Lindsey Graham

Mr. GRAHAM

Mr. GRAHAM. Will the Senator yield for a second?

Mr. GRAHAM. I think the Senator from Mississippi may have the exact number, and it amounts to a brigade of soldiers, almost. I ask the Senator from Mississippi, what is the number?

Mr. GRAHAM. Madam President, I join with the Senators from New Hampshire and Alabama in trying to urge the body to take a pause here and see if we can right a wrong before it matures. The good news is that we have a bipartisan agreement to try to fund the government in a fashion where we will not have a government by crisis. I appreciate that. I understand how hard it is to reach a consensus around here. My objection is not to the deal as a whole. I appreciate the fact that sequestration relief occurred for our DOD budget for 2 years, and nondefense spending, and it was paid for. I appreciate that very much because sequestration has really cut into our ability to defend this Nation in a dramatic fashion, and to have it paid for is also a worthy goal and the right thing to do. The point Senator Ayotte, Senator Sessions, and I are trying to make is that a budget is about your priorities. What we are doing today is telling everybody in America what is important to the Congress, the Senate, and the House when it comes to getting a budget passed for 2 years and how we should pay for it. Here is what I can't understand: Of all the groups in America you would go to and single out, unlike any other group, to pay for the offset and come up with some money out of their pocket to get this budget deal passed--which doesn't keep us from becoming Greece, by any means, but I do applaud the effort--we picked the military community. Here is what we have done to our military retirees, past, present, and future: We have taken their cost-of-living adjustment and reduced it by 1 percent until they get to age 62. If you are an E-7, a master sergeant in the Air Force, who retires at 42 in 2015, by the time you get to 62, this 1-percent reduction a year of your COLA amounts to almost $72,000 in lost benefits. Do you know how much a master sergeant with 20 years of service makes in retirement? It is less than $25,000 a year. So that almost $72,000 number requires the master sergeant to give up 3 years of retirement, because $24,000 to $25,000 a year is what they make for a 20-year period, and the cost of the COLA reduction is almost $72,000, so basically you have taken 3 years of their retirement away to do a budget deal that could be accomplished without having to do that to our military. By the way, nobody else in the country is doing this. No Social Security recipient has given up a dime. The COLA formula for the military is exactly the same as Social Security and other COLAs that we get around here. Should we look at reforming our military retirement pay pension benefit system? Yes, because it is unsustainable in the future. Entitlement growth in the military is real, just as it is on the civilian side. Nobody has ever envisioned doing it this way, to take the military retiree community and retroactively apply a benefit cut to them that takes $6.3 billion out of the retiree community. These are the people who have been fighting the wars for 20 years. These are the people who have been serving continuously since 9/11, overseas and at home, trying to protect the Nation, and this COLA reduction doesn't just apply to people who have retired and are in good health at 40 or 42 or 45, it also applies to people who are medically retired. Someone who has had their legs blown off in Afghanistan or Iraq, and most likely will not be able to get a second job, is going to lose thousands of dollars in this cost-of-living adjustment, and nobody else in the country is so situated. Can we do better? You better believe it. Here is what Congress told the Military Compensation and Retirement Modernization Commission. We set up a commission last year to advise the Congress next year on how we can fairly adjust retirement packages to make the personnel costs more sustainable in the Department of Defense in the future and how we can do that fairly. Do you know what we told the commission. We mandated that any change they recommend has to grandfather existing forces and retirees. We put it in the law that created this commission. We put a restriction on the commission's ability to come up with pension, pay, and benefit reform by saying: You cannot apply it to people who have signed up and are expecting certain things. They are grandfathered. We should have told ourselves that. We limited the commission, but we do exactly what the commission is not allowed to do. I don't know how my colleagues are going to explain this when they go back home. I hope somebody will ask what you are trying to accomplish. Trying to have a bipartisan budget that avoids a government shutdown is good, but asking the people who have been on the front lines of defending this Nation, who have been in the military for 20 years--and do you have any idea how many times the average military family moves in 20 years? Do you have any idea how many schools their children will attend because they move every couple of years? Do you have any idea what it is like to serve this country since 9/11? All I can say is if we want to find $6.3 billion over the next decade to pay for this budget deal, we can find better alternatives than this if we take some time. If my colleagues don't like what Senator Ayotte is doing, there are other ways. I am not asking a Democrat to defund ObamaCare to keep the government open. I am not asking a Democrat to take away a safety net from a group of Americans who are struggling. I am not asking a Republican to raise taxes. I am asking both of us, before Christmas, to rethink what we are doing here and take a little bit of time to fix a problem that, quite frankly, is unconscionable. If you make over $250,000 a year in retirement, you receive $109 a month for a subsidy to pay for your Part D prescription drug bill. Here is what I would say: If you want to pick on rich people, let's do it. To me, $250,000 puts you in a category of living pretty good. Why in the world does our government give you $109 a month to pay your prescription drug bill when we as a nation are broke? That subsidy alone is worth $54 billion over the next 10 years. What if we took some of that money? What if we went to the $250,000 retiree and said: Would you give up some of your subsidy to pay your drug bill so military retirees don't have to lose the retirement benefits they have earned and have fought so hard to defend this Nation for so long? I bet they would say yes. Here is the point: We are going to rush through this. If you ask me what bothers me the most about this, it is how insensitive we have become as a nation. We trip over ourselves to welcome the troops home when they come back from deployment. Members of Congress want to be there when the Guard unit leaves. We want to show how much we love the troops. That is a good thing. Every American--Republican, Libertarian, vegetarian, Democrat--we all love the troops, but your Congress is expressing that love in a very strange way. How far have we fallen? Do we have no shame? As a body elected by the American people to make sure the Nation is well run, what is the proper first role of the Federal Government? To defend the Nation. Tell me how to defend this Nation without people willing to die for it. The budget doesn't defend this Nation. The CBO, the OMB, and all these acronyms do not defend the Nation against radical Islam. I am urging my colleagues in a spirit of bipartisanship and common decency: Do not single out the military retiree who has served so long and so hard and ask them to give so much when others are doing almost nothing. As to our Federal employees, you are being asked to contribute more to the Federal retirement system, and I am sure that is a burden. But what do we do to Federal employees? We say that everybody who is in the system today does not share that burden. They are grandfathered. It is only for people who are hired in the future. As to the military retiree, thank you for all of your hard work. Boy, do we have a deal for you. This is not going to stand. This is going to pass because everybody is hellbent on getting out of here and going home and celebrating a bipartisan breakthrough, and we are going to talk about how we have become functional again. I do appreciate the effort to become functional, but to me, in our effort to become functional, we have lost our way and, quite frankly, lost our soul. Any political body that would do this in the name of good government has forgotten what government is all about. It is for, by, and of the people. I will tell you right now, from the CEO to the doorman, when they hear about what we have done to pay for a budget deal at the expense of the military retired community, they are not going to be very appreciative. I promise this: If we don't fix it now, not only are we going to review it, we are going to fix it. To our President: There is only one Commander in Chief. How could any Commander in Chief sign a bill that does this? Call us down to the White House, put us in a room, Republicans and Democrats, and don't let us out until we find a $6.3 billion offset that doesn't do injustice to the military retired community. If I were the President, I sure as hell would do that. Nobody would be going home until we got this right. So the President owes a duty to the troops greater than anybody because he is their Commander in Chief. I don't know whether we are going to get this fixed. The train is running, and the retired military community is on the tracks, and a few of us are trying to get them off. I promise their families that if we fail today, we are going to come back at this tomorrow, over and over and over, until the Congress finds its soul. I yield.

