NEW YORK SENATE RESOLUTION

J7126 - 2008 Session

SPONSORED BY SEN. ADAMS AND PERKINS

LEGISLATIVE RESOLUTION urging the President of the United States and the
 Secretary of Defense to withdraw all New York National Guard troops from
 Iraq  in the absence of a valid and subsisting Congressional mandate for
 such service and memorializing the Department of Defense to  cancel  the
 pending  deployment  of  those  New  York  National  Guard troops in the
 absence of such mandate
 
 WHEREAS, The war in Iraq has entered its sixth year,  resulting  in  the
 deaths of over 4,000 American service men and women, over 30,000 wounded
 and countless cases of post-traumatic stress disorder, among other seri-
 ous  and  often  permanent conditions; wounded service people have over-
 whelmed the veteran's hospitals, which now have serious patient backlogs
 and funding shortfalls; and
   WHEREAS, The cost of war now exceeds $1.3 trillion, $16,500  for  each
 American family of four, and continues to rise; and
   WHEREAS,  New  York  cities  on high alert for national security spend
 hundreds of millions of dollars to pay police for overtime  because  New
 York  State National Guard members are deployed to Iraq, and communities
 near four New York nuclear power plants have expressed concern that  the
 planned  removal  of National Guard members will impair their ability to
 respond to accidents or other events at the plants; and
   WHEREAS, Sixty-five percent of New York State's National Guard  equip-
 ment  such  as  trucks  and  vehicles  and 81% of chemical detectors and
 alarms have been shipped to Iraq, impairing New York State's ability  to
 respond to an emergency; on the other hand, 88% of National Guard forces
 in  Iraq  were  deemed "not ready" because they were so poorly equipped;
 and
   WHEREAS, Even if such adverse impacts on the New York  National  Guard
 were  absent,  and  assuming  arguendo  that  the  war  was  lawful when
 commenced, the presence of the Guard members in Iraq is not now  lawful;
 under Article I, Section 8, Clause 15 of the United States Constitution,
 Congress  may  call  forth the militia to execute the laws of the Union,
 suppress insurrection, and repel invasions; and
   WHEREAS, Since 1933, federal law has provided that  persons  enlisting
 in  a  state  National  Guard unit simultaneously enlist in the National
 Guard of the United States, part of the United States Army;  the  enlis-
 tees retain their status as state guard members unless and until ordered
 to  active  federal  duty  and  then  revert  to state status upon being
 relieved from federal service; and
   WHEREAS, Under the United States Constitution, each  state's  National
 Guard  unit  is  controlled  by  the  governor, but can be called up for
 federal duty by the President, provided that  the  President  is  acting
 pursuant to the Constitution and laws of the United States; and
   WHEREAS,  The  War Powers Act of 1973 (Public Law 93-148) specifically
 limits the power of the President of the United States to wage war with-
 out the approval of Congress; and
   WHEREAS, In October 2002, the United States Congress authorized  mili-
 tary force under the Authorization for the Use of Military Force Against
 Iraq,  (Public  Law  No. 107-243) (AUMF), a law enacted in response to a
 presidential request under the War Powers Act; the AUMF stated  in  part
 that  the  President is authorized to use the armed forces of the United
 States as he determines to be necessary  and  appropriate  in  order  to
 defend the national security of the United States against the continuing
 threat  posed  by  Iraq and enforce all relevant United Nations Security
 Council Resolutions regarding Iraq; and
   WHEREAS, The AUMF contained neither a termination date, nor a  process
 or procedure to determine when the authorization should terminate; and

   WHEREAS,  United  States  forces,  including  members  of the New York
 National Guard and guard members  from  other  states  have  long  since
 addressed  the purposes recited under the AUMF, and Iraq does not pose a
 continuing threat to the national security of the United States, nor  is
 there  an extant and relevant United Nations Security Council Resolution
 to be enforced within the meaning of the AUMF; and
   WHEREAS, The President may not maintain United States Forces,  and  in
 particular  members  of  the New York National Guard, in Iraq other than
 for the purposes set forth by Congress in the AUMF; without  a  specific
 date  for  withdrawal of United States forces from Iraq in the AUMF or a
 method or formula for determining the time for withdrawal,  and  in  the
 absence  of Congressional legislation curing these omissions, the Presi-
 dent is required to order the withdrawal of troops within  a  reasonable
 time and in a reasonable manner; the President has taken no such action;
 and
   WHEREAS,  Other than the AUMF, there is no authority under the Consti-
 tution or the laws of the United States for the  continued  presence  of
 New York National Guard members in Iraq; and
   WHEREAS,  The  maintenance  of New York National Guard members in Iraq
 beyond the time and scope set forth in the AUMF has resulted in  signif-
 icant  harm to Guard members and their families, including combat deaths
 and  suicides,  permanent  injuries,  physical  and  mental   suffering,
 disruption  of  employment,  often involving loss of livelihood, loss of
 affection and companionship, and other needless hardships;  now,  there-
 fore, be it
   RESOLVED, That the Congressional Authorization for the Use of Military
 Force  of October 16, 2002, has expired and no further authorization has
 been issued, and therefore the President is memorialized  to  order  the
 return  of all units of the New York National Guard from Iraq, and cease
 future deployment of New York National Guard members to Iraq; and be  it
 further
   RESOLVED,  That the New York National Guard shall hereafter be limited
 to service within and on behalf of the State of New York, unless  called
 into  federal service pursuant to a declaration of war or a duly enacted
 and substituting federal statute authorizing the use of military  force;
 and it be further
   RESOLVED,  That  the New York Attorney General be authorized to appeal
 in any state or federal court with jurisdiction over the  deployment  of
 the  New  York  National Guard to defend any decision to consent, or not
 consent, to the deployment of the New York National Guard to Iraq; or to
 file an action on behalf of the State of New York with  respect  to  the
 same subject matter; and be it further
   RESOLVED, That copies of this Resolution, suitably engrossed, be tran-
 smitted to The Honorable David A. Paterson, Governor of the State of New
 York;  President George W. Bush; and Robert Michael Gates, United States
 Secretary of Defense.