Removal of United States Armed Forces From Hostilities in Yemen That Have Not Been Authorized By Congress

Floor Speech

BREAK IN TRANSCRIPT

Mr. McCAUL. Madam Chair, I yield myself such time as I may consume.

Let me just begin by extending my appreciation for the chairman. I know his arguments are well-intentioned, as are mine. I believe that we both completely agree and completely support Congress' solemn duty under Article I of the Constitution, to authorize the commitment of U.S. troops to foreign hostilities; and perhaps there will be another example where we can join forces in that. But that is not the issue here.

Allow me to quote the actual War Powers Act, from Title 50 of the United States Code. This procedure applies to ``the removal of United States Armed Forces engaged in hostilities outside the territory of the United States.''

This has always meant, historically, and today, U.S. troops being directly involved in live-fire combat. As the Department of Defense has repeatedly confirmed, U.S. Armed Forces are not engaged in hostilities against the Houthi forces in Yemen.

This resolution is directing us to remove troops that simply, Madam Chair, are not there. Even the aerial refueling of coalition jets, which does not constitute traditional hostilities, ended last November.

This resolution, in my judgment, misuses the tool to try to get at the different issue of security assistance to third countries. It provides no clear decisions on which forms of assistance are cut off. It does not address the humanitarian catastrophe inside Yemen and, alarmingly, it completely ignores the destabilization role that Iran is playing in Yemen and the region.

This irresponsible measure is trying to hammer a square peg in a round hole.

This resolution really stretches the definition of ``hostilities'' to cover non-U.S. military operations by other countries. It reinterprets U.S. support to those countries as ``engagement in hostilities.''

This overreach has dangerous implications far beyond Saudi Arabia. This approach will now allow any single Member to use this privileged mechanism to second-guess U.S. security cooperation relationships with more than 100 countries throughout the world.

Under this model, if one Member doesn't like something that any of our security partners does overseas, that Member can force quick consideration of a resolution directing the removal of U.S. forces from hostilities ``in or affecting'' that situation. It no longer matters that U.S. forces are not actually conducting those hostilities.

This could impact our assistance to Israel. It could affect our cooperation with our NATO allies. It could impact counterterrorism cooperation with African nations in the Sahel. We could recklessly undo critical security relationships that we have spent decades building.

That is not what the War Powers Resolution has ever meant, and I don't think that is what Congress designed it to do, and it should not be used in this way now.

No one is saying that U.S. security assistance to Saudi Arabia, or anyone else, is beyond congressional scrutiny. Congress has many tools at its disposal. Our committee receives regular arms sales notifications. Congress can condition or cut off security assistance through targeted legislation or the annual appropriations process.

But this resolution is the wrong tool. It is vague and irresponsible. It will create new doubts for our partners and allies around the world.

For those reasons, Madam Chair, I strongly oppose this measure, and I reserve the balance of my time.

BREAK IN TRANSCRIPT

Mr. McCAUL. Madam Chair, I yield 3 minutes to the distinguished gentleman from Texas (Mr. Thornberry), ranking member of the House Armed Services Committee.

BREAK IN TRANSCRIPT

Mr. McCAUL. Mr. Chairman, I yield 2 minutes to the distinguished gentleman from South Carolina (Mr. Wilson), the ranking member on the Middle East and North Africa Subcommittee.

BREAK IN TRANSCRIPT

Mr. McCAUL. Mr. Chairman, I yield 2 minutes to the gentleman from Florida (Mr. Yoho), the ranking member on the Asia, the Pacific, and Nonproliferation Subcommittee.

BREAK IN TRANSCRIPT

Mr. McCAUL. Mr. Chair, I yield 2 minutes to the gentleman from Pennsylvania (Mr. Perry), a member of the House Foreign Affairs Committee.

BREAK IN TRANSCRIPT

Mr. McCAUL. Mr. Chair, I yield an additional 30 seconds to the gentleman from Pennsylvania.

BREAK IN TRANSCRIPT

Mr. McCAUL. Mr. Chairman, I yield 2 minutes to the gentleman from New York (Mr. Zeldin), the ranking member of the Oversight and Investigations Subcommittee of the Committee on Foreign Affairs.

BREAK IN TRANSCRIPT

Mr. McCAUL. Mr. Chairman, I yield 2 minutes to the distinguished gentleman from Kansas (Mr. Watkins), a member of the House Foreign Affairs Committee.

BREAK IN TRANSCRIPT

Mr. McCAUL. Mr. Chairman, I yield 2 minutes to the distinguished gentleman from Colorado (Mr. Lamborn).

BREAK IN TRANSCRIPT

Mr. McCAUL. Mr. Chairman, I yield 1 minute to the distinguished gentleman from Ohio (Mr. Davidson).

