April 28, 2015 | Testimony on National Security and Defense

Statutory, Policy, and Constitutional Defects of HB15-1114

Testimony Before the
State, Veterans, and Military Affairs Committee
Colorado State Senate

March 23, 2015

Charles D. Stimson
Senior Legal Fellow and Manager
National Security Law Program
The Heritage Foundation

Thank you, Chairman Scott and distinguished members of the Committee, for inviting me to share my views on HB15-1114. I am a Senior Legal Fellow and Manager of the National Security Law Program in the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy at The Heritage Foundation.

Prior to joining Heritage in 2007, I served as the Deputy Assistant Secretary of Defense for Detainee Affairs, where I advised both Secretary Donald Rumsfeld and Secretary Robert Gates on global detention policy and matters regarding the detainees within the custody or effective control of the Department of Defense, including those in Iraq, Afghanistan, and Guantanamo Bay. I am a Captain in the United States Navy Judge Advocate General’s Corps, reserve component, where I have served for 23 years, including three tours on active duty and one tour as the Deputy Chief Judge of the Navy–Marine Corps Trial Judiciary.

Finally, I have served as a local, state, and federal prosecutor, criminal defense attorney, and Adjunct Professor of Law at the George Mason University School of Law. I write, lecture, testify, and debate widely on subjects including the law of armed conflict, military commissions, detention and interrogation policy, and other pressing national security policies.

The views I express in this testimony are my own and should not be construed as representing any official position of The Heritage Foundation, the Department of Defense or the United States Navy.

I want to advance two key arguments today. First, I will argue that the pending legislation is deeply flawed because it is premised on erroneous statutory construction of federal law. It also features erroneous assumptions, is self-contradictory, and its practical application would be both difficult and damaging. Second, I will argue that it trenches on the federal government’s plenary war powers and violates conditions under which Colorado and other states have received billions of dollars of federal funding.

The United States is in a state of legally cognizable armed conflict against al-Qaeda, the Taliban, ISIS, and associated forces. This bill has dangerous symbolic and practical consequences, as I will highlight, and potentially undermines the cooperation necessary to defeat the enemy. It makes all of us less safe.

Finally, this bill has nothing to do with state’s rights. The Tenth Amendment to the U.S. Constitution “undergirds the entire plan of the original Constitution: the national government possesses only those powers delegated to it.”[1] The Constitution assigns to the federal government the primary role for dealing with national security. This legislation, if enacted, will intrude on the federal government’s war powers and sends a powerful message that delegitimizes not just the military detention of captured enemy combatants, but also the entire law-of-war architecture.

The September 18, 2001, Authorization for Use of Military Force

In order to put my two arguments into context, it is necessary to have a basic understanding of the 2001 Authorization for Use of Military Force (AUMF) and the law of armed conflict, how courts have interpreted detention authority inherent in the 2001 AUMF, and what Sections 1021 and 1022 of the 2012 National Defense Authorization Act (NDAA) actually mean.

In response to the devastating attack against our homeland, Congress passed a joint resolution a week after the attack, on September 18, 2001. The preamble to the AUMF directs the President “to protect United States citizens both at home and abroad.” The operative text authorizes the President to use:

all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.[2]

This authorization for the use of force has acted and still acts as the legal framework for undertaking a variety of warfighting-related missions, including targeting of enemy combatants and detention operations. Two Administrations have relied on the AUMF to engage those actors who were responsible for, aided, or harbored those responsible for 9/11.

Ninety-eight Senators voted for the joint resolution along with 420 members of the House of Representatives. The AUMF has served the country well. It has enabled our warfighters, intelligence professionals, and other stakeholders to carry out their work, knowing that Congress has given express authorization for the use of appropriate and proportional force to confront an enemy that was responsible for the worst attack against our country since Pearl Harbor.

It is important to note that the AUMF, while providing significant authorities for the Executive Branch, also properly features significant limitations.

First, it is limited to al-Qaeda, the Taliban, and persons and forces associated with those organizations. It is not a mandate to use force against any other terrorist organization or other entity that may threaten U.S. national security.

