Legislature(2017 - 2018)GRUENBERG 120
01/25/2018 03:00 PM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB152 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 152 | TELECONFERENCED | |
HB 152-ORGANIZED MILITIA; AK ST. DEFENSE FORCE
3:14:24 PM
CHAIR KREISS-TOMKINS announced that the only order of business
would be CS FOR HOUSE BILL NO. 152(MLV), "An Act relating to the
organized militia; and relating to the authority of the adjutant
general."
3:14:53 PM
CHAIR KREISS-TOMKINS opened public testimony on CSHB 152(MLV).
After ascertaining that there was no one who wished to testify,
he closed public testimony.
3:15:38 PM
REPRESENTATIVE BIRCH asked for information on "organized
militia": the origin of the term; its use in the context of
CSHB 152(MLV); and its relationship to the Alaska National
Guard.
3:16:10 PM
BOB DOEHL, Deputy Commissioner, Office of the
Commissioner/Adjutant General, Department of Military &
Veterans' Affairs (DMVA), relayed that by statute, the Alaska
organized militia is defined as the members who have volunteered
to serve in the following organizations: the Alaska Air
National Guard (AK ANG); the Alaska Army National Guard (AK
ARNG); the Alaska Naval Militia (AKNM); and the Alaska State
Defense Force (ASDF). He said that Alaska also has an
unorganized militia, which consists of all able-bodied
individuals over 18 years of age and up to a specified age, who
can be conscripted to serve in a dire emergency.
3:17:20 PM
MR. DOEHL stated that in answer to the question - "Who can call
forth the national guard?" - the typical incident is not the
mega earthquake, but the lost child adjacent to a city. The
goal is to get a vehicle out before losing daylight to help the
child; in that instance, time is of the essence.
MR. DOEHL restated the question from Representative LeDoux
during the 1/23/18 House State Affairs Standing Committee
meeting as follows: "Can the governor issue a standing
delegation to the lieutenant governor whenever he is
incapacitated, in order to call out the national guard?" In
answer to that question, Mr. Doehl relayed the following
statement:
The governor can delegate functions to the lieutenant
governor under Article III, Section 7, of the [Alaska
State] Constitution. A permanent delegation of
authority may raise concerns with Article III, Section
19, as that section gives the governor the specific
military authority as commander and chief of the
state's armed forces. Furthermore, the outer limits
of the governor's delegation of authority is a complex
question that would require substantial time to
address.
It is also worth pointing out that Article III,
Section 9, of the constitution provides if the
governor is temporarily absent from office, the
lieutenant governor serves as the acting governor.
So, in that event, the lieutenant governor would be
able to call up the guard in his or her acting
capacity. Now, the department notes that there is no
statute that specifically addresses that scope of a
standing delegation or authority.
If we look to our national model as an example of the
federal military, the chain of command flows. In
terms of who can direct military action if the
President is unavailable, it is not the Vice
President, it is the combatant commander that can
direct ... at least until the Vice President swears or
oaths in. So, if the President is in a place that
gets hit with a nuclear bomb, and he is unfortunately
unavailable, the combatant commander would direct the
military response until the Vice President took the
oath of office.
REPRESENTATIVE LEDOUX asked for a definition of "combatant
commander."
MR. DOEHL replied that the combatant commander is the four-star
general in charge of the responding military force.
REPRESENTATIVE LEDOUX asked if that person would have the
nuclear code.
MR. DOEHL responded that the state does not have nuclear
weapons, and the issue is outside his purview; however, his
understanding is that there is a means to address that
situation.
3:20:18 PM
REPRESENTATIVE WOOL commented that Alaska is not mirroring
federal law. He expressed that he was unaware that if the
President is killed with a bomb, the Vice President, who is the
second in command, would have to be sworn into office before
he/she could authorize military force; and until that happened,
a four- or five-star general would have that authority. He
asked if his understanding of Mr. Doehl's testimony was correct:
if the governor is incapacitated, the Lieutenant Governor is
automatically in charge without being sworn into office.
MR. DOEHL maintained that the question posed is undefined and a
difficult one under state constitutional law; after two days of
research, the Department of Law (DOL) has not been able to
provide a clear answer.
REPRESENTATIVE WOOL asserted that the determination of whether
elected leaders or the military is in charge in these situations
should be made before an emergency or catastrophe happens.
Consulting the military and consulting civilian authority may
elicit two different responses.
