BILL ANALYSIS                                                                                                                                                                                                    Ó

                                                                  AB 351
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          Date of Hearing:  April 9, 2013
          Counsel:       Sandy Uribe

                                 Tom Ammiano, Chair

                    AB 351 (Donnelly) - As Amended:  April 4, 2013
           SUMMARY  :  Enacts the California Liberty Preservation Act, which  
          prohibits state cooperation with federal officials regarding the  
          indefinite detention of persons in California.  Specifically,  
           this bill  :  

          1)Makes legislative findings and declarations regarding  
            limitations on the powers of the federal government.

          2)States that the President of the United States has asserted  
            that the 2001 Authorization for Use of Military Force (AUMF)  
            authorizes the President to indefinitely detain without charge  
            any person, including a U.S. citizen or lawful resident alien,  
            regardless of whether that person is apprehended inside or  
            outside the country.

          3)States that Sections 1021 and 1022 of the National Defense  
            Authorization Act for Fiscal Year 2012 (NDAA) codify  
            indefinite military detention without charge or trial of  
            civilians captured far from any battlefield.

          4)States that indefinite detention without trial is inimical to  
            the liberty, security, and well-being of the people of  
            California by virtue of violating:

             a)   The California Constitution;

             b)   The limits of federal power delegated to the federal  
               government in the U.S. Constitution;

             c)   The legal doctrine of posse comitatus, which limits the  
               powers of the federal government in using federal military  
               personnel to enforce laws;

             d)   Article I, Section 9, Clause 2 of the U.S. Constitution,  
               ensuring the right to seek habeas corpus;


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             e)   The First Amendment's petition clause;

             f)   The Fourth Amendment, proscribing unreasonable searches  
               and seizures;

             g)   The Fifth Amendment's protections regarding indictment  
               by grand jury and due process;

             h)   The Sixth Amendment guarantees to speedy trial by jury,  
               to counsel, and to confront witnesses; 

             i)   The Eight Amendment's proscription against cruel and  
               unusual punishment and excessive bail and fines; and, 

             j)   The Fourteenth Amendment's due process clause.  

          5)Recognizes that the descendants of Fred Korematsu and other  
            Japanese-Americans who were detained during World War II filed  
            an amicus brief in the Second Circuit U.S. Court of Appeals  
            challenging the constitutionality of the NDAA detention  
            provisions and arguing that, under pretense of national  
            security, the NDAA rests on and broadens the legal doctrines  
            on which the United States Supreme Court based the  
            incarceration of Japanese Americans during World War II.

          6)States that California is committed to avoiding a repeat of  
            the tragedies and mistakes of history, including the  
            incarceration and indefinite detention of Japanese Americans  
            during World War II.

          7)Provides that, notwithstanding any provision of law to the  
            contrary, no state political subdivision, state agencies and  
            employees, and no members of the California National Guard on  
            official state duty shall aid an agency of the Armed Forces of  
            the United States in any investigation, prosecution, or  
            detention of a person within California pursuant to sections  
            1021 and 1022 of the NDAA for fiscal year (FY) 2012, or the  
            2001 AUMF, or any other provision of federal law which could  
            lead to the indefinite detention of a person within  

          8)Exempts participation by state or local law enforcement or the  
            California National Guard in a joint task force, partnership,  
            or other similar cooperative agreement with federal law  


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            enforcement if that task force, partnership or cooperative  
            agreement is not for the purpose of investigating,  
            prosecuting, or detaining any person under sections 1021 and  
            1022 of the NDAA for FY 2012, the Authorization for the Use of  
            Military Force (Public Law 107-40), or any other provision of  
            federal law which could lead to the indefinite detention of a  
            person in California.

          9)States that the policy of California is to refuse to provide  
            material support for or to participate in any way with the  
            implementation within this state of any federal law that  
            purports to authorize indefinite detention of any person  
            within California.

