How Recent War Powers Legislation May Affect the US Role in Yemen and Around the World
Last month, members of the House of Representatives introduced legislation (H. Con Res. 81) that calls for removal of US armed forces from indirect participation in Yemen’s Civil War pursuant to the War Powers Resolution (WPR). This legislation is significant as it attempts to constrict the president’s authority to deploy troops ancillary to combat relying on a rarely cited definitional provision of the WPR, section 8(c). If passed, the bill would force the US to withdraw from involvement in Yemen’s civil war and could lead to active congressional oversight over the principal way the US uses indirect force and participates in Grey War – global aid and assist missions.
The WPR, which prohibits “introduction of US armed forces” into hostilities for longer than 60 days without congressional approval, is often interpreted narrowly by the executive branch as requiring congressional authorization only when US troops are directly engaged in the fight—i.e., pulling the trigger themselves. Most recently in Libya, despite 60 bombing sorties and 30 drone strikes, President Obama and State Department Legal Advisor Harold Koh maintained the US was not engaged in hostilities and thus the action was not subject to congressional oversight because “US operations do not involve sustained fighting . . . exchanges of fire . . . presence of US ground troops . . . [or] US casualties or a serious threat thereof.” Though members often protest in the face of perceived executive overreach, Congress has generally been unsuccessful in its attempts to constrain military actions short of war like those in Libya. In the case of the Yemeni Civil War a traditional WPR argument —focusing on the direct U.S. introduction in hostilities— has little merit, but an argument grounded in section 8(c) could be successful.
Despite its narrow interpretation by the executive branch, a careful reading of the WPR reveals that it not only constrains direct US military action, but it also broadly restricts indirect involvement in hostilities. Section 8(c), defines "introduction of United States Armed Forces" to include situations in which US forces “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…in hostilities.” Unlike in previous WPR debates, H. Con. Res. 81 calls for removal of US armed forces participating in Yemen’s Civil War (distinct from US action against terrorists as authorized by the Authorization for Use of Military Force) not because of direct US involvement in hostilities, but rather because US troops are assisting in hostilities as defined by 8(c). A focus not on direct US action but indirect action, as defined under 8(c), could represent watershed WPR legislation for two reasons.
First, Congress can actively affect executive decision-making in Yemen where US troops are clearly assisting Saudi and Emirati forces. The drafters of the WPR included 8(c)’s broad definition in order to ensure congressional oversight over conflicts exactly like the one in Yemen. If the US is going to provide essential support to a foreign power in conducting any war, especially one with vast numbers of civilian casualties and risk of US involvement in war crimes, Congress must have a say. There is no question that US mid-air refueling of Saudi and Emirati warplanes constitutes “coordinating” and “participating in the movement of” foreign forces. It is equally indisputable that the Saudi coalition, fighting bloody battles on the ground and mounting an aggressive bombing campaign through the air, is involved in hostilities. Under the WPR, it is clear Congress must approve this US support. H. Con. Res. 81, if adopted, should force President Trump to withdraw this kind of US support without congressional approval.
Second, given the vast numbers of US aid and assist missions around the globe, consequential invocation of 8(c), beginning with H. Con. Res. 81, might allow Congress to reassert its war making power across a broad swath of indirect military operations. Certainly, the US military maintains a vast capacity to conduct combat missions. However, the effects of the world’s most potent military are often felt indirectly through aid and assist missions — without much, if any, congressional oversight. In 2016 elite United States fighting forces were deployed in 138 countries, often operating in what the commander of Special Operations Command-Africa, General Bolduc, has described as the Grey Zone between the “spectrum of war and peace.” From hunting Joseph Kony in 2012 to anti-terror ground operations in the Philippines, “the US may not be at war . . . but our . . . partners certainly are.” Yet in most cases, these operations, even when they involve key US support, are conducted without any congressional approval and should worry advocates for congressional oversight of the war making power. As in Yemen, unchecked executive use of aid and assist missions in the Grey Zone may support close US involvement in war without the consent of Congress, undermining its essential constitutional war making power. H. Con. Res. 81 represents a novel attempt to use the oversight power over indirect use of force granted by 8(c). If successful, the 8(c) theory could lead to congressional oversight of many more uses of US force and help Congress reassert this constitutionally granted power.
Throughout recent administrations, the executive branch has encouraged a clear trend toward use of American power to support other countries’ wars, and despite America First rhetoric, this seems unlikely to cease. As a policy matter, this use of American force may serve US strategic interests. But when aid and assist missions cross the line from supporting other militaries to “commanding” or “coordinating” hostilities, it is Congress’s constitutional and statutory role to demand authorization power. Congress is right to try and take back their war powers before they are eroded by yet another administration. War Powers Resolution section 8(c) represents one excellent opportunity.