BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

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          AB 351 (Donnelly)                                           
          As Amended May 24, 2013
          Hearing date:  June 25, 2013
          Penal Code
          MK:mc

                                   CIVIL LIBERTIES: 

                  SUSPENSION OF HABEAS CORPUS FOR AMERICAN CITIZENS  


                                       HISTORY

          Source:  Author

          Prior Legislation: None applicable

          Support: A.N.S.W.E.R. Coalition Act Now to Stop War and End  
                   Racism; Siskiyou County Supervisors; American Civil  
                   Liberties Union; City and County of San Francisco  
                   Supervisor David Chiu; Republican Liberty Caucus of  
                   California; Tenth Amendment Center; Taxpayers for  
                   Improving Public Safety; San Francisco 99% Coalition;  
                   Gray Panthers of San Francisco; Bill of Rights Defense  
                   Committee

          Opposition:California Attorneys for Criminal Justice

          Assembly Floor Vote:  Ayes 71 - Noes 1


                                         KEY ISSUE
           




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          SHOULD THE LAW PROHIBIT STATE AGENCIES, POLITICAL SUBDIVISIONS,  
          EMPLOYEES, AND MEMBERS OF THE CALIFORNIA NATIONAL GUARD ON  
          OFFICIAL STATE DUTY FROM KNOWINGLY AIDING AN AGENCY OF THE ARMED  
          FORCES OF THE UNITED STATES IN ENFORCING SPECIFIED FEDERAL LAWS  
          IF THE AGENCY, POLITICAL SUBDIVISION, EMPLOYEE, OR NATIONAL  
          GUARD MEMBER WOULD VIOLATE THE UNITED STATES OR CALIFORNIA  
          CONSTITUTIONS, OR ANY STATE LAW BY PROVIDING THAT AID?


                                       PURPOSE
          
          The purpose of this bill is to prohibit state agencies,  
          political subdivisions, employees, and members of the California  
          National Guard on official state duty from knowingly aiding an  
          agency of the Armed Forces of the United States in enforcing  
          specified federal laws if the agency, political subdivision,  
          employee, or National Guard member would violate the United  
          States or California Constitutions, or any state law by  
          providing that aid.

           Existing law  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.  (National Defense  
          Authorization Act (NDAA) for FY 2012, Section 1021.) 

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


           Existing law  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.) 

           Existing law  provides that laws of the United States are the  




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          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.) 


           Existing law  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.) 


           Existing law  protects the people from unreasonable searches and  
          seizures.  (U.S. Const., 4th Amend.) 


           Existing law  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.) 


           Existing law  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.) 


           Existing law  prohibits excessive bail, fines, or cruel and  
          unusual punishment.  (U.S. Const., 8th Amend.) 


           Existing law  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.) 


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





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           This bill  provides that notwithstanding any law to the contrary,  
          no agency of the State of California, no political subdivision  
          of this state, no employee of an agency, or a political  
          subdivision of this state acting in his or her official  
          capacity, and no member of the California National Guard on  
          official state duty shall knowingly 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 National Defense  
               Authorization Act for Fiscal Year 2012 (NDAA).
                 the federal law known as the Authorization for Use of  
               Military Force (Public Law 107-40) enacted in 2001; or
                 any other federal law.

            If the state agency, political subdivision, employee, or  
            member of the California National Guard would violate the  
            United States Constitution, the California Constitution, or  
            any law of this state by providing that aid.

           This bill  states that it does not apply to participation by  
          state or local law enforcement of the California National Guard  
          in a joint task force, partnership, or other similar cooperative  
          agreement with federal law enforcement if that joint task force,  
          partnership, or similar cooperative agreement is not for the  
          purpose of investigating, prosecuting, or detaining any person  
          for those purposes listed above.

           This bill  states that it is the policy of this state 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 a person  
          within California.

           This bill  provides that notwithstanding any other law, no local  
          law enforcement agency or local or municipal government, or the  
          employee of that agency or government acting in his or her  
          official capacity, shall knowingly use state funds or funds  
          allocated by the state to local entities on or after January 1,  




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          2013, in whole or in part, to engage in any activity that aids  
          an agency of the Armed Forces of the United States in the  
          detention of any person within California for the purposes of  
          implementing Sections 1021 and 1022 of the NDAA or the federal  
          law known as the Authorization for Use of Military Force (Public  
          Law 107-40), enacted in 2001, if that activity would violate the  
          United States Constitution, the California Constitution, or any  
          law of this state. 

