BILL ANALYSIS                                                                                                                                                                                                    



                                                                  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  








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            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  








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            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
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            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  








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            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.









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            "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