BILL ANALYSIS Ó
AB 351
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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
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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