Uncertainty shrouds Virginia’s anti-terror bill
RICHMOND — Democrats in the Virginia Senate are refusing to sign off on the $85 billion Republican budget, frustrating taxpayers, lawmakers and local leaders who rely on taxpayer dollars to fund critical government services.
House Bill 1160, introduced in mid-January by Del. Bob Marshall, R-Prince William, would declare that no state agency or state employee will aid federal intelligence or law officers in their pursuit of terrorists.
The bill is on its way to Republican Gov. Bob McDonnell. Jeff Caldwell, McDonnell’s press secretary, said the governor is worried about any unintended consequences on national security efforts, and he has not yet decided on its fate.
“While the governor does not condone the unlawful detention of U.S. citizens, he has concerns about the impact, whether intended or not, this legislation would have on Joint Terrorism Task Forces of which state and local agencies are members, information sharing by and with the Virginia State Police and local law enforcement, and the impact on our Virginia National Guard personnel,” Caldwell said.
The move would prevent Virginia law-enforcement officials from indefinitely detaining U.S. citizens with “no trial, no legal counsel, no charges and no day in court,” under the federal National Defense Authorization Act Marshall said.
But Del. Barbara Comstock, R-McLean, has led the charge against the bill.
For two years, Comstock was public affairs director for the Justice Department. In that role, she traveled the country to speak about federal anti-terrorism law with state attorneys general.
Working with the nation’s top counterterrorism officials taught Comstock the importance of information sharing among local, state and federal authorities, she said. She pointed to the Sept. 11, 2001, attacks, perpetrated by two men who had lived in Falls Church and others as an example of the need for cooperation.
She said uncertainty over the legislation — which would nullify the National Defense Authorization Act — was her greatest motivation to fight the bill.
The effect on taxpayers is uncertain, players on all sides say. It’s also unclear who would pay for salaries and equipment should the federal government need state police, Virginia corrections officers or state transportation to complete an anti-terror mission.
Marshall drafted the bill “on the false premise that habeas corpus rights have been suspended,” Comstock said Thursday, hours after the Senate approved the bill in a 37-1 vote. State Sen. John C. Miller, D-Hampton City, cast the lone “no” vote.
The bill has backing from the American Civil Liberties Union, the Tea Party Patriots Federation, the Japanese Americans Citizens League and the Campaign for Liberty.
Del. Mark Keam, D-Fairfax, defended the bill on the House floor, where the bill passed 96-4.
“This is where we can draw the line between strong law enforcement — with all the legitimate tools that we need to give to law enforcement, to the FBI, and to the military, everyone that needs to be out there fighting — and at the same time protect innocent Virginians from any kind of government overbearing,” Keam said.
Virginians don’t ever want to be in a situation where American citizens and their civil liberties are being violated, Keam said, because of language in the Constitution that’s misinterpreted by a future Congress or a future president.
“We’re making sure Virginia is on the right side of history,” he said.
Virginia resident Chris Leonard, 42, of Fairfax said, “What it would come down to is if it were unlawful or not.” If arresting and detaining U.S. citizens without trial is unlawful, “then I would consider the federal government’s position mistaken, and not in itself lawful. That would be my reasoning.”
William Van Alstyne, a Lee Professor of Law at William and Mary Law School in Williamsburg, said he questions whether the law is even necessary.
Van Alstyne, who teaches constitutional and human rights law, said an American citizen unlawfully detained by state or federal authorities on terrorism charges “would be able to invoke the 14th and First Amendment as a defense in any event.”
“To a certain extent, this statute, insofar as it protects First Amendment activity, is valid,” he said. “However, it may merely back up or apply legislative reinforcement to something people might not otherwise think they can do — resist efforts by our own government if, under the authority of the original War Powers Act, the president ordered our federal troops in activities that in fact would be unauthorized by the War Powers Act or in violation of the First Amendment.”
State Sen. Chap Petersen, D-Fairfax City, said the law is necessary to protect the civil liberties of all Virginians.
“The unlawful detention of U.S. citizens is wrong, and here in the commonwealth we will never assist in the detention of others, no matter the state of war that we may be in, or no matter the emergency,” Petersen said. “The rule of law must persist in our nation, regardless of circumstances, or we all shall fail in our commitment to justice.”
The bill is HB1160. Read it: http://lis.virginia.gov/cgi-bin/legp604.exe?121+sum+HB1160