“Mongering fear…”

That’s what establishment hawks Charles Stimson and David Rivkin say the Tenth Amendment Center and other organizations are doing by pushing back against the new “indefinite detention” powers in Sections 1021 and 1022 of the National Defense Authorization Act (NDAA) of 2012.

But, even in the face of yet another unconstitutional federal act, the People of the United States just gained an important ally in defense of their Constitution: the Commonwealth of Virginia, and state employees in particular.

Virginia Governor Bob McDonnell just signed into law House Bill 1160 (HB1160), which would prohibit state agencies from participating in unconstitutional detentions under the NDAA.

Stimson and Rivkin are mighty upset about this too. Their recent Washington Post op-ed on the issue is so filled with errors, distortions and half-truths (I’m being generous with the latter), that their irritation about the bill either clouded their ability to read, or shows they’re little more than propagandists for yet more unlimited executive power.


I’m going to focus on two big flaws in their analysis which seriously damage their credibility on the issue. First, there’s this:

“Virginia’s legislature recently passed a bill that forbids state employees, including police and members of the National Guard, from participating in the investigation, surveillance, detention or arrest of any suspected member of al-Qaeda or its affiliates, if that suspect is a U.S. citizen.”


HB1160 does not, as the authors claim, forbid state agency participation of “any suspected member….if that suspect is a U.S. citizen.” To make such a statement would require a reader of the bill to completely miss the extremely important qualifier, which reads as follows:

….if such aid would knowingly place [applicable state agents] in violation of the United States Constitution, the Constitution of Virginia, any provision of the Code of Virginia, any act of the General Assembly, or any regulation of the Virginia Administrative Code…

Think about that. Assistance in investigation, surveillance, detention or arrest is still permitted, as long as such assistance complies with the Constitution of the United States.

Knowingly violating the Constitution is what is prohibited.

Are Stimson and Rivkin in favor of requiring people to “knowingly” violate the Constitution? Are they just too busy to read the full text of a one-page bill? Or, are they intentionally leaving off this important qualifier from the bill itself in order to frighten you into thinking that states like Virginia (and soon others too) are dangerous?

If it’s the latter, that’s a textbook case of fear mongering in my opinion.

Next on the chopping block is this:

…Although the federal government has no inherent constitutional right to compel state officials to help in combating al-Qaeda, 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, Virginia’s legislation violates the federal law….

Both are wrong, but the big fallacy here is the latter. It’s so distorted that it bears repeating:

Meanwhile, state National Guard forces, when deployed overseas, are subject to federal control.

Are they claiming that HB1160 is trying to prevent Virginia’s National Guard forces from acting when under federal control? Seems so. But this is totally misleading. If I could get into the minds of the authors, I’d suspect I’d see a little fear mongering as their motivation, but who am I to say?

Anyway, here’s the real deal, from the text of the actual bill. The people that HB1160 applies to are a person of specific state agencies…

…or member of the Virginia National Guard or Virginia Defense Force, when such a member is serving in the Virginia National Guard or the Virginia Defense Force on official state duty

When national guard troops have been called up by the federal government, they are no longer on “official state duty,” they are on official federal duty. So, of course they’d no longer be under the purview of HB1160. This language was included for just that reason.

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Did our two authors just miss that part of the sentence, or did they intentionally ignore it? Either way, this is elementary stuff, and these two have some reading to do.


On the NDAA itself, I do recognize that Stimson and Rivkin made a number of statements about its supposed constitutionality. But, my opinion is this: If they can’t even get these things right about a one-page bill, how can anyone trust them to provide correct constitutional analysis of a bill far longer?

I sure don’t.

Michael Boldin

The 10th Amendment

“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.”



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