The Biden administration put itself in awkward position last week when it killed off another attempt by Congress to force President Joe Biden to make good on the pledge he made nearly two years ago to end American support for the war in Yemen. The offensive campaign led by Saudi Arabia and the United Arab Emirates, which will soon enter its eighth year, has created whats widely regarded as the worlds greatest humanitarian catastrophe, with hundreds of thousands dead and millions in desperate need of aid.
Pledging to veto the Yemen War Powers Resolution introduced by Senator Bernie Sanders, the administration privately urged senators to vote against it on the grounds that it was unnecessary and would complicate diplomacy with the warring parties. Sanders pulled the bill just before its scheduled vote, but promised to bring it back up for a vote if he and Biden dont reach an agreement on ending the war.
Proponents of the resolution were motivated by the very fact of the wars intensification in the year following Bidens alleged policy change and its possible resumption after the expiration of a cease-fire almost three months ago. Because it is widely believed that U.S. support is operationally essential for the Saudi air campaign, this legislation ensures Saudi Arabia would not have the ability to start escalating by restarting deadly bombings in Yemen, reads a memo of talking points produced by antiwar organizations provided to The New Republic.
Amid the Biden administrations effort to derail the resolution, it was unclear whether Sanders had enough votes to secure its passage. None of the Democratic senators who were reportedly opposed to or skeptical of Sanderss resolutionBob Menendez, Jack Reed, and both California senators, Dianne Feinstein and Alex Padilla, whose districts are home to the biggest defense contractorsresponded to requests for comment.
Some senators were reportedly concerned over precisely what the resolution includes in its definition of hostilitiesthe operative term that triggers application of the War Powers Resolution, the post-Vietnam law passed over Richard Nixons veto, which requires the president to withdraw U.S. forces from hostilities within 60 days in the absence of congressional authorization or a declaration of war.
While the 2019 Yemen resolution that Donald Trump vetoed only included midair refueling of Saudi fighter jets in the scope of hostilities and explicitly excluded intelligence activities, Sanderss new resolution goes much further, bringing intelligence sharing and logistical support for offensive coalition strikes under the umbrella of hostilities. The Biden administration has stated multiple times that it does not consider its support for the Saudi-led coalition to constitute participation in hostilities, a view consistent with both the Obama and Trump administrations.
The concern is that by codifying this definition of hostilities, other U.S. military support operations might be undermined. One senior Democratic aide who was granted anonymity by The Washington Post said that Sanderss resolution really has made us nervous because its conception of hostilities could have real ramifications for our support for Ukraine right now, or our support for Israel. This is the first time that the Congress is being asked to vote on defining hostility as intelligence sharing, and its dangerous.
Given the lack of substantial political will required to bring about these downstream effects, this scenario seems unlikely. But top legal scholars of the War Powers Resolution told The New Republic that this concern is overblown on its own terms. I dont think it would have had the far-reaching impact that some might have feared, said Yale Law professor Oona Hathaway, who pointed out that the bills definition of hostilities explicitly applied only to offensive Yemen-related activity. Scott R. Anderson, senior editor at Lawfare and fellow at the Brookings Institution, agreed. Theres no reason to think that a particular definition of hostilities in one of these resolutions would necessarily extend into all future resolutions. This definition is really only for this specific circumstance, he said.
Anderson speculated that the administration might be more worried about the policy and political precedent this resolution could set, that Congress might feel empowered to assert its leverage on a wider range of foreign policy activities. The concern over the resolution, therefore, seems not to be about how Congress is defining hostilities, but rather the very fact that Congress is defining hostilities, a practice historically performed exclusively by executive branch lawyers, who have advanced an exceptionally narrow interpretation of hostilities that future presidents can lean on or amend at their broad discretion with the appropriate lawyerly window dressing.