Category Archives: Legislature

Political dissent isn’t terrorism

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Yes, it’s a long post reporting on a much longer 161-page decision issued on Tuesday by a federal judge in Boston.

Judge William G. Young delivered a sweeping rebuke to the Trump administration’s efforts to deport foreign students and revoke visas in response to campus protests critical of Israel.

Young ruled that the First Amendment’s protections extend equally to non-citizens lawfully present in the United States, rejecting the administration’s claim that immigration status could be used to limit protest rights. “No law means no law,” Young wrote in his 161-page written decision, striking at the heart of the government’s argument.

The case was brought by national faculty and scholarly groups, including the American Association of University Professors and the Middle East Studies Association. They argued that visa cancellations, deportation threats, and arrests aimed at foreign students after the October 2023 Hamas attack — and subsequent pro-Palestinian protests — amounted to unconstitutional retaliation against protected speech.

The court agreed.

After a nine-day trial, Judge Young concluded that Secretary of State Marco Rubio, Homeland Security Secretary Kristi Noem, and their agencies deliberately chilled lawful political speech by equating criticism of Israel with anti-Semitism and misusing immigration laws intended for national security.

Two individuals became test cases: lawful permanent residents Yunseo Chung and Mahmoud Khalil, both targeted for removal after joining campus demonstrations. The government’s evidence relied heavily on names pulled from Canary Mission, a website cataloging pro-Palestinian activists. Neither student was accused of violence or material support for terrorism.

Chung obtained a restraining order blocking her arrest; Khalil was detained briefly in New York before another federal court intervened. Judge Young stressed that their activities — chanting, organizing, criticizing Israel — were squarely protected by the Constitution.

What the Judge Said About Israel and Free Speech

Judge Young took direct aim at the government’s attempt to label campus protests as “anti-Semitic” or “pro-Hamas.”

His words leave little room for doubt:

“Criticisms of the State of Israel are not anti-Semitism, they’re political speech, protected speech. Even strong, even vile criticisms of the State of Israel and its policies are protected speech under the First Amendment to our Constitution.”

He also stressed that political dissent cannot be recast as terrorism: “Criticism of the State of Israel … does not constitute pro-Hamas support. Pro-Hamas support has to be something more than that.”

Judge Young noted that the State Department’s own official guidance recognizes this distinction, cautioning that while some attacks on Israel can reflect anti-Semitism, criticism of Israel similar to that directed at any other country “cannot be regarded as antisemitic.”

Bottom line: The government may not collapse political opposition into hate speech in order to silence it.

What the Judge Said About Masked Agents

Young’s decision hit hard against the political use of masked agents to spread fear and intimidation.

He began by rejecting testimony of government witnesses, including Tdd Lyons, acting director of ICE, as “ingenuous, squalid and dishonorable.”

Judge Young’s summary on this point is worth quoting at length.

ICE goes masked for a single reason — to terrorize Americans into quiescence. Small wonder ICE often seems to need our respected military to guard them as they go about implementing our immigration laws. It should be noted that our troops do not ordinarily wear masks. Can you imagine a masked marine? It is a matter of honor — and honor still matters. To us, masks are associated with cowardly desperados and the despised Ku Klux Klan. In all our history we have never tolerated an armed masked secret police. Carrying on in this fashion, ICE brings indelible obloquy to this administration and everyone who works in it. “We can not escape history,” Lincoln righty said. “[It] will light us down in honor or dishonor, to the latest generation.” Abraham Lincoln,
Second Annual Message to Congress (Dec. 1, 1862).

Perhaps we’re now afraid to stick our necks out. If the distinguished Homeland Security intelligence agency can be weaponized to squelch the free speech rights of a small, hapless group of non-citizens in our midst, so too can the Federal Home Loan Mortgage Corporation, and the audit divisions of the I.R.S. and the Social Security Administration be unconstitutionally weaponized against the President’s ever growing list of“enemies” or opponents he “hates” notwithstanding that political persecution is anathema to our Constitution and everything for which America stands.

Finally, perhaps we don’t much care. After all, these Plaintiffs, a group of non-citizen pro-Palestinians are relatively small compared to the much larger interest groups who have every right vigorously to espouse the cause of the State of Israel. Palestine is far away and its people are caught up in the horrors of a modern war with heavy ordinance wreaking massive indiscriminate destruction, a war that is not one of our making. Why should we care about the free speech rights of their compatriots here among us?