MR. DOEHL responded that the civilian authority always remains
in charge and responsible. The civilian authority may not be
the one to say "go send the High Mobility Multipurpose Wheeled
Vehicle ("Humvee") to save that child; however, it is
responsible for how that action is executed, its timeliness, its
success, and other consequences. He said that the civilian
authority may act quickly to make corrections if there is a loss
of trust and confidence in the military officer who directed the
lifesaving activity or failed to direct the lifesaving activity,
because military officers are virtually at-will employees. He
emphasized that the response addressed in the proposed
legislation is limited to lifesaving situations and does not
apply to actions against Alaskans.
REPRESENTATIVE WOOL asked for information on the number of
states with similar provisions [offered by CSHB 152(MLV)]. He
referred to Mr. Doehl's testimony during the 1/23/18 House State
Affairs Standing Committee meeting, in which Mr. Doehl specified
that the 72-hour timeframe [for immediate response authority]
mirrors the federal government's timeframe for a base commander
in a similar situation. He asked if other states giving
immediate response authority to the adjutant general (TAG) also
use the 72-hour timeframe or a different timeframe.
3:24:11 PM
CHRISTOPHER WEAVER, Lieutenant Colonel, Judge Advocate, Alaska
National Guard Joint Staff, testified that he does not know how
many states have statutes [regarding the authority of the
adjutant general] codified like proposed in CSHB 152(MLV); it
varies from state to state. He offered that some rely on the
Department of Defense (DoD) Directive 3025.1A; and some give
general authority to the governor to delegate authority to TAG.
He said that currently in Alaska Statutes, there is a
restriction on TAG's use of immediate response authority. He
maintained that he cannot provide the number of states with
similar provisions as in CSHB 152(MLV), but he can give
anecdotal information based on discussions with other (indisc.)
and a quick review of some of the (state) statutes that he has
reviewed.
3:25:53 PM
REPRESENTATIVE JOHNSON expressed her belief that the proposed
legislation has constitutional issues. She stated that 44
states have a line of succession "that runs five-plus deep."
There are four states without such a line of succession - Alaska
being one - in which the governor appoints his/her own line of
succession. This just occurred recently in Alaska when Governor
[Bill] Walker appointed Valerie Davidson [Commissioner,
Department of Health and Social Services (DHSS)] to be the
successor to the lieutenant governor. She maintained that the
reason Alaska doesn't have a long line of succession is because
it is up to the governor to appoint successors.
REPRESENTATIVE JOHNSON cited Article III, Section 9, of the
Alaska State Constitution, which read, "In case of the temporary
absence of the governor from office, the lieutenant governor
shall serve as acting governor." She pointed out that there is
no mention of swearing in the lieutenant governor. She relayed
that other states are specific about what constitutes the
governor being incapacitated. She maintained that Alaska's
reference to "temporary absence" is broad, and because there is
no mention of swearing in a new governor, there is no lapse in
leadership. She asserted that having civilian authority for the
national guard is a fundamental piece of American government and
is the intent of the Alaska State Constitution.
3:28:38 PM
REPRESENTATIVE KNOPP asked if the organized militia consists of
private citizens who are volunteers, not enrolled service
members or national guard members.
MR. DOEHL replied that the Alaska organized militia consists of
AK ARNG, AK ANG, ASDF, and AKNM. The members have taken a
deliberate action to take an oath to serve the state.
REPRESENTATIVE KNOPP said he intended his question to be
regarding the composition of the ASDF.
MR. DOEHL answered that ASDF is part of Alaska organized
militia.
REPRESENTATIVE KNOPP expressed his understanding that the
members of the ASDF are not active military members, but
volunteers.
MR. DOEHL replied that all members of the Alaska National Guard
have both a state and federal military affiliation; ASDF has
only a state military affiliation but is part of the militia -
or state military force; they are recognized as such by the U.S.
Constitution in 32 U.S. Code 109.
REPRESENTATIVE KNOPP referred to Section 1 of CSHB 152(MLV),
[page 1, line 5], which read, "Control and command of the
organized militia" and pointed out the proposed deletion of the
phrase, "Alaska National Guard and Alaska Naval Militia", on
line 6 of page 1. He maintained that the proposed legislation
would take all control and authority away from the governor and
give it to TAG except for authority over ASDF.
