Senators question legality of Biden’s Houthi strikes in Yemen

by Tommy Grant

WASHINGTON ― A growing number of bipartisan lawmakers is questioning President Joe Biden’s legal authorities to conduct strikes on Yemen’s Houthis.

Sen. Tim Kaine, D-Va., led three other senators in a Tuesday letter to Biden pushing him on the strategic and legal rationale for the recent tit-for-tat strikes against Houthi assets in Yemen without a military authorization from Congress. The objections come following reports the White House is preparing for a sustained campaign that could last several more months in response to the Iran-backed group’s attacks on commercial ships in the Red Sea.

“There is no current congressional authorization for U.S. military action against the Houthis in the Red Sea or Yemen,” Kaine told Defense News. “This has gone beyond a one-off self-defense. As soon as it’s a prediction of a back-and-forth, it’s going to escalate more. This needs Congress now.”

Sens. Chris Murphy, D-Conn., Mike Lee, R-Utah, and Todd Young, R-Ill., also signed onto the Kaine letter questioning Biden’s legal authorities under the 1973 War Powers Act.

In Biden’s notification to Congress outlining his initial Jan. 11 strikes in Yemen, he invoked his authorities as commander-in-chief under Article II of the Constitution to defend U.S. citizens, personnel and assets.

The senators in their letter noted it “could also be argued that directing military action to defend U.S. commercial shipping is within this power.” However, “most vessels transiting through the Red Sea are not U.S. ships, which raises questions about the extent to which these authorities can be exercised.”

“We support smart steps to defend U.S. personnel and assets, hold the Houthis accountable for their actions and deter additional attacks,” they wrote. “We further believe Congress must carefully deliberate before authorizing offensive military action.”

The strikes have not stopped the Houthis from attacking Red Sea ships, and the Biden administration has responded with seven additional strikes since then. Biden acknowledged last week the strikes had not deterred the Houthis, but vowed they would nevertheless continue.

Asked about the White House’s legal authorities, a National Security Council spokesperson told Defense News “we’re not going to speculate about future strikes or action since the Houthis could choose to stop their indiscriminate and unlawful attacks on U.S. and commercial ships at any time.”

Senate Foreign Relations Chairman Ben Cardin, D-Md., told Defense News “the War Powers Act is pretty specific,” noting that if the Yemen strikes trigger it “then they’re going to have to come to us.”

The top Republican on that committee, Sen. James Risch, R-Idaho, argued Biden’s Yemen strikes are already covered by his constitutional “authorities to protect American citizens and American property.”

‘In harm’s way’

The Houthis began firing at commercial ships in October, demanding an end to Israel’s bombardment of Palestinians in the Gaza Strip that began after Hamas’ Oct. 7 attack on Israelis. The Defense Department launched Operation Prosperity Guardian in December with Britain and other allies to defend commercial shipping lanes against Houthi attacks.

Brian Finucane, a former State Department legal adviser who is now a senior adviser at the International Crisis Group think tank, questioned the legality of Biden’s Yemen strikes without congressional authorization. He told Defense News that while “it’s generally accepted” the president has authority to defend U.S. forces from attacks, “in this case the president potentially put U.S. troops in harm’s way.”

“The U.S. has been involved in fighting the Houthis, countering the Houthis in the Red Sea, since Oct. 19,” said Finucane. “That’s when the Houthis launched missiles and drones towards Israel and the USS Carney shot them down.”

Congress passed a resolution in 2019 telling former President Donald Trump to end U.S. support for the Saudi-led coalition’s Yemen campaign against the Houthis, noting lawmakers had never authorized the operation. But Trump vetoed it.

The Saudi bombing campaign, from 2015 to 2022, killed nearly 15,000 civilians, according to the Armed Conflict Location and Event Data Project. There have been no reports of civilian casualties resulting from the U.S. strikes this month.

Two of the signatories on the Senate letter — Murphy and Lee — spearheaded the Yemen war powers resolution in the Senate during the Trump administration. At least two House lawmakers who sponsored the 2019 Yemen resolution, Reps. Ro Khanna, D-Calif., and Thomas Massie, R-Ky., have also criticized Biden over the lack of congressional authorization for his recent Yemen strikes.

Murphy told Defense News “it’s very likely” the Biden administration requires a congressional authorization for its strikes, but said “there would be a legitimate debate as to whether we should authorize a limited use of force.”

“What the Houthis have done does directly implicate U.S. interests,” said Murphy.

Sen. Rand Paul, R-Ky., generally a critic of foreign military intervention, also said “sustained military action” against the Houthis would require a congressional authorization and indicated he may be open to supporting one.

“In this particular instance, I do support military reprisals and military attacks to deter attacking our ships, but [the Biden administration] shouldn’t be allowed to do that without permission,” Paul told Defense News.

House Foreign Affairs Chairman Mike McCaul, R-Texas, told Defense News in October he was drafting an authorization for the Biden administration to strike Iran-backed proxies in the Middle East amid the fighting between Israel and Hamas, though he has not introduced it.

Iran-backed militias have targeted U.S. troops in Iraq and Syria at least 151 times since Oct. 7, leading to retaliatory strikes from the Biden administration. The Senate voted in December to keep U.S. troops in Syria, rejecting 13-84 a Paul resolution that would have forced Biden to withdraw them.

Bryant Harris is the Congress reporter for Defense News. He has covered U.S. foreign policy, national security, international affairs and politics in Washington since 2014. He has also written for Foreign Policy, Al-Monitor, Al Jazeera English and IPS News.

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