1. The Mayor and City Council of the City of [Your City] declare that the Congressional
Authorization for the Use of Military Force of October 16, 2002 has expired and no further
authorization has issued, and therefore the President is urged to order the return of New
Jersey’s National Guard members.
2. The Mayor and City Council of the City of [Your City] support legislation now pending in the
New Jersey State Legislature stating that the Governor and Legislature resolve that the New
Jersey National Guard shall hereafter be limited to service within and on behalf of the State of
New Jersey, unless called into federal service pursuant to a declaration of war or a duly
enacted and substituting federal statute authorizing the use of military force.
3. The New Jersey Attorney General is authorized to appear in any state or federal court with
jurisdiction over the deployment of the New Jersey National Guard to defend any decision to
consent, or not consent, to the deployment of the New Jersey National Guard to Iraq; or to file
an action on behalf of the State of New Jersey with respect to the same subject matter.
4. This Resolution shall take effect immediately and be distributed to the relevant parties,
including the State Senate President and the Governor.
Sample Legislation
AN ACT RELATING TO THE
WITHDRAWAL OF STATE** NATIONAL GUARD MILITARY FORCES FROM IRAQ AND THE FEDERAL
DEPLOYMENT OF THE NATIONAL GUARD
It is hereby enacted by the General Assembly of the State
of **:
Sec. 1. STATEMENT
OF FINDINGS
The general assembly finds that:
(1) Under Article
I, Section 8, Clause 15 of the United States Constitution, Congress may call
forth the militia to execute the laws of the union, suppress insurrections and
repel invasions.
(2) Since 1933,
federal law has provided that persons enlisting in a state national guard unit
simultaneously enlist in the national guard of the United States, a part of the
U.S. Army. The enlistees retain their
status as state guard members unless and until ordered to active federal duty
and then revert to state status upon being relieved from federal service.
(3) In 1986,
Congress passed and the President signed the "Montgomery Amendment,"
which provides that a governor cannot withhold consent with regard to active
duty outside the United States because of any objection to the location,
purpose, type, or schedule of such duty.
(4) Under the U.S.
Constitution, each state's national guard unit is controlled by the governor in
time of peace, but can be called up for federal duty by the President, provided
that the President is acting pursuant to the Constitution and laws of the
United States.
(5) The War Powers
Act of 1973 (Public Law 93-148) specifically limits the power of the President
of the United States to wage war without the approval of Congress.
(6) In October
2002, the U.S. Congress authorized military force under the Authorization for
the Use of Military Force Against Iraq (AUMF) resolution in response to a presidential
request under the War Powers Act. The
resolution stated in part that:
The President is authorized to use the Armed Forces of the
United States as he determines to be necessary and appropriate in order to (1)
defend the national security of the United States against the continuing threat
posed by Iraq; and (2) enforce all relevant United Nations Security Council
Resolutions regarding Iraq.
(7) The AUMF
resolution contained neither a termination date nor a process or procedure to
determine when the authorization should terminate.
(8) U.S. forces,
including members of the State** National Guard and guard members from other
states, have long since addressed the purposes recited under the AUMF
resolution, and Iraq does not pose a continuing threat to the national security
of the United States, nor is there an extant United Nations Security Council
Resolution to be implemented.
(9) The President
may not maintain U.S. forces, and in particular members of the State** National
Guard, in Iraq other than for the purposes set forth by Congress in the AUMF
resolution. Without a specific date for
withdrawal of U.S. Forces from Iraq in the AUMF resolution or a method or
formula for determining the time for withdrawal, and in the absence of
congressional legislation curing these omissions, the President is required to
order the withdrawal of troops within a reasonable time and in a reasonable
manner. The President has taken no such
action.
(10) Other than
the AUMF resolution, there is no authority under the Constitution or the laws
of the United States for the continued presence of State** National Guard members
in Iraq.
