Yesterday, the Kansas State House Corrections Committee held a hearing on HB2161, a bill to block the federal government from carrying out “Indefinite Detention” as passed into law under the NDAA, or any other such unconstitutional federal “law.” (get details on the bill here)
The committee was sharply divided on the bill, and no vote was held. But, chair John Rubin – the one person who has the power to decide the fate of the bill – told The Topeka Capital-Journal that “the bill will not likely move forward.”
Inside sources tell us that Rubin is willing to let the bill move forward and go through the process, but it’s going to take considerable grassroots outreach to him to make that happen.
If you are in Kansas and you support not only due process, but the basis of the Constitution itself, the time to act is now. Please take the following steps to support this bill. Additional information and talking points follow as well.
Note: It’s a good step to make calls over the weekend as well. Leave a message so their offices know first thing on Monday AM that a large number of people support HB2161. In your voicemail, make sure to ask that they call you back so that you can speak to the representative or staff directly.
1. Call John Rubin, committee chair. Very politely, but strongly, let Chairman Rubin know that you want him to allow this bill to have a vote. You want to see it get to the full house for discussion and debate. Let him know that a federal court has already struck down these federal “indefinite detention” provisions. And while the case is on a long appeal process, the state of Kansas has strong Constitutional and legal footing to pass HB2161. (more details below)
Phone: 785 296-7690
2. Call the rest of the committee members. Let them know, respectfully, that you will accept nothing less than voting YES for Due Process, voting YES for the Constitution – that means voting YES on HB2161.
Ramon Gonzalez, vice-chair
Phone: 785 296-7500
Gail Finney, ranking minority member
Phone: 785 296-7648
Steven Becker 785 296-7196
Rob Bruchman 785 296-7644
Larry Campbell 785 296-7632
Blaine Finch 785 296-7655
Brett Hildabrand, bill author
Melanie Meier 785 296-7650
Robert Montgomery 785 296-7677
Tom Moxley 785 296-7689
Janice Pauls 785 296-7657
James Todd 785 296-7695
3. Report back on any responses you get. Post them in the comments below. Or post them in the Nullify NDAA Kansas group. http://www.facebook.com/groups/nullifyndaakansas/
4. Share this information widely. Don’t just ask your friends and family to do the same. Contact every grassroots group you know in the state. Ask them to send this information out to their members and supporters by email. It’s important to generate a tidal wave of support.
The following are a few of the key statements in opposition to HB2161, and some short rebuttals.
1. “There are more warrantless arrests than there are arrests on warrant. A warrantless arrest is based upon observations by law enforcement, the perpetrator is cuffed & stuffed. He is detained without charges. It happens many times over, every day. Eventually charges must be filed or the arrestee must be released, but he is still detained a period of time without charges filed.”
RESPONSE: This is completely A non-issue. A lawful arrested based on probable cause, but without a warrant, is not the INDEFINITE detention this bill concerns. Such a person must be charged and arraigned before a judge forthwith (or given a citation to appear). Incarceration pending charge is not implicated by this proposed law.
2. “If a state law purports to do something that conflicts with federal law, then under the Supremacy Clause and Supreme Court precedents, federal law always prevails” (via Stephen McAllister, KU Con-Law Professor)
RESPONSE: First, the Supremacy Clause is clear – only those federal laws made “in pursuance of” the Constitution are the supreme. Not just any old congressional act. (DETAILS HERE) Think of it this way: If Congress passed a law requiring everyone to attend a religious service every Thursday afternoon, there’d likely be no public support for such an act being constitutional, even if the Supreme Court found a way to rule as such. Why? Because the Constitution prohibits such action, and it doesn’t matter what congress or the courts say, the Constitution is the supreme law of the land.
The same goes for this situation that HB2161 is addressing in Kansas. The federal government has absolutely zero constitutional authority to arrest you and put you in prison without allowing you access to a lawyer, to the outside world in any way, or to even have a day in court. That power does not exist. Period.
On top of it, the KU Law Professor should be aware that a case about indefinite detention is still being heard in court. And, Federal Judge Katherine Forrest struck down these indefinite detention powers as unconstitutional. The case is currently on appeal but not decided. So, for McAllister to make a blanket assumption that HB2161 wouldn’t survive constitutional muster when the courts haven’t even decided the case is either uninformed or simply partisan.
Furthermore, when asked by Judge Forrest if the federal government was using indefinite detention in violation of her order blocking it, Barack Obama’s attorneys refused to confirm, leaving the door open that the Feds were potentially using this power in secret, even in outright defiance of the federal courts.
Because of all this, and more, Kansas stands on strong ground to reject a federal power which has already been struck down in federal court and is still pending appeal.
The Kansas legislature should pass HB2161 with full confidence. If, at a future date, the ruling which already struck down these indefinite detention powers as unconstitutional is overturned, then the Kansas legislature can reconsider or hold firm at that point.
3. Paragraph (a)(1) makes indefinite detention without trial unlawful. Is pretrial incarceration unlawful if no one knows when it will proceed to trial? What if trial is 2 years after arrest?
RESPONSE: Pre-trial incarceration is allowed only by order of a judge. Moreover, every State has speedy trial laws/constitutional requirements. Almost all the time the DEFENDANT waives this speedy trial requirement to allow the defense team time to prepare. The Prosecution is also able to seek continuances to prepare, but these are closely monitored, and if there is undue prosecutorial delay, the charges are dismissed. All of this occurs under the watchful eye of the Judiciary. Indefinite detention with extremely limited due process and no speedy trial guarantees (and essentially no right to a civilian trial) is far different. Pre-trial incarceration is not implicated by this law.
4. Paragraph (e) is very confusing. If a person commits the elements of this crime is he guilty of Unlawful Denial of Due Process of Law, Kidnapping or Aggravated Kidnapping? All three? Which crime should be charged?
RESPONSE: These are fact-specific determination to be made by prosecuting authority.