Here’s why:

The United states is a great nation, not because any of us say so. It is great because we still practice our frontier tradition of selflessness for the good of us all. Strangers go out of their way to help strangers when they see a need. In times of fire, flood, and national disaster, everyone pitches in to help people we’ve never met and first responders selflessly risk their lives for others. Hundreds of firefighters rushed into the Twin Towers on 9/11 without hesitation desperate to find and save survivors. That’s who we are. And on distant battlefields our military “fought and died for the men [they] marched among.” Frank Loesser, “The Ballad of Roger Young”,
LIFE, 5 March 1945, at 117.

Each day, I recognize (to paraphrase Lincoln again) that the brave men and women, living and dead, who have struggled in our Nation’s service have hallowed our Constitutional freedom far above my (or anyone’s) poor power to add or detract. The only Constitutional rights upon which we can depend are those we extend to the weakest and most reviled among us.

Final Note

Judge Young’s decision underscores a basic principle too often tested in times of political tension: constitutional rights are not reserved for citizens alone. Whether citizen, permanent resident, or student on a visa, the same protections apply when it comes to speaking out.

Judge Young’s opinion makes the point plainly — protected speech is protected speech, no matter who the speaker is.

[Summary of the 161-page decision aided by ChatGPT]

Senate to launch hearings on Trump administration impacts

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Karl Rhoads, the state senator who represents a district that includes downtown Honolulu and surrounding areas, is going to use the “bully pulpit” provided by his position as chair of the Senate Judiciary Committee to launch a series of public briefings to highlight the damage being done by the Trump administration policies.

The first session, scheduled for 10 a.m. on Thursday, August 31, will focus on “the rule of law.” It will be broadcast on the Senate’s YouTube channel.

The purpose of this informational briefing is to discuss the rule of law. The World Justice Project defines the rule of law as “a durable system of laws, institutions, norms, and community commitment that delivers four universal principles: accountability, just law, open government, and accessible and impartial justice.” Recent presidential executive orders and policies raise questions about whether the current Administration is following federal law. This informational briefing will examine that question and what effect federal government actions are having on
Hawai?i residents.

Kudos to Civil Beat for calling attention to the meeting and interviewing Rhoads about the project.

So mark your calendars!

Without using the term, Rhoads is reminding us of the potential power of teach-ins.

From an entry in Wikipedia (which includes footnotes):

The concept of the teach-in was developed by anthropologist Marshall Sahlins of the University of Michigan at Ann Arbor during a meeting on March 17, 1965. Previously, around 50 faculty members had signed onto a one-day teaching strike to oppose the Vietnam War. About a dozen of these faculty members, including William A. Gamson, Jack Rothman, Eric Wolf, Arnold Kaufman, Frithjof Bergmann and Roger Lind, reconsidered the strike and gathered to discuss alternative ways to protest the war in the face of strong opposition to the strike from the Michigan legislature and governor as well as the university president. The New York Times Magazine summed up how Sahlins arrived at the idea: “They say we’re neglecting our responsibilities as teachers. Let’s show them how responsible we feel. Instead of teaching out, we’ll teach in—all night.”

The term teach-in was a variant of another form of protest, the sit-in. Later variants included the die-in, bed-in, lie-in, and draft card turn-in.

This first teach-in was organized by faculty and Students for a Democratic Society at the University of Michigan at Ann Arbor on March 24–25, 1965. Michigan governor George Romney and other politicians still opposed the event. The teach-in was attended by about 3,500 people and consisted of debates, lectures, movies, and musical events aimed at protesting the war. Michigan faculty members such as Anatol Rapoport and Charles Tilly were also involved. Women students who attended received special permission to stay out during the night. Bomb threats emptied the hall three times over the course of the teach-in, sending participants into the freezing cold, where they continued their activities. Other Michigan students in the Young Republicans organization picketed the event, protesting “anti-American policy.” The teach-in ended the next morning, concluding with a 600-person rally on the steps of the library.

Teach-ins were instrumental in educating the public, galvanizing opposition to the war, and shaping the broader anti-war movement during the Vietnam War period.

Here’s hoping Rhoad’s briefings, and public programs organized by other community groups, will play a role in mobilizing the public in opposition to the Trump demolition derby.

