 Thank you, Mike. Welcome everybody to a joint committee hearing with General Housing Military Affairs from the House of Representatives at the Vermont State House and the Senate Government Operations Committee. We are here today together as a group to hear from the National Guard and from some advocates on the issue of what is the role of the National Guard, the Vermont National Guard, and the interplay with federal federalization when it comes to incidents on domestic soil. And this came up as a conversation piece and a desire to hear from the Guard as in response to some of the incidents that have been happening in the Northwest in Portland, Oregon to be precise, where we have seen public dissent being handled in a way that perhaps is not what we would like to see and certainly don't want to see from our Guard folks. So I wanted to start off today by welcoming Senator White and her committee to this hearing, Senator. Thank you and thank you for having us. I think this is a much better use of time and resources to have us all meet together rather than to have us ask the Guard and the witnesses to come and testify before both of us and say the same thing. So thank you very much for setting this up. And with that, I'm going to let you take it away and do because I'm used to moderating or facilitating a much smaller group of people. We only have five people and so I'm not used to doing all these people. And just so that people know I have to leave at four o'clock. I don't want anybody to be offended if I leave, but I'm meeting with a very unhappy constituent and the Agency of Transportation who's coming down today to meet with him. So I will be leaving at four. Thank you. Great. Thank you. And so general night, I see that you have a crew of people with you. I think the way that I would like to see today's meeting go as general, if you could do with you today, I see in a separate box we have Colonel Roberts. But if you could introduce the folks that are with us today and then what I would like to be able to do is let you make your main statements and conversation. We may have questions and committees and just maybe not have it so that it's so that we interrupt the general throughout the time that we're here. But just maybe let's but before we get to the next witnesses, maybe we can have a Q&A after that. And then we'll move to Mr. Stanek and then Mr. Ziplinski and we will wrap up. We have the Zoom until 4.30. So with that, general night and company, welcome. Thank you, Mr. Chair. Appreciate the opportunity. Welcome, Senators, Representatives. Mr. Stanek, Mr. Ziplinski. So with me today, I've got Mr. Ken Graves, our Deputy Agent General, Colonel Justin Davis, who's our State Operations Officer, Major Kurt Kaplan, who's our Judge Advocate General, Director of my Joint Staff, Brig. General Dave Manfredi, Colonel Randy Gates, who's our Director of Military Support, and Larry Dome, he's probably off the camera. Lieutenant Colonel Dome is the Executive Officer. So I've asked these folks to be here because I know a little about a lot. There may be some questions that come that I don't have an answer that would be perhaps a great enough specificity. So I've asked for some subject matter expertise to be here. Central to that is Colonel Gates, especially when I look at how the guards being used with COVID response, he is integrated with the Department of Emergency Management and the State EOC, and speaks with Director Gorderman probably on a daily basis of coordinating response there. So any questions before I jump into how we're used? So it's probably important to know how we're built. So as a guard to 54 states and territories, all of us work for our respective governors. And normally, if we were to be called initially of interstate active duty, and we do it for weekends, we do our annual training, and that's under Title 32. If centralized, if mobilized, for instance, to deploy in support of combat commanders, we would go under Title 10 of U.S. code. So it's important to remember we have supportive dual mission. First and foremost is response to the governor and to the citizens of Vermont. And then when mobilized by the National Command Authority, we prepare for our federal missions. And that's where the vast majority of our funding originates. So as an example, our guard, even as a small state, just for our pain allowances, we bring in about a pretty close to $130 million of federal payroll every year in the form of drill annual training. And of course, we've got a pretty robust full-time population with federal technicians, active guard reserve, and civilian technicians, Title 5. Those are civilian technicians that we work for the guard. They're not a uniform. So as far as how we are mobilized, that falls under Title 20 of Vermont statutes annotated in Section 601, 606, and 641. And I will get into the specifics of it. You can certainly look that up. But it's, we work for the governor, first and foremost. Even if we were to be called up by the governor, we will always be in a support role. That's what the National Guard does. We are not the on-scene commander. If it's a fire chief, if it's a police chief, you know, if I look at our civil support team, as a for instance, if they respond to unexploded ordnance, a bomb threat, or as they did a couple of years ago for the person that was manufacturing ricin, you know, a biological agent, they are still under the supervision and authority of the civil officer in charge, whoever is in charge of the on-scene activity. And that doesn't change. So if we were to look at for us, our role when it comes to civil disturbances, I think that's probably where a lot of the discussion is going to go. I see it as very straightforward. Our role, our supporting role of civil authority is to preserve life, protect property, and maintain public safety. That's it. It's pretty straightforward. That's our job. It is always in the background. It is always in support. Can you follow us to that, Mr. Chair? Well, I think if you want to move it, you know, move the conversation to one of your folks who can talk in more detail just about, I mean, let's create this scenario of what we're talking about here. You know, we're talking about a situation where we saw armed individuals with the uniform on, really take to the streets to quench a protest. And I think the question here, I don't know if it's a concern, but I mean, of course it's a concern. That's why we're here. But the question is, under what circumstances would the guard be called up for something like this? And we can then talk about whether it's likely or whether it's possible or how it would work through the system that talks about what happens here. I mean, we can go way back in time and we know the incident at Kent State stands out as a poor example of guard response to a protest. That clearly hasn't happened like that for a long time, not with the guard. But can you just discuss like, so