James Marc Leas, January 8, 2022 | Cancel the F-35
NOTE from Safe Skies Clean Water WI: This article focuses on Vermont, but of course the same issues are relevant here in Wisconsin.
The court ruled that governors have command authority over National Guard training and must conform the Guard training to US military regulations that protect health!
One week ago, a federal judge in Oklahoma issued an order in a state National Guard vaccine mandate case that, as a side-effect, shredded legitimacy from F-35 training in Vermont cities. The brilliantly written 29-page court decision clearly explained the constitutional provision, the federal law, and how Department of Defense (DoD), Army, and Air Force regulations set the discipline for national guard training to protect health.
Who has the authority of training national guard units?
Under the order issued by Federal District Judge Stephen P. Friot on December 28, 2021, the states are responsible for “Appointment of the Officers, and the Authority of training the Militia” according to “the discipline prescribed by Congress.” The judge wrote that this allocation of responsibility and authority is envisioned by the militia clause of the Constitution “and envisioned as well by Congress.”
The judge further amplified state authority over training:
Until such time as a unit of the Guard is “federalized,” that is, ordered into federal service by the appropriate federal authority, the Commander in Chief of the constituent units of the Oklahoma Guard (and of the Oklahoma Guard as a whole) is the Governor…The command authority of the Governor, the Adjutant General, and their subordinates includes such matters as recruiting, training and pressing Guard units into service when necessary within the boundaries of the state.
Not just the Oklahoma governor has this power. All other governors also have command authority over their own state national guard training.
Command authority in Vermont means that the governor is responsible for the 115-decibel F-35 training flights blasting thousands of Vermont families hundreds of times a month in the most densely populated cities in the state. Command authority also means the governor has the power to order an immediate halt to those training flights in cities.
But the Oklahoma federal court decision goes further. Under the judge’s clear analysis, the constitutional mandate to conduct the training “according to the discipline prescribed by Congress” obligates Vermont to stop the F-35 training in cities now.
The training must be according to the discipline prescribed by Congress
The judge wrote that the militia clause of the constitution requires the states to conform the training to the discipline prescribed by Congress. He explained that Congress passed a law making the discipline for training the Army and Air National Guard units of each state the same as that of the US Army and US Air Force. 32 USC 501. Consistently, the Vermont legislature adopted a law that requires the governor to ensure that members of the Vermont National Guard conform to the discipline established for the US armed forces. 20 VSA 361.
Although the military discipline requiring prompt vaccination of all members of the military, including national guard members, against COVID-19 was adopted by the Secretary of Defense in August, such military vaccination requirements had a long history. As a matter of force protection, General George Washington “required members of the Continental Army to be inoculated against smallpox.” Thus, the court denied the Oklahoma governor’s motion to stop enforcement of the DoD’s COVID-19 vaccine mandate for Oklahoma guard members based on the constitution’s discipline clause and on the federal law requiring the states to conform their guard training to the discipline in DoD regulations. The judge wrote:
The Guard was included [in the military vaccine mandate] (i) because “[t]o defend this Nation, we need a healthy and ready force” and (ii) because Department of Defense regulations leave no doubt that the department’s vaccination protocols must, and do, apply as fully to the statutory reserve components [including the national guard] as to the active-duty forces. . . . This, in the midst of a global pandemic, goes to the heart of “the discipline prescribed by Congress.” U.S. Const., art. 1, sec. 8, cl. 16.
The reason the Oklahoma governor lost the case was that his arguments, involving “personal freedoms” and “federal encroachment on state sovereignty” ignored or rejected the constitution’s express provision of authority to congress to set the discipline for the state national guard, particularly the discipline for its training. This argument also ignored the federal law congress enacted that set the discipline as that of the US military services.
Vermont governor admitted facts demonstrating violation of military regulations
In a written statement, the Vermont governor admitted to a reporter for Seven Days that the F-35 training in cities “impacted” civilians and that they imposed a “costs” on civilians. That front-page article, and reports from hundreds of Vermonters show the gubernatorial admission to be a bit of an understatement: the article and reports reveal terrified children, pain, injury, distress, trauma, anger, frustration, and suffering on a mass scale from the 115-decibel F-35 training flights in cities.
The Air Force said in Volume I of the Final Environmental Impact Statement that 6,663 Vermonters, including some 1,300 children, live in the 115-decibel F-35 noise target zone where Volume II says their ears and brains can be damaged by repeated exposure to that F-35 noise. Parts of 3 cities, Burlington, Winooski, and S. Burlington, are immediately adjacent the runway or in the F-35 takeoff and landing flight path.
