BILL ANALYSIS Ó AB 351 Page 1 Date of Hearing: May 15, 2013 ASSEMBLY COMMITTEE ON APPROPRIATIONS Mike Gatto, Chair AB 351 (Donnelly) - As Amended: April 4, 2013 Policy Committee: Public SafetyVote: 6-0 Urgency: No State Mandated Local Program: No Reimbursable: SUMMARY This bill 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)Provides that no state agency, no political subdivision of the state, no employees, and no member of the California National Guard on official state duty shall aid an agency of the U.S. Armed Forces in any investigation, prosecution, or detention of a person within California pursuant to sections 1021 and 1022 of the National Defense Authorization Act (NDAA), or any other provision of federal law that could lead to the indefinite detention of a person within California. 2)Exempts participation by state or local law enforcement or the California National Guard in a joint task force, partnership, or other cooperative agreement with federal law enforcement if that partnership is not for the purpose of investigating, prosecuting, or detaining any person under the NDAA or any other provision of federal law that could lead to the indefinite detention of a person in California. 3)States it is the policy of California to refuse material support or participate in any way with the implementation of any federal law that authorizes the indefinite detention of any person within California, that notwithstanding any other law, no local law enforcement agency, local or municipal government, or its employees, may 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 AB 351 Page 2 U.S. Armed Forces in the investigation, arrest, or detention of any person within California for purposes of implementing the NDAA. 4)Makes a series of codified findings and declarations regarding constitutional authority, including how the NDAA, by authorizing indefinite military detention without charge, is "violating the United States Constitution and corroding our nation's commitment to the rule of law, which generations have fought to preserve." Further stating that "Indefinite detention without trial is inimical to the liberty, security, and well-being of the people of the State of California?" FISCAL EFFECT 1)No direct state or local cost, as state and local governments rarely, if ever, aid the U.S. Armed Forces in detaining people under the NDAA. 2)Unknown, potentially significant, costs should the federal government withhold federal funds from the California National Guard as a result of this measure, which would prohibit the Guard from responding to directives from the governor if the directives require the Guard to aid U.S. Armed Forces in a way that could lead to the investigation or detention of a person under the NDAA. While such situations would be extremely rare, if, in the event of a terrorist attack, a 9/11-type catastrophe, a Boston-style bombing, a suspicious levee breach, or a threat to the food or water supply, the Guard had to stand down in their aid to U.S. Armed Forces because their actions could result in indefinite detention of a suspect, costs could include further damage and loss of life. The California National Guard, whose mission is to (a) provide mission-ready forces to the federal government as directed by the President and (b) provide emergency public safety support to civil authorities as directed by the governor, receives $98 million of its $153 million budget from the federal government. In addition, the Guard receives $933 million from the federal government in funding that does not pass through the state. It is important to note, however, that no such action has been AB 351 Page 3 suggested by federal officials. COMMENTS 1)Rationale . 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 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." 2)Background . After the 9/11 attacks, Congress passed the Authorization for Use of Military Force (AUMF), allowing the executive branch to leverage all available military assets to bring to justice combatants deemed responsible or 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 FY 2012 NDAA codifies the authority given to the President in the AUMF. The NDAA is essentially a budgetary law that, among other things, specifies the budget and expenditures of the United States Department of Defense for each FY. Two provisions of the 2012 NDAA address the circumstances under which the government has authority to detain persons deemed to be supportive of terrorism. These provisions are the focus of this bill. NDAA for FY 2012, Section 1021 affirms the authority of the President to use all necessary and appropriate force pursuant to the AUMF, including the authority for the U.S. Armed Forces AB 351 Page 4 to detain specified persons pending disposition under the law of war. NDAA for FY 2012, Section 1022 authorizes indefinite military detention without charge or trial of specified persons captured in the course of hostilities. Section 1021 does not expressly clarify whether U.S. citizens or lawful resident aliens may be detained, and in the NDAA for FY 2013, the U.S. 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.) Despite these provisions, however, as well as assurances from the President that U.S. citizens will not be subject to indefinite detention, concerns about the NDAA detainee provisions continue. 3)Other states. According to various sources, about half of the states have introduced legislation decrying and/or nullifying to various degrees the NDAA indefinite detention policy as it affects state participation. Virginia appears to be the first state that has codified state noncompliance with the NDAA indefinite detention policy. 4)Suggested Amendments . Rather than prohibiting state and/or local cooperation with, or assistance to, activity that may lead to indefinite detention, perhaps prohibiting state and local entities and employees from knowingly aiding U.S. Armed Forces in any activity that would violate the U.S. Constitution, the California Constitution, or any state law, would make the same point, while not requiring agencies and individuals to attempt to presciently ascertain whether an action may lead to an indefinite detention. In addition, the findings and declarations are divisive and unnecessary. Non-binding language regarding state's rights and presidential authority, with accompanying adjectives, plus summations of the selected constitutional amendments and references to Japanese internment, serve no purpose in the California Penal Code. 5)Support. The ACLU 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 AB 351 Page 5 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 others picked up in the United States could be detained under NDAA. ? "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." 6)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?. "Gambling now with California's political and economic well-being, AB 351 is realized less as an adjunct to civil liberties and more as a prelude to civil unrest or even populist tyranny. Let us envision AB 351 if AB 351 is passed into law. Our Attorney General would have a full time job in maintain vigilance over the entire federal government so that any real perceived "attempt by any branch, armed service or agency to detain terrorists would be immediately reported to both the governor and the entire Legislature. Outrageous and absurd in the extreme, AB 351 would then criminalize any federal agent who would dare to attempt the apprehension and detention of anyone subverting the peace and security of the U.S. in times of actual vulnerability, espionage, or attack. AB 351 Page 6 "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." Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081