Dear friends,
During my more than two decades in the Virginia General Assembly, I can recall few battles that have had more twists and turns than HB 1160. In fact, I can’t.
I first heard about the terrible detention provisions being considered for insertion as section 1021 into the National Defense Authorization Act of 2012 around Thanksgiving Day (2011).
I hoped then that the Congress would come to its senses, which it did not. I saw this provision being supported by all too many Republicans joining Democrats in Congress who seemed to have forgotten that they were bound by the U.S. Constitution. The main problem initially was the Senate Armed Services Committee.
At one point the NDAA Bill had a provision in it which would have prevented the President from detaining American Citizens, but the White House, according to Senator Carl Levin (D), wanted that provision removed. So, we have a president who says he won’t use a power he wanted left expressly in the NDAA bill. This is not comforting.
So on New Year's Eve when Americans were celebrating and enjoying their family life, Barrack Obama signed into law this terrible bill which puts the Liberty of all Americans into jeopardy, despite his promise that he would not use the powers he was given under the bill.
At first it seemed I could do little to affect what Congress or the President did. But then I reflected that the states are not required to be mere administrative extensions of the national government. So I determined that we in Virginia would formally refuse to cooperate with the U.S. Military with respect to the unlawful detention of Virginians under NDAA without the full protection of our Bill of Rights.
As we get near the finish line, I want now to explain how we ended up where we are, and why I still think it is tremendously important to enact HB 1160 into law.
There have been, now, several different versions of HB 1160: the one I introduced on January 16, the one that was approved by a House Subcommittee and then reported out of the House Courts of Justice Committee on January 25, the one which passed the House of Delegates on February 13 (and later the Senate receded to on March 7 because it was the only chance we had for getting a bill), a very different and shorter version which read easier and which passed the Senate on February 28 which the House rejected March 6, and now the bill with the Governor's Amendments reported on April 10.
Each step of the way, I had the assistance of two well-respected constitutional attorneys who have been instrumental in fighting for liberty on many fronts across the nation, and I am greatly indebted to them for their time and analysis throughout the process.
First, let me say that each of the versions of HB 1160 had its strengths and weaknesses, and this bill, like most other bills, is not a perfect bill -- but I believe it is very important that the General Assembly adopt the bill with the Governor's amendments. Everybody has a pride of authorship, but the legislative process is very good for cultivating humility.
My understanding is that the Governor eventually expressed and articulated two main concerns.
First, he wanted to ensure that the ban on cooperation with the federal government on matters of NDAA detentions did not preclude information sharing with respect to various federal task forces in which Virginia cooperates regarding legitimate law enforcement matters. This is why the Senate removed the language barring participation in "investigation" since investigation into probable criminal activity under federal and state law is legitimate and important, not leading to the detention of anyone.
The Senate also removed language about participation in "prosecutions" because literally there are no prosecutions under this section of federal law -- which is why the detentions are unconstitutional. The Governor, in consultation with the Attorney General’s office, felt strongly that HB 1160 could be misread to ban participation in these legitimate law-enforcement task forces, and we agreed on language which addressed his concern without violating the principle that Virginia officials were to be prevented from participating in any possible future task forces relating to unlawful detention.
Second, the Governor wanted to make certain that Virginia's officials would not be caught in an unintentional violation of HB 1160. Therefore, he wanted the standard to be "knowingly." I had no problem with this, because I don't want this bill to be a trap for law enforcement officers, I want it to be a policy that guides the judgment of our civilian police and National Guard members and other state agencies.
If a state official shares a bit of information in good faith which is then misused by the federal government, then that would not be done "knowingly" -- and I agreed to that change.
Also, it is important to remember that no version of HB 1160 created a crime. Rather, it states a policy of the Commonwealth, and serves as the basis for administrative regulations which will limit the Virginia Guard and the Virginia Militia. There is no stated direct sanction for violating it, except those employment reprimands which apply to those who disregard the public policies of the Commonwealth. So, one would hope that anyone who violated the policies of the General Assembly would find themselves quickly moved out of a position of public trust and into the private sector.
HB 1160 is still a powerful statement and is very effective in withdrawing Virginia from participation in any NDAA detentions and setting an example to our sister states of the Union. If passed by the General Assembly and signed by the Governor, HB 1160 will be the first state law of its kind, prohibiting state cooperation with the U.S. Military with respect to detentions of Virginians under NDAA. And it will send a powerful message to Congress and the Executive.
Other states are considering taking some form of action against NDAA detentions, but most of those are non-binding resolutions. With HB 1160, Virginia will have enacted a binding law. It is my hope that many other states will follow the lead of Virginia in refusing to cooperate in detentions in violation of the U.S. and state constitutions. Even more important, it is my hope that those states that do take such action will serve as a wake-up call for those in Congress to undo the harm they have done by enacting NDAA section 1021
In the back-and-forth with the Governor and the Attorney General’s office, I want to assure you that had the central principle of this legislation been abandoned, I would have preferred a veto and have worked for an override because we cannot quit our fight over preservation of a citizen’s natural right to Liberty in our land, to not risk being kidnapped by police or military authorities.
Very influential individuals from Washington urged Governor McDonnell to veto HB 1160 on “practical” grounds as well as claims that HB 1160 was unconstitutional. Your strong support for HB 1160 kept this bill alive so I thank you for your efforts.
Thank you, and once again, please urge your delegate and senator to support Governor McDonnell’s changes to HB 1160.
Delegate Bob Marshall
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