Frequently Asked Questions about the AUMF, National Guard, and Guard recall

August 1, 2006
Benson Scotch, legal counsel to the Vermont authors

Q-1. Aren’t questions of war and peace exclusively within the province of the federal government?

A. In general, the Congress and the President share war powers under the Constitution. The states do have some powers with respect to their national guards, but Congress has whittled away at the scope of these powers, particularly after 1903, when The Dick Act was passed creating the rudiments of the present dual system of joint state and federal National Guards.

But state National Guard members are only federalized, i.e., are incorporated into the National Guard of the United States, pursuant to federal law, typically when U.S. Armed Forces are deployed pursuant to a congressional authorization for the use of force, or for training. The present bill assumes, arguendo, that the 2002 Authorization for the Use of Military Force (AUMF) was valid authority for the President to initiate the use of military force in Iraq, and further assumes that the AUMF was enacted pursuant to the War Powers Resolution of 1973, notwithstanding the President’s assertion that he had the power under Art. II of the Constitution as commander-in-chief of American Armed Forces to initiate operations without the necessity for an AUMF.

It is unclear how, when, and by whom hostilities initiated under the AUMF may be brought to a close. The principal division of power, and the center of the debate over winding down a war authorized by any authorization for the use of military force, are the respective powers of Congress and the President. It seems likely that so long as Congress continues to fund ongoing operations in Iraq, any congressional repeal of the AUMF (none seems likely in the immediate future) would not be effective against the President’s decision to continue operations. If the outcome of that legal debate is unclear, even less clear it the act or event that would reconstitute Vermont members of the National Guard of the United States as members of the Vermont National Guard. Again, Congress is probably estopped to complain about continued operations, so long as it does not cut off war funding, but the estoppel would not necessarily apply to the states. Vermont Guard members were called up on the strength of the AUMF and no other underlying federal authorization, such as a presidential statement that the war was commencing in Iraq on the strength of his Article II powers.

The bill recites that the stated purposes of the 2002 AUMF have been achieved or are no longer relevant. Even though the political question doctrine will keep the courts from determining whether the AUMF remains in force or whether its statement of limited purpose (i.e., Saddam and U.N. resolutions about Iraq), has any relevance to (1) whether current National Guard call-ups should be declared ended or (2) whether future Guard call-ups may be made on the strength of the AUMF, the states have an interest in those questions as advocates and protectors of their National Guards, and this bill seeks to pursue that interest, stressing areas of potential state power and acknowledging the limits of that power as a legal and practical matter.

Q-2. Isn’t this “bill” really a resolution, since it doesn’t mandate any action and is merely the Legislature’s opinion that the AUMF has expired?

A. If the bill becomes law, Vermont will decline to recognize a call to federalize members of the Vermont National Guard on the strength of the 2002 AUMF. Since the status of the AUMF is uncertain, proponents cannot represent that the State’s decision, in effect, to challenge an additional call-up based on the lack of a valid AUMF will be successful. But the bill is not a call to civil disobedience–it does not involve a refusal by a member of the Armed Forces to follow an order of a superior officer. The federalization process is a civilian process, and the bill is a demand for a recitation of authorization and authenticity in the requisition from the federal government. If the matter is resolved in a federal court, it is clearly understood that a final order of a court from which appeal has not been taken or is declined by an appellate court will be followed by either the federal government or the State of Vermont.

Q-3. Isn’t it unfair–or even unpatriotic–to set in motion a mechanism for the return of National Guard members from Iraq, while other members of the Armed Forces would remain in Iraq and might have to shoulder additional burdens?

A. No. Members of the Armed Forces have always served in various capacities as members of the Regular Army, of the Reserves, or as members of the National Guard of the United States, each with different service obligations. Once federalized, a state National Guard member assumes her or his persona as a member of the National Guard of the United States, indistinguishable in the field from other soldiers. They serve alike with honor and skill. The length of the National Guard members’ active service, no less than the reasons they were called up in the first place, is a matter beyond their control. It would be deeply ironic if those who support continuation of the war beyond the terms of the congressional authorization were able to divide members of the Armed Services on patriotism grounds because some are able to be extricated before others, based on the happenstance of policy, legal, and constitutional exigencies.

Q-4. Along the same lines, New York Times reporter Michael R. Gordon on January 20, 2008 (http://www.nytimes.com/2008/01/20/weekinreview/20gordon.html?ref=weekinreview)
raised arguments about our presence in Iraq that are heard frequently, namely, that the U.S. mission is now to bolster the counterinsurgency and that withdrawal from Iraq in the near term would be disastrous–possibly even enabling genocide. To quote the piece:

“That strategy [counterinsurgency] made the protection of Iraq’s population a paramount goal in an effort to drive a wedge between the people and the militants and to encourage Iraqis to provide intelligence that the American military forces need to track down an elusive foe. . . . “Unless you are suppressing insurgents the way the Romans did — creating a desert and calling it peace — it typically can take the better part of a decade or more,” said Andrew Krepinevich, a military expert at the Center for Strategic and Budgetary Assessments. . . “The paradox,” he added, “is that counterinsurgency requires convincing the Iraqis of our staying power. At the same time, the American people view success in terms of how quickly we can pull out.”

