August 16, 2010 — Reeling from the abrupt announcement Aug. 9 that the U.S. Joint Forces Command is targeted for closure, Virginia lawmakers spent the week planning a legal counterattack.
Losing the Norfolk-based command, which employs about 2,800 military and civilian personnel and another 3,000 contractors, could mean job losses for hundreds or even thousands of Virginians.
And the way Defense Secretary Robert Gates plans to dismantle the command may violate U.S. law governing military base realignments and closures, the lawmakers say.
"The gross unfairness of it is hitting everyone," said Rep. Randy Forbes, R-Va. "The federal government does not have an obligation to be job creator," but it does have an obligation to follow the law.
The law in question is the 1990 Base Realignment and Closure Act, which says, in part, that base realignments that involve more than 999 civilian employees must be decided through the Base Realignment and Closure (BRAC) process.
That involves detailed evaluations, analysis and public hearings carried out a specially-appointed BRAC commission. The process can take a year or more.
"I believe a strong legal case can be made that the base closure statutes are applicable because this involves a reduction of more than 1,000 civilian personnel," Sen. James Webb, D-Va., said.
The Virginians plan to explore that strategy in detail Aug. 18 during a "meeting of all the stake holders," about 150 in all, Forbes said, including town mayors, state legislators, business leaders, members of the congressional delegation - and lawyers. "We will bring law firms in," he said. "This is very serious."
Forbes accused the defense secretary of acting "under the cover of night" to plan shutting down the Joint Forces Command.
Webb said Gates may have "acted too hastily" and that he failed to consult with members of the Virginia delegation before making his announcement.
Sen. Mark Warner, D-Va., was only slightly less confrontational.
"I can see no rational basis for dismantling JFCOM," Warner said. "We will work together as a congressional delegation to see what we can do to maintain as many of these JFCOM jobs as possible in southeastern Virginia."
The decision "should be subject to the heaviest scrutiny, including an accurate cost-benefit analysis and a review of the impact on our national security," said Rep. Eric Cantor, R-Va.
Gates "provided very little information on this decision prior to his announcement," said Rep. Bobby Scott, D-Va. "The decision did not go through the normal, thoughtful process that is used when bases are closed."
In response to Gates' announcement, Virginia Gov. Robert McDonnell responded to Gates' Aug. 9 announcement by creating a new commission to save existing military installations in Virginia and attract new military spending.
He estimated that the military spends $56 billion annually in Virginia now.
The Norfolk area alone is home to the world's largest navy base, the U.S. Air Combat Command, Marine Corps Forces Command, an amphibious base, a naval air station, a naval shipyard, a naval weapons station, two Army bases - and Joint Forces Command.
Gates said he wants to close JFCOM because it is no longer needed.
Created in 1999, it was intended to ensure that the four military services trained and fought "jointly," rather than as separate entities.
Now, after fighting multiple wars together, the services have "largely embraced jointness as a matter of culture and practice," Gates said. A four-star command and its accompanying bureaucracy are no longer needed to enforce the concept. JFCOM's responsibilities can be taken over by other parts of the military, he said.
That doesn't mollify the Virginians. Forbes said that because of "the clandestine way" Gates planned to close JFCOM, "this defense secretary has zero credibility." He accused Gates of "trying to skirt the law" on JFCOM and on other occasions.
Last year, Gates "issued a gag order" to prevent Pentagon officials from discussing the defense budget before it was formally presented to Congress. "We think that was illegal," Forbes said.
Gates has also "refused to submit" shipbuilding and aviation plans and failed to provide Congress with a report on Chinese military power. "Members are incensed," Forbes said.
BRAC Doesn't Apply
Perhaps so, but a BRAC expert said Gates "clearly has the authority to take the action he has decided to take" to shut down the Joint Forces Command.
Ray DuBois, a former deputy defense undersecretary for installations and environment, managed the most recent base realignment and closure round, which was completed in 2005. It closed 14 major installations and realigned eight others.
Pentagon lawyers carefully researched the law before giving Gates approval to make the JFCOM announcement, DuBois said.
Gates probably should not have used the term "close," he said, because little at JFCOM is likely to close. "The buildings will be used for something else. JFCOM is on an installation that has many other functions and activities."
The 999-person limit under BRAC that Webb and others are citing "doesn't apply here," DuBois said. Pentagon planners will be careful not to relocate so many people or eliminate so many jobs that they exceed that threshold, he said.
But he said it is appropriate for Virginia lawmakers to ask questions, and that the Pentagon has an obligation to provide answers, numbers and justification for shutting down the command.
Forbes said that if BRAC law turns out not to be the way to block the closure of the Joint Forces Command, there are other ways.
Virginia lawmakers can try to add language to the 2011 Defense Authorization Act blocking the closure, he said.
The bill has been passed by the House, but not yet by the Senate, so language could be added in the Senate or when a conference committee meets to work our differences between the House and Senate versions of the bill, he said.
A provision could also be added to the 2011 Defense Appropriations bill to prevent the Pentagon from spending any money to close down JFCOM, a Republican House aide said.
But there is a lot the Pentagon can do without congressional approval, the aide said.
For example, Gates can go ahead with his plan to cut 50 flag officer positions. Congress imposes a cap on the number of admirals and generals, but it does not set a minimum number, he said. And Gates can reduce the number of contractors the Pentagon hires simply by not renewing their contracts. That's another part of the defense secretary's plan that worries Virginians, where contractors have clustered to be near the Pentagon.
Despite the large military presence in Virginia, the state's congressional delegation "might be feeling a little victimized" because the JFCOM plan is the Pentagon's second recent decision to reduce forces in Virginia, said Travis Sharp, a defense analyst at the Center for a New American Security.
In January, the Pentagon announced it would move an aircraft carrier from Norfolk to Mayport, Fla. The move remains years off, but Virginia officials worry that it will cost Virginia 11,000 jobs and $600 million annually.
But battling the JFCOM closure and carrier move might not be risk-free for Virginia.
"I think you have to have some perspective here," Gates said. "Just to take the example of the Virginia delegation, if as a result of [savings from closing JFCOM] I am able to add a billion or $2 billion to the Navy's shipbuilding program of record, Virginia may well come out with a lot more jobs than it loses."
"The Virginia delegation is going to have to decide whether the potential benefits Gates is offering are worth pursuing and whether kicking up too much dust on JFCOM will hurt shipbuilding," Sharp said. If they manage to save JFCOM, the Virginians "may be shooting themselves in the foot," he said.