Mr. GRAHAM. I thank the Senator. To follow on what Senator Wicker said, I have been trying to find out how this started to begin with too. Whose good idea was this? So I called the Secretary of Defense, and he said: We did not do this. I talked to Chuck Hagel, and he said: This did not come from us. Because I said: What are you all doing over there? Please understand, Senator Graham, this did not come from us. I think Senator Wicker knows the exact number. But if you are a military retiree, on your DD214 form--I do not know if the Senator from Alabama knows this, but when you get your retirement, your discharge DD214 form, at the bottom it says: Subject to being recalled. Does the Senator know how many military retirees have been recalled since 9/11?

Mr. GRAHAM. Yes. Take my pay.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I rise today to address the nomination of Cornelia Pillard for the DC Circuit. My colleagues, I have enjoyed my time in the Senate very much, although we live in a very difficult time. Politically, there are a lot of influences on individual Senators and parties and the body as a whole, so these are very difficult times. I can only imagine writing the Constitution today. I always thought that would be a good ``Saturday Night Live'' skit: Go back to Philadelphia hall and have all the satellite trucks parked outside and the bloggers and talk radio, moveon.org--fill in the blank--all putting pressure on our Founding Fathers not to do this or that. We live in different times. It is absolutely good that people have a voice and influence and create organizations to advocate their cause. There seems to be an organization for almost every aspect of the economy. So lobbying the government, having a say about legislation, trying to push your representatives to do something you think is good for the country is very much a part of democracy, but eventually we have to govern. Democracy is a journey, sort of like when you are on vacation or you are driving to a place with your kids and they always ask: Are we there yet? But democracy is not an end state, it is a process. Democracy is really about protecting losers, not so much winners. Winners tend to do well in any system. Democracy protects the loser by having a rule of law, a process that says: If you lose the election or you are in the minority in a body, there will be rules there to give you a voice. One of the problems in the Mideast and throughout the world is that people are afraid to lose. In the Mideast it is a winner-take-all environment. The reason there are so many militias is that people don't trust the police or the government to be fair to their sect or their tribe, so they arm themselves, believing that if they don't take care of themselves, nobody else will. But that just leads to an endless state of conflict. So democracy is really a process, and it is designed to ensure that losers in a democratic process will still have basic rights. You can lose the election and not get fired. It is illegal to fire somebody because they are in the opposite party, unless it is a political job where one expects that to happen. You don't lose your right to speak up because you lost the election. When you find yourself in the minority in politics, it is important that you have a say. It is also important that the majority has the ability, having won the election, to do certain things--to run the place, for lack of better words. The Senate is an unusual body in traditional democracy. Parliamentarian systems are different from what we have set up. You have two houses in most places, such as the House of Lords. I don't know what power it has, but it is not too great. The parliamentary system is where you have to form coalitions. At the end of the day it is a completely different setup than we have here, where the party in charge, if they can form a big enough coalition, can basically just run the place. The House is a winner-take-all body. If you are in the majority in the House, you can decide what bills to bring to the floor, what amendments will be allowed on those bills, and how long to debate those bills. You have an almost absolute dictatorial ability to run the House. You determine everything. The minority has some say but not a whole lot. The House is sort of gang warfare. I have been there and love the institution. You will find that majorities will be fighting among themselves a lot in the House because that is where the action is in the House. I have been in the House, and I have been in the Senate. I loved being in the House, and I understood the way the rules worked--that if you were in the minority, what came to the floor was determined by the majority, what amendments were in order was determined by the majority, and that is just the way it was. When I was in the House, we would pass one measure after another that would go to the Senate and never be heard from again, and that was frustrating. But the older you get, you sort of realize maybe some of the things you wanted were not in the best interest of the country as a whole. And the fact that you knew that if it went to the Senate there would be a filtering process, unlike in the House, became somewhat reassuring over time. House majorities are more partisan, generally speaking. They are influenced by 2-year election cycles. It is a more passionate body because you are always up for election and the winner takes all. And when you win in the House, the people who got you there expect you to do things consistent with your party's agenda. Nothing wrong with that. In the Senate there has been a conscious effort to put some brakes on that kind of governing. When you send a bill to the Senate, you still, to this day, have to get 60 votes to bring the legislation to the floor and to get cloture, and the minority has the ability to say not only whether they want the bill to come to the floor, with a certain amount of amendments, but then they can negotiate with our friends in the majority to get the amendments we want and to allow the legislation to come forward. There are probably a lot of times when Republicans in the House voted understanding that this idea wouldn't make it through the Senate and that was probably OK. Here is what I feel. A lot of my colleagues have talked about Ms. Pillard, the nominee, being a radical judge and being out of the mainstream. I don't want to get into that. All I can say is that my view of a Presidential appointment is for the Senate to provide advice and consent--constitutionally required--but to recognize that the President won the election and the Senate has the advise and consent powers, not the House. I have found myself in all kinds of judge fights since I have been here. I was a lawyer before I was a politician. I love the law. What I love about the law is that, in theory, it is a place where the poorest guy, the most unpopular person can still get a fair shake. Of course, that wouldn't happen in a political environment. It is a place where the richest guy or gal in town doesn't have to pay