Remarks Of Sen. Patrick Leahy
National Defense Authorization Act For Fiscal Year 2007
Conference Report
Congressional Record
September 29, 2006

Mr. President, I rise to express my grave reservations about certain provisions of the Fiscal Year 2007 Defense Authorization Bill Conference Report. This legislation poorly handles key provisions related to the National Guard, which — as the events since September 11th have highlighted — is critical to our Nations’ defense. The final conference report drops the reforms known as the National Guard Empowerment Act, a bill that would have given the National Guard more bureaucratic muscle inside the Pentagon. It would have cleared away some of these administrative cobwebs and given the Guard the seat at the decision-making table that it needs and deserves. It also should concern us all that the Conference agreement includes language that subverts solid, longstanding posse comitatus statutes that limit the military’s involvement in law enforcement, thereby making it easier for the President to declare martial law. There is good reason for the constructive friction in existing law when it comes to martial law declarations.

Combined, these moves amount to a double punch against the National Guard. The National Guard has done so much to protect the security and safety of our country. Yet the Authorization Bill sends the signal that we are not interested in truly supporting them. This conference report says we do not want to address glaring problems that have surfaced during their increasingly frequent deployments. And, incredibly enough, it says to the Guard that other military forces are better to carry out tasks here at home. In short, this bill goes in the wrong direction.

The Guard’s Accomplishments

Let’s review what the 500,000 men and women of the National Guard do for the country. The National Guard is essential to the military’s missions at home and abroad. More than 10,000 members of the National Guard are currently called up for domestic operations, most along the border and involved in counter-drug operations. Almost 60,000 citizen-soldiers are deployed overseas, almost 40,000 involved in Iraq deployments. Over 6,000 members of the Air Guard are deployed. And let’s remember, that at the high-water mark, the Guard made up almost 40 percent of the troops on the ground in Iraq.

It is also clear that we are going to need the Guard even more in the future. Consider the information reported in a New York Times article from last Friday. The active U.S. Army is being deployed at such a high rate that it appears increasingly likely that the National Guard is going to need to be tapped once again to make the troop levels.

Any way you cut it, the National Guard is absolutely essential to our Nation’s defense. We cannot fight our wars abroad, we cannot secure the country at home, and we cannot response to large-scale emergencies without the Guard.

The Need for Empowerment

Given the fact that the National Guard is one of the country’s most valuable and needed forces, one would think that our leaders in the Department of Defense would be spending significant time developing policies and budgets plans that truly support the Guard. For example, I would think it logical to make the replacement of the Guard’s aging and worn equipment a priority. I would think it logical to give the National Guard a stronger voice in policymaking decisions and in setting budgetary priorities that affect the National Guard. I clearly see the benefits of deferring to the Adjutants General and the Nation’s governors, those who control and oversee the Guard, when determining how best to utilize Guard at home during domestic emergencies.

Instead of these good policy goals and practices, we have only a long list of unfair and ill-conceived decisions from the Pentagon that do very little to support the Guard in reality. And these examples are only the tip of the iceberg.

Last December, the Army and the Air Force decided to try to make precipitous cuts to the National Guard. The Army sought to cut the Army Guard by almost 17,000 soldiers, while the Air Force drove for reductions of almost 14,000 airmen. These personnel cuts were made without consultation with the National Guard Bureau, the States Adjutants General, and the nation’s governors. While Congress was successful in turning those recommendations back, the fact remains that the active force still desired to balance its budgets at the expense of the Guard.

In late Spring of last year, the Air Force forwarded a list of base closure recommendations the cut deeply into the Air National Guard. The closure list took away flying missions in States in which the Air National Guard is the only Air Force presence in the State. No consideration was made of this crucial link between local communities and the armed forces. Nor did the Air Force consider the Air National Guard’s homeland security capabilities. Why were such ill-advised recommendations made? The reason is that the Air National Guard was not involved in the force structure review process.

Similarly, in 2002, there was no consultation with the Air National Guard when the Air Force decided to take away the Air National Guard’s B-1 bomber units, which, as a GAO study underscored, were cheaper to operate, more efficient, and more effective than their active duty counterparts.

Further, since September 11th, a torturous debate has developed in the Pentagon whenever the National Guard is needed for a large-scale operation at home, such as during Hurricane Katrina. We have learned that the Guard works optimally at home when it serves under the command-and-control of the nation’s governors, with federal reimbursement, under Title 32 of the federal code. This Title 32 status ensures that locally elected officials remain in control of military forces operating at home. Because the National Guard comes directly out of these local communities, posse comitatus statutes do not apply. This Title 32 arrangement has been used most recently to increase security at the border, but it has previously been used effectively to have the Guard provide added security at the Republican and Democratic National Conventions, the G-8 Summit, the nation’s airports, and around the Capitol Building in Washington.

There seems to be some kind of reflexive reaction within the Department of Defense against having the Guard and the Governors remain in control of operations at home. In fact, a sizeable contingent exists within the Pentagon to have the active duty military control the National Guard and other military personnel and assets. So, every time there is a natural disaster or other emergency, the Pentagon engages in a lengthy debate back-and-forth about control of the Guard. To date, these debates have led to sensible outcomes. But it should not be so difficult and uncertain.

Finally, the National Guard has little influence at the senior ranks within the Army and the Air Force. The number of high-ranking officers is completely imbalanced between the Guard and the active forces. While the National Guard constitutes a high percentage of our total number of ground troops, it has just a sliver of the overall percentage of three- and four-star General officers. And, while the Air National Guard constitutes a high percentage of the Air Force’s mobility assets and a similarly high percent of its strike assets, the Air Guard has a negligible share of the high-ranking positions, where important decisions are made.