MR. DOEHL answered that the interpretation of DMVA is that under
the proposed legislation, the governor retains control of the
Alaska organized militia, which includes AK ARNG, AK ANG, AKNM,
and ASDF. The proposal under CSHB 152(MLV) substitutes all-
inclusive language, "organized militia," for the Alaska National
Guard and AKNM to clean up the Title 26 references to ASDF.
REPRESENTATIVE LEDOUX referred to the example of the lost child
and asked how many people TAG currently has under her command
without calling up any additional people.
MR. DOEHL replied that currently Alaska has about 4,100 people
in the Alaska organized militia.
REPRESENTATIVE LEDOUX asked if currently TAG could independently
call up 4,100 people for a response even without CSHB 152(MLV)
becoming law.
MR. DOEHL relayed that before TAG can call up anyone, there must
be a request from a civilian authority to do so; she cannot
independently send the militia soldiers out. She remains fully
accountable and answerable to the governor of the State of
Alaska - the commander in chief. He corrected himself to say
that if there is a wildland fire that required 4,100 guardsmen,
ASDF, and AKNM members, TAG currently has the authority to call
them up to fight the fire. He reiterated that she is answerable
to the governor and to Alaskans as to why she did it.
3:34:09 PM
REPRESENTATIVE LEDOUX asked about TAG's authority to call up the
organized militia for a lost child.
MR. DOEHL replied that for a lost child, TAG could not call up a
single person; for any other situation other than a wildland
fire, TAG is required to first call the governor.
REPRESENTATIVE LEDOUX suggested that if TAG receives information
about a lost child, she calls the governor.
MR. DOEHL stated, "That is incorrect." He reiterated that she
can only call the governor when there is a request from
competent civil authority - most likely the Alaska State
Troopers (AST) in a rural area or the mayor in a municipality.
A mayor might ask for assistance because of the militia's unique
capability. He maintained that the Alaska organized militia
does not self-deploy.
REPRESENTATIVE LEDOUX asked about the procedures involved when
TAG calls the governor at the request of civil authority and the
governor is gone. She asked, "Does she get patched through
directly to the lieutenant governor?"
MR. DOEHL speculated that the first attempt is a direct call
between TAG and the governor; after that, TAG could contact the
executive staff for assistance; if that fails, an attempt could
be made to contact the lieutenant governor's staff. He
emphasized that there is a process involved, and time is
valuable when losing sunlight and a child is in need.
REPRESENTATIVE LEDOUX maintained that when the governor is
incommunicado for any reason, there must be a procedure within
the governor's office for patching someone, like TAG, through to
the lieutenant governor or someone in the direct line of
authority.
MR. DOEHL replied that given enough time, TAG can always reach
the lieutenant governor if the governor is unavailable. He
maintained that the challenge is: when time is of the essence,
and it takes time to locate and attempt contact with the
governor and the lieutenant governor, that time adds up. He
stated that municipalities expect law enforcement to respond in
three to five minutes; it would take that long just to make the
phone calls to attempt contact with the governor and lieutenant
governor.
3:38:44 PM
REPRESENTATIVE LEDOUX asked whether the governor's office has a
procedure for transferring an emergency call to the appropriate
person when the governor is unavailable.
MR. DOEHL said that even with such a transfer, there is still a
time factor; there is no instant communication. The intent of
the proposed legislation is to reduce the time to provide a more
meaningful and effective response.
REPRESENTATIVE JOHNSON offered that the governor does have an
emergency protocol. She asked for the number of states that
have provisions like in the proposed legislation. She
maintained that her staff, after doing research, was unable to
identify any such states. She maintained that other states have
very "deep" lines of succession, which Alaska does not have.
She suggested that the governor could designate TAG for
authority without putting it into statute.
MR. DOEHL answered that Lieutenant Colonel Weaver examined the
issue and found that other states may make such a designation of
TAG; however, he could not find another state with the specific
statutory language delegating authority only for wildland fires
as does Alaska's statute. He said that Alaska's statute is
written in such a way that it appears to limit to wildland fires
the circumstances for which the governor may delegate authority;
no other state has that limitation; and it is for this reason a
statutory revision has been proposed.
3:42:20 PM
REPRESENTATIVE JOHNSON maintained that her staff polled five
states and learned that none gave TAG authority like proposed in
CSHB 152(MLV). They did not poll states with extensive lines of
succession. She asked for confirmation that the statutes, as
written, are limiting.