(11) The
maintenance of State** National Guard members in Iraq beyond the time and scope
set forth in the AUMF resolution has resulted, and continues to result, in
significant harm to guard members and their families, including death and
injury, loss of time together, and financial hardship.
(12) The General
Assembly finds that Congress should revisit the 1986 Montgomery Amendment and
adopt legislation that restores the powers of the governors of the several
states to withhold consent to federalization of their National Guards, except
where a declaration of war has been adopted or where the United States faces
attack or invasion, and the President has invoked powers authorized by an act of Congress to address those
circumstances.
Sec. 2. EXPIRATION
OF THE 2002 AUTHORIZATION FOR USE OF MILITARY FORCE AND WITHDRAWAL OF State**
NATIONAL GUARD MEMBERS FROM IRAQ.
(a) The Authorization for the Use of Military Force of
October 16, 2002 having expired, the General Assembly declares that all members
of the State** National Guard should be promptly and expeditiously withdrawn
from Iraq, subject only to conditions of time and manner specifically required
to assure their safety and well-being during removal operations.
(b) The General Assembly calls on the Governor of
State** take prompt steps as the Commander-in-Chief of the State** National
Guard to effectuate these purposes.
Sec. 3. 20 V.S.A.
§ 368a is added to read:
§ 368a. LIMITATION
OF STATE** NATIONAL GUARD SERVICE IN WARS NOT STATUTORILY OR CONSTITUTIONALLY
AUTHORIZED
The State** National Guard shall be limited to duties
within the state of State**, unless called into service pursuant to a
constitutionally authorized federal directive pursuant to a congressional
declaration of war or resolution.
Sec. 4. 20 V.S.A.
§ 368b is added to read:
§ 368b. AUTHORITY
FOR THE STATE** ATTORNEY GENERAL TO DEFEND DECISIONS TO DEPLOY OR NOT DEPLOY
THE STATE** NATIONAL GUARD
The attorney general is authorized to appear in any state
or federal court with jurisdiction over the deployment of the State** National
Guard to defend any decision of the governor and adjunct general with respect
to their decision to deploy or not deploy the guard.
Sec. 5. 20 V.S.A.
§ 368c is added to read:
§ 368c.
PRESERVATION OF COMMAND STRUCTURE DURING SERVICE
No member of the State** National Guard shall decline,
while serving in the U.S. armed forces, to follow military orders.
One-Pager (Vermont)
Over the
last few years, many states and municipalities passed resolutions calling on
the President and Congress to end the war and bring our troops home to American
soil. Even though this resolution movement spread across the country, many saw
these resolutions as largely symbolic and as carrying little political weight.
Today
we launch a new movement that is designed to use the weight that states do
have in governing their national guards. This bill says in short: “You in the
Administration and Congress made up the rules under which State National Guard
members were deployed to Iraq. It is time to follow those rules. The authority
to keep State National Guard troops in Iraq has expired.”
In
the same spirit of good faith and patriotism with which they served, please
issue the orders to bring them home.
The
bill is rooted in the Constitution and laws of the United States:
! Persons
enlisting in the State Guard simultaneously enlist in the National Guard of the
United States, a part of the Army. The enlistees retain their status as State
Guard members unless and until ordered to active federal duty, and they revert
to state status upon being released from federal service.
! Each
state's Guard unit is controlled by the governor unless called up for federal
duty by the president pursuant to his authority under law.
! The
President obtained his authority for calling the State Guard to serve in Iraq
from a 2002 congressional Authorization for the Use of Military Force (AUMF),
which limited the authorization to the purposes of defending the national
security from Iraqi threats and to enforce UN Security Council Resolutions relating
to Iraq. Neither the AUMF nor any other law authorizes an indefinite assignment
of State Guard members to the National Guard of the United States.
! The
purposes set forth in the AUMF have been achieved. No weapons of mass destruction were ever found and therefore no
UN Resolutions remain to be enforced.
Clearly, Iraq does not pose a threat to our national security.
