BILL REQ. #:  S-0861.1 

Read first time 02/01/13.   Referred to Committee on Law & Justice.

     AN ACT Relating to creating the Washington state preservation of liberty act condemning the unlawful detention of United States citizens and lawful resident aliens under the national defense authorization act; adding a new section to chapter 42.20 RCW; adding a new section to chapter 38.40 RCW; creating new sections; prescribing penalties; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   This act may be known and cited as the Washington state preservation of liberty act.

NEW SECTION.  Sec. 2   The Washington state legislature finds the following:
     (1) The congress of the United States passed the national defense authorization act, 2011 P.L. 112-81, ("2012 NDAA") for fiscal year 2012 on December 15, 2011;
     (2) The president of the United States of America signed the 2012 NDAA into law on December 31, 2011;
     (3) Section 1022 of the 2012 NDAA requires the armed forces of the United States to detain, pending disposition according to the law of war, any person involved in, or whom provided substantial support to, terrorism or belligerent acts against the United States, and whom is a member of al-Qaeda or an associated force;
     (4) Section 1022 (4)(b)(1) and (2) of the 2012 NDAA excludes United States citizens, and lawful resident aliens for conduct occurring within the United States, from its mandatory detention provisions but is only applicable to that section of the 2012 NDAA;
     (5) Section 1022 (4)(b)(1) of the 2012 NDAA specifically provides that, "The requirement to detain a person in military custody under this section does not extend to citizens of the United States";
     (6) Section 1022 of the 2012 NDAA specifically provides that, "The requirement to detain a person in military custody under this section does not extend to lawful resident aliens of the United States . . .";
     (7) By contrast, section 1021 of the 2012 NDAA purports to authorize, but does not require, the president of the United States to utilize the armed forces of the United States to detain persons the president suspects were part of, or substantially supported, al-Qaeda, the Taliban, or associated forces and to dispose of such detained persons according to the law of war, which may include, but is not limited to: (a) Indefinite detention without charge or trial until the end of hostilities authorized by the 2001 authorization for use of military force against terrorists, 2001 P.L. 107-40, (b) prosecution through a military commission, or (c) transfer to a foreign country or foreign entity;
     (8) Additionally, section 1021 of the 2012 NDAA purports to enlarge the scope of those persons the office of the president may indefinitely detain beyond those responsible for the September 11, 2001, terrorist attacks, and those who harbored them, as purportedly authorized by the 2001 authorization for use of military force against terrorists, to now include "[a] person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces";
     (9) However, section 1021, unlike section 1022 of the 2012 NDAA, makes no specific exclusion for United States citizens and lawful resident aliens for conduct occurring within the United States;
     (10) While section 1021 of the 2012 NDAA seeks to preserve existing law and authorities pertaining to the detention of United States citizens, lawful resident aliens of the United States, and any other person captured in the United States, it does not specify what such existing law or authorities are;
     (11) President Obama issued a signing statement upon signing the NDAA into law indicating that he "will not authorize the indefinite military detention without trial of American citizens";
     (12) The clear language of, and omission of an exclusion in, section 1021 of the 2012 NDAA combined with the language of President Obama's signing statement indicates that while the president claims he will not authorize the indefinite military detention without trial of American citizens, he believes that the office of president now possesses the authority to do so;
     (13) Furthermore, the specific exclusion of application to United States citizens and lawful resident aliens contained in section 1022 of the 2012 NDAA, and the absence of such exclusion in section 1021 of the NDAA, strongly implies that the provisions of section 1021 are intended to apply to United States citizens and lawful resident aliens, whether or not they are captured in the United States in the context of the following facts:
     (a) The office of the president of the United States, under both the administrations of George W. Bush and Barack H. Obama, has asserted the 2001 authorization for the use of military force against terrorists allows the office of the president to indefinitely detain without charge United States citizens and lawful resident aliens captured in the United States;
     (b) The United States supreme court has not decided whether the 2001 authorization for the use of military force against terrorists allows the office of the president to indefinitely detain without charge United States citizens and lawful resident aliens captured in the United States;
     (c) United States Senator, Carl Levin, declared in colloquy on the floor of the United States senate that the original 2012 NDAA provided that section 1021, then section 1031 prior to final drafting, specifically would not apply to United States citizens, but that the office of the president of the United States had requested that such restriction be removed from the 2012 NDAA;
     (d) During debate within the Senate and before the passage of the 2012 NDAA, United States Senator, Mark Udall, introduced an amendment intended to forbid the indefinite detention of United States citizens, which was rejected by a vote of 38-60;
     (e) United States Senators John McCain and Lindsey Graham declared in colloquies on the floor of the United States senate that section 1021 of the 2012 NDAA authorized the indefinite detention of United States citizens captured within the United States by the armed forces of the United States;
     (f) United States Senator Lindsey Graham further declared in colloquy on the floor of the United States senate that the United States homeland is now part of "the battlefield";
     (g) Retired four star marine generals Charles C. Krulak and Joseph P. Hoar stated publicly that as a result of the indefinite detention provision of the 2012 NDAA that "due process would be a thing of the past," and "this provision would expand the battlefield to include the United States";
     (h) Retired four star marine generals Charles C. Krulak and Joseph P. Hoar also stated publicly that the mandate of military custody for most terrorism suspects "would violate not only the spirit of the postreconstruction act limiting the use of the armed forces for domestic law enforcement but also our trust with service members, who enlist believing that they will never be asked to turn their weapons on fellow Americans";
     (14) Policing the citizenry of the United States of America by the armed forces of the United States, as purportedly authorized by the 2012 NDAA, is contrary to the fundamental principles of our republic, and is generally repugnant to a free society;
     (15) Section 1021 of the 2012 NDAA as it purports to authorize (a) detainment of United States citizens and legal resident aliens captured within the United States of America without charge, (b) military tribunals for United States citizens and legal resident aliens captured within the United States of America, and (c) the transfer of United States citizens and legal resident aliens captured within the United States of America to foreign jurisdictions, is violative of the following rights enshrined in the Constitution of the United States of America: Article I, section 9, clause 2's right to seek Writ of Habeas Corpus; the First Amendment's right to petition the government for a redress of grievances; the Fourth Amendment's right to be free from unreasonable searches and seizures; the Fifth Amendment's right to be free from charge for an infamous or capitol crime until presentment or indictment by a grand jury; the Fifth Amendment's right to be free from deprivation of life, liberty, or property, without due process of law; the Sixth Amendment's right in criminal prosecutions to enjoy a speedy trial by an impartial jury in the state and district where the crime shall have been committed; the Sixth Amendment's right to be informed of the nature and cause of the accusation; the Sixth Amendment's right to confront witnesses; the Sixth Amendment's right to counsel; the Eighth Amendment's right to be free from excessive bail and fines, and cruel and unusual punishment; the Fourteenth Amendment's right to be free from deprivation of life, liberty, or property, without due process of law;
     (16) Section 1021 of the 2012 NDAA as it purports to authorize (a) detainment of United States citizens and legal resident aliens captured within the United States of America without charge or trial, (b) military tribunals for United States citizens and legal resident aliens captured within the United States of America, and (c) the transfer of United States citizens and legal resident aliens captured within the United States of America to foreign jurisdictions, is violative of the following rights enshrined in the Washington state Constitution: Article I, section 1: "...governments...are established to protect and maintain individual rights."; Article I, section 3: "No person shall be deprived of life, liberty, or property, without due process of law;" Article I, section 7: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law;" Article I, section 10: "Justice in all cases shall be administered openly, and without unnecessary delay;" Article I, section 13: "The privilege of the writ of habeas corpus shall not be suspended, unless in case of rebellion or invasion the public safety requires it;" Article I, section 14: "Excessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted;" Article I, section 18: "The military shall be in strict subordination to the civil power;" Article I, section 21: "The right of trial by jury shall remain inviolate…;" Article I, section 22: "In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to meet the witnesses against him face to face, to have compulsory process to compel the attendance of witnesses in his own behalf, to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed and the right to appeal in all cases...;" Article I, section 27: "...No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or confession in open court;" Article I, section 29: "The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise;" Article I, section 30: "The enumeration in this Constitution of certain rights shall not be construed to deny others retained by the people;" and Article I, section 32: "A frequent recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free government";
     (17) In December 2012, the congress of the United States passed, and on January 2, 2013, the president of the United States signed, the national defense authorization act for fiscal year 2013 ("2013 NDAA"). They failed to include in the 2013 NDAA a specific exclusion from section 1021 of the 2012 NDAA for United States citizens and lawful resident aliens for conduct occurring within the United States; and
     (18) As required by Article VI of the United States Constitution, the members of the Washington state legislature have taken an oath to uphold both the Constitution of the United States of America and the Constitution of the state of Washington.

