“Indefinite Detention” Law Would Hobble Colorado Counter-terrorism Efforts

Contradictions sink Colorado ‘indefinite detention’ bill


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THE BEST OF INTENTIONS?: A bill was killed in the Colorado Legislature that many believe was to protect civil liberties when it comes to “indefinite detention.”

By Marjorie Haun | Watchdog Arena

The Colorado Legislature recently attempted to duplicate the efforts of other states, in what many believe to be the protection of civil liberties of American citizens.

The Colorado House passed HB15-1114, a bill very similar to the 2012 Virginia law responding to the National Defense Authorization Act, prohibiting state employees from investigating, prosecuting, or detaining individuals under the NDAA. However, with a preamble and concluding sections containing contradictory language, the bill faced problems early on. The preamble states unequivocally:

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.

Section (2) of the Colorado NDAA bill, however, seems to negate its stated purpose. It reads:

The prohibition described in paragraph (a) of subsection (1) of this section does not apply to participation by an entity in a joint task force, partnership, or other similar cooperative agreement with Federal Law Enforcement if the joint task force, partnership, or other similar cooperative agreement is not for the purpose of investigating, prosecuting, or detaining any person pursuant to section 1021 or 1022 of the federal “National Defense Authorization Act for Fiscal Year 2012.”

Even more problematic for the sponsors of HB15-1114, Sens. Laura Woods (R) and  Jessie Ulibarri (D), is the provision in the bill which would criminalize individual state employees who, even in their official capacity, participated in the investigation, prosecution, or detention of an American citizen with possible terrorist links. It states:

An individual who violates subsection (1) of this section shall be prosecuted under any applicable provisions of the “Colorado Criminal Code”, Title 18, C.R.S., including, but not limited to, provisions that prohibit assault, battery, kidnapping and homicide, as defined by law.

The Colorado Division of Public Safety and numerous military organizations opposed the bill because of this provision.

The Colorado Senate State Military and Veteran’s Affairs Committee held a hearing on HB15-1114 on March 23, during which an expert on military law and the NDAA from the Heritage Foundation, Charles (Cully) Stimson, testified in opposition to the bill. In an attempt to assuage the fears surrounding NDAA investigations, he stated:

A grand total of two terrorists (Jose Padilla and Yasser Hamdi) with ties to either al-Qaeda or the Taliban—who 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.

Of the Colorado bill, Stimson went on to say:

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? Should he do his duty and detain the suspect, which could be interpreted as a violation of Colorado law? Or should he simply write the speeding ticket and send the terrorist on his way, not telling the FBI or the military, and the consequences be damned?

Yasar Hamdi and Jose Padilla


Following Stimson’s testimony, the Colorado Senate State Military and Veteran’s Affairs Committee killed the bill in a 3-2 vote.

This is not the first time NDAA investigations and “indefinite detentions” have been addressed in the Colorado Legislature and other legislatures. HB15-1114 is the third bill in three years to be introduced which would prohibit state participation in federal investigations of American citizens with suspected terrorist ties.

When the NDAA passed in 2012, certain provisions sparked a heated conversation about civil liberties. Section 1021 of the NDAA addresses the power of the United States Armed Forces to detain persons involved with the terrorist attacks of Sept. 11, 2001, as well as “a person who was part of, or substantially supported al-Qaeda, the Taliban, or associated forces (ISIS), 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” (sub-section 1021 (a) of NDAA 2012).

Though the language seems to be clear about who is covered by the NDAA, disputes continue over the provision of the act allowing for the detention of American citizens with suspected terrorist links. It states:

(c)DISPOSITION UNDER 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.

Civil libertarians on both sides of the aisle have feared the potential “indefinite detention” of American citizens under this act, possibly due to the arbitrary definition of “end of hostilities.” As a result, several states have sought to pass legislation prohibiting the use of state resources, funding, and state employees—such as state patrol officers and National Guardsmen—from assisting in NDAA investigations of American citizens.

The state of Virginia responded in 2012 by passing a bill forbidding state employees, such as law-enforcement officers and National Guardsmen, from participating in the investigation, surveillance, detention or arrest of any U.S. citizen who may be a suspected member of a terrorist organization.

Virginia’s law has been challenged for a number of reasons, including the fact that, according to the Washington Post, the state has received billions of dollars of federal funding for the support of NDAA surveillance of suspected terrorists. This has also been an issue in other states with similar bills.

Several other states, including Arizona, Kansas, Maine, Maryland, Missouri and Utah, have passed similar laws banning state assistance in NDAA investigations or detentions of American citizens.

This article was written by a contributor of Watchdog Arena, Franklin Center’s network of writers, bloggers, and citizen journalists.

Reposted by  4/2/2015

  1. Shoreline1

    Interesting that they include military anti-drug activities with anti-terrorist activities. Some of the things we do around the world, although seemingly righteous and justified in the minds of some Americans, essentially make other Americans gag.

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