White House scrambles for legal loopholes in Yemen war
US law mandates President Biden end the war on Yemen in defense of Israel's genocide on 12 March
National security lawyers working for the Biden White House are seeking legal loopholes to justify the US war on Yemen, a new report from The New York Times (NYT) on 23 February details.
At question is the legality under US law of strikes carried out by the US Navy on Yemeni targets on three separate days starting in January and the detention of 14 Pakistani sailors the US accuses of transporting weapons to Yemen.
US involvement in Yemen began after Yemen’s Ansarallah-led government ordered its armed forces to target Israeli-linked commercial ships passing through the Bab al-Mandab Strait in the Red Sea in November.
Ansarallah is seeking to compel Israel to end its bombing campaign in Gaza, which has resulted in widespread killing and destruction. Israel has killed over 29,000 Palestinians – the majority of whom were women and children.
Rather than end its support for Israel’s campaign – which many view as genocide – the White House instead ordered the US Navy to protect Israeli ships passing through the Red Sea. This led to Yemeni forces attacking US and UK Naval ships.
The US has carried out 30 strikes in response. According to the national security lawyers, most of the strikes can be characterized as self-defense because they allegedly targeted sites from which missiles were about to be launched at US or UK ships. It has also become routine for the Navy to shoot down Yemeni attack drones in the Red Sea.
However, according to NYT, three major sets of US and UK strikes in Yemen were not in self-defense: on 11 January, 22 January, and 3 February. Those strikes were pre-emptive and targeted weapons bunkers, command hubs, and other targets, with authorization from President Joe Biden.
Because the strikes were not in self-defense, this means that the White House can engage in hostilities against Yemen for only 60 days before seeking congressional approval, per the 1973 War Powers Resolution. That 60-day clock would end on 12 March.
To continue the war on Yemen beyond that date, the White House will need to find a loophole in the resolution.
NYT writes that according to one US official, the text of the War Powers Resolution states that a president must have “introduced” US 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.”
The White House also argues, in a contradictory fashion, that the strikes on Yemen are both too frequent to constitute being at war with Yemen and not frequent enough.
The US official said the strikes on Yemen “have been brief and infrequent, raising the possibility that they are too intermittent for the clock to apply.”
The same official at the same time pointed to operations “in which combat was more frequent or posed a greater threat to American forces,” which might provide a precedent for the current war on Yemen. These include the use of US Navy escorts for oil tankers in the Persian Gulf in 1987 under president Ronald Reagan, in which 37 Navy sailors were killed, as well as US strikes in Libya in 2011 under president Barack Obama to topple the government of Muammar Qaddafi. Congress did not approve the military operations in either case.
According to Jack Goldsmith, a Harvard law professor and former head of the Office of Legal Counsel in the George W. Bush administration, “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.”