          10)Specifies that, notwithstanding any other law, no local law  
            enforcement agency, local or municipal government, or its  
            employees acting under official capacity shall use state funds  
            or funds allocated by the state to local entities on or after  
            January 1, 2013 to engage in any activity that aids an agency  
            of the U.S. Armed Forces in the investigation, arrest, or  
            detention of any person within California for purposes of  
            implementing the NDAA.

           EXISTING LAW  : 

          1)Affirms that the authority of the President to use all  
            necessary and appropriate force pursuant to the Authorization  
            for Use of Military Force including the authority for the U.S.  
            Armed Forces to detain specified persons pending disposition  
            under the law of war.  (NDAA for FY 2012, Section 1021.)

          2)Requires indefinite military detention without charge or trial  
            of specified persons captured in the course of hostilities.   
            (NDAA for FY 2012, Section 1022.)

          3)Provides that the Privilege of the Writ of Habeas Corpus shall  
            not be suspended, unless when in Cases of Rebellion or  
            Invasion the public Safety may require it.  (U.S. Const., art.  
            I, § 9, cl. 2.)

          4)Provides that laws of the United States are the supreme law of  
            the land provided that they are made in pursuance of the  
            powers delegated to the federal government in the  
            Constitution.  (U.S. Const., art. VI, cl. 2.)


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          5)Provides that "Congress shall make no law ? abridging ? the  
            right of the people ? to petition the government for a redress  
            of grievances."  (U.S. Const., 1st Amend.)

          6)Protects the People from unreasonable searches and seizures.   
            (U.S. Const., 4th Amend.)

          7)Provides that the people have a right to be free from  
            deprivation of life, liberty, or property, without due process  
            of law (U.S. Const., 5th Amend.)

          8)Provides that the people have a right in criminal prosecutions  
            to enjoy a speedy trial by an impartial jury, as well as the  
            right to be informed of the nature and cause of the  
            accusation, to confront witnesses, and to counsel.  (U.S.  
            Const., 6th Amend.)

          9)Prohibits excessive bail, fines, or cruel and unusual  
            punishment.  (U.S. Const., 8th Amend.)

          10)Provides that the people have a right to be free from  
            deprivation of life, liberty, or property, without due process  
            of law (U.S. Const., 14th Amend.)

          11)Provides that all "powers not delegated to the United States  
            by the Constitution" are reversed to the states.  (U.S.  
            Const., 10th Amend.)

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "Indefinite  
            detention, by its very nature, discards many of the ideals  
            that our founding fathers enshrined in the Constitution.   
            These include but are not limited to:  the right to a speedy  
            trial by an impartial jury; the right to due process; the  
            protection against unreasonable seizures; the protection  
            against cruel and unusual punishment; the privilege of writ of  
            habeas corpus; the right to petition the government for  
            grievances; and the right to be informed of the nature and  
            cause of accusations and charges.  Clearly indefinite  
            detention is unconstitutional and it is our duty, as citizens  
            of our nation, to correct this flagrant violation of our  
            rights and liberties.  Although this horrific abuse of liberty  


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            has occurred in our nation's history once before in the  
            internment of Japanese-American citizens, we must take a stand  
            now to never allow this to happen again.

          "California is not the first state to look at enacting policy to  
            circumvent Section 1021 of H.R 1540 (2011).  The Michigan  
            State Senate passed SB 94 on March 6th, 2013.  SB 94 prohibits  
            all Michigan state agencies and employees, including the  
            Michigan National Guard, from aiding any federal agency if  
            that aid 'would place that state agency, political  
            subdivision, employee, or member of the Michigan National  
            Guard in violation of the United States Constitution . . . .'