here's the situation where the Department of Homeland Security has a crew of people. Are you in the same circumstance? Can the President federalize us, federalize the guard in a way that would have that happen? So, I'll answer part of it and then I'll probably defer to Colonel Gates. There's a very rigorous process that goes into requesting guard support through the State EOC and then Major Kaplan. We'll talk a little bit about actually federalizing the troops and that changes the dynamic altogether. For us again, it would work through the process. The governor would authorize true Department of Public Safety, for instance, if there were not a protest but a riot. We would do the support would come. We would have a quick response force that's available within four hours. How many? Without 125 soldiers and airmen available within four hours. So, that would be in case of riot. I do this, give you a nice perspective. We are the resource of last resort. So, we're called, it is not protest. It is to me, it's something vastly different. Even then, it is all very situational. And we are again taking our direction from an on-scene civil authority. And that would be in our case in Vermont, that will be under State Act of Duty. And that's funded by the State of Vermont under the authority of the governor or the on-scene commander requesting the assistance. So, Colonel, you might talk a little about the Federal 10 where we can be federalized and what that does for the gene commander. Certainly, sir. And all members of the National Guard are duly sworn as officers or enlisted in the state military force. Also, they are reserves of the Army or Air Force. And so, their status as reserves of the Army or Air Force, they can be federalized by the federal government because they are an operational reserve for the federal government. If they, if the federal government does do so, pursuant to various federal authorities for mobilization, for contingency operations, for insurrection, if they do, if the federal government does do that, then they go into what General Knight had already referred to as the title 10 status. At that point in time, they are not functioning within the chain of command of the Vermont National Guard. They are actually activated reserves of the federal military. And then they will be answering through their federal chain of command. At that point, Ray, you'll talk a little bit about the process or your question of support. Yes, sir. So, good afternoon, Mr. Chair. This is Colonel Randy Gates. I'm the Director of Military Support. But what that really means is I'm chief liaison to the Department of Public Safety for the Adjutant General. And I work closely with the Vermont Intelligence Center as well as a leadership within the Vermont State Police. So we would get, we would all concur that something is arising in Vermont that would require the Vermont National Guard to start planning for the eventual call-up of our soldiers and airmen. It's important to remember that our security capability lies both in the Air National Guard and in the Army National Guard. And we have plans that are in place that we've developed over time that we would decide we would advise the governor as to whether or not we would have to bring people on to augment state police or local law enforcement. One of the things I think that's important also remember is we would, people would know that we are the National Guard. I mean, our neighbors know that we're in the National Guard and they would see the National Guard. A lot of it's being confused in a lot of people's minds when they see all these uniformed people. Portland, for example, it wasn't the National Guard that was federal troops. But because there's such a wide array of, you know, uniform looking things that we have in different patches and things like that, we, if we were out there in the community, people would know that it's the Vermont National Guard protecting them. I think that that was important to point out as well. When you say, when you say, actually I have a question from Representative Triano and then Senator Polina. Thank you. So that was one of my questions, Colonel. It seems to be that a lot of the confusion, consternation surrounding the issues in Portland or the situation in Portland was that those troops were not, that individuals and organizations were not able to identify those troops and who they were and exactly what their mission was. So you did just clarify that for us. And I think that that's an important piece that Vermonters would know and recognize that the individuals or the troops that were deployed would be our National Guard. One of my other questions was, would it not be the governor that would be able to enact the National Guard if there was a situation in the state that warranted some sort of police action or intervention in that respect prior to any federal deployment? Yes, the governor would have to make that decision as to whether or not he would bring us on. I mean that's every dollar that goes to pay a soldier comes out of the state treasury and you'd have to make that decision as to bringing up perhaps as a preemptive action in station. Some of our troops are airmen at their at their at their armories. That decision would have to be made and I'm sure he'd be taken advice of you know all of his agency heads like Department of Public Safety and of course the Adjutant General. But that would that's clearly a decision that the governor would make, yes. So my last question would be is the is the Vermont National Guard doing riot training? I was deployed as a regular army troop to the resurrection city riots in the spring of 1968 and we had been training actually for riot control prior to that and you know when we rode into the Washington D.C. on armored personnel carriers with live ammo you know we kind of knew what well we we did know what we were doing and what we would be facing but so does the Vermont National Guard do any riot training? Yes we do and we actually just redid our civil disturbance training manual here in the Vermont Guard back in July. We have both trade expertise within our ranks and then we have expertise that comes into the ranks from outside jobs. We have a large number of law enforcement expertise that that are soldiers on the weekend but county sheriffs and deputies and town police and things like that. Most of our capability is on the air guard side. We have a large security force that guards the base anyway over there in South Burlington and they within our hierarchy we've tasked them with being the lead for civil disturbance hence they would have more training and then our other large commands sort of would augment that but also do some training. We're going to ask for a minimum of four hours a year of training that's mostly how to move formations and recently we actually had six soldiers from one of our major commands take part in civil disturbance training at the