NDAA: Liberty Preservation Act

10th Amendment Center

This legislative package is a state-level response to constitutional violations by the National Defense Authorization Act of 2012 (NDAA) – primarily provisions that authorize indefinite detention. Activists, we encourage you to send this to your state senators and representatives – and ask them to introduce this legislation in your state.

Depending on the strength of opposition in your area, we recommend either a 1, 2 or 3 step action plan vis a vis this legislation. The 3-step plan includes each of the 3 pieces of model legislation below, and each builds on each other. A 2 step plan would start with #2, then move to #3 in a future session. A 1 step plan would start with #3. Please work with whatever will have the most effect in your area over the long run…

TRACK THE PROGRESS of the Liberty Preservation Act across the country here:
http://tenthamendmentcenter.com/nullification/ndaa/

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The first, a resolution, affirms the proper role of the federal government under the constitution, and also the role of the state government in ending such actions. This is essential in areas where awareness of such duties is low.

The second, a non-compliance act is a binding state law which requires all state agencies to refuse compliance with the federal government in the enforcement of the offending provisions of the NDAA.

The third, a state nullification act is a binding state law which requires all state agencies to not only refuse compliance as in the second, but also renders the federal act illegal within the boundaries of the state – with penalties for violating the state act.

The fourth, a local resolution authored by the Bill of Rights Defense Committee (pdf version here) for introduction in your town, city or county – and including language requiring local noncompliance with the federal act.

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Resolution: Liberty Preservation

Modified version of the resolution originally written by our friends at the Rhode Island Liberty Coalition for use on a State OR Local level.
Get the original and talking points here.
NOTE: wherever text is underlined, you need to insert the term appropriate to your forum

WHEREAS, the Congress of the United States passed the National Defense Authorization Act, 2011 P.L. 112-81, (“2012 NDAA”) for Fiscal Year 2012 on December 15, 2011;

WHEREAS, the President of the United States of America signed the 2012 NDAA into law on December 31, 2011;

WHEREAS, Section 1021 of the 2012 NDAA purports to authorize, but does not require, the President of the United States to utilize the armed forces of the United States to detain persons the President suspects were part of, or substantially supported, al-Qaeda, the Taliban or associated forces;

WHEREAS, Section 1021 of the 2012 NDAA purports to authorize, but does not require, the President of the United States, through the Armed Forces of the United States, to dispose of such detained persons according to the Law of War, which may include but is not limited to: (1) indefinite detention without charge or trial until the end of hostilities authorized by the 2001 Authorization for Use of Military Force Against Terrorists, 2001 P.L. 107-40, (2) prosecution through a Military Commission, or (3) transfer to a foreign country or foreign entity;

WHEREAS, Section 1021 of the 2012 NDAA seeks to preserve existing law and authorities pertaining to the detention of United States citizens, lawful resident aliens of the United States, and any other person captured in the United States, but does not specify what such existing law or authorities are;

WHEREAS, Section 1021 of the 2012 NDAA purports enlarge the scope of the those persons the Office of the President may indefinitely detain beyond those responsible for the September 11, 2001 terrorist attacks, and those who harbored them, as purportedly authorized by the 2001 Authorization for Use of Military Force Against Terrorists, to now include “[a] person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces;”

WHEREAS, Section 1022 of the 2012 NDAA requires the Armed Forces of the United States to detain, pending disposition according to the Law of War, any person involved in, or whom provided substantial support to, terrorism or belligerent acts against the United States, and whom is a member of Al-Qaeda or an associated force;

WHEREAS, The exemption for citizens of the United States in Section 1022 of the 2012 NDAA only exempts them from a requirement to detain and reads as follows, “The requirement to detain a person in military custody under this section does not extend to citizens of the United States”;

WHEREAS, Unlike Section 1022 of the 2012 NDAA, Section 1021 makes no specific exclusion for United States citizens and lawful resident aliens for conduct occurring within the United States;

WHEREAS, the specific exclusion of application to United States citizens and lawful resident aliens contained in Section 1022 of the 2012 NDAA, and the absence of such exclusion in Section 1021 of the NDAA, strongly implies that the provisions of Section 1021 are intended to apply to all people, including United States citizens and lawful resident aliens, whether or not they are captured in the United States;

WHEREAS, the Office of the President of the United States, under both the administrations of George W. Bush and Barak H. Obama, has asserted the 2001 Authorization for the Use of Military Force Against Terrorists allows the Office of the President to indefinitely detain without charge persons, including United States Citizens and lawful resident aliens, captured in the United States;

