Tag Archives: Indefinite Detention

Idaho House Passes Bipartisan Bill to Nullify Federal Indefinite Detention Laws

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.

[Watch: Reality Check: No Sarin Gas Used by Assad in Syria?]

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.

Supreme Court Ruling: Immigrants Can Be Detained Indefinitely

Washington, D.C.— Immigrants can be indefinitely detained by U.S. immigration officials without a bond hearing, regardless of whether they’re asylum seekers or have permanent legal status, according to a U.S. Supreme Court ruling issued on Tuesday.

NPR reports that the case, Jennings v. Rodriguez, holds significance for legal permanent residents the government seeks to deport due to committed crimes, as well as asylum seekers awaiting a court date after turning themselves in.

The 5-3 decision, with Justice Elena Kagan recusing herself, follows an Obama administration appeal of a 9th Circuit Court of Appeals decision that imposed a requirement that immigrants held in custody must be given a bond hearing every 6 months provided they don’t pose a threat to national security or are considered a flight risk. The appeal was continued by the Trump administration upon him taking office. The majority opinion was penned by Justice Alito and joined by the court’s conservatives.

“To impose a rigid six-month rule like the Court of Appeals did is really a mistake,” Solicitor General Ian Gershengorn said in November.

The Supreme Court affirmed the legality of the government indefinitely detaining immigrants while they attempt to determine whether the individual should be allowed to remain in the United States. Immigration advocates had contended that many of these immigrants have a right to be free on bail prior to their case being heard, which would be impossible if not allowed a bond hearing before a judge.

“Immigration officials are authorized to detain certain aliens in the course of immigration proceedings while they determine whether those aliens may be lawfully present in the country,” Justice Samuel Alito wrote in the majority opinion.

The decision by Supreme Court overturned a 2015 decision Ninth Circuit Court of Appeals ruling and returned the case to the 9th Circuit “to consider the question of whether the Constitution requires bond hearings for detained immigrants,” according to Reuters. Subsequently, the case could potentially come back to the high court.

In a reportedly rare move, Justice Stephen G. Breyer read from his dissent:

“We need only recall the words of the Declaration of Independence,” Breyer said, “in particular its insistence that all men and women have ‘certain unalienable Rights,’ and that among them is the right to ‘Liberty.'”

Breyer continued:

Whatever the fiction, would the Constitution leave the Government free to starve, beat, or lash those held within our boundaries?” Breyer argued. “If not, then, whatever the fiction, how can the Constitution authorize the Government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States?

“No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection,” Breyer added.

The lead plaintiff in the class-action case, Alejandro Rodriguez, has permanent legal residence and came to the U.S. as an infant, but was convicted joyriding as a teenager and misdemeanor possession of a controlled substance that resulted in him being detained by immigration officials for three years without a bond hearing.

Bill to Block NDAA Indefinite Detention Provisions Passes Ariz. Senate Committee

A bill that would prevent federal officials from enforcing the indefinite detention provisions found in sections 1021 and 1022 of the National Defense Authorization Act of 2012 within Arizona has passed a key committee of the Arizona State Senate.

On Tuesday, Senate Bill 1437 passed the Senate Federalism, Mandates and Fiscal Responsibility Committee with 4 voting in favor and 2 voting against. The bill would prohibit federal officials from indefinitely detaining civilian residents in the state. It would also prohibit extrajudicial executions of any person or resident in Arizona.

Bill sponsor Sen. Judy Burges (R-Sun City West), who said that the NDAA indefinite detention provisions are a threat to civil liberties, told The Arizona Daily Star, “We’re trying to push back against federal overreach.

[RELATED: California Nullifies NDAA Indefinite Detention]

The bill states, “The legislature finds that this state is not a battlefield subject to the laws of war, and that neither Congress nor the President of the United States can constitutionally authorize the detention or disposition of any person in this state or a resident of this state within the United States under the law of war who is not serving in the land or naval forces, or in the militia, when in actual service during a time of war or public danger.”

Under the proposal, those who violate the prohibitions against unlawful detentions or executions would face prosecution.

[RELATED: Exclusive: Idaho County votes to prohibit NDAA – VIDEO]

People Against the NDAA founder Dan Johnson told the Tenth Amendment Center, “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. Arizona has a chance to join several states to head this off and avoid repeating a dark part of American history.

Now that the bill has passed the Senate Federalism, Mandates and Fiscal Responsibility Committee, it must pass another vote before the Rules Committee before it can face a vote by the full State Senate.

If it were to become law, Arizona would become the fifth state with a law on the books limiting military detentions by the federal government, joining California, Alaska, Virginia, and Michigan.

The American Civil Liberties Union said of the National Defense Authorization Act of 2012, which was signed into law by President Obama, “The law is an historic threat because it codifies indefinite military detention without charge or trial into law for the first time in American history. It could permit the president – and all future presidents – to order the military to imprison indefinitely civilians captured far from any battlefield without charge or trial.

