State lawmakers are moving to protect Arizona citizens from being hauled off in the middle of the night by the Department of Homeland Security.
The measure approved Tuesday by the Senate Committee on Federalism, Mandates and Fiscal Responsibility makes it illegal to “arrest or capture” any citizen “with the intent of detention under the law of war.” It also would bar executing anyone who has not first been convicted in a federal court.
Sen. Judy Burges, R-Sun City West, said SB1437 is aimed at the heart of the National Defense Authorization Act. She said that law is so overly broad that it infringes on constitutional protections of citizens.
Burges said it is the responsibility of the state — and the Legislature in particular — to stand up and protect its residents against federal overreach.
But Burges was less clear exactly how such a measure, even if it was signed into law, actually would afford any protection to an Arizonan who is arrested and detailed by federal authorities. If nothing else, she said, it would give that person some legal grounds to challenge the act.
The federal law, signed in 2011 by President Obama, gives him authority “to use all necessary and appropriate force” to detain, without trial, certain people. That includes not only those or planned or aided in the Sept. 11, 2001 attacks but anyone who “substantially supported al-Qaida, the Taliban or associated forces.”
That includes U.S. citizens. And it provides for military trials.
Joel Alcott, state director of the Tenth Amendment Center, said his organization is concerned about federal overreach. He said this goes beyond the wording of the NDAA to how it is being interpreted by the Department of Homeland Security.
“Based on their loose definitions, in my opinion, I am actually, possibly, a domestic terrorist because I am an outspoken person, I belong to the Tenth Amendment Center, I fight for states’ rights and state sovereignty,” Alcott told lawmakers.
Burges said all this is in violation of the 1878 Posse Comitatus Act which restricts the ability of the military to participate in domestic law enforcement activities. She said it’s important for states to fight back on behalf of its citizens.
She said this is an issue that should unite Arizonans.
“This really isn’t about what your party affiliation is,” Burges said.
“It’s not about the color of your skin,” she continued. “It’s about American citizens and their rights as citizens in this country — and their right not to have the military, under command, come in and take charge of them.”
“We’re trying to prevent people not being (formally) charged and given their day in court,” Burges said. “We do not want people to be held indefinitely without charges.”
She conceded the measure has no actual method for the state to enforce the law to protect its citizens. And, from a practical purpose, Burges acknowledged that nothing the Legislature enacts would keep federal law enforcement agencies from arresting Arizonans and detaining them in federal military facilities without trial
But Burges said adopting the law is still worthwhile.
“We’re trying to push back against federal overreach,” she said.
“As far as I’m concerned, we are a nation of laws, we are governed by the Constitution of the United States of America,” Burges continued. “And when some agency tries to repeal the Posse Comitatus Act, where do you push back?”
The two Democrats on the panel voted against the measure, though Sen. David Bradley, D-Tucson, said he might be persuaded to support it when it goes to the full Senate if he gets more information.