S.J. Res. 54--Motion to Discharge
Floor Speech
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Mr. LEE. Mr. President, the issue we are confronting today is one that deals with the separation of powers outlined in the U.S. Constitution.
Our system of government was set up in such a way as to protect the people from the dangers associated with the excessive accumulation of power in the hands of a few. We knew from our experience under British rule that bad things happen, especially at a national level, when too few people exercise too much of the power. Nowhere is this more evident than in the case of the war power. In fact, much of the Revolutionary struggle that led to the creation of our Nation resulted from wartime activities undertaken by a Monarch thousands of miles and an ocean away. It is important today that we remember those same concerns and the constraints placed in our Constitution as we run our government nearly 2\1/2\ centuries later.
I am happy to be here with my colleague, Senator Sanders, to file a discharge motion for our resolution, S.J. Res. 54.
Whether you are present in the Chamber today, physically with us, or whether you are tuning in at home, I hope you will listen closely so that we can fill you in on the unauthorized Middle East war that your government--the government of the United States of America--is supporting and actively participating in as a cobelligerent.
This war in Yemen has killed tens of thousands of innocent civilians--human beings, lest we forget--each one of them possessing innate, immeasurable worth and dignity. This war has created refugees, orphans, widows; it has cost millions of dollars; and, believe it or not, at the end of the day, it actually has, quite arguably, undermined our fight against terrorist threats such as ISIS. I will expand on these unfortunate facts in a moment, but for now, let's just focus on one thing. Our military's involvement in Yemen has not been authorized by Congress as required by the Constitution.
Article I, section 8 of the Constitution states that the Congress shall have the power to declare war--Congress, not the President, not the Pentagon, not someone else within the executive branch of government, but Congress. Yet in 2015, then-President Obama initiated our military involvement in Yemen and did so without authorization from Congress.
The current administration has continued Obama's war. Senator Sanders, Senator Murphy, our cosponsors, and I are now giving Congress a chance to fix this error by debating and voting on our Nation's continued involvement in this unauthorized, illegal war in Yemen.
If, as our opponents claim, this war is necessary, then surely they can defend that argument before this body and before the House of Representatives and, ultimately, secure authorization from Congress, just as the Constitution demands under article I, section 8. But if, on the other hand, they cannot defend this war and they cannot persuade a majority of the Members of this body and a majority of the Members of the House of Representatives that this is a war that needs to be fought, then it needs to end. Let's have an honest reckoning about this war today.
Before this debate gets underway in earnest, there are a few points that I would like to clarify.
First, let's talk about Iran for just a moment. Yes, the Houthis did fire on a U.S. Navy vessel. This only reinforces the fact that Yemenis view the United States as a participant in this war, regardless of whether or not Congress wants to acknowledge that participation or approve it, as the Constitution requires. But overall, there are conflicting reports about the extent of Iranian support for the Houthi rebels.
What we do know is this: The Houthis are a regional rebel group that does not itself threaten the United States. While the Houthis are no friends of ours, neither are they a serious threat to American national security. The longer we fight against them, the more reason we give them to hate America and embrace the opportunists who are our true enemy in the region--Iran. And the more we prolong activities that destabilize the region, the longer we harm our own interests in terms of trade and broader regional security.
The bottom line is this: We are spending a great deal of time and treasure to defeat a regional rebel group with no desire to attack the homeland and unclear ties to Iran. Iran's influence is much clearer in other parts of the Middle East with other groups--for example, with the murderous terrorist group, Hezbollah.
If we want to counter Iran, let's have that debate in Congress and vote to equip this administration with the necessary authorization to use our vast and fearsome military resources to defeat its proxies--not to create new proxies by turning rebel groups against us.
Let's talk about ISIS for a moment. Our resolution would not impede the military's ability to fight terror groups, like ISIS, inside Yemen. The resolution itself requires the removal of U.S. forces from hostilities in Yemen, except--except, and I quote--``United States Armed Forces engaged in operations directed at Al Qaeda or associated forces.'' That is a direct quote from the text of the resolution itself. It should put to rest the notion that this would somehow jeopardize our ability to fight terrorists.
The Pentagon and the executive branch have long insisted that they have adequate authority under the authorization for the use of military force enacted in 2001--adequate authority under the 2001 AUMF to fight against ISIS.
If those at the Pentagon and elsewhere in the executive branch or any of my colleagues now claim that this resolution specifically needs to exempt operations against ISIS, then what are we to make of their previous confidence in the 2001 AUMF? Have they suddenly lost faith in that document overnight or are they merely using this argument as a pretense to oppose our resolution?
