Last week, the Senate debated a resolution proposed by Senators Sanders, Lee, and Murphy under the War Powers Resolution (WPR) to end U.S. assistance to the Saudis in their war against the Houthis in Yemen, unless and until Congress specifically authorized such assistance. Although the resolution was stopped, 55 to 44, Sen. Bob Corker (R-Tenn.), Chair of the Senate Foreign Relations Committee, while urging defeat of the resolution, promised that the Committee would hold a hearing on U.S. assistance to the Saudis. While last week’s debate was caught up in issues concerning the applicability the WPR, committee consideration should focus on whether to continue U.S. support for the war.
If Sen. Corker follows through on his promise, committee members will have the opportunity to debate and decide whether continued assistance by the U.S. makes sense. They can, and should, do so without getting ensnared in what is a separate issue about the applicability of the WPR to this situation. The opponents of such assistance can draft a straightforward prohibition on U.S. assistance without reference to the WPR.
Going forward, separating the debate about continued U.S. assistance to Saudi Arabia from a debate about the applicability of the WPR will help ensure that Congress meets its responsibility to decide the assistance issue, without affording supporters of such assistance a war powers argument that distracts rather than clarifies the merits of the assistance question.
A brief recap of what happened is useful. The resolution, S.J. Res. 54, introduced by Sanders, Lee and Murphy invoked the War Powers Resolution Act (50 U.S.C. 1544) “to direct the removal of United States Armed Forces from hostilities in the Republic of Yemen that have not been authorized by Congress.” Drafting the resolution in reliance upon the WPR had the salutary effect of securing a floor debate and vote in the Senate, when the Majority Leader otherwise would have undoubtedly prevented floor consideration. The WPR provides special rules for congressional consideration of resolutions brought to effectuate its provisions, in order to make consideration by the entire chamber easier and to make it harder for a few Members to stop floor debate and votes on questions of war and peace. (For a more fulsome outline of WPR procedures, see here.)
Although the resolution itself was defeated, the sponsors were successful in obtaining a congressional debate and vote while the Saudi Crown Prince was visiting Washington, sending a message that there is considerable concern in Congress about the U.S. assistance. The congressional and public debate surrounding the Yemen resolution involved two separate issues: whether the term “hostilities” used in the WPR applies to the current U.S. activities supporting Saudi war efforts; and separately whether those actions should continue or are contrary to U.S. national interests. Much of the opposition to the resolution focused on the argument that current U.S. activities do not amount to “hostilities” as used in the WPR.
As ably laid out by Oona Hathaway and Aaron Haviland, whether the WPR applies to the current U.S. activities is not clear. The Defense Department argued that it does not – a position apparently taken by the Obama administration which started the assistance – and therefore that the resolution’s text requiring removal of U.S. forces from hostilities, even if enacted, would be meaningless in this situation.
However, debating whether U.S. activities in Yemen come within the statutory definition of hostilities in the WPR, or whether they constitute “war” — an even harder argument– obscures the more fundamental point. Congress should explicitly debate and vote on whether the United States should participate in a war being fought by another state against a force with which the U.S. is not itself at war, regardless of the provisions of the WPR. Doing so is congress’ constitutional responsibility.
If Sen. Corker follows through on his promise of committee consideration, the Senate can act in furtherance of this responsibility and avoid getting tangled in the arcane meaning of the WPR. It can do so by simply debating and voting on whether the specific U.S. assistance, which the sponsors of the Yemen resolution sought to end, should be continued. The opponents of such assistance can draft a straightforward prohibition on such U.S. assistance or craft conditions for its continuance.
Any such bill should be specific: for example, the Yemen resolution listed the specific activities the sponsors sought to end, which did not include weapons sales. The current bill introduced by Sens. Todd Young (R-Ind.) and Jeane Shaheen (D-NH), for example, does not do this. It purports to condition U.S. assistance on certain certifications, but then undercuts that requirement by exempting U.S. assistance to Saudi missions related to “Iranian terrorist activities in Yemen.” The Executive branch is quite likely to read the exemption to cover all Saudi war efforts against the Houthis, thus negating any conditions requirement.
Going this route — debating a bill that prohibits or conditions specific U.S. activities — will focus on the question at hand: what to do about the current U.S. assistance to the Saudi war efforts. The larger questions concerning the definition of hostilities or war can wait for another day.
Photo above: Sen. Mike Lee (R-UT), (L), and Sen. Bernie Sanders (I-VT), introduce a joint resolution to remove U.S. armed forces from hostilities between the Saudi-led coalition and the Houthis in Yemen, on Capitol Hill February 28, 2018, by Mark Wilson/Getty Images.