BREAK IN TRANSCRIPT

Mr. McCAUL.

BREAK IN TRANSCRIPT

Mr. McCAUL. Mr. Chair, I continue to reserve the balance of my time.

BREAK IN TRANSCRIPT

Mr. McCAUL. Mr. Chairman, I continue to reserve the balance of my time.

BREAK IN TRANSCRIPT

Mr. McCAUL. Mr. Chair, I have no further speakers, so I am prepared to close, and I yield myself the balance of my time.

Mr. Chair, let me state a few points.

We all condemn the murder of Khashoggi. I have condemned it publicly, very strongly, what happened with the Saudis killing Khashoggi, executing him.

We are talking about the situation in Yemen.

Who started this humanitarian crisis in the first place? The Houthis tried to take over the Yemeni Government--the Houthis, backed by Iran.

This is about the geopolitics of Iran, Houthis in Yemen, Iran and the Shia crescent in Iraq and Syria, and a direct threat to Israel by the largest state-sponsored terror, Iran, that is a mortal sworn enemy to Israel, as they chant ``death to Israel,'' ``death to America.''

So let's put this all in proper context of what we are really talking about here. Are we defending Iran and the Houthis here today?

So I would like to close by putting two documents in the Record. The first is a letter sent by the Department of Defense Office of General Counsel stating that ``DOD opposes the resolution because the resolution's fundamental premise is flawed'' because the United States support to the Saudi-led coalition ``does not involve any introduction of U.S. forces into hostilities.''

Are we going to go around and second-guess every security cooperation agreement we have with 117 countries, including Israel and NATO and other partners?

Mr. Chair, I include in the Record this letter from the General Counsel of the Department of Defense. General Counsel of the Department of Defense, Washington, DC, Feb. 27, 2018. Hon. Mitchell ``Mitch'' McConnell, Majority Leader, U.S. Senate, Washington, DC.

Dear Mr. Majority Leader: On February 22, 2018, the Department of Defense (DoD) briefed your staff concerning DoD support to the Kingdom of Saudi Arabia's (KSA) operations in Yemen. Subsequently, you requested an unclassified letter reflecting DoD's views on a draft joint resolution that would ``direct[] the President to remove United States Armed Forces from hostilities in or affecting the Republic of Yemen, except United States Armed Forces engaged in operations directed at al Qaeda in the Arabian Peninsula or associated forces. . . .'' DoD opposes this Joint Resolution. Even if enacted into law, the Joint Resolution would not achieve its apparent purpose of restricting U.S. support to the KSA-led coalition, because, as described below, that support does not constitute ``hostilities.'' In addition to the potential constitutional concerns raised by such a proposal, the draft resolution's restrictions on U.S. military support to our partners could undermine our ability to foster long-term relationships, increase interoperability, promote burden sharing, and build strong security architectures throughout the world. The KSA is a key U.S. partner in the Middle East and we rely on our strong military partnership to promote regional security.

DoD opposes the resolution because the resolution's fundamental premise is flawed. Specifically, the draft resolution incorrectly asserts that U.S. forces have been ``introduced into hostilities between the [KSA-led] coalition and the Houthis. . . .'' The limited military and intelligence support that the United States is providing to the KSA-led coalition does not involve any introduction of U.S. forces into hostilities for purposes of the War Powers Resolution or of section 1013 of the Department of State Authorization Act, Fiscal Years 1984 and 1985 (50 USC 1546a).

Since 2015, the United States has provided limited support to KSA-led coalition military operations against Houthi and Saleh-aligned forces in Yemen. With the exception of a defensive strike in October 2016, U.S. forces are not taking direct military action in this Saudi-led effort in Yemen. Instead, the United States provides the KSA-led coalition defense articles and services, including air-to-air refueling; certain intelligence support; and military advice, including advice regarding compliance with the law of armed conflict and best practices for reducing the risk of civilian casualties.

The draft resolution incorrectly describes United States support to the KSA-led coalition as an operation that introduces U.S. forces into hostilities or imminent involvement in hostilities for purposes of the War Powers Resolution. It has been the longstanding view of the Executive Branch that ``hostilities'' refers to ``a situation in which units of U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces.'' U.S. personnel providing support to the KSA-led coalition are not engaged in any such exchanges of fire. Further, the limited U.S. support to the KSA-led coalition does not implicate the activities identified in section 8(c) of the War Powers Resolution. Section 8(c) defines the term ``introduction of United States Armed Forces'' but does not address the term ``hostilities.'' ``[W]hen applying section 8(c), the relevant question remains whether U.S. forces--not the foreign forces they are accompanying--are introduced into hostilities or situations involving the imminent threat thereof.'' With respect to U.S. support to the KSA-led coalition, U.S. forces do not currently command, coordinate, accompany, or participate in the movement of coalition forces in counter-Houthi operations. Thus, no U.S. forces are accompanying the KSA-led coalition when its military forces are engaged, or an imminent threat exists that they will become engaged, in hostilities. Accordingly, U.S. forces supporting the KSA-led coalition have not been introduced into hostilities or situations where hostilities are imminent.

