BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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                                    THIRD READING


          Bill No:  AB 351
          Author:   Donnelly (R)
          Amended:  5/24/13 in Assembly
          Vote:     21

           
           SENATE PUBLIC SAFETY COMMITTEE  :  7-0, 6/25/13
          AYES:  Hancock, Anderson, Block, De León, Knight, Liu, Steinberg

           SENATE APPROPRIATIONS COMMITTEE  :  Senate Rule 28.8

           ASSEMBLY FLOOR  :  71-1, 5/30/13 - See last page for vote


           SUBJECT  :    Civil liberties:  suspension of habeas corpus for  
          American citizens

           SOURCE  :     Author


           DIGEST  :    This bill prohibits 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 violates the United States or California  
          Constitutions, or any state law by providing that aid.

           ANALYSIS  :    

          Existing law:
           
           1.Affirms that the authority of the President to use all  
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            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.) 

          2.Requires indefinite military detention without charge or trial  
            of specified persons captured in the course of hostilities.   
            (NDAA for FY 2012, Section 1022.) 
           
           3.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. 

          4.Provides that laws of the United States are the supreme law of  
            the land provided that they are made in pursuance of the  
            powers delegated to the federal government in the  
            Constitution.  

          This bill:
           
           1.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/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:

             A.   Sections 1021 and 1022 of the NDAA for Fiscal Year 2012;

             B.   The federal law known as the Authorization for Use of  
               Military Force enacted in 2001; or

             C.   Any other federal law.

          1.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, as specified.

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          2.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.

          3.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/her  
            official capacity, shall knowingly use state funds or funds  
            allocated by the state to local entities on or after January  
            1, 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,  
            enacted in 2001, if that activity violates the United States  
            Constitution, the California Constitution, or any law of this  
            state. 

           Background
           
          After the attacks on September 11, 2011, 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 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  

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          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)."  

           Writ of Habeas Corpus  .  A petition for a habeas writ is filed by  
          an individual who believes he/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."  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.  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. 

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  No

           SUPPORT  :   (Verified  8/12/13)

          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

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          Bill of Rights Defense Committee
          Friends Committee on Legislation of California

           OPPOSITION  :    (Verified  8/12/13)

          California Attorneys for Criminal Justice

           ARGUMENTS IN SUPPORT  :    The American Civil Liberties Union  
          (ACLU) 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. 

           ARGUMENTS IN OPPOSITION  :    California Attorneys for Criminal  
          Justice (CACJ)  states: 

               Every Californian of just and upright character abhors the  
               detention of persons without due process or speedy trial.   
               Yet in the end analysis, should such a state of affairs  

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               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  
               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.  
           

           ASSEMBLY FLOOR  :  71-1, 5/30/13
          AYES:  Achadjian, Alejo, Allen, Ammiano, Atkins, Bigelow, Bloom,  
            Blumenfield, Bocanegra, Bonilla, Bonta, Bradford, Brown,  
            Buchanan, Ian Calderon, Campos, Chau, Conway, Cooley, Dahle,  
            Daly, Dickinson, Donnelly, Eggman, Fong, Fox, Frazier, Garcia,  
            Gatto, Gomez, Gonzalez, Gordon, Gorell, Gray, Grove, Hagman,  
            Hall, Roger Hernández, Jones, Jones-Sawyer, Levine, Linder,  
            Logue, Lowenthal, Maienschein, Medina, Melendez, Mitchell,  
            Morrell, Mullin, Muratsuchi, Nestande, Pan, Patterson, Perea,  
            V. Manuel Pérez, Quirk, Quirk-Silva, Rendon, Salas, Skinner,  
            Stone, Ting, Wagner, Waldron, Weber, Wieckowski, Wilk,  
            Williams, Yamada, John A. Pérez
          NOES:  Chávez
          NO VOTE RECORDED:  Chesbro, Beth Gaines, Harkey, Holden,  
            Mansoor, Nazarian, Olsen, Vacancy


          JG:nl  8/12/13   Senate Floor Analyses 

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                           SUPPORT/OPPOSITION:  SEE ABOVE

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