Empowerment: A Sensible Move Ahead

The National Guard Empowerment Act seemed to be a logical response to these ill-advised policy positions and imbalanced bureaucratic structure. The entire thrust of the legislation rests in increasing the bureaucratic muscle of the National Guard. The idea behind it is to prevent some of these ill-advised policies from moving forward. More importantly, the legislation is designed to firmly identify the uses of the National Guard, ensure the force is ready and equipped for its critical homeland security missions by bringing its organizational ties in line with its real responsibilities and accomplishments.

Specifically, the legislation, as included in the Senate’s version of the Defense Authorization Bill contained four major provisions. First, it would elevate the Chief of the National Guard Bureau from the rank of Lieutenant General to full General. Second, the Deputy Commander of United States Northern Command, the military headquarters designed to oversee military forces used in the United States operationally would be mandated to come out of the ranks of the National Guard. Third, the National Guard would be redefined as a joint bureau of the Department Defense, rather than a branch of Army and the Air Force, enabling the Guard to maintain its role as the primary military reserve, while allowing the National Guard to avoid bureaucracy within the Defense Department. Finally, the National Guard would have formally be tasked with working with the States to identify gaps in their resources to respond to emergencies at home.

This proposal is not only targeted, but also modest. Our original legislation, S. 2658, the National Defense Enhancement and National Guard Empowerment Act of 2006, would have additionally placed the Guard Bureau chief on the Joint Chiefs of Staff and given the National Guard separate budget authority. Though we still believe these provisions are important to empowering the National Guard fully, we listened and understood the objections of other senators. We dropped those provisions in the amendment to the Defense Authorization bill to reach a consensus where even more members would agree to the amendment, beyond the already 40 senators who are co-sponsoring the baseline legislation.

The Defense Authorization Conference:
Outcome, Argument Against, And Explanation

We can all acknowledge that the National Guard is essential to our Nation’s defense, that there has been some questionable policy-making affecting the Guard in recent years, and that the Empowerment Bill represents a positive step towards strengthening the Guard. Yet where does the final Conference Report on the Defense Authorization Bill end up on Guard Empowerment?

Not only does this Conference Report unfortunately drop the Empowerment amendment entirely, it adopts some incredible changes to the Insurrection Act, which would give the President more authority to declare martial law. Let me repeat: The National Guard Empowerment Act, which is designed to make it more likely for the National Guard to remain in State control, is dropped from this conference report in favor of provisions making it easier to usurp the Governors control and making it more likely that the President will take control of the Guard and the active military operating in the States.

The changes to the Insurrection Act will allow the President to use the military, including the National Guard, to carry out law enforcement activities without the consent of a governor. When the Insurrection Act is invoked posse comitatus does not apply. Using the military for law enforcement goes against one of the founding tenets of our democracy, and it is for that reason that the Insurrection Act has only been invoked on three — three — in recent history. The implications of changing the Act are enormous, but this change was just slipped in the defense bill as a rider with little study. Other congressional committees with jurisdiction over these matters had no chance to comment, let alone hold hearings on, these proposals.

While the Conference made hasty changes to the Insurrection Act, the Guard Empowerment Bill was kicked over for study to the Commission on the National Guard and Reserve, which was established only a year ago and whose recommendations have no real force of law. I would have never supported the creation of this panel — and I suspect my colleagues would agree with me — if I thought we would have to wait for the panel to finish its work before we passed new laws on the Guard and Reserve. In fact, we would get nothing done in Congress if we were to wait for every commission, study group, and research panel to finish its work. I have been around here over 30 years, and almost every Senator here knows the National Guard as well as any commission member. We don’t need to wait, and we don’t need to study the question of enhancing the Guard further. This is a terrible blow against rational defense policy-making and against the fabric of our democracy.

Since hearing word a couple of weeks ago that this outcome was likely, I have wondered how Congress could have gotten to this point. I can only surmise that we arrived at this outcome because we are too unwilling to carry out our Article I, Section 8 responsibilities to raise and support an Army. We have it in our Constitutional power to organize the Department of Defense. The Goldwater-Nicholas Act that established a highly effective wartime command structure and the Nunn-Cohen legislation that established the now-critical Special Operations Command came out of Congress. If the then-stale leadership of the Pentagon had its way, these two critical bills would never have seen the light of day. Today, however, the Pentagon is just as opposed to the Empowerment legislation, and instead of asserting its power, the Congress is punting — just kicking it down the field and out of play.

Also, it seems the changes to the Insurrection Act have survived the Conference because the Pentagon and the White House want it. It is easy to see the attempts of the President and his advisors to avoid the debacle involving the National Guard after Hurricane Katrina, when Governor Blanco of Louisiana would not give control of the National Guard over to President and the federal chain of command. Governor Blanco rightfully insisted that she be closely consulted and remain largely in control of the military forces operating in the State during that emergency. This infuriated the White House, and now they are looking for some automatic triggers — natural disasters, terrorist attacks, or a disease epidemic — to avoid having to consult with the governors.

A Final Summary

And there you have it -- we are getting two horrible policy decisions out of this Conference because we are not willing to use our Constitutional powers to overcome leadership that ranges from the poor to the intemperate in the Pentagon and the White House. We cannot recognize the diverse ways that the Guard supports the Country, because the Department of Defense does not like it — simply does not like it.

Because of this rubberstamp Congress, these provisions of this conference report add up to the worst of all worlds. We fail the National Guard, which expects great things from us as much as we expect great things from them. And we fail our Constitution, neglecting the rights of the States, when we make it easier for the President to declare martial law and trample on local and state sovereignty.

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