I personally believe that the 2001 AUMF has been stretched too far. Our resolution, however, is completely agnostic on this point. It is entirely agnostic about whether counterterror operations against al- Qaida and ISIS can proceed in the wake of the resolution. Our resolution is specific, and our resolution relates specifically to the Houthis. Nothing in this bill may be interpreted as an AUMF.
Lastly, with regard to Saudi Arabia and the ongoing visit of Crown Prince Mohammad bin Salman in Washington, DC, at the moment, I have been deeply concerned about our illegal war in Yemen since its inception and have taken steps to end our involvement in that war. I presented questions to our combatant commanders on the topic, just as I have for other unauthorized operations in the past. I had hoped the new administration might take prompt action to end our unauthorized activities in Yemen. Sadly, that has not occurred.
Last fall, after countless missed opportunities and some broken assurances, my colleagues and I decided it was time to take matters into our own hands. By ``matters,'' I mean those matters that are specifically already in our hands, those matters that are already granted to the Congress and to no other branch of government.
There may be some short-term impact on the U.S.-Saudi relationship, but overall the Crown Prince should understand that this protracted and clearly nonconclusive war only hurts his government's stability and legitimacy. He, too, should want a quick end to this conflict. Saudi Arabia is an indispensable partner in the region, without which the United States would be less successful. But the Saudis themselves are at an inflection point within their own government. Working with the United States should be a goal for the Crown Prince and should be a credibility-lending endeavor.
The resolution before you is the product of years of effort. It was not timed in any way, shape, or form to coincide with the Crown Prince's visit. It was drafted with one thing in mind, which is to make sure that before we put U.S. blood and treasure on the line, before we put the sons and daughters of the American people who have served in harm's way into an area in which hostilities are ongoing, to get involved in combat capacities in an area where conflict is brewing, we owe it to them, we owe it to their parents, we owe it to their families, and we owe it to ourselves, having taken an oath to uphold, protect, and defend the Constitution of the United States, to do it the right way--not just because the Constitution requires that but also because of the reasons the Constitution requires that.
It makes sense that when we are doing something that has a greater capacity to impact our government, our standing in the world, our own security, and the lives of those who were sworn to protect us, we do it in the right way, not just through the appropriate branch of government but through the appropriate branch of government in part because that is the only place where an open, honest, public debate can occur.
It is one thing to make a decision somewhere within the military chain of command on whether to undertake a particular action, but this is one of the reasons why, in order to declare war, in order to get us involved in a war in the first place, it requires action by Congress, because this is the branch of the Federal Government most accountable to the people at the most regular intervals.
Over the course of many decades, under the leadership of Congresses and White Houses of every conceivable partisan combination, we have seen a gradual shift of power in a number of areas--including regulatory policy, trade policy, and the exercise of the war power-- over to the executive branch of government. When we don't exercise that power, it starts to atrophy; the Constitution means less, and it is less able to protect the American people. That is why this resolution matters. That is why I urge my colleagues to support this resolution. Let's do this the right way.
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Mr. LEE. I would certainly agree that the answer is yes in response to that question. It is Congress that gets to decide whether we go to war; it is not the executive branch.
For that very same reason, when we have brought up this resolution calling into question whether we have authorized that war and whether we should continue in the absence of an authorization for that war--if we are asked to table that, that very request amounts to a request for abdication of our constitutional responsibility.
A favorite song of mine called ``Freewill'' by the band Rush came out several decades ago, and it says: ``If you choose not to decide, you still have made a choice.''
If we choose in this moment to table this resolution, we are making a choice to be willfully blind to the exercise of a power that belongs to us, to allow someone else to exercise it without proper authority. That is wrong. That cannot happen, not on our watch.
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Mr. LEE. Mr. President, some of our colleagues from time to time may ask us how we would define the term ``hostilities'' and what the United States might be doing that triggers that definition. I welcome that discussion. It is important to note that the U.S. Code is somewhat vague on that question, defining ``hostilities'' broadly to mean any conflict subject to the laws of war. I don't necessarily view that broad definition as problematic. It is something that allows Congress to assess the unique circumstances in each instance on specific grounds at each point in time.
Our involvement in war and in conflict has greatly changed over the years, and it will continue to change as the nature of international relations changes and as the technology we use in war changes and develops. It doesn't mean we are not involved in hostilities. I welcome further discussion on this matter.