3:43:43 PM
REPRESENTATIVE TUCK referred to the discussion of the disaster
relief fund (DRF) during the Finance Subcommittee for House
Military & Veterans' Affairs meeting of 1/25/18; the fund is
for relief and recovery actions in response to incidents such as
storm, high water, wind-driven water, tidal wave, tsunami,
earthquake, volcanic eruption, landslide, mudslide, avalanche,
snowstorm, prolonged extreme cold, drought, fire, flood,
epidemic, explosion, or [riot] - most of which are natural
disasters. He maintained that using the term "natural
disasters" in the proposed legislation appropriately encompasses
these incidents.
MR. DOEHL referred to page 2, lines 26-30, to point out the
language that would be deleted from AS 26.05.070 under CSHB
152(MLV). It read, "In the event of wildland fire, the governor
may delegate to the adjutant general the governor's authority
under this section to order some or all of the organized militia
into active state service to fight wildland fire." He
maintained that it is this language which limits the governor's
authority to delegate to TAG the ability to call forth the
organized militia when needed for an emergency.
3:45:09 PM
REPRESENTATIVE KNOPP suggested that TAG having one line of
delegated authority is very odd; he maintained that there must
be additional authority delegated to TAG somewhere in statute.
MR. DOEHL replied that if there was more than that one line of
delegated authority, the proposed legislation would be
unnecessary. He maintained that it is the 64-year-old statute
that "brings us to this precipice." He maintained that
situations have come up in which DOL attorneys and the Alaska
National Guard have identified that the specificity of this
section of statute limits the authority of the governor to
delegate to TAG the ability to utilize the Alaska organized
militia for other emergency situations as requested by local
civilian authorities.
CHAIR KREISS-TOMKINS asked for confirmation that every time in
the last 64 years in which local SAR or competent civil
authority has requested help to find the "hypothetical lost
child" there has been a call from that competent local civil
authority to TAG asking for help, and TAG has in turn called the
governor for permission to deploy Alaska militia assets to
assist in the SAR effort.
MR. DOEHL replied that in every case, competent civil authority
has made the request for military assistance: sometimes TAG is
called; sometimes the governor is called directly by mayors; and
sometimes a mayor or his/her staff requests the State Emergency
Operations Center (SEOC)[DMVA] to contact TAG. When the request
is made, the governor may ask TAG for assistance, or DMVA may
request of the governor the authority to assist, after it
determines it has the capability to do so. He confirmed for
Representative Kreiss-Tomkins that the answer to the question is
effectively "yes"; the calls vary; but ultimately a high-ranking
person in the State of Alaska is contacted.
CHAIR KREISS-TOMKINS asked how many such requests occur per
year.
MR. DOEHL responded that he does not monitor the occurrences but
would provide that information. He offered an estimate that it
occurs more than once and less than ten times per year.
3:49:58 PM
REPRESENTATIVE LEDOUX asked for the number of times in the past
60 years that TAG has been unable to contact the governor
immediately, and the length of time it took for TAG to contact
an executive authority who could authorize military action.
MR. DOEHL replied that under statute, only the governor has the
authority to serve as commander in chief, and that is the reason
for the proposed legislation. He stated that he cannot provide
the number of instances in which immediate contact was not
possible, but he mentioned that the Alaska National Guard now
has more capacity to assist. The ASDF and AKNM did not exist in
1955, and since the Alaska National Guard didn't have the
capability for immediate response back in the early '50s, a
response was slower and more deliberate.
REPRESENTATIVE LEDOUX referred to the Kent State massacre ("Kent
State") [in 5/4/70], in which the governor of Ohio called forth
the Ohio National Guard. She asked if under CSHB 152(MLV), TAG
would be able to send troops onto a university campus without
the consent of civil authority if the governor could not be
reached immediately.
MR. DOEHL answered no. He relayed that because of the concern
regarding actions against other Alaskans rather than saving
Alaskans, the proposed legislation specifically excludes law
enforcement and response to civil disobedience from the
authority of TAG for activating the organized militia. He
stated that the underlying belief is that because of the
significance of impacting Alaskans' rights, only the commander
in chief should make that call. If the governor is unavailable,
the college police are on their own until the governor is
available.
REPRESENTATIVE LEDOUX suggested that there may not be a clear
distinction between saving Alaskans and law enforcement; if the
militia was looking for a child who had been kidnapped, it would
be looking for the kidnapper as well.
