last week lawmakers in the state of Maine enlisted in the fight against federal tyranny and in defense of constitutional liberty. Specifically, the state legislature approved HP 1397, a measure addressed to the President of the United States and intended to remind him of the Fourth Amendment protections against unreasonable searches and seizures, the Sixth Amendment’s guarantee of the right to counsel, and the age-old concepts of due process and habeas corpus.
By now, readers should be familiar with the purpose behind passage of this joint resolution — the National Defense Authorization Act of 2012. Specifically, Sections 1021 and 1022 of the NDAA, which endow President Obama with the power to deploy the American armed forces to arrest and indefinitely detain American citizens he suspects of posing a threat to national security.
Here are the relevant provisions of the Maine resolution:
WHEREAS, the United States Congress passed the National Defense Authorization Act for fiscal year 2012 on December 15, 2011, and the President of the United States signed the Act into law on December 31, 2011; and
WHEREAS, the Act directs the Armed Forces of the United States to detain any person who is captured in the course of hostilities authorized by the federal Authorization for Use of Military Force Against Terrorists and who is determined to be a member of or part of al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda and to have participated in the course of planning or carrying out an attack against the United States or its coalition partners; and
WHEREAS, the disagreements and uncertainty in interpretation of the law has raised significant concerns about due process for United States citizens; and
WHEREAS, the prospect of the indefinite detention of United States citizens violates, without due process of law, basic rights enshrined in the United States Constitution, such as the right to seek a writ of habeas corpus, the right to petition for a redress of grievances, the right to be free from unreasonable searches and seizures and the right to counsel; and
WHEREAS, it is crucial to national security that funding contained in the National Defense Authorization Act for the Department of Defense and members of the military and their dependents remain intact; and
WHEREAS, the members of this Legislature have taken an oath to uphold the United States Constitution and the Constitution of Maine; now, therefore, be it
RESOLVED: That We, your Memorialists, most respectfully urge and request that the President of the United States and the United States Congress amend the National Defense Authorization Act to clarify that any provisions contained within will not deprive United States citizens of the rights of due process…
The chief sponsor of this joint resolution is state Representative Richard Cebra (R-Naples). When asked by The New American what motivated him to memorialize his opposition to the NDAA, Cebra replied, “I believe it is one of the state legislature’s functional, foundational pillars to constantly keep the federal government in check and to respond when her citizens’ constitutional rights are threatened.”
In a story published by the Tenth Amendment Center, the director of the Maine Tenth Amendment Center explained that “the primary opposition to the resolution came not from those opposed to challenging NDAA detention provisions, but from lawmakers wanting to expand the language to cover all ‘persons,’ not just citizens.”
On March 20, the state Senate of Maine followed the example of their colleagues in the other house of the legislature and adopted HP 1397.
In order to more completely understand the importance of the stance taken by the state legislature of Maine, as well as the other measures that have been put forward by other state and local governments, it is important to have a cursory understanding of the principle of nullification, as well as of the shocking unconstitutional provisions of the NDAA.
Simply stated, nullification is the principle that each state retains the right to nullify, or invalidate, any federal law that a state deems unconstitutional. Nullification is founded on the assertion that the sovereign states formed the union, and as creators of the compact, they hold ultimate authority as to the limits of the power of the central government to enact laws that are applicable to the states and the citizens thereof.
As this explanation reveals, state Representative Cebra’s resolution is not strictly a nullification of the NDAA since it’s nonbinding. It is, nonetheless, a worthwhile and praiseworthy reminder to the President that the states are aware of these federal usurpations and will not idly permit their sovereignty to be eviscerated without opposition.
As for the NDAA, on December 31, 2011, with the President’s signing of that law, the writ of habeas corpus — a civil right so fundamental to Anglo-American common law history that it predates the Magna Carta — is voidable upon the command of the President of the United States. (A writ of habeas corpus is a judicial mandate requiring that prisoners be brought before a judge or into court to determine whether the government has the right to continue detaining them.) The Sixth Amendment right to counsel is also revocable at the President’s will.
