BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session J
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SJR 11 (Runner)
As Introduced June 1, 2009
Hearing date: July 7, 2009
Uncodified
SM:mc
GUANTANAMO BAY PRISONERS
HISTORY
Source: Author
Prior Legislation: None
Support: Unknown
Opposition:None known
KEY ISSUE
SHOULD A RESOLUTION BE ADOPTED TO URGE THE PRESIDENT OF THE UNITED
STATES AND THE CONGRESS OF THE UNITED STATES TO EMPLOY NECESSARY
MEASURES TO ENSURE THAT NO TERRORIST OR SUSPECTED TERRORIST DETAINED
AT GUANTANAMO BAY, CUBA, IS PERMITTED TO ENTER CALIFORNIA IN CUSTODY
OR OTHERWISE?
PURPOSE
The purpose of this Resolution is to urge the President of the
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United States and the Congress of the United States to employ
necessary measures to ensure that no terrorist or suspected
terrorist detained at Guantanamo Bay, Cuba, is permitted to
enter California in custody or otherwise.
Existing law includes an Executive Order signed January 22,
2009, regarding the Guantanamo Bay detention facility and the
disposition of inmates at that facility. (For further detail,
see Comment 2, below.)
This Resolution makes the following declarations:
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|WHEREAS, The imminent closure of the United States detention |
|facility at Guantanamo Bay, Cuba, raises the inescapable |
|conclusion that the terrorists or suspected terrorists who |
|remain in the facility will be transferred to alternative |
|prisons or released here or abroad; and |
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|WHEREAS, This group includes extraordinarily dangerous men like |
|Khalid Sheikh Mohammed, mastermind of the September 11 attacks |
|on the United States, and Abd al-Rahim al-Nashiri, who |
|orchestrated the 2000 attack that killed 17 United States |
|sailors aboard the U.S.S. Cole; and |
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|WHEREAS, Terrorists like Khalid Sheikh Mohammed, who has bragged |
|about decapitating American journalist Daniel Pearl and openly |
|expresses his desire to kill more Americans, are now securely |
|confined in the United States detention facility at Guantanamo |
|Bay, Cuba; and |
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|WHEREAS, The President has not articulated a clear plan for the |
|disposition of these terrorists but confirms that they will all |
|be moved; and |
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|WHEREAS, The people of California, who were identified as |
|potential targets for the September 11 attacks, are profoundly |
|concerned that a lack of vigilance will result in the release of |
|terrorists who may once again threaten their families; and |
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|WHEREAS, The safety of our citizens is our paramount concern; |
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|This Resolution states the following: |
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|now, therefore, be it Resolved by the Senate and the Assembly of |
|the State of California, jointly, That the California State |
|Legislature respectfully urges the President of the United |
|States and the Congress of the United States to employ necessary |
|measures to ensure that no terrorist or suspected terrorist |
|detained at Guantanamo Bay, Cuba, is permitted to enter |
|California in custody or otherwise; and be it further |
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|Resolved, That the Secretary of the Senate transmit copies of |
|this resolution to the President and Vice President of the |
|United States, the Speaker of the House of Representatives, the |
|Majority Leader of the Senate, and each Senator and |
|Representative from California in the Congress of the United |
|States. |
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
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California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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COMMENTS
1. Need for This Resolution
According to the author:
The imminent closure of the U.S. detention facility at
Guantanamo Bay, Cuba, raises the inescapable
conclusion that the terrorists who remain in the
facility will be transferred to alternative prisons or
released here or abroad.
The White House has not articulated a clear plan for
the disposition of these terrorists but confirms that
they will all be moved.
A lack of vigilance will result in the release of
terrorists who may once again threaten the people of
California, who were identified as potential targets
for the September 11, 2001, attacks upon the United
States.
A recent New York Times article sparked speculation
that the Guantanamo terrorists could be housed in the
city of Victorville in Senator Runner's district.
