New Hampshire bill seeks to thwart federal indefinite detention powers

A bill in the N.H. house bans participation in federal indefinite detention powers, whether under the 2012 NDAA or any other federal act authorizing the same. Photo: Flickr, JCB Walsh

CONCORD, N.H., December 29, 2013 ― A New Hampshire state representative has introduced legislation to thwart implementation of federal “indefinite detention” powers within the state.

Thirty-four-year old Rep. Timothy O’Flaherty (D-Hillsborough), two other Democrats and two Republicans have filed House Bill 1279 (HB1279) in Concord. If passed into law, the bill would ban the state from participating in the enforcement of the controversial “indefinite detention” provisions of the National Defense Authorization Act (NDAA) of 2012, which remain in force today.

Signed by President Barack Obama on New Year’s Eve 2011, NDAA empowers the federal government to arrest and detain any person without trial or access to legal counsel, and keep that status indefinitely.

Constitutional scholar Robert G. Natelson described it this way. “The administration can simply decide to detain you without trial until the end of hostilities.” He continued, “When you look at sections 1021 and 1022 of the National Defense Authorization Act objectively, they become scary in their potential.”

O’Flaherty’s legislation would make it far more difficult for the federal government to take those provisions to their full potential. Based on the Tenth Amendment Center’s Liberty Preservation Act, it reads in part:

“No New Hampshire agency, political subdivision, or employee of either acting in his or her official capacity, and no member of the New Hampshire national guard when such member is serving in the national guard, may knowingly engage in any activity that aids an agency of or the armed forces of the United States in the execution of 50 U.S.C. section 1541 as provided by the National Defense Authorization Act for Fiscal Year 2012, Public Law 112-18, section 1021 or any other similar law, order or regulation”

“By banning the state from participating with these so-called indefinite detention provisions of the 2012 NDAA or any other federal act claiming that kind of unconstitutional power for the feds, New Hampshire not only would tell DC a big fat ‘Not here!’ but would make things pretty tough for the feds to pull off,” said Michael Maharrey, national communications director for the Tenth Amendment Center.

“The feds almost always require state and local assistance to pull off their plans,” Maharrey continued. “Whether it’s trying to convince states to set up exchanges or expand Medicaid for Obamacare, or dangling highway funds to get local sheriffs to carry out federal gun control measures, they heavily rely on states.”

During last fall’s partial federal government shutdown, the National Governor’s Association acknowledged the same. “States are partners with the federal government in implementing most federal programs,” the association said in a press release.

Writing in Federalist #46, James Madison, the “Father of the Constitution” said that such non-participation would be an effective way to stop federal acts which were either “unwarranted” or “unpopular.” He advised a “refusal to cooperate with officers of the Union.”

Fox News senior judicial analyst Judge Andrew Napolitano suggested earlier this year that a single state refusing to enforce a federal act would make it “nearly impossible to enforce.”

The New Hampshire bill is an expansion of efforts which have previously passed into law in Virginia, Alaska, California and Michigan. Governors in those states signed similar legislation into law, but all were far more limited in scope.

In Michigan, for example, the law signed by Governor Snyder last week only bans the state from assisting indefinite detention carried out by the Armed Forces of the United States. Dan Johnson of People Against the NDAA (PANDA), noted that state law still allows state officials to assist other federal agencies which might want to indefinitely detain someone, such as the Department of Homeland Security.

The law signed by former-Virginia Governor Bob McDonnell in 2012 only banned the state from participating in federal detention acts authorized by the 2012 NDAA.

The New Hampshire legislation closes both of these loopholes. It bans indefinite detention assistance to not just the U.S. Armed Forces, but any federal agency. It also broadens the scope beyond the specific sections of the 2012 NDAA to “any other similar law, order or regulation.”

Maharrey celebrated the additions in HB1279, primarily focusing on the expansion beyond just the 2012 NDAA.  He said, “No federal act can justify kidnapping. None.”

HB1279 will first be heard and debated in the New Hampshire house committee on state-federal relations and veterans affairs after the state legislative session starts on January 8, 2014.

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Michael Boldin

Michael Boldin is the founder and executive director of the Tenth Amendment Center, based in Los Angeles, CA.  Founded in 2006, the Center is a leading national resource for education and activism in support of the Constitution and liberty.


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