States Push to Take Back National Guard

February 11, 2009
Maya Schenwar, t r u t h o u t excerpts

Going on its seventh year, the Iraq war has taken its toll on not only the US military, but also on the states’ National Guard units, which were called up when Congress passed the 2002 Authorization to Use Military Force (AUMF) against Iraq. Now a growing state-level movement is working to keep the Guard at home.

Its logic: The AUMF’s goals have been fulfilled. The authorization’s explicit purposes were to defend the US against the “threat posed by Iraq” and to enforce UN Security Council resolutions regarding Iraq’s alleged ballistic missiles and weapons of mass destruction. Saddam Hussein — along with his supposed threat — is gone, and the UN resolutions are no longer relevant, so there’s no longer a mandate to keep troops in Iraq.

The president can call up the states’ Guard units in a time of war. But when the mandate for war becomes obsolete, say members of the Bring the Guard Home: It’s the Law (BTGH) campaign, sending those troops overseas is illegal. BTGH members and their allies are now sponsoring a chain of bills and resolutions in states across the country, demanding an investigation into the legality of deploying the Guard to Iraq, and a refusal to comply with any illegal federal orders.

“There is not Congressional authorization for the use of the Guard today,” Vermont State Rep. Mike Fisher told Truthout. “One Guard member improperly called into federal service to fight a war — that’s a real problem. Choosing to go to war is one of the most serious decisions that we make. The very least we can do is follow the Constitution.”

The state legislators involved in the campaign argue that it is their duty, along with the governors, to ensure Guard members’ welfare. Although a governor can’t order the Guard’s return, he or she does have the right to challenge federalization orders (mandates to call up the Guard) in the first place. Every month, another set of call-ups sends more Guard members overseas. Should a state decide to refuse a federalization order, the case would likely be brought to the courts.

“We believe that it would be a good thing for a court to be asked the question of whether a state Guard can be brought into federal service to fight in an overseas war — other than in an emergency — that does not have a proper Congressional authorization,” Fisher said.

The campaign began back in 2007, after Fisher had written and passed a resolution in the Vermont legislature to urge the withdrawal of US military forces from Iraq. He wanted to intensify this state-level action against the war by asserting the war’s illegality, and relating it back to Vermont law. So, Fisher joined with attorney Benson Scotch, formerly the executive director of Vermont’s ACLU, to spearhead an effort that would both advocate for Vermont’s Guard members and challenge the legal basis for continued US involvement in Iraq.

The effort is premised on the National Guard’s dual chain of command. Usually, the governor is the commander in chief of a state’s Guard.

With Congressional authorization, the Guard can be called into federal service. However, since that Congressional authorization has expired for Iraq, control reverts back to the states — or at least it should, under the United States Constitution.

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