because they can afford to, only because they have a legal responsibility to. I love the idea of an independent judiciary, a jury of one's peers, protecting people's interests in a way politics never could. I would argue that the strength of the rule of law in this country has been our great saving grace. Elections happen all over the Mideast. Saddam Hussein got 90-some percent. We haven't been able to get there yet. I would argue that electing Saddam Hussein was a joke, that it is the institutions of government that really do provide freedom for people. An independent judiciary has been a Godsend to our country. It is not perfect by any means, but it was the courts that basically broke the stronghold of segregation because politically it would have taken far longer to get there. At the end of the day, in Bush v. Gore, maybe one of Vice President Gore's finest moments contributing to democracy was his acceptance of the ruling of the court. He fought like crazy, he lost a national election by a few hundred votes, all of his supporters are telling him they did this here and they did that there, and the next thing you know the Supreme Court rules 5 to 4, and he graciously accepted the decision. What has happened here is that the rules of the Senate have been changed in a very dramatic way for the first time really in 200-some years. Our colleagues on the other side decided that we would no longer require 60 votes to get a nomination to the floor or to approve a judge. Now it is majority rule--majority rule on judicial nominations, except Supreme Court and executive appointments. A lot of average people might say: Well, they won the election; why isn't 51 enough? My response is this: I think we all understand the benefits of being able to slow things down that come out of the House. And having to pick up some votes from the other side to get the 60 to pass legislation has probably saved the country a lot of heartache in terms of emotional legislation coming through the House to the Senate that would never make it into law. A lot of things I wanted have been killed in the Senate, and a lot of things I hoped never would see the light of day have died in the Senate. So it kind of works out. When it comes to judges, I have tried very hard to make sure that Republican and Democratic Presidents are treated fairly. I do not believe it is my job as a Senator from South Carolina to vote or block an appointment because I wouldn't have chosen that judge. I remember during the Bush Presidency there was a wholesale filibuster of Bush's judicial nominations, and we were thinking about doing the nuclear option. But seven Democrats and seven Republicans said: Wait a minute. Unless there is an extraordinary circumstance, we shouldn't filibuster judges. An extraordinary circumstance really is about qualifications or something unusual. I can say to my Democratic colleagues that we have denied two judicial picks by not allowing cloture. If advise and consent means anything, it means that, on occasion, you can say no. So there have been only two. As to the DC Circuit Court, this dispute about how many judges there should be on the DC Circuit Court has been going on at least for a decade--ever since I have been here. The Bush administration wanted to add judges to the DC Circuit because that is the circuit all appeals go to when government regulation is challenged by somebody in the private sector, an individual or a business. If you want to sue about ObamaCare regulations or the detention policy or the NSA's programs, it goes to the DC Circuit. So every President, quite frankly, would like to have an advantage there because it protects their administration's policies. I guess what I would say is that changing the rules because we have said no to two picks--outside of the DC Circuit--was, quite frankly, irresponsible, and it is going to change the Senate forever. As to the DC Circuit, no one can say this debate hasn't been going on before we all got here. Senator Grassley has been the most consistent guy in the world about the DC Circuit, even when Republicans were in charge. There are more needs out there. These judges are fine people. They could be put in the other spots where the need is greater. But we are where we are. So our colleagues decided, after two--I don't know how many have been approved, but two have been denied-- enough is enough on the judge side, along with the attempt to grow the court in the DC Circuit. We have had disputes about executive nominations. I remember Ambassador Bolton. And Mel Watt--really, honest to God, I like Mel. He is a great guy. I just don't think he is the right choice for Fannie Mae and Freddie Mac. And to my colleagues here, you are all wonderful people, but there is not one person in the Senate whom I would pick for that job because it has a very technical requirement to it. So here we are. Very quickly--and then I will turn it over to Senator Grassley--what does this matter in the long term? I think the first casualty of this rules change is going to be the judiciary itself, and here is what I mean by that. Now that we don't have to cross the aisle to pick up a few votes to get to 60 when there is a disagreement--and these are very rare; we don't filibuster everybody; they are fairly rare--we are going to have more ideological-driven picks on judicial nominations because once the filtering device of having to at least talk to the other side is removed, once that no longer exists, the pressure in the conference to pick the most ideologically pure, hardnosed, fire-breathing liberal or conservative is going to be immense. So what my colleagues have done is they have changed the face of the judiciary probably forever. And shame on you. I think that is going to be your legacy that will stand out long after all of us have gone because I don't see how you go back and put this genie in the bottle. I think we are going to find that judicial selections in the future are going to be those whom the most rabid partisans are going to pick-- the most faithful to the cause, not the most faithful to the law. I don't know what it is like on the Democratic side, but I can tell you what it will be like on the Republican side. There are a lot of people out there who have a list of judges they want to see on the court--yesterday. Some of these people are going to be tough for you to swallow, and I am sure you will do the same to us. What you are doing is making the majority self-regulated. There is no longer the excuse, for lack of a better word: I can't ``push'' this person through because I have to get somebody in. Those who want to make sure they are picking the best person who is not an ideologue, you are going to have a hard time of it. I think the judiciary is the biggest casualty over time, only equal to the Senate itself. It will not be long--and I don't know how long it will be--before the rules change for Supreme Court picks, because there will be replacements of several members of the Supreme Court in the next decade. That is just the way the life