Microscope Monday: Analysis of Massachusetts’ proposed Liberty Preservation Act, H. 1428


The newly formed Massachusetts chapter of PANDA is bringing forward legislation on Beacon Hill to prevent the indefinite detention of American citizens under the National Defense Authorization Act, or NDAA.

The notion that the President should be allowed to detain US citizens without trial and without limit in time of war is a horrifying idea, but not a new one. President Lincoln suspended the writ of habeas corpus during the Civil War. President Roosevelt interned Americans of Japanese descent during the Second World War. It had seemed by the early 1990s that we were recognizing that shameful past and leaving it behind. Then came 9/11.

In the aftermath of the attack, 1,200 Muslim Americans were detained on `material witness warrants’ and interrogated, often without any evidence beyond their religion. American citizen and civilian Jose Padilla was arrested in 2002, committed to a military brig for three and a half years, tortured and possibly driven insane, before being transferred to civilian court and sentenced to 17 years in prison in 2008, for conspiracy to conspire to commit terrorist acts abroad.

The US government in these cases was exceptionally anxious to preserve authority to detain anyone for any length of time, provided they could be vaguely associated with al-Qaeda. Many people expected that President Obama would abandon such arguments and restore the rule of law. In reality, he has allowed the power of indefinite detention to pass into law. In 2012, he issued a signing statement to that year’s NDAA (it’s an annual thing), claiming that he would never use the power of indefinite detention. That’s not even legally binding on him, let alone on his successors. In 2013’s bill, even that signing statement has disappeared from view. Hence, people in many states have been proposing bills like the Liberty Preservation Act.

Over the fold, for the details of what the Liberty Preservation Act would do!

[Previous Microscope Mondays covered: the Free Speech Act; the Electronic Privacy Bill; the Drone Privacy Bill; and the infamous Act Updating the Wire Interception Law.]

The major provisions of the Liberty Preservation Act would be as follows:

1. To forbid the Commonwealth of Massachusetts from supporting or participating in the implementation of Sections 1021 or 1022 of the National Defense Authorization Act of 2012. These, respectively, assert that:

  • The President has the authority to determine whether or not a trial will be held for suspected terrorists, and what trial will be held;
  • Detention without trial by the military would be required for a certain class of suspected terrorist and authorized but not required for suspected terrorists who are US citizens.

2. Any such efforts to implement Section 1021 or Section 1022 would have to be reported to the Governor and Legislature.

  1. A state official or employee violating these provisions would be guilty of a class A misdemeanor leading to imprisonment for not more than six months; a federal official would be guilty of a class B felony carrying a punishment of one year’s imprisonment.

Here at Digital Fourth, we wish anti-NDAA activists every success in their efforts. As heartily as I support the proposition that these provisions of the NDAA are unconstitutional, however, I unexpectedly find myself unable to support the Liberty Preservation Act, and this is why.

This is a nullification bill. In other words, citing theories that have made no headway whatsoever in the federal courts, it asserts that agents of the Commonwealth of Massachusetts have the ability not to comply with federal law, and that the Commonwealth of Massachusetts has the ability to criminalize and prosecute the conduct of agents of the federal government operating in Massachusetts who are complying with federal law. If this law were to pass, and were to be litigated, it would be immediately struck down. I’m not making this argument lightly; even the chairman of the libertarian Cato Institute acknowledges that this kind of law won’t fly.

It will therefore not have the intended effect of preventing any actual indefinite detention; its impact will be purely symbolic. It may have the ancillary effect of building interest in this issue among activists, but alternate strategies toward the same end of thwarting indefinite detention would also have that effect.

A more successful strategy for states to challenge an unconstitutional federal law is for the state to sue in federal court, either on its own or in concert with other states, to have the federal courts determine the constitutionality of the federal law in question. For example, in Massachusetts v. United States Department Of HHS et al., Massachusetts Attorney-General Martha Coakley sued in federal court over the constitutionality of the Defense of Marriage Act. Judge Tauro ruled in this case in 2010 that the Defense of Marriage Act violated the Tenth Amendment of the Constitution, by going beyond the constitutional authority of the federal government.

Even without participation directly by the states, there has already been a district court ruling preventing enforcement of the indefinite detention provisions of the NDAA on First and Fifth Amendment grounds. This injunction has been stayed by the Second Circuit Court of Appeals, pending an appeal by the Obama administration. Oral arguments on this case were heard February 6, and there has not been a ruling from the appeals court yet. There is extensive coverage of developments in this case, Hedges v. Obama, here.

So, what strategy should anti-NDAA activists in Massachusetts pursue that has a chance of making headway? I spot a few potential actions:

  • Ask the Attorney General’s office to file an amicus brief in support of the plaintiffs in the Hedges case.
  • Amend the Liberty Preservation Act so that it does not confrontationally pre-empt federal law, but still prohibits the expenditure of state funds in connection with the enforcement of these provisions of NDAA, and requires the reporting of attempts at enforcement. This would be in line with state and local prohibitions on non-federal officials enforcing federal immigration laws, which appear so far to have held up in court.
  • File Freedom of Information Act requests with relevant federal agencies operating here in Massachusetts to find out whether there have been any cases here of attempts to enforce these provisions.
  • Last, of course, anti-NDAA activists can protest and lobby federal officials, elected or unelected, to overturn these provisions of the NDAA, and I would strongly support any such efforts.

4 thoughts on “Microscope Monday: Analysis of Massachusetts’ proposed Liberty Preservation Act, H. 1428”

    1. Hi Daniel. One thing you can do is get in touch with PANDA at http://www.pandaunite.org. Their Massachusetts affiliate is having a meeting this Sunday at Waltham Public Library, and the details of that are on the calendar on the front page of this site. Like I say in the article, while the Liberty Preservation Act may not be the best strategy to pursue, the aim of overturning these sections of the NDAA is an excellent one.

  1. Since Justice Marshall’s holding that any law repugnant to the Constitution is automatically null has not been tested for such a fundamental right since Marburyt v. Madison, I doubt the Supreme Court would strike it down without invoking a Constitutional crisis, which is long overdue.

    Sometimes you hvae to do what’s right whether you think it will work or not, and let the chips fall where they may. Let it never be said that this generation stayed silent

    1. I don’t particularly want Marbury v. Madison struck down. It is not unreasonable for the federal courts, and ultimately the Supreme Court, to have the final say over the meaning of the federal Constitution we have. We tried a different setup with the Articles of Confederation, and it didn’t work out particularly well.

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