2. Executive Order To Close Guantanamo Bay Detention Facility
On January 22, 2009, President Barack Obama issued the following
Executive Order:
EXECUTIVE ORDER -- REVIEW AND DISPOSITION OF
INDIVIDUALS DETAINED AT THE GUANT?NAMO BAY NAVAL BASE
AND CLOSURE OF DETENTION FACILITIES
By the authority vested in me as President by the
Constitution and the laws of the United States of
America, in order to effect the appropriate
disposition of individuals currently detained by the
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Department of Defense at the Guant?namo Bay Naval Base
(Guant?namo) and promptly to close detention
facilities at Guant?namo, consistent with the national
security and foreign policy interests of the United
States and the interests of justice, I hereby order as
follows:
Sec . 1 . Definitions . As used in this order:
(a) "Common Article 3" means Article 3 of each of the
Geneva Conventions.
(b) "Geneva Conventions" means:
(i) the Convention for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field, August 12,
1949 (6 UST 3114);
(ii) the Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea,
August 12, 1949 (6 UST 3217);
(iii) the Convention Relative to the Treatment of Prisoners of
War, August 12, 1949 (6 UST 3316); and
(iv) the Convention Relative to the Protection of Civilian
Persons in Time of War, August 12, 1949 (6 UST 3516).
(c) "Individuals currently detained at Guant?namo" and
"individuals covered by this order" mean individuals currently
detained by the Department of Defense in facilities at the
Guant?namo Bay Naval Base whom the Department of Defense has
ever determined to be, or treated as, enemy combatants.
Sec . 2 . Findings .
(a) Over the past 7 years, approximately 800 individuals
whom the Department of Defense has ever determined to be, or
treated as, enemy combatants have been detained at Guant?namo.
The Federal Government has moved more than 500 such detainees
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from Guant?namo, either by returning them to their home country
or by releasing or transferring them to a third country. The
Department of Defense has determined that a number of the
individuals currently detained at Guant?namo are eligible for
such transfer or release.
(b) Some individuals currently detained at Guant?namo have
been there for more than 6 years, and most have been detained
for at least 4 years. In view of the significant concerns
raised by these detentions, both within the United States and
internationally, prompt and appropriate disposition of the
individuals currently detained at Guant?namo and closure of the
facilities in which they are detained would further the national
security and foreign policy interests of the United States and
the interests of justice. Merely closing the facilities without
promptly determining the appropriate disposition of the
individuals detained would not adequately serve those interests.
To the extent practicable, the prompt and appropriate
disposition of the individuals detained at Guant?namo should
precede the closure of the detention facilities at Guant?namo.
(c) The individuals currently detained at Guant?namo have
the constitutional privilege of the writ of habeas corpus. Most
of those individuals have filed petitions for a writ of habeas
corpus in Federal court challenging the lawfulness of their
detention.
(d) It is in the interests of the United States that the
executive branch undertake a prompt and thorough review of the
factual and legal bases for the continued detention of all
individuals currently held at Guant?namo, and of whether their
continued detention is in the national security and foreign
policy interests of the United States and in the interests of
justice. The unusual circumstances associated with detentions at
Guant?namo require a comprehensive interagency review.
(e) New diplomatic efforts may result in an appropriate
disposition of a substantial number of individuals currently
detained at Guant?namo.
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(f) Some individuals currently detained at Guant?namo may
have committed offenses for which they should be prosecuted. It
is in the interests of the United States to review whether and
how any such individuals can and should be prosecuted.
(g) It is in the interests of the United States that the
executive branch conduct a prompt and thorough review of the
circumstances of the individuals currently detained at
Guant?namo who have been charged with offenses before military
commissions pursuant to the Military Commissions Act of 2006,
Public Law 109-366, as well as of the military commission
process more generally.
Sec . 3 . Closure of Detention Facilities at Guant?namo . The
detention facilities at Guant?namo for individuals covered by
this order shall be closed as soon as practicable, and no later
than 1 year from the date of this order. If any individuals
covered by this order remain in detention at Guant?namo at the
time of closure of those detention facilities, they shall be
returned to their home country, released, transferred to a third
country, or transferred to another United States detention
facility in a manner consistent with law and the national
security and foreign policy interests of the United States.
Sec . 4 . Immediate Review of All Guant?namo Detentions .
(a) Scope and Timing of Review . A review of the status of
each individual currently detained at Guant?namo (Review) shall
commence immediately.