Second, it is limited by the principle that force should be deployed only “in order to prevent any future acts of international terrorism against the United States.”

Third, as described above, it incorporates and is limited by the law of armed conflict. In these respects, the AUMF is consistent with prior force authorizations that have targeted non-state actors.[3]

The AUMF and Detention Authority

Despite the fact that the express language of the AUMF does not include the word “detention,” each of the three branches of the federal government, including the Executive Branch across two Administrations, has recognized that the AUMF necessarily includes the power to detain those subject to it.

That makes sense, as any country engaged in an armed conflict may detain and target the enemy opposing force. Furthermore, because the President is the Commander in Chief, the authority to conduct military detention of captured members of the opposing enemy force is exclusively vested in the Executive Branch. State laws that conflict or frustrate enumerated powers are unconstitutional for the reasons discussed below.

Since 9/11, the United States has detained over 100,000 detainees, a fact not known to most Americans. The vast majority of those—about 75,000—were security internees captured and held in Iraq during that internal non-international armed conflict. Today, we have no detainees—security internees—in Iraq.

Some 25,000 enemy combatants were held in Afghanistan. Today, the United States has no detainees in Afghanistan.

A total of 779 detainees were held by the Joint Task Force at the U.S. Naval Station at Guantanamo, Bay, Cuba. Today, there are only 122 detainees from 18 countries held at Guantanamo. There are no American enemy combatants held at Guantanamo, and there never have been.[4]

The main thrust of the pending Colorado legislation is to prohibit state employees from “assisting” in the “indefinite military detention of any United States citizen” under Section 1021 or 1022 of the 2012 NDAA. Setting aside the ambiguity of the word “assisting,” discussed below, or the fact that no one has ever argued that captured enemy combatants can be detained indefinitely beyond the end of the armed conflict in which they were captured, one of the unspoken premises of this legislation is that there are, have been, or may be in the future scores of Americans subject to military detention or that those Americans subject to military detention would have little to no legal recourse.

The facts prove just the opposite.

A grand total of two terrorists with ties to either al-Qaeda or the Taliban—who happen to have been American citizens—have been subject to military detention in the United States. Each challenged his military detention in federal court prior to Congress passing Sections 1021 and 1022 of the NDAA of 2012.

Furthermore, detention-related decisions by the United States Supreme Court, including Boumediene v. Bush, make clear that any law-of-war detainees—including non-citizens held at Guantanamo—held in the United States enjoy the right to mount constitutional writ of habeas corpus to challenges to their detention.[5]

Yasser Hamdi. Yasser Hamdi was born in 1980 in Louisiana but left for Saudi Arabia when he was a toddler and grew up in the Gulf country. He was in Afghanistan in the fall of 2001, where he allegedly was armed and affiliated with a Taliban military unit that had provided him weapons and training. He was eventually apprehended and challenged his detention.

In June 2002, the Bush Administration argued in its Hamdi brief before the Fourth Circuit that the authority to detain Hamdi flowed from the Commander in Chief’s Article II powers and from the “statutory authorization from Congress…. Furthermore, the President here is acting with the added measure of the express statutory backing of Congress.” It cited the AUMF.

Similarly, in its brief before the Supreme Court in Hamdi in 2004, the Bush Administration argued that its detention authority stemmed in part from the AUMF, as that authority “comes from the express statutory backing of Congress.”

The Supreme Court held in Hamdi v. Rumsfeld that “Congress has in fact authorized Hamdi’s detention, through the AUMF.” As the Court explained, citing long-standing, consistent executive practice and the law of war:

[D]etention of individuals [who fought against the United States as part of the Taliban], for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the “necessary and appropriate force” Congress has authorized the President to use.[6]

Hamdi was released in 2004, renounced his U.S. citizenship, and was deported back to Saudi Arabia.

Jose Padilla. Al-Qaeda-trained operative Jose Padilla was involved in a plan to detonate a dirty bomb in the United States. Also an American citizen, Padilla was arrested at Chicago International Airport in May of 2002 before he was able to carry out the bombing.