MR. DOEHL responded that the Posse Comitatus Act [of 1878,
limiting the powers of the federal government in using federal
military personnel to enforce domestic policies within the
United States] was enacted in response to federal military
forces being used to maintain law and order in the [former]
Confederate States of America after the Civil War. He added
that there is an ample body of law that parses out the
distinction. He offered his understanding: the organized
militia, including the Alaska National Guard and the ASDF, could
be called forth for a law enforcement purpose to locate
kidnappers if a child was involved; however, the authority to
activate the militia would have to come from the governor. It
would leave the child at risk but represents the balance between
saving Alaskans and saving Alaskans' rights.
3:55:05 PM
CHAIR KREISS-TOMKINS summed up by saying, "Lost child, the
authority exists. Lost child kidnapped by bad guys, the
authority does not exist."
MR. DOEHL replied that under CSHB 152(MLV), "that's correct for
the adjutant general"; currently, direction from the governor
would be required.
REPRESENTATIVE JOHNSON maintained that in the case of a lost
child and a missing governor, Alaska has troopers, emergency
services, and SAR groups. She offered that her understanding of
calling forth the Alaska National Guard is that it is in
relation to a disaster declaration. She said, "I don't know
what problem we're trying to fix here." She stated that
Alaska's executive branch has a clear line of succession, and
there is a booklet of protocols that the governor follows when
calling forth the Alaska National Guard for catastrophic events.
She asserted that just because the Alaska Military Code of
Justice (AMCJ) is old, that doesn't mean it is not
constitutionally correct; it has been working; and the proposed
legislation does not address the problem Alaska has with the
Alaska National Guard. She maintained that she was expecting
the proposed legislation to allow for more civilian control, and
she is concerned that it instead gives the military authority
without the governor's direction.
MR. DOEHL responded that when the military responds, the
civilian authority - the incident commander - remains in charge;
that would be the chief of police, the Alaska State Trooper
(AST), or the detachment commander. He said that the civilian
authority retains responsibility and ultimate authority over the
military action; it has the authority to call the troops back or
limit their response. He stated that he fully agrees that there
are fantastic SAR groups; however, when a situation exceeds
their capabilities and equipment, the civilian authority may
request the assistance of Alaska National Guard entities under
the direction of the civilian incident commander, to fill a need
for special military equipment, such as night vision goggles.
3:58:37 PM
REPRESENTATIVE JOHNSON conceded that a national guard response
is at times appropriate and invaluable. She asked if there have
been any incidents involving lost children for which the Alaska
National Guard could not be mobilized.
MR. DOEHL responded that he is not aware of such a situation in
Alaska, although he has been aware of the national guard being
mobilized in other states under TAG's authority without
contacting the governor.
3:59:35 PM
REPRESENTATIVE WOOL pointed out the distinction between a
natural disaster and a lost child situation. He asked whether
an event which involves only a lost child would be included
under the conditions allowing TAG authority under CSHB 152(MLV)
or be addressed by local authorities and AST. He also asked for
more clarity regarding the lieutenant governor assuming
authority as next in line to the governor.
MR. DOEHL referred to Section 3(b) of CSHB 152(MLV), on page 3,
lines 3-9, which read in part, "under imminently serious
conditions where time or circumstance does not permit approval
from the governor". He maintained that this language
encompasses disasters smaller than a tsunami or an earthquake;
therefore, would apply to one Alaskan at risk.
REPRESENTATIVE WOOL asked if the language on page 3, line 4,
"under imminently serious conditions", could refer to a lost
child.
MR. DOEHL referred to language on page 3, line 8, which read,
"to save lives, prevent human suffering" and maintained that it
encompasses the situation of the lost child.
4:02:09 PM
REPRESENTATIVE TUCK pointed out that "imminently serious
conditions" could include the release of hazardous substances,
enemy or terrorist attack, and outbreak of a disease. He
emphasized that in emergency situations when the governor is not
available, quick actions must be taken; the choice is to allow
TAG to act to save lives and prevent human suffering or to go
through the succession process - resulting in a delay that could
endanger people. He stressed that giving TAG this authority
would be only in limited situations.
REPRESENTATIVE TUCK referred to Section 1 of CSHB 152(MLV),
[page 1, lines 9-11], to point out the clear role of TAG under
the proposed legislation. It read, "shall carry out the
policies of the governor in military affairs. The adjutant
general represents the governor and shall act in conformity with
the governor's instructions." Representative Tuck added that
TAG's actions are subject to review, and according to Section
3(e), [page 3, lines 16-20], TAG must continually try to contact
the governor and reevaluate the response within 72 hours of
ordering the organized militia into action.
