California Nullifies NDAA Indefinite Detention

By Tim Brown

California Governor Jerry Brown signed Assembly Bill (AB) 351 into law yesterday that opposes not only the indefinite detention sections of the National Defense Authorization Act, but any and all federal law, which would seek to disregard one’s constitutional rights, specifically with regards to the Fifth Amendment.

The legislation, titled The California Liberty Preservation Act, contains the following prohibitory language:

The United States Constitution and the California Constitution provide for various civil liberties and other individual rights for a citizen of the United States and the State of California, including the right of habeas corpus, the right to due process, the right to a speedy and public trial, and the right to be informed of criminal charges brought against him or her.

Certain provisions of federal law affirm the authority of the President of the United States to use all necessary and appropriate force to detain specified persons who engaged in terrorist activities.

This bill would prohibit an agency in the State of California, a political subdivision of this state, an employee of an agency or a political subdivision of this state, as specified, or a member of the California National Guard, on official state duty, from knowingly aiding an agency of the Armed Forces of the United States in any investigation, prosecution, or detention of a person within California pursuant to (1) Sections 1021 and 1022 of the National Defense Authorization Act for Fiscal Year 2012 (NDAA), (2) the federal law known as the Authorization for Use of Military Force, enacted in 2001, or (3) any other federal law, except as specified, if the state agency, political subdivision, employee, or member of the California National Guard would violate the United States Constitution, the California Constitution, or any law of this state by providing that aid.

The bill would also prohibit local entities from knowingly using state funds and funds allocated by the state to those local entities on and after January 1, 2013, to engage in any activity that aids an agency of the Armed Forces of the United States in the detention of any person within California for purposes of implementing Sections 1021 and 1022 of the NDAA or the federal law known as the Authorization for Use of Military Force , if that activity would violate the United States Constitution, the California Constitution, or any law of this state, as specified.

While not having the teeth of actual force being used against federal agents or the military if they were to attempt to revoke habeas corpus, such as the legislation put forward in Albany, New York recently, it at least takes a step in saying the state will not provide any resources to help in the matter. That’s good, but no good enough. There needs to be a force of opposition from the state against a tyrannical government that would seek to usurp the rights of the citizens of California that it has sworn to protect.

While many have said that nullification cannot be done, and Florida Senate President Don Gaetz called for nullifiers to be “shot and hanged,” our own Publius Huldah has taken the words of James Madison to smack down nullification deniers. PH has also called for the nullification of Obamacare by the states. She has also gone into great detail as to why nullification of unconstitutional acts of Congress is necessary.

Both Democrats and Republicans worked together to sponsor the legislation. The bill was introduced by Tim Donnelly and managed by Mark Leno.

According to the Tenth Amendment Center:

This language of AB351 goes far beyond what has been considered in most other states, which focus solely on indefinite detention powers under the 2012 National Defense Authorization Act (NDAA), and nothing else. Donnelly’s legislation broadened the scope by recognizing that indefinite detention should not be complied with no matter what federal law is used to justify it. Donnelly confirmed this broad scope, “AB351 will prevent California from implementing indefinite detention for any reason.”

This can make a HUGE dent in any federal effort to detain without due process in California. As Judge Andrew Napolitano has said recently, such widespread noncompliance can make a federal law “nearly impossible to enforce” (video here). Quite simply, the federal government is going to have an extremely difficult time – at best – carrying out indefinite detention in California without the assistance of California.

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Now that the bill is law in California, AB351 creates a climate for each local community in the state – counties, cities, towns, etc – to step up and get involved. To give the bill teeth activists are strongly encouraged to take action at a local level – to press their local governments to pass legally-binding ordinances to give the new state law additional force.

The local legislation would do the following:

a) Express full support for the new state policy to “refuse to provide material support for or to participate in any way with the implementation within this state of any federal law that purports to authorize indefinite detention of a person within California.”

b) Create an express prohibition on the use of any local government assets – funds, employees, and the like – to provide material support for or participate in any way with federal indefinite detention.

Once the state is blanketed with localities which have passed such measures, the practical effect would be even stronger than if AB351 had ordered them to do the same. Reaching this point would mean that support for the effort would be well into the mainstream around the state, and that resolve to ensure the resistance continues to victory is likely much stronger.

The Tenth Amendment Center has also provided model legislation to nullify indefinite detention in every state.