Vermont Police Academy it's about a month and a half ago. Okay so yes short answer yes we do do training and lastly it's impressive to see a table full of brass such as this sitting around in our committee thank you very much all of you. Thank you sir. So Mr. Chair just got a quick point of a clarification when it comes to our role and responsibilities and actually our authorities now that's major capital and to speak a little bit about what it is we can do when it comes to responding to civil disturbance. We can talk about a little bit about that. Certainly sir. So there is authorities to be called out in cases of riot however the Vermont National Guard has no law enforcement authority they don't have any arrest powers anything like that that's a power that would be granted by the legislature and in various states some states that power exists Vermont that power does not exist so Vermont National Guard does not have the powers of police as General Knight already said they would be in an assist role to call riot it called out by the governor however they would not be a policing agency they wouldn't be charging anyone they wouldn't be detaining anyone unless they were specifically directed or requested in assistance of a civil or okay thank you represent senator Polina. Thank you thank you and thank you folks for being here my question actually is partially answered a couple minutes ago I think Mike is my what I wanted to do is be clear that it's the governor who is our essentially our commander in chief of the National Guard we talk about we hear about federalization of the guard and I want to be clear it's sort of a question I guess I think I know the answer now that while we might hear about federalization of the guard the guard can't be called out unless the governor approves the calls the guard out so it's up to the governor to make that decision and I thought I understood that the governor's decision would have to be made with the consent of the senate so it's going to make sure we're on the same page if that's your understanding as well that it is up to the governor not the president for example the federal lot to call out the troops and that the governor would need the consent of the senate to do so this is this is major capital and because they're the National Guard the federally funded National Guard is a reserve of the army and air force they can be federalized for by the federal government they can be called out and depending on the authority there's various federal authorities for doing that some of them require the consent of the governor some of them do not and that's that's established in the federal statutes in title 10 as well as prior decisions of the U.S. Supreme Court thanks so can you list that off I mean I you know the question about you know the use of if if if the president you know tries to use the insurrection act which was talked about this past summer how does that work with how does that work with interplay between the governor's the president saying I feel that there is something at risk I feel that the government is at risk that there's some form of that there's a risk that's greater than than normal and I'm kind of soft playing what the insurrection act would be used for but but what are some if it's not that then what are some of the other things that that that overrule the governor the governor's power to call up what would the what would the president or the federal government have the right to federalize you on domestic soil for on domestic soil it would primarily be insurrection act on foreign unless there was a full scale invasion then a full mobilization of the national guard by a by act of congress and then there's there's partial mobilizations under emergency declarations for example our current operations as you're probably aware there's not a act of congress or a declaration of war but we've been operating under the emergency declaration that was made by president bush in 2001 and continuing on and accepted by by this successor president obama and then president trump have still been using that same emergency declaration for the continued international operations and that's a method that they can use for mobilization there's limits to that on the number of overall soldiers there's a limit to the number that they the length of time they can mobilize those soldiers but they can mobilize it without without consent of the governor and with the people who mobilize you're talking about 125 people um are sort of on call for something like this for monsters they folks and we know that the guard has people who are we missed the beginning of that Mr. Chair um I'm sorry I've got everybody seems to be having a little bit of a connection problem the questions I had is it seems that you have a force I'm going to turn my camera off here it seems that you have a force of 125 people who may be ready at any time to respond to something within the state of call up by the governor did I hear that correctly let's go again so we have these these entities called national guard reaction forces and those can number up to 250 and then within those organizations we've allowed the commanders to identify separate quick reaction forces I actually gave the adjunct general a bad number a minute ago that's about a 50 person um um element if you will so within those response forces there is a force that would arrive sooner uh within four hours and be ready to be mobilized to wherever they're asked to go by the governor um but they they are they are identified uh within our commands as being the ones that that before anybody else they would have the expectation of arriving first and being prepared uh to to move to wherever the governor feels is necessary and is there ever a circumstance where if a guard member is um say on the streets of of any of our towns um in as this as this kind of force where they are unidentified individually like we saw in portland with the dhs no they would be identified for the uniform and are you informed either on the air side or the army side says air force or army and it has their last name and you would have to state it um perhaps uh unit patches uh when you're in the guard you kind of know what patches belong to which command um but they would be identified there would not be um there would not be any attempt to hide their their name there wouldn't be any attempt to hide hide them behind uh dark advisors and helmets and things like that people people would recognize them we're of the community and they would see that okay more questions for the guard at this time i mean i think we're just getting a real overview here of of of how they view this i i hesitate no i'm not going to hesitate to ask um do you have someone there who can really give us a quick thumbnail sketch of the insurrection act and what it means so i mean if if i didn't know better i'd say oh is this poem posseful metatus is this i mean the insurrection