In a welcome resurgence of congressional interest in asserting its constitutional prerogatives, Congress is considering two types of bills relating to the U.S. role in the devastating conflict in Yemen: legislation currently in the House focused squarely on cutting off U.S. involvement with the Saudi-led coalition, and legislation in the Senate spurred by the brutal murder of journalist Jamal Khashoggi that addresses a broader range of issues in the U.S.-Saudi Arabia relationship, including involvement in Yemen’s civil war.
Both bills are back in the new Congress, but it remains unclear whether either has a path to becoming law. Even if they fail as stand-alone bills, however, today’s debates are worth watching closely: they could inform content on the Yemen war and our relationship with Saudi Arabia in a must-pass vehicle, like the National Defense Authorization Act (NDAA) that Congress is almost certain to put on the President’s desk later this year. With recent revelations that Saudi coalition members have transferred U.S. weapons to al-Qaeda linked groups and other extremists in Yemen, and the Trump administration choosing to skip a deadline last week to report on whether Saudi Crown Prince Mohammed bin Salman is responsible for Khashoggi’s death (as the Senate determined last year), Congress has every reason to keep the pressure on the Executive branch on both U.S. involvement in Yemen’s civil war and Saudi human rights abuses.
Where we are on the War Powers Resolution
Last night, the House Rules Committee voted 9-3 to advance H.J. Res. 37, the House version of legislation under the War Powers Resolution of 1973 (WPR) that “directs the President to remove United States Armed Forces from hostilities in or affecting the Republic of Yemen, except” those engaged in operations against al-Qaeda or its associated forces. The bill, and the White House’s Statement of Administration Policy (SAP) opposing it, are largely a replay of S.J. Res. 54 — the War Powers Resolution bill that passed the Senate in December — and the White House’s SAP on S.J. Res. 54 declaring that the bill would not constrain the Executive’s current support for the Saudi coalition even if it survived a promised presidential veto because that support doesn’t implicate the WPR at all.
How could a bill under the WPR fail to constrain U.S. involvement in Yemen’s civil war? While important as a symbolic rebuke, the bill directs the President to cease activity that the Trump and Obama administrations both argued has never occurred — the involvement of U.S. forces in “hostilities” in Yemen’s civil war. As Steve Pomper and I explained here, even if a WPR bill were enacted over the President’s veto, the Administration would argue that intelligence sharing and logistics support to the Saudi-led coalition do not constitute involvement of U.S. forces in “hostilities,” and thus may lawfully continue (the same would apply to aerial refueling, but the Trump administration stopped that activity of its own accord late last year).
Two amendments to H.J. Res. 37 were made “in order” by the Rules Committee and now may be subject to debate when the bill moves to the House floor. First, a rule of construction offered by Rep. Buck (R-Colo.) declares that nothing in H.J. Res 37 “may be construed to influence or disrupt any intelligence, counterintelligence, or investigative activities” conducted by or with the U.S. government involving the collection, analysis, or sharing of intelligence “between the United States and any foreign country if the President determines such sharing is appropriate and in the national security interests of the United States.” Given the Executive has made clear it does not believe intelligence sharing constitutes involvement in “hostilities” for WPR purposes, it’s unlikely this amendment would have any practical impact. Rather, it would make clear that Congress intends for intelligence sharing to continue, irrespective of differences between the two branches on the scope of the term “hostilities” more broadly.
The other amendment replaces the carve-out for “operations directed at al Qaeda or associated forces” (found in both H.J. Res. 37 and S.J. Res. 54) with a specific statement that the “hostilities” U.S. forces must be removed from are those “directed at Houthi forces.” It also adds a rule of construction that the bill does not “limit, expand, or otherwise modify” the 2001 Authorization for Use of Military Force (AUMF).
Again, the practical import of this amendment may be essentially null – the Executive branch has long argued that the 2001 AUMF authorizes the use of military force against associated forces of al-Qaeda, most notably al-Qaeda in the Arabian Peninsula (AQAP) operating in Yemen (the Executive also argues that the 2001 AUMF covers ISIS in Yemen, though not necessarily as an “associated force” of al-Qaeda). But while Congress has embraced the concept of associated forces in the detention context, it hasn’t codified specific associated forces as falling under the scope of the 2001 AUMF, including AQAP. For this reason, the ACLU argued that the carve-out’s implicit endorsement of the Executive interpretation of the 2001 AUMF is a “fatal flaw” in S.J. Res. 54. This amendment would essentially save for another day the debate on whether Congress truly authorized the use of force against AQAP in the 2001 AUMF.