is. There will be opposition from the party out of power. There will be frustration. Somebody will be blocked that makes the party in power mad and they are going to change the rules. That is just going to happen. We are now about outcomes. We are not about process. The Senate is slowly but surely becoming the House, where winner takes all and ends justify the means: Anything you can do over there, we will do over here. That is just the way it is going to be. It will not be much longer until we have a Senate and a House and a White House in one party--as happens every now and then--and there is going to be a centerpiece of legislation that has been the Holy Grail to that party that is an absolute nightmare to the other side; it is going to pass the House on a party-line vote, it is going to come to the Senate, and somebody is going to get frustrated and say: I have 51-plus votes. I may have 57 votes. I don't have 60. And they are going to change the rule on legislation because the pressure to do it, now that we have gone down this road, is going to be immense. I am by no means perfect. But when this happened on our watch, I tried to find a way to avoid it. But we are where we are. Finally, about ObamaCare. Let me tell you from a Member of Congress point of view something you should consider. All of us are Federal employees and we get a subsidy for our health care premiums similar to every other fellow employee. It is not a unique deal to Congress. If you are a member of the Federal Government, you get up to 72 percent of your premium subsidized. Other employers do that, but it is a darned good deal that is available to all Federal employees. Again, I compliment Senator Grassley. He said: If we are going to have ObamaCare, we ought to be in it. We, the Congress, and our staffs. Under the law that was passed--I think Senator Grassley was the originator of this idea--Members of Congress and our staffs have to go into the exchanges. But we have the ability to go into the District of Columbia exchange, and the law is written such--and every Member of Congress who takes this subsidy is entitled to do it. I don't blame them one bit. You have to go into the exchange, and your premiums are going to go up, but the subsidy will continue. Senator Vitter believes, and so do I, that because we are leaders we should take the road less traveled and experience more pain than those who follow. So I have been of the opinion that if you are going to change this law, the Congress should not only go into the exchange, we shouldn't get a subsidy any longer. Why? Because most Americans are going to lose their employer-sponsored health care as it exists today-- maybe not in total but their premiums are going to go up dramatically because employers cannot afford to pay the increased premium under the old system. So they will either lose employer-sponsored health care and become an individual or they are going to have to pay more because their employer is in a bind and they can't afford the subsidies that once existed--because premiums for employers, similar to individuals, are going to go through the roof. I wish to give an example about what I have chosen to do. I have chosen not to go into the DC exchange but to enroll in South Carolina because that is where I live. Enrolling in the South Carolina exchange, I will not get a subsidy. That was my choice. I accept that choice. Why am I doing this? To try to lead by example what I think is coming to a lot of Americans in some form or another. So here is what happens with me: Under the old system, I was paying $186 a month. If I went into the DC exchange, my premiums would go up but not a huge amount. But now that I am enrolling as a 58-year-old short White guy in South Carolina, my premiums are based on the county I live in and my age, with no subsidy, because I make too much money to get a subsidy. People at my income level don't deserve a subsidy because it would bankrupt the Nation more than we are already doing if we did that. Under ObamaCare in South Carolina, I chose the Bronze plan. Why? It is the cheapest one I could find. I am not independently wealthy. I make a very good living as a Member of the Senate, almost $180,000, but at the end of the day here is what is coming my way: My premium goes up to $572 a month from $186. That is $400 a month, almost, a 200-percent increase. Under my old health plan if I went to the doctor, I paid a $20 copay. Under the new Bronze plan, I pay $50. Under the old plan if I saw a specialist, it was $30. Under the new plan, it is $100. My old deductible was $350 a year. My new deductible is $6,350--a $6,000 increase. My old plan had a $5,000 out-of-pocket limit. The new one is $6,350. You also get rated not just on your age but where you live. I am paying $70 a month more than a county that is 40 miles away. The bottom line is that what I am experiencing a lot of other people are going to experience. I am paying a lot more for a lot less. How can that be? When you are told that you get more and you pay less and a politician tells you that, you ought to be very leery. That hasn't worked out in my life: You are going to get a lot more, but you are going to pay less. The reason these premiums are going up is that all the uninsured--and I want to provide coverage to the uninsured as much as anybody else-- get insurance coverage with a subsidy. Who is paying those subsidies? The rest of us. So we are going to see next year employers having to back out of employer-sponsored health care either in total or in part. What we are going to find throughout this country is that people who had employer- sponsored health care, just like the individual markets, their premiums are going to skyrocket--maybe not as much as mine, maybe not 200 percent. The deductibles are going to go up--maybe not as much as mine at $6,000, but everybody in the country doesn't make $176,000. So every Member of Congress should look at what would your life be like if you didn't have a Federal Government subsidy, if you didn't enroll in the DC exchange, if you went back home and had to pick a plan similar to everybody else in your State? You ought to sit down and look at what your individual life would be like. If you just look, you will be shocked. I sure was. This is not about me, even though I am giving you an example about myself. It is about an idea called ObamaCare that is going to destroy health care as we know it in the name of saving it and making it better. I think we all agree we need to reform health care. But I think most Americans believe their old health care system was working pretty good for them, but it could always be made better. So I would ask every Member of Congress, whether you go into your State exchange, if one exists, or not, do the math. You are going to be shocked at how it would affect you. Let me tell you, it is going to affect people you represent in similar fashion. So what do you do? Why don't we just try to sit down and start over and see if we can do better before it is too late? I yield the floor.