NEW SECTION.  Sec. 3   The Washington state legislature intends the following:
     (1) To condemn in no uncertain terms section 1021 of the 2012 NDAA as it purports to repeal the spirit of the postreconstruction act and authorize the president of the United States to utilize the armed forces of the United States to police United States citizens and lawful resident aliens within the United States of America, indefinitely detain United States citizens and lawful resident aliens captured within the United States of America without charge until the end of hostilities authorized by the 2001 authorization for use of military force, subject American citizens and lawful resident aliens captured within the United States of America to military tribunals, and transfer American citizens and lawful resident aliens captured within the United States of America to a foreign country or foreign entity.
     (2) As a notion of conscience and strong principles, we cannot eviscerate the unalienable rights recognized by and protected in the United States Constitution and the Constitution of the state of Washington. Indeed, undermining those constitutional rights destroys the fabric of what has made the United States of America a republic granting the greatest number of people the greatest amount of liberty, justice, security, opportunity, prosperity, and happiness in the history of the world.

NEW SECTION.  Sec. 4   A new section is added to chapter 42.20 RCW to read as follows:
     (1) No state or local official or employee, or agent of the state of Washington, or employee of a corporation providing services to the state of Washington, or member of the national guard or state defense forces acting in his or her capacity as a state or local official or employee, or agent of the state of Washington, or employee of a corporation providing services to the state of Washington, or member of the national guard or state defense forces, shall knowingly cooperate with an investigation or detainment of a United States citizen or lawful resident alien located within the United States of America by the armed forces of the United States of America.
     (2) A violation of this section is a class C felony.

NEW SECTION.  Sec. 5   A new section is added to chapter 38.40 RCW to read as follows:
     (1) No member of the armed forces of the United States of America, nor any person acting directly with, or on behalf of, the armed forces of the United States of America, shall be permitted to conduct within the boundaries of the state of Washington, an investigation or detainment of a United States citizen or lawful resident alien located within the state of Washington except when granted authority compliant with the United States bill of rights and the Washington state Constitution.
     (2) A violation of this section is a class C felony.

NEW SECTION.  Sec. 6   The provisions of this act shall be construed liberally to effectuate the intent, purposes, and policies of this act.

NEW SECTION.  Sec. 7   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 8   This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.