act i believe is from the early 19th century um do you have a historian who can who can tell us exactly what the insurrection act is and and and how it gets called up well mr. chair well this is general night while i am the historian i am not an attorney so i will turn that over to major cabaret certainly that's a insurrection act it dates you know it dates way back uh we can talk whiskey rebellion we can talk whatever you want but the in its basic legal structure it's a determination by the chief executive of the united states that that an insurrection has occurred and that would be some sort of larger action against the government it's not defined in the statute it's been defined various ways by the the courts over the years as to what an insurrection is but the deference of that's primarily given to the the president as the chief executive as far as when an insurrection occurred it also is for enforcing the the orders of the of the united states so the pro historically the last time the insurrection act was used was the 1960s during the civil rights movement and when i say during civil rights movement it was on behalf of executing the orders of the u.s supreme court so primarily dealing with integration in the public schools uh integration at the colleges so they were there assisting in ensuring that the racial integration of both secondary schools and public institutions was conducted peacefully so that that was the last time with the 1960s the insurrection act was utilized any further questions for the guard right now senator clarkson thank you thank you all for being here i guess um channel night one of you well one of you use the word riot which i find you know is is that defined somewhere they've said that 125 were available in four hours in case of a riot um and obviously at the direction of the governor is is is riot defined and if not is it a subjective term i mean how how's it defined and and what are what what what would trigger i guess those are my questions yes ma'am so a riot would be an example but that qrf exists to support in any civic emergency whether it's a flood a fire um you know whatever the governor or on-scene commander requests we would do a quick mission analysis and assign that mission to that quick reaction force but as to the determination of when a riot is is a riot that's not something we do that's something that the on-scene commander a law enforcement official would make that determination you know that's your definition there's not there's not a statutory definition entitled right but the determination would be made by the by the one calling them out and that would be the executive the governor so there's no statutory definition of a riot nothing i won't grow up in title 20 anyway there may be in in say title 13 for purposes of a criminal yeah okay thank you representative kalaki thank you jar i just want to make sure i understood or that if you're called to help with these things the guard cannot arrest people or take people and put them in vans and bring them to jail is that correct or if the police department asks you to do that can you then do that i think we can transport them so once they're placed we have to do a little digging on that sir we do not make the arrest we may be asked in support to conduct a transport of somebody we're not the person affecting an arrest so does that just so i understand so that means you couldn't pick people up off the streets and move them into a van but you could drive them yes sir okay thank you okay further questions all right i want to take the opportunity to turn to ed stanek and if you could just introduce yourself and tell us you know how you're how you're interested in this in this issue and you provided testimony with us that is posted the link is posted in our chat box it is also on our website for today's hearing so if you can unmute yourself it's easier on your end than it is on mine um uh welcome to welcome to general housing military affairs and senate government ops thank you chairman stevens i hope am i muted still no we can hear you okay thank you my name is ed stanek i'm a resident of barry city um over many years i had caused to perform legal research on both the constitutional bases and federal and state legislation relative to the role of the national guard i thank the committees for this opportunity to provide you with my perspective on these issues um the reason i have concerns are the comments made by president donal j trump on the public record over the last several months uh intimating uh that there were certain circumstances under which uh he would intend to federalize and to use the national guard uh as he has indicated i wanted to indicate early on that i am not anti national guard and i am certainly not anti law enforcement uh in another capacity i served as the past president of the remand state employees association and our members included many members of the national guard full-time employees as well as law enforcement officers so i have no bias here against the guard and the law enforcement officers i respect the work they do for the community and i also want to note that my brother's a retired law enforcement officer in an urban area who spent a lot of time at ground zero after 9 11 uh as the chair indicated i prefiled seven pages of testimony and i'm certainly not going to read all my testimony to you i just wanted to uh comment on some highlights of my testimony uh my purpose of the purpose of my testimony is threefold number one to assist the committees with a perspective on the erosion of state authority over the remand national guard by the remand by the federal government perhaps in disregard of constitutional restrictions number two to articulate concerns for the potential use of the matt remand national guards to suppress rights of assembly and free speech which are protected under the remand constitution chapter one and number three to urge the committees to deliberate on actions that the general assembly may take in collaboration with the governor to forestall suppression of the fundamental democratic right of dissent through the possible illicit use of the remand national guard by the executive branch of the federal government during the period specifically between november 4th 2020 and january 20th 2021 and as i said i'm not going to read my pre-file testimony but some highlights on pages one and two of the of the pre-file i provide the readers digest historical overview of how laws have evolved in this country regarding the use of the national guard which we in other contexts recognize as the militia and if you get an opportunity to read my testimony which i hope you do you will see how there was this erosion that took place as to who controls the militia there are some references which i exerted in my testimony to the specific provisions of both the federal and the state constitution and i encourage you to read those provisions side by