CONCORD, N.H., February 7, 2014 — Yesterday, the New Hampshire House approved a bill which declares federal indefinite detention powers unconstitutional. It bans “any activity that aids” the federal government in carrying out such powers. Approval was by a unanimous voice vote, and the bill will now move on to the state senate for further consideration.
Introduced by Rep. Tim O’Flaherty, D-Hillsborough, the bill quickly garnered co-sponsorship from two Republicans and two Democrats. Tenth Amendment Center communications director Mike Maharrey praised the bipartisan action. “Some things are so bad that people know it’s time to drop party affiliations and work together. Indefinite detention is really nothing more than kidnapping sanction by law, and the resistance to it from both parties in the state is refreshing news,” he said.
O’Flaherty agreed. “Democrats, Republicans, and Libertarians in the House all recognize the importance of defending our rights protecting us from indefinite detention without trial,” he said.
Signed into law as part of the National Defense Authorization Act of 2012 (NDAA), subsection 1022 of Title X authorizes the federal government to arrest a person suspected of terrorist activities without trial until the “end of hostilities,” which some experts point out could be many years.
As constitutional scholar Rob Natelson notes in his analysis of the Act, the federal government is, in essence, claiming the power to detain anyone – within the U.S. or not – and hold them indefinitely without trial.
New Hampshire House Bill 1279 (HB1279) would enshrine in state law the idea that such acts are violations of both the state and federal constitutions. It reads in part, “The General Court of New Hampshire and the Governor of New Hampshire hold that indefinite detention or transfer to jurisdictions outside the United States of citizens of New Hampshire in particular and citizens of the United States in general are unlawful pursuant to the Constitution of the State of New Hampshire, Part the First, Articles 15, 17 and 19, and the Constitution for the United States of America, Amendments IV, V and VI.”
The bill would prohibit any agent or employee of the state, including the National Guard, from aiding any agency of the federal government, including the armed forces, in carrying out such acts.
Natelson writes that some advocates of these detention powers claim that the NDAA is not the controlling law, and that the previously-passed Authorization to Use Military Force (AUMF) is where the power is obtained.
Dan Johnson, who heads up the anti-NDAA organization People Against the NDAA (PANDA), has pointed out that similar bills which have passed previously in Virginia, Michigan and elsewhere have had some significant loopholes which will not serve the purpose of stopping the implementation of NDAA.
Of the Michigan bill signed into law by Gov. Snyder, he notes that it only specifically addresses the 2012 NDAA, and not the AUMF, thus allowing the state to claim they were aiding federal indefinite detention powers under the latter. In that analysis, Johnson also pointed out that the Michigan bill only banned state participation in indefinite detention activities with the armed forces of the United States, leaving “the door wide open for any state agent to assist any other federal, or international, agency, or mercenary, when implementing the detention provisions.”
HB1279 addresses both of these issues specifically due to an amendment offered by Rep. Dan Itse, R-Rockingham, and Rep. Andrew White, D-Grafton. The prohibitions are broad and include not just the 2012 NDAA, but “any other similar law, order or regulation, in the investigation, arrest, detention, extra-judicial transfer to foreign jurisdictions or entities, military tribunal or trial, of any person within the United States.” It also bans participation in indefinite detention under NDAA, but also under “any other similar law, order or regulation.”
Maharrey suggested that while those deficiencies in previous bills are real, without them, the improved New Hampshire bill might not exist.
“In our experience, when you bite off more than you can chew, you lose. In 2012, when Virginia passed HB1160 into law, there was much to be desired. But a failure there could have had the effect of killing any future efforts in other states, as this is just what happened when Texas tried to push back against the TSA in 2011. They failed, and other legislators told us they basically got cold feet,” he said. “But after Virginia, then California passed bills with very limited effect, we heard from other state legislators that they wanted to follow that path, but turn things up a notch by improving bills in their own states. We see this playing out in New Hampshire today.”
“Sometimes we need to keep in mind the old saying,” he said. “Be willing to lose a battle in order to win the war.”
HB1279 now awaits assignment to a senate committee where it will need to pass by majority vote before the full senate has an opportunity to send the bill to Gov. Hassan’s desk for a signature.
Track the status of similar legislation around the country here.