Let's look at the facts of our involvement in Yemen today. Since 2015, U.S. forces have aided the Saudi coalition with midair refueling and target selection assistance, or, as Defense Secretary Jim Mattis said in December 2017, our military is helping the Saudis ``make certain [they] hit the right thing.'' In other words, we are helping a foreign power bomb its adversaries in multiple ways. If that doesn't include and amount to and itself constitute hostilities, then such words have lost their meaning.
There are those within the executive branch of government who would define the term ``hostilities'' so narrowly that it would apply only when our armed services personnel are on the ground firing upon or being fired upon by an enemy force. It is understandable in some respects that they would want to define it that way because if they define it that way, that puts the executive in power.
That is one of the reasons we have to remember that there is a natural tension built into our constitutional structure to make sure that not all power is concentrated in any one branch of government. It is one of the reasons Alexander Hamilton pointed out in Federalist No. 69 that war power would not be exercised by the Executive in our system of government. In this instance, as in many others, the Executive in our system of government would differ from the monarch under the old system, the one that was based in London. The King had the power to take Great Britain to war. The King didn't have to seek a declaration of war from Parliament; the King could act in and of himself to decide when to take us to war. It is one of the reasons why it matters here.
When we see the definition of ``hostilities'' narrowed to the point that it very often will not exist given the way we engage in hostilities today, given modern technologies that frequently allow us to engage in acts that anyone would have to acknowledge amount to combat, amount to conflict, amount to hostilities, they can still explain it away as something the Executive can do independently of Congress.
This resolution will not do anything, according to some, because we are not engaged in hostilities in Yemen. I am building upon this argument that is based upon a very narrow, cramped, distorted interpretation of the word ``hostilities.''
When people ask what we think the resolution would do if it were to pass--first of all, it is clear that we are engaged in hostilities because when we are involved as a cobelligerent, involved in midair refueling in combat flights, when we are identifying targets for the Saudi-led military coalition in Yemen against the Houthis, those are combat operations, and those are clearly hostilities. But even if we were to suppose that U.S. activities in Yemen somehow did not constitute hostilities according to the War Powers Resolution, the text of our resolution is crystal clear about what constitutes ``hostilities'' for its purpose; namely, ``aerial targeting assistance, intelligence sharing, and mid-flight aerial refueling.'' Our resolution would end those very specific activities against the Houthis in Yemen-- nothing more and nothing less.
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Mr. LEE. Mr. President, Senator Sanders mentioned some previous wars and how this may or may not relate to those previous wars. One of the other questions we get from time to time is also a related question: How does this impact or influence operations somewhere else in the world where the United States is engaged? Would the passage of this resolution mean that every other type of operation anywhere else in the world would have to stop too? What about our global counterterrorism activities? We sometimes get those questions.
The main reason we drafted this resolution was to bring our activities in Yemen into line with our laws as expressed in the Constitution. So if we are fighting unauthorized wars in other places around the globe, then those wars need to be authorized by Congress, or else they would need to end. Importantly, however, this resolution does not itself make law or set precedent for other operations. This resolution applies just to this conflict in Yemen against the Houthis. Each conflict or operation ought to be evaluated on its own merits and measured against our national interest and any existing authorizations for the use of military force. We can't evaluate this resolution as being something that requires us to swallow the entire elephant at once. This is just focusing on one issue in one part of the world. We need not take any kind of a ``sky is falling'' approach that will say this will immediately jeopardize everything else we are doing in any and every other part of the world.
Global counterterror operations under title 10 or title 50 involve U.S. action but arise in different ways, and any other activity that we undertake or authority that we cite in introducing our armed service personnel into hostilities cannot serve as a substitute for congressional action as contemplated by the Constitution. The power to declare war belongs to Congress and not to the Executive. Just because government breaks the rules often--and sometimes with impunity--it does not mean it has the right to break the rules, nor does it mean, certainly, that we shouldn't call out rule-breaking when we see it going on, but that is a debate for another day.
The resolution before us today is specific to our activities against the Houthis in Yemen. It does not authorize or deauthorize military force in any other part of the globe or against any other foe. In fact, the resolution specifies that it does not interfere with existing operations against al-Qaida and its affiliates. Our resolution is narrowly tailored to end our efforts to assist forces that are fighting against the Houthis. It is deliberately narrow in order to address a black-and-white situation that is clearly not covered by any existing authorization for the use of military force. Counterterror operations that are supported by the 2001 AUMF and other legitimate authorizations would not be affected by this resolution.
I yield to Senator Murphy.
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