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To condemn Section 1021 of the National Defense | 1 |
Authorization Act for Fiscal Year 2012 and to urge | 2 |
the Attorney General of the State of Ohio to bring | 3 |
suit to challenge the constitutionality of Section | 4 |
1021 of the National Defense Authorization Act for | 5 |
Fiscal Year 2012. | 6 |
WHEREAS, On December 15, 2011, the Congress of the United | 7 |
States enacted the National Defense Authorization Act for Fiscal | 8 |
Year 2012 ("2012 NDAA"), 2011 Public Law 112-81; and | 9 |
WHEREAS, On December 31, 2011, the President of the United | 10 |
States signed the 2012 NDAA; and | 11 |
WHEREAS, Section 1022 of the 2012 NDAA requires the armed | 12 |
forces of the United States to detain, pending disposition under | 13 |
the law of war, any person who is a member of al-Qaeda or an | 14 |
associated force and who participated in the course of planning or | 15 |
carrying out an attack against the United States or its coalition | 16 |
partners; and | 17 |
WHEREAS, Section 1022 of the 2012 NDAA specifically excludes | 18 |
lawful resident aliens on the basis of conduct occurring within | 19 |
the United States and United States citizens from its mandatory | 20 |
detention provisions; and | 21 |
WHEREAS, Section 1021 of the 2012 NDAA purports to authorize, | 22 |
but does not require, the President of the United States to | 23 |
utilize the armed forces of the United States to detain persons | 24 |
the President suspects were part of, or substantially supported, | 25 |
al-Qaeda, the Taliban, or associated forces; and | 26 |
WHEREAS, Section 1021 of the 2012 NDAA purports to authorize, | 27 |
but does not require, the President of the United States, through | 28 |
the armed forces of the United States, to dispose of such detained | 29 |
persons according to the law of war, which may include, but is not | 30 |
limited to: (1) indefinite detention without charge or trial until | 31 |
the end of hostilities authorized by the 2001 Authorization for | 32 |
Use of Military Force, 2001 Public Law 107-40; (2) prosecution | 33 |
before a military commission; or (3) transfer to a foreign country | 34 |
or foreign entity; and | 35 |
WHEREAS, Unlike Section 1022 of the 2012 NDAA, Section 1021 | 36 |
makes no specific exclusion for lawful resident aliens for conduct | 37 |
occurring within the United States or for United States citizens; | 38 |
and | 39 |
WHEREAS, Section 1021 of the 2012 NDAA seeks to preserve | 40 |
existing law and authorities pertaining to the detention of United | 41 |
States citizens, lawful resident aliens of the United States, and | 42 |
any other person captured in the United States, but does not | 43 |
specify what such existing law or authorities are; and | 44 |
WHEREAS, The specific exclusion of application to United | 45 |
States citizens and lawful resident aliens contained in Section | 46 |
1022 of the 2012 NDAA, and the absence of such an exclusion in | 47 |
Section 1021 of the NDAA, strongly implies that the provisions of | 48 |
Section 1021 are intended to apply to United States citizens and | 49 |
lawful resident aliens, regardless of whether they are captured in | 50 |
the United States; and | 51 |
WHEREAS, The Office of the President of the United States, | 52 |
under the administrations of both George W. Bush and Barack H. | 53 |
Obama, has asserted that the 2001 Authorization for Use of | 54 |
Military Force allows the Office of the President to detain United | 55 |
States citizens and lawful resident aliens captured in the United | 56 |
States indefinitely without charge; and | 57 |
WHEREAS, The United States Supreme Court has not decided | 58 |
whether the 2001 Authorization for Use of Military Force allows | 59 |
the Office of the President to detain United States citizens and | 60 |
lawful resident aliens captured in the United States indefinitely | 61 |
without charge; and | 62 |
WHEREAS, Section 1021 of the 2012 NDAA purports to enlarge | 63 |
the scope of persons the Office of the President may detain | 64 |
indefinitely beyond those responsible for the September 11, 2001, | 65 |
terrorist attacks and those who harbored them, as purportedly | 66 |
authorized by the 2001 Authorization for Use of Military Force, to | 67 |
include, "[a] person who was a part of or substantially supported | 68 |