A. First, H. __ is not, strictly speaking, an antiwar bill, though it is clear that many of its proponents are against continued U.S. presence in Iraq and were against authorizing and executing the invasion and occupation of Iraq. H. __ asserts that the legal authority for the call-up of the Vermont National Guard has expired and that no subsequent or independent authorization may be said to apply to the federalization of the Vermont Guard. Under this bill’s legal assumptions, Congress can enact a new Iraq AUMF that has not by its terms expired but clearly applies to forces now deployed and to be deployed in Iraq. That new AUMF could authorize the continued federalization of members of the Vermont Guard.

But without wading into the merits of the debate about the war, it should be noted that the tenor of the Gordon piece–that democracy can be an impediment to conducting war properly–has had some calamitous results in the past and that balancing the views of Gordon and Krepinevich are well-founded opinions that the long-term presence of American armed forces in Iraq will make it harder, not easier, for that nation to achieve peace and reconciliation among opposing factions.

Q-5. How can the federal government be compelled to send Vermont National Guard members back to Vermont if Congress has not even mandated a timeline for withdrawing U.S. troops?

A. The question of continuing the war and the question of keeping state National Guard members in federal status are separate. State Guard members are “on loan” to the United States Armed Forces, even though they are members of both the National Guard of Vermont and the National Guard of the United States. They are called into federal service under what is like a lease subject to a condition subsequent, and that condition has occurred: The expiration of the 2002 AUMF by its own terms–its goals having been achieved or having become irrelevant.

While the legal effect of this expiration is uncertain with respect to a continuation of the occupation of Iraq, proponents of this bill believe that the legal case for terminating the federalization of National Guard members on the basis of the expiration of the AUMF is stronger, at least absent new, independently valid, grounds for their retention, such as (1) a congressional extension of the 2002 AUMF, (2) a new AUMF that would “tack” onto the 2002 AUMF, or (3) an event or occurrence in the world so threatening to our national interest that state Guard members could be called up without a prior AUMF under the terms of the 1973 War Powers Resolution.

In sum, proponents believe that the federal government has no ongoing authority to hold members of the Vermont Guard in federal service, whether or not the expiration of the 2002 AUMF mandates a withdrawal of all U.S. forces from Iraq.

Q-6. The 2002 AUMF cites two grounds for the use of force, the second of which is to “enforce all relevant United Nations Security Council resolutions regarding Iraq.” The principal Security Council Resolution on Iraq was Resolution 1441, adopted on November 8, 2002. Since the beginning of hostilities on March 20, 2003 there have been additional Security Council resolutions concerning Iraq. Can’t it be argued that U.S. forces are authorized to remain in Iraq to enforce these resolutions and that on these grounds the 2002 AUMF is, in effect, extended or expanded?

A. No, and for several reasons. First, and most basically, the AUMF may only refer to UN resolutions in existence, and hence incorporated by reference, on the date the AUMF became law. Nothing in the AUMF suggests that U.S. forces should be engaged to enforce future resolutions, the scope and content of which were necessarily unknown and unknowable in 2002. (And it would be an extreme example of impermissible delegation by Congress.)

Second, the Security Council resolutions before and after March 20, 2003 by their texts and context not only belie any attempt to interpret the AUMF as effectively extended or expanded, but on the contrary underscore that the AUMF has by its terms expired.

Security Council Resolution 1441 in November 2002 dealt with the threat to international security posed by Iraq’s WMD and its nuclear program. Two of its preamble clauses (out of many more preamble and operative clauses) make the point:

Recognizing the threat Iraq's non-compliance with Council resolutions and proliferation of weapons of mass destruction and long-range missiles poses to international peace and security,

* * *

Deploring the fact that Iraq has not provided an accurate, full, final, and complete disclosure, as required by resolution 687 (1991), of all aspects of its programmes to develop weapons of mass destruction and ballistic missiles with a range greater than one hundred and fifty kilometres, and of all holdings of such weapons, their components and production facilities and locations, as well as all other nuclear programmes, including any which it claims are for purposes not related to nuclear-weapons-usable material,

Security Council Resolution 1483, adopted May 22, 2003, dealt almost exclusively with financial, humanitarian, and technical aspects of the unified command occupying Iraq at that date. One of its preamble clauses stated: “Reaffirming also the importance of the disarmament of Iraqi weapons of mass destruction and of eventual confirmation of the disarmament of Iraq.” (Emphasis supplied.) On May 22, 2003, two months after the initiation of the conflict, the Security Council could still reiterate concerns about WMD. That reiteration could not and was not repeated in subsequent resolutions.

Resolution 1546 was adopted on June 8, 2004, noting transfer of power from the Coalition Provisional Authority to the Iraqi Interim Government.

Resolution 1723, adopted November 28, 2006, extended the mandate of the multinational force until December 31, 2007. But the talk of WMD and covert nuclear programs is gone. The focus is rather on stabilizing and rebuilding Iraq. The contrast between 1441 and 1723 could not be greater, just as the mission recited in the AUMF and the present military goals of the United States in Iraq–stated by the President and underscored by Gen. Petraeus–could not be greater.

Put more succinctly, the UN and the US acknowledge that the mission in Iraq has shifted dramatically since the war began in 2003. The specific goals of the AUMF–the triggers for federalization of National Guard members–have not been confirmed, extended, or re-validated by the evolution of Security Council resolutions on Iraq from 2002 to 2006. On the contrary, the Security Council resolutions underscore that the goals of the AUMF have either been met or are no longer applicable.