As the US Senate has invoked the War Powers Act – a 1973 law by which Congress sought an end to the war in Vietnam – as a way to disengage the US militarily from Yemen, it is relevant in this context to examine whether the executive has stepped into the sphere of the legislature.
As a result of a steep rise in cases of intra-state wars, the US president’s power to militarily intervene to address humanitarian crises has grown vis-à-vis war-making capacities of Congress as the conflicts in this changing context are not declared wars.
For instance, president Barack Obama’s intervention in Libya in 2011 and President Donald Trump’s intervention in Syria in early 2018 were not declared wars. In fact, Congress has not formally declared war since World War II. Further, the September 2001 Authorization for Use of Military Force was interpreted to provide the executive branch with the necessary flexibility to fight extremists on the long term.
However, the Obama administration decided to seek congressional authorization for a military strike against Syria over its alleged use of chemical weapons in August 2013 to make the decision more legitimate and democratic. In this context, legal experts such as Jack Goldsmith, a former US assistant attorney general and current professor at Harvard Law School, wrote on the Lawfare blog that planned use of military force in Syria without the authorization of Congress would have set a precedent for presidential unilateralism, in part because “neither US persons nor property are at stake, and no plausible self-defense rationale exists.”
To put it in other words, the US president – the commander-in-chief –can take the country to war if the threat to the country’s security is considered imminent, but he/she needs the approval of Congress. In war situations, Congress, as a representative body, can determine and examine from time to time the size and duration of troop deployments contributed and the amount of taxpayer funds to be committed. However, all legislation relating to war and peace are subject to a presidential veto.
The practical side
US involvement in Yemen has been in the form of humanitarian aid as well as military supplies and refueling assistance to the Saudi-led coalition, which cannot be considered direct participation in the civil war. While the US Senate has invoked the War Powers Act, American assistance has been geared more toward maintaining the alliance than to trying to achieve war objectives.
The remarks of Secretary of State Mike Pompeo assume significance in the context: “It is the view of the administration … that passing a resolution at this point undermines that, it would encourage the Houthis, it would encourage the Iranians, and it would undermine the fragile agreement for everyone to go to Sweden and have this discussion.”
He further said: “The resolution would be against American interests and could derail fragile United Nations peace talks. The peace process is poised to be more fragile as the balance of power between the parties to war is not only likely to change.”
Saudi Arabia’s Ministry of Foreign Affairs has condemned a US Senate resolution holding Crown Prince Mohammed bin Salman responsible for the murder of journalist Jamal Khashoggi, and another one calling for an end to US support for the Saudi-led war in Yemen, stating, “The Kingdom categorically rejects any interference in its internal affairs, any and all accusations, in any manner, that disrespect its leadership.”
Shortly after a truce was agreed at the UN-sponsored Yemen peace talks in Sweden, clashes erupted in the port city of Hodeida
Moreover, shortly after a truce was agreed at the UN-sponsored Yemen peace talks in Sweden, clashes erupted in the port city of Hodeida.
Meanwhile, Saudi Arabia has also developed indigenous capabilities for refueling aircraft used by the Riyadh-led coalition engaged in the Yemen war, which may eliminate the need for US support. Besides, the decision to disengage from the Saudi-led coalition is yet to be passed by the other house and is subject to presidential veto.
The US also needs to maintain engagement to keep the ports and supply routes open for the delivery of humanitarian assistance to the starving population and help to keep humanitarian agencies functioning.
Notwithstanding the fact that Congress is legally entitled to hold the executive branch accountable on matters pertaining to military expenditure, there are legal and practical complications ahead if the US militarily disengages from Yemen.
The Senate has also reacted to the humanitarian crisis only after the Saudi crown prince was implicated in the murder of Khashoggi, sparking speculation on whether the intentions of the house were driven by humanitarian conditions prevailing in Yemen, or if it was more a collective expression of anger at Riyadh. Bipartisan support for the resolution of 56 votes against 41 was not significant enough to indicate a strong response to the humanitarian disaster.