The United States’ large-scale military strikes against the Houthis, an Iran-backed militant group in Yemen that has disrupted shipping in the Red Sea, have forced the Biden administration to wrestle with what it can do without congressional approval.
According to officials familiar with the internal deliberations among national security lawyers, the question has helped fuel at least two major legal policy dilemmas: First, how a Vietnam-era law intended to limit wars for which there is no authorization of Congress is applicable to the conflict, and the other is what to do with captured prisoners.
On Thursday, a senior administration official delivered the most detailed report yet on his view of the Vietnam-era law, the War Powers Resolution, and the Justice Department announced that it had transferred 14 prisoners the military had held for more than a year had been taken into custody for a month.
Taken together, the developments shed light on what the Biden administration sees as the extent and limits of its power in the conflict with the Houthis, part of the widening regional conflict that emerged from the Israel-Hamas war following the Oct. 7 terror attacks and Israel’s invasion of Gaza.
On Jan. 11, the U.S. Navy captured 14 sailors off the coast of Somalia when it intercepted and sank their boat, which the government said was smuggling Iranian missile components, including a warhead, to the Houthis. Four of the detainees were charged Thursday in Richmond, Virginia – one with weapons smuggling and three others with making false statements. The rest are being held as witnesses for the time being. All are believed to be Pakistanis, an official said.
The military had been quietly trying to figure out what to do with the sailors, hoping to avoid the legal and logistical problems that come with holding the men as prisoners of war in an armed conflict that Congress did not authorize . Making matters worse, two Navy SEALs went missing during the nighttime operation to seize their boat and were later declared dead after a 10-day search.
However, the sailors are not accused of killing the SEALs – or of being terrorists with special skills. Options included simply releasing them, persuading a country in the region to take them in and prosecute them, or transferring them to Pakistani custody, people familiar with the internal deliberations say.
But the Justice Department concluded it had enough evidence to prosecute the men. The Department of Homeland Security also assured the administration that the men would be held until they could be deported if acquitted or after they had completed their sentences, they added.
Regardless, national security lawyers in the Biden administration are still wrestling with how or whether a key provision of the War Powers Resolution applies to the conflict. The law generally states that the executive branch must withdraw its troops from hostilities after 60 days if Congress has not authorized the operation.
The resolution was passed by Congress in 1973, overriding President Richard Nixon’s veto. It was intended to reaffirm the role of Congress in deciding whether to go to war. But presidents of both parties, angered by the law’s constraints, have weakened the law and asserted the right to take certain actions unilaterally. Congress agreed, and successors then built on those precedents.
In November, the Houthis began attacking merchant ships and U.S. Navy ships in the Red Sea and the Gulf of Aden. The group cited Israel’s retaliatory campaign against Hamas in Gaza as its justification. There have been at least 58 such attacks since November 19, according to US military officials.
In response, the United States and Britain carried out more than 30 series of attacks in Houthi-controlled areas in northern Yemen.
Most were described as self-defense against impending threats from the Houthis, such as missiles about to be fired at ships. It has also become routine for the Navy to shoot down Houthi attack drones in the Red Sea, including six on Thursday that were seen as a threat. The military does not need prior authorization to attack in self-defense, the official said.
But the United States and Britain have also carried out three major series of strikes in Yemen – on January 11, January 22 and February 3 – against Houthi weapons bunkers, command centers and other targets. These attacks were planned in advance with the approval of Mr. Biden.
The Biden administration has not asked Congress for authorization for the conflict.
Last month, four senators – Tim Kaine, Democrat of Virginia, Chris Murphy, Democrat of Connecticut, Todd Young, Republican of Indiana, and Mike Lee, Republican of Utah – asked the Biden administration to explain the scope and limits of what the president could do without congressional approval, even though they expressed support for the campaign against the Houthis. A Senate official said the government had not yet responded.
But in an interview, a senior administration official, who spoke on condition of anonymity to describe sensitive internal deliberations, provided the most detailed public explanation yet of the administration’s thinking. The official warned that it was not yet clear what the operation would look like in mid-March and that no decision had been made.
The official said the administration takes seriously the War Powers Resolution’s 60-day deadline as a constraint to ensure Congress has a say in involvement in major ground wars like Vietnam, but believes the facts of the Houthi operation are different.
Still, Jack Goldsmith, a Harvard law professor and former head of the Office of Legal Counsel in the George W. Bush administration, expressed some cynicism about that interpretation, saying it fits a long pattern of lawyers in the executive branch seeking ways to do so seek to circumvent the War Powers Resolution.
“The lawyers are taking advantage of a law that is notoriously full of loopholes,” he said. “The executive branch has exploited these loopholes for nearly 50 years, setting many supportive precedents, and Congress has not granted itself the right to do anything about it.”
First of all, the official said, senior national security lawyers across the government agree that their actions so far have been lawful.
The official noted that the Navy and U.S.-affiliated merchant vessels were in international waters, where they had been for a long time. Navy vessels have an inherent legal right to self-defense against actual or impending attack, the official said, and that principle alone covers more than two dozen attacks.
Biden administration lawyers, the official said, were also confident that Mr. Biden, as commander in chief, had the authority to launch the three pre-planned attacks without going to Congress. The strikes, the official said, met the criteria set by the Office of Legal Counsel: They served a significant national interest, and their scope and risks did not rise to what has historically been considered a “war” in the constitutional sense.
Regardless, it remains unanswered whether the War Powers Resolution’s 60-day time frame applies to the conflict, meaning Mr. Biden would be forced to end the operation once it expires. The law says the clock is triggered when the White House notifies Congress that it has committed military forces into actual or impending “hostilities.”
After launching the first major airstrikes on Jan. 11, the White House notified Congress, meaning Mr. Biden would have to end the operation about two months later, on March 12, if it triggered the 60-day clock.
But the government is developing a theory as to why, if current trends continue, it has leeway to say the clock doesn’t apply, the official said.
For one thing, the text of the resolution clearly states that a president must have “introduced” American forces into a conflict for the 60-day clock to apply. It is not clear whether the law applies to a situation the Navy already found itself in before hostilities broke out in the Red Sea, the official said.
On the other hand, the official argued, being in international waters should not be viewed as “hostility.” Operations in which U.S. forces have entered Yemeni airspace or waters to carry out attacks have been brief and infrequent, the official said, raising the possibility that they were too sporadic for the clock to count.
In addition, the official pointed to precedents in which the executive branch stated that the 60-day clock does not apply to operations that involve more frequent combat or pose a greater threat to American forces, including the use of naval escorts to oil tankers by President Ronald Reagan in the Persian Gulf in 1987, which killed 37 Marines, and President Barack Obama’s participation in the NATO air war in Libya in 2011, which brought with it a higher tempo of attacks.
Eric Schmitt contributed reporting from Washington.
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2024-02-23 01:02:47
www.nytimes.com