Mr. GRAHAM

Mr. GRAHAM. This unusual situation for most Americans works in the military. It may not sound right to most, but it works because the military is about when you are ordered to do something, you answer the order; you don't debate. So if we don't elevate the commander to have the tools available to make the right decisions, and if we don't instill those below the commander to follow, it all breaks down. When a commander lets the troops down--and they do sometimes--fire the commander. Don't take away the authority of the commander to win wars that we will inevitably fight. This is not a civic organization. This is not a democracy. This is a situation where one person can choose to send another person to their death. That person is the commander, and there are plenty of checks and balances. Ladies and gentlemen, sexual assault is a problem. But for God's sake, let's not tell every commander in the military: You are fired. You are morally bankrupt. You are incapable of carrying out the duties of making sure that justice is done in these cases.

Mr. GRAHAM. If you want to improve the system, and we all do--I am not questioning anybody's motives--if a commander knows that when they turn down the JAGS's advice in one of the four situations we have identified--sexual assault, the nature of the discussion here--that decision will be reviewed by the Secretary of the service, I can assure you that will do more good to make sure commanders understand how important this situation is to the country than taking their authority away. We will be doing absolutely the worst possible thing to solve the problem with the approach of Senator Gillibrand, in my view, although every judge advocate agrees with what I am saying. You will throw the military justice system in chaos and basically take the commander's authority away in an irrational way. What we should do is hold the commander more accountable by having what is the commander's worst nightmare--I guess anybody in the military--and that is having the boss look at your homework. How do you get promoted in the military? People over you judge your work product. Let me just say this. It is not a military justice problem here. The reforms we are going to engage in are historic, and they will be the model for systems in the future. Very few people can afford what we are about to impose upon the military because we are going to make this a priority and we are going to assign judge advocates to victims. There is no other State in the Nation that will be able to do that. We will have something of which we can all be proud. We are going to hold commanders more accountable. Here is the essence of the argument: We have to take this out of the chain of command because there is something defective about the commander; because the commander doesn't have the ability or they have a bias against victims, we no longer can trust them to do the right thing. That, to me, is an indictment of every commander in the military. That, quite frankly, is not what we should be doing or saying given the track record of how our military has performed. In the area of sexual assault, the problems we see in the military are all over the country; they are just talked about more in the military. The people in the military should be held to the highest standard, but we will fix no problem in the U.S. military if we deal that commander out.

Mr. GRAHAM. Exactly right. Every military lawyer who has looked at this is very worried about what we are about to do in terms of practical military justice. Imagine being 18 years of age. You have too much to drink and you write a bad check. Part of being a commander and a first sergeant is the paternalistic aspect of the job. How many of us have made mistakes at 18? Instead of going to college, you are going into a military unit. You bounce four or five checks. Has that ever happened? Under this proposed system, the military commander no longer has the ability to deal with it in the unit. He sends that case off to Washington. The ability to give an article 15--a lesser punishment--is taken off the table. So we are taking an 18-year-old's mistake and potentially turning it into a felony. Does that help sexual assaults? Our commanders can send you to your death, but we don't trust them to deal with manslaughter cases? All I can tell you is that for 30 years I have been a practicing military lawyer. From my point of view, our commanders take the responsibility to impose discipline incredibly seriously. They are skilled men and women. We have let the soldiers, sailors, airmen, and marines down when it comes to sexual assault. All of us are to blame in the military. We are going to fix that. But the problem, my colleagues, is not the military justice system. We don't have a military justice system where commanders say to the lawyers: Go to hell; we are not going to deal with that. That is not the way it works. This new proposed system takes a portion of offenses out of the purview of the commander and sends them to somebody in Washington whom nobody in that unit will ever get to see. That will delay justice, and it will take tools off the table to make sure that is an effective fighting force in terms of dealing with the barracks thief, in terms of dealing with the bounced check, but it will also take young people who make mistakes and put them in an arena where the only avenue is to potentially charge them with a felony.

Mr. GRAHAM. Yes.

Mr. GRAHAM. There are situations where joint jurisdiction lies--the military has jurisdiction, the civilian community has jurisdiction. There have been cases where the civilian community went first. There were 49 cases in the Army where the civilian community decided not to prosecute on a sexual assault and the Army took it up and they got an 81-percent conviction rate. In the Marine Corps, 28 cases were turned down by the civilian community where the Marine base was and they went to court with a 57-percent conviction rate. In the Navy and in the Air Force, it is the same. We see a civilian jurisdiction saying no to the case and the military saying yes, we are going to go to court. And that is because there is a difference between what the civilian community is trying to accomplish and what the military community must be trying to accomplish; that is, to let the troops know there is certain conduct that is out of bounds, and if it is even close, you are going to pay a potential price. Having said that, please do not blame sexual assault problems in the military on a broken military justice system because it is not broken. The commanders are not telling the lawyers to take a hike. The cases the lawyers recommend to go to trial actually do go to trial. Juries in the military are not juries of one's peers. This is not a civilian system. Everybody who goes to trial as an enlisted man is judged by officers. You can request one-third of the military jury to be enlisted members, but they will be the most senior people on the base. Please understand that military juries are not constructed the way civilian juries are. They are told to be fair, and they do their best to be fair. But it goes into the concept of how the military works. The only person in the military entitled to a trial of the equivalent rank is an officer. An officer cannot be tried by people of lesser rank. That may sound unfair, but in the military it makes perfect sense, doesn't it? Officers eat in one corner of the base and enlisted people eat in the other corner of the base not because they hate each other. They admire and respect each other. This chain of command, these lines of authority make us--Mr. President, I ask unanimous consent for 1 additional minute.