Although the resolution's requirement to remove U.S. forces from hostilities would not implicate U.S. support to the KSA- led coalition, this requirement could call into question the statutory authority for ongoing U.S. counterterrorism operations in Yemen. Pursuant to the 2001 Authorization to Use Military Force (AUMF) (Public Law 107-40), U.S. armed forces are currently engaged in hostilities against both al Qa'ida in the Arabian Peninsula (AQAP) and the Islamic State of Iraq and Syria (ISIS) in Yemen. Hostilities against AQAP and associated forces are explicitly exempted from the resolution's termination requirement, but hostilities against ISIS are not similarly exempted.

The resolution also asserts incorrectly that there is no authorization for U.S. participation in a Joint Combined Planning Cell with the KSA and mid-air refueling of KSA-led coalition aircraft. President Obama directed such military and intelligence support pursuant to his authority under Article II of the Constitution as Commander in Chief and Chief Executive and his authority to conduct U.S. foreign relations. See Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850) (explaining that the President ``is authorized to direct the movements of the naval and military forces placed by law at his command''); Training of British Flying Students in the United States, 40 Op. Att'y Gen. 58, 62 (1941) (``[T]he President's authority has long been recognized as extending to the dispatch of armed forces outside the United States, either on missions of goodwill or rescue, or for the purpose of protecting American lives or property or American interests.''). Because, as discussed above, this limited support to the KSA does not involve the introduction of U.S. forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated, it does not implicate section 4(a)(l) of the War Powers Resolution. See 50 U.S.C. Sec. 1543(a)(l). The Obama Administration published its summary of that limited support to the KSA-led coalition as part of the December 2016 ``Report of the Legal and Policy Framework Guiding the United States Use of Military Force and Related National Security Operations.'' As discussed further below, DoD and the Department of State have implemented the President's direction through statutory authorities available to the respective Secretaries.

Article II of the Constitution likewise supplied the legal authority for the October 2016 strikes against radar facilities in Houthi-controlled territory in defense of U.S. Navy ships in international waters. The President has authority pursuant to Article II to take military action that furthers sufficiently important national interests. The limited October 2016 strikes were taken to protect U.S. vessels and personnel. Consistent with the War Powers Resolution, President Obama notified Congress of these strikes on October 14, 2016. The Obama Administration also published a summary of its legal analysis for the strike in its December 2016 report.

In late July 2017, President Trump completed a review of the Obama Administration's policy of limited support to the Saudi-led coalition. President Trump decided to continue that support, adjusting the priorities in light of the recommendations of Secretary of Defense James Mattis and intervening developments in Yemen. President Trump's policy guidance for support to the KSA-led coalition's operations in Yemen is to focus on ending the war and avoiding a regional conflict, mitigating the humanitarian crisis, and defending Saudi Arabia's territorial integrity and commerce in the Red Sea. Authorized types of support continue to include intelligence, logistics, and advisory support to the KSA-led coalition.

DoD and the Department of State have implemented the President's policy guidance to provide limited support to the Saudi-led coalition pursuant to legal authorities available to the respective Secretaries. The most prominent forms of support to the KSA and the United Arab Emirates (UAE), as well as the corresponding legal authorities, are detailed below.

Arms and Other Defense Articles: The Arms Export Control Act (AECA) is the underlying authority through which the United States provides or licenses defense articles and defense services to the KSA, UAE, and other members of the KSA-led coalition; many of these defense articles and defense services have been used in the conflict in Yemen. The AECA and associated delegations of authority provide the Secretary of State with the authority to approve the transfer of arms and other defense articles and defense services, primarily through the Foreign Military Sales program (which is overseen by the State Department and implemented through DoD) and through the State Department's licensing of Direct Commercial Sales to foreign partners. The authority to approve such transfers or licenses is not contingent upon whether the foreign recipient is engaged in an ongoing armed conflict, although the existence of such a conflict clearly increases demand and can be a policy factor in approval decisions. Transfers and licenses made pursuant to the AECA are subject to various requirements (such as notifications to Congress when transfers are above certain monetary thresholds) as well as restrictions on end-use (including no further transfer by the end-user without U.S. consent and that proposed uses must be consistent with the law of armed conflict).