Let’s Not Confuse Lobbying With Influence-Peddling

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The headline of Civil Beat’s Sunshine Blog this week told one story: “Influence Peddling By The Numbers“.

But the numbers actually reported were newly released statistics about lobbying — a very different story, in my view.

The two topics are intimately related, but they are not the same, and it seems to me that the failure to distinguish “influence peddling” from “lobbying” is a mistake, creating confusion for those who care about how our democracy actually works.

Let me explain.

Lobbying is a protected constitutional right. It’s part of the First Amendment, alongside freedom of speech, the press, and religion — protecting our right “to petition the government for a redress of grievances.”

In plain terms, you have the right to speak up, organize, demonstrate, and advocate for the laws and policies you believe in — whether you’re an environmental group, a business association, a labor union, or just a group of concerned neighbors.

Individuals, groups, companies, and unions all have the right to advocate for their interests. That’s political influence — and it’s how democracy works.

Political influence isn’t inherently bad. Voters have it. Organized communities have it. Elected officials have it. And yes, people and organizations with experience, information, or resources can use that influence to help shape laws. That’s not a scandal — that’s the process.

Lobbying isn’t inherently shady. It’s one of the ways people make sure their voices are heard. Of course, it must be transparent and well-regulated — which is why we have ethics laws, conflict-of-interest rules, and requirements for lobbyist registration and disclosure. Done properly, lobbying is a necessary part of how our political system works.

Many years ago, I served as director and registered lobbyist for the public interest group Common Cause in Hawaii, working to represent our members’ commitment to open and honest government at the State Capitol.

I was a neophyte in the legislative process — more accustomed to energizing public opinion than trying to change the minds of sometimes hostile or disinterested legislators. The process itself was far from self-evident. But in my on-the-job training, I found that professional lobbyists were often generous with their advice, insights, and tips for making sense of the legislative maze.

Hours spent “talking story” on the capitol building railing with other lobbyists taught me more than any university degree. They understood the nuances of politics and power, and shared lessons that proved invaluable.

But influence-peddling? That’s something else entirely.

Influence-peddling is when someone tries to sell access or power, not to advance a public cause, but for private gain. It’s when a former official gets paid because of their connections inside government, or when someone with political access to an elected or appointed official, a family member, old school friend, or business associate, offers to “fix” something behind closed doors or for a price.

The Hawai‘i State Ethics Commission said it clearly in a 1999 newsletter: influence-peddling happens when insiders are “compensated to assist individuals or businesses in obtaining special benefits or treatment.” That’s not lobbying. That’s corruption.

Taken to the extreme, influence peddling can lead to bribery and become a criminal matter.

That’s what happened when former Senate Majority Leader Kalani English and Rep. Ty Cullen took bribes — luxury travel, poker chips, cash — from businessman Milton Choy in exchange for influencing legislation. It wasn’t just unethical — it was illegal. Choy and both legislators were convicted and went to prison.

To conflate legal lobbying with these kinds of abuses — as the Civil Beat column does — isn’t just misleading. It risks turning the public against all forms of advocacy and civic participation. That’s not a recipe for reform; it’s a recipe for cynicism.

We should be fighting to root out corruption — not stigmatize the act of speaking up.

We need strong lobbying disclosure laws, strict ethics rules, and real enforcement. Civil Beat’s review of lobbying statistics doesn’t necessarily show influence-peddling, but it does highlight concentrations of lobbying power — and that could signal potential misuse. These numbers can serve as red flags — starting points for watchdog agencies, activists, investigative journalists, and political challengers looking to uncover real evidence of corruption.

But we also need to defend the right of individuals and organizations — regardless of their cause — to speak to their government openly and without fear of being tarred with the brush of scandal.

Reform starts with clarity. Let’s be clear: lobbying is a right. Influence-peddling is a problem. And mistaking one for the other won’t help us fix what’s broken.

Hawaii’s ombudsman facing chronic issues

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The idea of an ombudsman is simply to provide someone with authority who can intervene on behalf of regular people who run into a public agency or employee acting like a petty tyrant, being rude, unreasonable, or unfair. It’s very appealing, and a life-saver if you’re locked in one of those crazy disputes when you are exhausted and ready to concede that no matter how right you are, “you can’t fight city hall.”

But it’s not a perfect world. The ombudsman’s jurisdiction is limited by law, so there are issues that they can’t touch. And things happen. Communication issues. Heavy workloads. Particularly obstinate agencies.

