N.Y. state senators’ challenge of Guard deployments to Iraq may be illegal
August 22, 2008
ARLINGTON, Va. — Two New York state lawmakers’ efforts to prevent the National Guard from going to Iraq might not be legal.
Newsday first reported on Monday that State Sens. Eric Adams and Bill Perkins had proposed legislation that would urge New York’s governor to refuse to allow the state National Guard to go to Iraq.
"The governor has the power to decide if our National Guard troops are to be used on a federal level," the newspaper quoted Adams as saying. "Our resolution will call on him to do just that."
But the law does not give state governors an absolute right to veto National Guard deployments.
Title 10 of the U.S. Code lays out the conditions under which reserve component troops can be called to active duty. While governors are required to give their permission for the federal government to activate their state’s National Guard troops, there’s a catch.
"The consent of a governor described in subsections (b) and (d) may not be withheld (in whole or in part) with regard to active duty outside the United States, its territories, and its possessions, because of any objection to the location, purpose, type, or schedule of such active duty," according to the law.
Attempts to reach Adams and Perkins for comment were unsuccessful by deadline Thursday.
Retired Army Gen. Barry McCaffery said the lawmakers’ proposal has "zero legal basis" and "zero likelihood" of happening.
McCaffery noted that the president has the ability to federalize the National Guard against a governor’s wishes, as was the case when President Eisenhower took the Arkansas National Guard away from Gov. Orval Faubus to integrate Little Rock Central High School.
Still, the two state senators have a legitimate point to make, said McCaffery, a Vietnam and Desert Storm veteran and former head of U.S. Southern Command.
The National Guard is under-resourced and overstretched to the point where it is "ill-prepared" to deal with another war or a crisis at home, he said.
A spokesman for the National Guard Bureau gave a more optimistic view of the situation.
While the National Guard is working on equipment issues, recruiting remains steady, said Rick Breitenfeldt.