Lawfare Archive: War Powers and the Latest U.S. Intervention in Yemen with Brian Finucane, Jack Goldsmith, and Matt Gluck
Mar 30, 2025
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Brian Finucane, a Senior Adviser at the Crisis Group; Jack Goldsmith, a Harvard Law professor and national security law expert; and Matt Gluck, Lawfare Research Fellow, dive into the escalating U.S. military operations in Yemen against the Houthi rebels. They analyze the Biden administration's legal justifications under the War Powers Resolution and the complexities of congressional oversight. The conversation highlights the evolving interpretations of military authority, the role of unmanned vehicles, and how the administration's actions may redefine U.S. engagement in conflict.
The U.S. military escalation against the Houthis in Yemen has sparked debates over the legal justifications provided by the Biden administration under the War Powers Resolution.
Concerns arise regarding the administration's flexible interpretation of military engagement, particularly its self-defense claims that bypass Congressional oversight and accountability.
The strategy of 'salami slicing' in reporting military actions reflects a troubling trend of executive authority potentially undermining the legislative intent behind the War Powers framework.
Deep dives
Escalation of U.S. Military Action in Yemen
Recent U.S. military actions against the Houthis in Yemen have intensified, particularly following their missile attacks aimed at Israel and shipping lanes in the Red Sea. These attacks prompted the U.S. to launch a significant offensive on January 11, 2024, targeting Houthi capabilities with over 150 munitions. The U.S. initiatives, referred to as Operation Prosperity Guardian, are part of broader efforts to secure international shipping routes amid escalating tensions. The context surrounding these strikes raises questions about the legal justification under the War Powers Resolution.
Understanding War Powers Resolution Reports
The Biden administration's War Powers reports have drawn scrutiny regarding their interpretation of hostilities, particularly concerning the timeline of military engagement. The congressional requirement for reporting within 48 hours of introducing forces into hostilities becomes paramount, yet definitions of ‘hostilities’ remain ambiguous. The administration's reports have historically avoided explicit language acknowledging the state of hostilities, which could influence the legal obligations under the War Powers framework. This tactic has sparked debate regarding the legitimacy of the justification for continued military operations.
Unit Self-Defense and Legal Interpretations
The concept of unit self-defense has emerged as a focal point in discussions about U.S. military engagement in Yemen. The Department of Defense asserts that actions taken to protect U.S. forces from imminent threats do not necessarily constitute hostilities, allowing for a more flexible interpretation of military engagement. This perspective raises concerns about the lack of Congressional oversight, as actions categorized under self-defense may bypass the requirements set out in the War Powers Resolution. The ongoing military operations reflect this legal maneuvering, enabling the administration to maintain its military stance while navigating legislative constraints.
Salami Slicing: An Ongoing Legal Strategy
The Biden administration appears to be employing a strategy of 'salami slicing' regarding its military operations, wherein each significant airstrike is reported as a separate incident to circumvent the War Powers Resolution clock. This approach allows the administration to continuously engage in military actions while sidestepping the need for Congressional authorization. Critics argue that this tactic undermines the intent of the War Powers Resolution, which aims to restrict presidential military action without legislative approval. The persistence of this method signals a broader issue of executive authority and accountability in military matters.
Future Implications of Ongoing Military Conflicts
The trajectory of U.S. military actions in Yemen suggests potential future challenges, especially in light of rising hostilities from the Houthis. If the patterns of military engagement continue, there may be significant pressure for the Biden administration to seek formal Congressional authorization. However, internal assessments indicate a reluctance to do so, particularly during an election year when political optics are critical. Discussions surrounding the broader implications of ongoing military commitments reveal worrying trends regarding executive overreach and the effectiveness of existing legislative frameworks.
From January 30, 2024: U.S. military operations against Houthi rebels in Yemen have escalated rapidly in recent weeks, culminating in a number of major strikes aimed at degrading their ability to threaten Red Sea shipping traffic. But the war powers reports the Biden administration has provided to Congress are raising questions about how it is legally justifying this latest military campaign.
To discuss the burgeoning conflict in Yemen and what it might mean for war powers, Lawfare Senior Editor Scott R. Anderson sat down with Brian Finucane, Senior Adviser at the Crisis Group; Lawfare Co-founder and Harvard Law School Professor Jack Goldsmith; and Lawfare Research Fellow Matt Gluck. They talked about their recent pieces on the topic, what we know and don’t know about the administration’s legal theory, and what the law might mean for how the conflict evolves moving forward.
