On Monday night, October 7th, the Common Council in the city of Albany, New York passed Resolution 80.92.13 against indefinite military detention.  The vote was 11-0 with 4 members not present.

The resolution was supported by a broad coalition of organizations led by People Against the NDAA (P.A.N.D.A).  Other organizations in support included the Bill of Rights Defense Committee, the Capitol Region ACLU chapter, and others.  The broad coalition behind the resolution was reminiscent of the coalition behind the passage of AB351 in California – the new law which is a first step towards nullification of indefinite detention in that state.

While the Albany resolution is non-binding and will have zero practical effect on the activities of the City, its agents or employees – or on the actions of the federal government should it decide to try to indefinitely detain a person within that city – it is still an important first step towards nullifying such federal powers in the City of Albany.    The language of the resolution is broad, and makes clear that the council is taking a position to oppose indefinite detention under NDAA – and much more.  Here’s an excerpt:

the Common Council of the City of Albany acting in the spirit and history of our community, does hereby declare that we:

Strongly affirm our loyalty to the rights and liberties enshrined within the Constitution of the United States, including the Fifth Amendment right to due process and the Sixth Amendment right to trial;

Recognize that the City of Albany is not a “battlefield,” and its citizens and constitutionally-protected persons are not currently subject to “detention under the law of war”;

Expect all federal and state law enforcement officials acting within the City of Albany to work in accordance with the Constitution of the United States, and in cooperation with the Albany Police Department, by assuring that any person subject to detention be afforded access to a trial, counsel and due process, including under the Fourth, Fifth, and Sixth Amendments to the Constitution and Article III thereof;

RESOLUTION = OPINION, NO FORCE OF LAW.

PANDA founder Dan Johnson quickly sent out a press release celebrating the victory in passing the resolution. It was and is a victory, but Johnson’s claims on what the resolution will do in practice are inaccurate. He said:

Resolution 80.92.13 recognizes the application of the Law of War to residents/citizens of Albany to be unConstitutional. Now that they know this is unConstitutional, every peace officer, elected official, or other person who takes an Oath to the U.S. Constitution in the City of Albany is required to interpose against those attempting to implement military detention or the “law of war” in Albany.

Certainly, a constitutionalist would hope that peace officers, under their Oath to the Constitution, would agree with such a view in principle. But, unfortunately, claiming that a non-binding resolution expressing a Council opinion would have the effect of legally causing all who take an Oath to “know this is unConstitutional” is a stretch, at best. In order to change the policy and actions of the Albany Police department, specific legal mechanisms (or a lot of one-on-one education of peace officers) will be required.

Councilman Anton Konev introduced the resolution with a goal of standing “up for the rights of the people of the city of Albany.”  While he acknowledged in a tweet that the resolution doesn’t hold the force of law, in an interview with Tenth Amendment Center team member Tim Wade, he indicated that the resolution would be the first step, and that he hoped a formal, legally-binding ban indefinite detention would follow in the future.  

Regarding a requirement for local peace officers and elected officials to physically interpose against indefinite detention and block the federal government from doing it in Albany, Konev said, “It could be the basis for the start of such actions.”  Konev shared his goal that he hopes “more city councils will follow,” and that this could lead to stronger steps in the future too.  What’s next? Konev also said he hopes this will help “push nullification legislation from the state.”

Resolution co-sponsor Dominick Calsolaro held much the same view. He said, “I do not read the resolution as “interposing” on elected officials or the APD. The actual affect, in my opinion, is/was to send a message to our federal representatives that we believe the sections of the NDAA relating to indefinite incarceration are unconstitutional and should be repealed by Congress.”

NEW YORK: HOME RULE

New York is a “home rule” state. This means that localities can enact laws in their jurisdiction that hold the same force as an act of the state assembly. The levels of legal actions by local governments, in order of legal force, are local law and ordinance, and then other actions such as resolutions, rules and regulations.

“Local laws” hold the highest legal force, according to published guidelines on home rule from the State of New York:

A valid local law has status equivalent with a law enacted by the Legislature. A local law has the quality that it may be inconsistent with a law enacted by the Legislature and may amend, supersede or repeal such a law, providing, of course, that the State law is not a general law, or that the Legislature has not restricted the local law power on a particular subject.

A local law may be viewed as a form of municipal legislation which is superior to the older forms of municipal legislation by ordinance, resolution, rule or regulation, because the local law power is granted by the State Constitution, and is not a strictly delegated power from the State Legislature

Anything other than local laws or ordinances hold the force of law in only very limited and specific instances. Resolutions about local policy regarding federal acts are not among them.

The courts have recognized the difference between a local law and an ordinance, resolution or other similar act of a legislative body, not only in form but also in substance.

Bob Amber, a spokesman for the office of Mayor Gerald Jennings, confirmed with Wade that the resolution passed was a recommendation from the council, and was “non binding.” He said, “It’s more like a symbolic gesture, so the only legislation that is binding in the terms of becoming law in the city would be an ordinance, so what this is in essence sir, is simply a recommendation that the common council feels that this would be a worth while thing for the people to consider. It has no enforcement powers.”

The City of Albany’s official counsel told us the same, “Resolutions do not hold the force of law. City laws are in the form of ordinances and local laws.” A call to the Albany Police Department for comment was not returned.

AN IMPORTANT FIRST STEP

This is not to say that the resolution was pointless, a bad step, or dangerous – none of these are true. In fact, the resolution is an important part of a strategy to resist federal acts on a state and local level. This strategy was recommended by none-other than the “Father of the Constitution” himself, James Madison.

Madison wrote in Federalist #46 that the people in their states have “means powerful and at hand” to oppose federal acts. Those included 4 actions:

1. Repugnance of the people – vocal opposition and protest
2. Frowns of the executive magistracy – the governor speaking out against federal acts
3. A Refusal to cooperate with officers of the Union – the people standing down and not participating with federal acts they oppose
4. Legislative devices – such as resolutions, laws, ordinances, and the like.

Madison believed that it would take multiple full states and the full range of actions to successfully resist federal acts, whether unconstitutional or merely “unpopular.” But, he considered this kind of state and local resistance to be extremely effective. He said it would “present obstructions which the federal government would be hardly willing to encounter.” (read more here)

In order to render federal indefinite detention powers null and void, it’s going to take actions like these in Albany, and those previously passed on a state-level in Virginia, Alaska, and California (all three states have passed laws fulfilling step 3 of Madison’s 4-step plan).

COALITION, STRENGTH, NEXT STEPS

Bill of Rights Defense Committee spokesperson Adwoa Masozi noted that one of the greatest strengths of the resolution was the coalition which supported it. “It’s an inspiring reflection of transpartisan concern about fundamental due process issues that unite our divided country across partisan and demographic lines. And as the capital of a key state, Albany’s initiative in raising its voice as a community sends an important signal to the state legislature, and other cities around the country.”

It is this coalition strength which will be needed to take things to the next level.

While, unfortunately, the new Albany resolution does not “ban indefinite detention” in that city as PANDA has been claiming, it is an important piece of the overall puzzle of resistance to that unconstitutional federal act. Kudos to PANDA for leading the effort to resist locally. May they continue to have success in other locations!

The resolution should be seen as a first step, not the last one.

This advice from Samuel Adams probably sums it up best:

“Instead of sitting down satisfied with the efforts we have already made, which is the wish of our enemies, the necessity of the times, more than ever, calls for our utmost circumspection, deliberation, fortitude, and perseverance.”

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