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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AB 351 (Donnelly)
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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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