4:04:31 PM
REPRESENTATIVE KNOPP asked if the active military, such as at
Eielson Air Force Base (EAFB) and JBER, are a resource that can
be utilized by Alaska. He requested information on who deploys
them and under what conditions are they deployed. He mentioned
that he has seen military helicopters taking people off [Denali
Mountain].
MR. DOEHL explained the process of the Defense Support of Civil
Authorities (DSCA) as follows: when requested by civilian
authority, the federal military commander can authorize the use
of the military forces under his/her command to assist the
civilian authorities for up to 72 hours under immediate response
authority. He said that in the case of helicopters taking
people off [Denali Mountain], AK ANG has been "federalized" to
perform those missions under the federal authority of the active
U.S. Air Force through a standing memorandum of agreement (MOA).
He relayed that the active U.S. Air Force is responsible for
aviation SAR in the State of Alaska, and it accomplishes that
through an agreement with AK ANG. He stated that the missions
are requested by competent civilian authority; in the event of a
[Denali Mountain] rescue, the civilian authority is usually the
Denali National Park and Preserve personnel if federal land is
involved or AST if other than federal land.
4:06:50 PM
REPRESENTATIVE LEDOUX referred to Section 2 of CSHB 152(MLV),
page 2, lines [11-12], which read, "if a mob or body of men act
together by force with intent to commit a felony". She
suggested that the language indicates that the Alaska National
Guard does have authority with respect to law enforcement.
REPRESENTATIVE TUCK responded by saying that Section 2 of the
proposed legislation refers to the governor's authority, and not
TAG's authority. He confirmed that the governor would have the
authority to activate the organized militia under the conditions
stated in Section 2.
REPRESENTATIVE LEDOUX referred to Section 2, [page 2, line 19-
20], which read, "Whenever any portion of the militia is ordered
into active state service by the governor, it becomes an
additional police force".
CHAIR KREISS-TOMKINS asked for clarification that the scenario
described on lines 19-20 would not change under CSHB 152(MLV).
MR. DOEHL confirmed that Section 2 relays the authorities that
currently exist for the governor; they are the federal
equivalent of martial law. Section 3 of CSHB 152(MLV), [page 3,
lines 3-29], relays TAG authorities. The Alaska National Guard
can be used for law enforcement and stopping riots and
insurrections at the direction of the governor; TAG may not do
so, even under the proposed legislation.
CHAIR KREISS-TOMKINS asked for confirmation that the Kent State
scenario could happen in Alaska with or without CSHB 152(MLV)
being enacted; the proposed legislation would have no effect on
deployment of troops in that situation.
MR. DOEHL responded, that's correct. He added that only the
governor can deploy the Alaska National Guard in that situation.
4:10:24 PM
REPRESENTATIVE WOOL referred to Section 3(b) on page 3, lines 3-
9, which read in part, "In the event of wildland fire,
earthquake, flooding, or other natural catastrophe, or under
imminently serious conditions ... to save lives, prevent human
suffering, or mitigate great property damage in the state", and
conceded that it makes sense to provide for rapid response in
these situations, if the governor is unavailable. He said that
Representative Tuck mentioned "terrorist attack," and offered
that a terrorist attack is not a natural disaster. He said that
he is concerned that TAG would be permitted to deploy the Alaska
National Guard if there was a terrorist attack; TAG could have
that authority for 72 hours; and he said he is unsure what the
response might entail. He asked for comment on that scenario.
MR. DOEHL answered that the Alaska National Guard could be
deployed for a terrorist attack under "consequence management";
if a building is reduced to rubble, the Alaska National Guard
could be utilized to extract victims. Currently only the
governor can deploy troops to respond to criminal activity;
therefore, the Alaska National Guard cannot engage the
terrorists directly. The proposed legislation would give TAG
the authority to deploy guardsmen to help Alaskans with the
consequences of a terrorist attack.
REPRESENTATIVE WOOL asked if TAG would have authority to shut
down an airport or port or to establish a perimeter around
either and put it on lockdown as a defensive action.
MR. DOEHL responded that he did not believe TAG would have that
authority; the reason for posting security people is to interact
with the public to direct a certain activity or conduct. When
the military is called in to direct an activity or conduct, it
falls under the authority of the governor and not delegable
under the proposed legislation.