Still, just like the Oklahoma governor, the Vermont governor continues to ignore or reject the discipline in long-established DoD and Air Force regulations that set standards to protect the health and safety of civilians from military operations.
DoD Directive 2311.01 requires all DoD components and national guard units “to act consistent with the law of war’s fundamental principles and rules” during combat and “in all other military operations.” Therefore, F-35 training operations in Vermont are required to be conducted consistent with the law of war’s fundamental principles and rules.
DoD Directive 2311.01 and other DoD directives and Air Force instructions that the Vermont National Guard is required to enforce go much further in protecting civilians than FAA regulations and US and Vermont environmental laws. If this discipline for the Vermont Guard training was enforced, instead of neglected, the F-35 physical assaults on those 6,663 Vermonters hundreds of times a month would immediately stop. Commanders, soldiers, and airmen would then likely be thrilled that the Vermont National Guard they serve is no longer hurting children with F-35 training flights in cities and no longer acting in violation of military regulations. They could start taking their law-of-war training sessions seriously when the F-35 training moves to a new location away from populated areas so what they learn in those sessions is no longer daily being violated.
The law of war principle of “distinction” mentioned in DoD Directive 2311.01 requires separation of military forces from populated areas so civilians are not impacted. “Honor” reinforces this separation requirement to ensure that civilians are not being used as human shields for the military forces. The principles of “military necessity” and “humanity” prohibit launching an operation that may harm civilians or civilian property for mere training or mere convenience. “Proportionality,” prohibits any military operation from being launched or continued if injury to civilians illegal is disproportionate to its military advantage toward ending the war. Zero harm to civilians is therefore permitted for mere training. Proportionality also requires commanders to take feasible precautions, and the only precaution effective to satisfy proportionality is to conduct the training remote from populated areas.
In addition to requiring compliance with its law of war standards, DoD Directive 2311.01 also requires enforcement of those standards. It also requires members to report those who violate them. It also requires taking action “to ensure accountability,” including by “instituting criminal proceedings.” Yet this directive is blatantly violated by the governor and commanders of the Vermont National Guard, by the inspector general, and by military prosecutors.
Nor has any Vermont legislative committee held hearings to consider the military regulations, US and Vermont laws, and constitutional rights that are also violated. Nor has any civilian prosecutor opened an investigation. Nor even has Vermont news media raised questions about military-regulation and law violation. However, the Oklahoma federal court decision provides opportunity for all that to change.
Instead of simply conforming the training to DoD Directive 2311.01 by conducting the F-35 training remote from populated areas, the governor and commanders obfuscated, blaming an unspecified “federal mission,” as described in the article, “Disinformation alert! Vermont Governor’s spokesman demonstrates sleight of hand!”
For the moment, let’s accept that a federal mission actually did require the training with F-35 jets to be located in a densely populated city. Under the standards in DoD Directive 2311.01, the governor and commanders would be required to refuse that mission.
But it should not even take consideration of the military regulations. They would also be required to refuse that mission under Vermont’s own laws. 13 VSA 1026 says that a person is guilty of disorderly conduct if he or she recklessly creates a risk of public inconvenience or annoyance by making unreasonable noise. Other state laws, including reckless simple assault 13 VSA 1023 and reckless endangerment 13 VSA 1025 are also violated by the 115-decibel noise in Vermont cities.
Nor have the governor and commanders been able to back up their statements about federal mission: No federal mission actually requires the F-35 training to be conducted in a city.
Thanks to the vaccine mandate, we now have a federal court decision that clearly explained the applicable law. Under the constitution itself and under the federal court decision last week, the governor has command responsibility for the training of the state national guard. And the discipline for that training, as prescribed by congress, must be in accordance with DoD directives and Air Force instructions, policies, and doctrine that protect civilians from military operations.
The decision by the federal court in Oklahoma means that alive and well is the division of authority provided by the founders in the constitution. That alive and well are the federal laws that require national guard compliance with the law-of-war standards in the military regulations. And that compliance is mandatory.
Decision leaves no room for Vermont Governor Phil Scott to continue ordering F-35 training in cities
Vermont Governor Phil Scott can find not a shred of support in the Oklahoma decision for blasting cities with 115-decibel F-35 training flights. Unless questioned, he is unlikely to mention this decision because it affirms that Guard training must conform to the standards set in the regulations of the US armed forces. Those regulations make training in a location that inherently harms civilians illegal.
The decision also affirms that, as governor, Phil Scott has the command authority to order an immediate halt to a city location for F-35 training, as required by the US armed forces regulations.
The governor abuses his command authority by ordering training with F-35 jets in Vermont cities to continue instead of using that command authority to order those illegal training flights in cities halted. Instituting criminal proceedings, as provided in DoD Directive 2311.01, is needed now.