          "In California, in addition to the cities of Berkeley, Fairfax  
            and Santa Cruz, the San Francisco Board of Supervisors, on  
            February 26, 2013, passed 'a resolution opposing the  
            indefinite detention provisions of the National Defense  
            Authorization Act, instructing public agencies to decline  
            requests by Federal agencies acting under detention powers,  
            urging law enforcement officials to allow detainees to due  
            process . . . . ' "

           2)Background  : After the attacks on September 11, 2011, Congress  
            passed the AUMF allowing the executive branch to leverage all  
            available military assets to bring to justice combatants  
            deemed responsible or materially supportive of forces  
            associated with the terrorist attacks of 9/11.  The AUMF gives  
            the president the power to attack "nations, organizations or  
            persons he determines planned, authorized, committed or aided  
            the terrorist attacks that occurred on Sept. 11, 2001, or  
            harbored such organizations or persons, in order to prevent  
            any future acts of international terrorism against the United  
            States by such nations, organizations or persons."  The AUMF  
            has been relied on by the federal government for activities  
            such as military detentions and the use of drones.  For  
            example, the Bush administration held two individuals  
            apprehended in the United States - José Padilla (a U.S.  
            citizen) and Ali al-Marri (a legal resident) - in military  
            custody for years under this legal authority.

          The FY 2012 NDAA codifies the authority given to the President  
            in the AUMF.  The NDAA is mainly a budgetary law that, among  
            other things, specifies the budget and expenditures of the  
            United States Department of Defense for each FY.  But two  
            provisions of the 2012 NDAA deal with the circumstances under  


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            which the government has authority to detain persons deemed to  
            be supportive of terrorism.  "The 2012 NDAA authorizes the  
            detention of a certain categories of persons and requires the  
            military detention of a subset of them (subject to waiver by  
            the President)."  (See The National Defense Authorization Act  
            for FY 2012:  Detainee Matters, Congressional Research  
            Service, December 11, 2012, summary  
            .)  Those  
            provisions are the focus of this bill.

            "Section 1021 does not expressly clarify whether U.S. citizens  
            or lawful resident aliens may be determined to be 'covered  
            persons.'"  (Id. at p. 16.)  In the NDAA for FY 2013, the  
            United States House of Representatives included provisions  
            setting forth findings regarding habeas corpus and affirming  
            the right of habeas corpus and the Constitutional right of due  
            process for American citizens.  (Sections 1032 and 1033.)   
            However, despite these provisions, as well as assurances from  
            the current President that U.S. citizens will not be subject  
            to indefinite detention, concerns about the NDAA detainee  
            provisions continue.  
           3)States Calling for Ban on Indefinite Detention :  Several  
            states appear to have begun a nationwide movement against the  
            NDAA's indefinite detention provisions.  Hawaii has passed  
            resolutions urging Congress to repeal Sections 1021 and 1022  
            of the NDAA, and Rhode Island has passed a resolution  
            condemning those provisions.  Virginia has gone further and  
            codified state noncompliance with federal agents.  (See  
            Virginia, Chapter 792, Statutes of 2012.)  

          Other states currently considering similar legislation include:   
            Alaska (SB 75); Arizona (HB 2573); Georgia (HB 92); Indiana  
            (SB 400); Kansas (HB 2161); Maine (LD 1054); Massachusetts (H.  
            1428); Michigan (SB 94); Montana (LC 1810); Nevada (SB 378);  
            New Hampshire (HB 399); Oklahoma (HB 1487); South Carolina (S  
            0092); Tennessee (HB 1059 and SB 1290); Washington (HB 1581  
            and SB 5511); and West Virginia (HB 2218).

           4)Writ of Habeas Corpus  :  A petition for a habeas writ is filed  
            by an individual who believes he or she is being wrongly  
            detained.  If the court grants the petition, the court issues  
            a habeas writ directing the detaining official to bring the  
            individual before the court to challenge the validity of the  
            detention.  The U.S. Constitution prohibits the suspension of  


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            the privilege "unless when in Cases of Rebellion or Invasion  
            the public Safety may require it."  (U.S. Const., art. I, § 9,  
            cl. 2.)

