Resistance to NDAA Kidnapping Powers is our Duty

Tenth Amendment Center: Constitutional Conversation

Representative Brett Hildabrand of Kansas’ 17th district has introduced a bill, HB2161, to nullify the so-called “indefinite detention” powers of the National Defense Authorization Act (NDAA). HB2161 has many co-sponsors including Representatives: Bradford, Claeys, Garber, Grosserode, Hedke, Houser, Howell, Montgomery, O’Brien, Peck, Petty, Read and Rothlisberg. This bill is currently in the Committee on Corrections and Juvenile Justice.

This bill is different from and quite a bit stronger than previous bills introduced around the country to nullify NDAA indefinite detention. It includes kidnapping charges for federal agents attempting to arrest people in Kansas without due process. This concept stands on a strong leg, because when you remove due process from the equation, “indefinite detention” is little more than government-sanctioned kidnapping.

The bill states, in part: “A person who violates the provisions of this section may also be prosecuted for, convicted of, and punished for kidnapping or aggravated kidnapping, K.S.A. 2012 Supp. 21-5408, and amendments thereto.”

Violators of this bill could be subject to the following criminal penalties, if convicted of kidnapping:

Kidnapping is a severity level 3 felony with a potential of 8 years in prison. Aggravated kidnapping is a severity level l felony with a prison sentence of over 20 years being possible. Both of these felonies are subject to a fine “to not exceed $300,000”. The exact imprisonment time is determined by a variety of variables and guided by a complex grid and attorneys.

“Indefinite detainers” could also be charged with a misdemeanor charge of “denial of due process” which could include “a definite term of confinement in the county jail which shall be fixed by the court and shall not exceed one year” and “a sum not exceeding $2,500.”

This bill also states, “the provisions of this act shall not apply to the court martial of any member of the United States military pursuant to the uniform code of military justice, 10 U.S.C. Chapter 47.”

“When I first heard that the federal government was considering indefinite detention, I was horrified, but I was unaware of how to fight it at the state level. After reading about anti-NDAA legislation introduced in Texas, I knew we needed to attempt the same thing in Kansas,” said Representative Hildabrand.

He continued, “The kidnapping portion was added to convey the seriousness of the offense. If a non-government official were to take someone against their will and hold them without access to the outside world, we would consider that a kidnapping. If a government official does the same thing, without granting access to a lawyer or the courts, I see no difference.”

Representative Hildabrand’s bill will not release jurisdiction from the state of Kansas to the military. “I believe that a person either supports the whole Constitution, in every circumstance or they do not support it at all. Therefore, when any one is denied due process, I consider it an assault on the Constitution. I feel that is a key concept to convey to those serving in law enforcement and the military. If a bill violates the Constitution, it has no authority. The often misquoted Supremacy Clause states “laws pursuant to the Constitution.” The key being that it is pursuant to the Constitution to have validity.”

HISTORICAL PRECEDENT

A state proposal charging federal agents with kidnapping is not unprecedented in American history. In fact, such an action in the past has held the high moral ground in response to immoral, unjust, and unconstitutional federal slave-catching laws in the 19th Century.

In 1850, when President Millard Fillmore signed the second “Fugitive Slave Act,” due process was under serious attack by the federal government. The law compelled people of all states to “assist” federal marshals and their deputies with the apprehension of suspected runaway slaves. It brought all trials involving alleged fugitive slaves under federal jurisdiction. It included large fines for anyone who aided a slave in their escape, even by simply giving them food or shelter.

On top of it, bounties were paid to commissioners in fugitive slave cases. $10 was paid if a person was sent back to slavery, and $5 if the person was allowed freedom. The federal government was paying people to capture other people and send them to slavery.

The act also suspended habeas corpus and the right to a trial by jury for alleged “slaves,” and made their testimony inadmissible in court. The written testimony of the supposed slave master, on the other hand, which could be presented to the court by slave hunters, was given preferential treatment.

In response, state legislatures in Vermont, Connecticut, Rhode Island, Massachusetts, Michigan, Maine, Kansas and Wisconsin passed what were called “personal liberty laws.” The state nullification bills made it difficult to nearly impossible to enforce the fugitive slave acts in those states. These laws were varied but generally guaranteed basic due process rights for accuse runaways. In some cases, these laws extended habeas corpus, provided for jury trials for accused runaways and harshly punished false testimony.

Vermont passed a “Habeas Corpus Law,” requiring state judicial and law enforcement officials to actually help captured fugitive slaves there. Massachusetts took a really strong stand – and passed a law that provided for kidnapping charges to anyone trying to use these “indefinite detention” provisions of the fugitive slave act.

In response to the Massachusetts bill threatening kidnapping charges on people who – well, kidnapped someone for having the wrong skin color – no federal agent was charged with kidnapping. Was this because the politicians there were grandstanding to garner support? No, it was no escapee was ever captured for return after the law was passed. The feds simply backed off, and the state response worked.

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THE LESSON

In many situations, if you attempted to do what the federal government does every day you’d find yourself in prison for a long, long time. When it comes to issues like kidnapping, the hypocritical double-standard is even worse. Morality and justice demand that we do something about it. The people of Massachusetts and other states took the high moral ground in resisting the indefinite detention powers of the fugitive slave act in the 19th Century. Many states today are taking similar steps against the indefinite detention powers of the NDAA.

Whatever form it takes it’s the resistance that matters. When it comes to NDAA kidnapping powers, resistance is our duty.

LEGISLATION AND TRACKING

If you live anywhere outside of kANSAS, please contact your own legislators regarding anti-NDAA legislation. If none has been introduced in your state, you can email them The Liberty Preservation Act model legislation.

Track the status of NDAA nullification in states around the country HERE

ACTION ITEMS

If you are Kansas resident, join the Nullify NDAA group on Facebook and get active here:
http://www.facebook.com/groups/nullifyndaakansas/

Also, please contact the Committee on Corrections and Juvenile Justice.

Chair: Representative John Rubin, District 18
Phone: [phone]
Email:[e-mail]

Vice Chair: Representative Ramon Gonzalez, District 47
Phone: [phone]
Email:[e-mail]

Ranking Minority Member:Representative Gail Finney, District 84
Phone: [phone]
Email:[e-mail]

Members:
Representative Steven Becker, District 104
Phone: [phone]
Email:[e-mail]

Representative Rob Bruchman, District 20
Phone: [phone]
Email:[e-mail]

Representative Larry Campbell, District 26
Phone: [phone]
Email:[e-mail]

Representative Blaine Finch, District 59
Phone: [phone]
Email:[e-mail]

Representative Brett Hildabrand, District 17
Phone: [phone]
Email:[e-mail]

Representative Melanie Meier, District 41
Phone: [phone]
Email:[e-mail]

Representative Robert Montgomery, District 15
Phone: [phone]
Email:[e-mail]

Representative Tom Moxley, District 68
Phone: [phone]
Email:[e-mail]

Representative Janice Pauls, District 102
Phone: [phone]
Email:[e-mail]

Representative James Todd, District 29
Phone: [phone]
Email:[e-mail]

NOTE: Michael Boldin contributed to this report

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