We Have to Pass it to Find Out What’s in it: Michigan’s SB 94

PANDA NDAA Updates

Senate Bill 94, recently signed into law by Governor Snyder, purports to “Nullify” the 2012 National Defense Authorization Act’s detention provisions. It does nothing of the sort. Instead, this bill gives us a great example of, and tells us what to look for, in feel-good, false security legislation. Let’s break it down:

Bill Text as Enrolled:

“AN ACT to prohibit any agency of this state, any political subdivision of this state, any employee of any agency of this state or any political subdivision of this state, or any member of the Michigan national guard from assisting an agency of the armed forces of the United States in the investigation, prosecution, or detainment of any citizen of the United States under certain circumstances.

The People of the State of Michigan enact:

Sec. 1. (1) Subject to subsection (2), notwithstanding any provision of law to the contrary, no agency of this state, no political subdivision of this state, no employee of an agency of this state or a political subdivision of this state acting in his or her official capacity, and no member of the Michigan national guard on active state service shall aid an agency of the armed forces of the United States in any investigation, prosecution, or detention of any person pursuant to section 1021 of the national defense authorization act for fiscal year 2012, if such aid would place that state agency, political subdivision, employee, or member of the Michigan national guard in violation of the United States constitution, the state constitution of 1963, or any law of this state.

(2) Subsection (1) does not apply to participation by state or local law enforcement or the Michigan national guard in a joint task force, partnership, or other similar cooperative agreement with federal law enforcement if that joint task force, partnership, or similar cooperative agreement is not for the purpose of investigating, prosecuting, or detaining any person pursuant to section 1021 of the national defense authorization act for fiscal year 2012.

Enacting section 1. This act takes effect upon the expiration of 90 days after the date it is enacted into law.

This act is ordered to take immediate effect.”

Assessing this legislation through the lens of an elected official or Judge Advocate General (JAG) Attorney attempting to get around it, and violate the rights of one or more citizens, we see several loopholes in this legislation, and some points that SB 94 does not even attempt to take on. First, we will go through those loopholes. We will then talk about crucial issues this bill does not address, and, finally, offer solutions.

Loopholes:

1. SB 94, Subsection 1, allows a state agent not acting in their “official capacity” to assist the Federal government in the violation of a person’s rights in Michigan.

The phrase “acting in his or her official capacity” requires that, in order for the action specified to be illegal, a state agent must be acting officially or “on the clock.” This will allow the Federal government to take a state agent out to a meal, or approach them on an off day, or work with them in any way that is out of their official capacity as an agent of the state. It also implies that assisting a federal extrajudicial military detention (kidnapping by any other name) is legal for a state agent to do. In essence, assisting a kidnapping is okay, so long as the agent is off the clock and the federal government is asking.

2. SB 94, Subsection1, allows state agents to assist any federal agency besides the U.S. Armed Forces in the violation of a person’s rights in Michigan.

Though the phrase “aid an agency of the armed forces of the United States,” provides a written red flag to help agents of the state determine who not to assist, it leaves the door wide open for any state agent to assist any other federal, or international, agency, or mercenary, when implementing the detention provisions, sections 1021 and 1022, of the National Defense Authorization Act for Fiscal Year 2012 (2012 NDAA). Thus, a state agent could assist the Department of Homeland Security, Central Intelligence Agency, or any number of myriad agencies attempting to implement the 2012 NDAA’s detention provisions in Michigan. Essentially, as long as it’s not the Armed Forces asking, any state agent can assist any federal agent, international agent, or even international armed forces, with a kidnapping in the State of Michigan.

3. SB 94, Subsection 1, allows state agents to assist in applications of the laws of war outside detention, including torture and extrajudicial execution, in Michigan.

The phrase “in any investigation, prosecution, or detention” is an attempt to cover all the bases in the 2012 NDAA, but is far too narrow. According to Section 1021 (c), the 2012 NDAA authorizes the disposition of a covered person under the law of war, including, but not limited to:

“(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).

(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.

(4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity (Emphasis added.)”

Of these, 1 roughly translates to detention, 2 to trial in a Military Court, and 3 and 4 to rendition. Further, as covered persons under the 2012 NDAA are considered “unprivileged enemy belligerents” under the law of war, anything permitted in wartime, including torture and extrajudicial execution, can be applied to persons in the U.S. It would be nearly impossible to enumerate the number of things a person could be subjected to on a battlefield, but the 2012 NDAA authorizes all of it.