He challenged his detention, and eventually the Fourth Circuit Court of Appeals concluded that Padilla had been lawfully detained under the reasoning of the Supreme Court’s decision in Hamdi. The Fourth Circuit wrote that Padilla had been “armed and present in a combat zone during armed conflict between al Qaeda/Taliban forces and the armed forces of the United States” while in Afghanistan prior to his return to the United States.[7]

Indeed, the Court concluded that the Hamdi decision did not rely on the place of capture of a member of the opposing force. Thus, the fact that Padilla was apprehended in Chicago did not change the underlying lawfulness of military detention of the enemy during wartime.

Padilla was transferred from military custody to federal district court, where he was tried and convicted of conspiracy and material support for terrorism, among other charges. He was originally sentenced to 17 years in prison, in part because the sentencing judge gave him credit for the time he served in military custody. A federal appeals court deemed his original sentence too lenient, and he was resentenced to 21 years in prison.

He is currently serving his time at the Supermax federal prison in Florence, Colorado.

Section 1021 of the National Defense Authorization Act for Fiscal Year 2012

In its first brief before a court on the matter—here, in the context of habeas litigation from three Guantanamo detainees—the Obama Administration argued that “The United States bases its detention authority as to such persons on the Authorization for the Use of Military Force.”[8] Their brief went on to say that “detention authority conferred by the AUMF is necessarily informed by principles of the laws of war,” which is a position also taken by the Bush Administration and the courts in numerous instances.

In particular, it arrived at the following “definitional framework,” premised on the application of the law of armed conflict to the AUMF that has subsequently been upheld by the United States Court of Appeals for the D.C. Circuit:

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces 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 hostilities, in aid of such enemy armed forces.[9]

Congress, in turn, ratified that framework in Section 1021 of the 2012 NDAA. That provision “affirms” the authority of the President under the AUMF to detain certain “covered persons,” and although there have been differences between the two Administrations in terms of their reliance on Article II powers and detention authority, the fact remains that both Administrations have consistently relied on the AUMF to justify detention of members of al-Qaeda, the Taliban, and associated forces.

President Obama signed Section 1021 into law on December 31, 2011. The statute in relevant part states:

(a) In General—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force includes the authority for the Armed Forces of the United States to detain covered persons as defined in subsection (b) pending disposition under the law of war.

(b) Covered Persons—A covered person under this section is any person as follows:

  1. A person who planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001 or harbored those responsible for those attacks
  2. (2) 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.

(c) Disposition Under the Law of War—The disposition of a person under the law of war as described in subsection (a) may include the following:

  1. Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force
  2. Trial by Military Commission
  3. Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction
  4. Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.

(d) Construction—Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

(e) Authorities—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

Section 1021, properly understood in the context of the 2001 AUMF and case law, is nothing more than a codification in statute of existing authority to detain the enemy.

As Judge Kaplan noted in his July 17, 2013, opinion denying a challenge to Section 1021(b)(2) of the 2012 NDAA, quoting the Supreme Court decision in Hamdi:

To the extent Hamdi identified constitutional concerns with the military detention of American citizens generally, the plurality concluded that there was “no bar to this Nation’s holding one of its own citizens as an enemy combatant.” Nevertheless, the plurality suggested that this detention authority was not boundless and that detention pursuant to it could not be indefinite. Rather, “based on longstanding law-of-war principles,” the plurality construed the AUMF “to include the authority to detain for the duration of the relevant conflict.”

Judge Kaplan concluded that “Section 1021 says nothing at all about the President’s authority to detain American citizens.”

As a practical matter, it neither expands upon pre-existing authority nor attempts to restrict that authority. To argue otherwise evinces basic lack of understanding of detention authority under the law of war and precedent from the Supreme Court and lower federal courts since 9/11.

Section 1022 of the National Defense Authorization Act for Fiscal Year 2012

Section 1022 does not, by definition, apply to U.S. citizens. That fact alone makes the 1022 language of the pending legislation moot, as HB15-1114 prohibits state employees from assisting in military detention of U.S. citizens.

Section 1022, entitled “Military Custody for Foreign al Qaeda Terrorists,” requires the Armed Forces of the United States to place into military detention any non-citizen who is deemed to be a “member of, or part of, al Qaeda or an associated force that acts in coordination with or pursuant to the direction of al Qaeda” and who has “participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.”

