November 27, 2018

Dear Majority Leader McConnell and Minority Leader Schumer:

The United Nations warned in October of the “clear and present danger of an imminent and great big famine engulfing Yemen,” threatening half of the country’s people—14 million Yemenis—with death by starvation within months. Averting the largest famine to be witnessed in at least a century requires ending the U.S.-Saudi war against Yemen’s Houthi rebels. “Above all,” concluded UN Humanitarian Coordinator for Yemen Lise Grande, “the fighting has to stop.”

Despite UN calls for a ceasefire, the Saudi-led coalition’s offensive on Yemen’s vital port city of Hodeidah has led to intense fighting and airstrikes in recent days, wounding hundreds, endangering health facilities, and threatening the distribution of food and fuel throughout the country.

The Trump Administration’s November 9th announcement suspending U.S. midair refueling for Saudi coalition airstrikes has not proved sufficient in compelling the coalition to end hostilities, and that U.S. decision could be reversed at any time. U.S. logistical support, targeting assistance, and intelligence sharing for Saudi coalition airstrikes continues, as does U.S. Special Forces’ participation in anti-Houthi operations.

In addition, the President’s November 20th declaration absolving Saudi leadership of its conduct in Yemen and the killing of journalist Jamal Khashoggi indicates that the Trump Administration will not use its leverage to rapidly bring the conflict to an end. President Trump reaffirmed that “the United States intends to remain a steadfast partner of Saudi Arabia,” a “great ally.”

Immediate Congressional action is therefore imperative. We write to urge you to do everything in your power to assure the passage of Senate Joint Resolution 54, introduced by Senators Sanders (I-VT), Lee (R-UT), and Murphy (D-CT), to end of all unauthorized U.S. military participation in the Saudi-led war.

By directing the President to halt all offensive activities alongside Saudi Arabia against the Houthis unless such actions are first approved by Congress, the passage of S.J.Res. 54 would spell the likely end to the broader conflict. Negotiations could then turn to reviving Yemen’s economy and fully reopening country—“whose skies and seas are under a strict military blockade” by the Saudi regime—to food, fuel and medicine to end the world’s worst humanitarian crisis. 

In 2016, noting the thousands of Yemeni civilians killed in Saudi airstrikes hitting markets, homes, hospitals, factories and ports, The New York Times observed that the U.S.-supported bombing campaign had already created “a humanitarian disaster.” The Times reported that the White House had dedicated “two days of discussions” in 2015 to weighing U.S. participation in Saudi-led hostilities, “but there was little real debate. Among other reasons, the White House needed to placate the Saudis as the administration completed a nuclear deal with Iran,” which “eclipsed concerns among many of the president’s advisers that the Saudi-led offensive would be long, bloody and indecisive. Mr. Obama soon gave his approval for the Pentagon to support the impending military campaign.” U.S. military operations expanded to include Green Berets who secretly arrived on the Saudi-Yemeni border to locate and destroy missiles caches of Yemen’s Houthi rebels.

Yet Congress enacted the War Powers Resolution of 1973, overriding President Nixon’s veto, to avert precisely such developments. In section 2(c) of that law, Congress enshrined the requirement for specific statutory authorization when introducing U.S. forces into imminent hostilities, defined by section 8(c) to include U.S. personnel assigned to “command, coordinate, participate in the movement of, or accompany” foreign military forces imminently engaged in hostilities. Congress expressly delineated this broad set of actions in order “to prevent secret, unauthorized military support activities and to prevent a repetition of many of the most controversial and regrettable actions in Indochina,” including the deployment of U.S. “advisers” who in fact were secretly engaged in war “without Congressional authorization.”

For the purposes of legislative oversight, Congress also arrived at the term “hostilities” advisedly in developing the War Powers Resolution, substituting the term for “armed conflict” during the drafting process because “hostilities” were considered “broader in scope,” encompassing “a state of confrontation in which no shots have been fired but where there is a clear and present danger of armed conflict.” The more-expansive “imminent hostilities,” Congress maintained, applied to any situation “in which there is a clear potential either for such a state of confrontation or for actual armed conflict.”

Congress intended for the War Powers Resolution to structure the exercise of its sole authority over the offensive use of force pursuant to Article I, Section 8 of the Constitution. Chief framer James Madison urged for “rigid adherence to the simple, the received and the fundamental doctrine of the constitution, that the power to declare war including the power of judging of the causes of war is fully and exclusively vested in the legislature.”

Since 2015, the Executive Branch has never sought specific statutory authorization required by the War Powers Resolution for military participation alongside Saudi Arabia against Yemen’s Houthis rebels. Nor has it provided to Congress any legal justification for its ongoing hostilities. The Houthis pose no direct threat to the United States, nor are they covered under any authorization for use of military force. The Houthi rebels are adversaries of Al Qaeda in Yemen and similar terrorist groups; in fact, the “Houthis have eradicated Al Qaeda from their areas” in Yemen, according to the Times.

Thirty policymakers who served in the Obama Administration, including National Security Advisor Susan Rice and CIA Director John Brennan, recently acknowledged the catastrophic consequences of U.S. involvement in Saudi Arabia’s war in Yemen, and now call on the United States to “end participation in or any form of support for this conflict.” We ask that you lead the Congress in fulfilling its humanitarian imperative and constitutional duty to pass S.J.Res. 54 and swiftly end the Saudi-led war in Yemen so that millions may yet live.

Bruce Ackerman
Sterling Professor of Law and Political Science
Yale University

Laurence H. Tribe
Carl M. Loeb University Professor and Professor of Constitutional Law
Harvard University

Hon. Barbara K. Bodine
U.S. Ambassador to Yemen, 1997-2001
Director, Institute for the Study of Diplomacy, Georgetown University

Bruce Riedel
Former Central Intelligence Agency analyst, White House senior advisor, author, Kings and Presidents: Saudi Arabia and the United States since FDR

Jody Williams
Nobel Peace Laureate, 1997

Aziz Huq
Frank and Bernice J. Greenberg Professor of Law
University of Chicago Law School

Helen Hershkoff
Herbert M. and Svetlana Wachtell Professor of Constitutional Law and Civil Liberties
New York University School of Law

Aziz Rana
Professor of Law, Cornell Law School

Salam Al-Marayati
President and Co-Founder, Muslim Public Affairs Council

Scott J. Shapiro
Charles F. Southmayd Professor of Law and Professor of Philosophy
Yale University

[Affiliations listed for identification purposes only]