al-Qaeda, the Taliban, or associated forces that are engaged in | 69 |
hostilities against the United States or its coalition partners, | 70 |
including any person who has committed a belligerent act or has | 71 |
directly supported such hostilities in aid of such enemy forces"; | 72 |
and | 73 |
WHEREAS, United States Senator Carl Levin declared in | 74 |
colloquy on the floor of the United States Senate that the | 75 |
original 2012 NDAA provided that Section 1021, then labeled | 76 |
section 1031, specifically would not apply to United States | 77 |
citizens, but that the Office of the President of the United | 78 |
States requested that such restriction be removed from the 2012 | 79 |
NDAA; and | 80 |
WHEREAS, During debate within the Senate prior to the passage | 81 |
of the 2012 NDAA, United States Senator Mark Udall introduced an | 82 |
amendment which was intended to forbid the indefinite detention of | 83 |
United States citizens and which was rejected by a vote of 38–60; | 84 |
and | 85 |
WHEREAS, United States Senator John McCain and United States | 86 |
Senator Lindsey Graham declared in colloquies on the floor of the | 87 |
United States Senate that Section 1021 of the 2012 NDAA authorized | 88 |
the indefinite detention of United States citizens captured within | 89 |
the United States by the armed forces of the United States; and | 90 |
WHEREAS, United States Senator Lindsey Graham declared in | 91 |
colloquy on the floor of the United States Senate that the United | 92 |
States homeland is now part of "the battlefield"; and | 93 |
WHEREAS, The policing of the citizenry of the United States | 94 |
by the armed forces of the United States, as purportedly | 95 |
authorized by the 2012 NDAA, overturns the Posse Comitatus Act, 18 | 96 |
U.S.C. 1385, and is repugnant to a free society; and | 97 |
WHEREAS, Section 1021 of the 2012 NDAA, insofar as it | 98 |
purports to authorize (1) the detention without charge of United | 99 |
States citizens and lawful resident aliens captured within the | 100 |
United States, (2) military tribunals for United States citizens | 101 |
and lawful resident aliens captured within the United States, and | 102 |
(3) the transfer of United States citizens and lawful resident | 103 |
aliens captured within the United States to foreign jurisdictions, | 104 |
violates the following rights enshrined in the Constitution of the | 105 |
United States: | 106 |
The Article I, Section 9, Clause 2 right to seek the writ of | 107 |
habeas corpus; | 108 |
The First Amendment right to petition the government for a | 109 |
redress of grievances; | 110 |
The Fourth Amendment right to be free from unreasonable | 111 |
searches and seizures; | 112 |
The Fifth Amendment right to be free from charge for an | 113 |
infamous or capital crime until presentment or indictment by a | 114 |
grand jury; | 115 |
The Fifth Amendment right to be free from deprivation of | 116 |
life, liberty, or property without due process of law; | 117 |
The Sixth Amendment right in criminal prosecutions to a | 118 |
speedy trial by an impartial jury in the state and district where | 119 |
the crime shall have been committed; | 120 |
The Sixth Amendment right to be informed of the nature and | 121 |
cause of the accusation; | 122 |
The Sixth Amendment right to confront witnesses; | 123 |
The Sixth Amendment right to counsel; | 124 |
The Eighth Amendment right to be free from excessive bail and | 125 |
fines and from cruel and unusual punishment; and | 126 |
The Fourteenth Amendment right to be free from deprivation of | 127 |
life, liberty, or property without due process of law; and | 128 |
WHEREAS, Section 1021 of the 2012 NDAA, insofar as it | 129 |
purports to authorize (1) the detention without charge of United | 130 |
States citizens and legal resident aliens captured within the | 131 |
United States, (2) military tribunals for United States citizens | 132 |
and legal resident aliens captured within the United States, and | 133 |
(3) the transfer of United States citizens and legal resident | 134 |
aliens captured within the United States to foreign jurisdictions, | 135 |
is repugnant to the following rights enshrined in the Constitution | 136 |
of the State of Ohio: | 137 |
The Article I, Section 1 right to enjoy and defend life and | 138 |
liberty; | 139 |
The Article I, Section 3 right to petition the General | 140 |