As stated above, Section 1022(b)(1) is clear: It does not apply to United States citizens, nor does it apply to lawful permanent residents of the United States on the “basis of conduct taking place within the United States.”

The President may waive the requirement for mandatory military detention for covered persons if he certifies that such waiver is in “the national security interests of the United States,” pursuant to 1022(a)(4).

Section 1022 applies to only a subset of those covered persons under Section 1021: namely, only to members of al-Qaeda or its associated forces. That excludes supporters of al-Qaeda or members of the Taliban or its associated forces. And to fall under 1022, one must also have participated in the course of planning or carrying out an attack or attempted attacks against the United States.

Section 1022(c) required the Administration to issue implementing procedures, which the Administration did on February 28, 2012, in Presidential Policy Directive/PPD-14.[10] The Administration also provided a fact sheet accompanying the policy directive.[11]

But even if an al-Qaeda operative who was participating in an attack against the United States was captured, does the law, as written, automatically require mandatory military detention? The answer is a resounding no.

In this regard, as law-of-war scholars Ben Wittes and Bobby Chesney have written:

[T]he NDAA…provides an interesting definition of what counts as a disposition “under the law of war.” Yes, both long-term military detention and trial by military commission are on the list, but so too are transfers to third-country custody and, most notably, trial by an alternative tribunal—and as the congressional debate made clear on many occasions, that last bit of language includes the option of a civilian criminal trial.[12]

When he signed the 2012 NDAA, President Obama issued a signing statement with respect to certain provisions of the law, including Section 1022. With respect to Section 1022, he said:

I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat. While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.[13]

In summary, any fears that Section 1022 can or will be used by the federal government to indefinitely detain U.S. citizens are entirely unfounded.

A Primer on the Tenth Amendment and Enumerated Powers

The pending legislation has nothing to do with state’s rights and does not advance them. Those who want to believe that it does demonstrate a gross misunderstanding of how the Tenth Amendment operates alongside other relevant sections of the Constitution.

To be clear, the Tenth Amendment Center has been urging states to adopt model legislation such as HB15-1114. Yet despite their worthy efforts in some other areas of public policy, their efforts here are misguided and evince a fundamental misunderstanding about the interrelationship between the Executive’s Commander-in-Chief powers and the role of the states during wartime.

The Tenth Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people.” As we say in The Heritage Foundation Guide to the Constitution, “The Tenth Amendment expresses the principle that undergirds the entire plan of the original Constitution: the national government possesses only those powers delegated to it, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”[14]

It is without question that the federal government—not the states—has the express power to take the nation into armed conflict. Under Article I, Section 8, Clause 11, the Congress “shall have the power to declare war.” Under Article II, Section 2, Clause 1, the “President shall be the Commander in Chief of the Army and Navy of the United States.”

The Congress of the United States has declared war only five times but has authorized the use of military force dozens of times in our nation’s history.[15] Federal courts have repeatedly held that congressional authorizations to use force constitute a permissible way for Congress to augment the President’s own independent constitutional war-related powers. As discussed elsewhere in my testimony, as a result of the September 11, 2001, attacks on our country, in which over 3,000 people died, the Congress passed the 2001 AUMF. That AUMF, as discussed in this testimony, provided the legal underpinnings for the targeting, killing, and detaining of the enemy during wartime. That enemy, as defined by the courts and two vastly different Administrations, is al-Qaeda, the Taliban, and associated forces. The Administration considers ISIS to fall under the 2001 AUMF, although it has proposed a new stand-alone AUMF to cover ISIS.[16]

The history of the United States is one of a country born into war. The Founders knew firsthand the perils of war and the need for national unity during a time of war, and although they drafted a Constitution assigning limited and enumerated powers to the federal government, they also knew that in wartime the United States needed to be able to harness the federal and state governments’ powers. Having states work at cross purposes with the federal government in times of war contravenes the Framer’s design.

Colorado HB15-1114

With that background information established, I can now turn to my two main arguments.

