2012 -- S 2803

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LC01481

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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S E N A T E R E S O L U T I O N

TO PRESERVE HABEAS CORPUS AND CIVIL LIBERTIES OF THE CITIZENS OF RHODE

ISLAND

     Introduced By: Senators Miller, Moura, Metts, Nesselbush, and Pichardo

     Date Introduced: March 21, 2012

     Referred To: Senate Judiciary

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     WHEREAS, The Congress of the United States passed the National Defense

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Authorization Act, 2011 P.L. 112-81 (“2012 NDAA”) for Fiscal Year 2012 on December 15,

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2011; and

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     WHEREAS, The President of the Unites States of America signed the 2012 NDAA into

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law on December 31, 2011; and

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     WHEREAS, Section 1022 of the 2012 NDAA requires the Armed Forces of the United

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States to detain, pending disposition according to the Law of War, any person involved in, or who

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provided substantial support to terrorism or belligerent acts against the United States, and who is

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a member of Al-Qaeda or an, associated force; and

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     WHEREAS, Section 1022 of the 2012 NDAA specifically excludes United States

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citizens and lawful resident aliens for conduct occurring within the United States, from its

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mandatory detention provisions; and

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     WHEREAS, Section 1022 of the 2012 NDAA purports to authorize, but does not require,

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the President of the United States to utilize the Armed Forces of the United States to detain

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persons the President suspects were part of, or substantially supported, Al-Qaeda, the Taliban, or

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associated forces; and

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     WHEREAS, Section 1021 of the 2012 NDAA purports to authorize, but does not require,

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the President of the United States through the Armed Forces of the United States, to dispose of

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such detained persons according to the Law of War, which may include, but is not limited to: (1)

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indefinite detention without charge or trial until the end of hostilities authorized by the 2001

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Authorization for use of Military Force Against Terrorists, 2001 P.L. 107-40; (2) prosecution

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through a Military Commission; or (3) transfer to a foreign country or foreign entity; and

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     WHEREAS, Unlike Section 1022 of the 2012 NDAA, Section 1021 makes no specific

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exclusion for United States citizens and lawful resident aliens for conduct occurring within the

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United States; and

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     WHEREAS, Section 1021 of the 2012 NDAA seeks to preserve existing law and

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authorities pertaining to the detention of United States citizens, lawful resident aliens of the

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United States, and any other person captured in the United States, but does not specify what such

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existing law or authorities are; and

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     WHEREAS, The specific exclusion of application to United States citizens and lawful

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resident aliens contained in Section 1022 of the 2012 NDAA, and the absence of such exclusion

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in Section 1021 of the 2012 NDAA, strongly implies that the provisions of Section 1021 are

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intended to apply to United States citizens and lawful resident aliens, whether or not they are

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captured in the United States; and

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     WHEREAS, The Office of the President of the United States, under both the

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administrations of George W. Bush and Barack H. Obama, has asserted the 2001 Authorization

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for the Use of Military Force Against Terrorists allows the Office of the President to indefinitely

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detain without charge, United States citizens and lawful resident aliens captured in the United

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States; and

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     WHEREAS, The United States Supreme Court has not decided whether the 2001

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Authorization for the Use of Military Force Against Terrorists allows the Office of the President

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to indefinitely detain without charge, United States citizens and lawful resident aliens captured in

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the United States; and

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     WHEREAS, Section 1021 of the 2012 NDAA purports to enlarge the scope of those

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persons the Office of the President may indefinitely detain beyond those responsible for the

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September 11, 2001, terrorist attacks, and those who harbored them, as purportedly authorized by

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the 2001 Authorization for the Use of Military Force Against Terrorists, to now include a person

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who was a part of, or substantially supported Al-Qaeda, the Taliban, or associated forces that are

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engaged in hostilities against the United States or its coalition partners, including any person who

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has committed a belligerent act or has directly supported such hostilities in aid of such enemy

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forces; and

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     WHEREAS, United States Senator Carl Levin declared in colloquy on the floor of the

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United States Senate that the original 2012 NDAA provided that Section 1021 (then Section 1031

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prior to final drafting) specifically would not apply to United States citizens, but that the Office of

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the President of the United States had requested that such restrictions be removed from the 2012

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NDAA; and

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     WHEREAS, During debate in the Senate and before passage of the 2012 NDAA, United

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States Senator Mark Udall introduced an amendment intended to forbid the indefinite detention of

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U.S. citizens, which was rejected by a vote of 38-60; and

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     WHEREAS, United States Senator John McCain and United States Senator Lindsey

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Graham declared in colloquies on the floor of the United States Senate that Section 1021 of the

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2012 NDAA authorized the indefinite detention of United States citizens captured in the United

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States by the Armed Forces of the United States; and

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     WHEREAS, United States Senator Lindsey Graham declared in colloquy on the floor of

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the United States Senate that the United States homeland is now part of “the battlefield”; and

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     WHEREAS, Policing the citizenry of the United States of America by the Armed Forces

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of the United States, as purportedly authorized by the 2012 NDAA, overturns the Posse

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Comitatus doctrine and is repugnant to a free society; and

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     WHEREAS, Section 1021 of the 2012 NDAA as it purports to authorize: 1) Detainment

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of United States citizens and lawful resident aliens captured within the United States without