side to see exactly so to speak who's on first and who's on second in terms of what they can do this takes back to the original documents in the constitutions but after the constitutions are ratified congress was empowered to enact laws as to how the militia would actually be implemented and again to make a long story short you will read um that month not much happened uh on the congressional front during the 1800s but beginning in the 1900s and running from around 1902 through 1986 you can see in the references to the enactments how the powers of the governors were curtailed and cut back uh I respectfully disagree with the perspective offered by the members of the national guard as to exactly what powers remain for the governor of vermont it's really not that simple i mentioned in my testimony that i did not include references to case law there isn't that much case law surprisingly in either federal district courts the circuit courts or the supreme court but on page two of my submittal i mentioned a us supreme court decision us v miller decided in the 1930s and it's interesting in a sense that it refers to the second amendment which most of us think of in terms of gun rights so to speak but the second amendment has a wall in terms of militia and it's a very interesting supreme court decision that talks about the roots of the militia now known as the national guard how it should be firmly anchored in the communities from which those guard members come page three of the testimony are those excerpts from the constitutions pages four and five actually pages four five and six i provide you with excerpts from the actual federal statutes and the state statutes with regard to the guard i provide you with the actual language of the oaths the oaths that are taken by the members of the guard and the oaths that are taken by the officers of the guard and i urge you to read that language carefully the phrase or the term commander in chief is used in many different fashions in both the constitutional and in the statutory provisions and i mentioned that at this juncture because you know it ties in again with that oath that they take to who is the fidelity owed in the final analysis i guess at the bottom line on page five i provide you verbatim with the actual language by which the president united states can call the national guard into federal service excuse me on page six of my testimony i took excerpts from the vermont national guard website wherein they state their mission statement and they provide us with facts about the strength of the national guard the national guard certainly knows it's better than i do but approximately 3700 people belong to the national guard which is a combination of what they call quote-unquote traditional guardsmen and women and then they have 1121 full-time employees you might have noticed the recent media reports a couple of months ago about how the pentagon is calling into active service approximately 1000 members of the vermont national guard at a level which they said has not been seen in the last 10 years and starting in a few weeks running through 2021 approximately 1000 members of the vermont national guard will not be in vermont that begs the question about what happens if the president decides to call out the national guard when the vermont national guard isn't here or their force is depleted uh i will just mention the fact that we all saw uh in the news what happened i believe it was in wisconsin when the president moved to bring a national guard troops from other states he brought in troops from three other states uh to interact with the citizens of wisconsin on page six of my submittal i discuss what i call a dilemma i'll just read you a paragraph or two over the last several months president donald j trump has made numerous public statements suggesting that he may utilize military forces as well as other federal agents within the united states to address what he sees as quote-unquote anarchy treason and insurrection the president has asserted that he believes he has unconstrained powers to do that the apparent criteria based on his own comments to make such action or take such action includes threats to federal property and civil unrest in cities which have democratic mayors that's what the president has said of the criteria i asked that i'd be allowed to stipulate to the committee is that my summary summary of his testimony of his representations are accurate but if necessary i will supplement my testimony with actual documentation of what he said as the basis for calling out national guards in addition to an array of other powers granted to the president some of which i summarize in my submittal there's 136 other quote-unquote emergency action authorizations throughout the united states code that the president can take as he sees fit in addition to that the brennan center for justice has identified approximately 50 presidential emergency action documents which no one has really seen even congress hasn't seen these and again i won't go into great detail but in my testimony i provide you with a link to the brennan center so you can read about these 50 unseen presidential emergency action documents by which he can act vermonters have assembled over the centuries to speak at on the vast range of issues oftentimes they have assembled at federal properties such as the federal buildings that house the judiciary and other agencies across the green mountains it is reasonable to assume that they may do so in coming months should there be disputes associated with the tabulation and the results of the national election for president vermonters are not sheepish about standing up for their rights so one of my conclusions what can be expected should the vermont national guard be activated under such circumstances as president trump has threatened what actions might be taken by the general assembly in collaboration with the governor to forestall a confrontation between vermonters the guard acting at the behest of the president to suppress rights extended to other vermonters under chapter one of the wrong constitution to whom will the officers and the members of the vermont national guard owe their fidelity under their oaths perhaps committee members will be able to discern a tangible basis for an optimistic outcome under the circumstances i outlined above but i am less than optimistic due to usurpation of federal authority over the vermont lisha the vermont national guard it appears based upon the legal authorities i provided your committees with it appears that the last remaining substantive power of a state governor over the militia despite what the guard just told you the last remaining substantive power of a state governor over the militia is the ability to call out the guard during a quote unquote state emergency we now face a situation where an american president in his capacity as commander in chief may be able to turn vermont against