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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