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Add Trump’s Yemen Veto to Obama’s Spotty War Legacy

The president's decision to maintain U.S. support for a disastrous conflict relied on legal arguments crafted by the last administration.

Chip Somodevilla/Getty Images

Donald Trump loves to present himself as the anti-Obama. But this week, when he handily vetoed a congressional resolution directing him to end U.S. military support for the Saudi-led coalition war in Yemen, he leaned heavily upon his predecessor’s policies—an inconvenient fact for both presidents’ supporters.

For the past four years, a coalition of 10 countries led by Saudi Arabia and the United Arab Emirates has conducted a massive bombing campaign and an aerial and naval blockade of Yemen in an effort dislodge the Houthis, who took control of the country in 2014. This intervention, supported militarily from its first day by the United States, has produced what the UN has called “the worst manmade humanitarian crisis in the world.” Repelled by these effects and Saudi Arabia’s human rights violations—most recently the murder of journalist Jamal Khashoggi—Congress took the unprecedented step of directing the president to withdraw U.S. forces from an ongoing conflict.

The Congressional aides drafting the Yemen resolution that finally passed in early April specifically inserted an amendment in order to invoke the War Powers Resolution—a 1973 law passed over Richard Nixon’s veto that orders the president to withdraw U.S. forces from “hostilities” within 60 days absent congressional authorization. The amendment clarified that both mid-air refueling of Saudi jets and the provision of targeting intelligence in Yemen constitute involvement in “hostilities.” (Trump stopped the mid-air refueling of Saudi jets in November but continues to provide essential logistical support.)

But in his veto message, Trump denied this claim. A resolution demanding an end to American engagement in hostilities in Yemen is “unnecessary,” Trump argued, because the U.S. is, in fact, “not engaged in hostilities in or affecting Yemen,” aside from operations targeting al Qaeda in the Arabian Peninsula and ISIS, to which the resolution did not apply in the first place.

Trump’s ability to claim the U.S. is not engaged in hostilities in Yemen is based on an interpretation of “hostilities” taken directly from the Obama administration.

The working theory within the executive branch for what constitutes “hostilities” for purposes of the War Powers Resolution (WPR) was developed in 2011 as NATO bombs were executing a war of regime change in Libya. Because Congress, with a few exceptions, had no interest in claiming responsibility for this intervention with a war declaration or statutory authorization, Obama faced a dilemma: Would he have to end U.S. airstrikes after the sixtieth day, as required by the WPR?

Two administration lawyers—humanitarian interventionist and human rights icon Harold Koh in the State Department and his White House counterpart, Bob Bauer—quickly crafted a legal rationale that allowed Obama to bypass the WPR predicament. The Libya war did not rise to the level of hostilities, they concluded, because the risk of escalation, the exposure of U.S. forces, the military means used to execute the mission, and the mission itself were all limited by design. By placing U.S. airstrikes outside the realm of hostilities as envisioned by the WPR, Koh argued that Obama did not need Congressional authorization to repeatedly bomb the infrastructure of a foreign government.

Not everyone agreed. Jeh Johnson, general counsel of the Defense Department, argued that the Obama administration “would have a stronger argument that it was complying with the statute if its military activity receded to a purely supporting role, like refueling allied warplanes and providing intelligence,” New York Times journalist Charlie Savage later reported in his book Power Wars. But even his dissent, arguably, has helped lay the groundwork for today’s understanding of a president’s power to use force without Congressional approval. For while Johnson’s argument ultimately lost out to Koh’s, the scenario he laid out for avoiding the appearance of engaging in “hostilities,” interestingly enough, is precisely the one currently playing out in Yemen. Even Johnson’s more expansive reading of the term “hostilities,” in contrast to Koh’s extraordinarily narrow one, did not include the type of support the U.S. provides to Saudi Arabia and its cobelligerents. 

Accordingly, when Obama began supporting the Saudi-led war in Yemen in March 2015, he did not file a report to Congress within 48 hours, as would be required by the WPR, precisely because he did not believe U.S. forces were engaged in hostilities. In its December 2016 report on the legal and policy frameworks guiding the use of force, the Obama administration did not refer to its participation in the Saudi-led war in Yemen as “hostilities,” saying instead that “U.S. forces are not taking direct military action in Yemen in this Saudi-led effort.”

In February 2018, after Trump had inherited and continued support for the war, Senator Bernie Sanders first introduced the Yemen resolution. William Castle, acting general counsel of the Defense Department, responded in a letter to Congress saying that the resolution’s “fundamental premise is flawed.” Support for the Saudi-led coalition, he argued—just as Trump’s message claimed this week—“does not constitute ‘hostilities.’”  

Last fall, at the launch of his new book at New York University, I asked Harold Koh if, based on his theory of hostilities, he thought U.S. support for the Saudi-led war in Yemen qualifies. Although he should have been embarrassed that his legal rationale now allows for the continuation of a war causing the world’s greatest humanitarian catastrophe, he simply dodged the question. “Well, to be honest, I don’t have enough facts about how many armed forces are in Saudi Arabia or Yemen supporting the activities of the Saudi government,” Koh said.

Because the Obama administration established the precedent in 2011 that consistent bombing did not rise to the level of hostilities, the Trump administration was easily able to claim that U.S. support for the Saudi-led coalition—merely refueling jets and intelligence sharing, well short of direct airstrikes—does not constitute hostilities. Journalists and scholars rightly point out the differences between Obama and Trump, but too few acknowledge the continuities between the two presidents—especially those in the realm of legal policy, where the Obama administration obsessively prioritized the role of lawyers.

Obama “seemed to view the involvement of lawyers in the formulation of national security as a badge of honor—evidence of its commitment to the rule of law,” journalist Daniel Klaidman wrote in his book Kill or Capture. Part of Obama’s lawyerly “badge of honor” now includes, to the disappointment of a number of officials in his administration, a paved road Trump could follow to veto one of the most refreshing measures passed by Congress in recent history.