The following was submitted to the Colorado House Committee on State, Veterans, & Military Affairs  in support of HB13-1045. The legislation would block federal indefinite detention without due process in Colorado. The committee passed the bill on 02-17-13 by a 7-4 vote. It will now go to the full Colorado state house for debate and vote as well.

The Tenth Amendment Center began championing state interposition to block federal kidnapping powers written in the National Defense Authorization Act of 2012 soon after its passage.

Now, some people will accuse me of hyperbole when I use the term “kidnapping.” But what else do you call it when a person, or group of people, drags somebody away against their will without any charges, without any due process, and locks them up? We call that kidnapping, and it doesn’t become acceptable simply because agents in government uniforms carry out the act.

When Congress passed the Sedition Act making it a crime to criticize the federal government, and President John Adams signed it into law in 1798, James Madison argued that “in case of a deliberate, palpable, and dangerous exercise of other powers” not granted by the Constitution, the states “have the right, and are in duty bound, to interpose for arresting the progress of the evil.”

What can be more evil than denying a person on American soil basic due process rights on the mere accusation of the president or one of his agents and locking them up without charges until the end of a war with no defined ending?

Notice the language Madison used. He didn’t say, “You might want to consider stepping in.” He didn’t say it would be a good idea if maybe you do something. No. He said it is your duty.

Today, you have the opportunity to stand proudly among some of the greatest state legislators in the history of the Republic. In the 1850s, northern state Senators and Representatives stood up for the due process rights of their black citizens and passed Personal Liberty Laws, blocking implementation of the Fugitive Slave Act of 1850.

This act counts among the most evil pieces of legislation in American history. The Fugitive Slave Act of 1850 made a farce of due process, allowing for the arrest of a suspected runaway slave based on the word of the “property owner.” He simply had to swear an affidavit attesting to his “ownership” of the person in question, and he was allowed to drag that man or woman back South into slavery. The accused wasn’t even allowed to present evidence in his own defense. The act was meant to protect the “property” of slave holders, but many free blacks found themselves accused of escaping slavery and faced the prospect of living out their life on a plantation. And northerners understood that even an accused runaway should remain innocent until proven guilty, and enjoy basic due process rights.

Instead of simply submitting to federal authority and quietly participating in constitutionally dubious and morally repugnant fugitive-slave roundups, northern lawmakers aggressively resisted the fugitive slave acts. Officials in these states did everything within their power to thwart enforcement, including denying federal agents the use of jails, and even impeaching state officials who lent support to fugitive-slave claimants. The Michigan legislature passed a law guaranteeing habeas corpus rights and a jury trial to any accused runaway, all in defiance of federal “law.”

Does this sound familiar?

Indefinite detention provisions written into the NDAA are no-less disgusting than the Fugitive Slave Acts. In fact, they aren’t very different.

Those northern legislators recognized that they had a moral and constitutional duty to stop unwarranted federal overreach. They understood their obligation to step in and act on behalf of the people they represented. And they did their duty courageously.

Will you follow in their footsteps?

“Find out just what the people will submit to and you have found out the exact amount of injustice and wrong which will be imposed upon them.” – Frederick Douglass

Mike Maharrey

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