Letter from US Senators Mitch McConnell and Jim Bunning to Chairman Principi dtd 05 August 2005 Page: 2 of 12
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We believe that the legal position opposing DOD's recommendation is not an overly
compelling one. The Congressional Research Service has examined this issue in detail
and concluded that of the two relevant statutory provisions that might prove an obstacle
to the BRAC Commission havy-ing the authority to transfer Air National Guard units (10
U.S.C. 1.8238 and 32 U.S.C. 104(c)), the first is essentially unpersuasive and "cogent
arguments" can be made against the second.' Furthermore, these provisions govern
National Guard "units." The proposed transfer of four planes, however, does not
constitute the transfer of a "nit." It only involves assets, thus further strengthening
DOD's legal position.
If it is decided that the BRXC Commission does not have the authority to require
realignment of Air National Guard assets, then the BRAC Commission should
recommend that the prior realignment of four planes from Louisville to Gowen Field,
Boise, Idaho be reversed based on legal authority DOD currently enjoys. Such an
interpretation would be consistent with the intent of Congress, the importance of which
your Deputy General Counsel acknowledged in his memorandum of July 14, 2005.2
While there may be some dispute as to the BRAC Commission's ability to realign
National Guard units, there should be no disputing Congress's authority in this vein.
If DOD exceeded its authority in the first place by moving the planes from Kentucky,
then the transfer is null and void and should be rescinded.
As a policy matter, we also believe that there are compelling reasons for having these
fbur planes returned to Louisville. First, the 123rd Airlift Wing, Kentucky Air National
Guard can immediately use 12 C-130H aircraft for the war effort. The Kentucky Air
National Guard requires only the additional four aircraft for the National Guard to be
combat ready, fully manned, equipped, and trained. As of June 30, the Air National
Guard Bureau Recruiting and Retention Report indicated that the Louisville Airlift Wing
was 97.6 percent manned, compared to Nashville, which was manned at only 89.2
Moreover, DOD has proposed specific locations for the 12 C-130H aircraft to provide an
optimal regional response to surrounding Midwest and Southern states in support of the
Emergency ManagementHomeland Defense and/or Security Compacts. Kentucky can
respond quickly, assisting all neighboring states in the event of natural disaster or terrorist
attack, and the Commonwealth is geographically positioned and jointly organized to be
the regional cargo provider for homeland defense.
The 123rd Special Tactics Squadron (123 STS) is unique to Louisville. The 123 STS
contains both combat controllers and pararesquers with the ability to provide Search and
Rescue command and control. While other states have Civil Support Teams (fornnally
Congressional Research Service, Base Realignment and Cloure of National Guard Facilities:
.4pplication of U US C. 18238 ana 32 USCf 104(c), July 6, 2005.
SIn FY1992, 12 C-13011 aircraft 'were purchased for the 123r' Airlift Wing in Louisville at the direction of
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Letter from US Senators Mitch McConnell and Jim Bunning to Chairman Principi dtd 05 August 2005, letter, August 13, 2005; (https://digital.library.unt.edu/ark:/67531/metadc20553/m1/2/: accessed April 25, 2019), University of North Texas Libraries, Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.