How Recent War Powers Legislation May Affect the US Role in Yemen and Around the World

How Recent War Powers Legislation May Affect the US Role in Yemen and Around the World

Justin Metz

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.

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While many assert otherwise or imply otherwise, there is no legal agreed upon standard that holds that the President is required to obtain Congressional approval, i.e. a declaration of war, before “commanding” U.S. Military Forces to engage in a conflict, and there is nothing in the record of the debates (such as they are) during the Constitutional convention demonstrating that the Framers intended to limit the Presidents authority to “command” the military. It is not a question of my personal opinion, it is an unresolved matter of constitutional law, i.e. what does “declare war”actually mean.

From an analysis of the content of the Constitution as enacted by the Framers it seems they enshrined certain duties and authorities in particular offices, but never defined the meaning of “declare war.”

First, Article II, Section 2 declares that the President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the Several States when called into actual Service of the United States.

The Framers gave no other person or body the power to “command” the military and they provided no limitations on that authorization to command. Commands are positive or negative; therefore, only the President (or those to whom he delegates authority) can order the military to war or to cease engaging in a war, can command the Army or Navy or both to operationally structure themselves in some manner, can order them to develop and use certain weapons types, can command them to actually engage in combat operations, etc.

An authority “perhaps” recognized by the U.S. Supreme Court During the era of the Civil War. Speaking for four Supreme Court Justices in in a concurring and dissenting opinion in Ex parte Milligan, Chief Justice Chase described the power to declare war as “necessarily” extending “to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and conduct of campaigns.”

Second, Article I, Section 8 notes that the Congress’s responsibility is “To provide and maintain a Navy; to raise and support armies — with Appropriations not to for a longer term than two years; to both provide for calling forth the Militia (now called the National Guard) and to provide for organizing and arming them; and to make rules for the government and regulation of the land and naval forces.

Government and regulation of the land and naval forces has been continually held to mean setting rules for the behavior and punishment of members of the military, now detailed in the Uniform Code of Military Justice (UCMJ).To provide for does not provide the Congress with any legal authority to command how the provisions (normally funding) are to be used. Even if they place the funding into a law that the President signs, that cannot override the President having the sole constitutional authority to command. Those of us old enough to remember understand the limitations of such Cngressional authority, or lack of such authority, demonstrated when President Kennedy / Secretary of Defense MacNamara cancelled the Congressional funded and “dictated” B-70 Program.

Third, Congress in Article I, Section 8 was given the authority “to declare war, grant letters of Marque ….” However, there has never been agreement or even a legal holding as to what is meant by “declare war.” The question remains open as to whether this is merely a statement of legal fact or is it a required step before a President can commit troops to engage in a conflict.

Quoting, “The Supreme Court has never intervened to stop a war that a President has started without congressional authorization. Some federal courts of appeals have held that at least some level of congressional authorization is constitutionally required before the President may conduct military hostilities. See, e.g., Orlando v. Laird (1971). Other courts have found the issue non-justiciable. See, e.g., Mitchell v. Laird (1973).” Other courts have refused to hear the matter claiming the parties (including Congressmen had no legal standing to raise the issue — that it was a matter for the Legislative and Executive Branches to resolve under the separation of powers standard. Other scholars note that the Framers initial phrase was “make war,” which was changed to “declare war, indicating ....

Until the matter is resolved, it is only personal opinion as to whether a President that commits troops into conflict without a declaration of war is acting with or without constitutional authority. And, the Courts have held that one’s personal opinion does not provide “standing” to raise the matter in a court of law — even if that personal opinion is held by a member of Congress. And, even if the Courts (unlikely) did hear it and decide, who is to say that the Executive — an equal branch of the government is bound by a Court ruling that attempts to unconstitutionally restrict the President’s authority to command the military. The constitution provides the court no such authority. We have three separate and equal branches of government at the federal level. Nowhere in the constitution is the Judicial Branch granted the authority to act as a check on the other branches of government. And, nowhere in the Constitution is the Congress granted the authority to limit the President’s authority / Power it command the military.

Until the Constitution is amended, which is not likely, Presidents will continue to have the power to order the U.S. military to conduct operations against (i.e. to attack) another country, as President Obama did in Libya, without Congressional authorization.