vermont should he attempt what was once unthinkable in his quest to retain political power well history then reflect that the vermont national guard quote unquote only followed orders as the torch of democracy was extinguished so that's the highlights of my testimony there are lots of legal authorities referenced in what i filed with the committees including two very well done law reviews which i encourage you or your legal staff to take a look at they really drill down into what happened during the 20th century in terms of peeling back the powers of the governor uh and i encourage you to look at that because that's the lens through which i'm sure the president and his staff are looking at things these days thank you thank you ed um any questions for ed right now representative hango thank you um my question is for mr stanek what um what capacity are you speaking to us in today i see that you're listed on our witness list as a concerned berry citizen do you have a legal background are you representing any particular organizations in your testimony today i'm here today as strictly as a retired guy who lives in berry city uh i'm not an attorney i participated in the supreme court's four-year clerkship program when it contained the time to take the bar we found out we were going to have twins i needed health insurance i got a job with the state i stayed there for 32 years my specific experience in doing research about the background the national guard is twofold number one uh in the 1980s the issue arose about the increased use of the under hill firing range uh and the firing of the use of depleted uranium shells at the under hill firing range and a committee was formed by the towns of jericho and under hill and i volunteered to help them i used to teach legal research and writing um one of my students was the former justice maryland sculligan of the roman supreme court another one of my students was amy davinport the former now retired chief administrative judge of the superior court and another student not not tooting my horn here just explaining my background and another former student of mine was robert appell who became the defender general for the state of vermont i also used my legal research and writing skills um a few years ago when the question arose about the f-35s uh and their mission in vermont and again i did research to assist a legal team in that as it wound its way through the vermont uh court system up through the vermont supreme court so in a long-winded way represent that but i hope i've answered your question yes thank you i appreciate knowing a little bit more about you since i'm unfamiliar with your work um i do have a question though um it it's a parent that you don't feel that the president has the ability to call up the federal reservists who are um on reserve from the army and the air force so if we did have what is being called a riot in vermont um who do you suggest would be best suited to deal with helping our local law enforcement on that in that circumstance oh it's quite the opposite representative i believe the president of the united states has essentially court launch to federalize and to call up the use of each state's national guard in isolation there's really no constraints any longer over the president that's my bottom line certainly the governor has remaining powers but they do fit into a legal fimble the powers of the governor state emergencies when we had the hurricane uh the national guards called out so on and so forth but as far as dealing with what we would call civil unrest uh it really is court launch for the president of the united states so he or she can call out national guards at the drop of a hat thank you i guess i was getting a little bit different tone from your testimony but thank you i appreciate that senator white so given this you you said that you had some recommendations for um legislative action that could be taken that you thought would would curtail some of that um cart launch authority and bring it back under the control of the governor and the civil authority in vermont did you have i had not had a chance yet to read your report did you have recommendations in there for legislative action that could be taken there is no specific recommendation in my submittal because uh i really could not come up with a definitive basis in law but having said that there is that provision where the governor may act regarding a quote unquote state emergency my personal feeling is based upon the statements we're hearing from the president which are only going to increase as the as the coming weeks go on i think there might be grounds somewhere around november 3rd uh for the governor to declare a state emergency in a uh a preventative way if we have the president of the united states saying that the election doesn't count we can anticipate that vermontas will want to exercise under chapter one of our constitution the rights of assembly and free speech and if we have a president who's indicating he's going to suppress that in my opinion that's a state emergency so i think a creative interpretation of constitutional and statutory provisions would allow the governor to put the state guard uh in state service and therefore preempt any potential federalization of the vermont national guard by the president of the united states and again i'm focused specifically in that period between november 4th 2020 and january 20th 2021 i think that's a very dangerous time in this country a quick question for clarification back to um back to general night or or um someone else just just to be clear when we're talking about army reservists we're not talking about the guard is that right am i am i getting that right we could we get need to unmute here we go i'm sure there are they reserve of the army and that includes the national guard so we are considered a reserve of the army and the air force as is the u.s army reserve and the air force reserves the difference is our page derives under title 32 and a guard status of reserves aligned under title 10 which is where they're paid to rise from and that's under the act of duty officers so and just to be clear for us all title 10 is fed the federal um when you're when you're federalized yes sir okay and so um representative senator white i just um because of a bill that we're doing tomorrow i just happen to have a copy of the all hazards events under which the governor can declare a state of emergency and two of them are significant event and designated special event i i don't know that that would ever happen but um it does seem that the governor could could do that if he or she so choose well it would be he because the governor scott is our governor right now and would be governor at the time so just wanted to point that out ed before i move over to richard um so let me be clear let me just see if i heard what you were saying um as to your point you were thinking you were hoping that if