Getting Past the Veto on Ending Yemen War: How Congress’ Next Moves Can Succeed

On Thursday, Congress failed to override President Trump’s veto of bipartisan legislation that had directed him to remove U.S. armed forces from hostilities in Yemen’s civil war. Congress has other paths it can now take, over the short and long term, to achieve the same goals.

Passage of the now-vetoed joint resolution (S.J.Res.7) was, at a minimum, a symbolic high-water mark in congressional reassertion of its constitutional primacy in deciding when the United States should use force abroad, at least compared to Congresses during the past three administrations. Practically, however, use of the 1973 War Powers Resolution (WPR) as a vehicle for ending a use of U.S. forces that Congress disapproves of – instead of using the power of the purse or directly cutting off the specific types of support the Trump administration is providing – means that Trump’s veto had little impact. That’s because the final version of the legislation provided the Executive Branch a way to work around it. I explained why in this Just Security article:

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).

While Congress couldn’t sustain the measure over Trump’s veto — the Senate vote was 53 to 45, below the two thirds needed to override a veto —  the story doesn’t end here. The process leading to the passage of S.J. Res 7 and its inevitable veto revealed the need for Congress to start laying the groundwork for reform of the 1973 War Powers Resolution – a long-term endeavor that is long-overdue. This will require sustained attention to where, how, why, and at what cost the President is using U.S. armed forces abroad. It will also require focusing on what mechanisms Congress can use most effectively to ensure it finds out about and can limit (if it chooses) such activities.

But in the short term, the experience with S.J. Res 7 also provides a roadmap for how Congress can fulfil its vital role in authorizing or limiting military engagement that does not rise to the level of “hostilities” as that term is interpreted by the Executive Branch.

What Congress Can Do Next on Yemen

Trump’s veto message revealed that he is committed to maintaining U.S. military involvement in the disastrous war in Yemen in the face of bipartisan opposition. It also showed he remains determined to defend the Saudi government in the wake of its continued stone-walling about the chilling murder of journalist and Virginia resident Jamal Khashoggi. But the awareness-raising function served by debating and passing S.J. Res 7 through Congress creates momentum in both Houses to craft provisions that could end U.S. involvement in the Yemen war and move the bilateral relationship with Saudi Arabia in a new direction.

There are a number of provisions – some already in existing bills – that could swiftly become part of a must-pass vehicle, like the National Defense Authorization Act (NDAA) or an appropriations bill, that a bipartisan majority of Congress can get behind. Having worked in the Obama White House, I can attest how difficult it is for a President to veto the entire NDAA despite provisions he finds loathsome. Of course, Congress too knows the stakes of what makes it into the NDAA (or any must-pass legislation), so it will be important to maintain bipartisan support for any Yemen-related provisions among key committees of jurisdiction.

So, what are the kinds of legislative provisions that would be more certain to achieve Congress’s goal of cutting off U.S. support for the Saudi-led operations in Yemen, while maintaining U.S. operations directed against Al Qaeda and “associated forces”?

First, looking beyond the WPR, Congress can still achieve what S.J. Res. 7 was intended to do. As I noted here,

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.

Congress could also choose to cut off arms sales to Saudi Arabia, which could be limited to certain categories of weapons (i.e., potentially excluding weapons systems that are defensive in nature) or sweep more broadly.

Second, existing provisions of the Saudi Arabia Accountability and Yemen Act of 2019 use a range of tools to hold the Kingdom accountable for its human rights abuses – including the underlying problems that motivate dissidents like Khashoggi to criticize the government in the first place – and for the Saudis’ devastating restrictions on humanitarian access in Yemen’s civil war. While it is unlikely to make it out of the Senate Foreign Relations Committee soon, provisions in the bill such as prohibitions on certain arms sales to Saudi Arabia, prohibition of U.S. refueling of Saudi coalition aircraft engaged in Yemen’s civil war, and the imposition of sanctions for blocking humanitarian access in Yemen, could be included as amendments in the NDAA or an appropriations bill.

Watch out for a Signing Statement

In his veto message on S.J. Res. 7, Trump wrote that if Congress seeks to prohibit “in-flight refueling, or require military engagements adhere to arbitrary timelines” it would be “interfer[ing] with the President’s constitutional authority as Commander in Chief of the Armed Forces.” And in a Statement of Administration Policy on the House version of the War Powers Resolution bill, the President made the bolder claim that Congress’ cutting off U.S. support for the Yemen war “would raise serious constitutional concerns to the extent it seeks to override the President’s determination as Commander in Chief.” That is a bold and dangerous claim.

If Congress does show its continued resolve by including provisions in the NDAA or an appropriations bill that cut off U.S. support for the Saudi-led coalition in Yemen (or more broadly seek to hold Saudi Arabia accountable for human rights and humanitarian abuses), we should expect a signing statement by President Trump singling out those provisions and making claims of constitutional interference like the ones made in his Statements of Administration Policy on the Yemen War Powers bills. Congress should be ready to challenge any interpretation of the newly-enacted law that would suggest the President may simply choose not to implement parts of a law on these highly dubious grounds.

One important insight that the Yemen War Powers Resolution bills have demonstrated is that whatever the scope of the President’s unilateral constitutional authority to deploy troops and to initiate hostilities might be, it is the legislative branch, not the President, that has the last word – if it is able to express its will in a statute passed pursuant to its Article I authorities.

In sum, the clash between Congress’ goals with S.J. Res. 7 and the Executive Branch’s interpretation of the War Powers Resolution that S.J. Res. 7 brought into the spotlight can prompt a broader process of reflection on how Congress can use its Article I powers more effectively — and check the Executive’s use of its Article II powers more consistently — in matters of war and peace. That will be a long-term process. In the short term, Congress can use President Trump’s veto to galvanize support for measures with real teeth that would begin to shift the U.S.-Saudi relationship away from an unconditional embrace, cut off U.S. involvement in Yemen’s civil war, and show the Executive Branch that Congress has the authority — and the political will — to do so.

 

IMAGE: Civilians inspect the damage at a factory after a reported airstrike by Saudi-led coalition in the Yemeni capital Sanaa, on January 20, 2019. (Photo by MOHAMMED HUWAIS/AFP/Getty Images)

 

About the Author(s)

Tess Bridgeman

Senior Editor at Just Security. Former Special Assistant to the President, former Associate Counsel to the President, former Deputy Legal Adviser to the National Security Council (NSC), formerly Served at the Department of State in the Office of the Legal Adviser, in the Office of Political-Military Affairs and as Special Assistant to the Legal Adviser. Currently Senior Fellow and Visiting Scholar, Reiss Center on Law and Security at NYU School of Law. You can follow her on Twitter (@bridgewriter).