WHEREAS, United States Senator Carl Levin declared in colloquy on the floor of the United States Senate that the original 2012 NDAA provided that section 1021 (then section 1031 prior to final drafting) specifically would not apply to United States citizens, but that the Office of the President of the United States had requested that such restriction be removed from the 2012 NDAA;

WHEREAS, during debate within the Senate and before the passage of the 2012 NDAA, United States Senator Mark Udall introduced an amendment intended to forbid the indefinite detention of U.S. citizens, which was rejected by a vote of 38–60;

WHEREAS, United States Senator John McCain and United States Senator Lindsey Graham declared in colloquies on the floor of the United States Senate that Section 1021 of the 2012 NDAA authorized the indefinite detention of United States Citizens captured within the United States by the Armed Forces of the United States;

WHEREAS, United States Senator Lindsey Graham declared in colloquy on the floor of the United States Senate that the United States homeland is now part of “the battlefield;”

WHEREAS, Policing the United States of America by the Armed Forces of the United States, as purportedly authorized by the 2012 NDAA, overturns the Posse Comitatus doctrine and is repugnant to a free society;

WHEREAS, Sections 1021 and 1022 of the 2012 NDAA as they purport to authorize, 1) detainment of persons captured within the United States of America without charge or trial, 2) military tribunals for persons captured within the United States of America, and 3) the transfer of persons captured within the United States of America to foreign jurisdictions, are violative of the following rights enshrined in the Constitution of the United States of America;

Article I Section 9, Clause 2’s right to seek Writ of Habeas Corpus;
The First Amendment’s right to petition the Government for a redress of grievances;
The Fourth Amendment’s right to be free from unreasonable searches and seizures;
The Fifth Amendment’s right to be free from charge for an infamous or capitol crime until presentment or indictment by a Grand Jury;
The Fifth Amendment’s right to be free from deprivation of life, liberty, or property, without Due Process of law;
The Sixth Amendment’s right in criminal prosecutions to enjoy a speedy trial by an impartial jury in the State and District where the crime shall have been committed;
The Sixth Amendment’s right to be informed of the nature and cause of the accusation;
The Sixth Amendment’s right confront witnesses;
The Sixth Amendment’s right to Counsel;
The Eighth Amendment’s right to be free from excessive bail and fines, and cruel and unusual punishment;
The Fourteenth Amendment’s right to be free from deprivation of life, liberty, or property, without Due Process of law;

WHEREAS, Sections 1021 and 1022 of the 2012 NDAA as they purport to authorize, 1) detainment of persons captured within the United States of America without charge or trial, 2) military tribunals for persons captured within the United States of America, and 3) the transfer of persons captured within the United States of America to foreign jurisdictions, is repugnant to the following rights enshrined in the (STATE) Constitution: (NOTE – AS WRITTEN FOR THE STATE OF RHODE ISLAND. ENTER RELEVANT SECTIONS FROM YOUR STATE BELOW)

Article I Section 2’s right to be free from deprivation of life or liberty without Due Process of law;
Article I Section 5’s right to have prompt recourse to the laws for all injuries to one’s person;
Article I Section 6’s right to be free from unreasonable search and seizure;
Article I Section 7’s right to be free from capital charge absent a grand jury indictment, or felony charge absent grand jury indictment absent information signed by the attorney general;
Article I, Section 8’s right to be free from excessive bail;
Article I Section 9’s right to bail and right to Habeas Corpus;
Article I Section 10’s right to a speedy pubic trial by an impartial jury, right to have the assistance of counsel, and the right to be free from deprivation of life, liberty, or property, unless by the judgment of peers;
Article I Section 14’s right to be presumed innocent until pronounced guilty by the law;
Article I Section 15’s right to a trial by Jury;
Article I Section 18’s requirement that the military authority is subordinate to the civil authority;

WHEREAS, the members of this (Legislature, Town Council, County Government, etc..) have taken an oath to uphold the Constitution of the United States of America and the Constitution of the State of (Rhode Island);

WHEREAS, this (Legislature, Town Council, County Government, etc..) opposes any and all rules, laws, regulations, bill language or executive orders, which amount to an overreach of the federal government and which effectively take away civil liberties;

WHEREAS, it is indisputable that the threat of terrorism is real, and that the full force of appropriate and constitutional law must be used to defeat this threat; however, winning the war against terror cannot come at the great expense of mitigating basic, fundamental, constitutional rights;

WHEREAS, undermining our own inalienable rights serves only to concede to the terrorists’ demands of changing the fabric of what made the United States of America a country of freedom, liberty and opportunity.