necessary that that the governor in this specific instance of the time period that you're you're concerned about that the governor would um if there's rumblings that the god that the president may call up the and federalize our national guard that the governor would preempt that would stop that by calling them up in order to protect vermonters um in a traditional way as as the guard has defined in their traditional way which is to protect vermonters as opposed to um waiting to be federalized uh by the by the federal government in order to stop an insurrection as determined as decided by the federal government am i am i ballparking that at all um well that's generally yes i generally agree uh it isn't except for the last part of what you said it would not be at all my intent to have the governor call up the national guard to state service to preempt the use the legitimate use of the national guard by a president because there was indeed um a legitimate insurrection going on um i'm relating to the specific comments which are coming from the president president of the united states he's being very specific in what he is saying and he's ratcheting it up and so my suggestion a few minutes ago was as i understand the case law and i i have to look up the case but i'm pretty sure there is case law that says if if a national guard has already been called out for state service that that same guard cannot be called out for federal service they can't be in two places at once so if the guard is activated by a governor uh that's the priority and until that service is complete the commander in chief on the federal level does not have access to that national guard unit now i believe i'm correct in saying that i don't have the case law in front of me but there were the work cases that went into the federal court system in the 1980s some of you may recall in the 1980s national guard units were being sent by the then president to central america and governor of massachusetts and i believe governor coon in at one point attempted to prevent the use of the national guard for those purposes and in those cases i believe there was dicta that talked about if guard units are activated for state service they cannot likewise be used for federal service so that's a long way to respond sorry to take so long okay um all right with that um i'd like to pass the microphone to richard subplanski and richard if you could just identify yourself and tell us who you're affiliated with and what your interest is in this particular um at hopefully theoretical circumstance um uh that would be what more than welcome thank you for coming thank you uh chairman stevens and for the opportunity to talk to you uh hopefully it won't come to what we're talking about here and let me tell you i am a president of the vermont chapter of veterans for peace which is a national organization we have chapters in most states and some in other countries actually and i talk to the national office regularly and and tell them what we're doing here and basically we're trying to foster peace work for peace rather than go to war um just as a as a statement us has been at war for what most of the time since we were founded as a nation i think except for 20 years and we have some very long wars going on now so um with that as an introduction um i think i'm sorry i didn't um file any testimony i wasn't aware that we had a file testimony but i think you got a copy uh mr chairman of my letter that i sent to my senators and representatives in the legislature expressing the concern about what is happening um around the country and what might happen here it's pretty clear from the conversations i have and recent ones i've had with many of the peace and justice groups where i call the meeting together and we had about 20 people talking about their concerns not only with mostly with the racial considerations in the state and the least protected people here but there is a lot of anxiety and concern and hopefully and there's division i mean and what we have to do is something prior to when it comes before it comes to a riot or an insurrection there are ways to i think avoid this kind of thing and i thank the guard for filling us in on what they are there for but one of the things they didn't mention is that which is what we need to do is protect our free speech and rallies and protests are speech and we have to be sure that that speech is protected and one way to protect that is is to work ahead of time with protesters and i may be on a street protesting or rallying to make my voice heard and i want to make sure that i'm in tune with the law enforcement officers with the national guard that we've done everything to make sure that free speech is protected and that our lives are protected and of course that property is protected and it could mean something that the national guard the police march along with us as we go along to make sure that those kinds of disruptions do not occur one of the things that i think i think i told in my i'd hope you have my letter to my representatives but i met with the new police chief in montpelier brian peat and he took the place of donnie fakus who i knew very well because his he was a classmate of my son in the montpelier high school for all all those years and i wanted to meet brian peat make sure he knew who i was and make sure that we could work together to avoid any kind of situations that might come up when we're protesting or rallying and we had a good conversation and i think we know each other coming from and i'll be in touch with him when we're planning anything and i think that's the kind of thing we we ought to be doing with the national guard with whoever we can to make sure that that free speech is protected and it's not disrupted by other elements and i'm not sure what that can be but i think there maybe is something that the legislature can do in this respect i think that's probably all i need to say and i'm sorry i could follow this up with with certain things in more detail but if there are any questions i'd be glad to answer them thank you richard i i would be happy to send the email that you shared with us and have it posted that expressed your concerns in more detail i would be i'd be happy to do that and that'll be up certainly by tomorrow um and if there is further information you'd like to share then i would be happy to post it under your your comments as well um any questions for for mr ziplinski the the group that you're with richard can you just um i know you from being here in the valley and and and can you just tell me a little bit more about this group um here in central vermont anyway that that that you're affiliated with yes it's a statewide group um we are we're a small group and where most of us are old we're from the vietnam era usually um i served in the u.s navy um in 64 to 69 my brothers were in the national guard my uncle died in world war two so we have a history you know