Mr. GRAHAM. I wish to speak in support of the McCaskill, Ayotte, Fischer, and Levin amendment. Before we begin, I wish to thank Senators Levin, Reed, McCaskill, Ayotte, Fischer, and others who have been trying to carry the burden here to make sure that we reform the military justice system and the way the military operates vis-a-vis sexual assault and misconduct but at the same time make sure we still have a military that can continue to be the most effective fighting force on the planet at a time when we absolutely need it. If one believes, as I do, that our military is the best in the world, we have to ask ourselves why. Is it because of the equipment? We have great equipment. I would argue that the reason our military has become the most effective fighting force in the world is the way we are structured. If one is looking for a democracy, don't look to the military. The military is a hierarchical and paternalistic organization that is focused on meeting the challenges of the Nation, being able to project force at a moment's notice to deter war and, if war ever comes, to decisively end it on our terms. I have been a military lawyer for over 30 years. I have been assigned as a military defense counsel for 2\1/2\ years and a senior military prosecutor in the Air Force for 4\1/2\ years. I have been a military judge, and I have served in the Guard and Reserve, and on Active Duty for 6\1/2\ years. I have learned a lot, as a military lawyer, about the military. To my colleagues who are trying to decide what to do and what is appropriate, the goal should be to make sure that America remains the most effective fighting force on the planet. This is the proposition: They can't be an effective fighting force if they have rampant sexual assault or misconduct within the ranks. This idea that sexual assaults in the military are unacceptable, too large in number and scope--sign me up for that proposition. However, the problems of society don't stop at the gate; they continue inside the fence. I would daresay that if we did surveys in South Carolina, Missouri, New Hampshire, and New York about sexual assault and their frequency, we would all be disturbed. The goal of our time in the Senate is to make sure that when it comes to our military, we turn a corner and create a legal system where people feel that if they file a complaint, they are going to be fairly treated and also a legal system where if one is accused of something, they will be fairly treated. I say to my colleagues, there is a reason that every judge advocate general of all the services has urged us not to adopt Senator Gillibrand's solution to this problem. In the military, it is possible, in my view, to correct a problem without commander buy-in and holding commanders responsible. Military commanders have awesome responsibility and almost absolute liability for the job we give them. It is their job to make sure that all under their command are ready to go into combat, perform their assignment in the most difficult task, make sure that medical records are up to date, and to make sure they are squared away when our Nation needs them. This concept of the authority of the commander goes back to the very beginning of this Nation. Military justice is an essential part of good order and discipline. After 30 years of experience in this area, the number of cases where a judge advocate recommends to a commander to proceed to trial in a sexual assault or, for that matter, almost any other alleged crime is a rounding error. Please don't suggest that under our current system someone can't get a case to trial because our commanders routinely blow off legal advice. That is not the case. Commanders decide as to whether to proceed to a court-martial, and what level of court-martial, based upon advice of the judge advocate community, whose job it is to provide professional advice. The commander's job is to make sure that unit is ready to go to war. The lawyer's job is not to pick and choose who goes into the battle. The lawyer's job is to give that commander the best legal advice possible, including who to court-martial and who not. One thing I hope people understand in this debate is that no lawyer, no judge advocate, is ever going to have to deal with the situation of picking and choosing in that unit who takes the most risk. We have for 200 years allowed commanders the authority, under the Uniform Code of Military Justice since 1952 and before, and the ability to maintain good order and discipline, the absolute responsibility to make sure force is effective when it comes to the fight, and giving them the tools to make sure that happens. What would bother me greatly is if this conversation occurred: Sir or ma'am--depending on who the commander is, as there are more and more female commanders in the military--there was an alleged rape last night, a sexual assault in the barracks last night, and the commander would say: That is no longer my problem. Send that to Washington. Ladies and gentlemen of the Senate, that is the commander's problem. To those commanders who have failed to make sure we have the right climate in the military when it comes to sexual assault, your job is at stake. The military justice system, when it comes to rendering justice, I will put up against any system in your State. The reforms in this bill are going to become the gold standard, I hope, over time, and very few jurisdictions will be able to do what we have been able to do. With thanks to Senators McCaskill, Ayotte, Levin, and others, we have taken a problem in the military and brought a good solution. Every victim will now be assigned a judge advocate to help them through the legal process. I wish that were true in South Carolina, but it is not. Every commander who is advised to go to trial in a sexual assault case and who declines to accept the JAG's, the judge advocate, recommendation, that case is automatically sent up to the Secretary of the service in question. In the future, as commanders have to decide how to deal with sexual assault allegations, when the lawyer tells them: Sir, ma'am, this is a good case, and if for some reason the commander decided: I disagree, that case goes up to the highest member of that civilian service, the Secretary of the Air Force, in the case of my service. This, to me, is a reform that will emphasize from the chain of command how important it is that we take these cases seriously. If we take the chain of command out, this is what we are saying to every commander in the military: You are fired. We, the Senate, have come to conclude that you, the commander--all commanders of the group-- are either intellectually insufficient to do this job or you don't have the temperament or are morally bankrupt. We are going to take away from you this part of being a commander. You are fired. I will never, ever say that unless and until I am convinced that there is no hope for our commanders, that our commanders are hopelessly lost when it comes to these types of issues. I don't believe we are remotely there. In the 1970s we had upheaval throughout the country, particularly in the military. We had race riots on aircraft carriers and tension ran high. How did we fix it? We made sure every commander was held responsible for the atmosphere in their unit when it came to race relations. And now I would daresay the most equal opportunity employer in the whole country is the U.S. military because commanders changed the climate. Under the approach of Senator Gillibrand, we take out a group of military offenses. To the commander: You are fired; you can't do this anymore. And we send these decisions to an 06 judge advocate--which I happen to be one of, by the way--in Washington. I cannot stress to my colleagues enough how ill-conceived that system would be from a military justice point of view and the damage that will be done to the command and to the fighting force if we go down this road. Let me tell you why. A troop is in Afghanistan. There is a larceny. Senator Coons mentioned the workplace. A barracks thief is one of the worst things you can be in the military. A soldier doesn't pick and choose whom they room with; we pick whom they room with. No one gets to decide where they are going to stay; we pick for them. We throw them into the most incredible of conditions, we don't give them the comforts of home, and they have to trust their fellow soldiers in the barracks and in deployment. Soldiers, like everybody else, most are great, some are bad. In the military the bad apples, thank God, are few. Under this construct we are coming up with, if there was a barracks theft case--a tent theft case--in a deployed environment, that really does hurt morale because if you have to worry about somebody stealing your stuff, that is really tough given the conditions under which you are living. So if the commander could not deal with this, it would go all the way to Washington, DC, to be disposed of rather than being disposed of onsite. And why does it need to be disposed of onsite? You need to render justice quickly and effectively so the troops can see what you are doing. If you are the commander, they have to respect you and they have to understand your role. So I cannot understand why the Senate, when we have been at war for 11 or 12 years, would come up with a solution to a problem that is real that does harm to the very concept of what makes our military special-- the ability to go to war, the ability to be effective and to have the commander make decisions that only a commander should be making. I am a military lawyer. I am telling you right now, don't give me this decision, because I am not required to decide who goes to battle. Don't take away from our commanders in a theater of operation the ability to render justice in a way the troops can see.