SB094 fails to cover anything but an investigation, prosecution or detention. Were a state agent asked to help a federal task force torture or extrajudicially execute a person in Michigan under the 2012 NDAA, or even lock down a city in a scenario like that in Watertown, Massachusetts, nothing in this law would prevent it. Essentially, so long as the Federal government requests assistance with an action under the laws of war, whether that is a citywide lockdown (imposition of martial law) , an extraordinary rendition, or torture of a single person, that is not an “investigation, prosecution, or detention,” state agents in Michigan can easily assist.

4. SB 94, Subsection 1, permits a state agent to assist the Federal government in applying the laws of war, so long as the authority cited is not Section 1021 of the 2012 NDAA.

The phrase “pursuant to section 1021 of the national defense authorization act for fiscal year 2012” is a major loophole in this law, and seems to show the legislators’ ignorance of the real problem. Since it limits illegal actions to only those performed under this section, it brings two scenarios into play. Firstly, while Section 1021 of the 2012 NDAA is the only statutory authority for the imposition of the laws of war on a person inside the United States or an American citizen abroad, several more have been claimed by both the Bush and Obama Administrations.

In Hamdi v. Rumsfeld the Bush Administration claimed the power to detain an American citizen under the 2001 Authorization for Use of Military Force (AUMF), and under the Commander-In-Chief Authority in Article II of the U.S. Constitution. In Hedges v. Obama, as well as in the official explanation for the extrajudicial assassination of an American citizen abroad, the Obama Administration has claimed the AUMF as authority for detaining and executing American citizens. Were a federal agent to claim one of these powers, instead of the 2012 NDAA, as the reason a state agent should assist with imposing the law of war on a person in Michigan, SB94 does nothing to prevent that assistance.

The second scenario expands on the first. Since this law limits its prohibition to Section 1021 of the 2012 NDAA, if the sections were to simply change number, or even be inserted in another piece of legislation (as a few riders on an agricultural bill for example), SB94 would be rendered completely ineffective, and all the hard work put in by activists and legislators to pass it will have been rendered null.

Further, if the Federal government were to completely invent a nonexistent authority as a reason for detention, such as they did in Hamdi v. Rumsfeld when they claimed authority to detain an American citizen under Article II of the U.S. Constitution, SB 94 does nothing to prevent a state agent from assisting the federal government in the application of that pretend authority.

Essentially, so long as the Federal government cites anything other than Section 1021 of the 2012 NDAA, up to and including faeries and rainbows, as an excuse to apply the law of war in Michigan, SB94 does nothing to prevent a state agent from assisting.

5. SB94, Subsection 1, Allows state agents to claim it is Constitutional to assist the Federal government, and be therefore excluded from any penalty.

The phrase “if such aid would place that state agency…in violation of the United States constitution, the state constitution of 1963, or any law of this state.” leaves an extreme amount of wiggle room in court for any state agent caught assisting the U.S. Armed Forces, and reflects the Michigan State Legislature’s unwillingness to make any determination for themselves as to the lawfulness or Constitutionality of Section 1021 of the 2012 NDAA.

Since after committing an illegal act, a state agent must be charged in court, and according to both the Michigan and U.S. Constitutions, be afforded an attorney, due process, and a trial, this section allows for two easy defenses.

Firstly, the state agent could claim that Section 1021 of the 2012 NDAA is Constitutional, a likely defense since the 2nd Circuit Court of Appeals recently overturned the 4th District Court’s ruling that it was unConstitutional. Were the Supreme Court to rule that Section 1021 was Constitutional, as we expect the Court to do if they hear the case against it, that ruling would be a near perfect defense of the state agent’s actions.

Secondly, in some cases where the agent provided limited support, the state agent could argue that indeed, the actions he took were completely Constitutional, and did not place his agency in any Constitutional jeopardy by taking them. For example, the agent may have only given the U.S. Armed forces the address or description of their target, which by itself is not unConstitutional, but crucial assistance nonetheless. The agent could then argue that since their action was not necessarily unConstitutional, SB94 did not prohibit it.

Essentially, this section not only illustrates the cowardice of the legislature in refusing to declare any assistance to the imposition of Section 1021 unConstitutional, but leaves enough legal loopholes to easily allow a state agent to escape any repercussions for their assistance.

