War Powers and the Latest U.S. Intervention in Yemen with Brian Finucane, Jack Goldsmith, and Matt Gluck
Jan 30, 2024
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Experts in conflict resolution, constitutional law, and international relations discuss the escalating conflict in Yemen, exploring legal justifications for US military operations against Houthi rebels. They delve into the process of reporting military deployments, recent executive branch practice in understanding legal theory, and the scope of self-defense in strikes. They also analyze potential justifications for military intervention in Yemen and the administration's reliance on creative statutory interpretations without congressional authorization.
The Biden administration's War Powers reports to Congress have raised questions about the legal justification for the recent military campaign in Yemen.
The administration's strategy of sending separate reports for each significant military operation allows them to avoid triggering the 60-day limit for seeking congressional authorization.
The executive branch may assert its Article II self-defense powers to disregard the War Powers Resolution restrictions and justify the military operations without seeking congressional authorization.
Deep dives
Escalation of hostilities in Yemen
US military operations against Houthi rebels in Yemen have escalated rapidly in recent weeks, with a number of major strikes aimed at degrading their ability to threaten Red Sea shipping traffic. However, the Biden administration's War Powers reports to Congress have raised questions regarding the legal justification for this military campaign.
The War Powers Resolution and its application
The War Powers Resolution requires the President to notify Congress within 48 hours of introducing US Armed Forces into hostilities or situations where hostilities are imminent. The Biden administration, in its reports, has avoided explicitly conceding that hostilities are taking place. Additionally, there are debates around the interpretation of the term 'hostilities' and whether the recent actions in Yemen constitute hostilities as defined by the resolution.
Renewed clock and reporting practices
The Biden administration appears to be utilizing a strategy of sending separate reports for each significant military operation, effectively restarting the 60 to 90-day clock imposed by the War Powers Resolution. This approach, previously seen in the Reagan and Obama administrations, allows the administration to avoid triggering the 60-day limit for seeking congressional authorization for military action. The reporting practices raise questions about the administration's legal justifications and interpretations of the resolution's provisions.
The Administration Relies on Unit Self-Defense Concept
The administration may justify their position on military operations not triggering the war powers clock based on the concept of unit self-defense. This concept allows US forces to defend themselves if they are deployed and come under attack. The administration may argue that these actions do not constitute the introduction of armed forces and hostilities, as they are in response to attacks rather than actively placing forces in a hostile situation. However, past reporting practices and interpretations of hostilities have not consistently supported this distinction.
Arguments for Exercising Presidential Self-Defense Powers
The executive branch may assert its Article II self-defense powers as a basis for disregarding the War Powers Resolution restrictions. These powers are considered the president's most robust military powers and have been expanded through persistent practice. The argument would be that enforcing the clock limitations on defensive actions to protect troops in the field would violate the president's constitutional authority. While this argument may not stand alone, it could be used to support other statutory or constitutional arguments in justifying the military operations without seeking congressional authorization.
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.