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Will the War Powers Resolution Rise from the Grave?

Photo Source James N. Mattis | CC BY 2.0

Just in time for Hallowe’en, Senator Bernie Sanders (I-Vt.) announced on October 15 that he would attempt to resurrect the corpse of the War Powers Resolution. Sanders, along with Senator Mike Lee (R-Ut.) and Senator Chris Murphy (D-Conn.), had introduced Senate Joint Resolution 54 on February 28 in an attempt to end US involvement in the war on Yemen.  The resolution descended into legislative Purgatory on March 20, when it was tabled by the Senate, 55-44.

Over in the House of Representatives, eleven Democrats led by Representative Ro Khanna of California introduced their own War Powers Resolution (House Concurrent Resolution 138) on September 26.  The House War Powers Resolution is in the form of a privileged resolution.  This means that the House resolution cannot be tabled, but must be voted on one way or the other, up or (more likely) down.

Both the House and Senate resolutions aim to end US assistance to the Kingdom of Saudi Arabia and the United Arab Emirates (UAE) in their war on the people of Yemen.  US assistance makes the war possible.  US assistance comes in the form of targeting selection, intelligence, arms sales, and in-flight refueling of coalition war planes—all without authorization from Congress.  US support to the Saudi-led coalition began under President Barack Obama who sought to show the Gulf countries that the US was still their friend after the Iran nuclear deal which they had strenuously opposed.  US support to the war coalition has turned Yemen into what the UN says is now the world’s worst humanitarian crisis.

The war has caused Yemenis inconceivable suffering. The extent of Yemeni suffering is so horrific that, in an unusual move, the New York Times felt obligated to explain its decision to publish photos of dead, starved, and mutilated Yemenis.

The tragedy in Yemen did not grow out of a natural disaster. It is a slow-motion crisis brought on by leaders of other countries who are willing to tolerate extraordinary suffering by civilians to advance political agendas.

And yet somehow the vast catastrophe has failed to catch the world’s attention as much as the murder of a single man, the Washington Post columnist Jamal Khashoggi, in the Saudi Consulate in Istanbul.

The story of Yemen and all its suffering is one that must be told, and * * * it cannot be told in words only.

In short, the photos need to be seen.

The War Powers Resolution: A History of Failure

The Trump Administration has met Congressional attempts to invoke the War Powers Resolution with the legal equivalent of a raised middle finger.  Acting DoD General Counsel William S. Castle issued a memoon February 27 defending the legality of US assistance to the Saudi-led coalition.  Castle wrote that the War Powers Resolution could not shut down US assistance because the War Powers Resolution only applies to “hostilities.”  The US isn’t engaged in hostilities in Yemen because there are no US forces on the ground.  Furthermore, the president has all the legal authority he needs to assist the Saudis and Emiratis.  That authority comes from the president’s Article II Commander in Chief power. Congressional attempts to rein in the president’s power to make war violate the Constitution’s separation of powers.

Utah Republican Mike Lee, who co-sponsored the resolution, shot back that “It stretches the imagination, and it stretches the English language beyond its breaking point, to suggest the U.S. military is not engaged in hostilities in Yemen.”

Certainly, the 40 Yemeni children who were killed on August 9 when a US-supplied bomb manufactured by the American defense contractor Lockheed Martin struck their school bus would be surprised to learn that the US was not involved in “hostilities” in their country.  However, no president from Richard Nixon on has conceded the constitutionality of the War Powers Resolution.  Castle was merely echoing arguments the White House has made for decades.[1]

Are they valid arguments?  Does Article II of the US Constitution give presidents carte blancheto wage war without Congressional authorization?  In contrast to Castle’s position, a post on the Lawfare blog observed that “Article II makes the president the commander in chief, thereby ensuring civilian control of the military, among other things.  But Article II does not afford the president, at least expressly, any other unilateral war powers.”  Those words were written last year by a federal judge who recently achieved notoriety: Brett M. Kavanaugh.

There’s no point in trying to present a full legal analysis of the Trump Administration’s arguments for the legality of its actions with respect to Yemen.  That analysis needs to come from the Supreme Court, and they’ve never said whether the War Powers Resolution is constitutional or not.  The federal courts have proven adept in finding technicalities which allow them to dispose of war powers cases.  We are seeing this in the latest war powers challenge, Smith v. Obama, filed in 2016.

Smith v. Obama was an attempt to determine the legality of the US war against ISIS.  President Barack Obama (and now President Donald Trump) had been fighting ISIS without explicit Congressional approval, instead relying on a broad reading of Congress’ 2001 Authorization for the Use of Military Force against the groups and individuals responsible for 9/11.  ISIS, however, did not even exist in 2001, and, while it is an offshoot of Al-Qaeda, ISIS is at odds with its parent body.