6. SB 94, Subsection 2, allows state agents to participate in a federal/state joint task force to apply the laws of war to a person in Michigan, so long as that JTF wasn’t created for that purpose.

“(2) Subsection (1) does not apply to participation…in a joint task force, partnership, or other similar cooperative agreement with federal law enforcement if that joint task force, partnership, or similar cooperative agreement is not for the purpose of investigating, prosecuting, or detaining any person…”

This subsection of SB94 protects any state agents, including the Michigan National Guard, in any cooperative agreement, task force, or partnership with Federal law enforcement, while they assist in the application of the law of war to a person in Michigan. If this task force, for example, was created to enforce Federal firearm laws, for example, under the Bureau of Alcohol, Tobacco, Firearms, and Explosives, and then used to detain, torture, or extrajudicially execute a person in Michigan under the law of war, SB94 does nothing to prevent it.

This loophole is made even more interesting by Section 1012 of the 2014 National Defense Authorization Act, signed into law by the President last week. This section continues funding from the 2004 NDAA, for a program that turns National Guard counterdrug units into counterterror units. Units that were originally for the purpose of countering illegal drugs are being converted into the very units that could enforce the law of war in Michigan. Not only can this loophole be exploited, the funding is already in place to do just that.

Essentially, if a state agent or member of the Michigan National Guard is part of an existing task force, and that JTF happens to assist the U.S. Armed forces in imposing the law of war in Michigan, no state agent can be punished under SB94.

What SB94 never touches:

1. SB 94 does not attempt to prohibit Federal agents, or any person, from using the 2012 NDAA’s detention provisions.

Since SB94 only attempts to prohibit state cooperation with the Federal government, it is very advantageous for the state, while leaving all doors open to the enforcement of the law it is supposedly “nullifying.” The State of Michigan can wipe its hands clean of any wrongdoing in an NDAA-related violation, while never challenging the Federal government or protecting the rights of their citizens. To accept SB94 one must also accept that an acceptable defense for a law enforcement officer, when asked why he did not stop a robbery, is “I did my duty. I didn’t help rob the guy, I just let the burglar do it.”

2. SB 94 does not attempt to block assistance with the unConstitutional application of the law of war in Michigan.

Since SB94 attempts to go after specific parts of the law of war, only investigation, prosecution, and detention, it is too narrow to adequately protect a person in, or resident of, Michigan. The law of war, not just the 2012 NDAA, has been used to justify extrajudicial executions and detentions of American citizens, and since SB 94 does not block assistance with the whole thing, it leaves state officials assisting the U.S. Armed Forces on official duty a choice to cite a different law and be released from accountability for any illegal action.

What is the solution?

In February, the Patriot Coalition drafted the Restoring Constitutional Governance Act (RCGA). This legislation solves the eight major problems with SB 94, and is fully supported by PANDA.

  1. Solving loopholes #1 and #2 and #1 of what SB94 never touches, the RCGA covers all persons, whether on official duty or from an agency outside the armed forces, or vice versa.
  2. Solving loophole #3 and #2 of what SB94 never touches, the basis of the RCGA is a prohibition on the use of the law of war, with the exception of the military, statewide. While detention, extrajudicial execution, and torture are noted, this model legislation entirely covers the laws of war and prohibits its application in any state.
  3. Solving loophole #4, the RCGA prohibits any authority, enacted or claimed by Congress or the Office of the President, including an NDAA, AUMF, or similar law, that would impose the law of war on any person or resident of that state.
  4. Solving loophole #5, the RCGA specifically declares these actions unConstitutional, and therefore unlawful, to use in a state.
  5. Solving loophole #6, the RCGA has no exception for federal/state Joint Task Forces, and prohibits the imposition of the law of war by any person, regardless of office, department, rank, badge, or lack of one.

You can find the RCGA for your state, or the RCGR (Restoring Constitutional Governance Resolution) for your city, here: http://theintolerableacts.org/wordpress/ndaa-resolutions/

When California’s AB351 passed into law, it was wrongly hailed as the end of NDAA detention in that state. Michigan’s SB 94 is even worse. It does nothing to protect the rights of any person in Michigan. If we continue to allow politicians to get away with doing less and less, and still call it a victory, eventually we may be reduced to nothing more than a placebo. Incidentally, this keeps the status quo, and that’s exactly what the tyrants in D.C. want us to do.

Dan Johnson is the Founder and National Director of People Against the NDAA.