http://www.washingtonpost.com/wp-dyn...081200162.html

Justice Dept. Argues for Pentagon Moves

The Associated Press
Friday, August 12, 2005; 4:12 PM

WASHINGTON -- The Justice Department is siding with the Pentagon in a dispute with some states, concluding that governors' consent isn't needed for the military to move Air National Guard units.

The Pentagon's proposal to close or reduce about 30 Air Guard units has emerged as the most contentious issue facing the independent commission that will decide next month which parts of the Defense Department's base-closing plan to accept or change.

Giving governors what would amount to veto power over the Pentagon's plans, at least with respect to National Guard units, would undermine a process created by Congress to reduce the role of politics in deciding which bases to close, the department said in response to a lawsuit filed by the state of Pennsylvania.

Illinois has filed a similar lawsuit, arguing that the Pentagon doesn't have the authority to move units without the approval of the governors, who share control with the president over use of the units.

In siding with the Pentagon, Justice lawyers said Pennsylvania was asking to return "to a system in which local politics, rather than national planning, determined which facilities were closed and which were spared."

Pennsylvania officials questioned the propriety of the Justice Department offering opinions to the base closing commission while also representing the Defense Department against the state's lawsuit.

"Where is the independent judgment or analysis?" asked Adrian R. King Jr., an aide to Pennsylvania Gov. Ed Rendell.

"As far as this state's concerned, the only opinion that matters is the opinion of a judge in a court of law and that's why we filed the lawsuit," King said.

The Pentagon wants to shift people, equipment and aircraft among at least 54 sites where Air Guard units now are stationed. Roughly two dozen sites would expand, while about 30 would be closed or downsized. In many cases, units would continue to exist but no planes would be assigned to them.

The Air Force says units without planes would receive new non-flying missions and also would retain their roles in supporting the needs of governors during statewide emergencies.

For their part, state adjutants general, who oversee the Air Guard in the states, argued that the plan would prevent units from fulfilling their homeland security missions, including protecting the skies and supporting governors in state emergencies.

The base-closing commission has until Sept. 8 to present its recommendations to President Bush, who can accept or reject it whole, but not part.

___

On the Net:

An interactive map of some affected Air National Guard bases: http://wid.ap.org/interactives/angbases.html

Defense Department: http://www.defenselink.mil

Base closing commission: http://www.defenselink.mil/brac/




Congress was delegated the power
"To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years"

"To provide and maintain a navy"

"To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions"

an army and navy are not the same thing as a state "militia" -- the "militia" or national guard, is under the authority of the governors of the state -- the army and navy are not

"To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress"

the power to "organize, arm and discipline" the militia when employed in the service of the United States is not the power to disband the state militias

the Constitution places no authority in the defense department or the Pentagon to dictate to the governors of the states

"No state shall, without the consent of Congress, . . ., keep troops, or ships of war in time of peace, . . . or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay"

a part-time state militia or "national guard" is not a standing army --- and neither Congress nor the executive branch has the power to disband the "state militia" or "national guard"

--- EVERY STATE has the right to defend itself against the "illegal invasion" of foreign nationals -- with or without the consent of Congress

"The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States"

when the "militia of the several states" is INACTIVE, the president has no authority over them -- the governors of the several states are the "commander in chief"


Amendment II

"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed"

every state has a RIGHT and a duty to have a militia or "national guard" --- and the federal government has no authority to "regulate" the militias of the several states