The ACLU added, “There is substantial public debate and uncertainty around whether Sections 1021 and 1022 of the NDAA could be read even to repeal the Posse Comitatus Act and authorize indefinite military detention without charge or trial within the United States.

Obama Extends Indefinite Detention into 2014 while Parading Gitmo “Reform”

Article submitted by guest contributor Ezra Van Auken.


On the last day of 2011, President Obama signed into law a massive military budget for the 2012 fiscal year. He also approved new provisions that gave power to the military branch. Although the National Defense Authorization Act (NDAA) has hardly received mainstream attention for its lengthy spending receipts, after the 2012 NDAA was passed, it seemed the infamous acronym was catching on quickly.

Inside 2012’s NDAA legislation were two new provisions: 1021 and 1022, both of which are currently valid. The first, provision 1021, hands and affirms the President’s authority to detain American citizens on the grounds that the acting citizens had been involved with belligerent acts against US interests. While that legislative move alone sounds simple and reasonable, it only gets worse – as if civil libertarian-backers haven’t already become disgruntled.

In addition to the President being able to detain any American on the assumption that they’re involved with belligerent acts, he assumed the power to detain the citizen without trial.

Overlooking habeas corpus, the military branch can detain Americans without any due process, and only after the end of hostilities does the government have to allow a trial. And, provision 1022 doesn’t get much better.

Provision 1022 states that the right to detain a person in military custody does not extend to US citizens, and that requirement to detain a person in custody under the section doesn’t extend to lawful residents of the US, except when permitted by the Constitution. In other words, the administration isn’t required to keep a citizen in custody, but it doesn’t have to release the detained citizen either.

Those opposed to the NDAA, including civil libertarians and other Constitutional advocates, are calling Obama’s signing the first step into an unknown legal space of totalitarianism. Groups such as the American Civil Liberties Union (ACLU) and the Tenth Amendment Center (TAC) have called the move everything from “dangerous” and “illegal”, and have even said that policymakers dropped the ball, allowing the Executive branch to “kidnap” Americans.

Despite the controversy over the government power grab, President Obama didn’t hesitate to sign into law the 2014 NDAA, extending both of these provisions. The President signed the 2014 NDAA provisions into law without an ounce of indication that provisions 1021 and 1022 would be eliminated, debated or refined. Instead, Obama transferred attention to the reformation of Guantanamo Bay’s policies.

Admitting that secret detentions without trial cause harm to international relations, President Obama said the 2014 provisions regarding Gitmo are “an improvement over current law and [are] a welcome step toward closing the facility” while recognizing that Gitmo really isn’t close at all to being closed – something on which Obama campaigned heavily in 2008.

Overall, the administration acquires more workability and command with returning detainees to their native countries; however, it doesn’t change the ban for transferring detainees to American facilities. The likelihood of this process accelerating at all is grim, due to the loose connections with foreign countries such as Yemen. “The detention facility at Guantanamo continues to impose significant costs on the American people,” Obama concluded.
So, while the President unrolls his administration’s bread and circus for the minor Gitmo policy move, which likely won’t even play a productive role in streamlining the process of returning detainees to their home countries, the President remains quiet on other provisions that are showing significant costs on the American people – namely provisions 1021 and 1022 – policy changes that no one in the White House seems to want to address or even discuss.

Two Cities Stop NDAA Indefinite Detention, Even for Feds

On December 31st, 2011, President Barack Obama signed the 2012 National Defense Authorization Act (NDAA) which, besides providing funding for our troops, authorized the indefinite detention of any person, including American citizens, on U.S. soil.

Some cities however, aren’t taking that lying down.

Last week, two cities, Albany, NY and Oxford, MA, passed resolutions clarifying that the “law of war,” and anything associated with it under Section 1021 (c) of the 2012 NDAA or otherwise, is unlawful to implement by any person…which includes everyone from international police forces (such as INTERPOL) and Federal agents to state and local police.

The Oxford, MA resolution states:

“…it is unconstitutional, and therefore unlawful for any person to:

a. arrest or capture any person in Oxford, or citizen of Oxford, within the United States, with the intent of “detention under the law of war,” or

b. actually subject a person in Oxford, to “disposition under the law of war,” or

c. subject any person to targeted killing in Oxford, or citizen of Oxford, within the United States;…”

Although one might expect a resolution targeted at the actions within the 2012 NDAA to specifically mention the law, the result of these resolutions is interposition against the “law of war,” the backbone of indefinite military detention, torture, and extrajudicial execution in America. The result of these resolutions is not just noncompliance, but interposition.

In Oxford, MA and Albany, NY, no local, state, federal, or international agent can now implement the 2012 NDAA, any federal or international law, or any state law that attempts to apply the law of war, except to those serving in the military which it is typically applied to, inside the city. If they attempt to, local officers must intervene, or “interpose,” to stop the citizen’s Constitutional rights from being violated.

