Today, the Virginia House of Delegates passed a bill to push back against federal indefinite detention powers. The vote was 96-4.
In 2013, Virginia was the first state to pass legislation in response to the indefinite detention powers purportedly authorized in the National Defense Authorization Act (NDAA) of 2012, still active today. That law was a first step, limited in scope, forbidding state agencies, in some situations, from cooperating with some federal attempts to exercise the indefinite detention provisions written into sections 1021 and 1022 of the National Defense Authorization Act.
For 2015, House Bill 2144 (HB2144), sponsored by Del. Benjamin L. Cline (R-Rockbridge), takes things two steps beyond simply refusing to cooperate with federal agents in the event of indefinite detention in Virginia. It sets the stage to create the type of leverage and attention D.C. would not want public if it refuses to cooperate with the state of Virginia.
This legislation would require two things from the feds if it wants to detains, pursuant to NDAA, any U.S. citizen in the state of Virginia.
“the U.S.Secretary of Defense shall provide notification within 24 hours of the detention to both the Secretary of Public Safety and the chief law-enforcement officer of the locality in which the citizen is detained…
the U.S. Secretary of Defense or his designee shall seek authorization from the chief law-enforcement officer of the locality in which the citizen is detained prior to removal of the citizen from the locality”
A series of events is triggered upon failure to comply during such detainment of any person in the state of Virginia by the DoD. The state of Virginia will gather and publish Memoranda of Understanding (MOUs). These are essentially partnerships with state funds attached to them. These agreements are not necessarily legally binding, but usually offer some privacy between state, private enterprises (contractors), and federal agencies. Much of this kind of information usually remains hidden from the general public.
“The Secretary of Finance shall obtain from each cabinet secretary and submit to the House Appropriations and Senate Finance Committees, to be published in some manner on an annual basis, a list and description of all memoranda of understanding (MOUs) entered into between the Commonwealth and agencies of the federal government.”
This provision in and of itself provides a great service to the people of Virginia, allowing them to see exactly what type of agreements exist between the state and various federal agencies.
The legislation then adds a final provision that would go into effect if the federal government detains somebody under Section 1021 and 1022 of NDAA 2012 and fails to follow sections one and two.
“…funds appropriated for implementation or continuation of such MOUs shall be contingent upon authorization by an act of the General Assembly in a subsequent year. The Governor may also order termination of any MOU at any time for noncompliance with this section.
“This is a brilliant approach,” Tenth Amendment Center national communications director Mike Maharrey said. “First, it shines some sunlight on what’s going on between the state and federal government. That provision alone is a win for Virginians. Then it creates significant consequences for the feds if they kidnap somebody on Virginia soil. It would allow the state to deny important resources to complete partnerships with the federal government if its agents snatch up somebody in the night and hold them without due process. I love seeing this kind of boldness and creativity from state legislators.”
Virginia is one of Washington DC’s (specifically the DoD’s) prime real estate providers. It serves as home to many government, private security, and intelligence contractors, particularly in the Northern Virginia area. HB2144 demands the feds comply or creates a climate where the state can end those contracts of cooperation that the DoD relies on through either the legislature or the governor.
“There is no one single bill that can stop these federal detention powers,” said Maharrey. “But this strategy of chipping away at them with multiple bills is something they’ve been doing to us for decades. Kudos to Delegate Cline for taking this action and setting the stage for a third step in Virginia should it pass.”
HB2144 now moves to the state Senate, where it will first be assigned to a committee for consideration before the Senate has an opportunity to send it to the Governor’s desk.