On February 27, 2018, Acting General Counsel of the Department of Defense (DoD) released a letter explaining the legal grounds for the DoD’s opposition to Senate Joint Resolution 54, binding legislation that directs the President to remove US armed forces from unauthorized hostilities in Yemen within 30 days. The DoD letter both misrepresents the content and constitutional basis of S.J.Res.54 and seeks to undermine longstanding congressional war powers more generally. The Yemen Peace Project’s advocacy director, in conjunction with the organization’s legal advisors, has prepared the following response to the DoD letter.

Context

Under Article I, section 8, clause 11 of the United States Constitution, Congress has the sole power to declare war. The War Powers Resolution (Public Law 93-148) was enacted to maintain and implement the constitutional prerogatives of Congress with respect to presidential overreach regarding the introduction of US armed forces into foreign conflicts. S.J.R.54 sets out Congress’ considered judgement that the commitment of US forces to support the Saudi-led coalition’s air war in Yemen has not been authorized by statute. It implements congressional authority under the War Powers Resolution, and in particular section 8(c), to direct the President to remove such support.

Since March 26, 2015, a coalition led by Saudi Arabia and the United Arab Emirates has engaged in a massive campaign of air attacks, restrictions on imports, and wide-ranging ground warfare that has devastated the civilian population, infrastructure, and economy of Yemen. Coalition airstrikes are the leading cause of direct civilian casualties from warfare, and over a million civilians have contracted cholera and other preventable diseases due to the coalition’s destruction of medical facilities and public water systems. Notwithstanding the horrific impact on Yemen’s civilian population, the coalition’s military efforts have failed to achieve their stated objectives. Instead, they have strengthened the presence of al-Qaeda and the Islamic State in Yemen, weakened the Saudi economy, and entrenched Houthi control of Yemen’s most populated areas.

US military support enables the intensity of the coalition’s air attacks and resulting devastation. The United States has contributed surveillance feeds from US drones, mid-air refueling for airstrikes in Yemen, and military advisors and trainers. US refueling of coalition jets has reportedly doubled since October 2016. It is reported that US personnel are present in or adjacent to coalition targeting centers and are training Saudi targeting and intelligence personnel on a continuing basis. There has been no declaration of war or other specific congressional authorization for the introduction of US armed forces into the ongoing hostilities between the Houthis in the Republic of Yemen and military forces of the Saudi-led coalition.  

DoD letter misrepresentations

The DoD letter asserts, among other objections, that passage of S.J.Res.54 would not prevent the president from continuing current US military activities in support of the Saudi-led coalition. To do so, it misrepresents WPR section 8(c), the legal lynchpin of S.J.Res.54, which reads (our emphasis):

For purposes of this joint resolution, the term "introduction of United States Armed Forces" [into hostilities or situations in which circumstances indicate imminent hostilities] includes the assignment of member 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 when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities.

The DoD letter attempts to argue that “‘[W]hen applying section 8(c), the relevant question remains whether U.S. forces--not the foreign forces they are accompanying--are introduced into hostilities.” According to this reasoning, because US logistical support does not bring personnel directly into the line of fire, 8(c)’s invocation is irrelevant. As Yale Law professor and former DoD counsel Oona Hathaway writes, however, the DoD letter’s interpretation is “difficult to square with the plain language” of 8(c), wherein the party relevant to “hostilities” is the foreign forces the United States is supporting, and not the US personnel themselves. By refueling coalition warplanes as they conduct anti-Houthi missions, and by providing targeting assistance to coalition operations, US forces have been introduced into hostilities in Yemen, per Section 8(c) of the WPR, and are therefore subject to congressional oversight.

Because it misrepresents WPR section 8(c), the the letter’s core argument falls flat. The letter opens with a long discussion of “hostilities,” arguing that US support does not constitute the introduction of US armed forces into hostilities (as outlined by WPR Section 4(a)). Whether or not US personnel are under direct fire, however, is no longer relevant following 8(c)’s invocation. Rather, the relevant question would be whether the coalition forces supported by the United States are engaged in hostilities or situations in which hostilities are imminent. Needless to say, to argue that such coalition forces receiving US support are not engaged in hostilities is untenable.

Still, the DoD letter’s own definition of “hostilities”--which supposedly exempts US support for the coalition from congressional oversight--is not settled law. The DOD letter states, “It has been the longstanding view of the Executive Branch that ‘hostilities’ refers to ‘a situation in which units of U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces.’” The textual source of this view, a June 1975 letter from former State Department legal advisor Monroe Leigh to Representative Clement J. Zablocki, is much less concrete. In his communique, Leigh writes that that definition is only a “working definition,” and states that “hostilities,” or the imminent threat thereof, are “definable in a meaningful way only in the context of an actual set of facts.” Furthermore, the executive branch has previously relied upon this definition to undermine congressional war powers as recognized by senators themselves. The Obama administration, and in particular Department of State legal advisor Harold Koh, relied upon this definition to argue that the 2011 US intervention in Libya did not constitute “hostilities” because, among other reasons, US forces were not involved in direct exchanges of fire with Libyan government forces while conducting an extensive bombing campaign against targets on the ground in Libya. The Senate Foreign Relations Committee publicly rejected this interpretation in June 2011.

Undermining congressional war powers

The letter cites the President’s Article II powers to direct and dispatch armed forces at his command as the relevant authority governing US armed forces’ participation in the coalition’s campaign against Houthi rebels in Yemen. So long as such forces do not engage in “hostilities” as narrowly understood by the executive branch (i.e., they do not take or exchange fire), the President can direct them as he will, and their deployment does not fall under congressional oversight. The assertion of such extraordinary powers, if applied broadly, would prevent Members of Congress from exercising their war powers oversight authority over any and all advise-and-support missions the US conducts with allies and security partners abroad.

By the letter’s own reasoning, not only would all such missions be immune from a concurrent or joint war powers resolution directing the withdrawal of US troops, but the President could neglect to inform Members of Congress about any and all such missions. If advise-and-support missions to foreign forces actively engaged in hostilities are unrelated to “hostilities” outside the narrowest circumstances, then such missions would not be subject to WPR section 3, which directs the President to “consult regularly with Congress” after introducing US armed forces into hostilities.