Liberty

Model to Nullify the NDAA using State Legislatures, City Councils, and/or County Commissioners

This is the verbiage that was developed by the Rhode Island Liberty Coalition, specifically Mr. Blake A. Filippi,  in an effort to empower states, counties, and localities to take control of the constitutionality of their own law enforcement and law enforcements’ sworn oath of office, which protects the American people from indefinite detainment without due process.  This language can be changed to fit the specifics of other states, counties, and municipalities, and we want to see as many people as possible taking advantage of empowering each other at a state and local level to stop the unconstitutionality of the National Defense Authorization Act (NDAA) and the Enemy Expatriation Act.  Thank you to the Rhode Island Liberty Coalition for making this wonderful resource available to our country.

First, is the Intro Letter – the actual Model and Resolution are beneath…

Dear Compatriot,

Thank you for visiting the Rhode Island Liberty Coalition (RILC) and downloading this important piece of model legislation as a framework for state and local nullification of the 2012 Nation Defense Authorization Act (“NDAA”). Section 1021 of the 2012 NDAA repeals Posse Comitatus and purports to authorize the Office of the President of the United States to:
•    Utilize the Armed Forces of the United States to police United States citizens and lawful resident aliens within the United States;
•    Indefinitely detain United States citizens and lawful resident aliens suspected of supporting terrorism, without charge or trial, until the end of hostilities authorized by the Authorization for Use of Military Force, 2001 P.L. 107-40;
•    Subject those United States citizens and lawful resident aliens to military tribunals; and
•    Transfer those United States Citizens and lawful resident aliens to a foreign country or foreign entity.

Such executive powers are unconstitutional and repugnant to a free society. State and local governments are duty-bound to respond immediately to this unconstitutional and un-American affront to Liberty and Due Process. We must not wait for the Federal Courts to strike down this law; if the Courts will even act at all. Indeed, our Supreme Court has consistently avoided questions of Executive power and American Liberties during the age of terrorism: the Supreme Court still has not ruled upon the most controversial provisions of the “Patriot Act,” and it did would not take up the question of military detainment of United States citizens in the case of Jose Padilla. Conscientious
citizens, like you, must demonstrate to state and local governments that provisions of the NDAA are unconstitutional and antithetical to the United States, and that legislation nullifying the NDAA is required.
To these ends, the RILC has drafted broad model legislation, which clearly lays forth the offensive portions of the NDAA and the state and federal constitutional provisions it violates. The legislation includes a resolution that condemns section 1021 of the NDAA. It further provides that state/county/local officials and employees may not knowingly cooperate with an investigation or detainment of a United States citizen or lawful resident alien by, or by in-part, the Armed Forced of the United States. The Supremacy clause of the United States Constitution cannot overturn this provision because the Federal Government is not able to force state and local government officials to take affirmative acts, in this case, the cooperation with an investigation and/or detainment by the Armed Forced of the United States.
Next, the legislation goes one big step further and renders it unlawful for members of the Armed Forces of the United States to conduct investigations or detainments of United States citizens or lawful resident aliens. The Constitution’s Supremacy Clause may override this provision. However, the RILC takes the position that the Federal Government cannot shred the most fundamental portions of the Constitution through indefinite detainment without charge, including the rights to Habeas Corpus and Due Process, and then seek to utilize the same Constitution’s Supremacy Clause to legitimize those patently unconstitutional government acts. Inclusion of the prohibition on investigations and detainment is important because it provides local police and sheriffs with color of authority to halt investigations and detainments by the United States Armed forces.
Finally, the legislation provides criminal penalties for violation of its provisions; both for local officials and members of the Armed Forces of the United States. These penalties are not severe because, in most states, municipalities are capped at the criminal penalties that can be assessed through ordinance. The penalties can be changed according to your jurisdiction, and if this legislation is submitted to a state legislature, there is more authority to enact stiff penalties. The same Supremacy Cause issues still apply to criminal prosecutions of members of the Armed Forced of the United States.
Of course, RILC advocates passage of the model legislation’s resolution as well as all prohibitions and penalties. Your local legislative body may decline such a sweeping enactment. Advocate well, and push for as much inclusion as possible, knowing that some provisions may not be passed.
RILC has geared this piece of legislation to the beautiful state of Rhode Island, specifically including the provisions of the Rhode Island Constitution offended by the NDAA. In order to conform to your state, you should simply replace the Rhode Island constitutional provisions with your state constitutional provisions. Also, wherever text is underlined, you need to insert the term appropriate to your forum. For instance, state legislatures pass Acts, while local municipalities pass Ordinances. Not to worry, any legislative body desirous of passing the model legislation will have staff attorneys whom will redraft the legislation to conform to local standards, codification rules, etc… RILC’s model legislation serves as comprehensive framework for presentation and discussion, and may be adjusted to reflect local standards and political realties.
One final note: Please be strategic about introducing NDAA nullification legislation. Build coalitions, talk to religious groups, tea party groups, the occupy movement, progressives and conservatives. Opposition to the NDAA transcends political parties and philosophies. Yet, local elected officials will be wary about the appearance of challenging the Federal Government. Your elected officials must have the community behind them in order to take the leap. Do the ground work. Peace and much success!

