Vague language about “a belligerent act or has directly supported such hostilities …” in the 2012 National Defense Authorization Act prompted some members of a Colorado House committee Wednesday to support a bill making it a crime to follow the federal act.
A Colorado House committee wrestled Wednesday with a philosophical dilemma: the balance between civil liberties and putting Colorado National Guard members, state agencies and local law enforcement in potential legal jeopardy for helping the federal government fight the war on terror.
Colorado is where lawmakers want to disregard the National Defense Authorization Act of 2012, which has vague language that troubles some on constitutional grounds. The act allows an American citizen to be detained indefinitely if he or she commits “a belligerent act or has directly supported such hostilities …” in relation to terrorism.
“Since these aren’t clearly defined, we have to depend on the federal government to tell us what a belligerent act is,” said Rep. Lori Saine, R-Dacono, one the bill’s sponsors. “We have to depend on the federal government to tell us what hostility is. They can define a hostility without having authorization or authority.”
The penalties are serious. The person who violates the state law, if it passes and Gov. John Hickenlooper signs it, could be held liable for whatever happens to the detainee, including possible charges of assault, kidnapping and homicide for helping investigate, prosecute or detain those considered terrorists.
The proposal concerns the Colorado National Guard, which has more than 100 members currently serving in detention operations at Guantanamo Bay.
“We feel that our service members who are serving under the competent authority of the president and the federal government would be put in a legal morass,” said Greg Dorman, the legislative liaison for the Colorado Department of Military and Veterans Affairs. “They could now be held liable because of this vague and broadly reaching bill that says they participated in some kind of detention that’s considered illegal.
“This is something, frankly, that could be used by an attorney to go after our members of the Colorado National Guard.”
Kevin Klein, director of the Colorado Information Analysis Center, the state’s effort to gather, analyze and share threat-related information to prevent terrorism, also thinks the Colorado bill goes too far.
“It creates criminal prosecutions for a variety of crimes for simply and heretofore lawfully helping secure our nation,” Klein said.
Legislators supporting the bill cited the Japanese internment camps during World War II and the federal government’s use of local law enforcement during the Wounded Knee siege on the Pine River Indian Reservation in South Dakota in 1973.
Rep. Joe Salazar, D-Thornton, a former civil rights investigator, said minorities protesting for their rights have been deemed domestic terrorists before in American history.
He said CIAC and others “have a multitude of counter-terrorism laws to work under. What this bill says is don’t work under this one, because this one violates civil rights to a point that is unacceptable — unacceptable takings of our civil liberties.”
Salazar joined with five Republicans on the committee — Reps. Steve Humphrey of Severance, Patrick Neville of Castle Rock, Jack Tate of Centennial, Dan Thurlow of Grand Junction and Yuelin Willet of Grand Junction — to pass the bill out of committee with a 6-5 vote.
Rep. Su Ryden, D-Aurora, said there were too many unanswered questions about the bill for her to support it.
“I think enough serious questions have been raised as to the efficacy of the bill and the perhaps unintended … consequences of the bill that I personally am not going to put our National Guard members at risk,” she said.
Joining Ryden in opposition were the four other Democrats on the committee: Reps. Mike Foote of Lafayette, Susan Lontine of Denver, Dianne Primavera of Broomfield and Max Tyler of Lakewood.
The states”
The bill prohibits a state agency, a political subdivision of the
state, an employee of a state agency or political subdivision of the state acting in his or her official capacity, or a member of the Colorado National Guard serving in his or her official capacity from aiding an agency of the armed forces of the United States in any investigation, prosecution, or detention of any person pursuant to section 1021 or 1022 of the “National Defense Authorization Act for Fiscal Year 2012” or an substantially similar successor provision of federal law if such aid would place the entity in violation of any provision of the United States constitution, the Colorado constitution, or Colorado state law.
The bill requires the criminal prosecution of any individual who violates the prohibition, pursuant to any applicable provisions of the “Colorado Criminal Code”, including, but not limited to, provisions that prohibit assault, battery, kidnapping, and homicide.