1. The pending legislation is deeply flawed as a matter of statutory construction and practical application, contains erroneous assumptions, and is self-contradictory.

First, the bill does not define or explain the operative word “assist,” as in the phrase “shall not assist” in the indefinite military detention of any United States citizen. “Assist” is commonly defined as to “give support or aid” to someone, yet given the multitude of ways in which a state employee could unknowingly come into contact with an al-Qaeda, Taliban, or ISIS members during the regular course of his duties, how is a state employee to know if he is violating the law?

There is, naturally, a possibility that any terrorist captured in the United States will be subject to military detention—however brief—for intelligence exploitation purposes. This is true whether that person is an al-Qaeda member with U.S. citizenship or Yemeni citizenship or any other citizenship.

This law sends confusing messages to state employees, especially law enforcement officials. Imagine a state trooper pulling over a speeder and finding out through an ID check that the FBI has an alert for the driver as a suspected al-Qaeda operative. What should the trooper do if he knows or suspects the driver is a U.S. citizen? Do his duty and detain the suspect, which could be interpreted as a violation of Colorado law? Or simply write the speeding ticket and send the terrorist on his way, not telling the FBI or the military, consequences be damned?

This bill, if enacted, would prohibit a state agency or employee thereof, when acting in his official capacity, from assisting in the “indefinite military detention of any United States citizen pursuant to sections 1021 or 1022 of the 2012 NDAA.” This prohibition applies “once the federal government has made an official determination that a United States citizen shall be held in indefinite military detention under section 1021 or 1022.” But how is the state employee to know when or if the federal government has made an official determination that the citizen al-Qaeda terrorist will be held in military detention?

The federal government likely won’t make an official determination to subject the terrorist to non-criminal detention until after they capture the person, but one can imagine certain circumstances where federal officials, prior to capture, will decide to lawfully interrogate a terrorist for intelligence purposes (not criminal law enforcement) once captured. The Administration might utilize the High Value Interrogation Group—the HIG—to conduct such an interrogation.

So if a state trooper or employee, while on the job, happens to stop the terrorist for a non-terrorism-related offense or works in a Joint Terrorism Task Force and shares information about the potential suspect, does that count as “assisting” the military under the pending legislation?

Second, the preamble or summary of the statute says that the bill prohibits any state employee, acting in his 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.” Yet the legally operative text of the statute—the law—only refers to detention of U.S. citizens and only prohibits “assistance,” not investigation or prosecution.

Which controls, the preamble or the operative text?

This also sends a confusing message to law enforcement, corrections officers, bailiffs, and other state employees. What if, for example, state employees who are part of a Joint Terrorism Task Force, or part of fusion center, during the normal course of their duties come across a suspected or known al-Qaeda operative who is targeting U.S. military installations or other sensitive sites in Colorado? And what if, during the course of their duties, those state employees determine that the terrorist operative is in a known location in Colorado, about to execute his plot, and is possibly a U.S. citizen? What is that state employee to do? Stand down, not communicate or do her duty, because doing her duty might be interpreted as “an investigation” that may lead to military detention, however brief?

Would any state employee in that situation, if this bill becomes law, be willing to subject herself to prosecution for kidnapping, assault, or battery just for doing her job to protect the nation from another terrorist plot?

Third, the prohibition applies to members of the Colorado National Guard when serving in an official capacity under Article 3 of Title 28 of the Colorado Revised Statues,[17] but not to those members when acting either pursuant to direct orders from their Commanding Office or when acting in their official capacity while on active duty under Title 10 of the United States Code.

So what is a Colorado National Guard member to do if, in her official capacity, she is cross-posted with a Joint Counterterrorism Task Force or an FBI hostage rescue team or the like and they come across an al-Qaeda, Taliban, or ISIS operative—who happens to claim U.S. citizenship? Does she stand down? Walk away? Refuse to do her duty for fear of prosecution by some rogue state prosecutor?

These prohibitions apply regardless of whether the United States citizen is a member of al-Qaeda, the Taliban, ISIS, or one of their associated forces. These prohibitions apply regardless of what the terrorist has done or is suspected of doing.

