Time to Revisit the War Powers Act of 1973

When Congress passed the War Powers Resolution in 1973, it did so to reestablish procedures for Congress and the president to share responsibility for the introduction of armed forces into foreign conflicts. By explicitly limiting the executive’s prerogative to initiate or escalate military actions, the act affirmed that such power rests with Congress. The founders assigned Congress this most important authority to ensure solemn debate and prevent the kinds of foreign policy disasters that plagued European monarchies. 

Yemen’s deteriorating circumstances offer Congress an opportunity to reclaim its constitutional mandate and help resolve a humanitarian catastrophe by demanding deliberation viz. material and logistical support for Saudi’s war of attrition.

The situation in Yemen is grim. By the end of 2017, more than one million people—including 600,000 children—had contracted cholera, and millions more are facing famine. Currently, the death toll is mounting among the most vulnerable—the poor and the hungry, pregnant mothers and young children. 

How did this happen? How does a vaccinable disease swell into a pandemic? And what can be done to stop the suffering? 

As history and political science teach us, intrastate conflicts are stubborn, bloody affairs. When Houthi rebels—primarily Zaidi Muslims who are technically Shi’a but share much in common with Sunni traditions—overthrew Abd-Rabbu Mansour Hadi's government in early 2015, Saudi rallied regional allies in opposition. The Kingdom then initiated a prolonged bombing campaign to dislodge the Houthis and restore the prior regime. This air war has devastated Yemen’s infrastructure and caused significant civilian casualties—as many as 10,000 killed and 40,000 wounded. Predictably, Iran escalated the conflict by supporting to the Houthis. 

Justifiably concerned that Saudi Arabia and its allies could not effectively manage the campaign, the Obama administration blundered in. At first, this meant providing Riyadh wholesale access to the American arms industry. By the end of 2016, Saudi Arabia had been offered more than $115 billion in U.S. weaponry, of which the lion’s share was used to bomb Yemen.

As others have pointed out, in early 2015 the Pentagon began providing intelligence, aerial refueling of Saudi warplanes, and logistical assistance. Administration officials reasoned this would end the war more quickly while reducing civilian casualties. No such luck. The Houthis still hold the capital, Sana’a, and most of the country, while collateral damage remains high.

Unable to win the war from the air, the Saudi-led coalition has resorted to blockades to starve the Houthis into submission. Roughly 70 percent of Yemen’s food is ferried through the port of Hodeida, and the country relies on imported petrol. Without adequate fuel supplies, ordinary Yemenis are unable to run the pumps that purify desert wells—contributing to the worst cholera outbreak known to man.

In November, the U.S. House of Representatives voted 366—30 to clarify that it had not authorized military action in Yemen. It was a symbolic act which went largely unnoticed. U.S. military activities—for instance, mid-air refueling of the Kingdom’s bombers—clearly fall under the purview of the War Powers Resolution. This puts the conduct of force in Congress’s wheelhouse.

Consider the relevant War Powers language regarding the "introduction of United States Armed Forces." It speaks explicitly to “the assignment of members of such armed forces to 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.” The relevance of intelligence sharing, ill-defined “logistical support,” and in-flight refueling could not be clearer.

Precisely why our legislative branch should welcome further debate about America’s role in the war. The Saudi intervention has coincided with a vast expansion of al Qaeda in the Arabian Peninsula (AQAP). It has also led to the growth of Iranian influence, as the beleaguered Houthis are only too willing to accept support from Tehran. These are but two unpleasant reminders that even well-intentioned military actions have unintended consequences.

Beyond the ethical dimensions surrounding the wealthiest Arab country’s bombing campaign over and upon Yemen’s famine-cum­-cholera epidemic, there are important strategic and constitutional matters to consider. They are, to cite James Madison, “solemn question[s] which the Constitution wisely confides to the legislative department of the Government.” 

At the very least, Congress should debate our involvement in Yemen, determine the appropriate course of action, and redeem its most important power.

Hugo Kirk is a policy and research analyst at the Charles Koch Institute.

Reid Smith manages foreign policy initiatives at the Charles Koch Institute.