Negotiations by Governor Schwarzenegger and lawmakers to create a new California “security czar” drew fire from an unexpected quarter: the American Civil Liberties Union. But a tentative agreement was reached this week on language that is expected to resolve the dispute.
At issue is a provision in draft legislation that civil libertarians say offers a broad definition of terrorist activity that could lead to sweeping powers for state officials. As written, the bill defines terrorist activity as any activity that “involves an act that is dangerous to human life or potentially destructive of critical infrastructure,” violates any criminal law and “appears intended to intimidate or coerce the civilian population.”
That definition “casts far too wide and nebulous a net. It is so broad it would include low-level misdeeds at political events that are intended to influence government policy that most persons would not consider acts of terrorism,” the ACLU wrote on March 24 to Assemblyman Pedro Nava, D-Santa Barbara, the author of the legislation.
Nava’s bill, AB 38, would create a new Department of Emergency Services and Homeland Security. It would combine two existing entities–the Office of Emergency Services and the Office of Homeland Security–with the new department headed by a cabinet-level official who would report directly to the governor.
“Our main concern is not necessarily the establishment of homeland
security, but that its scope and mission be very tightly defined,” said Mark Schlosberg of the ACLU’s Northern California chapter.
Negotiators in the administration, Nava’s office and at the ACLU apparently reached agreement on resolving the issue on Tuesday, the day before the bill’s scheduled hearing before the Assembly Governmental Organization Committee. The committee unanimously approved the bill in a 14-0 vote and deleted the disputed language. A new definition is expected to be drafted shortly.
Security and emergency services officials referred Capitol Weekly’s calls to the governor’s office for comment. “The governor, OHS and OES are working with the Speaker’s office, Assemblyman Nava and other interested stakeholders to ensure the bill provides maximum protection for Californians while respecting civil rights and civil liberties,”said Schwarzenegger spokesman Bill Maile.
But Capitol sources familiar with the legislation said the agreement follows the suggestion of the ACLU’s legislative director, Francisco Lobaco, who urged replacing the AB 38 language with what is used in federal law, an “alternative definition which is linked to specific federal crimes of terrorism (and) would be substantially less problematic.”
The ACLU’s concern with the proposed merger of the OES and the OHS is the latest in a series of issues that have emerged about the bureaucratic shakeup, which was prompted by lawmakers’ fears that the chain of command of the two agencies was unclear and poorly organized. Nava’s bill followed legislative hearings on the issue. Nava, as chairman of the Joint Committee on Emergency Services and Homeland Security, is the Legislature’s point person on the issue.
“It causes great anxiety among emergency-response professionals when there is no concise, crisp chain of command,” Nava said in an earlier interview. “It’s a very simple question that was asked during the Little Hoover Commission hearings: ‘Who’s in charge?'”
The specific concern about language was prompted in part by a July 2006 report in the Los Angeles Times, which disclosed that anti-war protests in Santa Barbara, Walnut Creek and San Francisco had been monitored by the OHS. State officials said no privacy violations had occurred, but First Amendment advocates were not convinced. The provision urged by the ACLU in the merger legislation seeks to curb invasive domestic surveillance.
Under current law, the Homeland Security office is folded into the OES, and exists as part of the OES budget. The security office was created in 2002 through an executive order of former Gov. Gray Davis. The OHS, with about 50 employees based in Sacramento, advises the governor on security issues and, perhaps more importantly, serves as the conduit for federal anti-terrorism and training dollars to California’s law enforcement agencies. It has expedited hundreds of millions of dollars during the past five years.
The OES, with a $200 million budget and about 500 employees, is the state’s principal disaster-handling office, from fires to floods to earthquakes. Its brief does not include anti-terrorism activities, although it handles man-made disasters, as well.
The proposed merger would establish a sole state official–a cabinet-level secretary with the ear of the governor–with jurisdiction over all security and emergency issues. The governor, who supports the merger, has not selected a successor. But the likelihood is that it will be Matt Bettenhausen, who heads OHS, or Henry Renteria, the current OES director.
Under Nava’s 40-page bill, the state Department of Emergency Services and Homeland Security would be run by an appointee of the governor subject to Senate confirmation. An undersecretary at the proposed department would not require Senate confirmation.
A concern of lawmakers and civil-rights advocates is that the new agency confine itself to security or disasters, and steer clear of legitimate domestic protests.
“The real question is whether there needs to be language that narrowly defines the mission of the agency. The agency should be dealing with issues relating to real terrorism,” Schlosberg said.