4:13:58 PM
CHAIR KREISS-TOMKINS summarized: if a building collapses, TAG
has the authority to deploy the organized militia to save lives;
if a building collapses and there are terrorists at-large, TAG
does not have authority to deploy the organized militia; only
the governor has the authority to set up a perimeter, not TAG.
MR. DOEHL replied that there is one caveat: once the civilian
authority called for and set up a perimeter, the Alaska National
Guard or the ASDF could carry out the rescue activity; the law
enforcement role is limited to the civilian authority, while the
military provides other unique abilities to assist.
REPRESENTATIVE LEDOUX noted that the powers described in Section
3(b) are broad; however, they are limited by Section 3(c) on
page 3, which read in part, "the adjutant general may not order
any part of the organized militia into active state service for
actions that would subject civilians to the use of military
power that is regulatory, prescriptive, proscriptive, or
compulsory, unless approved by the governor before giving the
order." She expressed her understanding that subsection (c) is
why the militia could not be called forth for a situation like
Kent State.
MR. DOEHL responded, that is correct. He added that under
Section 3(b), the militia also could not establish a security
perimeter as described by Representative Wool. He reiterated
that Section 2 on page 2 states who may [deploy the militia] for
those actions; Section 3 on page 3 states that TAG cannot deploy
the militia for those actions.
REPRESENTATIVE LEDOUX asked why Section 3(f) on page 3 of CSHB
152(MLV) is necessary. It read, "The organized militia may not
be used against or to mitigate a lawful activity, including an
organized labor activity." She suggested that instead, the
language in Section 3 should state that TAG cannot deploy the
militia for anything having to do with policing. She said that
she does not interpret the phrase "regulatory, prescriptive,
proscriptive, or compulsory" as "law enforcement." She
maintained that she is not sure that Section 3 excludes law
enforcement activity by the militia under the authority of TAG.
MR. DOEHL replied that Section 3(f) limits both the governor and
TAG in using the Alaska organized militia to interfere with
lawful activities. He expressed his belief that the language
was put into the statutes because of incidents in other states.
REPRESENTATIVE LEDOUX asked for the meaning of "regulatory,
prescriptive, proscriptive, or compulsory."
MR. DOEHL suggested that it is related to using the military
presence to direct Alaskans to do something or not do something
- stop them from entering an area or act in a certain way.
4:18:25 PM
REPRESENTATIVE LEDOUX concluded that under CSHB 152(MLV), that
activity could not be performed by the militia without the
governor's consent.
MR. DOEHL clarified that it could not be performed without the
governor's authorization.
REPRESENTATIVE LEDOUX asked for more detail regarding actions
that are considered regulatory, prescriptive, proscriptive, and
compulsory.
4:19:45 PM
MR. DOEHL, after ascertaining that Lieutenant Colonel Weaver was
no longer online, asked for the opportunity to provide a written
supplemental answer to Representative LeDoux's question.
CHAIR KREISS-TOMKINS asked if the terms in question are from
other sections of Alaska Statutes or from other state statutes.
MR. DOEHL responded that he did not know; he has seen them in
both places.
4:20:45 PM
REPRESENTATIVE JOHNSON asked if CSHB 152(MLV) is constitutional
and if the lines of succession are clearly defined in the Alaska
State Constitution.
MR. DOEHL answered that a standing delegation, as opposed to
giving the explicit authority to delegate, is not clearly
defined under Alaska law.
REPRESENTATIVE JOHNSON mentioned that her staff spoke to the
attorney general of another state with an organizational
structure like Alaska's, and that state did not have the same
issue that the proposed legislation addresses. She said that
Alaska's governor can delegate the authority and line of
succession. She expressed her concern that CSHB 152(MLV) does
not comply with the intent of the U.S. Constitution or the
Alaska State Constitution. She maintained that civilian control
is paramount in American government and taking authority away
from civilian control contradicts that belief.
MR. DOEHL answered, "The definitive answer is it is not clearly
defined under Alaska law." That is his interpretation as well
that of DOL attorneys. He added that he cannot speak to the
laws of other states.
REPRESENTATIVE JOHNSON cited Article 3, Section 9, of the Alaska
State Constitution, which read, "In case of the temporary
absence of the governor from office, the lieutenant governor
shall serve as acting governor."
