House Standing Committee on Public Safety

Good afternoon. Convening our Committee on Public Safety. Today is Monday, July 28, 2025 for our 2:00pm Informational briefing here at the State Capitol Conference Room 325. We have to my right, Vice Chair Kim Koko Iwamoto, as well as to my left, Representative Therese Amato. We also have joining us Representative Garner Shimizu.

And we'll jump right into this. Let me give a little bit of background about the purpose of this informational briefing. According to our agenda, of course, it's to provide an overview of National Guard and law enforcement obligations when called upon by the Federal Government in response to civil protest and or situations of civil unrest.

Really, this information grows out of recent events that occurred as we have seen increasing federal actions across the nation beginning in January 2025, including federal actions here in the State of Hawaii. We saw the federalization of the National Guard personnel by presidential memoranda on June 72025 in the State of California.

The ensuing federal lawsuit by California Attorney General Rob Bonta and California Governor Gavin Newsom challenging the ensuing federal orders, challenging the Executive orders, and followed up very quickly with gratitude from many on this side of the aisle with the Hawaii Attorney General Ann Lopez's clear response to the deployment of California National Guard personnel being without the consent of California.

So really, we want this briefing to provide information to the current status and legal background of the lawsuit involving California and have presentations about federal and state authorities related to the deployment of the National Guard and other state responses to potential federalization of the National Guard.

We want this to be a conversation, an opportunity for us to learn as lawmakers, but also for the community to learn and understand what are the policy options before us as a state as we go through these challenging times.

So I'm going to first invite Mr. David Day, who was listed on the agenda, and then defer to the Attorney General's Office as to how they would like to proceed with their portion. Mr. Day is special assistant to the Attorney General who's who is here with us. Thank you for joining us. Attorney General Ann Lopez, Mr. Day.

Attorney General David Day is my special assistant. He has been taking point on most of this litigation with another one of our attorneys. So I will let him take point on all of this going forward.

I'm going to share my I'm going to share my screen. I just have a PowerPoint slide. Okay. So I've been the Attorney General's Office has been asked to discuss the case of Newsom versus Trump.

Newsom versus Trump was litigation that was filed in following the order that was referenced earlier, from June 7, or pardon me, yeah, June 7, by the President through the Adjutant General of California. And that's going to be an important issue as we move forward.

But as we begin, I'd like to just give a little bit of a background with respect to just sort of the General framework that we saw and kind of the initial actions that kind of drive what we have and put into context the Newsom versus Trump litigation.

We all know that the day one Executive orders, there were many that came out. The first one was one that purported to end birthright citizenship that was entitled protecting the meaning of American Citizenship.

In that Executive order defined two classes of individuals who would no longer be entitled to birthright citizenship, or should I say newborn babies whose parents had certain characteristics, either both undocumented immigrants or one where the father was an undocumented immigrant and the mother was here, even legally on temporary basis. The second one is an important one.

It was entitled Protecting the American People Against Invasion. It was a directive from the President to federal agency stating a policy to execute immigration removals against all, quote, unquote, all inadmissible and removable aliens. And this is something that extended beyond what previously the policy of the government was, which was to prioritize those with criminal histories.

Among other things, there was a definite threat to the federal funding, so called, quote, unquote, sanctuary jurisdictions that was defined loosely in the EO to those who would not obey the directives of Federal Immigration authorities. January 20th, again realigning the refugee admissions program.

And that one limited refugee admissions to those to basically individuals who set forth certain characteristics among those that they could be fully and appropriately assimilated into the American policy and for preserving taxpayer resources. So that was intended to limit the people who would be entitled to refugee status. January 21st.

Emile Bove was the Deputy Attorney General, Acting Deputy Attorney General at the time. He's currently a nominee for the Third Circuit Court of Appeals. He called for the investigation.

This memo expressly called for the Department of Justice to investigate and prosecute state and local actors who obstruct or otherwise fail to comply with lawful immigration related commands and requests.

And then on February 5th, we call it the Bondi Directive, it authorized or required the Department of Justice to pursue enforcement actions against jurisdictions that facilitate federal law, immigration law, or violations of federal immigration law, or otherwise impede lawful federal immigration operations. So we've kind of.

I just wanted to kind of break it down into sort of maybe four strategies and tactics, which we've seen kind of across the Immigration landscape. The first is the maximalist immigration removal policy.

This can be seen in things like immigration quotas that would be, you know, immigration officials are supposed to arrest and apprehend a certain number of immigrants on a given week for an example, along with implicit both threats and benefits that would accrue based upon how somebody performed.

And this is kind of in terms of assisting in immigration arrests and whether or not they did or did not comply. And then also the combining of agency resources across government, which we'll discuss in a second. The second is threats to federal funding and the imposition of immigration enforcement conditions.

This is something that we've seen in many different ways across many different departments here at the state. The third is threats of investigation and prosecution of state officials who, who allegedly impede immigration operations. The most notable case was Judge Hanna Dugan of Wisconsin. But that threat implicitly or actually explicitly hangs over all state and local officials.

And then number four is attacks on the rights and dignity of immigrants. And we see that in the form of, for example, the birthright citizenship eo. Some examples of the ways that the Department of the Attorney General has addressed some of these federal actions. The first is the birthright citizenship case. New Jersey and Hawaii versus Trump.

There was a very well known decision that came out of the Supreme Court in the case of Trump versus Kassa. There were three cases that were consolidated before the Supreme Court. That case curtailed the practice of so called universal or national nationwide injunction.

But as just a follow up, just this Friday, this past Friday, the U.S. district Court and the District of Massachusetts applied the same test that was applied or that was set forth in Casa and declined to modify the scope of the nationwide injunction.

So that's our case and what we have now is an injunction that remains in place nationwide. And this is a case that we in Hawaii are a plaintiff in, along with approximately 19 other states. The second is the issue of funding conditions. Now, funding conditions are attached either on grants or otherwise.

There's a policy that's announced where it'll say, like, if you want this grant, what you need to do is agree that your Department, or sometimes it's ambiguous, will assist or enforce or otherwise comply with federal immigration enforcement. And we have two ongoing cases about that. That's California and Hawaii versus the United States Department of Transportation.

