In an astonishing bipartisan show of frustration with U.S. support for the brutal Saudi-led campaign in Yemen, the Senate voted 63-37 to advance S.J. Res. 54 (co-sponsored by Senators Sanders, Lee, and Murphy), which directs the President to remove U.S. Armed Forces from “hostilities in or affecting” Yemen within 30 days of the bill’s enactment. Wednesday’s vote sends a welcome, important, and long overdue message that it’s time for the U.S. to end its participation in the conflict and that the upper house of Congress is willing to assert itself in matters of war and peace. As others (including Senator Corker) have noted, as a legal matter, it is highly unlikely to compel the Trump administration to stop its involvement in the war in Yemen absent changes. But this needn’t detract from the strong political signal that Congress is sending both to the administration and to the Saudi-led coalition with this legislation. Fortunately, concerns with the effectiveness of the resolution to achieve its desired ends should be relatively easy to address if Congress wishes to do so.
The resolution relies on a process set up in the War Powers Resolution of 1973 (and subsequent procedural statutes) whereby Congress can vote to direct the removal of U.S. armed forces from “hostilities” that haven’t been authorized by Congress. Under the War Powers Resolution, the introduction of U.S. forces into “hostilities” or a situation “where imminent involvement in hostilities is clearly indicated by the circumstances” triggers a congressional reporting requirement and creates the possibility for an expedited congressional vote to remove U.S. Armed Forces. But it’s a highly imperfect mechanism. The term “hostilities” is nowhere defined by statute, and has been unevenly applied in practice, while the Supreme Court has made pretty clear that a concurrent resolution of Congress cannot become law unless either the president signs it or Congress overrides a presidential veto. What’s more, the Trump administration has already made clear that it does not believe the types of support it has provided or is currently providing to the Saudi-led coalition implicate either the “hostilities” or “imminent involvement” triggers in the 1973 statute. The Statement of Administration Policy (SAP) released around the time of the Senate’s vote lays out the legal argument that, even if enacted, the resolution will be essentially toothless:
The fundamental premise of S.J. Res. 54 is flawed— United States forces are not engaged in hostilities between the Saudi-led coalition and Houthi forces in Yemen. Since 2015, the United States has provided limited support to member countries of the Emirati and Saudi-led coalition, including intelligence sharing, logistics, and, until recently, aerial refueling.… [N]o United States forces have been introduced into hostilities, or into situations where hostilities are clearly imminent, in connection with ongoing support to the Saudi-led coalition. As a result, this United States support does not implicate the War Powers Resolution.
A letter earlier this year from DoD’s then-Acting General Counsel to the Senate makes similar points.
What all this means is that if S.J. Res. 54 passes in the Senate, and if a companion version of S.J. Res. 54 is passed in the House (where Republican members recently used procedural maneuvers to bottle it up), and if the bill has enough votes to survive a presidential veto (as threatened in the SAP), we would most likely still end up at an impasse: Congress may well argue it has prohibited U.S. support, but the Executive will continue to claim that none of the activities the United States has engaged in are implicated in the congressional edict to pull back from “hostilities.”
Before ever reaching such a point, those opposing the legislation might summon the specter of a War Powers Resolution run amok to discourage support for the bill. They might argue that, while it’s not precisely clear what the Senate thinks removal from “hostilities in or affecting Yemen” means, it is probably best read to cover all current U.S. support activities, including intelligence sharing and logistics support, in Yemen. This, they will assert, would mean a significant expansion of the War Powers Resolution’s ambit. In the same vein, they might argue that this kind of expansion would insert Congress into decision making about factually similar activities elsewhere.
We have several answers to the legal concerns that have been raised about the Senate bill.
First, the impasse that S.J. Res. 54 will create if enacted in its current form is not a trivial concern, but it is certainly not cause to pull support from the bill or the broader efforts it represents. Even if the bill does nothing other than send a message to the Saudi-led coalition that its conduct in the Yemen war (combined with the murder of Jamal Khashoggi) are doing increasingly grave damage to the U.S.-Saudi relationship on both sides of the aisle, and that a course correction is imperative, the legislation will have performed an important service.
Second, for those worried about downstream effects on the War Powers Resolution, there are significant impediments to those becoming manifest. The longstanding ambiguity in the use of the term “hostilities” in war powers context, combined with the lack of a definition in S.J. Res. 54 in particular, will likely prevent this resolution from becoming a strong precedent for altering the way in which the War Powers Resolution is interpreted going forward. The same would be true even if the House adopts the companion legislation it is considering.
Third, if this legislation prompts a conversation about how the executive branch has developed an excessively narrow interpretation of “hostilities” in the War Powers Resolution, and how this has been used to keep Congress from properly overseeing the U.S. role in armed conflicts around the world, then good. That is a conversation that is long overdue.
And finally, if the Senate wishes to avoid the legal impasse the bill would set up if enacted in its current form, it has some very good options. For example, since the bill could potentially still be amended before further votes next week, a simple provision could be added to outright prohibit any further intelligence or logistics support activities to any members of the Saudi-led coalition (while retaining the carveout in the current text for operations directed at al Qaeda). Amendments could also suspend Direct Commercial Sales licenses for maintenance and sustainment of fighter aircraft used in offensive operations, or prohibit future foreign military sales for use in the Yemen conflict, among other options Ryan Goodman has outlined elsewhere.
Some of these measures are included in the bipartisan ‘‘Saudi Arabia Accountability and Yemen Act of 2018,” recently introduced by Senators Menendez, Young, Reed, Graham, Shaheen, and Collins. No further action on that bill was planned until the new Congress is seated. But if the political will is there to take meaningful action, then why not use S.J. Res. 54 as the vehicle for enacting them into law now? It is long past time to cut off U.S. support for the brutal conflict in Yemen, and members of Congress should do all they can to capitalize on the momentum they have helped create.