H. C. R. No. 41 As Reported by the House Military and Veterans Affairs Committee

As Reported by the House Military and Veterans Affairs Committee

130th General Assembly

Regular Session

2013-2014

H. C. R. No. 41

Representatives Butler, Young

Cosponsors: Representatives Adams, J., Beck, Becker, Brenner, Henne, Hood, Lynch, Retherford, Roegner, Sprague, Stebelton, Terhar, Johnson, Landis, Anielski, Barborak, Milkovich

A CONCURRENT RESOLUTION

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

BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE STATE OF OHIO
(THE SENATE CONCURRING):

       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

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 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