On January 11, the United States and the United Kingdom, supported by other nations ranging from Canada to Bahrain, struck more than 60 military targets associated with Houthi rebels in Yemen. The Houthis have conducted near-constant attacks on shipping in the Red Sea since late November. Since then, the U.S. has launched eight additional waves of airstrikes, and maybe more by the time you read this. All this is separate from attacks by Iraq- and Syria-based militias on American forces in the region, which have prompted yet other U.S. military responses – a list that will surely lengthen after a drone attack by one such militia killed three and wounded dozens of U.S. service members in Jordan over the weekend.
The issues raised in the attack inJordan have some commonalities with those associated with the Houthi piracy. For one thing, both the Houthis and the militia group claiming credit for the drone strike (along with Hezbollah and Hamas, for that matter) are backed by Iran. Indeed, on January 11 two Navy SEALS died attempting to board a vessel carrying Iranian weapons to the Houthis. But I’ll focus for now on the U.S. response in Yemen, which is complicated enough. After all, with the Suez Canal on the other end of the Red Sea, 15% of world shipping sails past Yemen. So the Houthi attacks raise not just security but global economic concerns.
Does the U.S. response raise legal concerns, too? Loyal readers (thanks, Dad!) may remember that my near-infinite sequence of posts on presidential war powers usually conclude that presidents were acting beyond their legal powers. And left-leaning Democrats joined with Biden-hating Republicans in condemning the January 11 attacks. “Congress has the sole authority to authorize military involvement in overseas conflicts,” claimed Rep. Val Hoyle (D-Ore.), consonant with Rep. Marjorie Taylor Greene’s (R-Ga.) tweet that “Biden can not solely decide to bomb Yemen.”
But here – spoiler alert! – that is not the case.
Or at least, not yet. A rapid response to attacks on naval and U.S.-flagged vessels seems a straightforward case of self-defense – and the response to militia drone attacks is even clearer in that regard. The framers of the Constitution expected the president to take military action in immediate defense of the country. But as the conflict grows larger and U.S. action becomes more proactive, the legal ice propping up that rationale gets thinner. A January 23 letter from a bipartisan quartet of senators asked Biden about the presidential power to conduct ongoing operations in Yemen. As they pointedly note, “Most vessels transiting through the Red Sea are not U.S. ships.… [and] there is no current congressional authorization for offensive U.S. military action against the Houthis.” (Emphasis added.)
The distinction matters because of the 1973 War Powers Resolution (WPR), which was meant to ensure legislative involvement in decisions concerning “the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.”
The WPR gives presidents authority to use force when there is (1) a declaration of war; (2) a specific statutory authorization; or (3) “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” Option one is self-explanatory; option two is usually so (though see below); option three rests on the president’s acknowledged power to “repel sudden attacks” and is consistent with notions of self-defense under international law and Article 51 of the U.N. Charter.
Again, Biden’s use of force against Houthi military assets used to attack U.S. ships seems to fit comfortably within that category. To be sure, the definitions in the WPR are potentially malleable; presidential uses of force that evaded the War Powers Resolution authorization have often invoked self-defense even when they involved full-scale invasion. (See Panama in 1989 or Grenada in 1983, for instance.) But Biden did not have to try too hard to paint the initial anti-Houthi actions as “discrete strikes” that would “protect and defend our personnel and assets,” while invoking his constitutional authority and Article 51 and noting for good measure a U.N. Security Council resolution condemning the Red Sea attacks.
Since then, U.S. strikes have arguably become more preemptive than reactive. The recent senatorial letter, coming from lawmakers with longstanding engagement in the war powers question, raises some important issues. Defending the principle of free navigation is different from repelling sudden attacks, they note. What, they ask, is the “legal rationale for a President to unilaterally direct U.S. military action to defend ships of foreign nations?”
Further, even unilateral action allowed under the WPR must receive congressional approval within 90 days. That clock is ticking. Perhaps by April, the Houthis will have ceased their attacks, or Biden will have received congressional approval. If not, the president will have to turn to alternative legal rationales, as Jack Goldsmith and Matt Gluck very usefully detail on Lawfare. For instance, the administration could claim the WPR does not apply, perhaps because the commander-in-chief’s power to defend U.S. interests overrides it or that the WPR’s definition of “hostilities” only includes full-scale wars on the order of U.S. actions in Vietnam or Iraq. (This latter argument has been a staple of recent presidencies.) Biden could also claim that Congress already authorized these actions – back in 2001 – by saying that the broad 2001 Authorization for the Use of Military Force (AUMF), aimed at the perpetrators of the 9/11 attacks, also applies to the Houthis as some distant cousin of al-Qaeda.
If the administration does make a case along these lines, Goldsmith and Gluck’s (perhaps generous) conclusion is that “none of [these arguments] is entirely clinching.” Thus, if Biden tries to hit the snooze button on the WPR clock, legislative scrutiny will only intensify. And deservedly so. If this is a long-term situation requiring the extended commitment of U.S. troops and risking additional casualties, Biden should in fact get congressional approval. A wider war with Iran – as some in Congress are already insisting on, given that nation’s role as common denominator across these various vectors of violence – would make it imperative.
Of course, while I don’t want to give the administration any ideas, a 65-year-old variant of the AUMF is still on the books. Back in 1957, Congress gave President Eisenhower power to determine whether the U.S. should “use armed forces to assist any” nation in the Middle East “requesting assistance against armed aggression from any country controlled by international communism.” That resolution was written to expire only when the president determined that the “peace and security of the nations in the general area of the Middle East” was “reasonably assured.” That doesn’t seem to have happened quite yet. Granted, it’s a stretch to say “international communism” is in the current mix – but probably less of one than saying Osama bin Laden’s iteration of al-Qaeda is.