As states continue searching for ways to defy excesses of power from Washington DC, one state has joined a few others in objecting to one of the more controversial prerogatives emanating from the national capital.
Last week, California Governor Jerry Brown signed into law an act that states that the Golden State will not comply with the federal government’s enforcement of indefinite detention of “enemy combatants.” Passed in the 2012 National Defense Authorization Act (NDAA), the defense spending bill did not preclude indefinite detention of American citizens. At the time of its passage, the ACLU expressed its concern that:
“The statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield.”
Known as the “California Liberty Preservation Act,” the assembly bill was introduced by State Rep. Tim Donnelly, a Republican from San Bernardino. Public Safety Committee chairman Tom Ammiano, a San Francisco Democrat, pushed the bill through committee.
As Nick Hankoff said at the California Tenth Amendment Center, support for the effort was provided by a politically diverse coalition that included “99%ers, the California Libertarian Party, Bill of Rights Defense Committee, California Republican Liberty Caucus, ACLU, Oath Keepers, and more.”
Not relegated specifically to the NDAA, the bill also rejects compliance with any unconstitutional provisions of the 2001 Authorization for Use of Military Force (AUMF). It also applies to “any other federal law, except as specified” that “would violate the United States Constitution, the California Constitution, or any law of this state by providing that aid.” The federal government would have to act on its own to apprehend any individual suspected of being an “enemy combatant.”
Without the state’s compliance, questions are raised about how the law would be enforced.
As one of the more controversial elements of the act when it was passed in 2011, the NDAA drew heavy criticism from civil libertarian groups over indefinite detention. Under it, the government possesses a presumed right to theoretically detain individuals without charge in perpetuity.
The concept amounted to the rejection of the right of habeas corpus and effectively made the government judge, jury, and executioner. Indefinite detention also received much attention in 2011 with the extrajudicial, drone death of Anwar al-Awlaki, an American-born Muslim cleric suspected of allegiance to al Qaeda in Yemen.
Supporters of the NDAA said at the time that it was merely the codification of existing provisions and prerogatives, which included the government’s right to indefinitely detain. US Senator Lindsey Graham infamously proclaimed this power was necessary because “the homeland is part of the battlefield.”
At least 13 states have made efforts to nullify parts of the NDAA, but California joins Virginia and Alaska in passing laws to formally defy these procedures. Efforts in Colorado have been defeated while similar plans in other states have stalled.
Regardless, states continue to assert measures to protect their sovereignty. These efforts have thus far not only applied a brake on certain depredations from Washington, but have become one of the ways disparate political factions can work together.
Do states have the right to not comply with provisions of a federal law they deem unconstitutional?