So how is the ombudsman doing in Hawaii after more than a half-century?

Back at the beginning of 2013, I wrote a column about the Office of the Ombudsman for Civil Beat.

Not much has changed over the intervening years.

Problem: Who da guy?

At that time, Ombudsman Robin Matsunaga acknowledged that many people had never heard of his agency.

“Much of the public doesn’t know about what we do, they don’t know we exist, and don’t know how to use us,” he told me in an interview at that time.

The agency’s limited budget isn’t sufficient to support a vigorous outreach program.

Problem: All bark, little bite

And even when the office investigates and sustains a complaint, it lacks the “teeth” to force state and county departments to admit the error and follow the ombudsman’s recommendations to correct the situation.

While the ombudsman does not have the power to compel agencies to follow its advice or overturn agency decisions, Matsunaga said his office has been very successful at gaining agency compliance, although at times it can be a long process.

“We don’t have teeth, but we can gum them to death,” he said. “My staff are real tenacious. When we’re sure of our position, we will continue to try and persuade them.”

That situation appears unchanged today.

It can’t be a comfortable position to be in.

Problem: Secret or not?

The ombudsman’s office is required to navigate a precarious boundary between legally-required secrecy, and its ultimate sanction, the power to embarrass an agency by going public with critical findings.

The obligation to keep matters secret is spelled out in statute (Chapter 96 Hawaii Revised Statutes).

§96-9 Investigation procedures.

(a) In an investigation, the ombudsman may make inquiries and obtain information as the ombudsman thinks fit, enter without notice to inspect the premises of an agency, and hold private hearings.
(b) The ombudsman is required to maintain secrecy in respect to all matters and the identities of the complainants or witnesses coming before the ombudsman except so far as disclosures may be necessary to enable the ombudsman to carry out the ombudsman’s duties and to support the ombudsman’s recommendations.

But elsewhere in the same statute is a broad but ill-defined exception to this statutory secrecy.

§96-13 Publication of recommendations. After a reasonable time has elapsed, the ombudsman may present the ombudsman’s opinion and recommendations to the governor, the legislature, the public, or any of these. The ombudsman shall include with this opinion any reply made by the agency.

The ombudsman has generally said that it’s goal is to get agencies to comply with its recommendations, no matter how long or how fiercely they might have resisted. As long as the agencies eventually give in, it’s chalked up as a “win” for the ombudsman.

The ombudsman is also authorized to seek legislation to correct problems that it identifies, but it isn’t clear whether it has ever proposed such legislation.

Problem: Staffing

In September 1983, the Office of the Ombudsman had a staff of 11, including Ombudsman Herman Doi, six analysts who investigate complaints, and four secretaries. An additional authorized position for Doi’s first assistant was authorized but vacant due to a retirement.

Two decades later, the ombudsman’s annual report for the 2003-2004 fiscal year noted a staff of 15, including Ombudsman Robin Matsunaga, his first assistant, eight analysts, and five support staff.

Another 20 years later, at the end of the 2024 fiscal year, the position count was down to 13, consisting of Ombudsman Matsunaga, his first assistant, seven analysts, and four support staff. One additional position was unfilled.

The budget passed by the Legislature this year maintains the ombudsman’s staff at 14 authorized positions.

During testimony on the ombudsman’s budget earlier this year, Matsunaga described ongoing staffing issues.

…it has become more difficult to retain qualified, trained employees over the past few years. While there is no way to prevent employees from retiring, I am concerned about the number of employees who have left the office to work at another State or County agency, or in the private sector, based in large part to the higher salaries they would receive. My office expends a significant amount of time and other resources to train staff to perform their duties, especially in conducting impartial investigations in a thorough and sound manner. It is clear to me that other agencies and private companies recognize the investigative and analytical skills that my staff have, and how much they can contribute to the mission and purpose of their agency or company. I believe that in order to stop this trend, I need to be able to pay my staff salaries that are competitive with the salaries paid by other agencies and companies to their employees who have similar skills and knowledge.

The turnover has been documented in recent annual reports. During the 2023-2024 fiscal year ending June 30, 2024, three of the agencies seven analysts resigned, two after less than four months on the job. The other had been with the ombudsman’s office for four years, but left for job with another department.

There was similar turnover the prior year, FY 2022-2023, with three analysts resigning. Two of them had been hired just a year earlier.