A Georgia house bill would take the first step in prohibiting the state from cooperating with any federal efforts to detain people in Georgia indefinitely without due process under provisions of the 2012 National Defense Authorization Act.
House Bill 74 (HB74) was introduced on Jan. 15 by State Reps. Scot Turner (R-21), David Stover (R-71), Steve Tarvin (R-2), Jason Spencer (R-180), Michael Caldwell (R-20) and Kevin Cooke (R-16). It would prohibit any state agency in Georgia from cooperating with the U.S. armed forces if they attempt to indefinitely detain a U.S. citizen without due process.
The bill states the following:
No agency of this state, no political subdivision of this state, no employee of any agency of this state or any political subdivision of this state acting in his or her official capacity, and no member of the Georgia National Guard on active state service shall aid an agency of the armed forces of the United States in any investigation, prosecution, or detention of any person pursuant to Section 1021 of the federal National Defense Authorization Act for Fiscal Year 2012, if such aid would place that state agency, political subdivision, employee, or member of the Georgia National Guard in violation of the United States Constitution, the Constitution of this state, or any law of this state.
HB74 would serve as the first step, but activists would still need to continue pressing the issue because the bill does not completely protect Georgia residents from the ravages of indefinite detention. By including a caveat – “if such aid would place that state agency, political subdivision, employee, or member of the Georgia National Guard in violation of the United States Constitution, the Constitution of this state, or any law of this state” – the bill is not an express prohibition. Rather, since no official determination has been made on the constitutionality of sections 1021 and 1022 of the 2012 NDAA as of yet, it leaves the decision of constitutionality to discretion.Who makes that decision remains unclear and ambiguous.
As written, the legislation would need followup defining what specific indefinite detention actions are considered unconstitutional to be truly effective. The best fix would be to remove that language completely and simply prohibit any state cooperation with indefinite detention.
“Even if some court rubber stamps federal kidnapping as Constitutional, that doesn’t make it so,” Tenth Amendment Center national communications director Mike Maharrey said. “The state doesn’t have to cooperate with indefinite detention, regardless of constitutionality. Under the anti-commandeering doctrine, the state doesn’t have any obligation to help at all, and it absolutely shouldn’t.”
Similar to HB74, a Virginia bill passed in 2013 started with this first step. And this year, Virginia HB2144 starts the process of step two. It would force the feds to provide notice and request permission from local law enforcement before going through with indefinite detention policies authorized under the NDAA. If the feds disobey the terms specified under the bill, lucrative contracts between the feds and the state of Virginia can be rendered null and void. These are provisions that Georgia will need to push forward with should HB74 pass into law.
Maharrey calls HB74 a great potential first step, but would leave more work on the table in Georgia to fully nullify indefinite detention.
“This is a great step forward in protecting the basic due process rights of people in Georgia and gives activists there something to build on,” he said. “Moving forward, I would love to see HB74 expanded in two ways. First, I would like to see it include protection for all people, not just U.S. citizens. After all, every person has a right to basic due process, no matter who they are or where they are from. Second, I would like to see a bill expanding the ban on cooperation to any future federal law or regulation that purports to allow indefinite detention. No federal act can justify kidnapping. None.”
By denying cooperation with certain provisions written into the NDAA, HB74 would make it more difficult for the feds to indefinitely detain somebody in that state. The federal government almost always depends on state and local cooperation. This bill would strip that away. As Judge Andrew Napolitano said, such widespread noncompliance can make a federal law “nearly impossible to enforce” (video here).
HB74 would create a climate for each local community in the state – counties, cities, towns, etc – to step up and get involved. To give the bill teeth, activists must take action at a local level – to press their local governments to pass legally-binding ordinances to give additional force to this proposed measure. The local legislation would do the following:
a) Express full support for HB74, and express support for further measures to be taken in the legislature down the line similar to what has been proposed with HB2144 in Virginia.
b) Create an express prohibition on the use of any local government assets – funds, employees, and the like – to provide material support for or participate in any way with federal indefinite detention.
Once the state is blanketed with localities which have passed such measures, the practical effect would be even stronger than if HB74 had ordered them to do the same. Reaching this point would mean that support for the effort would be well into the mainstream around the state, and that resolve to ensure the resistance continues to victory is likely much stronger.
ACTION ITEMS
For Georgia: Support this bill by following all the action steps at THIS LINK.
For other states: Take steps to fight back against NDAA indefinite detention HERE.
