Boise, Idaho— In a 63-4 vote, the Idaho House of Representatives overwhelmingly passed legislation that explicitly prohibits the enforcement of sections 1021 and 1022 of the National Defense Authorization Act of 2012 (NDAA)— effectively banning state, local and federal authorities from acting against any person in Idaho, under the laws of war, and providing a foundation to nullify indefinite detention or “any similar law or authority enacted or claimed by Congress or the President.”
According to a report from The Tenth Amendment Center:
Sections 1021 and 1022 of the 2012 NDAA purport to empower the federal government to essentially kidnap people within the borders of the United States and hold them indefinitely without trial, or even formal charges. Passage of H473 would apply to indefinite detention under the NDAA, or any other federal law. Since the feds always depend on states and their resources to assist with their actions, H473 would almost certainly hinder any attempts at indefinite detention in Idaho.
Those sections purport to give the federal government the legal authority to indefinitely detain anyone, anywhere, without being charged with a crime or given a trial.
Titled the Restoring Constitutional Governance Act of Idaho, H473 specifies:
“It is the Determination of the Idaho legislature that Idaho is not a battlefield subject to the laws of war and that neither congress nor the president of the United States can constitutionally apply the laws of war to any person in Idaho or citizen of Idaho…”
“…it is unlawful, for any person to do any one (1) of the following:
1)Arrest or capture any person in Idaho or any citizen of Idaho under the law of war;
2)Actually subject a person in Idaho to disposition under the law of war; or
3)Use deadly force under the laws of war against any person in Idaho, or intentionally subject any citizen of Idaho for targeted killing or murder…”
“Any person who commits a violation of this section shall be prosecuted under the Idaho criminal code relating to the substantive law for which the violation pertains including, but not limited to, assault, battery, kidnapping or murder.”
According to the Tenth Amendment Center, in practical terms, it would be nearly impossible to prosecute federal agents for enforcing federal law due to federal statute 28 U.S.C. § 1442(a)(1) unless a state judge refused to comply, as the current structure of the legal system requires only that the attorney for the charged federal agent file a motion for the case to be moved to federal court.
Nonetheless, even without likely success prosecuting federal agents, H473 would constrain the ability of the federal government to indefinitely detain people in Idaho, due to the feds’ heavy dependence on local and state cooperation with enforcement and implementation of federal law. Without the cooperation of these state and local actors, and the facilities they operate, the federal government would be hard pressed to act under the laws of war in Idaho. Any cooperating state agents would not be covered under the federal statute and could be prosecuted under H473, thus serving as a strong deterrent for local and state agents to assist in the federal action.
The legislation was spearheaded by People Against the NDAA (PANDA). National director Jason Casella said indefinite detention violates multiple sections of the Constitution and Bill of Rights:
The indefinite detention of U.S. citizens without due process is fundamentally un-Constitutional, un-American, and un-Idahoan. Without the right to a trial, we have no rights at all. Our founders believed so firmly in the right to trial by jury that they enshrined it in the body of the Constitution, and again in the Sixth Amendment. It is great to see such great nonpartisan support for the Restoring Constitutional Governance Act which will help ensure that the rights of the people of Idaho are protected.
If the legislation is passed into law, Idaho will be the sixth state to effectively nullify federal indefinite detention, along with Alaska, California, Michigan, New Hampshire, and Virginia.