That's in the District of Rhode Island. We obtained a preliminary injunction in that case. In that case, there was a directive that was issued that would apply to a significant amount of federal funding. We have a preliminary injunction in place in that case. The Second is Illinois and Hawaii versus FEMA, also in the District of Rhode Island.

That case has briefing ongoing that relates to conditions imposed upon FEMA grants. The issue of interdepartmental data sharing. There was actually a case just today that was filed, and this isn't on the slide deck, but it was a case against the Department of Agriculture, Hawaii is a plaintiff.

It relates to data sharing concerning the SNAP program, But then also on the dockets in the Northern District of California, California and Hawaii versus the US Department of Health and Human Services. This concerns the transfer or reported transfer of medical data from the Department of Health and Human Services to immigration authorities.

And there's a preliminary injunction hearing currently set for August 7th. And one of the other ways that we support in litigation is through amicus curiae support. There's a number of cases, immigration wise, that we filed amicus support. And an amicus brief is something that's filed in support of somebody else's litigation where we state the state's position.

And in one of those cases, it was Newsom versus Trump. So here's the caption from Newsom versus Trump. It was filed in the Northern District of California. The basic underlying facts, and so these are taken directly from the litigation record. I'm not going to state anything beyond what's in in the record, as this is ongoing litigation.

And I'm emphasizing some facts more than others because these are the facts that were ultimately germane to the Ninth Circuit. So basically, the timeline is that on June 6, these were the videos that everyone saw of heavily armored people, ICE agents coming in. They looked like they were going into a war zone.

And they began carrying out immigration raids in Los Angeles. And at that time, Members of the public began gathering to protest in the Garment District. A group tried to prevent ICE from leaving. Again, this is record things that are in the record.

In the evening of June 6, 800 protesters marched downtown at two sites the LAPD declared an unlawful Assembly. Some protesters threw objects like chunks of concrete. One of them used or I think there were instances of people using kind of commercial dumpsters as battering range. And there were federal buildings that were vandalized.

On June 7, ICE operations and protests continued. There were people throwing rocks. There's record evidence showing that there was at least one Molotov cocktail thrown, a burned vehicle, a gas station looted and vandalized property. By the next morning, by 4 o'clock, LAPD declared that the situation was under control.

But the preceding evening, and this was the memo that had been discussed earlier, the President issued a Directive to the Attorney General, along with the Department of Homeland Security and the Secretary of Defense, basically citing the events in Los Angeles and directing and this is the second paragraph here, it says, in light of these incidents, incredible threats of continued violence.

By the authority vested in me as the President, et cetera, I hereby call into federal service Members and units of the National Guard under 10 USC 12406 to temporarily protect ICE and other United States government personnel who are performing federal functions, including the enforcement of federal law, and to protect federal property at locations where the protests against these functions are occurring or are likely to occur based on current threat assessment and planned operations.

And by the end of the within several days, there were 4,000 National Guard groups that were deployed. So we need to talk just briefly about the Militia Act.

And this is going to be sort of the background of at least the conversation surrounding this is this was the authority that was evoked the Militia Act provides in Section 12406. And I'm just going to read this because I think it's short, but it's kind of to the point. Whenever 1.

The United States or any of the Commonwealth's or possessions is invaded. I'm sorry, I'm having a little bit of trouble seeing this on my screen. Is invaded or is in danger of invasion by a foreign nation 2. There is a rebellion or danger of rebellion against the authority of the government of the United States States or three.

And so three is the important one. The President is unable to with the regular forces to execute the laws of the United States. The President may call into federal service Members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion or execute the laws.

Orders for these purposes shall be issued through the and this is a key point. Orders for these purposes shall be issued through the governors of the States.

California's claims in the case, you know, reciting the history and what we know, their perspective about sort of the nature of the protests and sort of the isolated pockets of violence that were accentuated were three. The first one is called ultravires. It basically means that there's no legal authority for the action taken.

Specifically, California alleged that there was no factual basis supporting either the insurrection, the invasion, or the fact that the laws were not able to be enforced.

The second part was a procedural aspect which said that the President did not notify the Governor Newsom or obtain his consent and did not issue their orders through the quote unquote, through the Governor Newsom as the statute requires. And then third, and this is an adjacent issue, that it was a.

They claimed a violation of the Posse Comitatus Act, which prohibits the use of federalized military forces for domestic law enforcement purposes. Generally. A 10th Amendment claim and violations of the APA. Those. Well, we can kind of save those, but that was just to give the full record. United States District Court granted the injunction.

Judge Charles Breyer, that's the brother of Stephen Breyer, formerly of the Supreme Court, found that the record showed, and this was his assessment of the record, quote, some stray violent incidents relating to the protests against ICE raids in Los Angeles. That's sort of the underpinning of his opinion.

He found that there was, quote, no rebellion under paragraph 2, and that ICE was adequately able to execute the laws and therefore, no violation of paragraph three.

There was also the conclusion that there was a violation of the procedural aspect of the statute, as the order for nationalization of the Guard was not issued through, quote, unquote, through Governor Newsom in violation of the statute.

He did conclude that there was a violation of the 10th Amendment reserved decision on the Posse Comitatus issue, and then issued a temporary restraining order against the deployment of the Guard in Los Angeles. And to return the guard to Governor Newsom. I think within 20 minutes, there was an appeal.

But before that, I just wanted to talk about how Hawaii supported California in this litigation, and that was through the use of amicus briefs. Again, this was not our fight per se. This was California's litigation concerning the policies that were directed against it.

But we joined a number of states, including Governor, the Governor of Kansas, as amicus curiae in both the district court and in the Ninth Circuit. And so I just. When kind of talking about the main points, I just kind of wanted to clarify one of the roles of the amicus brief.

You know, when I'm going to be outlining our main points is they're not legal per se, in that we're just kind of repeating the same arguments that were made by California. The role of the amicus is really to sort of accentuate and broaden the record, to give different perspectives.

And one of these perspectives was the roles of states and the Federal Government with respect to the, quote, militias of the government under the Constitution. Giving a historical perspective.

