The Yemen Peace Project, Win Without War, and the Friends Committee on National Legislation have prepared the following rebuttal to arguments made by the Defense Department and other Administration members against the Sanders-Lee-Murphy war powers resolution. 

S.J.Res.54 invokes Congress’ Article I authority to end U.S. military support for the Saudi-led coalition’s intervention in Yemen’s civil war. This document counters superficial arguments some have made to oppose the resolution, demonstrates the larger implications S.J.Res.54 can have for future Congressional oversight over war-making, and explains how the resolution can play a positive role in pushing for an end to the coalition’s the intervention in Yemen.

U.S. support to the coalition constitutes “hostilities” and is not in self-defense

• U.S. military support to the Saudi-led intervention in Yemen has never been authorized by Congress or Presidents Obama and Trump. U.S. support to the coalition consists of U.S. military personnel who share intelligence for targeting, coordinate mid-air refueling for coalition jets, and provide other related logistical support. This support has never been authorized, as confirmed by the U.S. House of Representatives and Secretary of Defense James Mattis. The War Powers Resolution makes clear Congress has oversight power over unauthorized military support activities. Legal scholars agree that Section 8(c) of the War Powers Resolution applies to these activities.

• The DoD’s legal assessment of what qualifies as “hostilities” ignores the express congressional intent of the War Powers Resolution of 1973. The Senate Foreign Relations Committee report accompanying the bill states the intent of Congress in its override of President Nixon’s veto: Congress sought to establish oversight of “secret, unauthorized military support activities” that involved U.S. military personnel in foreign conflicts, such as the intervention.

• The DoD’s definition of “hostilities” implies that Congress has no war-making oversight authority until after U.S. military troops have been introduced into a war where they face attack. DoD states U.S. support for the coalition is “hostilities” because U.S. ground troops are not taking enemy fire. This analysis of “hostilities” mirrors the widely discredited view advanced by Harold Koh under the Obama Administration, when Koh argued active U.S. airstrikes in Libya were not hostilities and thus did not require congressional oversight in 2011. Accepting this definition eliminates the executive branch’s need to seek congressional authorization before deploying troops to new conflicts.

• Article II powers of self-defense do not apply as U.S. military involvement in the Yemeni civil war does not constitute self-defense. Section 2(c) of the War Powers Resolution of 1973 requires a specific statutory authorization for any military involvement in armed conflicts other than in cases of self-defense. U.S. military support to the coalition in Yemen is not a response to an attack on the U.S., nor does the U.S. have a mutual defense pact with any member of the military coalition.

The Department of Defense provides no evidence U.S. support has improved coalition behavior

• The DoD does not have insight or oversight of how U.S. military support is used by the coalition, undermining the notion they can influence coalition behavior. General Votel testified the U.S. military does not track where an American-refueled Saudi jet is going, what targets it strikes or the results of the mission, and therefore has no way to know whether U.S. military support is being used to commit potential war crimes committed by the coalition in Yemen. With no operational control over coalition activities, the U.S. cannot influence coalition behavior by maintaining support.

• The UNSC Panel of Experts on Yemen declared “precautionary measures” installed by the coalition to improve targeting last June were either “inadequate or ineffective.” There continues to be a systematic pattern of targeting of civilian areas and civilian objects, with at least one-third of coalition targets having no military value. The U.S. has attempted to improve coalition targeting for three years, but it is clear that U.S. has not had significant impact that would allow coalition operations to adhere to the laws of war. Congress has a moral obligation to end U.S. enabling of the coalition’s potential war crimes.

Voting for S.J.Res.54 is a vote in the interest of U.S. national security and will not harm alliances

• The ongoing military intervention in Yemen is counterproductive to stated U.S. national security interests in Yemen. Al Qaeda in the Arabian Peninsula and the self-described Islamic State in Yemen are beneficiaries of the intervention, and in some cases receive support from forces allied with President Hadi and the coalition. Attempting to defeat the Houthis militarily has expanded Iran’s influence and gives Iran a reason to intervene in Yemen. Ending the intervention is the only way to impede the growth of these groups and address the underlying governance and economic grievances that give them a foothold in Yemen.

• Ending U.S. military support for the coalition’s intervention does not need to undermine the U.S-Saudi Arabia or U.S.-GCC security relationship. The U.S. has decided not to support Saudi Arabia’s military interventions in the past and the alliance was strengthened. Nothing in S.J.Res.54 prevents the U.S. from continuing to assist Saudi Arabia and the UAE in defending their borders, ongoing partner counterterrorism operations, or ongoing military interoperability.

• S.J.Res.54 only applies to one conflict and will not affect “train and equip” programs or other authorized military activities. Passing S.J.Res.54 does not establish a precedent that Congress must apply the War Powers Resolution to every U.S. military support program. It establishes a precedent that Congress has oversight over U.S. military support to other nations, as it does when it authorized military support to Ukraine under the European Reassurance Initiative or to countries receiving U.S. support for partner operations under Section 1206/2282, or Title 10 Sec. 331. The War Powers Resolution is a tool for unauthorized circumstances like Yemen, in which the U.S. is arming an aggressor country to repeatedly bombs civilians and help create a humanitarian disaster.

Voting for S.J.Res.54 will send a signal that the Saudi-led coalition must change its behavior

• Congress can provide leadership to the coalition and the Administration by signaling the military intervention, which has created the world’s worst humanitarian crisis, must end. Despite agreement there is no military solution to the conflict in Yemen, the U.S. continues to provide essential military support to the coalition enabling it to continue the military intervention unconditionally. Continuing unconditional U.S. military support does nothing to support the push for a negotiated resolution, instead endorsing more stalemated military operations.

• Congressional pressure has won concessions in the past and the threat of ending U.S. military support provides leverage to push the coalition to the negotiating table. The Administration used congressional opposition, including a congressional hold on an Administration nominee, to win the temporary opening of Yemen’s Hodeidah port and other concessions on humanitarian access last December following the hermetic seal of the country by the coalition. Ending essential U.S. military support will change the coalition’s cost-benefit analysis of continuing this intervention indefinitely.

Now that you've read the case for S.J.Res.54, please help us make sure it passes! You can help sway Senators toward reasserting their constitutional war powers authority and pushing Congress to avert further suffering in Yemen and reasserts its constitutional war powers authority in just two minutes:

1. Dial 202-899-8938 and enter your zip code when prompted.
2. When you’re connected with your senator’s office, say:

My name is [your name] and I live in [your town]. I would like Senator __________ to co-sponsorthe Sanders-Lee resolution to require the President to remove all US personnel from the civil war in Yemen. America’s participation in this war is exacerbating a horrific humanitarian crisis, and it’s time for our government to work for peace.

Thank you for taking action to end the war in Yemen!