A key supporter of a Virginia bill that would prevent state employees from assisting the federal government’s “unlimited detention” of U.S. citizens is urging the governor to sign the legislation into law.
House Bill 1160 was adopted by lawmakers last month, and the deadline for Gov. Bob McDonnell to sign, veto or allow it to become law without his signature is approaching.
Delegate Bob Marshall, whose helped lead passage of the bill, forwarded an 11-page legal analysis of the issue to McDonnell regarding HB 1160.
The analysis focuses on several obscure sections of the National Defense Authorization Act of 2012, which was signed into law by Barack Obama in December. Those sections appear to allow unlimited detentions by U.S. military forces and federal law enforcement agencies of even U.S. citizens without charges or a court hearing.
The federal act targets citizens who are suspected of involvement in terrorist activities.
Marshall contends the law deprives citizens of the rights they are guaranteed under the U.S. and Virginia constitutions. Virginia’s detention prevention bill was adopted by wide margins, 37-1 and 96-4, in both houses of the general assembly.
The deadline for McDonnell’s decision is about April 9.
The analysis Marshall forwarded was prepared by Herbert W. Titus, a former law school professor and recognized expert on constitutional issues.
He currently is of counsel at the Vienna, Va., law firm of William J. Olson, who is former chairman of the Fairfax County Republican Party.
Titus concluded: “Since the governor’s oath includes upholding the constitutions of both the United States and the Commonwealth …. and since both documents secure to the people the rights to a speedy and public trial, confrontation of witnesses, jury trial, and due process of law, it seems reasonable to expect that the governor will sign HB 1160.”
He continued, “In so doing, he would fulfill the historic role of the states as being guardians of the people from usurpations of authority from the central government.”
However, he noted that a possible complication for McDonnell is the fact that he was appointed by Barack Obama to the Council of Governors, which was set up in 2010 to help the federal government “on matters related to the National Guard and civil support missions.”
The organization’s duties include sharing information and advice relating to “homeland defense” as well as “synchronization and integration of state and federal military activities within the United States.”
The analysis explains the governor “certainly has the authority to make his own assessment off the federal statute’s constitutionality now, without having to wait for a judicial decision after some person is denied the very rights that the constitution is designed to protect.”
Titus concludes, “Thus, it would appear that the only reason why the governor reasonably would veto HB 1160 would be that he believes that NDAA is constitutional – and we certainly trust that is not the case.”
Marshall told WND: “I don’t know why any legislature would give unfettered power to a chief executive.”
Among the federal law’s section is 1021, “which purports to authorize the president of the United States to use the armed forces of the United States to detain American citizens who the president suspects are or have been substantial supports of al-Qaida, the Taliban, or associated forces, and to hold such citizens indefinitely,” according to an analysis of the federal law.
“In short, Section 1021 authorizes the president to dispose of American citizens suspected of supporting ‘terrorism’ according to the laws of war, as if the United States soil was a battlefield and her citizens enemy combatants, not entitled to the protections of the Bill of Rights, including the rights to trial by jury, representation by counsel, confrontation of witnesses, and due process of law administered by impartial judges,” the analysis said.
The state law specifically addresses itself to the goal of preventing “any agency, political subdivision, employee, or member of the military of Virginia from assisting an agency of the armed forces of the United States in the conduct of the investigation, prosecution, or detention of a United States citizen in violation of the United States Constitution, Constitution of Virginia, or any Virginia law or regulation.”
“The writ of Habeas Corpus in our Constitution (Article 1, Section 9) is what separates America from dictatorships around the world. Giving anyone the unfettered power to ‘detain’ American citizens without trial, counsel, specific charges, or a public record of such proceedings is unwise, imprudent and at fundamental odds with the assumptions of our government and legal traditions,” Marshall explained.
“In refusing to cooperate with NDAA, the Virginia General Assembly is performing its historic role as explained by Alexander Hamilton in Federalist 26 as ‘not only vigilant but suspicious and jealous guardians of the rights of the citizens, against encroachments from the federal government [who] will constantly have their attention awake to the conduct of the national rules and will be ready enough, if anything improper appears, to sound the alarm to the people and not only to be the VOICE but, if necessary, the ARM of their discontent,’” he said.
The bill was pass by lawmakers after a large contingent of Japanese-Americans weighed in on the controversial federal plan, which critics say allows the president to detain American citizens without charges or court hearings.
Floyd Mori, chief of the Japanese American Citizens League, sent a letter to legislators.
“As many of you know, during World War II the Japanese American community was targeted as ‘suspected enemy aliens’ and by authority of Presidential Executive Order 9066, over 110,000 people were rounded up and put into concentration camps at 10 desolate locations under the notion that they could be suspect,” he told lawmakers in Virginia.
“This period of indefinite detention lasted until the war ended, and there was no due process as guaranteed by the Constitution. A congressional commission later, through a number of public hearings, found that this was an unjustified act of the government due to war hysteria, racism, and poor government leadership at the time. The government was ordered by an act of Congress to apologize and provide redress in order to learn a lesson that this should never again happen. If there were more who stood up to this injustice, much heartache and economic loss could have been avoided and this apology would not have been needed,” he said.
“Today we face a similar situation. The so-called ‘War on Terror’ has led to the same kind of hysteria and racist actions by government. I can also say that we have lacked the political leadership to identify that this kind of forced indefinite detention is a repeat of what happened during WWII,” he said.
“The state of Virginia has the opportunity to stand up to an unjust application of congressional authority. The American people need somebody to stand up against this injustice. HB 1160 is a tool that does just that; it stands up for the American people by respecting the basic principles of the Constitution.”
The Tenth Amendment Center, which is monitoring developments on the issue, reported, “Even President Obama had questions about the bill, when he promised the American people that he would not use the unrestrained powers it granted him – but why should we trust any president with such powers?”
Outside opinions on exactly what the law allows vary widely.
Commentator Chuck Baldwin, who himself has been the target of smears by the Department of Homeland Security-related apparatus, explained the law “for all intents and purposes, completely nullifies a good portion of the Bill of Rights, turns the United States into a war zone, and places U.S. citizens under military rule.”
“When signing the NDAA into law, Obama issued a signing statement that in essence said, ‘I have the power to detain Americans … but I won’t,” Baldwin wrote.
Baldwin was vilified by an anti-terror campaign in Missouri several years ago when authorities there described suspicious characters as those who might have supported him or other third-party candidates during a presidential election.
A state agency, and later the Department of Homeland Security, offered warnings that returning veterans, those who oppose abortion and others who advocate conservative issues could pose a danger to the nation.
Others have pooh-poohed the concerns about the apprehension of Americans. Wayne Bowen, a professor at Southeast Missouri State University not far from where state officials had issued that warning about Baldwin, said, “The NDAA not only does not empower the U.S. military to detain American citizens indefinitely, it specifically prohibits this.
“The NDAA confirms as U.S. law the practice that foreign terrorists … will be held indefinitely by the U.S. military. Indeed, this is a far more generous policy than allowed under international law,” he wrote.
The Bill of Rights Defense Committee noted that during the first few weeks of 2012, at least six local jurisdictions have enacted local resolutions opposing the military detention provisions of the NDAA, and a number of states began considering legislation similar to Virginia’s.
Among the states that have begun addressing the issue, along with Virginia, are Arizona, Rhode Island, Maryland, Oklahoma, Tennessee and Washington.
Local jurisdictions include Macomb, N.Y.; Fairfax, Calif.; New Shoreham, R.I.; and several in Colorado.