MONTPELIER — A Harvard law professor told a Vermont Senate committee on Tuesday the state would be hard-pressed to launch a legal argument for bringing its National Guard troops home from Iraq when Congress keeps appropriating money for the war.
David Barron told the Senate General Affairs and Economic Development Committee that the military operation in Iraq had gone "beyond what was contemplated at the time of authorization to use military force" in 2002.
The committee was taking testimony on a bill — which its chairman gave little chance of passage — that would authorize Gov. Jim Douglas to order that Vermont National Guard troops be brought home from Iraq.
Backers of the measure say the main reasons given for the war when Congress authorized President Bush to pursue it in 2002 — fears that Iraq had or was developing weapons of mass destruction and Saddam Hussein's oppression of his own people — no longer exist because none have been found and Saddam is dead.
Montpelier lawyer Benson Scotch, a for-mer head of the American Civil Liberties Union in Vermont who is active in anti-war causes, submitted written testimony saying that "under federal law, without an authorization from Congress, units of a state National Guard may not be called into service" by the federal government.
The purposes of the 2002 authorization have been accomplished or have lapsed, making it no longer enforceable, Scotch argued.
But Barron told the committee that Congress' continued funding for the war, even after purportedly anti-war Democratic majorities were elected in the 2006 elections, likely would defeat the contention that the authorization had lapsed if the matter went to court.
"As a legal matter, the appropriations have been specific enough and consistent enough," to constitute continuing authorization of the war, Barron said.
The committee also heard from Peter Teachout and Michael Mello, professors at Vermont law school, and from Rep. Michael Fisher, D-Lincoln.
Fisher argued that circumstances had changed enough in Iraq to make the initial authorization to use military force no longer valid.
"The bill before you does one simple thing. It puts into Vermont law, the requirement that federal laws be followed – before we allow our Vermont Guard to go into federal service," Fisher said. "When the president asks for the use of our Guard to fight a war, we owe it to them to make sure the request is legal."
Teachout urged the committee to limit the bill so that it would not allow the governor to order already deployed troops home, but said it should allow the governor to refuse to allow more Vermont National Guard troops to be deployed to the war zone.
Sen. Vincent Illuzzi, R-Essex-Orleans and chairman of the panel, said after the hearing that he did not expect the bill to pass.
"I'd say the prospects of the bill moving are slim," Illuzzi said. "But I don't want to diminish the quality of the debate. It's a debate that there's a certain segment of our society demands that we have, and the Constitution requires it. It's part of the system of checks and balances ... between states and the federal government."MORE IN Central Vermont
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