Tenth Amendment Center – NDAA: Indefinite Detention
NDAA: Indefinite Detention
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- NDAA: Indefinite Detention
The federal government, under the 2012 National Defense Authorization Act (NDAA) and the 2001 Authorization to Use Military Force (AUMF), claims the power to arrest and detain people within the US and deny them access to courts, attorneys and more. In short, this is little more than government-sanctioned kidnapping. To learn more about the 2012 NDAA and indefinite detention, use the links in the sidebar of this page.
The Liberty Preservation Act – and local ordinance – bans participation with or assistance in any way with any federal act which purports to authorize the indefinite detention of a person within the United States. Passage of the Liberty Preservation Act in your state, county, city and town will create obstacles to implementation that will help thwart the unconstitutional indefinite detention efforts of the federal government. State laws and local ordinances and resolutions are all important pieces of the puzzle to resist and nullify NDAA “indefinite detention.” (model legislation here)
LEGEND: Blue – Introduced. Yellow – Passed one or more Houses. Green – Passed both Houses. Red – Law
James Madison, known as the Father of the Constitution, gave us a 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.”
(You can read more about Madison’s blueprint HERE.)
In the Virginia Resolutions of 1798, Madison wrote that “in case of a deliberate, palpable, and dangerous exercise” of power by the federal government, states “have the right, and are in duty bound, to interpose for arresting the progress of the evil.” Thomas Jefferson, in the Kentucky Resolutions of 1798, wrote that “where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy”
“that every State has a natural right in cases not within the compact to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them”
Indefinite Detention represents just the kind of dangerous, palpable evil Madison was talking about, and the assumptions of power that Jefferson was talking about.
Our model legislation is based on the principles and advice of James Madison and Thomas Jefferson. It’s not going to be easy, and there’s no guarantee of success. But, if we sit back and wait for the federal government to stop its own indefinite detention programs, we’ll wait forever.
So, as those founders advised, we’re taking action without the feds, and taking every step possible to create “obstructions,” and a “refusal to comply with officers of the Union,” as Madison advised. The goal is to get enough states and localities on board so that indefinite detention is rendered null and void, as Jefferson advised.
INDEFINITE DETENTION REPEALED?
While some believe that the 2013 NDAA eliminated indefinite detention, it did not. Dianne Feinstein introduced a very weak amendment to 2013 – and it failed anyway. 2012 indefinite detention provisions remain intact – and the Obama administration is aggressively defending them in court today.
Last year, Federal Judge Katherine Forrest struck down these indefinite detention powers as unconstitutional and issued a temporary court order blocking their use. That order was revoked by an appeals court and indefinite detention powers remain while the case is currently on appeal but not decided.
Additionally, when Judge Forrest asked Obama administration attorneys if the federal government was using indefinite detention in violation of her temporary order blocking it, they refused to confirm, leaving the door open for potential use of these powers in secret, even in outright defiance of an order from the federal courts.
All attempts to stop indefinite detention on a federal level – in courts and the congress – have so far failed. It remains the so-called “law of the land” and deserves to be nullified.
Some opponents of these efforts claim that the U.S. Constitution’s “supremacy clause” prevents your local community from taking action. But this is a complete misunderstanding, not only of the supremacy clause, but of the local legislation as well. There is absolutely ZERO serious dispute about the fact that the federal government cannot “commandeer” the states (or their political subdivisions, local governments) to carry out its laws. None. Even the Supreme Court has affirmed this multiple times.
In the 1842 case, Prigg v. Pennsylvania, the Supreme Court ruled that States couldn’t be required to help the feds carry out programs to capture and return runaway slaves.
In the 1992 case, New York v. United States, the Supreme Court ruled that Congress couldn’t require states to enact specified waste disposal regulations.
In the 1997 case, Printz v. United States, the Supreme Court ruled that the federal government could not command state law enforcement authorities to conduct background checks on prospective handgun purchasers.
In the 2012 case, National Federation of Independent Business v. Sebelius, the Supreme Court ruled that a significant expansion of Medicaid was not a valid exercise of Congress’s spending power, as it would coerce states to either accept the expansion or risk losing existing Medicaid funding.
In each case, the Supreme Court made it quite clear that, in their opinion, the federal government cannot require the states to act, or even coerce them to act through a threat to cut funding. Their opinion is correct. If the feds pass a law, they can sure try to enforce it if they want. But the states, and your local communities, absolutely do not have to help them in any way.
While there is no silver bullet to stop Indefinite Detention, you have an option. Wait for the federal government to give up this power, or resist it in any way possible.
These steps are just the first step of what will likely be a multi-year campaign to resist, refuse to comply, and nullify the unconstitutional indefinite detention regime.
Once these first steps are moving forward in a number of states, the next – more aggressive – levels of resistance can take place successfully.
In the end, Rosa Parks already proved it. Saying “No!” can change the world.