If H.J. Res. 37 passes in the House, the new Senate will still need to pass a companion bill. It’s not clear whether a bill in the Senate currently has a path forward, particularly if it would need to be reconciled with a House bill that has been altered by either of the amendments described above. If it did pass, both Houses would still need to override a veto by President Trump before the bill could become law.
The Saudi Arabia Accountability and Yemen Act of 2019
Meanwhile, timed to coincide with the Trump Administration continuing to dig in its heels on failing to hold Saudi Arabia to account for the murder of Jamal Khashoggi, a bipartisan group in the Senate has introduced the Saudi Arabia Accountability and Yemen Act of 2019, originally introduced in 2018. Its co-sponsors describe the bill as “comprehensive legislation to hold Saudi Arabia accountable for the murder of U.S. resident and journalist Jamal Khashoggi, and the Saudi-led coalition for its role in the devastating conflict in Yemen.”
The bill imposes sanctions on those responsible for the death of Jamal Khashoggi, prohibits some arms sales to Saudi Arabia, prohibits U.S. refueling of Saudi coalition aircraft engaged in Yemen’s civil war (which has been voluntarily stopped), imposes sanctions for blocking humanitarian access in Yemen, and requires the Executive branch to report on accountability for violations of international law in Yemen (including war crimes) and other harm to civilians, and on human rights in Saudi Arabia more broadly. It also imposes sanctions on those who support the Houthis in Yemen’s civil war.
This legislation is not only more comprehensive than the WPR bills under consideration (which, by definition, must be focused solely on cutting off U.S. involvement in hostilities or imminent hostilities), it would also likely have more impact in practice. It uses a range of tools — from cutting off some weapons sales, to sanctions, to reporting that creates transparency and could lay groundwork for further legislation — to address not just U.S. involvement in the war in Yemen, but also the broader humanitarian consequences of the conflict. And it seeks to shine a light on Saudi Arabia not just for the murder of Jamal Khashoggi, but also for the human rights abuses that, at least in part, motivate criticism of the Saudi government in the first place.
Unfortunately, it is even less clear that there is a path forward for this comprehensive bill. No companion bill has emerged in the House. But even the Senate bill has yet to be scheduled for a mark-up in the Senate Foreign Relations Committee under its new Chairman, Sen. Risch (R-Idaho). While Sen. Risch signed a bipartisan letter to President Trump last October seeking an investigation and sanctions determination on Khashoggi’s disappearance under the Global Magnitsky Human Rights and Accountability Act of 2016, he voted against S.J. Res 54 in December. Given the legislation introduced in his committee is aimed at both accountability for Khashoggi’s death and constraining U.S. involvement in Yemen’s civil war, it remains to be seen whether he will support moving the bill through committee.
Where do we go from here?
Congress may find a path forward on one or both of these bills. But even if Congress is unable to pass legislation under the WPR or as a comprehensive stand-alone bill, the debates on these bills still give members a good place to start in crafting provisions that could become part of a must-pass vehicle, like the NDAA. Provisions in the Saudi Arabia Accountability and Yemen Act of 2019 provide a good starting point on accountability for human rights abuses and humanitarian access in Yemen’s civil war, for example.
If the new Congress is also serious about curbing U.S. participation in Yemen’s devastating civil war, it should include a provision explicitly cutting off specific forms of U.S. support — not just directing withdrawal from “hostilities” — in a must-pass vehicle. Congress has a number of very good options for doing so at its disposal. For example, two options, which could be combined for maximum impact, are (1) expressly prohibiting any further U.S. assistance or support, including intelligence sharing and logistics support activities, to any members of the Saudi-led coalition for the civil war in Yemen, and (2) as Ryan Goodman has explained, suspending Direct Commercial Sales licenses for maintenance and sustainment of fighter aircraft used in the Saudi coalition’s offensive operations in Yemen.
The first option would have the impact of ending the activities the U.S. is actually undertaking in support of the Saudi-led coalition. The second would create a strong incentive for the coalition to get serious about negotiations to end the conflict: it would have the impact of grounding the coalition’s fighter aircraft in short order, as they rely on maintenance and spare parts provided under U.S. licenses.
Members on both sides of the aisle have expressed outrage at Saudi Arabia’s leadership for the devastating impact of its air campaign in Yemen’s civil war and its silencing of critics through murder and disappearance. If Congress wants to ensure in practice that the United States cannot continue to support the Saudi-led coalition in Yemen and that the Trump administration holds Saudi leaders accountable, it has strong options available to do so.