In Liberty,
Blake A. Filippi
Rhode Island Liberty Coalition

*This Model Act is the Property of the Rhode Island Liberty Coalition and any replication or reproduction for purposes other than herein authorized is strictly forbidden. Thanks!

**This model legislation is not intended as legal advice or an offer of legal advice. No attorney-client relationship has been created by publication of this model act.

(Portions underlined must be changed to reflect your forum)

 

A RESOLUTION Condemning Section 1021 of the 2012 National Defense Authorization Act;

 

AN (ACT or ORDINANCE) Rendering it Unlawful for (Your: State Municipality or County) Officials and Employees to Cooperate With an Investigation and/or Detainment of United States Citizens and resident legal aliens by, or by in-part, the Armed Forces of the United States; and

 

AN (ACT or ORDINANCE) Rendering it Unlawful for Individuals in the Armed Forces of the United States to Conduct Investigations or Detainments Within (Your: State Municipality or County) of United States Citizens and resident legal aliens,

. . . .

 

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 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, Section 1022 of the 2012 NDAA specifically excludes United States citizens, and lawful resident aliens for conduct occurring within the United States, from its mandatory detention provisions;

 

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, 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, 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, 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 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 United States Citizens and lawful resident aliens captured in the United States;

 

WHEREAS, the United States Supreme Court has not decided whether the 2001 Authorization for the Use of Military Force Against Terrorists allows the Office of the President to indefinitely detain without charge United States Citizens and lawful resident aliens captured in the United States;

 

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, 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 citizenry of 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, Section 1021 of the 2012 NDAA as it purports to authorize, 1) detainment of United States Citizens and legal resident aliens captured within the United States of America without charge, 2) military tribunals for United States Citizens and legal resident aliens captured within the United States of America, and 3) the transfer of United States Citizens and legal resident aliens captured within the United States of America to foreign jurisdictions, is 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, Section 1021 of the 2012 NDAA as it purports to authorize, 1) detainment of United States Citizens and legal resident aliens captured within the United States of America without charge or trial, 2) military tribunals for United States Citizens and legal resident aliens captured within the United States of America, and 3) the transfer of United States Citizens and legal resident aliens captured within the United States of America to foreign jurisdictions, is repugnant to the following rights enshrined in the (Rhode Island) Constitution:

  • 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 Constitutional 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 Section 1021 of the 2012 NDAA as it purports to 1) repeal Posse Comitatus and authorize the President of the United States to utilize the Armed Forces of the United States to police United States citizens and lawful resident aliens within the United States of America, 2) indefinitely detain United States citizens and lawful resident aliens captured within the United States of America without charge until the end of hostilities authorized by the 2001 Authorization for Use of Military Force, 3) subject American Citizens and lawful resident aliens captured within the United States of America to military tribunals, and 4) transfer American Citizens and lawful resident aliens captured within the United States of America to a foreign country or foreign entity;

 

NOW THEREFORE,

 

1. No (state, county or municipal) official or employee, acting in the capacity of a (state, county or municipal) official or employee, shall knowingly cooperate with an investigation and/or detainment of a United States citizen or lawful resident alien located within the United States America by, or by in-part, the Armed Force of the United States of America, excepting those of the United States Coast Guard when it is not operating as a service in the Navy, and excepting National Guard units and State Defense Forces while under the authority of the governor of the State of (Your State), and excepting internal investigations and detainments by the Armed Forces of the United States of America of active duty members of the Armed Forces of the United States of America;

 

2. No member of the Armed Forces of the United States of America, nor any person acting directly with, or on behalf of, the Armed Forces of the United States of America, excepting those of the United States Coast Guard when it is not operating as a service in the Navy, and excepting National Guard units and State Defense Forces while under the authority of the governor of the State of (Your State), and excepting internal investigations and detainments by the Armed Forces of the United States of America of active duty members of the Armed Forces of the United States of America, shall conduct investigations and/or detainments within (Your State, County or Municipality) of United States citizens and lawful resident aliens;

 

3. Any violation of the preceding sections #1 or #2 shall be punishable a fine not to exceed $500.00 and/or six (6) months in jail.

 

4. Severability: If any provision or portion of this (Act or Ordinance) is or becomes illegal, such illegality shall not affect the remaining provisions.

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