NOW BE IT RESOLVED THAT, the (Legislature, City Council, etc…) of the (Your State, Municipality or County), condemns in no uncertain terms Sections 1021 and 1022 of the 2012 NDAA as they purport to 1) repeal Posse Comitatus and authorize the President of the United States to utilize the Armed Forces of the United States to police the United States of America, 2) indefinitely detain persons captured within the United States of America without charge until the end of hostilities as purportedly authorized by the 2001 Authorization for Use of Military Force, 3) subject persons captured within the United States of America to military tribunals, and 4) transfer persons captured within the United States of America to a foreign country or foreign entity; and

BE IT RESOLVED, that the (Legislature, City Council, etc…) finds that the enactment into law by the United States Congress of Sections 1021 and 1022 of the National Defense Authorization Act of 2012, Public Law Number 112-81, is inimical to the liberty, security and well-being of the people of (Your State, Municipality or County), and was adopted by the United States Congress in violation of the limits of federal power in United States Constitution; and

BE IT RESOLVED, that all agencies of the (Legislature, City Council, etc…) of _______, are instructed to decline requests by federal agencies acting under detention powers of Sections 1021 and 1022 of the National Defense Authorization Act of 2012 that could infringe upon residents’ freedom of speech, religion, assembly, privacy, rights to counsel, or other rights not here explicitly enumerated; and

BE IT RESOLVED, That copies of this Resolution be immediately transmitted to the Honorable Barack Obama, President of the United States, the President of the United States Senate, the Speaker of the House of Representatives, each member of Congress from the State of (STATE) to the Honorable John Roberts, Chief Justice of the United States Supreme Court; each justice on the United States Supreme Court; and the President of the Senate and the Speaker of the House of Representatives of each state’s legislature.

Liberty Preservation Act: Noncompliance

GENERAL DESCRIPTIONThis bill prohibits all public officers, agents, and employees of the State of (STATE) from providing material support or participating in the implementation of Sections 1021 and 1022 of the National Defense Authorization Act of 2012.

HIGHLIGHTED PROVISIONS
This bill:

prohibits all public officers, agents, and employees of the State of (STATE) from providing material support or participating in the implementation of Sections 1021 and 1022 of the National Defense Authorization Act of 2012; and

makes it a class A misdemeanor for a person to provide material support or participate in the implementation of Sections 1021 and 1022 of the National Defense Authorization Act of 2012.

Be it enacted by the People of the State of (STATE):

SECTION 1. NEW LAW

This Act shall be known and may be cited as the “Liberty Preservation Act.”

A.. 1. The Legislature finds that the enactment into law by the United States Congress of Sections 1021 and 1022 of the National Defense Authorization Act of 2012, Public Law Number 112-81, is inimical to the liberty, security and well-being of the people of (STATE), and was adopted by the United States Congress in violation of the limits of federal power in United States Constitution.

2. The Legislature finds that, together, Sections 1021 and 1022 of the National Defense Authorization Act of 2012, as they purport to authorize 1) detainment of persons captured within the United States of America without charge, 2) military tribunals for persons captured within the United States of America, and 3) the transfer of persons captured within the United States of America to foreign jurisdictions, are violative of the following rights enshrined in the Constitution of the United States of America;

3. (VIOLATIONS OF STATE CONSTITUTIONAL PROVISIONS – ENTER SPECIFICS HERE)

See resolution section above for an example from Rhode Island

B The State of (STATE) shall not provide material support or participate in any way with the implementation of Sections 1021 and 1022 of the National Defense Authorization Act of 2012 within the boundaries of this state. The Department of Public Safety is hereby directed to report to the Governor and the Legislature any attempt by agencies or agents of the United States Federal Government to secure the implementation of Sections 1021 and 1022 of the National Defense Authorization Act of 2012 through the operations of that or any other state department.

C. Any public officer, employee, or agent of the State of (STATE), or any employee of a corporation providing services to the State of (STATE) that enforces or attempts to enforce an act, order, law, statute, rule or regulation of the government of the United States in violation of Subsection 1 B of this act shall be guilty of a class A misdemeanor punishable by imprisonment in the county jail not exceeding six (6) months or by a fine not exceeding Five Hundred Dollars ($500.00) or both such fine and imprisonment;

SECTION 2.