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charge; 2) Military tribunals for United States citizens and legal resident aliens captured within

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the United States of America; and 3) The transfer of United States citizens and lawful resident

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aliens captured within the United States to foreign jurisdictions, is violative of the following

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rights enshrined in Constitution of the United States of America:

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     Article I Section 9, Clause 2’s right to seek Writ of Habeas Corpus;

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     The First Amendment’s right to petition the Government for a redress of

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grievances;

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     The Fourth Amendment’s right to be free from unreasonable searches and

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seizures;

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     The Fifth Amendment’s right to be free from charge for an infamous or capital

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crime until presentment or indictment by a grand jury;

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     The Fifth Amendment’s right to be free from deprivation of life, liberty, or

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property, without Due Process of law;

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     The Sixth Amendment’s right in criminal prosecutions to enjoy a speedy trial by

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an impartial jury in the State and District where the crime shall have been

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committed;

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     The Sixth Amendment’s right to be informed of the nature and cause of the

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accusation;

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     The Sixth Amendment’s right to confront witnesses;

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     The Sixth Amendment’s right to Counsel;

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     The Eighth Amendment’s right to be free from excessive bail and fines, and cruel

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and unusual punishment;

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     The Fourteenth Amendment’s right to be free from deprivation of life, liberty, or

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property, without due process of law; and

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     WHEREAS, Section 1021 of the 2012 NDAA as it purports to authorize; 1) Detainment

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of United States citizens and lawful resident aliens captured within the United States without

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charge; 2) Military tribunals for United States citizens and legal resident aliens captured within

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the United States of America, and 3) the transfer of United States citizens and lawful resident

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aliens captured within the United States to foreign jurisdictions, is repugnant to the following

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rights enshrined in the Rhode Island Constitution;

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     Article 1 Section 2’s right to be free from deprivation of life, liberty, or property,

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without due process of law;

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     Article 1 Section 5’s right to have prompt recourse to the laws for all injuries to

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one’s person;

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     Article 1 Section 6’s right to be free from unreasonable search and seizure;

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     Article 1 Section 7’s right to be free from capital charge absent a grand jury

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indictment, or felony charge absent grand jury indictment absent information

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signed by the Attorney General;

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     Article 1 Section 8’s right to be free from excessive bail;

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     Article 1 Section 9’s right to bail and right to Habeas Corpus;

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     Article 1 Section 10’s right to a speedy public trial by an impartial jury, right to

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have assistance of counsel, and the right to be free from deprivation of life,

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liberty, or property, unless by the judgment of peers;

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     Article 1 Section 14’s right to be presumed innocent until pronounced guilty by

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the law;

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     Article 1 Section 15’s right to a trial by Jury;

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     Article 1 Section 18’s requirement that the military authority is subordinate to the

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civil authority;

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     WHEREAS, The members of this Senate have taken an oath to uphold the Constitution

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of the United States of America and the Constitution of the State of Rhode Island and Providence

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Plantations; and

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     WHEREAS, This Senate opposes any and all rules, laws, regulations, bill language, or

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executive orders, which amount to an overreach of the federal government and which effectively

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take away civil liberties; and

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     WHEREAS, It is indisputable that the threat of terrorism is real, and that the full force of

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appropriate and constitutional law must be used to defeat this threat; however, winning the war

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against terror cannot come at the great expense of mitigating basic, fundamental, constitutional

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rights; and

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     WHEREAS, Undermining our own Constitutional rights serves only to concede to the

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terrorists’ demands of changing the fabric of what made the United States of America a country

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of freedom, liberty, and opportunity; now, therefore be it

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     RESOLVED, That this Senate of the State of Rhode Island and Providence Plantations

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hereby condemns in no uncertain terms Section 1021 of the 2012 NDAA as it purports to: 1)

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Repeal Posse Comitatus and authorize the President of the United States to utilize the Armed

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Forces of the United States to police United States citizens and lawful resident aliens within the

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United States of America; 2) Indefinitely detain United States citizens and lawful resident aliens

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captured within the United States of America without charge until the end of hostilities authorized

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by the 2001 Authorization for Use of Military Force; 3) Subject American Citizens and lawful

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resident aliens captured within the United States of America to military tribunals; and 4) Transfer

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American Citizens and lawful resident aliens captured within the United States of America to a

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foreign country or foreign entity; and be it further

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     RESOLVED, That this Senate of the State of Rhode Island and Providence Plantations

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hereby finds that the enactment into law by the United States Congress of Sections 1021 and 1022

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of the National Defense Authorization Act of 2012, Public Law Number 112-81, is inimical to the

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liberty, security, and well-being of the people of Rhode Island, and was adopted by the United

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States Congress in violation of the limits of federal power in United States Constitution; and be it

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further

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     RESOLVED, That the Secretary of State be and he hereby is authorized and directed to

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transmit duly certified copies of this resolution to the Honorable Barack Obama, President of the

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United States; the Senate Majority Leader; the Speaker of the House of Representatives, each

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member of Congress from the State of Rhode Island; the Honorable John Roberts, Chief Justice

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of the United States Supreme Court; each Associate Justice of the United States; and the

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President of the Senate and the Speaker of the House of Representatives of each state’s

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legislature.

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LC01481

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