National Guard Sgt. 1st Class Michael Dobbs. Some states are calling for a halt to National Guard deployments to Iraq. (Photo: Staff Sgt. Jon Soucy / US Army)
Going on its seventh year, the Iraq war has taken its toll on not only the US military, but also on the states's 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's 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 governor's, 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 Constitution, according to Scotch and Fisher.
Regardless of legality, the federalization orders continue, with more Guard troops called up every month. The state Guards have seen some of their largest deployments since World War II. In New Jersey, for example, the planned deployment represents about 50 percent of the state's National Guard.
This transfer of the Guard out of state not only reduces its ability to respond to local emergencies, it also fuels a frightening shift in US foreign policy, according to Ben Manski, executive director of the nonprofit Liberty Tree Foundation.
"We're supposed to have a national defense that's based on the citizen soldier, and decentralized as a result," Manski told Truthout. "What the federal government has done, and what states have allowed it to do, is it has transformed the National Guard into the reserve for an expanded military and for a policy of empire building."
In the process, the federal executive branch has taken over many of the rights and responsibilities of both Congress and the states. The War Powers Act of 1973 states that the president can wage war only by Congressional authorization, unless the US is under attack. Now, since Congress's authorization is no longer applicable and troops remain in Iraq, the standard is being set for a very weak Congressional role in war powers, according to Scotch.
Under the current, Bush-conceived system, "Congress can start a war but cannot stop a war, or even impose enforceable limits to a war it authorizes," Scotch, who is now legal counsel to BTGH, told Truthout. "The president in today's US initiates, conducts, limits (or not) and ends wars (or not)."
The Guard legislation promoted by the BTGH campaign reasserts not only the states's power to refuse illegal Guard orders, but also calls attention to the fact that Congress should determine whether or not a war is allowed to continue.
At its heart, BTGH is a push to reverse the quiet ebbing away of the balance of powers that took place throughout the Bush administration. Now is the time to make sure the precedent of executive, federal domination doesn't become set in stone, according to Fisher.
"Article 1 of the Constitution gives Congress the power to declare war and Article 2 gives the president the power to be commander in chief, "Fisher said. "It seems our founding fathers intentionally delivered us this tension, because they understood the dangers of executive power. They also delivered us tension between the states and the federal government - they positioned a large part of the military in the states's control."
The Guard initiative also activates another "branch" of opinion that was neglected throughout the Bush administration: the American people. Since state-level legislation hits closer to home, and since state legislators interact with their constituents more regularly and on a more immediate level, the BTGH campaign intends to provide a new, effective outlet for citizens's voices.
"We had seven years that the most people thought they could do to change foreign policy was to march, to vote or to participate in direct action," Manski said. "At the state level, it's much easier for people to get involved in legislation."
For example, instead of writing letters to members of Congress, advocates for BTGH often request to speak directly with their state representatives or senators. National groups like Military Families Speak Out, Veterans for Peace and Peace Action have worked through their local chapters to communicate with legislators.
Grassroots efforts directly led to Wisconsin state Rep. Spencer Black's involvement in the campaign.
"The issue was brought to my attention by community activists," Black told Truthout. Wisconsin's version of the bill will be introduced in March.
As the new session of Congress gains speed, the Guard legislation is quickly moving forward. Versions of it have been introduced in 14 states, and eight more have active campaigns pushing for the bill's introduction.
In Oregon, bipartisan Guard legislation was introduced last week. Leah Bolger, vice president of Veterans for Peace, is hopeful that the upcoming deployment of 3,000 Oregon Guardsmen overseas will be halted and the case will be brought to the courts.
"Our hope for the campaign is that if just one state can get this legislation passed and stand up to these illegal federalizations of Guard troops, it will have a ripple effect across the country," Bolger told Truthout.
The legislation's sponsors firmly believe it is still relevant under the Obama administration. Bush not only left Obama with a foreign policy disaster to clean up, according to Fisher, he also left him a "legal mess." The state legislation is intended to redirect war powers back to their legal order.
"I have a great hope for Obama - I really believe he is many times better than Bush, in many ways," Fisher said. "But if it was illegal for Bush to demand the state Guard deploy to Iraq, it is for Obama as well. We can't let that precedent stand - that a president can federalize the Guard without Congressional approval."
In fact, according to Scotch, the ascendancy of a new president with "a humane ethic and a sound view of the Constitution" opens up new possibilities for the BTGH movement, just as it does for health care advocates, environmentalists and civil rights activists. Scotch hopes that Obama might become the first president to endorse the War Powers Act of 1973.
"The Bush years and the Iraq war experience teach us that the smart sharing of war powers is still the best response to an increasingly dangerous world," Scotch said.