Assembly for the redress of grievances; | 141 |
The Article I, Section 4 requirement that the military be in | 142 |
strict subordination to the civil power; | 143 |
The Article I, Section 5 right to trial by jury; | 144 |
The Article I, Section 8 right to seek the writ of habeas | 145 |
corpus; | 146 |
The Article I, Section 9 right to be free from excessive bail | 147 |
and from cruel and unusual punishment; | 148 |
The Article I, Section 10 rights to be free from charge for | 149 |
an infamous or capital crime without presentment or indictment by | 150 |
a grand jury; to a speedy public trial by an impartial jury of the | 151 |
county in which the offense is alleged to have been committed; to | 152 |
have the assistance of counsel; to demand the nature and cause of | 153 |
the accusation, and to have a copy thereof; to confront witnesses; | 154 |
to compel witnesses to attend; and to refuse to testify against | 155 |
oneself; | 156 |
The Article I, Section 14 right to be free from unreasonable | 157 |
search and seizure; and | 158 |
The Article I, Section 16 right to have remedy by due course | 159 |
of law for an injury to one's person, and to have justice | 160 |
administered without denial or delay; and | 161 |
WHEREAS, The General Assembly finds that Section 1029 of the | 162 |
National Defense Authorization Act for Fiscal Year 2013, which | 163 |
purports that the 2012 NDAA, and other recent laws, should not be | 164 |
interpreted to deny the availability of the writ of habeas corpus | 165 |
or to deny any constitutional rights, is not adequate to protect | 166 |
the constitutional rights of Ohio citizens; and | 167 |
WHEREAS, The members of the General Assembly have taken an | 168 |
oath to uphold the Constitution of the United States and the | 169 |
Constitution of the State of Ohio; and | 170 |
WHEREAS, The General Assembly opposes any and all rules, | 171 |
laws, regulations, bill language, or executive orders that amount | 172 |
to an overreach of the federal government and that effectively | 173 |
take away civil liberties; and | 174 |
WHEREAS, It is indisputable that the threat of terrorism is | 175 |
real, and that the full force of appropriate and constitutional | 176 |
law must be used to defeat this threat; however, defeating those | 177 |
that engage in terrorism cannot come at the great expense of | 178 |
mitigating basic, fundamental constitutional rights; and | 179 |
WHEREAS, Undermining our own constitutional rights serves | 180 |
only to concede to the terrorists' demands to change the fabric of | 181 |
what made the United States a country of freedom, liberty, and | 182 |
opportunity; now therefore be it | 183 |
RESOLVED, That the General Assembly condemns in no uncertain | 184 |
terms Section 1021 of the National Defense Authorization Act for | 185 |
Fiscal Year 2012 insofar as it purports to (1) repeal the Posse | 186 |
Comitatus Act and authorize the President of the United States to | 187 |
utilize the armed forces of the United States to police United | 188 |
States citizens and lawful resident aliens within the United | 189 |
States; (2) authorize the indefinite detention without charge of | 190 |
United States citizens and lawful resident aliens captured within | 191 |
the United States until the end of hostilities authorized by the | 192 |
2001 Authorization for Use of Military Force; (3) subject American | 193 |
citizens and lawful resident aliens captured within the United | 194 |
States to military tribunals; and (4) transfer American citizens | 195 |
and lawful resident aliens captured within the United States to a | 196 |
foreign country or foreign entity; and be it further | 197 |
RESOLVED, That the General Assembly urges the Attorney | 198 |
General of the State of Ohio to bring suit to challenge the | 199 |
constitutionality of Section 1021 of the National Defense | 200 |
Authorization Act for Fiscal Year 2012; and be it further | 201 |
RESOLVED, That the Clerk of the House of Representatives | 202 |
transmit duly authenticated copies of this resolution to the | 203 |
Attorney General of the State of Ohio, to the Speaker and Clerk of | 204 |
the United States House of Representatives, to the President Pro | 205 |
Tempore and Secretary of the United States Senate, to the members | 206 |
of the Ohio Congressional delegation, and to the news media of | 207 |
Ohio. | 208 |