          In Hamdi v. Rumsfeld (2004) 542 U.S. 507, the Unites States  
            Supreme Court upheld the federal government's detention power,  
            but also held that a citizen detainee challenging his  
            detention has a Fifth Amendment due process right "to receive  
            notice of the factual basis for his classification, and a fair  
            opportunity to rebut the Government's factual assertions  
            before a neutral decisionmaker."

          Subsequently, the U.S. Supreme Court held that alien Guantanamo  
            detainees have the right to habeas corpus to determine if they  
            are really enemy combatants.  However, under this case if they  
            are found to be enemy combatants they can go back to prison  
            indefinitely.  [See Boumediene v. Bush (2008)553 U.S. 723.]   
            Thus, Under Hamdi and Boumediene, two categories of detainees  
            have access to habeas:  U.S. citizens held anywhere and  
            non-U.S. citizens held at Guantanamo or in the United States.

           5)Related Legislation  :  AB 4 (Ammiano) prohibits a law  
            enforcement official from detaining an individual on the basis  
            of a United States Immigration and Customs Enforcement hold  
            after that individual becomes eligible for release from  
            criminal custody, unless certain conditions are met.  AB 4  
            will be heard by this Committee today.

           6)Argument in Support  :  The  American Civil Liberties Union of  
            California  states, "In late 2011, Congress passes and the  
            President signed into law the NDAA which codifies indefinite  
            military detention without charge or trial into law for the  
            first time in American history.  It permits the president -  
            and all future presidents - to order the military to imprison  
            indefinitely civilians captured far from any battlefield  
            without charge or trial.  While the ACLU believes that any  
            president's claim of domestic military detention authority  
            under the NDAA would be unconstitutional and illegal, some key  
            senators urged that even American citizens and other picked up  
            in the United States could be detained under NDAA.  Moreover,  
            there is substantial public debate around whether the NDAA  
            could be read even to repeal the Posse Comitatus Act and  
            authorize indefinite military detention without charge or  
            trial within the United States.


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          The indefinite detention provisions of the NDAA violate our  
            basic due process rights.  AB 351 sends a very clear message  
            that no agency or employee of the state of California or any  
            of its political subdivisions shall aid in any way to assist  
            U.S. military detention without charges or trial of a person  
            in California.  It will protect the civil liberties of all  
            Californians.  This legislation is similar to resolutions  
            adopted by various other states and at least 18 cities  
            (including the San Francisco Board of Supervisors) that ask  
            Congress to repeal the indefinite detention provisions of the  

           7)Argument in Opposition  :  According to the  California Attorneys  
            for Criminal Justice,  "Recently, the advent of certain  
            populist movements has brought to the forefront the idea that  
            nullifying the Supremacy Clause of the Constitution of the  
            United States can bring about desirable effects.  For a very  
            long time, the Supremacy Clause has been the core guarantee of  
            national union.  Under the Supremacy Clause, Congress may act,  
            restricted only by the pursuit of constitutionally authorized  
            powers.  Concurrent with the Supremacy Clause, all states,  
            including ours, are not permitted to nullify the acts of  
            Congress, that power being reserved to the federal judiciary  
            only.  . . .

          "No one wants to see the return of those terrible and unjust  
            interments suffered by the Japanese during World War Two,  
            justified now, as before, by circumstance of emergency and  
            peril.  Every Californian of just and upright character abhors  
            the detention of persons without due process of speedy trial.   
            Yet, in the end analysis, should such a state of affairs ever  
            befall us, and if we were then without protection from the  
            Judicial Branch, AB 351 would still prove useless to the  
            preservation of our liberties."


          American Civil Liberties Union of California
          A.N.S.W.E.R Coalition
          Bill of Rights Defense Committee
          David Chiu, President, San Francisco Board of Supervisors
          Gray Panthers of San Francisco
          Tax Payers for Improving Public Safety


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          Tenth Amendment Center
          Seven private individuals

          California Attorneys for Criminal Justice

          Analysis Prepared by  :    Sandy Uribe / PUB. S. / (916) 319-3744