! Courts
have historically been reluctant to decide cases involving control of the Armed
Forces, but whether they will or won’t hear this case, the State has a strong
interest in protecting the rights of members of the Guard, and the Governor, as
Commander-in-Chief of the Guard, has the same interest.
This bill clarifies that, in the
absence of any authority to keep the State Guard in Federal service, the
authority over them should revert back to the State. Congress would have to pass a new AUMF to keep our State Guards
under Federal control. This bill demands that the State Guards be released from
their Federal service and calls for their return. The request is not rooted in
the location, purpose, type, or schedule of duty for which they were called up
under the AUMF. We simply want the constitution and the laws governing the
State Guards to be followed.
Time’s up
under the law. Bring them home.
Vermont
Representative Michael Fisher
802-989-9806
mfisher@sover.net
Press Release (Vermont)
States: Federal authority to call up
National Guard for Iraq has expired
Legislation introduced today in Vermont to recall the Guard
Legislation also planned for Minnesota, New Hampshire,
Pennsylvania, and Rhode Island; being explored for Maine, Maryland, and
Wisconsin
(Washington, D.C.) — A bill introduced
today declares that the 2002 federal authorization to call up the State
National Guard has expired, and would set in motion steps to recall members of
the Vermont Guard. Similar legislation will be introduced by legislators
in Minnesota, New Hampshire, Pennsylvania, and Rhode Island, and is under
active discussion in a half-dozen other states, notably Wisconsin, Maine, and
Maryland.
Rep. Michael Fisher, lead sponsor of the Vermont bill,
stated that, “it is clear that the mission that Congress authorized no longer
exists. The President has no current or permanent legal authority to keep Guard
members in Iraq. The Governor as Commander-in-Chief of the Vermont National
Guard should take necessary steps to bring them home.”
The Vermont bill would limit future
Vermont National Guard service to state duties unless properly called into
federal service.
Ben Manski, executive director of the
pro-democracy group, Liberty Tree, said that, “the debate over the Iraq War
changed today in a simple, but profound way. This legislation is limited
to recalling the Guard in the absence of congressional authorization. Yet as an attorney who has studied these questions, it strikes me that
with this legislation, the states have begun to reassert their historic
national defense responsibilities and to honor the Constitution's genius
for distributing power over issues of war and peace.”
Said
Karen Dolan, director of Cities for Peace, which has coordinated hundreds of
local and state governmental anti-war resolutions, "This development comes
in the context of millions of people speaking up at the local and state levels
in opposition to the war. Over 300 communities and twelve states have
voiced outrage over sending our
troops to Iraq as a matter of morality and policy. This bill says it is
unlawful to keep National Guard troops in Iraq.”
In addition to the Vermont
legislation, announced at today’s press conference in Montpelier by Rep.
Michael Fisher and Senate President Pro-Tempore Peter Shumlin, legislators in
Minnesota (Rep. Frank Hornstein, 651-296-9281), New Hampshire (Rep. Charles Weed, 603-352-8309), Pennsylvania (Rep. Tony Payton, 215-744-7901), and Rhode Island (Rep. David Segal, 401-432-7049), will sponsor similar National Guard legislation.
Legislators in six other states,
notably Maryland (Sen. Jamie Rankin, 301-858-3634), Maine (Rep. Ted Koffman, 207- 288-5015), and Wisconsin (Rep. Spencer Black, 608-266-7521), are
working on the issue and considering following suit.
# # #
MORE INFORMATION:
Vermont’s Guard Defederalization Bill and other resources:
www.libertytreefdr.org/guard.php
Frequently Asked
Questions About the Legislation (Vermont)
Q-1.
Aren’t questions of war and peace exclusively within the province of the
federal government?
A. In
general, the Congress and the President share war powers under the
Constitution. The states do have some powers with respect to their national
guards, but Congress has whittled away at the scope of these powers, particularly
after 1903, when The Dick Act was passed creating the rudiments of the present
dual system of joint state and federal National Guards.
