Bring Home NY's National Guard

My thanks to John David Baldwin for his research and help in drafting this position statement.

The Governor of New York is Commander-in-Chief of New York's Army and Air National Guard and has the power to bring New York's National Guard troops home fom Iraq. As Attorney General, I will support use of the Gubernatorial Veto Power to bring New York's National Guard troops home fom Iraq.

The Governor of New York State, not the President, is the commander-in-chief of the New York's Army and Air National Guard. The governor is also commander of the New York Guard, which serves only in the state, not overseas. With this status as commander comes the right to veto the use of State National Guard units by the federal government if the causes for which the guard is called up do not meet constitutional requirements.

Under the Supreme Court's decision in Perpich v. Department of Defense, there are four grounds upon which the governor of New York can veto the president’s continued deployment of New York's National Guard units:

!. The war was not legally declared. Congress has not issued a formal declaration of war as it is required to do by the Constitution. Furthermore, the invasion was not approved by the United Nations, which is a violation of the U.N. Charter. The Constitution says that all treaties the U.S. signs (which includes the Charter) automatically become part of the Constitution.

2. The President declared the war over. On May 1, 2003, President Bush, standing on the deck of the U.S.S. Abraham Lincoln, announced that “major combat operations in Iraq have ended.” If “major” combat operations had ended, that logically left only “minor” combat operations to be taken care of. So if the New York State National Guard troops deployed in Iraq were not to be sent home right away, surely they should have been within the next few weeks or months after Bush’s speech. More than three years have passed since that battleship declaration of peace.

3. An “endless war” violates states’ rights.The failure of the Bush administration to set a timetable for withdrawal of the National Guard units, and references administration officials have made to "endless wars" and wars that will not end "in our lifetimes," are illegal attempts to turn the National Guard units into federal forces. As the wording of Judge Stevens’ decision in Perpich makes clear, this is a violation of f the Constitution.

4. Too many of New York's National Guard units have been deployed to Iraq. In Perpich, Justice Stevens writes, “The Minnesota unit, which includes about 13,000 members, is affected only slightly when a few dozen, or at most a few hundred, soldiers are ordered into active service for brief periods of time. Neither the State's basic training responsibility, nor its ability to rely on its own Guard in state emergency situations, is significantly affected.” In contrast, the number of National Guard units sent abroad in the Iraq invasion is significant. This has caused hardship for New York which does not have the Guard units to depend on in “state emergency situations.” The present possibility of natural and manmade disasters requires the presence of our National Guard units in New York.

New York has a clear and present need for our National Guard units to return.

The governor should immediately veto their deployment to Iraq.