Panel OKs Air Guard shake-up

local unit would lose its planes

Legal battles in store over states' rights issues

August 27, 2005|By Phillip McGowan | Phillip McGowan,SUN STAFF

A federal commission voted yesterday to shake up the Air National Guard - including transferring out of state eight airlift planes from a Baltimore County unit - laying the foundation for a legal showdown over whether these airborne state militias are controlled by their governors or the Pentagon.

The Pentagon had proposed removing all aircraft from nearly two dozen Air National Guard bases across the country while realigning dozens of other operations to cut costs.

The nine-member Base Closure and Realignment Commission endorsed restructuring the Air Guard but did not accept Defense Secretary Donald H. Rumsfeld's proposal in its entirety, picking and choosing from his list.

"In parts, we concur with their recommendations. In other areas, we're making some changes," Chairman Anthony J. Principi said.

The governors of the states affected by the Air Guard consolidations - including Maryland's Robert L. Ehrlich Jr. - said they were not consulted.

The chief executives of Illinois, Pennsylvania and Tennessee have filed lawsuits in recent weeks arguing that their right to form militias, vested in the Constitution and enshrined in the nation's Revolutionary War history, supersedes the Pentagon's authority.

Legal experts said the commission's decision sets up a showdown over states' rights that could end up in the Supreme Court.

The states won an early round yesterday when a federal judge in Philadelphia ruled that the Pentagon lacks the power to dissolve a Pennsylvania Air National Guard division without the governor's approval.

U.S. District Judge John R. Padova said Rumsfeld should have gotten consent from Gov. Edward G. Rendell before moving to deactivate the 111th Fighter Wing of the Pennsylvania Air National Guard. The judge said the Pentagon's recommendation to close the unit is "null and void."

Diane Mazur, a law professor at the University of Florida and an authority on civil-military relations, said, "If this decision is upheld and affirmed by other courts, there will need to be a pause in how BRAC is carried out in regard to National Guard units.

"The governors have the right to be consulted and to agree and to disagree" about matters that pertain to their National Guard units, Mazur said. "BRAC gives them no formal role in the process."

Rep. C.A. Dutch Ruppersberger, a Democrat who represents the district including Martin State Airport in Baltimore County, where the Maryland unit is based, described as "overreaching" the Pentagon's efforts to realign Air National Guard units without consulting the affected governors.

"I agree with the decision," Ruppersberger said of the Philadelphia judge's ruling. He said that Guard units protect their states and that the Pentagon's action would handicap their ability to recover from such emergencies as natural disasters and terrorist attacks.

Among the most significant Air Guard decisions, the commission sided with the Pentagon in voting to shut down Kulis Air Guard Station in Alaska. The panel also decided to scale back W.K. Kellogg Airport Air Guard Station in Michigan and Naval Air Station Willow Grove in Pennsylvania.

Commissioners voted to take away all aircraft at those sites and to give the states the authority to decide on the future use of those bases. The Pennsylvania base was the subject of the federal lawsuit, but commissioners said that was not their reason for keeping the base open.

The commission approved late last night the Pentagon's recommendation to transfer eight C-130J cargo aircraft from their base at Martin State Airport in Middle River to Rhode Island and California. There are 123 jobs at the base associated with the planes.

Maryland leaders, while opposing the move of the 135th Airlift Wing, have largely taken a behind-the-scenes approach. The state, which stands to benefit greatly from the Pentagon's realignment proposals, expects a net gain of 6,600 jobs, many of them high-paying science and communications workers, chiefly at Aberdeen Proving Ground and Fort Meade.

At a regional hearing last month in Towson, Ehrlich asked the commission to reconsider the Air National Guard transfer.

Maj. Gen. Bruce F. Tuxill, adjutant general of the Maryland National Guard, said the security needs of the New York-Washington region demanded the presence of a full-time Guard unit.

"Moving them out will deny the Department of Homeland Security immediate airlift capabilities for the National Capitol Region," he said, adding that the nearest base with such planes is 212 miles away, in Youngstown, Ohio.

The planes in Ohio, he said, belong to a reserve unit, so they are not under the control of the governor. They could be dispatched by the federal government, but not by the state to help another state.

"The governor is the commander in chief of the Maryland National Guard. He has the ability to call us to active duty. One would think he'd be advised about changes in the Guard structure. That was the crux of the [Pennsylvania] lawsuit," Tuxill said.

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