Foreign Affairs
Even Biden’s fellow Democrats understand that Congress remains the final authority on authorizing the use of military force.
From time to time, you still get surprised. In a Tuesday hearing, the Democrats of the Senate Foreign Relations Committee—prominent among them Chris Murphy of Connecticut, the committee’s chairman, and Tim Kaine of Virginia, the future vice president of yesteryear—noticed that the U.S. is raining down various sorts of expensive hellfire on the Houthis in Yemen in a half-cocked, not entirely kosher way.
“The Constitution requires Congress to authorize acts of war. Period. Stop. We swore an oath to follow the Constitution. If we believe this is a just military action—and I do—then we should authorize it,” Murphy said in his prepared introductory statement. “But we also need to acknowledge that there is a real risk of escalation in the Red Sea, especially since Iran is unquestionably aiding the actions of the Houthis. Thus, an authorization is important to legalize the existing operations but also to guard against an unauthorized mission creep.”
“I believe that a tailored, time-bound congressional authorization is not just nice to have—it is required—to both authorize and limit the current military operation,” he added. “I will be in discussions with my colleagues in the coming days to introduce such an authorization.”
Amid discussion of American “strategy” in the Red Sea—we insist on quotes because “strategy” seems like a strong word for what we’re up to over there—Murphy returned to his bete noir. “This looks to me like war in every bit of the constitutional sense: 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,” he said. “I’m having a hard time understanding why this does not require a traditional congressional war authorization.”
Kaine went further, attacking the argument that American actions in the Red Sea are “self-defense” that does not require explicit military authorization. “This is hostilities, there’s no congressional authorization for them. To claim that this is covered by Article 2 self-defense, 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,” he said. “That’s not self-defense under Article 2 of the Constitution, and a president can’t make it self-defense by calling another nation a partner. If you’re defending the commercial ships of other nations, it is in my view laughable to call that self-defense.”
This is of a piece with bigger problems. You can argue that we should go to war or we should not. For that matter, you can argue that we should have green regulations, or subsidies for microchip manufacturers, or a draft, or whatever. You can also argue that we should not. Yet so long as these things are handled by the executive’s administrative machine, you can’t argue about them. It annihilates every Anglo-American development in government and law pretty much from Runnymede on down. “No taxation without representation” doesn’t mean you’re always going to love what’s happening with your tax dollars; it just means that you’re going to get to gripe about it and try to change the law. You should get a say.
I, personally, think going to war in Yemen is a dumb idea for the United States. (At the same time, I understand the calculus is different for Saudi, or Oman, or Ethiopia, or even China or Russia.) Our chums, the Saudis, have been lobbing missiles and artillery shells at the Houthis since 2015; we’ve been lobbing the missiles ourselves for about two months, give or take a week. You can’t say it’s been very effective. The Houthis are still there; by the most reckonings, they’re still controlling something in the ballpark of 50,000 square miles of Yemeni territory, including the country’s putative capital, Sanaa. Efforts to dislodge them have generated mass human suffering, including a pretty impressive on-again-off-again famine.
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The Houthis are wildly unpleasant people but, in truth, most of the wielders of power in that part of the world are. The unified Yemeni republic is a fairly recent invention. As in every Middle Eastern civil war, each “side” is a headache-inducing coalition of more or less frightening people who all hate each other nearly as much as they hate the other “side.” The effects on American shipping, as the good senator from Virginia points out, have not made a persuasive casus belli, and other nations’ shipping interests have had to be yoked in to make good the lack. This, to me, has the makings of a classic dumb American adventure in the sand.
Sometimes democracies have dumb wars; it has been that way since an Athenian armada sailed westward on a clear spring day 25 centuries ago to wage a cheeky war against the despot of Syracuse. I can grin and bear it and carry on the fight against it—so long as I get a say. Since the retaliations began, the U.S. has struck 230 targets in Yemen. That isn’t just 230 strikes against the Houthis or the Iranians or whomever we’re trying to cut down to size over there. It’s 230 strikes against your rights as a citizen, against the idea that your duly elected public servant gets a say in matters of peace and war.
The question, of course, is what Congress can do to reel in the executive—without real action, one suspects that Kaine and Murphy are using fair words to cover foul buck-passing. One thought: I hear it’s budget season (again). Perhaps Pentagon funds could be tied to obeying the Constitution our military allegedly swears its oath to uphold? » …
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