Unable to unilaterally kill a federal anti-terrorism law, state legislators have settled for the next best thing: threatening to send those who help enforce the law to jail.
SB 1182 would make it illegal for any state official, agency or employee to enforce or attempt to enforce two sections of the new National Defense Authorization Act. Those sections deal with when the federal government can detain people — including U.S. citizens — suspected of involvement in terrorism.
The legislation, which passed the House Thursday on a 34-24 vote, would make helping the feds with that a misdemeanor. That even includes state and local police.
A nearly identical version already has been approved by the Senate.
But that isn’t the only jab the Legislature took Thursday at Washington.
On a separate voice vote, the House gave preliminary approval to legislation demanding the U.S. government give up title to all of its public lands in Arizona and give them to the state.
SB 1332 would allow the state to keep what it wants. And it would retain 5 percent of the net proceeds of anything it sold off, giving the balance to the federal government.
Sen. Al Melvin, R-Tucson, conceded he does not expect Washington to suddenly give Arizona the deed to millions of acres of federal land here.
The federal government controls nearly 48,000 square miles, about 42 percent of the state.
Melvin’s bill wants all of it, not including about 5,800 square miles of military bases and more than 4,000 square miles of national parks, though it does demand national monuments and wilderness areas.
Nor does Melvin foresee the state using police to seize the land.
But he figures the legislation, which already has gained Senate approval in slightly different form, will provide the legal basis for a lawsuit.
More to the point, Melvin noted that other states are pursuing similar measures. And Utah’s governor signed a law last month demanding back what the feds own.
“What I envision is something like Obamacare,” he said, where two dozen states filed suit and successfully got the U.S. Supreme Court to review the legality of federal action. “I’m hoping the attorneys general in Western states band together in a similar action.”
Melvin’s original plan said if the feds refuse to surrender the land, then the state would tax it. But that provision was removed after House attorneys said that was illegal, leaving only the demand.
The legislation about police also deals with a contention that the federal government has overreached and is acting illegally. But Sen. Sylvia Allen, R-Snowflake, who has her own measures challenging federal ownership of land in Arizona, said this one is potentially far more serious.
That law, signed at the end of last year by President Obama, gives him authority “to use all necessary and appropriate force” to detain, without trial, certain people. That includes not only those who planned or aided in the Sept. 11, 2001 attacks but anyone who “substantially supported al-Qaeda, the Taliban or associated forces.”
And that includes U.S. citizens.
The law also authorizes military trials.
State lawmakers already have voted to condemn the law. But Allen said that’s not enough.
She said anyone who works for the state or local government should be barred from having anything to do with enforcing that law. And Allen said she sees nothing wrong with threatening those who do with arrest.
“Policemen aren’t above criminal penalties,” she said. “If they speed, they can get a ticket, if they punch somebody they can be brought up on charges.”
This, said Allen, is no different.
“If you help the federal government to arrest citizens who have due process, then it’s a misdemeanor,” she said. And that carries a potential six months in jail.
Rep. Steve Farley, R-Tucson, said Allen is right in objecting to the federal law, but wrong on her approach.
“I strongly support the intention behind this bill,” he said, calling the NDAA “a real problem.”
But he said the criminal penalties make no sense.
“We’re putting our own law enforcement officers in a hopeless double bind where they’re committing a state crime if they try to stop a federal crime,” Farley said. “I don’t know that we want to put our law enforcement officials in that position.”
Allen does not see it that way. In fact, she said her legislation helps police enforce their sworn duty to obey both the state and federal constitutions.
She then ticked off a list of where the NDAA conflicts with constitutional rights, the right to a speedy trial, aid of counsel, confront witnesses and a speedy trial. And that doesn’t even take into account the freedom from unreasonable searches and seizures as well as a prohibition on excessive bail.
“They’re supposed to uphold the constitution,” she said of police. “And they turn right around and they go against many provisions of it?”
Allen said nothing in her legislation will stop a police officer from making an arrest.
“It’s going to stop them from allowing or participating,” she said. “In Arizona, we uphold the Constitution and protect our citizens’ due process. I don’t know why that’s kind of strange.”
But Allen stressed that she’s not trying to protect those who conspire against the country. She said the only thing her measure does is ensure anyone who is accused is guaranteed the constitutional due process.
And if they’re guilty? “I hope they go to jail and rot there,” she said.