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.   

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy known as "ROCA" (which  
          stands for "Receivership/ Overcrowding Crisis Aggravation"), the  
          Committee held measures which created a new felony, expanded the  
          scope or penalty of an existing felony, or otherwise increased  
          the application of a felony in a manner which could exacerbate  
          the prison overcrowding crisis.  Under these principles, ROCA  
          was applied as a content-neutral, provisional measure necessary  
          to ensure that the Legislature did not erode progress towards  
          reducing prison overcrowding by passing legislation which would  
          increase the prison population.  ROCA necessitated many hard and  
          difficult decisions for the Committee.

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order issued by the Three-Judge Court three years  
          earlier to reduce the state's prison population to 137.5 percent  




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          of design capacity.  The State submitted in part that the, ". .  
          .  population in the State's 33 prisons has been reduced by over  
          24,000 inmates since October 2011 when public safety realignment  
          went into effect, by more than 36,000 inmates compared to the  
          2008 population . . . , and by nearly 42,000 inmates since 2006  
          . . . ."  Plaintiffs, who opposed the state's motion, argue in  
          part that, "California prisons, which currently average 150% of  
          capacity, and reach as high as 185% of capacity at one prison,  
          continue to deliver health care that is constitutionally  
          deficient."  In an order dated January 29, 2013, the federal  
          court granted the state a six-month extension to achieve the  
          137.5 % prisoner population cap by December 31st of this year.  

          In an order dated April 11, 2013, the Three-Judge Court denied  
          the state's motions, and ordered the state of California to  
          "immediately take all steps necessary to comply with this  
          Court's . . . Order . . . requiring defendants to reduce overall  
          prison population to 137.5% design capacity by December 31,  
          2013."         

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unresolved.  However, in light of the real gains in reducing the  
          prison population that have been made, although even greater  
          reductions are required by the court, the Committee will review  
          each ROCA bill with more flexible consideration.  The following  
          questions will inform this consideration:

                 whether a measure erodes realignment;
                 whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 whether a bill corrects a constitutional infirmity or  
               legislative drafting error; 
                 whether a measure proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy; and
                 whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  




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               reasonable, appropriate remedy.
                                      COMMENTS

          1.    Need for This Bill  

          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. 

               California is not the first state to look at enacting  
               policy to circumvent Sections 1021 and 1022 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 ?"    
               Virginia has also chaptered a similar measure. 

               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  




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               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 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. 





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          "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.   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 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 decision  
          maker."  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. 

          4.    Prohibits Aiding in Enforcing Specified Federal Laws  

          This bill would prohibit public agencies and entities in  




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          California from knowingly aiding an agency of the U.S. armed  
          forces in any investigation, prosecution or detention of a  
          person in California under specified federal laws if those acts  
          would violate the U.S. or California Constitutions.

          The bill also provides that it is the policy of the state to  
          refuse to provide material support or to participate in the  
          implementation within this state of any federal law that  
          purports to authorize indefinite detention of a person within  
          California.

          5.    Argument in Support  































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          The American Civil Liberties Union of California states:

               In late 2011, Congress passed 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 others  
               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. 

               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. 

          6.    Opposition 

          California Attorneys for Criminal Justice opposes this bill  
          stating:

               Every Californian of just and upright character abhors  




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               the detention of persons without due process or 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. 

               CACJ recognizes that the NDAA and questions about the  
               constitutionality and scope of the NDAA as merely an  
               affirmation of the Authorization for Use of Military  
               Force Against Terrorists, or as something less savory,  
               can and do merit federal judicial review, which is in  
               fact underway.  Now, with recent amendments and  
               language added to AB 351, Californians could be  
               subjected to criminal prosecution (See P.C. § 19.4)  
               upon grounds so vague and overbroad as to render the  
               proposed law void for vagueness on its face.  In its  
               current form, AB 351 would lead to discriminatory law  
               enforcement making the proposed cure for the NDAA  
               malady far worse than the disease itself. 

               CACJ remains absolutely certain that the California  
               Legislature is no substitute for the federal judiciary.  
                That is where the ultimate fate of the NDAA must  
               constitutionally rest.  Nothing about revamped AB 351  
                                                                                 changes the fact that no one, including the entire  
               California Legislature, is well advised to usurp the  
               role of the federal judiciary.


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