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Irvine: Reid Must Block Militarization of Justice System

Tucked into the sizable fiscal 2012 defense bill are stealth provisions that, taken together, represent the most radical change of American counterterrorism policy since 9/11.

These policies will not make us safer. They will undermine our national security and make the United States a very different country than the city on the hill that American leaders such as President John F. Kennedy and President Ronald Reagan both exhorted it to be.

Thankfully, Senate Majority Leader Harry Reid (D-Nev.) took the courageous and unprecedented step of vowing to block the bill because of these abhorrent provisions. He should be applauded for it.

One provision would allow the government to hold suspects indefinitely, in a military brig or at Guantánamo, without bringing criminal charges against them. These suspects could include anyone the government claims is a force “associated” with al-Qaida or the Taliban. There is no definition, however, of who or what qualifies as “associated forces.”

The proposed defense spending bill would also authorize the indefinite detention without charge of American citizens apprehended on U.S. soil if “permitted by the Constitution.”

Marbury v. Madison tells us that it is the job of the courts to “say what the law is,” meaning this provision could be an open invitation to revisit and interpret anew the traditional protections of the Fifth and Sixth amendments. The last thing we need is for our soldiers to patrol the streets to nab suspicious folk.

The push to militarize our system of justice may spring from a distrust of presumably squishy judges or an assumption that the nation must wage a military war on terror.

I can assure you that the military does many things well, but substituting for law enforcement or the judiciary in criminal cases is not one of them.

The federal courts’ success rate speaks for itself. In dealing with terrorist defendants, federal courts have convicted more than 400 accused terrorists in the past decade.

Arguably, one of the most remarkable achievements in world history is the American judicial system. In this struggle for hearts and minds, why would we suggest to the world that our time-tested justice system doesn’t work?

Worse yet, why bolster the claims of tyrants that their tools — military tribunals and imprisonment without criminal charges — are, indeed, a society’s only sure protection?

Reagan described the United States as a “beacon” and as “a tall proud city built on rocks stronger than oceans, wind-swept, God-blessed, and teeming with people of all kinds living in harmony and peace, a city with free ports that hummed with commerce and creativity, and if there had to be city walls, the walls had doors and the doors were open to anyone with the will and the heart to get here.”

Funding national defense is a priority, but that imperative should not become an excuse to close our doors on the world with major policy shifts that could change the character of the country in ways that are antithetical to our values and our national sense of who we are.

Let’s hope that the rest of the Senate follows Reid’s lead in standing up for these values. We should be the land of the free, not the home of the terrified.

Brig. Gen. David R. Irvine taught prisoner of war interrogation and military law at the Sixth U.S. Army Intelligence School. He retired in 2002. He is now a lawyer in Salt Lake City.

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