BRAC commission lawyer: States must approve Guard changes

By Megan Scully, CongressDaily

A lawyer for the Base Realignment and Closure commission says the Defense Department's plans to strip all planes from 23 Air Guard units around the country might be unconstitutional.

The argument, outlined in a document dated Thursday and obtained by CongressDaily, comes as the legal debate is heating up over whether the Pentagon has the authority to stand down or alter National Guard units without the consent of the a state's governor, who has the right to maintain militias as spelled out in the Constitution.

Any move to withdraw, disband or change the organization of Air National Guard units would require the commission to "alter core defense policies," including the National Defense Act of 1916 and Title 32 of the U.S.

Code, according to the 37-page paper authored by BRAC deputy counsel Dan Cowhig.

"Any argument that would propose to sidestep these statutes should be evaluated with the knowledge that the statutes are an expression of core constitutional law and national policy," the paper states.

As such, the independent commission does not have the right to approve the Pentagon's extensive Air National Guard recommendations if individual governors do not consent to the aircraft moves.

Cowhig's conclusions still must be considered by the nine BRAC commissioners, who have until Sept. 8 to evaluate Defense Secretary Donald Rumsfeld's base closure recommendations and submit their own list to the White House.

While not officially adopted by the commission, the paper might spell victory for nearly two dozen states fighting to keep their Guard aircraft and have presented essentially the same argument to the BRAC commission during public hearings and closed-door meetings over the last two months.

Indeed, the paper seems to back what Pennsylvania's top lawmakers contend in a court case filed Monday to shield the 111th Fighter Wing of the state's Air Guard from deactivation. The unit is based at the Willow Grove Naval Air Station, slated for closure in this BRAC round.

"If the courts agree with us, the Pentagon does not have the unilateral ability to shut down a Guard unit," said Adrian King, Pennsylvania Democratic Gov. Ed Rendell's deputy chief of staff and the director of the Pennsylvania Emergency Management Agency.

Pennsylvania has a history of challenging BRAC recommendations, with another suit filed by Sen. Arlen Specter, R-Pa., against the Pentagon more than a decade ago to save the Philadelphia Naval Shipyard.

In the suit, Specter alleged in federal court that the Pentagon's decision-making process was flawed and officials concealed information from Congress, necessitating another review. Specter ultimately argued his case before the Supreme Court in 1994, but the court unanimously rejected his plea.

This time around, the state is not presenting an argument over process, but rather arguing that the Constitution and other states supercede BRAC law, proponents said.

"We're not challenging the BRAC process whatsoever because we think that if the BRAC Commission revisits its look or DoD's look at Willow Grove, they will keep it open," said Peter Murphy, one of a team of attorneys representing the state. "We're not arguing that. We're arguing that the secretary of Defense needed to consult and get the consent of the governor."

No hearing date has been set for the Pennsylvania suit, Murphy said.

The nine BRAC commissioners will meet with Pentagon leaders Monday to receive more detail on recommendations requested by the commission in a July 1 memorandum to Rumsfeld.

In the memo, BRAC Chairman Anthony Principi pressed Rumsfeld on whether the Pentagon consulted state adjutants general and governors before making the Air Guard decisions, as well as the impact relocating aircraft would have on homeland security and defense missions.

National Guard leaders across the country have criticized the Air Force for shutting them out of base-closure discussions affecting the Air Guard. In contrast, the Army National Guard took part in several of the service's BRAC deliberations, sources have said.