MR. DOEHL responded that there is no definition of "temporary
absence" and no explanation of the duties that the acting
governor takes or under what circumstances he/she would assume
them. He stated that DOL has determined that these details are
undefined.
REPRESENTATIVE JOHNSON cited Article 3, Section 14, of the
Alaska State Constitution, which read, "When the lieutenant
governor succeeds to the office of governor, he shall have the
title, powers, duties and emoluments of that office." She
offered that this section appears to define the authority of the
lieutenant governor in this situation. She expressed her belief
that the governor has executive authority over the Alaska
National Guard, and that was intentional.
MR. DOEHL replied that the governor does have that authority and
would have it under the proposed legislation. He stated that
the difference between the two sections of Article 3 derives
from the difference between "assumes" and "succeeds," which are
undefined. He stated that "succeeds" infers taking on the
powers of the office thereafter; "assumes" suggests the taking
on of powers to be temporary.
4:25:13 PM
REPRESENTATIVE JOHNSON asked if there is any provision in the
Alaska State Constitution allowing a member of the "armed
services" of Alaska, regardless of rank, to assume authority as
commander in chief.
MR. DOEHL, after ascertaining that Representative Johnson is
referring to a member of either the Alaska organized militia or
a member of the U.S. Armed Forces stationed in Alaska, answered,
"No."
4:26:09 PM
REPRESENTATIVE BIRCH referred to Section 12(a) of CSHB 152(MLV),
page 6, lines 4-14, which read in part, "To the extent funds are
available, the adjutant general may authorize the payment of up
to 100 percent of the cost of tuition and required fees for each
active member of ... the Alaska State Defense Force ... if the
member attends an educational, vocational, or technical training
school in this state." He asked for the number of ASDF members
who would qualify for the tuition benefit and what the cost
would be.
MR. DOEHL noted that the amount allocated for tuition assistance
for the Alaska National Guard is a set amount; regardless of how
many members apply, the money "cuts off" after expended; and 88
percent of the funds were expended as of last year - or about
$300,000. He relayed that the proposed legislation would not
"grow that pot" but would allow a different group of people to
compete for the funds. He offered that ASDF currently has 120
active members; and those with [academic] degrees would be
exempt.
REPRESENTATIVE BIRCH asked if there is an annual cap on the
funds.
MR. DOEHL replied that the education benefits are limited to the
University of Alaska System; and the cap is based on the number
of credits or dollars, but in any case, is a well-defined
amount. He mentioned that he could provide additional
information.
4:28:39 PM
CHAIR KREISS-TOMKINS announced that CSHB 152(MLV) would be held
over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB152 Sponsor Statement 4.12.17.pdf |
HSTA 1/23/2018 3:00:00 PM HSTA 1/25/2018 3:00:00 PM HSTA 2/22/2018 3:15:00 PM |
HB 152 |
| HB152 Sectional Analysis 4.12.17.pdf |
HSTA 1/23/2018 3:00:00 PM HSTA 1/25/2018 3:00:00 PM |
HB 152 |
| HB152 ver U.PDF |
HSTA 1/23/2018 3:00:00 PM HSTA 1/25/2018 3:00:00 PM |
HB 152 |
| HB152 Memo of Changes 4.12.17.pdf |
HSTA 1/23/2018 3:00:00 PM HSTA 1/25/2018 3:00:00 PM |
HB 152 |
| HB152 Fiscal Note DMVA 1.20.18.pdf |
HSTA 1/23/2018 3:00:00 PM HSTA 1/25/2018 3:00:00 PM HSTA 2/22/2018 3:15:00 PM |
HB 152 |
| HB152 Supporting Document-DMVA Letter of Support 4.12.17.pdf |
HSTA 1/23/2018 3:00:00 PM HSTA 1/25/2018 3:00:00 PM HSTA 2/22/2018 3:15:00 PM |
HB 152 |
| HB152 Opposing Document-Letter Lawrence Wood 4.12.17.pdf |
HSTA 1/23/2018 3:00:00 PM HSTA 1/25/2018 3:00:00 PM HSTA 2/22/2018 3:15:00 PM |
HB 152 |
| HB152 Additional Documents-DMVA Letter and bill info 4.12.17.pdf |
HSTA 1/23/2018 3:00:00 PM HSTA 1/25/2018 3:00:00 PM HSTA 2/22/2018 3:15:00 PM |
HB 152 |