04/17/2015
April 17, 2015
Dear Senator Greg Brower:
It is with great disappointment that we write this letter today. It’s a sad day for Nevada. We watched your comments made in committee on bill SB352, The Nevada Liberty Preservation Act. We are actually surprised that you gave a six minute oration on your reasons for not bringing up SB352, which was about six minutes more time than you gave us to present the case in favor. Both Daphne Lee and myself, were met with complete and utter silence in our efforts to have an open dialogue with you regarding this matter. No returned calls. No returned emails. While I respect that you took the time to fully explain your position, we find your lack of openness to hold even a single conversation with us, incredibly disappointing. The manner in which this bill was hastily brought up, without any notification, is also incredibly discerning. While it may have been comfortable for you to have your perspective heard, unopposed on record, the absence of both the bill’s sponsor, Senator Gustavson, and our organization, left us feeling denied our opportunity to provide information or testimony. I suppose that was the point though. Unfortunately, we’re starting to get used to fact that very few elected officials have the courage to take on important issues involving civil liberties and standing up to protect basic Constitutional rights. To say “we have to agree to disagree” is simply a phrase used by politicians who do not desire to discuss an issue presently or ever.
We do not live in a black and white world and there are always options available to amend or change a bill, and we acknowledged the issues we had ourselves with the bill, and offered legitimate amendments and texts of bills to you that have ALREADY been passed and signed into law in other states, in our attempt for transparency and to reconcile any legality issues. Due to your complete lack of acknowledgment of these offered proposals, we are led to believe that you either favor the authority to indefinitely detain a person without charge or trial, or are erroneously informed of the issue. We demonstrated to you the deep concern from the many citizens of Nevada in our emailing to you of three important, separate resolutions that have passed and called for further action against the indefinite detention provisions: The Nevada State Republican Delegates of the 2014 Convention, The Las Vegas City Council, and the Clark County Commission. Had you actually acknowledged the will of the people, we’re sure you would have given this bill the proper attention it requires.
We also take issue with the many different points of your statement. Again, we emailed you and asked for a discussion regarding these concerns and were met with silence. We believe in any great debate, it is vital and important to hear both sides of the argument in order to make an informed decision, so we are left puzzled how you could feel so confident in your decision, without a single conversation with the opposing side. Our technical rebuttal to your remarks is in the postscript below.
In closing, while we’re pretty certain you feel comfortable with the decision you made, we can assure you we are not. We encourage you to learn about the recent events exposed in Chicago at Homan Square- we are. We also encourage you to keep in mind that the author of Section 215 of the Patriot Act said it was never intended to provide legal shelter for the unconstitutional mass surveillance of every American, and yet it is. Hopefully someday, you will come to understand how important this work is.
Sincerely,
Christopher Corbett
PANDA Northern Nevada
Daphne Lee
PANDA Nevada Executive Director
Video:Senator Greg Brower’s remarks-SB352 04/09/2015
You cited the 2nd Circuit Court’s decision in Hedges v Obama, but neglected to consider the text of NDAA 2012 Section 1021(b)(2) which substantially expands on the AUMF relying on broad and vague language including the terms “substantial support”, “coalition partners” and “belligerent act” all of which federal attorneys in the case could not define who could or could not be detained under the NDAA, including American civilians. This is specifically what led to Federal Court Judge Katherine Forrest’s injunction on the NDAA’s detention provisions in New York’s 4th District Court. Unlike Forrest, who held Section 1021(b)(2) of NDAA 2012 to be “facially unconstitutional” and “unconstitutionally overbroad”, the 2nd Circuit Court held Hedges lacked standing only while also completely ignoring the constitutional question of the case. To assume the NDAA is not unconstitutional based on the 2nd Circuit’s opinion is a flawed premise as justices in the 2nd Circuit made no such statement in the case.
Further, Senator John McCain, a co-author of Section 1021 and Senator Lindsey Graham have each expressed the opinion that Section 1021 does subject American civilians to the Law of War. Placing the Law of War above the Constitution is in itself an unconstitutional act as the Constitution alone is the Supreme law of the land and no other law shall be above it.
Second, the Nevada Legislative oath is an oath to uphold and defend the Constitution and government and Nevada Constitution and Nevada Government in that order. The order of the oath is important and places the oath to the Constitution above and beyond the remaining three parts of the oath. It is, therefore, the legislator's duty to uphold the Constitution above all else. We expect that as a State Senator working for the people that you uphold your oath and defend the Constitution.
To paraphrase Article 6 Section 2 of the Constitution, the Supremacy Clause, states, “This Constitution, and the laws of the United States which shall be made in pursuance thereof...shall be the supreme law of the land.”
In Marbury v Madison the Supreme Court held, “...in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.
Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.” (emphasis mine)
We do not believe, nor do many others, that a law which authorizes indefinite detention without charge or trial is a law made in pursuance of the Constitution.
The states and their officers, who are required to take an oath to protect the Constitution, have a duty to make a determination if a proposed law or a law actually passed by Congress is constitutional and act accordingly.
No one under oath to the constitution is obligated to assume that any law passed by Congress is constitutional. That would negate the whole purpose of their oath to protect the Constitution and negate the checks and balances between the different branches of government and the different sovereigns i.e. the states versus the federal government.
It is erroneous to believe that a federal law is presumed valid until such time as the Supreme Court or an alternative court rules otherwise. Such is absolutely incorrect and inconsistent with Supreme Court rulings. To this end, in Legislative Counsel’s opinion quotes in Marbury v. Madison.
There is a self-imposed rule of judicial construction that require the courts to interpret laws to be constitutional if at all possible.
This is simply an internal rule of the judiciary and applies to no other department or individual. This would in fact be a violation of their federal oath under Article VI clause 3. There is also no prohibition established by Marbury v Madison denying other branches of government from interpreting the constitutionality of a law.
If given the opportunity, we would have suggested a non-commandeering act establishing prohibition of State cooperation to any entity operating under the color of NDAA 2012 Section 1021(b)(2), having been previously held unconstitutional by Federal Court Judge Katherine Forrest. A non-commandeering act would effectively render the detention provisions under the NDAA 2012 as to nearly moot. A non-commandeering act would not conflict with existing federal law but only mandate that the State stand down and take no action of assistance. An act of this nature would also be upheld by the judiciary as constitutional based on Supreme Court rulings in New York v United States and Printz v United States.
In New York v United States the Supreme Court held the federal government cannot compel a state into regulatory compliance.
Justice O’Connor wrote for the majority in the decision.
“As an initial matter, Congress may not simply “commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”
She later expounded on this point.
“While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.”
In Printz v United States the Supreme Court held essentially the same.
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-bycase weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
Based on these two rulings, the State of Nevada is under no federal mandate to comply with any force or action under color of NDAA 2012’s detention authorizations. The State may provide support but only by it’s consent to do so. By tabling SB352, Senator Brower, you maintain the status quo that allows State officers to support the indefinite military detention of American Civilians in Nevada, plain and simple.
