AUSTIN, Texas (May 8, 2015) – A Texas bill that would make indefinite detention, as purportedly authorized by the 2012 National Defense Authorization Act (NDAA), a criminal act – passed through a state House committee last week.
Introduced by Rep. Lyle Larson (R-San Antonio), House Bill 165 (HB165), the Texas Liberty Preservation Act, declares unconstitutional three powers claimed by the 2012 NDAA, still in effect today:
- Indefinite detention
- Prosecution by military tribunals under the law of war for persons apprehended within the United States, and
- Transfer of persons apprehended within the United States to foreign jurisdictions
The bill passed through the House State & Federal Power & Responsibility, Select Committee successfully on April 30 with a 4-2 vote. The bill must now pass through the House Calendars Committee before it can receive a vote in the full state House.
In addition, HB165 declares indefinite detention powers to be “inimical to liberty” and a violation of both the state and federal constitutions. It reads, in part:
Sections 1021 and 1022 of the National Defense Authorization Act for Fiscal Year 2012… are inimical to the liberty, security, and well-being of the citizens of the State of Texas by violating:
(A) the Texas Constitution;
(B) the limits of federal power authorized by Article I, Section 8, United States Constitution;
(C) the legal doctrine of Posse Comitatus under 18 U.S.C. Section 1385 by authorizing the armed forces of the United States to police the United States;
REFUSING MATERIAL SUPPORT
As with similar legislation passed in other states, the bill requires full noncompliance with the federal act:
It is the policy of this state to refuse to provide material support for or to participate in any way with the implementation within this state of Sections 1021 and 1022 of the National Defense Authorization Act for Fiscal Year 2012… or Section 1071(a) of the National Defense Authorization Act for Fiscal Year 2014… Any act to enforce or attempt to enforce those laws is in violation of this subchapter.
By refusing to participate, provide material support, or even help the federal government carry out such acts, this by itself will create important roadblocks for federal implementation.
Most federal raids or enforcement actions are a “partnership” between federal and state agencies, with the majority of “boots on the ground” being state or local law enforcement. Should HB165 pass into law, this section would prohibit such local participation in direct enforcement actions. And since the legislation uses the phrase “material support,” it would reach even further.
The original definition of “material support” included providing tangible support such as money, goods, and materials and also less concrete support, such as “personnel” and “training.” Section 805 of the PATRIOT Act expanded the definition to include “expert advice or assistance.”
In practice, that would mean a prohibition on things like providing cover, sharing location information, allowing the use of local jails or other facilities for holding or interrogation, or even providing personnel to direct traffic or clear roads to make way for the operation.
In the 1850s, Northern States used this method to effectively nullify in practice indefinite detention and rendition of people who escaped Southern slavery and made it to the North. Some states prohibited the use of state or local jails for holding an accused fugitive slave, while others provided for the removal of any state official who aided the federal government in the return of runaway slaves.
While the prohibition on material support or participation would make it extremely difficult for the federal government to carry out indefinite detention in Texas, HB165 takes it a step further, including criminal charges of up to 1 year in prison and $10,000 in fines for violating the act:
A person who is an official or employee of the United States commits an offense if the person enforces or attempts to enforce a statute, a rule or regulation, an order, or any law of the United States in violation of [HB165]…
An offense… is a Class A misdemeanor punishable by confinement for a term not to exceed one year, a fine of not more than $10,000, or both the confinement and the fine.
“Including criminal charges for federal agents might sound like a good idea in theory, and morally right, but they’re actually harmful,” said Tenth Amendment Center communications director Mike Maharrey. “Recognizing that there is a zero percent chance that the establishment leadership in the Texas House and Senate would send such a bill to the Governor, keeping that provision in the bill only guarantees the status quo instead of taking a potentially smaller, but still important step forward.”
Inside sources close to the Tenth Amendment Center suggest that establishment House leadership is already balking at the provisions criminalizing federal agents, and may be working to get a floor amendment to remove this portion of the bill. Source are also suggesting that because of the penalty provisions, Speaker Strauss is taking action to keep the bill from ever getting through the Calendar committee and to the House floor for a debate.
In 2013, Larson introduced a similar bill, HB149, that was never given a House vote for the same reason. Since the makeup of the House leadership has had no significant change since then, insiders expect the same fate without amendment.
“As we learned from the heroic resistance of Northern states to the Fugitive Slave Act, noncompliance and strategic resistance can have a powerful effect on federal kidnapping and rendition,” said Maharrey. “Including provisions that guarantee the bill’s failure is nothing more than lip service that does nothing to protect Texans from this unconstitutional federal act.”
Either way, supporters say that the bill faces an uphill battle, but strong grassroots pressure is likely to pressure leadership to at least give the bill a floor debate and vote.
Maharrey suggested that whatever the end result, committee passage was positive. “While I hope that the bill’s supporters in the House will make a good strategic choice, the fact that this bill is up for consideration is a positive thing,” he said. “The fact of the matter is this: Indefinite detention and rendition are wildly unconstitutional and need to be rejected, refused and resisted in every way possible.”
Additional reporting by ShaneTrejo
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