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Biden Lawyers Wrestle With Lack of Congressional Blessing for Houthi Conflict

Biden Lawyers Wrestle With Lack of Congressional Blessing for Houthi Conflict


The large-scale military strikes the United States has directed at the Houthis, an Iran-backed militant group in Yemen that has disrupted shipping in the Red Sea, has forced the Biden administration to wrestle over what it can do without congressional approval.

The question has helped fuel at least two major legal policy dilemmas, according to officials familiar with internal deliberations among national security lawyers: One is how a Vietnam-era law that was intended to limit wars that lack congressional authorization applies to the conflict, and the other is what to do with captured detainees.

On Thursday, a senior administration official offered the most detailed account to date about its view of the Vietnam-era law, the War Powers Resolution, and the Justice Department disclosed that it had taken custody of 14 prisoners the military had been holding for over a month.

Together, the developments shed light on what the Biden administration sees as the scope and limits of its power in the conflict with the Houthis, part of the widening regional conflagration that has spun out of the Israel-Hamas war following the Oct. 7 terrorist 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 says was smuggling Iranian missile components, including a warhead, to the Houthis. Four of the detainees were arraigned in Richmond, Va., on Thursday — one on a weapons smuggling charge and three others on charges of making false statements. The rest are being held for now as material witnesses. All are believed to be Pakistani, an official said.

The military had been quietly trying to determine what to do with the sailors, hoping to relieve itself of the legal and logistical headache of holding the men as wartime detainees in an armed conflict that Congress has not authorized. Complicating matters, two Navy SEALs went missing in the nighttime operation to seize their boat and were later declared dead after a 10-day search.

The sailors, however, 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 and prosecute them, or transferring them to Pakistani custody, according to the people familiar with internal deliberations.

But the Justice Department decided it had sufficient evidence to prosecute the men. The Department of Homeland Security also assured the administration that the men would be detained until they could be deported if any were acquitted or after they served their sentences, they added.

Separately, 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 says that the executive branch must withdraw forces from hostilities after 60 days if Congress has not authorized the operation.

Enacted by Congress in 1973 — overriding President Richard Nixon’s veto — the resolution was meant to reassert Congress’s role in deciding whether to go to war. But presidents of both parties, chafing under its constraints, have chipped away at the law, claiming a right to take some actions unilaterally. Congress has acquiesced, and successors have then built on those precedents.

In November, the Houthis began attacking commercial shipping and U.S. Navy vessels in the Red Sea and the Gulf of Aden. The group cited Israel’s retaliatory campaign against Hamas in Gaza as justification. Since Nov. 19, there have been at least 58 such attacks, according to U.S. military officials.

In response, the United States and Britain have carried out more than 30 sets of strikes in areas of northern Yemen controlled by the Houthis.

Most have been characterized as self-defense against imminent threats by the Houthis, like missiles about to be launched 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 threats. The military does not need advance permission to strike in self-defense, the official said.

But the United States and Britain have also carried out three major sets of strikes in Yemen — on Jan. 11, Jan. 22 and Feb. 3 — against Houthi weapons bunkers, command hubs and other targets. Those strikes were planned in advance, with permission from 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 as they expressed support for the campaign against the Houthis. A Senate staff aide said the administration had yet to reply.

But in an interview, a senior administration official, who spoke on the condition of anonymity to describe sensitive internal deliberations, provided the most detailed public explanation yet of the administration’s thinking. The official cautioned that it was not clear how the operation would look in mid-March and that no decision had been made.

The official said that the administration takes seriously the War Powers Resolution’s 60-day clock as a constraint to ensure that Congress has a say on becoming involved 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 a degree of cynicism toward that interpretation, saying it fit with a long pattern of lawyers in the executive branch finding ways to sidestep the War Powers Resolution.

“The lawyers are taking advantage of a famously loophole-filled statute,” he said. “The executive branch has been exploiting those loopholes for almost 50 years, creating many supporting precedents, and Congress has not stood on its prerogative to do anything about it.”

As a preliminary matter, the official said, top national security lawyers across the administration have agreed that its actions have so far been lawful.

The official noted that the Navy and U.S.-linked commercial vessels were in international waters, where they had long been. Navy ships have an inherent legal right of self-defense against actual or imminent attacks, the official said, and that principle alone covers more than two dozen of the strikes.

The Biden administration’s lawyers, the official said, were also confident that as commander in chief, Mr. Biden had authority to launch the three preplanned strikes without going to Congress. The strikes, the official said, met the criteria established 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 “war” in the constitutional sense.

Regardless, that leaves unanswered whether the War Powers Resolution’s 60-day clock applies to the conflict, meaning Mr. Biden would be forced to end the operation when it expires. The law says that clock is triggered when the White House notifies Congress that it has introduced forces into actual or imminent “hostilities.”

After launching the first major airstrikes on Jan. 11, the White House notified Congress, meaning that if it triggered the 60-day clock, Mr. Biden would have to end the operation about two months later, on March 12.

But the administration is developing a theory for why, if current trends continue, it has leeway to say that the clock does not apply, the official said.

For one, the text of the resolution plainly states that a president must have “introduced” American forces into conflict for the 60-day clock to apply. It is not clear whether the law would apply to a situation in which the Navy was already in the Red Sea before hostilities arose, the official said.

For another, the official contended, being in international waters should not be considered “hostilities.” Operations in which U.S. forces have entered Yemeni airspace or waters to execute strikes, the official said, have been brief and infrequent, raising the possibility that they are too intermittent for the clock to apply.

Moreover, the official pointed to precedents where the executive branch said that the 60-day clock did not apply to operations in which combat was more frequent or posed a greater threat to American forces, including President Ronald Reagan’s use of Navy escorts to oil tankers in the Persian Gulf in 1987, during which 37 Navy sailors were killed, and President Barack Obama’s participation in the NATO air war in Libya in 2011, which involved a higher tempo of strikes.

Eric Schmitt contributed reporting from Washington.


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