agreement be- why they look around, they see frauds this movie end?’’ I will be reading in
tween the Republican leader and the and liars in every direction. the paper about a rules change to the
Democratic leader. That agreement I really regret that my bill didn’t Senate made by the House, where I
brought the two sides together. My col- pass because it would have protected have got to pick between Medicare and
leagues must not throw that agree- our elderly, and I do support protecting abandoning what I said I would do for
ment away. And I respect all my col- our elderly. And it would have pro- 4 months.
leagues—all of them—but I just believe tected our farmers, and I do support This is a deal that led to Donald
that this proposal from the Senator protecting our farmers. And this so- Trump. If you wonder why there is a
from Louisiana is misguided. It brings called deal puts them both at risk. Donald Trump, it is moments like this,
our country closer to default. The PRESIDING OFFICER. The Sen- where everybody starts down a road
Therefore, I object. ator from South Carolina. that makes perfect sense, you panic,
The PRESIDING OFFICER. Objec- UNANIMOUS CONSENT REQUEST and you throw everybody over.
tion is heard. Mr. GRAHAM. Madam President, I They would raise the debt ceiling
The Senator from Louisiana. have a different approach that will get through reconciliation because they
Mr. KENNEDY. Madam President, I the same result. should, and we want to do it that way
really appreciate my colleague’s re- But to my colleagues here, we are to deter spending in the future. We
marks, I do. I don’t agree with his ob- playing the Medicare card in a very want to make it harder to use rec-
jection, but I appreciate it. dangerous fashion. Senator HAWLEY onciliation to spend more money than
I just want to say a couple more said it pretty well. Medicare is some- World War II cost.
words. I didn’t make a deal. Now, let thing people depend upon, and all of us If you look at the cost of World War
me say it again. Let me say it a dif- II in present dollars, it was 4.7 trillion.
SSpencer on DSK126QN23PROD with SENATE
understand the need to keep Medicare
ferent way. solvent. We need to reform it to save When you look at all the money we
I don’t hate anybody. Lord knows I it. spent and going to spend, it is going to
look for grace wherever I can find it. I But this idea puts all of us in a box, be 5.4 trillion. Literally, we have spent
like every one of my colleagues; I real- and I don’t appreciate it and I won’t more money in the last year and a half
ly do. The Senate is the most inter- forget it. than we did to win World War II.
esting group of people I have ever been Now, this is a problem on our side. I think they should raise the debt
around. You don’t even have to listen, Senator ceiling, Senator KENNEDY, through the
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