BILL ANALYSIS Ó
AB 351
Page 1
Date of Hearing: April 9, 2013
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
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;
AB 351
Page 2
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
California.
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
AB 351
Page 3
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.)
AB 351
Page 4
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
AB 351
Page 5
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
AB 351
Page 6
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
AB 351
Page 7
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.
AB 351
Page 8
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
NDAA."
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."
REGISTERED SUPPORT / OPPOSITION :
Support
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
AB 351
Page 9
Tenth Amendment Center
Seven private individuals
Opposition
California Attorneys for Criminal Justice
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744