With the Pentagon's latest base closing plan all but a done deal, at least three governors -- M. Jodi Rell of Connecticut, Rod Blagojevich of Illinois and Ed Rendell of Pennsylvania -- plan to pursue lawsuits in an effort to save Air National Guard units in their states.
Their renewed pledges of legal action came after the U.S. House of Representatives last week overwhelmingly rejected a measure aimed at stopping the Pentagon's process of streamlining resources at military bases, called Base Realignment and Closure or BRAC.
Observers said last week's vote cements the shutdown of 22 major military bases and the transfer of personnel and equipment at 33 others.
Last week's vote also cleared the way for Connecticut and Illinois to challenge the BRAC recommendations in court. These two states sued to stop the Pentagon from transferring Air National Guard units to other states, but judges said the lawsuits could not proceed until the BRAC decisions became law. Pennsylvania is in the courts, too, to stop Air Guard aircraft from being transferred.
Under the Constitution, each state's National Guard unit is controlled by the governor in peacetime but can be called to federal duty by the president in time of war. Governors contend the Pentagon cannot move the Guard units in question without their permission because they are not under federal authority.
"Federal law is crystal clear on this. You can't move (Air Guard) units around without the consent of their Commander in Chief," said Rich Harris, a spokesman for Rell, a Republican. "And she is not going to give that consent."
At the same time, Pennsylvania officials are embroiled in their own legal battle. A federal judge sided with the governor's office on the Air Guard issue, but the Pentagon last week appealed that ruling.
"It is a matter of state's rights," said Kate Philips, a spokeswoman for the governor, a Democratic. "Gov. Rendell alone has the authority to deactivate the Air National Guard."
Department of Defense officials would not return calls for comment.
The conclusion of the BRAC process effectively caps years of analysis by the military on which bases to close in order to save costs and bolster defenses. In May, the Department of Defense made its recommendations and handed them over to the independent BRAC commission, which reviewed them.
After months of site visits and reports, the BRAC commission voted to shave the number of major base closing from 33 to 22, saving the Naval Submarine Base New London in Connecticut, the Portsmouth Naval Shipyard in Maine and Ellsworth Air Force Base in South Dakota.
The commission also reviewed, and often amended, changes to hundreds of other bases and units across the country.
In September, the commission sent their recommendation to President Bush, who approved the changes that month. With the agreement of Congress, the changes the BRAC commission recommended will become law.
In its final report, the commission recognized the Air National Guard issue as one of the most difficult, encouraging better interaction between the Air National Guard and the Air Force in future BRAC proceedings.