In late 2017, Testimony offered before the North Carolina Commission of Inquiry on Torture (NCCIT) revealed the culpability of state and local officials in a U.S. program of extraordinary rendition and torture. In response to these revelations, the Tenth Amendment Center has developed model legislation to would bar state participation in such programs.
The Human Dignity Protection Act would bar state and local agencies, along with their employees, from participating, in or providing material support for, “any action that would subject a person to extraordinary rendition, torture or enhanced interrogation techniques.” The legislation also includes provisions that would bar the state and its political subdivisions from doing business with any corporation that assisted with or provided support for torture.
State, county or local employees found to have assisted in torture programs in violation of the law would lose their jobs and would “forever thereafter ineligible to any office of trust, honor or emolument under the laws of this state.” Local or state agencies found in violation of the law would lose funding.
Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” is an extremely effective method to hamper present or future torture programs.The federal government depends on state and local support for virtually very it does. As the NCCIT found, this includes torture and rendition.
According to the report, North Carolina served as a staging ground for Bush-era “extraordinary rendition” flights. Aircraft owned by a North Carolina-based company flying out of publicly-funded airports in Smithfield and Kinston picked up suspected terrorists in and transported them to CIA “black sights” in other countries. Suspects were illegally detained in these third-party countries without charges. In some cases, prisoners were held in facilities run by the host countries. In other situations, they were held in CIA or U.S. military facilities. Regardless, captives were held secretly, denied access to families or lawyers, and tortured during their interrogations.
As we reported, support from the state of North Carolina and several of its political subdivisions made Areo’s work for the CIA possible.
“For its business, Aero relies on and benefits from North Carolina state and local resources. Its officeholders and employees are real-life residents of Johnston County or North Carolina. North Carolina and its political subdivisions have supported Aero in a number of ways, including by providing county resources to operate its business. North Carolina extended credit to Aero for the construction of a hangar at the Global TransPark Authority in Kinston.
Johnston County facilitated Aero’s operations by providing permits for construction work and by conducting site safety inspections of Aero’s premises. Aero was intricately involved in the extraordinary rendition of individuals to overseas facilities and black sites, and as a North Carolina-based corporation, could not have carried out these functions without the support and resources of the state of North Carolina and its political subdivisions.” [emphasis added]
Since the federal government depends on state and local support to operate torture and rendition programs, withdrawing that assistance will make it more difficult for torture programs to operate.
The Human Dignity Protection Act rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842. Printz v. U.S serves as the cornerstone.
“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 policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
Under the anti-commandeering doctrine, state and local government are under no obligation to assist in federal torture or rendition programs. They can legally prohibit all support and withhold any and all state resources.
Morally and constitutionally-speaking, they should.