It’s time to defund the Saudi-led coalition’s war in Yemen

The war in Yemen is a humanitarian catastrophe, with an average of 123 civilians killed or wounded every week and at least 14 million people at risk of starvation. The Saudi-led coalition is alleged to be committing war crimes in Yemen, yet the United States continues to supply materials and troops in support of the coalition, prolonging a bloody, inhumane conflict. Efforts to extricate the United States from this immoral war, however, are mired in politics, despite broad bipartisan sentiment in Congress for such a move and joint opposition to  Saudi Crown Prince Mohammad bin Salman in the wake of the murder of Jamal Khashoggi.

Last week, House Republicans once again scuttled bipartisan efforts to withdraw U.S. support for the war with the passage of H.J. Res.37, which directs the removal of U.S. armed forces from participation in hostilities in support of the Saudi-led coalition. Unfortunately, Rep. David Kustoff (R-Tenn.) engineered a last-minute, unrelated amendment to the bill, de-privileging its status and allowing Senate Majority Leader Mitch McConnell (R-Ky.) to block the bill from coming to a vote in the Senate. At a time when bipartisan agreement is in short supply, deliberately sabotaging legislation is a significant failure of the U.S. democratic process.

{mosads}Had the bill made it through the Senate, the president likely would have vetoed the measure, and a veto override seems unlikely. Even if an override were attainable, however, this type of bill might not be the optimal path towards ending U.S. support for the war.

Like many bills of its sort, it relies on the 1973 War Powers Act (WPA), passed at the end of the Vietnam War to reaffirm Congress’s war-making function in light of perceived executive overreach. Yet presidents have managed to sidestep the WPA — from Reagan in Lebanon to Clinton in Kosovo to Obama in Libya — by arguing that our military commitments do not rise to the level of “hostilities,” an undefined term in that legislation. Indeed, President Trump appears to have been gearing up for just such a move, as evidenced by several administration documents, including a letter from the Department of Defense to Sen. Mitch McConnell (R-Ky.) articulating a particularly narrow interpretation for the term “hostilities.”

Moreover, the current bill contains various loopholes, such as the Buck Amendment, which allows for continued intelligence sharing with the coalition. Support for the Saudi-led coalition in any form, even remote intelligence operations, arguably exposes the United States to domestic and international  liability, and puts the United States on the wrong side of history.

A better strategy would be to seek to defund the coalition, as might be included in a defense spending bill such as the 2020 National Defense Authorization Act (NDAA). By contrast with H.J.Res.37, this strategy might be an effective way for Congress to reassert its constitutional war powers authority without giving the administration a way of getting out from under congressional constraints.  

There is precedent for this kind of move. During the Vietnam War, Congress chose to express its opposition to the war through a series of defunding bills that ultimately proved impactful. Notwithstanding President Nixon’s defiant claims about the breadth of his powers as commander-in-chief, in January 1971 Congress passed the Cooper-Church Amendment, which prohibited the use of appropriated funds to introduce ground troops into Cambodia. In 1973, Congress went further, attaching the Case-Church Amendment to a State Department appropriations bill. These amendments, which helped hasten U.S. withdrawal from Vietnam, suggest that defunding military operations abroad can be an effective method for restricting the exercise of executive authority in war.

{mossecondads}One member of the previous Congress did pursue a conditional defunding strategy designed to hasten an end to the war in Yemen. Sen. Chris Murphy (D-Conn.) introduced an amendment to the FY 2019 Defense Appropriations bill that would have cut off funding for U.S. military support for the Saudi-led coalition until the Pentagon could certify that the coalition is not violating international law. Unfortunately, the amendment never came to a vote. But with growing animosity towards the Saudi kingdom, it may be time to revisit the Murphy amendment or other initiatives with the same aim.

Quite apart from the murder of Jamal Khashoggi, the Saudis appear to have provided al Qaeda with U.S.-made weapons in the fight against Houthi insurgents. Secretary of State Mike Pompeo ignored a Feb. 9 deadline required under the 2019 National Defense Authorization Act to certify that Saudi Arabia and the United Arab Emirates are taking adequate precautions to reduce the risk of harm to civilians and infrastructure. But it is notable that Pompeo’s previous certification overruled a recommendation from State Department experts not to certify these countries because of a “lack of progress on mitigating civilian casualties.”

The recent setback with H.J.Res.37 is one of many signs that it is time for a fresh start in Congress’s attempts to curb the unfettered exercise of executive authority in war. Effective assertion of Congress’s war powers, along with a willingness to firmly condemn military campaigns that violate international law, would make defunding the war in Yemen beneficial as an exercise in congressional authority, even beyond the impact it would have on this crisis.  

Claire Finkelstein is the Algernon Biddle Professor of Law and Professor of Philosophy and the director of the Center for Ethics and the Rule of Law at the University of Pennsylvania.

Nicholas Saidel is a senior fellow at the Center for Ethics and the Rule of Law at the University of Pennsylvania. He was an aide to former Rep. Bob Brady (D-Pa.).