But state
National Guard members are only federalized, i.e., are incorporated into the
National Guard of the United States, pursuant to federal law, typically when
U.S. Armed Forces are deployed pursuant to a congressional authorization for
the use of force, or for training. The present bill assumes, arguendo,
that the 2002 Authorization for the Use of Military Force (AUMF) was valid
authority for the President to initiate the use of military force in Iraq, and
further assumes that the AUMF was enacted pursuant to the War Powers Resolution
of 1973, notwithstanding the President’s assertion that he had the power under
Art. II of the Constitution as commander-in-chief of American Armed Forces to
initiate operations without the necessity for an AUMF.
It is
unclear how, when, and by whom hostilities initiated under the AUMF may be
brought to a close. The principal division of power, and the center of the
debate over winding down a war authorized by any authorization for the use of
military force, are the respective powers of Congress and the President. It
seems likely that so long as Congress continues to fund ongoing operations in
Iraq, any congressional repeal of the AUMF (none seems likely in the immediate
future) would not be effective against the President’s decision to continue
operations. If the outcome of that legal debate is unclear, even less clear it
the act or event that would reconstitute Vermont members of the National Guard
of the United States as members of the Vermont National Guard. Again, Congress
is probably estopped to complain about continued operations, so long as it does
not cut off war funding, but the estoppel would not necessarily apply to the
states. Vermont Guard members were called up on the strength of the AUMF and no
other underlying federal authorization, such as a presidential statement that
the war was commencing in Iraq on the strength of his Article II powers.
The bill
recites that the stated purposes of the 2002 AUMF have been achieved or are no
longer relevant. Even though the political question doctrine will keep the
courts from determining whether the AUMF remains in force or whether its
statement of limited purpose (i.e., Saddam and U.N. resolutions about Iraq),
has any relevance to (1) whether current National Guard call-ups should be
declared ended or (2) whether future
Guard call-ups may be made on the strength of the AUMF, the states have an
interest in those questions as advocates and protectors of their National
Guards, and this bill seeks to pursue that interest, stressing areas of
potential state power and acknowledging the limits of that power as a legal and
practical matter.
Q-2. Isn’t
this “bill” really a resolution, since it doesn’t mandate any action and is
merely the Legislature’s opinion that the AUMF has expired?
A. If the
bill becomes law, Vermont will decline to recognize a call to federalize
members of the Vermont National Guard on the strength of the 2002 AUMF. Since
the status of the AUMF is uncertain, proponents cannot represent that the
State’s decision, in effect, to challenge an additional call-up based on the
lack of a valid AUMF will be successful. But the bill is not a call to civil
disobedience–it does not involve a refusal by a member of the Armed Forces to
follow an order of a superior officer. The federalization process is a civilian
process, and the bill is a demand for a recitation of authorization and
authenticity in the requisition from the federal government. If the matter is
resolved in a federal court, it is clearly understood that a final order of a
court from which appeal has not been taken or is declined by an appellate court
will be followed by either the federal government or the State of Vermont.
Q-3. Isn’t
it unfair–or even unpatriotic–to set in motion a mechanism for the return of
National Guard members from Iraq, while other members of the Armed Forces would
remain in Iraq and might have to shoulder additional burdens?
A. No.
Members of the Armed Forces have always served in various capacities as members
of the Regular Army, of the Reserves, or as members of the National Guard of
the United States, each with different service obligations. Once federalized, a
state National Guard member assumes her or his persona as a member of the
National Guard of the United States, indistinguishable in the field from other
soldiers. They serve alike with honor and skill. The length of the National
Guard members’ active service, no less than the reasons they were called up in
the first place, is a matter beyond their control. It would be deeply ironic if
those who support continuation of the war beyond the terms of the congressional
authorization were able to divide members of the Armed Services on patriotism
grounds because some are able to be extricated before others, based on the
happenstance of policy, legal, and constitutional exigencies.