In July, the US Court of Appeals for the D.C. Circuit dismissed the case (now known as Smith v. Trump to reflect the change in administrations).  The Court said that too much time had passed since the lawsuit was filed and pointed out that the US service member who had brought the lawsuit was no longer in the military.[2]  The case may be appealed, we don’t know yet.

There is one thing we can say for sure, though. There is no evidence that the War Powers Resolution has ever limited or cut short a war.

The War Powers Resolution has been a dud since day one.  President Nixon vetoed the original War Powers Resolution in 1973.  At that time, the Democrats dominated both houses of Congress and were able to muster the two-thirds majorities needed to override Nixon’s veto with the help of defectors from the Republican side of the aisle.[3]

Even the most optimistic forecasts of a blue wave in next month’s midterm elections do not have the Democrats winning two-thirds majorities in both the House and Senate.  (The Democrats will be lucky to take the House.)  Nor do Congressional Republicans betray any inclination to buck Trump on his Yemen policy (or anything else).  Republicans would rather pretend that the Saudis and Emiratis are bolding resisting Iranian aggression in Yemen.  Iran does provide limited backing to Yemen’s Houthi rebels, but Iran’s involvement in the war is greatly exaggerated.  If Iran is so active in Yemen, why are Saudi and Emirati forces receiving hardly a scratch?

The War Powers Resolution passed on November 7, 1973.  You may recollect that the Vietnam War did not end on November 7, 1973.  President Nixon simply ignored Congress’ action. This points up a signal defect of the War Powers Resolution.  A president can defy the War Powers Resolution and dare Congress to cut off war funding.  If Congress does, American troops may be put in jeopardy.  Few members of Congress want to report that to their constituents, not to mention give ammunition to other politicians who may run against them in the future.

“Saudi Arabia Is Very Wealthy”

The same day as the Senate tabled the Sanders-Lee-Murphy War Powers Resolution, March 20, President Donald Trump met in the Oval Office with Saudi Crown Prince Mohammad bin Salman. Reining in Saudi war crimes in Yemen hardly seemed to be uppermost in the president’s mind as he boasted of the latest $200 billion US arms sale to the Kingdom.  Trump touted the 40,000 American jobs the arms deal with the “very wealthy” Saudis would supposedly create.  It is a subject Trump has returned to in the days following the alleged Saudi murder of dissident Saudi Arabian journalist Jamal Khashoggi.

Khasshogi is alleged to have been murdered on orders of Saudi Crown Prince MBS in the Saudi consulate in Istanbul on October 2. Khasshogi’s killing has intensified calls for the US to sever ties with the Saudis.  Trump, however, man of the people that he is, has explained that he is reluctant to cancel the latest Saudi arms deal because that would harm American workers.  Canceling the deal, says Trump, would result in the loss of—not 40,000 jobs—but 500,000…600,000…or even one millionjobs.  (The number changes as often as Senator Joe McCarthy’s figures on the number of Communists in the US State Department.)

You can believe Trump if you like.  Me, I think that Trump is throwing Arabian sand in our eyes.  What matters to Trump is not American jobs, but his Saudi Arabian business connections, the massive profits going to arms sellers, and Yemen’s massive oil reserves.[4]

The War Powers Resolution is not going to rise from the grave.  What is much more likely is that the pumpkin-haired ghoul in the White House, together with the Saudis and the Emiratis, will continue to drive a stake through Yemen’s heart.

Happy Hallowe’en.

Notes.

[1]  As just oneexample, the Obama Administration argued that its 2011 bombing of Libya did not constitute “hostilities” within the meaning of the War Powers Resolution inasmuch as there were no US troops on the ground.  SeeAlan Greenblatt, “Why the War Powers Act Doesn’t Work,” NPR, June 16, 2011.

[2]  Steven Nelson, “Judges Toss Trump War Powers Case, Citing Passage of Time after Near Nine-Month Wait to Rule,” Washington Examiner,  July 10, 2018.  Citing a “nine-month delay” as a reason for tossing the case was a nice bit of chutzpah inasmuch as it was the Court itself which was responsible for the delay.

[3] The House of Representatives overrodeNixon’s veto by 284-135 votes; the Senate, by 75-18 votes.  A handful of Democrats abstained or voted against overriding the veto.  Breakdown of the vote by party appears here (Senate) and here (House).

[4]  Emily Stewart, “It’s not going to create or take away a single job”: Why Trump’s excuse on the Saudis doesn’t hold up, vox.com, Oct. 21, 2018.

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Charles Pierson is a lawyer and a member of the Pittsburgh Anti-Drone Warfare Coalition. E-mail him at Chapierson@yahoo.com.

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