And of course, the historical perspective is a very important one given particularly the new Supreme Court in the way that it views history and the importance that it views history.

So the first is that the Constitution and the statute surrounding it, that it was basically designed around the fear of military rule, and that this fear compelled the constitutional framers to embed first and foremost state control of the militias in the Constitution. The Constitution says first and foremost that the militia is of the several states.

And then, just as a historical note, this was actually one of the most important cases in these lines of cases is a case involving Duke Kahanamoku, the so called Duncan versus Kanamoku case, which was a case when he was a military police officer during World War II.

And that case states that the Executive and military officials who found it necessary to utilize the armed forces to keep order in a young and turbulent nation did not lose sight that existing civilian government was not to be interfered with by the exercise of military power.

And then secondly, that presidents have carefully avoided the domestic deployment of militias unless absolutely necessary in history. In fact, this statute that was invoked was only invoked twice. Once in 1916 when Pancho Villo of Mexico invaded during World War I and during 1970, postal strike, the National Guard helped deliver the mail in New York.

Can I pause? Duncan v. Konamoku, was that a state Supreme Court case? U.S. Supreme Court. U.S. Supreme Court case. Okay.

The Ninth Circuit issued a stay of the temporary restraining order. It was a three judge panel. It was a unanimous decision. The main takeaways from the Ninth Circuit's opinion is that under Section 12406, the judicial standard review is, quote, highly deferential. It didn't define the exact standard of review beyond saying that it's highly deferential.

This being in an emergency appellate posture and so affording the President that deference, the Court concluded that the President, quote, lawfully exercised his statutory authority under Section 12406 paragraph 3, which authorizes federalization of the National Guard when the President is operating unable with the regular forces to execute the laws of the United States.

And I can give factual background if you're interested in sort of like exactly what incidents gave rise to that conclusion, but they were more or less in line with the ones that I mentioned before. The use of a dumpster as a battering ram, the fact that there was a few instances of a Molotov cocktail being thrown.

There was a declaration that said that an ICE officer was trapped in her car. California. And then so on the procedural aspect, California law specifically. And this is a question that turned on California law. So this goes back to the issue of the fact that orders have to be issued through the Governor under the statute.

California law authorized the Adjutant General of the National Guard to, quote, issue all orders in the name of the Governor. So that's something in California law. Law. So the transmission to the Adjutant General likely satisfied the procedural requirements of issuing the order through the Governor. So that's kind of a peculiar California law issue.

And I'll just sum up by saying that the next steps in the litigation. So the temporary restraining order was stayed. There's a bench trial currently scheduled before Judge Breyer and the U.S. District Court for the Northern District of California for August 11th through the 13th. Hawaii is prepared to support California as it moves forward. Thank you.

Do you have what our statute says? Because we don't have the same Adjutant General.

We don't. I can find it.

So ours is different. And I think it potentially makes a difference if it happens here.

So are you done with your presentation?

I'm done with my PowerPoint presentation.

Members, I do want to keep track of the time. We have this scheduled till about 4 o'clock if there are particular questions. Now, I'll entertain some questions. And I would like to acknowledge that Senator Brandon Elefante is here also. He is the Chairman of the Senate Committee on Public Safety. Is that the correct title? Yes. Okay.

So welcome, Senator. Senator, Members, any questions up until this point? This really provides a legal framework and kind of the background for this broader conversation we're going to be having about potential policy here in the state. Members, no questions. Question.

I mean, a copy of your PowerPoint presentation. I'm happy to send that to you.

So, yeah, logistically, Members, and for the public briefing materials that have been handed to the Members, Members will be made available on our website as well as any presentations made by the briefing participants. So you will be able to find this on our Committee website at the end of this. Go ahead. Senator Elephante, please.

Thank you. Chair Belatti, thank you for hosting this meeting. And thank you. Mr. Day. Just a few several questions based on your presentation, say, for instance, the federal level, and they would request, if they ever were to request, to federalize the National Guard, what would be your advice to the Governor?

You know, I think that's a. That's a very difficult hypothetical to answer. The law is in flux.

I also am a little bit reticent about sort of giving my legal thinking about this at this time, except that it would be very careful and would be based upon the law and specifically acknowledging the recent opinion in Newsom versus Trump.

I think saying much more than that could potentially be prejudicial to our friends in California as well.

And then also, what happens with this trial case with Judge Breyers? Would that be correct? To see what happens?

And that's ongoing And I want to be very sensitive that I'm not going to be speaking out of turn with respect.

Okay, thank you. Thank you, Madam Chair.

Thank you. Go ahead.

Sorry. I think, Attorney General, you were going to share how our laws are different in terms of. It doesn't include that one section.

I think it's just the first. I'm sorry.

So it depends on how the court rules. If it cites this specific giving the President authorization based on the specific part of the statute, and if we don't have it as part of the our statute, could it then not be precedential on us here in Hawaii?

Well, so it would certainly the aspects of the decision which concern, and granted, this is in the preliminary posture, but it is a published decision of the Ninth Circuit.

The aspects of the decision that concern the standard of review that applies when deciding whether the various paragraphs of the state statute have sufficiently been proven is going to apply. You know, the factual, the exact factual circumstance of how the law is invoked and how the order is to go through.

We don't know what this hypothetical what's going to happen in, you know, another state. This is just what happened in California where the order was issued not through Gavin Newsom, but through the Adjutant General of California.

You know, you know, what we can say is that the exact language in the California case or in the California laws that specifically state that the orders issued by the Adjutant General are issued in the name of the Governor. That language does not appear in Hawaii law.

All right, we may circle back to some of these questions, Members, as we move through the presentation by Department of Defense so we can come back to some of these things. And this is a complicated area, so I really appreciate everyone taking the time to dig into this.

Our next participant was supposed to be Major General Stephen Logan, Adjutant General of the Hawaii Department of Defense. We did have identified his designee because of scheduling challenges. Adjutant General is not here. I believe we have Colonel Lloyd C. Phelps with the Department of Defense, who is here going to present for Adjutant General as he's preparing.