Q-4. Along
the same lines, New York Times reporter Michael R. Gordon on January 20,
2008
(http://www.nytimes.com/2008/01/20/weekinreview/20gordon.html?ref=weekinreview)
raised
arguments about our presence in Iraq that are heard frequently, namely, that
the U.S. mission is now to bolster the counterinsurgency and that withdrawal
from Iraq in the near term would be disastrous–possibly even enabling genocide.
To quote
the piece: “That strategy [counterinsurgency] made the protection of Iraq’s
population a paramount goal in an effort to drive a wedge between the people
and the militants and to encourage Iraqis to provide intelligence that the
American military forces need to track down an elusive foe. . . . “Unless you
are suppressing insurgents the way the Romans did — creating a desert and
calling it peace — it typically can take the better part of a decade or more,”
said Andrew Krepinevich, a military expert at the Center for Strategic and
Budgetary Assessments. . . “The paradox,” he added, “is that counterinsurgency
requires convincing the Iraqis of our staying power. At the same time, the
American people view success in terms of how quickly we can pull out.”
A. First,
H. __ is not, strictly speaking, an antiwar bill, though it is clear that many
of its proponents are against continued U.S. presence in Iraq and were against
authorizing and executing the invasion and occupation of Iraq. H. __ asserts
that the legal authority for the call-up of the Vermont National Guard has
expired and that no subsequent or independent authorization may be said to
apply to the federalization of the Vermont Guard. Under this bill’s legal
assumptions, Congress can enact a new Iraq AUMF that has not by its terms expired but clearly applies
to forces now deployed and to be deployed in Iraq. That new AUMF could
authorize the continued federalization of members of the Vermont Guard.
But
without wading into the merits of the debate about the war, it should be noted
that the tenor of the Gordon piece–that democracy can be an impediment to
conducting war properly–has had some calamitous results in the past and that
balancing the views of Gordon and Krepinevich are well-founded opinions that
the long-term presence of American armed forces in Iraq will make it harder,
not easier, for that nation to achieve peace and reconciliation among opposing
factions.
Q-5. How
can the federal government be compelled to send Vermont National Guard members
back to Vermont if Congress has not even mandated a timeline for withdrawing
U.S. troops?
A. The
question of continuing the war and the question of keeping state National Guard
members in federal status are separate. State Guard members are “on loan” to
the United States Armed Forces, even though they are members of both the
National Guard of Vermont and the National Guard of the United States. They are
called into federal service under what is like a lease subject to a condition
subsequent, and that condition has occurred: The expiration of the 2002 AUMF by
its own terms–its goals having been achieved or having become irrelevant.
While the
legal effect of this expiration is uncertain with respect to a continuation of
the occupation of Iraq, proponents of this bill believe that the legal case for
terminating the federalization of National Guard members on the basis of the
expiration of the AUMF is stronger, at least absent new, independently valid,
grounds for their retention, such as (1) a congressional extension of the 2002
AUMF, (2) a new AUMF that would “tack” onto the 2002 AUMF, or (3) an event or
occurrence in the world so threatening to our national interest that state Guard members could be called up
without a prior AUMF under the terms of the 1973 War Powers Resolution.
In sum, proponents believe that
the federal government has no ongoing authority to hold members of the Vermont
Guard in federal service, whether or not the expiration of the 2002 AUMF
mandates a withdrawal of all U.S. forces from Iraq.
Q-6. Why
do you include Sec. 5 of the bill (“No member of the Vermont National Guard
shall decline, while serving in the U.S. armed forces, to follow military
orders”)–which should go without saying?
A.
Two reasons. First, proponents want to
be absolutely certain that the bill is not misunderstood as directly
authorizing members of the Vermont Guard to terminate their assignment to the
National Guard of the United States. And second, it underscores the philosophy
of the bill–to use such power as Vermont may have to end the current
federalization and deployment of members of the Vermont Guard, but not to
assert powers that the State clearly does not have.
