Senate passage of the Yemen War Powers Resolution in December 2018.
Recently, I was in a Zoom meeting with a bunch of peace activists from across America. Someone said something to the effect of: Steny Hoyer claims that a new Yemen War Powers Resolution wouldn’t do anything to affect U.S. participation in the Saudi war in Yemen because the War Powers Resolution of 1973 doesn’t apply to spare parts. How can we answer Steny Hoyer on this?
Of course, every schoolgirl knows that Steny Hoyer says whatever Steny Hoyer is told to say by whoever Steny Hoyer thinks that Steny Hoyer needs to listen to at the time. If we want Steny Hoyer to say something different about this now from what Steny Hoyer is reportedly saying, we need to change Steny Hoyer’s political calculus about who Steny Hoyer needs to listen to on this now. In 2017, Steny Hoyer was against the Yemen War Powers Resolution. Later, Steny Hoyer was in favor of the Yemen War Powers Resolution. Now, reportedly, Steny Hoyer is against the Yemen War Powers Resolution again. What moved Steny Hoyer in the past from opposition to support of the Yemen War Powers Resolution wasn’t some intellectual legal argument with copious footnotes citing Ivy League Constitutional Law Scholars. What moved Steny Hoyer in the past on Yemen War Powers was making a different political calculation based on a different perception of which way the wind was blowing. For example, Baltimore peace activists occupied Steny Hoyer’s office. In terms of likely impact, I would ask Baltimore peace activists to occupy Steny Hoyer’s office again before I would try to move Steny Hoyer through intellectual argument. Of course, whether Baltimore peace activists want to occupy Steny Hoyer’s office again on Yemen now is on their consciences, not mine. I live in Massachusetts.
But: “Turn every stone.” Let’s pretend that we’re having a good faith honest intellectual conversation with Steny Hoyer about this now, even though we know for certain in our hearts that we’re not. Maybe somebody who believes for whatever reason that they need to pretend in public that they believe that Steny Hoyer is a good faith actor will find the discussion useful.
The fundamental question of Congressional War Powers is: who’s in charge of deciding when we go to war, Congress or the Administration? According to Article I of the U.S. Constitution, Congress is supposed to be in charge. According to the War Powers Resolution of 1973, Congress is supposed to be in charge. If you believe, like the Americans who wrote the Constitution, like the Americans who wrote the War Powers Resolution of 1973, that Congress is supposed to be in charge of this, then it follows that that Congress must be in charge of interpreting Article I and the War Powers Resolution. If the Administration can unilaterally re-interpret the Constitution, then the Constitution is forfeit. If the Administration can unilaterally re-interpret the law, then the law is forfeit. Of course the Administration can find a lawyer to employ to say that up is down, war is peace, freedom is slavery, ignorance is strength. So what? Who cares? Congress is supposed to be in charge of this.
Nobody disputes that Congress never specifically authorized the use of force as required by the War Powers Resolution of 1973 when the U.S. went into Yemen with the Saudis in March 2015. The Obama Administration decided it; Congress didn’t stop it; Congress didn’t assert itself. Three years later, Senators Sanders, Lee, and Murphy finally called the question and invoked the War Powers Resolution to force a vote on prohibiting the Pentagon refueling of Saudi warplanes bombing Yemen in the middle of their bombing runs. It was clearly the intent of Congress in 1973 that the War Powers Resolution would apply to such a situation. Section 8c of the War Powers Resolution says: ‘For purposes of this joint resolution, the term "introduction of United States Armed Forces" includes the assignment of member 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, or there exists an imminent threat that such forces will become engaged, in hostilities.’ There’s nothing in the War Powers Resolution of 1973 about “trigger-pullers” or “boots on the ground.” The threshold in the War Powers Resolution is “participation in hostilities.” It's up to Congress to decide what “participation in hostilities” is, depending on, in practice - let’s let our hair down for a moment - depending on, in practice, what, if anything, Members of Congress want to do about it. Not the Administration. Otherwise the Constitution is forfeit.
The claim that the Yemen War Powers Resolution wouldn’t do anything is exactly the same claim that the Trump Administration’s Pentagon made in March 2018 against the Sanders-Lee-Murphy Yemen War Powers Resolution to prohibit the unauthorized Pentagon refueling of Saudi warplanes bombing Yemen in the middle of their bombing runs. Your resolution won’t do anything, the Trump Pentagon said. It doesn’t apply to us or anything we’re doing; if you pass it, it won’t matter, because we will ignore it. This claim was cited by Congressional opponents of Yemen WPR at the time, like Senator Young and Senator Shaheen. Young and Shaheen introduced a competing bill, and said, unlike your do-nothing bill, our bill will do something. Our bill will require the Secretary of State to certify that the Saudis are working to reduce civilian casualties from their U.S.-enabled bombing of Yemen with U.S. weapons. So the Senate passed the Young-Shaheen bill instead, because the Young-Shaheen bill was supported by the leaders of the Senate Foreign Relations Committee at the time, Senator Corker and Senator Menendez, who were against Yemen WPR, because they were riding with the Saudi regime, as Senator Corker later admitted when he switched sides and started helping the Forces of Progress after the Saudi regime assassinated Khashoggi. After the Sanders-Lee-Murphy bill was defeated in March, the Saudi regime blew up a school bus full of school children and claimed it was a legitimate military target and also for bonus points they assassinated a U.S. resident Washington Post columnist and ostentatiously lied about it. Then Secretary of State Pompeo “certified” that the Saudis were working to reduce civilian casualties because the former Raytheon lobbyist in the State Department that Pompeo was listening to said it would be bad for Raytheon’s weapons deals with the Saudi regime if Pompeo didn’t “certify.” Then Congress got really pissed off and Young and Shaheen switched sides and supported the Yemen War Powers Resolution and even Senator Corker helped, maybe a key reason the Trumpies got rid of him as chair of the Senate Foreign Relations Committee and replaced him with Risch.
And then, in November 2018, when the Senate was poised to pass the Sanders-Lee-Murphy Yemen War Powers Resolution, the Trump Administration “unilaterally” ended the refueling. The Trump Administration didn’t wait for the Senate to pass the bill. They didn’t wait for the House to pass the bill, four months later, after Democrats took over the House. They saw the writing on the wall. The Trump Administration was like: “You can’t fire me, ‘cuz I quit.” And that was Trump. Mr. Norm-Defier. Mr. I’m-the-President-I-can-do-whatever-the-hell-I-want. When he saw Congress coming to put its foot down on Congressional War Powers, he got the hell out of the way.
So the people who claim now that the War Powers Resolution of 1973 is a 90 pound weakling that can’t do anything are just blowing smoke. The mere anticipation that Congress was poised to pass the Sanders-Lee-Murphy Yemen War Powers Resolution in November 2018 made the Trump Administration move, four months before Congress actually passed the bill.
So we’re not really having an intellectual argument here. It’s just a question of who yells louder in Steny Hoyer’s face. It’s just a question of which side Steny Hoyer is on, the Saudi regime side, or the starving Yemeni children side. If you think that Steny Hoyer should be on the starving Yemeni children side rather than on the Saudi regime side, please add your voice in the poll below.
