130th Ohio General Assembly
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H. C. R. No. 41  As Adopted by the House
As Adopted by the House

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, Blair, Blessing, Boose, Buchy, Conditt, Derickson, Green, Hackett, Hagan, C., Hall, Huffman, Maag, Perales, Romanchuk, Rosenberger, Ruhl, Scherer, Schuring, Sears, Smith Speaker Batchelder 



A CONCURRENT RESOLUTION
To condemn Section 1021 of the National Defense Authorization Act for Fiscal Year 2012 and to urge the Attorney General of the State of Ohio to bring suit to challenge the constitutionality of Section 1021 of the National Defense Authorization Act for Fiscal Year 2012.


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 States enacted the National Defense Authorization Act for Fiscal Year 2012 ("2012 NDAA"), 2011 Public Law 112-81; and

       WHEREAS, On December 31, 2011, the President of the United States signed the 2012 NDAA; and

       WHEREAS, Section 1022 of the 2012 NDAA requires the armed forces of the United States to detain, pending disposition under the law of war, any person who is a member of al-Qaeda or an associated force and who participated in the course of planning or carrying out an attack against the United States or its coalition partners; and

       WHEREAS, Section 1022 of the 2012 NDAA specifically excludes lawful resident aliens on the basis of conduct occurring within the United States and United States citizens from its mandatory detention provisions; and

       WHEREAS, Section 1021 of the 2012 NDAA purports to authorize, but does not require, the President of the United States to utilize the armed forces of the United States to detain persons the President suspects were part of, or substantially supported, al-Qaeda, the Taliban, or associated forces; and

       WHEREAS, Section 1021 of the 2012 NDAA purports to authorize, but does not require, the President of the United States, through the armed forces of the United States, to dispose of such detained persons according to the law of war, which may include, but is not limited to: (1) indefinite detention without charge or trial until the end of hostilities authorized by the 2001 Authorization for Use of Military Force, 2001 Public Law 107-40; (2) prosecution before a military commission; or (3) transfer to a foreign country or foreign entity; and

       WHEREAS, Unlike Section 1022 of the 2012 NDAA, Section 1021 makes no specific exclusion for lawful resident aliens for conduct occurring within the United States or for United States citizens; and

       WHEREAS, Section 1021 of the 2012 NDAA seeks to preserve existing law and authorities pertaining to the detention of United States citizens, lawful resident aliens of the United States, and any other person captured in the United States, but does not specify what such existing law or authorities are; and

       WHEREAS, The specific exclusion of application to United States citizens and lawful resident aliens contained in Section 1022 of the 2012 NDAA, and the absence of such an exclusion in Section 1021 of the NDAA, strongly implies that the provisions of Section 1021 are intended to apply to United States citizens and lawful resident aliens, regardless of whether they are captured in the United States; and

       WHEREAS, The Office of the President of the United States, under the administrations of both George W. Bush and Barack H. Obama, has asserted that the 2001 Authorization for Use of Military Force allows the Office of the President to detain United States citizens and lawful resident aliens captured in the United States indefinitely without charge; and

       WHEREAS, The United States Supreme Court has not decided whether the 2001 Authorization for Use of Military Force allows the Office of the President to detain United States citizens and lawful resident aliens captured in the United States indefinitely without charge; and

       WHEREAS, Section 1021 of the 2012 NDAA purports to enlarge the scope of persons the Office of the President may detain indefinitely beyond those responsible for the September 11, 2001, terrorist attacks and those who harbored them, as purportedly authorized by the 2001 Authorization for Use of Military Force, to include, "[a] person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces"; and

       WHEREAS, United States Senator Carl Levin declared in colloquy on the floor of the United States Senate that the original 2012 NDAA provided that Section 1021, then labeled section 1031, specifically would not apply to United States citizens, but that the Office of the President of the United States requested that such restriction be removed from the 2012 NDAA; and

       WHEREAS, During debate within the Senate prior to the passage of the 2012 NDAA, United States Senator Mark Udall introduced an amendment which was intended to forbid the indefinite detention of United States citizens and which was rejected by a vote of 38–60; and

       WHEREAS, United States Senator John McCain and United States Senator Lindsey Graham declared in colloquies on the floor of the United States Senate that Section 1021 of the 2012 NDAA authorized the indefinite detention of United States citizens captured within the United States by the armed forces of the United States; and

       WHEREAS, United States Senator Lindsey Graham declared in colloquy on the floor of the United States Senate that the United States homeland is now part of "the battlefield"; and

       WHEREAS, The policing of the citizenry of the United States by the armed forces of the United States, as purportedly authorized by the 2012 NDAA, overturns the Posse Comitatus Act, 18 U.S.C. 1385, and is repugnant to a free society; and