This act takes effect immediately upon approval by the Governor.

Liberty Preservation Act: Nullification

AN ACT relating to detainment without charge, military tribunals, and transfer to foreign jurisdictions of persons residing in the State of (STATE); creating the Liberty Preservation Act; providing legislative findings and declarations of authority; prohibiting state from providing material support for certain acts; prohibiting state participation in the implementation of certain acts; making certain acts unlawful; providing penalties; and providing an effective date.Be it Enacted by the People of the State of (STATE):

SECTION 1. NEW LAW A new section of law not to be codified in (STATE) Statutes reads as follows:

This act shall be known and may be cited as the “(STATE) Liberty Preservation Act”

SECTION 2. NEW LAW A new section of law to be codified in the (STATE) Statutes as Section (NUMBER) of Title (NUMBER), unless there is created a duplication in numbering, reads as follows:

The Legislature declares that the authority for this act is the following:

1. The Tenth Amendment to the United States Constitution provides that the United States Federal government is authorized to exercise only those powers delegated to it in the Constitution and nothing more. The guaranty of those limitations on federal power is a matter of contract between the state and people of (STATE) and the United States at of the time that the Constitution was agreed upon and adopted by (STATE) and the United States;

2. Article VI, Clause 2 of the Constitution of the United States provides that laws of the United States are the supreme law of the land provided that they are made in pursuance of the powers delegated to the federal government in the Constitution;

3. Article I Section 9, Clause 2 of the Constitution provides that the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it;

4. The First Amendment provides that the Congress of the United States shall make no law prohibiting the right of the people to petition the Government for a redress of grievances;

4. The Fourth Amendment provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated;

5. The Fifth Amendment provides that the People have a right to be free from deprivation of life, liberty, or property, without Due Process of law;

6. The Sixth Amendment provides that the people have a right in criminal prosecutions to enjoy a speedy trial by an impartial jury in the State and District where the crime shall have been committed; to be informed of the nature and cause of the accusation; to confront witnesses; to Counsel;

7. The Fourteenth Amendment provides that the people are to be free from deprivation of life, liberty, or property, without Due Process of law.

SECTION 3. NEW LAW A new section of law to be codified in the (STATE) Statutes as Section (NUMBER) of Title (NUMBER), unless there is created a duplication in numbering, reads as follows:

The Legislature finds that:

1. Section 1021 of the National Defense Authorization Act of 2012 purports to assert the President’s authority to not only arrest suspected terrorists, but also to determine whether or not a trial, including what type of trial, will be held for those arrested;

2. Section 1022 of the National Defense Authorization Act of 2012 requires detention without trial by the military for a certain class of terrorist and authorizes but does not require the same for citizens of the United States;

3. The exemption for citizens of the United States in Section 1022 of the National Defense Authorization Act of 2012 only exempts citizens from a requirement and reads as follows, “The requirement to detain a person in military custody under this section does not extend to citizens of the United States”;

4. The enactment into law by the United States Congress of Sections 1021 and 1022 of the National Defense Authorization Act of 2012, Public Law Number 112-81, is inimical to the liberty, security and well-being of the people of (STATE), and was adopted by the United States Congress in violation of the limits of federal power in United States Constitution, including but not limited to, those listed in Section 2 of this act.

SECTION 4. NEW LAW A new section of law to be codified in the (STATE) Statutes as Section (NUMBER) of Title (NUMBER), unless there is created a duplication in numbering, reads as follows:

1 The State of (STATE) shall not provide material support or participate in any way with the implementation of Sections 1021 and 1022 of the National Defense Authorization Act of 2012 within the boundaries of this state;

2. The Department of Public Safety is hereby directed to report to the Governor and the Legislature any attempt by agencies or agents of the United States Federal Government to secure the implementation of Sections 1021 and 1022 of the National Defense Authorization Act of 2012 through the operations of that or any other state department;

3. The indefinite detention, prosecution according to the law of war, and transfer to a foreign jurisdiction of persons as provided for by Sections 1021 and 1022 of the National Defense Authorization Act of 2012 are in direct contravention to the limits on federal power as specified in Section 2 of this act and are illegal within the boundaries of the state of (STATE);

SECTION 5. NEW LAW A new section of law to be codified in the (STATE) Statutes as Section (NUMBER) of Title (NUMBER), unless there is created a duplication in numbering, reads as follows:

