Pentagon to Congress: You Can’t Stop Us from Fueling Saudi Arabia’s War in Yemen

On February 28, Senators Mike Lee (R-UT), Chris Murphy (D-CT), and Bernie Sanders (I-VT) introduced Senate Joint Resolution 54, a resolution that seeks to end U.S. support for Saudi Arabia’s war in Yemen. Even before the resolution was introduced, the Department of Defense responded with the extraordinary claim that Congress lacked the legal authority to “override the President’s determination as Commander in Chief” and end the United States’ involvement in the conflict.

It is bad enough the extent to which the Defense Department has treated Congressional silence as a blank check to wage war wherever and whenever it wants. The Pentagon’s claim that Congress lacks the power to limit U.S. involvement in the Yemeni civil war is an even more serious encroachment on Congress’s constitutional authority over the military.

In March of 2015, a coalition of nine Arab governments, led by Saudi Arabia, began a bombing campaign in Yemen. The Saudi airstrikes were aimed at restoring to power the internationally recognized government of President Abdu Rabbu Mansour Hadi, who had been deposed by an armed rebel group known as the Houthis.

Since 2015, the United States has been refueling Saudi planes in mid-air before their bombing runs into Yemen. As of last October, the military reported that the U.S. had provided over 80 million pounds of fuel, and refueled over 10,400 in “the Horn of Africa region.” (This total includes support for U.S. and allied counterterrorism operations as well as the Saudi coalition’s war in Yemen. The number of airstrikes by the Saudi coalition is orders of magnitude higher than the number of reported U.S. counterterrorism strikes, so refueling for Saudi planes for operations in Yemen likely constitutes a large share of the total). The war has killed thousands of civilians and contributed to epidemics and widespread food shortages.

Congress has never voted to authorize the U.S.’s involvement in the Saudi war against the Houthis, as the House of Representatives recognized in a resolution that passed last fall. Lee, Murphy, and Sanders argue that this makes the conflict unlawful under the War Powers Resolution, a 1973 law designed to limit the executive branch’s ability to wage war without specific Congressional approval.

The War Powers Resolution, passed over President Nixon’s veto, requires the President to notify Congress in writing whenever the U.S. military is “introduced…into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” It requires troops to be removed within 60 days unless Congress votes to authorize the deployment with either a declaration of war or an authorization for the use of military force.

Lee, Murphy, and Sanders have a strong argument that the United States’ involvement in the Yemeni civil war falls within the War Powers Resolution’s criteria of “introduction of the United States Armed Forces” into hostilities, including “assignment of members of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government,” although the executive branch has generally interpreted the War Powers Resolution more narrowly.

But the Defense Department’s letter goes beyond defending the legality of U.S. aid to the Saudi coalition under current law. It also claims that “[e]ven if enacted into law, the Joint Resolution would not achieve its apparent purpose of restricting U.S. support” for the Saudi-led coalition, because “that support does not constitute ‘hostilities.’”

This ignores the text of the draft resolution, which explicitly states that the United States’ current actions in support of the coalition in Yemen fall within the definition of hostilities. If it became law, it would remove any ambiguity about whether the War Powers Resolution’s definition applies, and the Defense Department would have no basis to ignore it.

DoD also claims in a footnote that:

Because the President has directed U.S. troops to support the [Saudi] operations pursuant to his authority under Article II, and because the limited operation does not implicated [sic] Congress’s constitutional authority to Declare War, the draft resolution would raise serious constitutional claims to the extent it seeks to override the President’s determination as Commander In Chief.

The argument that the Commander In Chief clause of the Constitution overrides all of Congress’s war powers recalls one of the arguments that John Yoo made in his infamous 2002 Office of Legal Counsel memo authorizing the CIA’s torture program. Yoo argued that it would be unconstitutional for Congress to encroach on “the President’s complete authority over the conduct of war” by banning torture. Like the Yoo memo, the Defense Department’s letter simply ignores inconvenient Supreme Court decisions as well as the text of Article I of the Constitution. Article I gives Congress the power not only to declare war, but also to “provide for the common defense,” “raise and support armies,” “provide and maintain a navy,” “make rules for the government and regulation of the land and naval forces,” and “make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

The draft resolution may not pass the Senate, let alone passing both houses with sufficient support to overcome a likely Presidential veto. But even supporters of the U.S.’s involvement in Yemen’s civil war should strongly reject the Defense Department’s claims that it can disregard laws passed by Congress by interpreting them into meaninglessness, or that it is unconstitutional for Congress to limit the United States’ involvement in wars overseas.