Mr. GRAHAM. Yes.

Mr. GRAHAM. That is exactly right. A nonjudicial punishment is an authority the commander has to put people in confinement for up to 30 days, reduce in rank one or two levels, depending on the rank of the commander, and to withhold pay. It is nonjudicial punishment. You don't have a trial. The person is represented by a lawyer, but there is no jury. The commander is the jury. The Presiding Officer. The Senator has spoken for 15 minutes.

Mr. GRAHAM. I thank the Chair.

Mr. GRAHAM. He loses that authority.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I have two stories from South Carolina I will quickly share with the body. Scott, from Goose Creek, SC: I am a college professor from Columbia, SC, at a private university. We are up for our insurance open enrollment. I am 35 years old, a vegetarian, never smoked, ridiculously low blood pressure and cholesterol. Obviously, I have nothing in common with Scott. Continuing Scott's story: I noticed the following about my policy: My share of premiums went up by 35 percent to 40 percent. In addition, my actual policy changed. My deductible tripled from $250 to $750. I cannot get regular monthly prescriptions at my pharmacy now. I am sure there are other changes that I have not examined closely enough to notice. Thomas Dougall, from Elgin, SC: After submitting his personal information on healthcare.gov received a phone call from a Mr. Justin Hadley, a North Carolina resident, who informed him that when he signed onto healthcare.gov, he received all of Mr. and Mrs. Dougall's personal information. This is beginning to be a very famous case. There are 572 people who have been enrolled in ObamaCare in the State of South Carolina. ObamaCare care is not working, and I fear it will never work. The best way to fix it is to repeal it and replace it with something that will work. I yield the floor.

Mr. GRAHAM

Mr. GRAHAM. Oh, absolutely, it will create an arms race. There is a positive note here: The Congress itself. The Congress has not been confused. We are more together on this issue than we have ever been. The Congress passed 90 to 1 a resolution rejecting the idea of allowing the Iranians to have a nuclear weapon and trying to contain them. The idea of containing a nuclear-armed Iran is not a good idea. We fear they would share the technology with a terrorist group that would wind its way here to the United States. And Israel believes they could never have a moment of peace with a nuclear-armed Iran. Containment won't work. Secondly, the Congress, 99 to 0, said: If Israel has to defend itself against a nuclear-capable Iran, has to intervene to stop this existential threat to the Jewish state, that we would provide political, economic, and military support. So the Congress has been very much together. The next thing we hope to do is have a resolution, bipartisan in nature, that defines the end game. What are we trying to accomplish? We don't want a war. Nobody wants a war. The idea of the Iranians having a commercial nuclear powerplant is OK with me. Mexico and Canada have commercial nuclear power facilities. They just don't enrich uranium. They buy the product from the world community. They don't have enrichment and reprocessing. I don't mind the Iranians having a nuclear powerplant for commercial purposes as long as the international community controls the fuel cycle. Here is the problem: They are insisting on the right to enrich. And the problem is you can take uranium and enrich it to a certain level for commercial purposes, and with today's technology you can break out and have a nuclear weapon very quickly.

