In a clear rebuke of the Trump administration’s response to the murder of Saudi journalist Jamal Khashoggi, the Senate on Thursday passed a War Powers Resolution designed to cut off U.S. military support for the Saudi Arabia-led coalition’s fighting in Yemen.
The measure is already DOA in the House: on Wednesday, Republicans temporarily blocked lawmakers from forcing a vote on any resolution that would use the law to curtail American involvement in Yemen.
But congressional outrage with Riyadh appears unlikely to cool. After a closed-door briefing from CIA Director Gina Haspel on the Khashoggi affair on Wednesday, the Democratic leaders of the House Intelligence and Foreign Affairs Committees both vowed to dig into the matter more thoroughly. And in a press conference Wednesday urging support for a separate piece of legislation levying sanctions on those connected to the murder, Sen. Lindsey Graham, R-S.C., told reporters, “I am never going to let this go until things change in Saudi Arabia.”
For now, the Senate’s 56-41 vote is largely symbolic. The Trump administration has defended its support of the Saudi coalition and has said the president will veto any congressional bid to curtail it. And even had the resolution passed in both chambers with a veto-proof majority, some of its supporters acknowledge that it would have little immediate impact on U.S. assistance to the Saudi-led coalition. Its value, said Rep. Adam Smith, D-Wash., the top Democrat on the House Armed Services Committee, is that it puts public pressure on the administration to take steps voluntarily. Facing an international firestorm over the murder of Khashoggi and the mounting civilian death toll in Yemen, the United States has already announced that it will no longer conduct aerial refueling of coalition aircraft engaged in the campaign. But as a legal matter, the War Powers Resolution is only “so useful” as a means of curtailing hostilities, Smith said.
“At the end of the day, the president — going back to Thomas Jefferson — have always been able to do what they want to do with the military until Congress completely cuts off the money,” he told reporters on Wednesday. “That’s going to be difficult to get past the president for one thing—and for another thing, we’ve got the transnational terror threat, which is a legitimate concern.”
“There is a limitation to relying on the War Powers Resolution to get us to stop hostilities.”
The Lee-Sanders resolution, as it has come to be known, would leave the counterterror mission against al Qaeda untouched.
The White House has already hinted at how it might work around a successful passage of the resolution in the next Congress. The Lee-Sanders resolution would direct the president to “remove United States Armed Forces from hostilities in or affecting the Republic of Yemen.” The Trump administration is arguing that the “fundamental premise” of the resolution is flawed because ”United States forces are not engaged in hostilities between the Saudi-led coalition and Houthi forces in Yemen.” Critics argue that the kind of military support being provided to Saudi Arabia—intelligence, targeting assistance and, until recently, aerial refueling—does not meet the legal threshold that would require the administration to seek a war authorization from Congress.
The Obama administration used a similar defense in 2011 to defend an air war in Libya, arguing that American involvement there fell short of the standard of “hostilities” envisioned under the War Powers Act—because “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops.”
Smith recalled that a lawmaker asked an Obama official at the time: “Let me just ask you, if several missiles were lobbed into New York City tomorrow, would you consider that a hostile act?”
“If he were being honest, the explanation would have been, ‘look, the War Powers Resolution is a pain in the ass, we have to comply with it, so we’re saying hostilities are ceased because that’s what’s required to comply with the War Powers Resolution, and you wanna sue us, I guess we’ll deal with that when it comes—but for now that’s how we’re going to comply with it,’” Smith said.
The Lee-Sanders resolution lost some support from lawmakers opposed to penalizing Saudi Arabia who nevertheless do not support the use of the War Powers Resolution to do so. (Graham is one of these, as is outgoing Senate Foreign Relations chairman Bob Corker, R-Tenn.). There are several other proposals, including the Graham sanctions legislation, with Sen. Bob Menendez, D-N.J., and a resolution from Corker officially condemning the Saudi Crown Price, Mohammed bin Salman, for the Khashoggi murder. The Corker resolution also passed by voice vote on Thursday afternoon, while the Graham-Menendez legislation is almost certain not to see the floor during this Congress, thanks to an already-crowded schedule.
Graham did not vote on the measure on Thursday. Other Republicans on the Armed Services Committee voted against the resolution. (The Senate Foreign Relations Committee is the panel of jurisdiction; three Republican members on that panel supported the measure.)
The Senate also advanced a number of amendments to underlying Lee-Sanders resolution, including one to explicitly prohibit aerial refueling of Saudi aircraft carrying out the bombing campaign in Yemen, which was discontinued in November.
While a Democratic House appears likely to reinvigorate the War Powers Resolution next year, the Senate would have to pass it again — almost certainly with a veto-proof margin — and its fate is murky. Senate Majority Leader Mitch McConnell, R-Ky. has spoken out against the measure, arguing that “we want to preserve the 70-year partnership between the United States and Saudi Arabia” in spite of “grave concerns” about Khashoggi’s murder.
Still, Thursday’s vote marked the first time either the House or the Senate has used the War Powers Act to attempt to pull U.S. forces out of an overseas engagement. The ongoing conflict in Yemen has become a devastating humanitarian disaster and critics of military support to the Kingdom have for years sought to get legislation to the floor to curtail American involvement. The Senate voted down a similar measure in March, 55-44, hinting at the growing frustration on Capitol Hill with both Riyadh and the Trump administration’s handling of the Khashoggi affair.
“This has raised the awareness and I think made it more difficult for the Trump administration to continue it’s full-throated support for the war in Yemen,” Smith said Wednesday.
“But as a practical legal matter, it doesn’t change the equation.”