As our federal government prepares to deploy another 12,000 National Guard troops to Iraq, this would be an appropriate time to examine the type of orders that are used to justify sending so many of our citizen soldiers off to fight in a foreign war -- orders that by any reasonable measure are completely illegal.
I had the opportunity to sit down with General Caldwell, the number two man in the Oregon National Guard, to express my concerns about the process that has been used to justify these deployments. I had requested a copy of the deployment orders, and as soon as he handed the paperwork over to me, it became obvious that I had underestimated the seriousness of the situation the Oregon National Guard is facing.
The convoluted process revealed in these deployment orders looks like something we could expect from a Banana Republic -- not something that a free country would use to send troops off to war. You can view scans of the orders here.
The U.S. and Oregon Constitutions are very concise regarding the deployment of the state militia/National Guard troops -- and without question, the orders that have sent our men off to Iraq and Afghanistan are in direct conflict with both Constitutions, which state that the only authorities that can call up the National Guard are the U.S. Congress, and the state governor - and even then only under very specific circumstances.
The U.S. Constitution is clear and unambiguous: "Congress shall have power to provide; for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions." (Article 1 Section 8 Clause 15.)
The Oregon Constitution uses nearly identical language: "The Governor shall be commander in chief of the military, and naval forces of this State, and may call out such forces to execute the laws, to suppress insurrection, or to repel invasion." (Article 5, Section 9)
The National Guard's own charter concurs: "The Army National Guard's charter is the Constitution of the United States. Article I, Section 8 of the U.S. Constitution contains a series of "militia clauses, vesting distinct authority and responsibilities in the federal government and the state governments..."
This means that for reasons other than "to execute the laws of the union, suppress insurrections and repel invasions," there are NO conditions for a legal call up of the state militia/National Guard - no matter who it is that wants to send our troops off to war. This would obviously rule out deployments to "execute laws, repel invasions or suppress insurrections" in other people's countries. This would also prohibit using/abusing the Guard to overthrow evil dictators, spread freedom and democracy throughout the world at gunpoint, (aka "cluster bomb diplomacy") or to "fight them over there rather than over here."
What is probably the most disturbing reality that comes out of even a cursory read of the Constitution, is that in spite of what we are being told by the madmen who have seized control of our government, there is NO circumstance whereby the President is given ANY authority to call up the National Guard on his own - a constitutional provision that has been routinely ignored.
The scans are a little hard to read, but listed under the "Authority" section of the order is a reference to USC Section 12302 and Presidential Executive Order 13223. Taken together, these two "authorities" allow the President to declare a national emergency and deploy 1,000,000 National Guard troops, to anywhere he wants, without the approval of Congress. Since there is no definition of what comprises a "national emergency," the President could theoretically declare an emergency whenever the notion pops into his head - a power no President should ever be allowed to have.
Once this national emergency is declared, it triggers a somewhat magical suspension of the U.S. and state Constitutions, bypassing the restrictions detailed in Article 1, Section 8. Instead, according to USC 12302, "an authority designated by the Secretary concerned" (exactly which concerned secretary this would be is not defined - hopefully not the same secretary who makes the coffee!) can deploy up to one million guard troops for up to two years, with no apparent restraint on their mission - without asking for permission from anyone!
Talk about dangerous! Talk about illegal!
Here is how the scam works; These deployment orders are legitimized under the authority, and obscurity, of US Code 12302, (of which there is no record of it ever being voted on!) which is triggered into action by the equally dubious Executive Order 13223 - a presidential sleight of hand void of even a shadow of legality. This leaves us with two "authorities" - both complete usurpations of the Constitution - legitimizing each other through a circular form of very twisted logic.
Under our Constitution, neither the President, (even if we had a sane one!) nor "an authority designated by the Secretary concerned," has any authority to deploy the National Guard. That is the exclusive responsibility, and duty, of the U.S. Congress or the state governor - and even then only under very specific circumstances. Deployment orders that use the "authority" of US Codes and Executive Orders, in lieu of the Constitution, turn that principal completely upside down. (Maybe that's why they call it a "Code")
It is enough to make one's head spin!
Some would say that these illegal deployment orders are permitted, since numerous legislative actions over the years, such as the appropriately named "Dick Act" of 1903, have given cover for these constitutional usurpations. There is also the nonsensical rumor of a "shadow Guard," which is the federal version of the state Guard that every member of a state Guard unit supposedly also swears allegiance to. Those events may have all transpired, but they are all completely irrelevant, as any Act, law, Executive Order, or secret code that is in conflict with the U.S. Constitution, is null and void.
Those who adhere to the claim that the militia has been disbanded in favor of a national army should tread down that road with great caution - as the 2nd amendment makes a distinct tie between the right to bear arms and a well armed militia.
Things really start to enter into the surreal when we look at the "signature page" of the orders. The first thing we will notice is that there are NO signatures. There is not even a name for the Governor, only a somewhat cryptic "BY ORDER OF THE GOVERNOR." Which governor would that be? We are left to wonder.
It is understandable why Governor Kulongoski would not want his signature on such a sorry excuse for a deployment order. We would not want our names on those orders either!
There is no record of the governor refusing to send our troops to Iraq or Afghanistan - even though their deployments had nothing to do with fulfilling their only legal mission, which is to "execute the laws, to suppress insurrection, or to repel invasion." Contrary to the oath Mr. Kulongoski swore to defend the U.S. and Oregon Constitutions, he allowed his authority to be used on illegal "orders" that sent thousands of our young men and women off to fight and die in foreign wars.
There is a good case to be made that such behavior by a governor is tantamount to treason.
Rather than attending the funerals of our fallen soldiers, maybe Kulongoski should start obeying the law - by ending his complicity to the war crimes being committed in Iraq. He needs to start supporting the Oregon National Guard when they really need him - long before he allows them to be used for target practice in a vast Iraqi shooting gallery!
All of these shenanigans beg the question, "Are we living in a Banana Republic?"
Dave Brownlow, a regular columnist for NewsWithViews.com, is Vice Chairman of the Constitution Party of Oregon, and a veteran of three congressional campaigns. He is an engineer, entrepreneur, and 25 year political and pro-life activist. He resides in Damascus, Oregon with Suzanne, his wife of 25 years, and their four children. Their son Jared is currently deployed to Iraq with the U.S. Army.