What’s the greatest way to derail a movement?
While there are many ways, from discrediting the leadership to jailing the participants, there is one nearly surefire way to kill a political movement.
Pretend you fixed the problem.
On June 26th, 2013, Alaska Governor Sean Parnell signed HB69, a bill that, according to some, would “nullify” the detention provisions in the NDAA. It does nothing of the sort. Although it seems to demonstrate Alaska’s will to stand up for the liberty of its citizens, and tries to take on gun control as well, this law does nothing to protect the inalienable rights of the people.
Breaking it Down
1. HB 69 only prohibits state agents from assisting in the violation of a person’s “due process,” which does not guarantee anything.
2. HB 69 is not easily understood, and therefore not easily enforced.
3. HB 69 does not prohibit federal agents from using the powers in the NDAA detention provisions.
4. HB 69 does not require the state of Alaska to interpose and protect the rights of its citizens.
5. HB 69 does not solve the root problem of the 2012 NDAA detention provisions.
The text of HB 69 relating to the NDAA detention provisions reads as follows:
A state or municipal agency may not use or authorize the use of an asset to implement or aid in the implementation of a requirement of an order of the President of the United States, a federal regulation, or a law enacted by the United States Congress that is applied to…deny a person a right to due process, or a protection of due process, that would otherwise be available to the person under the Constitution of the State of Alaska or the Constitution of the United States. (Emphasis added)
Firstly, Due Process has no singular meaning. On September 30, 2011, Anwar-Al-Awlaki, an American citizen merely accused of terrorism, was assassinated with a drone strike. After his death, Attorney General Eric Holder claimed he was given Due Process:
Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process. – Eric Holder, U.S. Attorney General
For starters, the Constitution absolutely guarantees judicial process, as defined in Article III, Sec 2, Clause 3, the 4th, the 5th, the 6th, and 8th Amendments, to name a few. However, the Attorney General makes an important point here.
According to Holder, in the interest of “national security,” Due Process does not mean an Article III trial in a court of competent jurisdiction. Since the Obama administration and future administrations will be enforcing the 2012 NDAA, simply protecting “due process,” will do nothing to protect the rights of the people of Alaska, which leads us to a further point…
Alaska’s HB 69 will be difficult to enforce.
To the average peace officer, local official, or other state agent, it seems the Constitution already protects people against an infringement on their due process:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (Emphasis added) – U.S. Constitution, Amendment V
HB 69 offers no explanation of the language “deny a person a right to due process,” nor does it mention any specific piece of legislation or new guideline that seemingly violates the principle. HB 69 provides no reason, either in the description of the legislation or the law itself, for any person to pay special attention to the law.
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Unlike the Restoring Constitutional Governance Act, which specifically names the attempted enforcement of “an authorization for use of military force, national defense authorization act” and the “laws of war” as possible red flags for peace officers and state agents, HB 69 does nothing of the sort. Thus, if it actually provided any protections to the citizens of Alaska, those protections would be very difficult to enforce.
Beyond being hard to understand and enforce, HB 69 only prohibits the Alaskan government from participating in violating the right to “due process,” it does not require them to uphold their Oaths to the Constitution when the Federal government does the very same thing.
Put simply, this bill emphasizes noncompliance instead of interposition.
The Oath of Office of the State of Alaska reads:
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of Alaska, and that I will faithfully discharge my duties as ________ to the best of my ability.
Support and defend are active, not passive terms. Both require action, one cannot uphold the Constitution by telling someone else to do it or standing back while it is violated. Since the detention provisions in the 2012 NDAA violate no less than 6 Amendments of the Bill of Rights, any state law should require its officers to interpose and protect the rights of the people. Anything less gives state agents that take the Oath a path to violate it.
Even if protecting “due process” meant something, this does nothing to prevent the Federal government from violating that principle. With HB 69 doing nothing to stop them, a Federal agent, member of the U.S. Armed Forces, or other Federal asset could violate any person’s right to “due process” in the State of Alaska, while the state government can do nothing but sit and watch.
Noncompliance may be sufficient in some cases. When indefinite detention, rendition, and possible extrajudicial executions are on the line however, interposition is necessary. HB 69 fails to meet this crucial standard.
Finally, and perhaps most important, for a law that has been hailed as the end of indefinite detention in Alaska, it doesn’t even address the NDAA, the 2001 AUMF (the authorization that the NDAA expands on), or the laws of war. Nowhere in HB 69 is there any mention of indefinite detention, warrantless execution, or anything related to the problem.
The politicians who wrote this law don’t even seem to know what they are fighting.
HB 69 does nothing to protect the inalienable rights of the People of Alaska. It only restricts state agents from assisting in violating “Due Process,” which could include allowing warrantless assassination, is confusing and hard to enforce, and allows the state to stand down if the Federal government is violating the people’s rights and eviscerating the Constitution. Even worse, this law does not fix the root problem, the application of the laws of war to American soil, or even reference it in any way.
Laws like Alaska’s HB 69 should be referred to as “Warm and Fuzzy” legislation, since the only thing they accomplish is to give their supporters feelings of warmth and achievement. Worse still, HB 69 and laws like it give our elected officials a way to “clean their skirts” and get the people off their backs while still allowing the Federal government to eviscerate the Constitution.
HB 69 is a stark reminder: we must read any legislation our representatives claim will protect our rights. If not, they will pretend to fix the problem…and we will fall for it every single time.
Review legislation that will actually fix the problem here:
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