       WHEREAS, Section 1021 of the 2012 NDAA, insofar as it purports to authorize (1) the detention without charge of United States citizens and lawful resident aliens captured within the United States, (2) military tribunals for United States citizens and lawful resident aliens captured within the United States, and (3) the transfer of United States citizens and lawful resident aliens captured within the United States to foreign jurisdictions, violates the following rights enshrined in the Constitution of the United States:

       The Article I, Section 9, Clause 2 right to seek the writ of habeas corpus;

       The First Amendment right to petition the government for a redress of grievances;

       The Fourth Amendment right to be free from unreasonable searches and seizures;

       The Fifth Amendment right to be free from charge for an infamous or capital crime until presentment or indictment by a grand jury;

       The Fifth Amendment right to be free from deprivation of life, liberty, or property without due process of law;

       The Sixth Amendment right in criminal prosecutions to a speedy trial by an impartial jury in the state and district where the crime shall have been committed;

       The Sixth Amendment right to be informed of the nature and cause of the accusation;

       The Sixth Amendment right to confront witnesses;

       The Sixth Amendment right to counsel;

       The Eighth Amendment right to be free from excessive bail and fines and from cruel and unusual punishment; and

       The Fourteenth Amendment right to be free from deprivation of life, liberty, or property without due process of law; and

       WHEREAS, Section 1021 of the 2012 NDAA, insofar as it purports to authorize (1) the detention without charge of United States citizens and legal resident aliens captured within the United States, (2) military tribunals for United States citizens and legal resident aliens captured within the United States, and (3) the transfer of United States citizens and legal resident aliens captured within the United States to foreign jurisdictions, is repugnant to the following rights enshrined in the Constitution of the State of Ohio:

       The Article I, Section 1 right to enjoy and defend life and liberty;

       The Article I, Section 3 right to petition the General Assembly for the redress of grievances;

       The Article I, Section 4 requirement that the military be in strict subordination to the civil power;

       The Article I, Section 5 right to trial by jury;

       The Article I, Section 8 right to seek the writ of habeas corpus;

       The Article I, Section 9 right to be free from excessive bail and from cruel and unusual punishment;

       The Article I, Section 10 rights to be free from charge for an infamous or capital crime without presentment or indictment by a grand jury; to a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed; to have the assistance of counsel; to demand the nature and cause of the accusation, and to have a copy thereof; to confront witnesses; to compel witnesses to attend; and to refuse to testify against oneself;

       The Article I, Section 14 right to be free from unreasonable search and seizure; and

       The Article I, Section 16 right to have remedy by due course of law for an injury to one's person, and to have justice administered without denial or delay; and

       WHEREAS, The General Assembly finds that Section 1029 of the National Defense Authorization Act for Fiscal Year 2013, which purports that the 2012 NDAA, and other recent laws, should not be interpreted to deny the availability of the writ of habeas corpus or to deny any constitutional rights, is not adequate to protect the constitutional rights of Ohio citizens; and

       WHEREAS, The members of the General Assembly have taken an oath to uphold the Constitution of the United States and the Constitution of the State of Ohio; and

       WHEREAS, The General Assembly opposes any and all rules, laws, regulations, bill language, or executive orders that amount to an overreach of the federal government and that effectively take away civil liberties; and

       WHEREAS, It is indisputable that the threat of terrorism is real, and that the full force of appropriate and constitutional law must be used to defeat this threat; however, defeating those that engage in terrorism cannot come at the great expense of mitigating basic, fundamental constitutional rights; and

       WHEREAS, Undermining our own constitutional rights serves only to concede to the terrorists' demands to change the fabric of what made the United States a country of freedom, liberty, and opportunity; now therefore be it

       RESOLVED, That the General Assembly condemns in no uncertain terms Section 1021 of the National Defense Authorization Act for Fiscal Year 2012 insofar as it purports to (1) repeal the Posse Comitatus Act and authorize the President of the United States to utilize the armed forces of the United States to police United States citizens and lawful resident aliens within the United States; (2) authorize the indefinite detention without charge of United States citizens and lawful resident aliens captured within the United States until the end of hostilities authorized by the 2001 Authorization for Use of Military Force; (3) subject American citizens and lawful resident aliens captured within the United States to military tribunals; and (4) transfer American citizens and lawful resident aliens captured within the United States to a foreign country or foreign entity; and be it further

       RESOLVED, That the General Assembly urges the Attorney General of the State of Ohio to bring suit to challenge the constitutionality of Section 1021 of the National Defense Authorization Act for Fiscal Year 2012; and be it further

       RESOLVED, That the Clerk of the House of Representatives transmit duly authenticated copies of this resolution to the Attorney General of the State of Ohio, to the Speaker and Clerk of the United States House of Representatives, to the President Pro Tempore and Secretary of the United States Senate, to the members of the Ohio Congressional delegation, and to the news media of Ohio.

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