California Governor Jerry Brown signed into law legislation this week that defies the Federal government’s ability to detain that State’s citizens indefinitely under provisions in the 2012 National Defense Authorization Act if they are identified as terror suspects by Federal authorities.
The passage of the law, which passed the State legislature with wild popularity, is similar to laws passed in other U.S. States nullifying the Federal assertion that government has the right to detain American citizens without charge or trial. The California law, authored by Assemblyman Tim Donnelly (R-Twin Peaks), prohibits State and local agencies from aiding an agency of the armed forces of the United States in any investigation, prosecution or detention of a person within California pursuant to Sections 1021 and 1022 of the NDAA in violation of the U.S. Constitution, the California Constitution or any California law. It also prohibits the use of State funds or assets in any such case.
Section 1021 and 1022 gives the President the power to lock up American citizens indefinitely without trial through the military.
“I am proud of the broad-based support that this proposal has received, and encouraged to see so many legislators standing together to protect Californians’ Constitutional liberties against the unconstitutional provisions of the National Defense Authorization Act,” Donnelly said when his bill when it was passed by the State Senate earlier this year.
Donnelly is one of many people who believe that the very idea of allowing the Federal government indefinite detention powers is an affront to the most basic of the Nation’s founding principles.
“Our nation’s legal system, as established by our founding documents, provides the strong protections for the individual who has been accused of crimes, including the right of habeas corpus, the right to due process, the right to a speedy and public trial, and the right to be informed of criminal charges brought against him or her,” Donnelly said. “These rights form the basis of the relationship between individuals and government, and shouldn’t be violated merely because the federal government finds them to be an impediment.”
The Tenth Amendment Center, which has been at the forefront of efforts to undo the NDAA’s indefinite detention provision through a process known as nullification, says that California’s new law is one of the strongest pieces of anti-NDAA legislation passed in the Nation to date.
The right to nullify Federal laws is granted in the Constitution’s 10th Amendment, which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
The Tenth Amendment Center largely credits James Madison and Thomas Jefferson with laying the groundwork for nullification activists.
From the organization’s website:
James Madison, known as the Father of the Constitution, gave us a blueprint for stopping federal overreach. In Federalist 46, he argued that a “refusal to comply with officers of the Union” along with other actions at the state and local level would create a situation where the federal government would have an almost impossible time enforcing their acts. When several states join together and do the same, Madison said it would “present obstructions which the federal government would hardly be willing to encounter.”
In the Virginia Resolutions of 1798, Madison wrote that “in case of a deliberate, palpable, and dangerous exercise” of power by the federal government, states “have the right, and are in duty bound, to interpose for arresting the progress of the evil.” Thomas Jefferson, in the Kentucky Resolutions of 1798, wrote that “where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy”
“that every State has a natural right in cases not within the compact to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them”
So far, according to the Tenth Amendment Center, California, Virginia and Alaska are the only States to have completely passed legislation which nullifies NDAA’s indefinite detention provision. South Carolina and Michigan have both passed legislation to nullify indefinite detention in their respective State Senates, and legislation to do so has been introduced in Washington, Kansas, Pennsylvania and Rhode Island.
If your State legislature hasn’t taken up the issue, model legislation to nullify indefinite detention can be located here.