Logistics: Pursuant to licenses issued by the State Department under the AECA, U.S. contractors provide defense services in the form of essential maintenance and sustainment for KSA and UAE combat aircraft engaged in hostilities in Yemen. The in-flight refueling of KSA and UAE aircraft, including combat aircraft, and certain other support, may also be provided pursuant to 10 U.S.C. Sec. Sec. 2341 et seq., which authorizes DoD to provide logistic support, supplies, and services to the military forces of a country with which DoD has an Acquisition and Cross-Servicing Agreement (ACSA) in force. DoD must first obtain State Department approval to conclude an ACSA; DoD has ACSAs with the Ministry of Defense of the KSA (applied provisionally pending its formal entry into force) and with the Armed Forces General Headquarters of the UAE.

I trust that this response will be helpful to your understanding of U.S. support to the KSA's operations in Yemen, and the reason for the DoD's opposition to this proposed Joint Resolution. Thank you for your continued support of the Department of Defense. Sincerely, William S. Castle, Acting.

BREAK IN TRANSCRIPT

Mr. McCAUL. Mr. Chair, I include in the Record this second document, which is a Statement of Administration Policy on this point. Statement of Administration Policy S.J. Res. 54--To Direct the Removal of United States Armed Forces from Hostilities in the Republic of Yemen that Have Not Been Authorized by the Congress--Sen. Sanders, I-VT and 16 cosponsors

The Administration strongly opposes passage of S.J. Res. 54, a joint resolution that purports to direct the removal of United States Armed Forces that have not been authorized by the Congress from hostilities in the Republic of Yemen. The fundamental premise of S.J. Res. 54 is flawed--United States forces are not engaged in hostilities between the Saudi-led coalition and Houthi forces in Yemen. Since 2015, the United States has provided limited support to member countries of the Emirati and Saudi-led coalition, including intelligence sharing, logistics, and, until recently, aerial refueling. This support is provided in accordance with licenses and approvals under the Arms Export Control Act, statutory authorities to provide logistics support, and the President's constitutional powers. United States counterterrorism operations and an October 2016 strike on radar facilities in Houthi-controlled territory, which was the subject of a prior report consistent with the War Powers Resolution of 1973, are separate matters. Other than those engagements, no United States forces have been introduced into hostilities, or into situations where hostilities are clearly imminent, in connection with ongoing support to the Saudi-led coalition. As a result, this United States support does not implicate the War Powers Resolution.

In addition to its erroneous premise, the joint resolution would harm bilateral relationships in the region and negatively impact the ability of the United States to prevent the spread of violent extremist organizations such as al- Qa'ida in the Arabian Peninsula and ISIS in Yemen. The continued cooperation of the United States allows the Administration to support diplomatic negotiations to end the war, ensure humanitarian access, enhance efforts to recover United States hostages in Yemen, and defeat terrorists that seek to harm the United States.

Accordingly, if S.J. Res. 54 were presented to the President in its current form, his advisors would recommend that he veto the joint resolution.

BREAK IN TRANSCRIPT

Mr. McCAUL. Mr. Chair, I am deeply troubled by the one-sided nature of this resolution and what is missing from this resolution, which I just stated earlier, and that is Iran, the world's leading state sponsor of terror and the Houthis' benefactor. By staying silent on Iran and by not condemning the Houthis in this resolution, it sends a green light to the Houthis and to the Iranian backers to press on.

This resolution is counterproductive, also, to the efforts that are ongoing right now to negotiate peace in Yemen between the Houthi rebels and the Government of the Yemen Republic.

As we speak, the U.N. envoy is working with the full support of the United States to negotiate a political resolution to this conflict. Getting to these talks has required placing substantial pressure on all parties involved.

The U.N. is encouraging the Houthis to uphold these agreements and to make further agreements with the Yemini Government and the Saudi-led coalition. But this resolution might cut the U.N. efforts off at its knees.

The Democrats can't tell specifically what assistance this resolution cuts off, but what I can say for sure is that what this resolution says to the Houthis and to Iran is: You have got a green light. Keep going on. You can gain more ground and cause more destruction and humanitarian crisis and cause more problems for Israel and our Saudi ally.

Advancing this pro-Houthi, pro-Iran, anti-Israel resolution does not help to end this war. In Yemen, it only emboldens the rebels in Iran who violently overthrew Yemen's Government and the radical regime that backs them, Iran.

So I would say, Mr. Chairman, in closing, this resolution is not only a dangerous precedent legally--it violates the construction of the War Powers Act--but it is damaging and very bad policy, and I urge my colleagues to vote against it.

Mr. Chair, I yield back the balance of my time.

BREAK IN TRANSCRIPT

Mr. McCAUL. Mr. Speaker, on that I demand the yeas and nays.

The yeas and nays were ordered.

BREAK IN TRANSCRIPT

Source