Dogfight Looms over Air Guard Units
By Mark Matthews, Staff Writer
In a case that could reshape how state and federal officials share the National Guard, the governors of Illinois and Pennsylvania are suing to stop the Pentagon from eliminating Air National Guard units in their states.
In separate lawsuits filed in July, the states contend that the Defense Department overstepped its authority when it recommended transferring the 183rd Fighter Wing out of Illinois and deactivating the 111th Fighter Wing in Pennsylvania.
Under the U.S. Constitution, these changes must be made by a governor, both lawsuits argue.
Both governors are trying to save their units from the military's latest reorganization effort, which the Pentagon uses every few years to cut costs and streamline its forces. The process is especially stressful for states, which stand to lose millions of dollars if a base is closed.
In May, the Pentagon recommended changes to hundreds of military facilities across the country, including those in Illinois and Pennsylvania. An independent commission -- under the moniker BRAC, which stands for Base Realignment and Closure -- is now reviewing the list and will give an edited version to the president in September.
In the meantime, states are lobbying the BRAC commission to spare their bases. It is a mostly futile effort. In the four realignments since 1988, about 85 percent of the bases that were on the original Defense Department list stayed there.
But because of the dual nature of the National Guard -- which is controlled by the governors in times of peace, and by the Pentagon in times of war or active duty -- Pennsylvania Gov. Edward Rendell (D) and Illinois Gov. Rod Blagojevich (D) saw an opening to challenge the Defense Department.
Indeed, the BRAC commission said it will have a special hearing on the issue Aug. 11 -- a welcome sign to Illinois, Pennsylvania and 25 other states that stand to lose Air National Guard units. Puerto Rico also has one base in question.
Many states, including Delaware, Connecticut, Missouri and Montana, have floated the possibility recently of filing lawsuits of their own. Officials in those states said the governors are closely watching the current legal dispute.
"[T]he cooperative relationship between the federal and state governments with respect to state National Guards requires a delicate balance -- a balance so important that it was written into the United States Constitution," wrote Missouri's attorney general to Gov. Matt Blunt (R), who also could sue. The letter added that the Pentagon's "recommendations run roughshod over those principles."
It is for this same reason that legal experts are keeping an eye on the two cases. A ruling either way could determine whether the Army and Air National Guards will lean more toward a state-controlled force or another arm of the military, they said.
"The issues are a lot bigger than BRAC. It may start with BRAC, but it doesn't end with BRAC," said Diane Mazur, a law professor at the University of Florida who specializes in civil-military relations. "I think we're at a point where governors are starting to say: 'Hey, these are my people who do a very important thing in my state.'"
Conversely, there has been little debate about changes to Army National Guard units. John Goheen, a spokesman for the National Guard Association , said a debate over these troops hasn't erupted because Pentagon and Army National Guard officials consulted before the Defense Department issued its recommendations in May, unlike the air branches.
Mazur said the lawsuits could be a way for governors to regain control of their National Guard units -- an increasingly common concern. At a governors' conference in Iowa last month, a number of state chief executives complained about the loss of manpower to handle emergencies, such as floods, hurricanes and fires since the country went to war after the Sept. 11, 2001, terror attacks.
About 42,000 guardsmen are in Iraq and almost 11,000 are in Afghanistan out of a total Air and Army National Guard strength of about 433,000, according to Guard statistics released this spring. More than 200 guardsmen have died in these conflicts.
"The militia was supposed be about local control, homeland security at the state level," said Mazur, a former Air Force captain. "I think if you asked the Founding Fathers what they thought of the idea of state militias being the force of occupation in a foreign country … they would have burst out laughing."
The National Guard has its roots in colonial militias, even before the United States became a country. It has long served as a place where citizens can take part in national defense without becoming career military troops.
The Department of Justice is currently reviewing the states' claims, but has not yet issued a response. The military insists its authority trumps state concerns, especially following the Sept. 11 attacks.
"The Secretary of Defense's recommendations, including those affecting the National Guard, are in accordance with all applicable legal requirements and are consistent with actions taken in prior BRAC rounds," wrote a military spokesman in a statement. "The Air Force does not believe that any statute limits the authority of the Secretary to make recommendations pursuant to the Defense Base Closure and Realignment Act."
To defend that viewpoint, Mazur said the Defense Department could rely on a 1990 U.S. Supreme Court case, Perpich v. Department of Defense . In that case, Rudy Perpich, then governor of Minnesota, sued the Pentagon over its practice of training National Guard troops outside the United States.
Perpich contended that the training trips violated the "militia clause" of the Constitution -- the backbone of Illinois' and Pennsylvania's lawsuits -- and that he had the power to veto the peacetime trips as commander in chief of the state's National Guard. But the high court ruled in favor of the federal government.
Still, in the state's defense, Mazur said the case only dealt with brief periods of training, "leaving the door open" for a governor to question the use of Guard troops in extended international tours.
"It's Sept. 11 and the Perpich case, versus the Constitution and the Founders' view," she said.
Another question is whether states need fighter planes as part of their state armament. Pennsylvania officials said they need the added personnel who accompany their A-10 aircraft in the event of a terrorist attack, but other military experts questioned that motivation.
"Why does a governor need an F-16 for homeland defense? He doesn't," said Michael Doubler, author of the book, "Civilian in Peace, Soldier in War: The Army National Guard, 1636-2000." State leaders simply want to have these assets, he said.
David Segal, director of the Center for Research on Military Organization at the University of Maryland, offered another theory: "It's about the jobs and the symbolism" of who controls the National Guard.
Separately, the lawsuits filed by Illinois and Pennsylvania also contend the Pentagon cannot reshuffle the makeup of Air National Guard units under rules set by the Base Closure Act, a 15-year-old law that dictates how the Pentagon changes its military installations.
The states argue the Pentagon can close installations, but not fiddle with equipment or manpower under BRAC rules. Their theory is supported by an attorney for the BRAC commission in a July memo to the commission. And it's the argument being pushed by the Adjutants General Association of the United States, a coalition of National Guard leaders in each state.
"A 'realignment' under the Base Closure Act pertains to the installations, not to the units, unit equipment, people or positions," wrote Maj. General Roger Lempke, the organization's head, in a letter to the BRAC commission. "[T]he proposed recommended actions are beyond the scope of the Base Closure Act."