Biden lawyers grapple with lack of congressional blessing for Houthi conflict

The widespread military strikes the United States has targeted at the Houthis, an Iran-backed militant group in Yemen that has disrupted shipping in the Red Sea, have forced the Biden administration to grapple with what it can do without congressional approval .

The question has helped fuel at least two major legal policy dilemmas, according to officials familiar with the internal deliberations of national security lawyers: One is how to pass a Vietnam-era law intended to limit wars without Congress, applies to the conflict, and another is what to do with captured prisoners.

On Thursday, a senior administration official gave the most detailed account yet on his views on the Vietnam-era law, the War Powers Resolution and the Justice Department. announced that it had taken fourteen prisoners into custody the army had been holding it for more than 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 expanding regional conflagration that has emerged from the war between Israel and Hamas following the terrorist attacks of 7 October. and the Israeli 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 nuclear warhead, to the Houthis. Four of the detainees were indicted Thursday in Richmond, Virginia — one on gun trafficking charges and three others on charges of making false statements. The rest are being held for the time being as material witnesses. They are all believed to be Pakistanis, an official said.

The military had been quietly trying to determine what to do with the sailors, hoping to free itself from the legal and logistical problems of holding the men as prisoners of war in an armed conflict that Congress had not authorized . Complicating matters further, two Navy SEALs went missing during the overnight operation to seize their boat and were later pronounced dead after a 10-day search.

However, the sailors are not accused of killing the SEALs – or of being terrorists with special skills. Options include simply releasing them, persuading a country in the region to take them in and prosecuting them, or transferring them to Pakistani custody, according to the people familiar with the internal deliberations.

But the Justice Department decided there was enough evidence to prosecute the men. The Department of Homeland Security also assured the government that the men would be held until they could be deported if someone was acquitted or after they had served their sentences, she added.

In addition, national security lawyers in the Biden administration are still grappling with how and whether a key provision of the War Powers Resolution applies to the conflict. The law generally requires the executive branch to withdraw military forces from hostilities after 60 days if Congress has not authorized the operation.

The resolution, passed by Congress in 1973 — overriding President Richard Nixon’s veto — was intended to reaffirm Congress’s role in deciding whether to go to war. But presidents of both parties, chafing at its limitations, have undermined the law and claimed the right to take certain actions unilaterally. Congress has agreed to it, and successors have subsequently built on these precedents.

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

In response, the United States and Britain have carried out more than 30 attacks in Houthi-controlled areas in northern Yemen.

Most have been characterized as self-defense against looming threats from the Houthis, such as missiles about to be launched at ships. It has become so 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 prior permission to strike in self-defense, the official said.

But the United States and Britain also carried out three major series of attacks in Yemen — on January 11, January 22 and February 3 — against Houthi weapons bunkers, command centers and other targets. Those strikes were planned in advance, with Mr. Biden’s approval.

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 does could do it without congressional approval, even as they expressed support for the campaign against the Houthis. A Senate staffer said the administration had yet to respond.

But in an interview, a senior government 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 clear what the operation would look like by mid-March and that no decision had yet been made.

The official said the administration takes seriously the War Powers Resolution’s 60-day clock as a constraint to ensure Congress has a say over 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 a degree of cynicism about this interpretation, saying it fit a long pattern of lawyers in the executive branch who found ways around the War Powers Resolution.

“The lawyers are taking advantage of a statute known for its loopholes,” he said. “The executive branch has been abusing these loopholes for nearly fifty years, setting many supportive precedents, and Congress has not risen to its prerogative to do anything about it.”

For starters, the official said, top national security lawyers within the administration agree that its actions so far have been lawful.

The official noted that the Navy and US commercial ships were in international waters, where they had been for a long time. Navy ships have an inherent legal right to self-defense against actual or threatened attacks, the official said, and that principle alone covers more than two dozen of the attacks.

The Biden administration’s 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 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.

Either way, it remains 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 the clock is triggered when the White House notifies Congress that it has deployed forces in actual or threatened “hostilities.”

After the launch of the first major airstrikes on January 11, the White House notified Congressmeaning that if the 60-day clock were to come into effect, Mr Biden would have to end the operation about two months later, on March 12.

But the government is developing a theory as to why, if current trends continue, it has room to say the clock doesn’t count, the official said.

First, the text of the resolution clearly states that a president must have “introduced” U.S. troops into the conflict before the 60-day clock would apply. It is not clear whether the law would apply to a situation where the navy was already in the Red Sea before hostilities broke out, the official said.

On the other hand, the official argued, being in international waters should not be considered “hostilities.” Operations in which U.S. forces have entered Yemeni airspace or waters to carry out attacks have been short-lived and irregular, according to the official, raising the possibility that they are too irregular for the clock to apply .

Moreover,

the official pointed to precedents in which the executive branch said the 60-day clock did not apply to operations where combat occurred more frequently or posed a greater threat to U.S. forces, including President Ronald Reagan’s use of Navy escorts to oil tankers in the Persian Gulf. Gulf in 1987, which killed 37 Navy sailors, and President Barack Obama’s participation in the NATO air war in Libya in 2011, which brought an increased pace of attacks.

Erik Schmitt contributed reporting from Washington.