I don't know if you can make yourself visible on the screen, Mr. Phelps, but as you're doing that, let me just provide a little bit of context and why I'm a little bit disappointed that Adjutant General is not here, because we had a very great conversation in leading up to. To the preparation for this briefing.

But because of the timing of schedules, it's understandable that he was not able to join us. I do hope and it will be communicated to him. I hope he will come before this Committee at some point.

Because I think as we move forward in the years ahead, as things continue to develop, having him present to be able to respond to our Committee's questions would be very helpful in my conversation with the Adjutant General. And I want to provide context as to why this was really important for me to have this informational briefing.

If we go back to the period of June 7 and 14 when these orders and memorandum was being issued by the President, again, we were seeing, as Mr. Day pointed out, the increasing number of federal actions, peaceful protests that were occurring across the nation, including in our own, in our own state when this presidential memoranda was issued.

And you know, everything is coming fast and furious, as I know you folks know as Attorney General who are responding to this on a daily basis. But as you can see before the letter, you know, before us, very broad, very broadly federalizing.

So no one knew the extent to which any activity or federal actions would occur within the next day, two days, three days.

And for me, what was a very, very much of concern was that we know here on the ground across the nation, as we've seen groups mobilize, that there was going to be a June 14, 2020 No Kings protest. And there were indications from our community that there would be large numbers of individuals.

And so I had called personally Major Adjutant General and said, what are the preparations in the event that actions are taken based upon this memoranda? Because we can all think about the worst case scenarios where there could be some kind of action.

And I didn't believe that there would be any action here on this in our state to be worried about. But the way these orders are ruling out, there could have been some kind of actions, conduct that occurred on the continent that could trigger a federalization.

So I wanted to know what we as a state were prepared to do. And I was very reassured in speaking with Adjutant General at that time. But I think as we look back now, we need to understand what are the authorities that the state has.

So the questions that I had hoped that Adjutant General would answer, and I believe Colonel Phelps, you now get to answer, are in these three areas of what is it? What is the presidential authority to activate the National Guard?

Some explanation of the Posse Comitatus Act, as that seems to be a way that it can, that provides some guardrails as well as what was the use of the Hawaii National Guard in support of any of these orders that were coming out in early June? That was kind of the basic areas of conversation and questions.

I think there's going to be more questions to follow up as you give your presentation, and I'll let you proceed. At this point, Members, do you guys understand how we're moving through this? Okay, so go ahead, Colonel Phelps.

Does he hear you?

We do not have any audio. Colonel Phelps, you might be on mute.

I'm looking at my button. I'm not on mute.

Okay, you are now speaking.

You can hear me? Yes, we can hear you. Awesome. Well, first off, thanks, ma'am. I appreciate you all allowing me to come on here. I will certainly relay what you said earlier to my tag about your desire and importance for him to be in attendance.

I was communicating with him this morning, and I've got pretty good lines of communication with him, so I will let him know that, and I'm sure he'll be here moving forward. Any meetings you guys have, I don't have a real set presentation to give, other than just trying to address some of the questions that you put forth.

First and foremost, as the National Guard, when we were activated, we're either activated in essentially three different statuses. Title 10, which is the presidential call up, and a lot of times think back, like 20 years ago when we got activated to go off to Iraq, that was a purely presidential call up.

Really didn't have anything to do with the Governor, didn't have to route through the governor's office. We got called up, we were federalized, put on Title 10 orders, moved forward to Iraq, and hopefully did good things for God and country. That would be somewhat the mechanism that the Trump Administration used under 12406, that's a Title 10 statute.

As I think you guys are all. Aware. For the most part, when we're called up under a Title 10 authority, the FAS Comitatus Act does apply. And I can get into that as we move forward.

But just sticking with 12406 I read through the Executive order, and in looking at the way they worded that, I think that they pretty much carefully worded that. And I didn't see anything in there where they were expressly allowing the Guard to perform police functions, I.e. search, seizure, arrest, that kind of classical type stuff.

The way they worded that kind of is worded with some of the things that we do under when we're called up under Title 32, which is basically support to law enforcement. I don't believe the Guard, with what was going on in California, was going out and actively participating in search Caesar arrest.

I saw some of the videos of some of the Guards members in riot gear surrounding the federal courthouse. To my understanding, there was some other logistical support that they provided. But that's kind of if you're operating under Posse comitatus, that's kind of how that looks. We just don't do the class things.

There's all sorts of ways we can get called up under Title 3010 Title 10, to support law enforcement. We just can't operate doing the traditional law enforcement type things. That's kind of what I understand happened in California.

The other option that we have to be called up is under Title 32, now that it's a different type orders, process. But what you need to know with that, that is the type stuff that we did like for Covid. We were under 502F orders. That's usually the mechanism for calling us up.

We're federally funded, but we remain under state control. The big takeaway that I think this group needs to know with Title 32 is that Title 32 doesn't happen without Gubernatorial consent.

So I think what you see going on in, like the State of Texas now, where you've got certain guards from certain states coming into Texas and actually supporting Ayes operations, those were all done with the express consent of the governors involved.

So if something were to come down the pike along those lines, it would take Governor Green's consent for one for us to have any of our Hawaiian National Guardsmen moving forward to another state to support Ayes operations.

It would take his consent to allow anybody to come in here under those type orders and to do that type of operation. Now, Title 32 is different than Title 10. We don't operate under posse comatops. So you would be allowed, at least on paper as a guardsman, to participate in law enforcement, that is search, seizure, arrest.

But that is going to depend on the individual state in which those service members are operating. In the State of Hawaii, we're not allowed to do those type things under state law. So we were activated. Anybody was activated here, they have to follow state law.

There are a number of states out there that have deputization avenues where they can deputize service members, guardsmen to actually go out and perform law enforcement functions. But that's not necessarily the case here in the State of Hawaii.

So I don't know if that necessarily fully answers your question, but Those are the two main avenues that we're talking about here. And with 12406 in particular, it was based off of what POTUS saw as his emergency response authority.

It would take something like that here for that to happen and moving forward, I don't know if those circumstances would repeat here and whether that would ever be an issue.

