PHOENIX, Ariz. (Feb. 29, 2016) – Today, the Arizona Senate passed a bill that would take a big step toward nullifying indefinite detention under the National Defense Authorization Act (NDAA) of 2012, and other federal laws which claim to authorize using the laws of war domestically.
Introduced by State Sen. Judy Burges, Senate Bill 1437 (SB1437) declares any attempts to use of the laws of war in the state of Arizona to be unconstitutional. This directly addresses various powers assumed by the federal government in recent years, including indefinite detention, assassination and rendition. Titled the Liberty Preservation Act, the bill reads, in part:
It is unconstitutional and unlawful for any person to:
1. Arrest or capture any person in this state or any citizen of this state within the United States with the intent of detention under the law of war.
2. Actually subject a person in this state or any citizen of this state to disposition under the law of war.
3. Execute any person in this state or any citizen of this state within the United States without judicial sentencing after trial and conviction in a court ordained and established under Article III of the United States Constitution or under the Constitution of Arizona.
Passage into law would ban the state of Arizona from assisting the federal government with the indefinite detention of anyone within the state. Most prominent are sections 1021 and 1022 of the 2012 National Defense Authorization Act (NDAA), still in effect today. The federal government cites these sections, along with other war powers, such as the Authorization to Use Military Force (AUMF) as authority to detain alleged “terrorists” indefinitely. People detained under these powers have no trial, no access to an attorney, and virtually no recourse. (learn more here)
The bill also addresses execution without due process, another power of war claimed by the executive branch. In 2013, Mediaite reported that Judge Andrew Napolitano discussed both the unconstitutional nature of the “targeted assassination” program, and the potential to use it domestically.
Asked whether the administration’s argument in favor of their policy can lead to a “slippery slope” for future expansions of executive authority, Napolitano said, “This power used today against an unpopular target might be used in the future by another president against a person the president doesn’t like but as to whom there’s no moral justification for pursuing whatsoever.”
“Another concern,” he explained, “is that this 16-page white paper is written so vaguely that the logic from it could actually be extrapolated to permit the president to kill Americans here in the United States.” The outspoken libertarian added that Congress should be concerned the president is able to ramp up portions of the War on Terror without asking for the legislature’s consent.”
Asked whether it’s possible an administration could use this targeted assassination justification to strike American citizens at home, Napolitano brought up a “terrifying” memo from Homeland Security Secretary Janet Napolitano (no relation), in which — according to the Fox analyst — she declared that certain people “who are pro-life, people who believe in the right to keep and bear arms, returning veterans, people who think the government is too big and the IRS is too powerful could be characterized as ‘domestic terrorists.’”
Any person attempting to indefinitely detain or execute a person in violation of the state law would be “subject to prosecution pursuant to Title 13 or any other applicable law.”
On Friday, the Senate Committee of the Whole recommended “do pass,” an important last step before final approval in the Senate. Today, the full Senate passed it by a vote of 18-12.
A similar bill stalled in the Senate Rules Committee last year, and supporters call today’s vote a big step forward.
If passed into law, Arizona would become the fifth state to take steps to nullify indefinite detention and the laws of war domestically, joining Alaska, California, Michigan and Virginia. Those states have passed similar legislation in the last three years, but each have been far more limited in scope, with legislation based on the Tenth Amendment Center’s model, the Liberty Preservation Act.
“Justice Antonin Scalia said we would be kidding ourselves if we didn’t think the Supreme Court would approve another WWII, Japanese-American style, internment,” founder of People Against the NDAA Dan Johnson said last year. “Arizona has a chance to join several states to head this off and avoid repeating a dark part of American history.”
All of these states are following James Madison’s blueprint for stopping federal overreach. In Federalist 46, he argued that a “refusal to comply with officers of the Union” along with other actions at the state and local level would create a situation where the federal government would have an almost impossible time enforcing their acts. When several states join together and do the same, Madison said it would “present obstructions which the federal government would hardly be willing to encounter.”
In Arizona: Take steps to support SB1437 HERE.
Other States: Contact your state legislators today – urge them to introduce similar legislation. Model bills and contact info HERE.
Additional reporting by Mike Maharrey