Both resolutions passed with overwhelming support from a vast nonpartisan coalition of activists, supported by People Against the NDAA (PANDA), including the Patriot Coalition, Project SALAM, Occupy Albany, the Worcester Tea Party, Campaign for Liberty New York, and many other organizations. In Oxford, the people voted overwhelmingly for this “Restoring Constitutional Governance (RCG)” resolution, and the Albany Common Council voted a similar resolution in 11-0.

PANDA Massachusetts State Team Leader Benjamin Selecky noted that the job is not quite done:

“As we celebrate the victory, let us not lose sight of the long road ahead of us.  There is work that still needs to be done, but together, we will restore constitutional governance to the Commonwealth of Massachusetts.”

He is right. Legislatively, the job is accomplished. However, a resolution, like any law, is just a piece of paper unless it is enforced. PANDA plans to not only approach local peace officers with the resolution, but to set up a citizen-based “Rapid Response Team” in both cities to watch over the implementation of this resolution.

This approach of defying unConstitutional Federal authority is now starting to take hold across the nation. Just last month, Klamath County, Oregon issued a proclamation using the exact same language as the RCG resolution, and over the next few weeks it will be introduced in several towns and cities in Massachusetts, Oregon, and around the country.

This tidal wave of cities standing up for their citizens’ rights is part of PANDA’s Take Back the Town Campaign, a decentralized approach to blocking one of the most egregious laws in America. This “Take Back” packet, provided by PANDA, gives any person all the tools they need, including the support of the leading Anti-NDAA organization in America, to stop NDAA indefinite detention in their own city.

You can download that packet here: http://pandaunite.org/takeback/

Whether through NSA wiretaps or extrajudicial executions, the United States government continues to overstep its boundaries. Yet if this fight against the NDAA is any indication, America’s cities might not take it lying down.


California Governor Jerry Brown Signs NDAA Indefinite Detention Nullification Bill Into Law
California Governor Jerry Brown Signs NDAA Indefinite Detention Nullification Bill Into Law

Assembly Bill (AB) 351 was signed into law by Governor Jerry Brown yesterday. California is the third state to have passed legislation, which nullifies the unpopular federal provision. A selection of  AB 351 reads:

The United States Constitution and the California Constitution provide for various civil liberties and other individual rights for a citizen of the United States and the State of California, including the right of habeas corpus, the right to due process, the right to a speedy and public trial, and the right to be informed of criminal charges brought against him or her.

Certain provisions of federal law affirm the authority of the President of the United States to use all necessary and appropriate force to detain specified persons who engaged in terrorist activities.
This bill would prohibit an agency in the State of California, a political subdivision of this state, an employee of an agency or a political subdivision of this state, as specified, or a member of the California National Guard, on official state duty, from knowingly aiding an agency of the Armed Forces of the United States in any investigation, prosecution, or detention of a person within California pursuant to (1) Sections 1021 and 1022 of the National Defense Authorization Act for Fiscal Year 2012 (NDAA), (2) the federal law known as the Authorization for Use of Military Force, enacted in 2001, or (3) any other federal law, except as specified, if the state agency, political subdivision, employee, or member of the California National Guard would violate the United States Constitution, the California Constitution, or any law of this state by providing that aid. The bill would also prohibit local entities from knowingly using state funds and funds allocated by the state to those local entities on and after January 1, 2013, to engage in any activity that aids an agency of the Armed Forces of the United States in the detention of any person within California for purposes of implementing Sections 1021 and 1022 of the NDAA or the federal law known as the Authorization for Use of Military Force , if that activity would violate the United States Constitution, the California Constitution, or any law of this state, as specified.

The bill’s common name is “The California Liberty Preservation Act.” California’s legislation takes things a step further than other states, which have implemented nullification legislation with regard to the NDAA.

The bill specifically states:
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 any federal law that purports to authorize indefinite detention of a person within California. (emphasis added)

This meaning the legislation takes aim at not only the NDAA provision, but any federal law, which seeks to disregard one’s constitutional rights.

Democrats and republicans worked together to sponsor and pass the legislation. The bill was introduced by ultra-conservative Tim Donnelly, and managed by San Francisco liberal-democrat Mark Leno.

Nullification has broken barriers in the political world not seen since Reagan won every state in the country in 1984 except Minnesota, home of challenger Mondale (D).

Nullification is able to do this because the federal government has put its hands in far too many pies. Liberals passionate about marijuana legalization and privacy rights find refuge in nullification. Meanwhile, conservatives passionate about the federal reserve, taxes and guns find refuge as well.

The Tenth Amendment Center stands in as the moderator working to nullify all unconstitutional laws in every state. They have provided model legislation to nullify indefinite detention in each state.

Tenth Amendment Center’s national communications director Mike Mike Maharrey tells us-
“Lawmakers from both sides of the aisle came together and passed legislation to protect against federal kidnapping,” adding that, “by saying, ‘No!’ to indefinite detention and refusing any state cooperation, the California legislature and Gov. Brown just ensured it will be very hard to whisk somebody away in the dead of night and hold them without due process.”