1. Any public officer, employee, or agent of the State of (STATE), or any employee of a corporation providing services to the State of (STATE) that enforces or attempts to enforce an act, order, law, statute, rule or regulation of the government of the United States in violation of Section 4 of this act shall be guilty of a class A misdemeanor punishable by imprisonment for not more than six (6) months or by a fine not exceeding Five Hundred Dollars ($500.00) or both such fine and imprisonment;

2. Any official, agent, or employee of the government of the United States, or employee of a corporation providing services to the government of the United States that enforces or attempts to enforce an act, order, law, statute, rule, or regulation of the government of the United States in violation of Section 4 of this act shall be guilty of a class B felony punishable by imprisonment for not more than one (1) year, or a fine of not more than Two Thousand Dollars ($2,000.00), or by both such fine and imprisonment.

SECTION 6. This act shall take effect immediately upon approval by the Governor.

Liberty Preservation Act: Local Resolution

WHEREAS, the Constitution of the United States is the foundation of our nation’s rights and freedom, and the basis of our representative democracy; AND

WHEREAS, the indefinite military detention without trial of any person, including US citizens, could be allowed by Sections 1021 and 1022 of the National Defense Authorization Act (NDAA); AND

WHEREAS, the indefinite military detention of any person without trial violates the 5th and 6th amendments of the Constitution of the United States, Article III of the Constitution of the United States, and the Posse Comitatus Act; AND

WHEREAS, the NDAA corrodes the ideals of presumed innocence and right to a fair trial on which our nation was founded, and which generations of activists and military servicemen and women have fought to preserve; AND

WHEREAS the (TOWN, CITY OR COUNTY) of (NAME OF TOWN, CITY OR COUNTY) re-affirms its gratitude for the supreme sacrifice of those in the Armed Forces who have died in battle in the name of those same cherished rights and liberties; AND

WHEREAS, the NDAA’s detention provisions could, under Humanitarian Law Project v. Holder, allow the targeted detention of activists, journalists and other Americans exercising their First Amendment rights despite the crucial role of Free Speech in preserving liberty; AND

WHEREAS, the NDAA’s detention provisions could allow the recurrence of torture in military detention in violation of the Eighth Amendment; AND

WHEREAS, the detention provisions could force US military servicemembers to serve as domestic jailers, a role for which they are neither trained nor equipped, nor is ever appropriate; AND

WHEREAS, the FBI Director, the Defense Secretary, the Director of National Intelligence, the Department of Defense, and many of our nation’s generals, admirals, and servicemen and women have opposed the NDAA’s detention provisions; AND

WHEREAS, the (TOWN, CITY OR COUNTY) of (NAME OF TOWN, CITY OR COUNTY) has an extensive history of protecting its residents’ civil rights and liberties as embodied in its rejection of the USA PATRIOT Act, which led hundreds of other municipalities across the nation to emulate our example;

THEREFORE BE IT RESOLVED that the City Council of (NAME OF TOWN, CITY OR COUNTY), (YOUR STATE), acting in the spirit and history of our community, does hereby declare that we

Strongly affirm our loyalty to the rights and liberties enshrined within the Constitution of the United States, including the Fifth Amendment right to due process and the Sixth Amendment right to trial;

Instruct all our public agencies to decline requests by federal agencies acting under detention powers granted by the NDAA that could infringe upon residents’ freedom of speech, religion, assembly, privacy, or rights to counsel.

Expect all federal and state law enforcement officials acting within the City to work in accordance with local law, and in cooperation with the (NAME OF TOWN, CITY OR COUNTY) Police Department, by allowing any detainees among (NAME OF TOWN, CITY OR COUNTY)’s residents or visitors access to a trial, counsel and due process, as provided by Article III of the Constitution of the United States;

Request that our United States Congressman and Senators monitor the implementation of the NDAA and actively work for the repeal of the NDAA’s detention provisions to restore fundamental rights and liberties embodied in the Constitutions of the (YOUR STATE) and the United States. To that end, the (MAYOR, CITY MANAGER, ETC) shall send copies of this resolution to our US Congressman and Senators, the US Senate Committee on the Judiciary, the US Senate Select Committee on Intelligence, the US House of Representatives Committee on the Judiciary, the US House of Representatives Permanent Select Committee on Intelligence, the US Attorney General, and the President of the United States.

The original proposed legislation can be viewed here

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