HCR 8 - The Battle against Federal Tyranny Continues (printable)

Topic: Constitutional Issues
HCR 8 - The Battle against Federal Tyranny Continues

This article reviews legislation that demands that National Guard troops be returned to state service as the current use of these troops in Iraq is unconstitutional and in violation of the AUMF.
by Libertea
(libertarian)
Wednesday, March 4, 2009

Once again, it is my great pleasure to be writing about legislation introduced in my home state of New Hampshire, this time by Representatives Weed, Roberts, and Splaine. HCR8 not only seeks to protect the rights of the State, but also the lives of the members of the New Hampshire National Guard by calling for the return of all New Hampshire National Guard members currently serving in Iraq and refusing to consent to further deployments of New Hampshire National Guard soldiers to Iraq unless a legal Congressional mandate for their service is passed. According to Liberty Tree, also similar legislation has been introduced or is pending in Alaska, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Wisconsin

According to the New Hampshire Army National Guard, 1100 of the 1700 active soldiers have been deployed to Iraq and Afghanistan since 2001 and four of these soldiers have been killed in action. It has proved virtually impossible to find the numbers of National Guard troops deployed since 2003 on a national level; however; I continue to seek this information and will provide it once it becomes available.

In addition to the obvious cost of human life and time spent away from friends and family, there are other less obvious negative effects of the continued reliance on National Guard troops. Some of these impacts were presented in a report by the Defense Science Board (DSB) and include:

While the initial mobilization appeared to be linked to more successful recruiting and retention of National Guard soldiers, there is evidence that in the long run this mobilization may be related to lower interest in joining the National Guard.
15 30% of combat soldiers experience some degree of post traumatic stress disorder in their lifetime. These numbers may be higher for National Guard soldiers because they return to their home environment after deployment and may receive less peer support, have more difficulty accessing to mental health services, and are more likely to face major stressors in attempting to return to civilian life following a deployment.
Some National Guard members face a reduction in income during periods of active service.
National Guard soldiers may lose their employer-sponsored dependent care benefits, such as health insurance, during active service and often do not live in areas where they or their families are able to easily access dependent care services provided by the military. For those who are able to access these services, doing so may require a change in care providers.
The deployment of soldiers and equipment to Iraq reduces the availability of these resources for responding to natural disasters and supporting law enforcement domestically.

HCR8 recognizes these effects along with the financial impact of the war in Iraq, but goes on to say that, regardless of these effects, the current service of National Guard members in Iraq is illegal and cites Article 1, Section 8, Clause 15 of the United States Constitution: "The Congress shall have the power . . . to provide for the calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions".

The authors of HCR8 go on to state that the War Powers Act of 1973 requires the President to gain Congressional approval to deploy US soldiers outside of the country unless the United States is under attack or in serious peril of being attacked by a foreign power. Even then, Congress must provide approval for the troops to remain abroad for more than 60 days. In effect, this Act makes both the President and the Congress responsible for sending state National Guard troops to fight abroad.

In October 2002, President George W. Bush gained Congressional approval for the use of military force in Iraq with a bill entitled Authorization for the Use of Military Force against Iraq or AUMF. Part of what this legislation did was to allow the President to use the armed forces to defend national security against Iraq and enforce applicable United Nations Security Council Resolutions regarding Iraq. At this point, the President had gained Congressional authorization for calling state National Guard members into federal service; however, he was still restrained by the United States Constitution in the purposes that these troops could be used for. Furthermore, the AUMF is specific in authorizing the President to use the United States Armed Forces to defend national security and enforce applicable UN Security Council Resolutions and does not contain a specific timetable for withdrawal of troops from Iraq. Based on this, the authors of HCR8 argue that the withdrawal of state National Guard troops should be based on the constitutionality of their continued federal service and that, at this time, their continued service in Iraq is unconstitutional and in violation of the AUMF.

As discussed above, Article 1, Section 8 of the United States Constitution gives Congress the power to call up the militia in order to "execute the laws of the union, suppress insurrections, and repel invasions". Given that the invasion of Iraq was largely justified by the need to protect the nation from terrorists and weapons of mass destruction believed to be hidden in that country, it is arguable that the initial deployment of National Guard troops was constitutional in that the intent was to repel an invasion. That said, there is no longer a constitutional argument for the presence of National Guard troops in Iraq as this nation no longer represents an imminent threat to the United States.

The AUMF is specific in authorizing the use of the United States military to defend national security and enforce applicable UN Security Council Resolutions. As discussed in the previous paragraph, Iraq no longer poses a threat to national security. Furthermore, UN Security Council Resolution 1859, which is the most recent resolution concerning Iraq, provides scant reason to maintain the current troop levels in Iraq and does not support continuing use of National Guard forces on foreign soil. As a result, the current deployment of National Guard forces in Iraq is not only unconstitutional, but is also in violation of the AUMF.

After a similar (although much more concise) review of the information presented above, the authors of HCR8 close with three resolutions:

To urge the President to order the return of New Hampshire National Guard soldiers from Iraq.
To limit the services of National Guard soldiers to those "within and on behalf of the state of New Hampshire, unless" they are called back to federal service as the result of a declaration of war or on appropriately enacted and still valid federal legislation.
To authorize the New Hampshire Attorney General to defend the decision to consent to or deny further deployment of New Hampshire National Guard soldiers to Iraq or to file suit based on the attempted deployment of these soldiers.

It is my view that the actions just described are the only possible course in the face of the current abuse of power by the Federal government. New Hampshire Legislators began fighting these abuses with HCR 6; which reaffirms the Rights and Powers retained by the states under the United States Constitution. HCR8 continues this fight by demanding that the Federal government stop risking the lives, safety, and well-being National Guard troops who are being used in violation of both the United States Constitution and the AUMF.

This article is dedicated to the soldiers of the New Hampshire National Guard for their bravery, service, and sacrifice both on foreign soil and here in New Hampshire and to the memories of Corporal Scott Dimond, Specialist David Stelmat, Sergeant First Class Robert Rooney, and Specialist Alan Burgess.

The views expressed in this article are those of Libertea only and do not represent the views of Nolan Chart, LLC or its affiliates. Libertea is solely responsible for the contents of this article and is not an employee or otherwise affiliated with Nolan Chart, LLC in his/her role as a columnist.

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