But like the AG said earlier, I know that within our law, it's not structured the same as California, where the Adjutant General necessarily can accept those words because what happened in that case, my understanding, OSD Officer, Secretary of Defense Hegseth basically contacted the tag of California, the Adjutant General, with those orders, at which point in time the Adjutant General essentially stepped aside, relinquished command and control of that combat infantry brigade, combat team.

And at that point in time, command and control of that unit went over to the regular army, which was Northcom North Command at that time. So the law that they were operating under in California is different than ours. I'm unaware of any law that has, that's been codified that delegates those decision making authorities down to the tag.

Pretty much everything in the State of Hawaii needs to go through the Governor first. So that would be an additional layer of issue if that was, if they tried to do that here in the State of Hawaii. I don't know if that fully answers your questions or helps at all.

But that's, that's kind of, from a guard perspective, what we're looking at. But I'm certainly open for any questions you guys may have.

Members., I'll open it up to any questions for Colonel Phelps. Okay, Colonel Phelps, I have a couple of questions.

So in speaking with Adjutant General in this conversation and with much of the events of June 7, June 14, the lawsuit having passed, he had communicated to me that, you know, across the nation, Adjutant Generals are really looking at this issue of what it means if another federal order was to come down.

And that was one of the things I had hoped he would be able to share with our Committee about the kind of different policy postures that different states are taking. Can you comment on what those policy orientations postures are? Or is that something that we need to have Adjutant General come and speak to us about?

Ma', am, you would probably have to have him speak to that because I wasn't privy to those. That meeting that he had. He does a pretty good job of communicating stuff to us, but I would have to defer to him on that.

I will just tell you that from my perspective, looking at what's going on, it just depends on what state you're dealing with and who's aiding who and who's not. And I think that you're just going to find there's difference from state to state depending on who's running the show and what their political affiliations are.

Okay. So I think it's really important that we have that conversation and anything that you can do, Attorney General, to help make sure that we have that conversation. Because again, this is about policy options.

And at the end of the day the Legislature will have more roles to play in policy options about how to move forward if this situation were to occur Again, with that said, Mr. Phelps, maybe you can still help me understand some of these things. If we have a situation.

And I know this is hypotheticals, but I think it's an important hypothetical because there are many of us, local leaders here, leaders across the nation, even our own Attorney General, who found that the order that the President issued that mobilized the National Guard, maybe not our Guard, but some National Guard in the State of California was without authority, hence the lawsuit, as we're looking at this, and there are very real concerns that perhaps more of these kinds of orders will come down.

What is the obligation of a soldier who might find that they don't want to enforce what might be an unlawful order? Can you speak to that situation?

Well, what I can tell you, ma'am, is I know how the system works. If that happens and what you would do. Let's just paint the picture. Let's say the order were to come down, let's say Newsom versus Trump goes to the Supreme Court and they come back and they rule that his actions were legal.

And if an order were to come down to the State of Hawaii, now, I would have to pass some of the mustard we talked about earlier as far as, you know, how our state law is different than California.

But if an order were to come down that that is legal, we have a sworn obligation to follow those orders. Now, having said that, we've had plenty of instances over the decades I've been in the service, whether it was going off to Iraq, and yet soldiers didn't want to go off there.

The potential for calling up National Guard. Several years ago for the TMT protesters, I had any number of individual soldiers that would come to me and we'd have conversations about the, how conflicted they were about maybe having to do some things.

You know, all I can tell you, I can't, I can't tell you, you know, how our soldiers would react. But I will tell you that if a soldier does refuse to follow a lawful order, there's been high profile cases.

I don't know if you guys remember Lieutenant Aaron Watada, who I think was a local guy that was regular army back during Iraq, and he was a fairly high profile case. They ended up court martialing him. Now, I think he was acquitted of failing to follow orders, whatever the details were of that case.

But worst case scenario, an individual soldier can be court martialed or have some sort of criminal charges brought against him. What we would do in a case like that if we had individual soldiers say, I don't agree with that, we would have to get there to see.

But there are options on the table and there are options short of even taking criminal action against an individual soldier. If, if we found that they just weren't fit for service anymore because they just refused to follow orders, we could administratively discharge them without any kind of criminal record, that type stuff.

But I really couldn't tell you how we would handle it. I'm just telling you the options that we have to deal with individual soldiers. But that's not something that, this isn't something that's new to the armed services and it's certainly not even new to the guard.

We've had these instances before and you know, depending on what the mission set is, man, there's usually flexibility in who we can call up. And you know, so it's not like if something were to come down, they're going to activate the entire guard and everybody's got to go.

I mean it would be, you know, a smaller unit piece and perhaps we'd have some leeway. I would have to defer to our operators on that, who we could call up.

Sorry. Thank you. I think I understand. Can I flesh out the hypothetical a little more so that we're talking about an individual soldier who might have a sincerely held belief and that might just be. Be an isolated incident.

What happens if you have a number of soldiers within a unit who express maybe collectively more reticence to follow what they might view as an unlawful order, immobilized. What are the options?

And then the third scenario and hypothetical is not, we're not talking now about line soldiers, but what if a ranking officer finds that a law, an order may be unlawful? What then happens? So there's two different categories. Can you speak to both of those situations?

Well, I think it kind of goes back to what I said earlier. That's, you know, the devil would be in the details. But worst case scenario, scenario.

If they were, if they were called up on Title 10 orders, then they basically belong to the Federal Government at that point, then we're talking, they could potentially court martial them, all that kind of stuff. If it was title 32 orders of state active duty, they fall more under state law and we would have our options there.

You know, I go back to Aaron Watata. You know, he was, he was a, he was an officer, maybe not a senior, senior officer, but he felt that the orders were illegal.

You know, you would have to have a sincerely held belief Usually they're religious based things like that where you know, perhaps you can have illegal end run around having to follow the order, but you know, at the end of the day it would again, it would be, the devil would be in the details and if we had a whole bunch of soldiers that were of that ilk, you know, we would have to, we would have to figure something out.

But I just know what the, what the parameters are and what the mechanism is for dealing with it and what the actual process would be and what we would do with A. Ma ', Am, I wouldn't know until we got there. And I'm not trying to dance around that.

