Sen. Kaine calls Biden’s claims of self-defense against Houthis ‘laughable’’

The Biden administration’s legal justification for its attacks on Houthi militants in Yemen is “laughable,” Sen. Tim Kaine (D-Va.) said at a Senate Foreign Relations committee hearing Tuesday on United States actions in the Red Sea.

Speaking to defense officials, Kaine said though “Houthi behavior is abhorrent,” he has “grave skepticism” about the administration’s interpretation of presidential military powers under Article 2 of the Constitution.

“A narrow mission to defend U.S. shipping, both military and commercial — that is Article 2 self-defense,” Kaine said. “Article 2 self-defense means you can defend U.S. personnel, you can defend U.S. military assets, you probably can defend U.S. commercial ships. But the defense of other nations’ commercial ships in no way — and it’s not even close — that’s not self-defense.”

“If you’re defending the commercial ships of other nations, it is in my view laughable to call that self-defense,” he added.

Article 2 of the Constitution provides the president authority to act militarily in self-defense without congressional approval. Since Jan. 11, the U.S. and the U.K. have struck more than 230 Houthi targets in Yemen in response to attacks on shipping and military vessels in the Red Sea, including commercial ships flying non-U.S. flags.

The Biden administration has said the attacks are meant to degrade the militant group’s abilities to attack targets in the Red Sea. However, the tit for tat with the Houthis has continued for months.

Kaine was not alone among committee Democrats in questioning the White House’s justification for continuing the battle without engaging Congress.

“This looks to me like war in every bit of the constitutional sense,” said Sen. Chris Murphy (D-Conn.), chair of the subcommittee on the Near East, South Asia, Central Asia and counterterrorism.

“We have engaged in multiple rounds of strikes, we have a limited number of boots on the ground, we have taken casualties, we have prisoners — I’m having a hard time understanding why this does not require a traditional, congressional war authorization.” 

Although Murphy said he supports Operation Prosperity Guardian — the president’s initial response to Houthi attacks — he said the operation requires congressional approval. 

“If we believe this is a just military action, and I do, then we should authorize it,” Murphy said. “An authorization is important to legalize the existing operations but also to guard against an unauthorized mission creep.”

Under the War Powers Resolution, a Vietnam-era measure, presidents have 60 days after launching a defensive response to seek congressional approval. That window closes for Biden in two weeks; the attacks against Houthi positions began Jan. 11. 

Kaine, Murphy, Sen. Todd Young (R-Ind.) and Sen. Mike Lee (R-Utah) wrote a letter to the president Friday requesting he outline his legal authority under Article 2, especially his claim that the U.S. can act to defend international vessels. 

Daniel Shapiro, the Defense Department’s deputy assistant secretary for the Middle East, defended the administration’s approach. 

He said the U.S. “maintains the ability to defend itself when operating lawfully on the world’s ocean, and has the obligation to protect shipping on international waters.”

Young grilled Shapiro after he said that “he’d have to defer to colleagues” for specific, historical precedent for the administration’s actions. 

“Did you not anticipate questions about the legal rationale before you came before the subcommittee?” Young said in disbelief.

“This is about as rigorous — those [answers] are about as specific as the administration’s rationale that they gave with the war powers notification. We’re going to need more information going forward,” he said.