Q-7. The
2002 AUMF cites two grounds for the use of force, the second of which is to
“enforce all relevant United Nations Security Council resolutions regarding
Iraq.” The principal Security Council
Resolution on Iraq was Resolution 1441, adopted on November 8, 2002. Since the
beginning of hostilities on March 20, 2003 there have been additional Security
Council resolutions concerning Iraq. Can’t it be argued that U.S. forces are
authorized to remain in Iraq to enforce these resolutions and that on these
grounds the 2002 AUMF is, in effect, extended or expanded?
A. No, and
for several reasons. First, and most basically, the AUMF may only refer to UN
resolutions in existence, and hence incorporated by reference, on the date the
AUMF became law. Nothing in the AUMF suggests that U.S. forces should be
engaged to enforce future resolutions, the scope and content of which were
necessarily unknown and unknowable in 2002. (And it would be an extreme example
of impermissible delegation by Congress.)
Second,
the Security Council resolutions before and after March 20, 2003 by their texts
and context not only belie any attempt to interpret the AUMF as effectively
extended or expanded, but on the contrary underscore that the AUMF has by its
terms expired.
Security
Council Resolution 1441 in November 2002 dealt with the threat to international
security posed by Iraq’s WMD and its nuclear program. Two of its preamble
clauses (out of many more preamble and operative clauses) make the point:
Recognizing the threat
Iraq's non-compliance with Council resolutions and proliferation of weapons of
mass destruction and long-range missiles poses to international peace and
security,
* *
*
Deploring the fact
that Iraq has not provided an accurate, full, final, and complete disclosure,
as required by resolution 687 (1991), of all aspects of its programmes to
develop weapons of mass destruction and ballistic missiles with a range greater
than one hundred and fifty kilometres, and of all holdings of such weapons,
their components and production facilities and locations, as well as all other
nuclear programmes, including any which it claims are for purposes not related
to nuclear-weapons-usable material, Security Council Resolution 1483, adopted
May 22, 2003, dealt almost exclusively with financial, humanitarian, and
technical aspects of the unified command occupying Iraq at that date. One of
its preamble clauses stated: “Reaffirming also the importance of the
disarmament of Iraqi weapons of mass destruction and of eventual confirmation
of the disarmament of Iraq.” (Emphasis supplied.) On May 22, 2003, two
months after the initiation of the conflict, the Security Council could still
reiterate concerns about WMD. That reiteration could not and was not repeated
in subsequent resolutions.
Resolution 1546 was adopted on June 8, 2004, noting transfer
of power from the Coalition Provisional Authority to the Iraqi Interim
Government.
Resolution
1723, adopted November 28, 2006, extended the mandate of the multinational force
until December 31, 2007. But the talk of WMD and covert nuclear programs is
gone. The focus is rather on stabilizing and rebuilding Iraq. The contrast
between 1441 and 1723 could not be greater, just as the mission recited in the
AUMF and the present military goals of the United States in Iraq–stated by the
President and underscored by Gen. Petraeus–could not be greater.
Put more
succinctly, the UN and the US acknowledge that the mission in Iraq has shifted
dramatically since the war began in 2003. The specific goals of the AUMF–the
triggers for federalization of National Guard members–have not been confirmed,
extended, or re-validated by the evolution of Security Council resolutions on
Iraq from 2002 to 2006. On the contrary, the Security Council resolutions
underscore that the goals of the AUMF have either been met or are no longer
applicable.
Q-8
Some might argue that continued war funding appropriations by Congress imply
a congressional reauthorization of the occupation of Iraq. Where do those
arguments go wrong?
On May 1, 2007 President Bush vetoed H.R. 1591,
explicitly because that resolution established a date for withdrawal from Iraq.
The U.S. House of Representatives attempted to override the Bush veto, and
again won a majority for a withdrawal timetable, this time by a vote of
222-203. While the veto override fell short, requiring as it did a 2/3
supermajority, a congressional majority once again demonstrated its belief that
the 2002 AUMF was no longer in play. The appropriations votes, therefore,
should be seen as just that -- appropriations of funds, not authorizations of
war.