It's just sometimes these hypotheticals, you can kind of put your left and right limits on it, but I don't really know how we would end up handling that, ma'. Am.

And what about the hypothetical of a high ranking officer who has command over units and troops?

Yeah, probably the higher ranking usually the more account they hold them to. You know, it just kind of comes with the territory.

So if, if again, devil's in the details, if it's a lawful order and they're, they're refusing it just because they don't feel like doing it, you know, that, that senior officer probably going to have some issues and again, it's going to depend on what status he's in and, and, and, and you know, what the, what the command and the authorities would want to do.

But the, none of this is, is nascent. I mean this is, this has happened, it goes back to, you know, Vietnam and well before that. You know, we've, we've got, we've got systems in place to deal with it, ma'. Am. Just, we would have to cross that bridge when we got there.

So in your, you're a attorney, attorney for the military, right? Lieutenant Colonel?

Am. Okay. So are you aware if state legislatures can craft criteria for lawfulness of orders that might help if the situation were to evolve where there could be criteria established by state law that would help to protect our guardsmen.

Yes, ma'.

Again, that's one that the devil would be in the details. But the only thing I would caution with that is, you know, when you start crafting laws like that, that maybe you're going to impinge upon federal authority and the Supremacy Clause and things like that, you could run into issues there.

But again, it would depend on what type of law you were talking about, just again, knowing your parameters, that you would have to be careful what you crafted and whether it's in alignment with, you know, duly Enacted federal law.

So I have in front of the Committee a House Bill 3954 that was passed by by Oregon's House in June 18th of this year.

Are you aware of this law and how the Guard nationally may be working through this law that specifically says that the Adjutant General there may not assist, facilitate, communicate or allow communications between the US DOD or any branch thereof or units of the Oregon National Guard on any matter associated with the individual or unit being called into active Service under Title 1010 or 32, unless the active service is for one of these following reasons.

And there's very specific reasons where things are like congressionally authorized in support of congressionally authorized military contingencies in support of operations in response to national catastrophe or disaster as declared in a formal declaration of war or congressional authorization. And it goes through a number of scenarios in which the Adjutant General can act and cannot act.

Are you aware of this law and can you comment on how this.

Unfortunately that's the first I've heard of it. But again, you know, putting it in a broader historical perspective, you know, when you start crafting laws like that, you know, I mean, I don't know if that law even takes into account the presidents authority under the Insurrection Act.

I mean that's been done before as I understand it, back in the 60s, I think it was Kennedy called up involuntarily called up the National Guard and had them go down into Alabama and enforce the laws that desegregate schools in response to Selma riots, things like that.

So that's why I kind of go back to you got to be careful with whatever you're crafting. That it's not necessarily tying the hands of somebody in a manner that you don't want to be doing that because there's always second and third order effects to everything.

But I apologize man, that organ live not, this is the first I've heard of it. So I'd have to fire from the hip on that one.

Okay, so perhaps for a future briefing if we can get some opinions as to this and the implementation and actualization of this.

Because I think, yes, while I agree with you, we have to be careful about how we craft laws, this seems to have been a bill that was worked upon by representatives who are deeply engaged in the military.

In fact, it was crafted by a 20 year veteran of the US Air Force and Oregon Air National Guard who had served in combat missions. So we can carefully tailor laws, I believe that can support both mission and comport with our constitutional obligations.

I mean, I think that that is something that we could agree, right, that we could work towards. Colonel?

Well, ma', am, you know, I gotta remain apolitical. I mean, the Legislature does what it does, and if you guys, if a law is passed and it's duly enacted, that's what we get paid to do as military people, follow the lawsuit, the flag and move out. So that's basically all I can offer up there.

I'd have to see the law and how it was crafted, understand that they had an Air force person that's 20 years and all that. But. I just have to see what it was, ma', am, and what it was they were. I know what they're trying to accomplish, but.

Okay, maybe. Thank you. Thank you for your answer. Maybe if I could turn this over to Dave and Attorney General. So you have the law in front of you. I have Chapter 121 in front of us.

I'm going to assume for now that our Oregon and Hawaii laws may be similar, but I could be very wrong as well. So as you think about litigation strategy here on this side of the table, we can make laws.

And I don't see anything problematic right now with the Oregon law that I see in front of us that explicitly says when our personnel may not assist with things or may do things, and that if we craft it in a way that respects the rule of law and our constitutional obligations, that this is, in fact, something that we can do to, in fact, maybe even help the litigation of the state in a future action, is that something conceivable that could work?

I think it's something we can certainly talk about under Title 10, it's a little bit more complicated because that is the mobilization by the Federal Government. And so in that situation, our adjutant General is potentially getting a direct order from the President of the United States States.

So whether or not any law that we pass could put sort of a hurdle or put the brakes on him actually following that order, I think the situation would be relatively limited. I don't want to come up with hypotheticals publicly. I also think that there are potential risks associated with laws that are passed.

All of the EOs we can all agree are incredibly broad. They don't bother to ever define a term. Diversity, equity, inclusion is a great example. Nobody knows what that means, and they don't know what it means.

So I think there's lots of ways of coming up with fashioning, wording that defines things more specifically under our laws, and I think that's certainly something that we can talk about.

At the same time, they have made it clear, they being that the Trump Administration, that they will retaliate and they will threaten loss of funds, they will threaten lawsuits. And I'm not saying we should back down. I'm saying there's a balance that the Legislature will want to think about.

When you make those considerations, how much retaliation can we afford financially? Where do we draw that line? And then how do we fashion or wordsmith the laws that you want to create? Does that make sense? Is somebody laughing behind me?

No, I think it. I think it makes sense, Attorney General, but I also think that because we are a state that respects the rule of law, that we should engage in crafting laws.

And if those laws bring ire upon us, I think one thing I would say is that the state is already suffering and will suffer for many years to come because of the laws that the Congress has passed and this federal Administration has enacted.

So I also think we need to look at laws that will spell out the policy of the states as well as enact, will enable individual actors to make choices that are also lawful.