Mr. GRAHAM. If I could respond, I guess the essence of what we are trying to say is we believe Iran is the problem, not the solution, to the Mid East and the world at large. There has been bipartisan support for curtailing and controlling and eventually eliminating the Iranian nuclear program. There has been bipartisan support for our friends in Israel, and we want to keep it that way. We want to make sure Congress speaks with one voice, that we are helpful when we can be, and that we offer criticism at an appropriate time. I guess the concerns we have about this agreement are that it is getting to be more like North Korea in a fashion that makes us all uncomfortable. If you interject billions of dollars into the Iranian economy now, without dismantling the centrifuges, I think you have made a huge mistake. What are we trying to accomplish? We are trying to make sure the Iranians do not have the capability to develop a nuclear weapon. The first question you have to ask: Are they trying to build a nuclear powerplant--a nuclear infrastructure for commercial purposes--or are they trying to create capability to produce a weapon? Trust me on this: Nobody goes about building a commercial nuclear program this way. They are trying to build a nuclear weapon. Why? Because that would give them influence in the region they have never had. It would give Iran a strong standing in the historical Sunni-Shia conflict between the Persians and the Arabs. And as a consequence, it would lead to a nuclear arms race in the Mid East, because the Sunni Arabs are not going to allow the Shia Persians to have a nuclear capability. They also believe, fairly rationally so, if they get a nuclear weapon, the regime is probably home free; that the West is going to back off, much as we did in North Korea. So the decision of how to handle this program is probably the most important decision President Obama will make in his second term and will be one of the most important decisions the world makes for the future of our planet here going into the 21st century.

Mr. GRAHAM. Would the Senator yield? To conclude, why are the Iranians at the table? Because the sanctions are working. The Congress has passed tough sanctions. To the Obama administration's credit, they put together an international coalition--unprecedented in nature--which has gotten the Iranians' attention and we are at the table. The last thing we want to do is relieve the pressure because that is what got them there. There are two things they must understand: Until you abandon your nuclear quest for a bomb and replace it with a reasonable solution for commercial nuclear power aspirations, we will continue sanctions. The threat of military force is also one of the factors that got them to the table. Jay Carney said yesterday: If you push for new sanctions, you are inviting war. I would like to respond. I think the reason we are having a peaceful opportunity moment here is because of the sanctions. If we back off now and infuse billions of dollars into the Iranian economy and leave the centrifuges in place, we are inviting an attack by Israel. If you don't shut down the plutonium heavy water reactor, Israel is not going to sit on the sidelines forever. So to not have a continuation of sanctions until we get the right answer is going to invite more destabilizing in the region. We have to realize that Israel is in a different position than almost anybody else. They are close. The Iranians have talked about wiping them off the map. When it comes to the Jewish people, they don't take that stuff lightly anymore. When they say ``never again,'' they literally mean it. Can you tell the Prime Minister of Israel--given the behavior of the Iranians in the last 30 years--that they are just joking? Can you tell the people of the United States, if the Iranians got a nuclear weapon, they wouldn't share it with a terrorist group to come our way? Name one thing they have produced they haven't shared. So this is a moment of history. This is the biggest decision President Obama will make, and I would like to help him make the right decision. I would like to help the world resolve this problem without a war. But here is the situation we find ourselves in: If we attack Iran to stop their nuclear program if we couldn't get a peaceful ending, we would open Pandora's box. It would be difficult. But if they got a nuclear weapon, it would empty Pandora's box. That is the world in which we live. We have a little time to get this right. I hope we can.

Mr. GRAHAM. Well, I think it is pretty obvious the tensions are growing, and not just with Israel. I believe the Obama administration's eagerness to reach a deal is unnerving to the people in the region, and not just Israel. The Israelis and the Sunni Arabs are being pushed together in an unprecedented fashion. We are hearing out of the Arab community the same concerns as out of the Israeli community. So that is an odd alignment.

Mr. GRAHAM. The concern the Israelis have, and that my colleague and I have, is the number of centrifuges available to the Iranians is into the tens of thousands now, pushing from 18 to 24,000. Who really knows. But the advanced centrifuges we are talking about can take 3.5-percent enriched uranium and go to 90 percent to get a weapon in just a matter of weeks, if not months. So here is the rub: I think Congress will speak with one voice. We don't mind a commercial capability for the Iranians as long as you control the fuel cycle. As to the previously enriched uranium, particularly the 20 percent stockpile, turn it over to the international community. That is the U.N. position. Stop enriching. There is no right to enrich. At the end of the day, this plutonium heavy water reactor that you are building is a threat to Israel beyond belief. Dismantle that reactor. You don't need a heavy water plutonium- producing reactor to engage in commercial power production. These are what we would like to let the administration know would be a successful outcome regarding the Congress. They actually mirror the U.N. resolutions. I am hopeful we can find a way to end the nuclear program in Iran which would be a win-win situation for the Iranians and the world at large. But what we can't afford to do is get it wrong with Iran. These negotiations, the interim agreement, as Senator McCain stated so well, sent chills up the spine of almost everybody in the region. So if the Iranians insist upon enriching, to have the ability to take the uranium and enrich it in the future, I think is a nonstarter. That would be incredibly dangerous, and we will wake up one day with a North Korea in the Middle East. If the Iranians get a nuclear weapon, it will be far more destabilizing than North Korea having a nuclear weapon on the Korean Peninsula. It will open Pandora's box. I am hopeful the administration will go into the next round of negotiations eyes wide open, understanding where the American people and the international community are and the people in the region and if we get a deal, it is a good deal. But what is a good deal? To make sure the Iranians can have a peaceful nuclear power program but can't get a bomb. The only way they can get a bomb is to have enrichment capability as part of an agreement. Mexico, Canada, and 15 other nations have nuclear powerplants for commercial purposes, but they don't insist on enriching uranium to provide the fuel. If they insist on enriching, that tells us all we need to know about what their true intent is. I thank Senator McCain for bringing his voice.

Mr. GRAHAM

Mr. GRAHAM. I ask unanimous consent for 1 more minute.

Mr. GRAHAM. Can the Senator from New Hampshire tell us a little bit about this individual called al-Libi? Why do we believe he would be such a treasure trove? What is his background? How long has he been involved in Al Qaeda? And what have we missed here? What opportunities have we lost by only holding him as an enemy combatant for less than 2 weeks?

Mr. GRAHAM. We believe he was in Libya before the attack on our consulate in Benghazi, right?