(b) Review Participants . The Review shall be conducted with
the full cooperation and participation of the following
officials:
(1) the Attorney General, who shall coordinate the Review;
(2) the Secretary of Defense;
(3) the Secretary of State;
(4) the Secretary of Homeland Security;
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(5) the Director of National Intelligence;
(6) the Chairman of the Joint Chiefs of Staff; and
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(7) other officers or full-time or permanent part-time
employees of the United States, including employees with
intelligence, counterterrorism, military, and legal expertise,
as determined by the Attorney General, with the concurrence of
the head of the department or agency concerned.
(c) Operation of Review . The duties of the Review
participants shall include the following:
(1) Consolidation of Detainee Information . The Attorney General
shall, to the extent reasonably practicable, and in coordination
with the other Review participants, assemble all information in
the possession of the Federal Government that pertains to any
individual currently detained at Guant?namo
and that is relevant to determining the proper disposition of
any such individual. All executive branch departments and
agencies shall promptly comply with any request of the Attorney
General to provide information in their possession or control
pertaining to any such individual. The Attorney General may seek
further information relevant to the Review from any source.
(2) Determination of Transfer . The Review shall determine, on a
rolling basis and as promptly as possible with respect to the
individuals currently detained at Guant?namo, whether it is
possible to transfer or release the individuals consistent with
the national security and foreign policy interests of the United
States and, if so, whether and how the Secretary of Defense may
effect their transfer or release. The Secretary of Defense, the
Secretary of State, and, as appropriate, other Review
participants shall work to effect promptly the release or
transfer of all individuals for whom release or transfer is
possible.
(3) Determination of Prosecution . In accordance with United
States law, the cases of individuals detained at Guant?namo not
approved for release or transfer shall be evaluated to determine
whether the Federal Government should seek to prosecute the
detained individuals for any offenses they may have committed,
including whether it is feasible to prosecute such individuals
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before a court established pursuant to Article III of the United
States Constitution, and the Review participants shall in turn
take the necessary and appropriate steps based on such
determinations.
(4) Determination of Other Disposition . With respect to any
individuals currently detained at Guant?namo whose disposition
is not achieved under paragraphs (2) or (3) of this subsection,
the Review shall select lawful means, consistent with the
national security and foreign policy interests of the United
States and the interests of justice, for the disposition of such
individuals. The appropriate authorities shall promptly
implement such dispositions.
(5) Consideration of Issues Relating to Transfer to the United
States . The Review shall identify and consider legal,
logistical, and security issues relating to the potential
transfer of individuals currently detained at Guant?namo to
facilities within the United States, and the Review participants
shall work with the Congress on any legislation that may be
appropriate.
Sec . 5 . Diplomatic Efforts . The Secretary of State shall
expeditiously pursue and direct such negotiations and diplomatic
efforts with foreign governments as are necessary and
appropriate to implement this order.
Sec . 6 . Humane Standards of Confinement . No individual
currently detained at Guant?namo shall be held in the custody or
under the effective control of any officer, employee, or other
agent of the United States Government, or at a facility owned,
operated, or controlled by a department or agency of the United
States, except in conformity with all applicable laws governing
the conditions of such confinement, including Common Article 3
of the Geneva Conventions. The Secretary of Defense shall
immediately undertake a review of the conditions of detention at
Guant?namo to ensure full compliance with this directive. Such
review shall be completed within 30 days and any necessary
corrections shall be implemented immediately thereafter.
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Sec . 7 . Military Commissions . The Secretary of Defense
shall immediately take steps sufficient to ensure that during
the pendency of the Review described in section 4 of this order,
no charges are sworn, or referred to a military commission under
the Military Commissions Act of 2006 and the Rules for Military
Commissions, and that all proceedings of such military
commissions to which charges have been referred but in which no
judgment has been rendered, and all proceedings pending in the
United States Court of Military Commission Review, are halted.
Sec . 8 . General Provisions .
(a) Nothing in this order shall prejudice the authority of
the Secretary of Defense to determine the disposition of any
detainees not covered by this order.
(b) This order shall be implemented consistent with
applicable law and subject to the availability of
appropriations.
(c) This order is not intended to, and does not, create
any right or benefit, substantive or procedural, enforceable at
law or in equity by any party against the United States, its
departments, agencies, or entities, its officers, employees, or
agents, or any other person.
SHOULD THIS RESOLUTION BE ADOPTED?
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