So I guess one thing I would say is that, you know, seeing House Bill 3954 from Oregon and knowing that, you know, we have this opportunity, we have special sessions and we have a regular session coming up with the speed with which this federal Administration acts, at times, is there a commitment and a willingness to look at these laws?

Because just as you guys have been successful, and I applaud you for being successful on getting some preliminary injunctions in place, I think the more supportive state laws that spell out what our values are will be important in the years and the actions ahead of us. So is this something that is worth engaging in?

Absolutely. You. I'm sorry to interrupt. You always have my commitment to that. I will let the Legislature make policy, and we will help you craft the law in a way that allows your policy to succeed.

At the same time, it's our job to make sure you're aware of the potential legal risks associated with whatever wording that you like. And you have had my commitment from day one, and it will continue until my last day to assist the Legislature.

I really appreciate that because I do think that in these times, it's actually have been the state attorney generals that have been putting up some effective roadblocks along with the courts. But, you know, we have to keep moving forward and be more proactive.

I think when I saw this bill in Oregon, as we were looking at it and seeing what was happening on June 7th and June 14th, you know, again, as you said these Executive orders are broad. We didn't actually know what the implication of these orders were.

If there were actually going to be a Hawaii National Guard deployed to California. I think the more laws we have that can protect our people and spell out what our values are, that's not going to be important for you folks moving forward in your litigation.

And one of the reasons why I asked why, whether Duke vs. Kahanamoku was U.S. Supreme Court law or state Supreme Court law, we actually do have state case law, state Supreme Court case law, interpreting the Posse Comitatus Act. So we know in our state that state constitution can have stronger protections.

So we need to extend those protections to the extent we can. Of course, I understand preemption and supremacy Clause. I get that that might over overrule us at some point, but at least within our boundaries, we can enact laws that are supposed to adhere to higher constitutional standards within our own state.

So I really appreciate that you're, you're willing to kind of work with us on this. I don't want to lose sight of the fact. And it's three o'clock. Members, any questions?

Following this line, I just wanted to clarify. Chair Bellotti, the Oregon. You, you said it's a bill, but you've also referred to it as a law. But it's just a bill and it's only passed the House. It hasn't passed the Senate of Oregon. Is that correct?

I need to follow up on that. But it's appeared that it was passed and I would need to follow up on that.

It passed the House, House and the Senate.

We need to follow that up.

Got it. Okay. And then thank you, Attorney General, for. Because what I was hearing you say was that we as legislators had to be mindful of the potential retaliation that could have financial repercussions.

But I'm sure that the Governor also has to be mindful and yet he and you and you make a decision to fight righteously and brilliantly. So thank you very much.

And you're right, we do need to go back to our constituents and really listen to the people and to hear what they're saying about the way they're feeling, especially around these immigration concerns. So many of us are descendants of immigrants.

And I feel like there's a lot of our, our state is different, I think, than many others for the experiences of the Japanese Americans of so many different immigrant waves that have come. I think it would be really, it would make sense that we listen to our constituents and we craft laws that reflect that sentiment.

I agree with that. And what I have tried to do since our litigation has started was I have met with the House leadership and the Senate leadership and the Governor trying to provide all three groups with the information.

So again, that from a policy perspective, those of you where that is your Kuleana, not mine, can help me make those decisions. I can tell you this is what the lawsuit is. These are what the potential risks are. These are the potential benefits. And let the policymakers help us decide where we go in full throttle.

Thank you. And we are partners in that endeavor because I think the Legislature has allocated special funds so that you can Fund the fight.

But also the fact that you raised the financial concerns, that does for me when, when you talk about retaliation, financial retaliation by the Trump Administration, it does make me think the only way we can protect ourselves from the pain of that is to raise our own revenue. That's the only protection we're going to have.

And so what I'm hearing as a representative in the legislative branch is that we need to do, we're the only branch that initiates the raising of revenue. It starts with U.S. legislators. And it's really important that the people of Hawaii understand that it starts with us.

And we need to see that through if we are going to protect ourselves from those federal, you know, those punitive measures, those financial punitive measures.

I agree.

Can I clarify? Vice Chair, thank you for the question. You are right, Oregon, only the Oregon House voted on this bill, so it's not a law yet. But I think question still stands that if this were to be implemented, what would that look like?

And I think that's still a fair question to be posing to some of our briefing participants. I don't want to lose sight of the fact that we have one more briefing participant here with us, Deputy Director Jared Radula from Department of Law Enforcement.

And I really wanted to have Mr. Radula here because his responsibility here in the state would be with state law enforcement.

And that during the periods of time when we particularly have seen a lot of activity here on Capitol grounds for protests, it would be in fact, the Department of Law Enforcement that may interact with our protesters, with our residents.

And so I wanted to give him the opportunity to talk about what his role, the role of his office is with respect to during these periods of civil protest and civil unrest.

Thank you very much, Chair, and good afternoon to the Members. I'm Jared Redulla. The Deputy Director prepared a short statement. So the Department of Law Enforcement was created in 2024. It has approximately 350 law enforcement officers across the state, mostly based in Honolulu.

The Legislature, in its creation of our Department, provided our Department with full police authority, the authority to take law enforcement action across the state. It does not matter if it's on city or state jurisdiction. This said, you also in statute, provided us with our mission.

The number one mission of the Department of Law Enforcement is to maintain the public peace. And its second mission is to enforce the law. Now, unlike the National Guard, I need to draw a distinction that the DLE is solely in the Executive branch of government.

And we take our direction solely from the Governor, through the Attorney General and through the Director of Law Enforcement. We do not take our orders from the federal Administration. Our role in periods of unrest is to execute our mission to maintain peace, to maintain law and order, and to enforce the law.

When it comes to peaceful protests and the period that we saw at the beginning of June, our focus was on balancing First Amendment expression with public safety. We go through an extraordinary amount of planning and for those events early in June, there was an extraordinary amount of planning. We worked very closely with the Honolulu Police Department.

There are typically three phases in event planning, planning the event itself, execution, and then a review of our actions. When we planned for those events in June, there was a heavy focus on risk planning and management, as we do for any event, protest, rally, those kinds of crowd type situations that we might see here at the Capitol.

