Senate Concurrent Resolution 542

A CONCURRENT RESOLUTION EXPRESSING THE OPPOSITION OF THE STATE OF MISSISSIPPI TO THE NATIONAL DEFENSE AUTHORIZATION ACT OF 2012 (NDAA) PROVISION THAT AUTHORIZES INDEFINITE DETENTION; AND FOR RELATED PURPOSES.

WHEREAS, the Congress of the United States passed the National Defense Authorization Act, 2011 Public Law 112 81 ("2012 NDAA") for fiscal year 2012 on December 15, 2011; and

WHEREAS, the President of the United States of America signed the 2012 NDAA into law on December 31, 2011; 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 Against Terrorists, 2001 Public Law 107 40, (2) prosecution through a military commission, or (3) transfer to a foreign country or foreign entity; 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, Section 1021 of the 2012 NDAA purports enlarging the scope of the those persons the Office of the President may indefinitely detain 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 Against Terrorists, to now 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, Section 1022 of the 2012 NDAA requires the Armed Forces of the United States to detain, pending disposition according to the Law of War, any person involved in, or whom provided substantial support to, terrorism or belligerent acts against the United States, and whom is a member of al-Qaeda or an associated force; and

WHEREAS, the exemption for citizens of the United States in Section 1022 of the 2012 NDAA only exempts them from a requirement to detain and reads as follows: "The requirement to detain a person in military custody under this section does not extend to citizens of the United States"; and

WHEREAS, unlike Section 1022 of the 2012 NDAA, Section 1021 makes no specific exclusion for United States citizens and lawful resident aliens for conduct occurring within the United States; 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 exclusion in Section 1021 of the NDAA, strongly implies that the provisions of Section 1021 are intended to apply to all people, including United States citizens and lawful resident aliens, whether or not they are captured in the United States; and

WHEREAS, the Office of the President of the United States, under both the administrations of George W. Bush and Barack H. Obama, has asserted the 2001 Authorization for the Use of Military Persons, including United States Citizens and lawful resident aliens, captured in the United States; 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 Section 1031 prior to final drafting) specifically would not apply to United States citizens, but that the Office of the President of the United States had requested that such restriction be removed from the 2012 NDAA; and

WHEREAS, during debate within the Senate and before the passage of the 2012 NDAA, United States Senator Mark Udall introduced an amendment intended to forbid the indefinite detention of U.S. citizens, 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, policing the United States of America by the Armed Forces of the United States, as purportedly authorized by the 2012 NDAA, overturns the Posse Comitatus doctrine and is repugnant to a free society; and

WHEREAS, Sections 1021 and 1022 of the 2012 NDAA as they purport to authorize, (1) detainment of persons captured within the United States of America without charge or trial, (2) military tribunals for persons captured within the United States of America, and (3) the transfer of persons captured within the United States of America to foreign jurisdictions, are violative of the following rights enshrined in the Constitution of the United States of America:

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

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

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

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

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

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

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

• The Sixth Amendment's right to confront witnesses;

• The Sixth Amendment's right to counsel;

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

WHEREAS, Sections 1021 and 1022 of the 2012 NDAA as they purport to authorize, (1) detainment of persons captured within the United States of America without charge or trial, (2) military tribunals for persons captured within the United States of America, and (3) the transfer of persons captured within the United of America to foreign jurisdictions, is repugnant to the following rights enshrined in the Mississippi Constitution of 1890:

• Article 3 Section 14's right to be free from deprivation of life or liberty without due process of law;

• Article 3 Section 25's right to have prompt recourse to the laws for all injuries to one's person;

• Article 3 Section 23's right to be free from unreasonable search and seizure;

• Article 3 Section 21's right to be free from capital charge absent a grand jury indictment or felony charge absent grand jury indictment absent information signed by the Attorney General;

• Article 3 Section 29's right to be free from excessive bail;

• Article 3 Section 26's right to bail and right to Habeas Corpus;

• Article 3 Section 27's right to a speedy public trial by an impartial jury, right to have the assistance of counsel and the right to be free from deprivation of life, liberty or property, unless by the judge of peers;

• Article 3 Section 31's right to a trial by jury;

• Article 3 Article 9's requirement that the military authority is subordinate to the civil authority; and

WHEREAS, the members of this Legislature have taken an oath to uphold the Constitution of the United States of America and the Constitution of the State of Mississippi; and

WHEREAS, this Legislature opposes any and all rules, laws, regulations, bill language or executive orders, which amount to an overreach of the federal government and which 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, winning the war against terrorism cannot come at the great expense of mitigating basic, fundamental, constitutional rights; and

WHEREAS, undermining our own inalienable rights serves only to concede to the terrorists' demands of changing the fabric of what made the United States of America a country of freedom, liberty and opportunity; and

WHEREAS, the Legislature of the State of Mississippi, condemns in no uncertain terms Sections 1021 and 1022 of the 2012 NDAA as they purport to (1) repeal the Posse Comitatus doctrine and authorize the President of the United States to utilize the Armed Forces of the United States to police the United States of America, (2) indefinitely detain persons captured within the United States of America without charge until the end of hostilities as purportedly authorized by the 2001 Authorization for Use of Military Force, (3) subject persons captured within the United States of America to military tribunals, and (4) transfer persons captured within the United States of America to a foreign country or foreign entity:

NOW, THEREFORE, BE IT RESOLVED BY THE SENATE OF THE STATE OF MISSISSIPPI, THE HOUSE OF REPRESENTATIVES CONCURRING THEREIN, That the Legislature finds that the enactment into law by the United States Congress of Sections 1021 and 1022 of the National Defense Authorization Act of 2012, Public Law Number 112 81, is inimical to the liberty, security and well being of the people of Mississippi and was adopted by the United States Congress in violation of the limits of federal power in the United States Constitution.

BE IT FURTHER RESOLVED, That all agencies of the State of Mississippi are instructed to decline requests by federal agencies acting under detention powers of Sections 1021 and 1022 of the National Defense Authorization Act of 2012 that could infringe upon residents' freedom of speech, religion, assembly, privacy, rights to counsel, or other rights not here explicitly enumerated.

BE IT FURTHER RESOLVED, That copies of this resolution be immediately transmitted to the Honorable Barack Obama, President of the United States, the President of the United States Senate, the Speaker of the House of Representatives, each member of Congress from the State of Mississippi to the Honorable John Roberts, Chief Justice of the United States Supreme Court, each Justice on the United States Supreme Court, and the President of the Senate and the Speaker of the House of Representatives of each state's Legislature.