with knowing what the military is all about and the necessary function um but our group is you know mainly um trying to foster peace work for peace and the kinds of things we do we will protest certain things that we think this country shouldn't be doing if you look on our website and we do have a website you can see that we spend a lot of time going around getting petitions to stop the drone bombing and so on effort we feel that's a counterproductive effort and we spend a lot of time on that in our national organization also does um you know there is um a lot of civilian casualty and i think we make more enemies than um we make friends one of the things we were i particularly noticed was that when president trump uh designated the iranian guard as a terrorist organization i knew immediately that something was going to be up and on just before the end of the year or right at the beginning of the year uh general suhannami was assassinated by this country and what that means is if iranians did the same thing to us they wouldn't assassinate the chief of our joint chiefs of staff that's pretty serious business and i think that is not a good thing that this country ought to be doing so that's an example of the kinds of things that we're concerned with um we can talk about um we also one of the main things i'm working on right now is the juncture between the climate crisis and how much money is spent by the u.s military i mean we spend a tremendous amount it's going up to almost a trillion dollars per year it's about a three quarters of a trillion now and there's some that we can account for and uh do we need 800 foreign bases out in the country some of that could be used here to reduce our debt and to use it to help much of that much of the things that are not now taken care of for supporting our citizens here a couple of examples for you german stevens great thank you um any further questions right now i mean i want to um be respectful of all our time of course um so general um general night i wanted to thank you for coming in um and i want to i want to thank you for um opening yourself up to this conversation and for listening um and for sharing where the guard stands i think that it's clear that i mean one one um i think very difficult witness or very difficult situation would have been actually to have the governor here or um but we we there's not a place to put him on the spot in this conversation because it's conjecture and i think um but i do think the interplay between um what what our governor no matter who that is has in this conversation is very very important um because as as i think the guard was saying is that they respond to you know they are the people of the state of vermont and so i'm just curious um you know how that would be how that might work and i don't think this is necessarily for him today but um i do appreciate your your coming in do you have any final comments for us um as we head out today welcome to chair again i think i appreciate the opportunity certainly appreciate the dialogue um and not necessarily on this topic but i wanted to make sure that all the senators and representatives received the legislative summary i sent out a few weeks ago i figured i've been in a job for a year and a half and it seemed to make sense that would keep me you posted on what it is that your guard's been doing and lastly i'd like to thank uh mr. syplinski for his service um very much appreciated during a very challenging time in our nation's history but thanks everybody for the opportunity and uh look forward to uh speaking to you again all right thank you and i'll i'll make the the really the broad comment that i can't i'm very grateful as for montan as an american citizen that we can actually have this conversation in a respectful way and um i think that's a i think that's a right that all of us who are on the zoom page really appreciate and work for every single day so um i want to thank ed and richard for coming in and sharing their thoughts um this is i i've heard from more folks um over the last month or so on this issue on just wondering what the interplay is and so the information that we receive today is very important for for for us to understand and transmit to our um constituents when we can and i would like to you know thank ed and richard for caring enough to to dedicate your time um and your and your um really your lives to the you know making sure that this balance exists and that things remain as transparent as we possibly can have them and like to thank the guard for their service um it's a tough time for all of us and and i just appreciate that um you were able to come forward thank you to senator polina and colomore um and bre who are still here and and uh senator white and clarkton had to step off so thank you very much for joining in on on this conversation and thank you committee um for for uh listening in so with that um i would call this meeting i guess and do we have any further comments and i'm gonna offer one more time before we close up one more anymore room richard yes i i wonder if the national guard would be open to uh conversations with how to head off something like this and how to work together when it should come to that with the peace and justice groups and there are quite a few that are very concerned about how this will go um that would i mean we can arrange you know we can afford the um connection and it'd be up to you guys to set it up and see what happens i think you know their testimony today shows that they're i think they're willing to have a dialogue um knowing that there are other people who are telling the guard where and when to be where they need to be so i think there's a i mean i would hope that there would be a conversation but perhaps we can um you know we can mediate a conversation or at least try to see if that that can happen but i know from the guard members in my community um that they really do take their location seriously and and the fact that they're they're at home and would would um go to all ends to protect their local people yes thank you and and one other comment we could could also do that with our local enforcement officials like i did with brian p to get to know them know where we are know who we are and how we can cooperate and i think we're at the beginning statewide of having that conversation so um thank you all right thank you everybody um have a good oh wait a minute ed you're muted sorry there you go oh you're still muted i just wanted to thank you chairman stevens and chair chairwoman white for this opportunity for us all to have this dialogue i think once again this is a the 1001 example of how things are unique in vermont we can all come together and discuss these things in the civil way on behalf of what martin with the king called the beloved community we're all in this together so thank you very much for this opportunity and again you're welcome and thank you for sharing