We create a law enforcement operations plan which looks at the resources that we perceive that we need to have in place. Resources such as additional police, traffic control and ways to manage large crowds. And then we look at contingencies where what could happen at the event? Could there be an attack?

Could there be issues with movements of large amounts of people, traffic control, and then we carry out that plan. I also want to draw a distinction. When we work out these plans, we do not look at the content of one's speech. Disagreeable speech is still protected First Amendment activity.

Instead, we look to see how we can protect those who attend the event and our historic facilities here in the State Capitol district. I want to be clear. Our Department has no federal immigration enforcement authority. We do not aid the Federal Government in its immigration enforcement policies or in its operations.

Thank you for allowing me to make a statement.

Thank you, Mr. Doula. Any questions? Go ahead.

I have a question. So we've heard of such. We've seen maybe in the news, situations where there are masked. They may be Ayes agents. It's sometimes hard to tell because there's maybe no badge number, no clear badge, their masked.

What Would the protocol be for you as a law enforcement officer for the State of Hawaii when you encounter, if you were to encounter this kind of scenario where they're unidentifiable, there's no badges, no way to identify this person that they're now pursuing. They're pursuing people who look like state residents.

Do you have a duty then to keep the peace and kind of get in between them? Say, what are you doing? You're armed and masked. What are you doing here? Is that your duty to engage with the armed, masked, unidentifiable people?

So thank you for sharing an important question. So it really is a fact specific type situation there. Generally speaking, behind the scenes in law enforcement, we go through a process known as deconfliction.

What that does is it tells us in our operational planning what other potential law enforcement agencies are also going to be on the playing field so that we don't have conflict between agencies when there are large events or when there are situations where different law enforcement officers, me including different jurisdictions and different levels of government, law enforcement officers at the same location or the same event or even potentially involved in the same investigation, we go through the confliction so that we don't have a problem like that.

So typically beforehand we already know who the other officers are. There have been discussions and I've seen the public discussion over law enforcement officers in masks. And I think that generally speaking, the law enforcement community, when we're out in public, we understand that at least for our staff, masks are generally a no, no.

There may be specific reasons. One might wear a mask, but they're generally a no no. And so is military type gear. Camouflage uniforms, for example, are generally a no no.

And covering up any form of identification.

Correct. In fact, it goes against our operational planning and our operational protocols to cover up your identification.

And that's the conversation. What I'm hearing you say is that is a conversation you will have with Ayes. If you hear rumors that they're coming in, you would have that, proactively have that conversation with, with the Ayes agents to say don't.

If you try to deputize a civilian contractor, for instance, and they don't have any form of identification and they're, they're wearing military gear with military artillery that you're going to protect the citizens, the presumptive citizens.

We would certainly have that conversation beforehand and if for anything else, safety for everyone. Okay, thank you.

Mr. Jill. I really appreciate you taking us through your department's process of planning, execution and review. And some people will say, well, why Are we even talking about it? It's working. Well, I think it's really important for the public to hear and understand that our government is going through these steps to protect the speech.

And as you said, it doesn't matter whose speech it is, because it's really about protecting the First Amendment rights of anybody who wants to peacefully demonstrate. I want to shift gears a little bit because I also understand Department of Law Enforcement. Do you folks have jurisdictions over the courts? Do you have folks in the courts?

We provide law enforcement support to the judiciary, yes.

Okay. And I know that this isn't a fair question. It's going a little bit outside of the scope of what we had talked about about the protest. But because we have been talking about immigration enforcement.

Have you seen any activity of Ayes agents in our court systems of picking up individuals from our courts or anywhere where we might have folks detained?

So we've had discussions with the judiciary over it. I've not personally seen Ayes officers in our courthouses, but we've had conversations with the judiciary to ensure that we're prepared in case that were to happen.

Okay. Can you speak to what the outlines of what those policies and procedures are? I'm just interested, actually.

Yeah. So generally speaking, if so, Ayes has presented guidance to its own law enforcement officers in terms of how they operate in and around state courthouses. So their officers already have some guidance. What we've sort of outlined to the judiciary is that I want to be careful because I don't want to overspeak.

I can speak to what I know, which is essentially, we've asked the conversation is to try to avoid interaction at the courthouse, if at all possible. You know, what goes on outside the courthouse on the public street is something that we can't control, but to avoid courthouse interaction where at all possible.

And to that extent, again, we aren't actively participating in immigration enforcement. So they'll come, they'll take care of their business in accordance with their own policies. But we're trying not to have conflict at the courthouses.

And we have, in our own conversations, expressed the need to make sure that our judiciary and our courthouses are safe places because we want people to be able to access judiciary services.

Do you have copies of the Ayes guidance, or that's something that they keep to themselves, or do you share that amongst law enforcement?

I don't have a copy. I've seen the guidance, but it's an ISCA type paper, so I may not be at liberty to.

And again, no reports since January of any interactions at any state courthouses, to your knowledge, but it's something that we could also follow.

We've had discussions. I've not seen it personally.

Okay, thank you.

Members, any other questions? All right. This has been a conversation that's actually been fruitful and leads us to different kinds of conversations likely, but. So I really want to thank the participation. You know, Mr. Iha is here. Can I give him the floor? Was there anything that he wanted to speak about?

I don't have anything to add. Chair.

Okay.

Craig IHA is a supervising deputy who represents DLE and DOD, so he covers both of those.

Okay, so he's the one that we should propose legislation to? Yes. Okay. That's why you're here. Mr. Yeah, that's why you're here.

Mr. And he has to personally draft it.

I do really appreciate the information that you've shared with us. I think this is an important endeavor to get information out about what, you know, the authorities.

We operate under, the good work that the Attorney General's Office is doing in coordination to put up roadblocks and to make sure that the rule of law is respected in this state.

I look forward to the continued conversations of perhaps with the adjutant General so that we can get more information about what is happening in other states and what are the policy considerations for us as we move into potential special session or regular session. On that note, thank you all. Thank you to the public for joining us.

And again, materials will be on our Committee website. Please give us a day or two to process it. We'll get that information from Mr. Day, and otherwise we are adjourned. Thank you. Thank you.