Fourth, what is “military detention?” Does that mean anytime a regular member of the U.S. Armed Forces is involved in the takedown and apprehension of an al-Qaeda member in the United States or elsewhere, and that terrorist happens to be a United States citizen, and he is subjected to detention, that this would fall under the statute?

Fifth, since no one has ever claimed the ability to “indefinitely” detain anyone beyond the armed conflict in which they were captured, what does “indefinitely” mean under the statute? Beyond the end of the armed conflict? A set number of years?

And most important, these prohibitions apply while the United States is engaged in an ongoing armed conflict against al-Qaeda, the Afghan Taliban, ISIS, and associated forces and those terrorist organizations are successfully recruiting Americans and other Westerners to their cause.

Finally, as stated above, this legislation assumes that Section 1022 applies to United States citizens. It does not.

2. The pending legislation trenches on the federal government’s war powers and violates conditions under which Colorado and other states have received billions of dollars of federal funding.

This bill has nothing to do with state’s rights or the Tenth Amendment. Indeed, it trenches on the federal government’s war powers and violates conditions under which Colorado and other states have received billions of dollars of federal funding. It has dangerous symbolic and practical consequences and undermines the cooperation necessary to disrupt and defeat al-Qaeda plots on our shores.

The basis of this legislation and legislation in other states is a gross misunderstanding or intentional misreading of the detainee provisions in the 2012 National Defense Authorization Act (NDAA).

Some politicians in both parties have sided with the Tenth Amendment Center, a conservative group devoted to states’ rights, and have joined with the American Civil Liberties Union to monger fear over federal detention authority. Under their contorted reading of the NDAA, federal law requires all U.S. citizens suspected of terrorism to be held in military custody and strips them of all constitutional rights.

But although the NDAA describes military custody as the primary policy option for dealing with captured enemy combatants, the President retains, as is constitutionally proper, discretion to utilize the civilian justice and penal systems. In fact, the NDAA did not change settled law at all. It says that “nothing in this section shall be construed to affect existing law” related to the detention of U.S. citizens captured or arrested in the United States. Furthermore, under the Supreme Court’s post-September 11 rulings, especially Hamdi v. Rumsfeld and Boumediene v. Bush, enemy combatants (regardless of citizenship) may be held for the duration of the hostilities, but anyone in military custody, whether in the United States or Guantanamo, is able to exercise habeas corpus rights to challenge the detention.

Despite these facts, some continue to fight what they see as a federal leviathan that acts extra-constitutionally all the time. And it goes without question that the current Administration has acted, especially in areas of domestic policy, beyond its constitutional mandate.

But the federal government has the primary role in national security. Although comprehensive detention legislation has proved elusive, the language in the NDAA reflects the considered and constitutionally binding judgment of Congress and two Presidents on an issue over which the federal government properly holds sway.

Although the federal government has no inherent constitutional right to compel state officials to help in combating al-Qaeda or ISIS, since 9/11 it has funneled billions of dollars to all states that require fulsome cooperation from state law enforcement authorities. Meanwhile, state National Guard forces, when deployed overseas, are subject to federal control. For these reasons, Colorado’s legislation violates the federal law.

Beyond these practical concerns, this legislation, especially if followed by more states, sends a powerful message that delegitimizes not just the military detention of captured enemy combatants, but also the entire laws-of-war architecture. Legitimacy of government policies matters a great deal in our democracy. Unfortunately, it already was heavily battered, primarily by the left, during the George W. Bush administration.

Some members who are pushing for these state actions may not know that the Obama Administration has, after some initial equivocation, endorsed the laws-of-war paradigm and has retained most of the Bush Administration’s policies. This extremely positive development provides much-needed bipartisanship in this key area of national policy.

This legislation and similar legislation in other states violates the U.S. Constitution. It has nothing to do with states’ rights. It is a dangerous mistake, perpetrated by groups and people who misunderstand detainee law, including the NDAA, or who since September 11 have viscerally opposed the laws-of-war paradigm. Whatever their motivations, they are wrong, and their efforts should be strongly opposed.


In summary, HB15-1114 is a misguided, poorly constructed, internally inconsistent, and un-constitutional piece of legislation. It assumes facts that are not true, contains assumptions that are incorrect, and tramples on the entire constitutional framework it purports to support.

