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A challenge from state officials to the Pentagon's proposed reorganization of the Air National Guard is not over, despite a Justice Department opinion that the units can be shuttered as part of the base-closure and realignment round.

The 14-page opinion, released Friday, said the Defense Department can close or realign a National Guard base without the consent of the governor, contradicting one of the main arguments put forth by state lawmakers and Guard leaders.

"It would have been a surprise if they ruled any differently," said Maj. Gen. Frank Vavala, Delaware's adjutant general and a vocal opponent of the Pentagon's recommendations. "I figured [the Justice Department] would side with the Pentagon on this."

Vavala, who also serves as vice president of the Adjutants General Association of the United States, said the Guard will continue to meet with the independent commission reviewing the Pentagon's recommendations.

"We particularly are utilizing ... congressional delegations in every state to contact the individual commissioners and continue to reiterate our cases," Vavala said. If the commission upholds the Pentagon's Air Guard recommendations, Delaware will lose its fleet of C-130s, grounding the Air Guard in that state.

The Air Guard recommendations -- which would strip all aircraft from nearly two dozen units -- has become the most contested issue in this base-closure round. At least three states have filed lawsuits, arguing that altering the state-run units would be unconstitutional and infringe on a governor's ability to organize a militia. A lawyer for the commission came to a similar conclusion in a legal brief written last month. The Justice Department, however, noted that the Guard functions both as a state militia and as a reserve component of the active duty military.

"The modern National Guard descends from efforts that Congress began in the early twentieth century both to revive the long-dormant 'Militia' described in the Constitution and, spurred by World War I, to make it an effective complement to the regular Armed Forces," the document states.

In addition, the Justice Department concluded that the Pentagon can move aircraft during base-closure rounds. The scope of the Base Closure Act, Justice Department officials found, is broad, as is the definition of realignment, which includes any action that reduces or relocates military functions. Guard leaders have argued that moving aircraft is a programmatic decision, and as such should not be made part of base closures.

"There are programmatic, force-structure recommendations in BRAC, which we feel are illegal and shouldn't be there," Vavala said.

BRAC Commissioner Harold Gehman last week said the programmatic argument was just one small piece of the overall debate and not the deciding factor. The commission will decide on their own base-closure recommendations next week and forward their list to the president by Sept. 8. Guard officials plan to work until the last minute to save the units.

"This is another legal opinion. It still has to go to court and a judge can decide," Vavala said.

COMMENTS

• You can't be KING if you have to listen to all these Governors. They should just do what the nice president tells them and shut up. Besides, the nice president doesn't like the courts, nor does he listen to them (the recent DHS ruling and DOD's decision to press on comes to mind). Let the good old boy be KING. The nerve of those states that don't agree. Mark Gibson Posted August 18, 2005 1:04 PM
• So, now what are the states going to do to enlist the best and the brighest of our youth? These kids of today know what is going on and they will just say no to enlisting in the military, that would be all of them, Army, Navy, Air Force and Marine. National Guard or Air Guard it is all the same, maybe these rich republicans will enlist, I doubt it. GovExec.com reader Posted August 16, 2005 7:03 AM
• "The Justice Department, however, noted that the Guard functions both as a state militia and as a reserve component of the active duty military." In other words, the justice department didn't solve anything. So it belongs in the courts. Should the states lose, then perhaps it is time to eliminate the nation's guard units. And to begin a draft. As a guardsman of 13 years, I would ashamed to see that happen. But under this President, he has taken more states rights than any other Republican. GovExec.com reader Posted August 16, 2005 1:46 AM