WASHINGTON -- A top lawyer for the base closure commission is questioning whether the Pentagon has the legal authority to close Air National Guard bases around the country, including Otis Air Guard Base on Cape Cod, concluding that shuttering or relocating certain units ''presents a significant policy concern or outright legal bar."
At issue is a series of recommendations made by the Pentagon in May that would result in the largest reorganization in the history of the Air National Guard, the flying units that during peacetime are under the command of state governors.
The internal memo from Dan Cowhig, deputy general counsel for the Base Realignment and Closure Commission, indicates that the independent panel reviewing the Pentagon's list of proposed closures may have no choice but to overturn Secretary of Defense Donald H. Rumsfeld's recommendation to close Otis.
Under the Pentagon plan, the 102d Fighter Wing's 12 F-15 fighter jets would be relocated from Cape Cod to bases in Florida and New Jersey. But the memo questions whether the commission has the legal authority to order the shifting of forces from one place to another.
''Where the commission finds substantial deviation or a legal bar, it must act to amend the [Pentagon's] recommendation, where possible, to correct the substantial deviation or overcome the legal bar," Cowhig wrote in a memo dated yesterday, a copy of which was obtained by the Globe.
The Pentagon recommended grounding 29, or about one-third, of the Air National Guard units across the country and relocating hundreds of aircraft as part of a nationwide overhaul of all active-duty and National Guard facilities.
But the Defense Department and the BRAC commission may not have the power to make such changes, according to Cowhig's memo, which was approved by his boss, BRAC general counsel David Hague. Relocating aircraft may be particularly problematic, according to the memo. It said that Congress must decide to change the size or structure of the Air National Guard. The Base Closure Act does not permit such changes.
''Where Congress has authorized the purchase of certain aircraft with the express purpose of equipping the Air Guard of a particular state or territory, the commission may not approve any recommendation action that would contravene the intent of Congress," the memo said.
It added, ''Congress alone is granted the authority by the Constitution to equip the Armed Forces of the United States. Congress did not delegate this power to the Commission through the language of the Base Closure Act."
Earlier this month, at a public hearing in Boston, Massachusetts officials told commission members that the closure of Otis would seriously undermine state emergency preparedness plans and leave New England vulnerable in the event of a terrorist attack or disaster. The move would leave the region with only two fighter planes on alert within a 175-mile radius of Boston, what Governor Mitt Romney called ''impractical" and ''potentially dangerous."
James Bilbray, one of nine BRAC commissioners, said last night that they are considering reversing at least some of the Pentagon's recommendations on the Air National Guard. The panel will issue its recommendations to the president and Congress in September.
''We're going to make some changes," he said in a telephone interview, citing conversations he has had with commissioners. ''It's just how many and to what extent." He said some planes would probably be transferred, but not nearly as many as the Pentagon has proposed.
''The Pentagon has managed to make about 30 governors really mad," he said. ''That's pretty hard to do. But they've done it." He added: ''It's a big fight right now," but predicted that ''after the BRAC finishes, most of them will be happy."
Many governors, including Romney, have complained that they were not consulted before the Pentagon made its recommendations. On Monday, Governor Ed Rendell of Pennsylvania filed a lawsuit against Rumsfeld for seeking to move the 111th Fighter Wing of the Pennsylvania Air National Guard without seeking approval of the ''Commander-in-chief of the Pennsylvania National Guard" -- the governor.
''I am very concerned that neither I nor my adjunct general was consulted in the Air Force process," Romney said last week. ''Because the wing and the base are part of the Massachusetts Air National Guard, and because they form a critical component of my state's homeland security plan, our involvement should clearly have been sought and considered."
Globe staff writer Matt Viser contributed to this report.