At a time when our nation is engaged in armed conflict against non-state actors who are recruiting Americans to join their jihad, the country needs the fulsome cooperation of its citizens in every state.

Thank you very much. I look forward to taking your questions.


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About the Author

Charles "Cully" Stimson Manager, National Security Law Program and Senior Legal Fellow
Center for National Defense

Show references in this report

[1] See The Heritage Foundation Guide to the Constitution, Second Edition (2014), Amendment X, essay by Charles Cooper, pages 479–483, available at http://www.heritage.org/constitution/#!/amendments/10/essays/163/reserved-powers-of-the-states.

[2] For a more thorough explanation of the 2001 Authorization for Use of Military Force, the Law of War, and the Law of Armed Conflict, please see my testimony before the Senate Armed Services Committee of May 16, 2013, on the same topics, http://www.heritage.org/research/testimony/2013/05/the-law-of-armed-conflict#_ftn11.

[3] See, e.g., Pub.L. 15-101, 3 Stat 532, 532–33 (1819 (authorizing force against slavers); Pub.L. 15-77, 3 Stat. 510, 510-11 (1819 authorizing force against pirates); Pub.L. 17-7, 3 Stat. 721 (1823) (same); 33 U.S.C. §§ 381-82 (same).

[4] Military commissions—criminal trials, which are separate and distinct from those detained under the law of war—are also currently underway at Guantanamo. By statute, only alien unprivileged enemy belligerents may be tried by military commissions for violations of the law of war or other offenses. An “alien” under the statute means an individual who is not a citizen of the United States. An unprivileged enemy belligerent means an individual who (1) has engaged in hostilities against the United States or its coalition partners; (2) has purposefully and materially supported hostilities against the United States or its coalition partners; or (3) was part of al-Qaeda at the time of the alleged offense. By definition, United States citizens are not subject to the jurisdiction of military commissions because they are not “aliens.” Said another way, even if an American citizen joined al-Qaeda and engaged in hostilities against the United States and committed an articulable law-of-war violation, he cannot be tried by military commissions under the current statute.

[5] Boumediene v. Bush, 553 U.S. 723 (2008).

[6] Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004).

[7] Padilla v. Hanft, 547 U.S. 1062 (2006).

[8] Found here: http://www.justice.gov/sites/default/files/opa/legacy/2009/03/13/memo-re-det-auth.pdf.

[9] Ibid.

[10] Located here: https://www.whitehouse.gov/the-press-office/2012/02/28/presidential-policy-directive-requirements-national-defense-authorizatio.

[11] See http://fas.org/irp/offdocs/ppd/ppd-14-fs.pdf.

[12] See December 19, 2011, www.lawfareblog.com post by Benjamin Wittes and Robert Chesney entitled “NDAA FAQ: A Guide for the Perplexed,” available at http://www.lawfareblog.com/2011/12/ndaa-faq-a-guide-for-the-perplexed/.

[13] See December 31, 2011, Statement on Signing the National Defense Authorization Act for Fiscal Year 2012, available at http://www.coherentbabble.com/Statements/SS-PL112-81hr1540.pdf.

[14] See The Heritage Guide to The Constitution, Second Edition (2014), Amendment X, essay by Charles Cooper, available at http://www.heritage.org/constitution/#!/amendments/10/essays/163/reserved-powers-of-the-states.

[15] See Curtis A. Bradley and Jack L. Goldsmith, “Congressional Authorization and the War on Terrorism,” Harvard Law Review, Vol. 118 (May 2005), available at http://www.uio.no/studier/emner/jus/humanrights/HUMR5503/h09/undervisningsmateriale/bradley_goldsmith.pdf.

[16] See http://www.lawfareblog.com/wp-content/uploads/2015/02/02-11-15_White_House_AUMF_Text.pdf.

[17] See Article 3, Title 28 of the Colorado Revised Statues of 2013, available at http://tornado.state.co.us/gov_dir/leg_dir/olls/2013TitlePrintouts/CRS%20Title%2028%20(2013).pdf.